COMMONWEALTH OF AUSTRALIA

PARLIAMENTARY DEBATES

SENATE

Official Hansard No. 3, 2002 TUESDAY, 19 MARCH 2002

FORTIETH PARLIAMENT FIRST SESSION—FIRST PERIOD

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

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TUESDAY, 19 MARCH Questions Without Notice— Privilege: Senator Heffernan ...... 925 Economy: Growth ...... 925 Privilege: Senator Heffernan ...... 926 Workplace Relations: Policy...... 927 Privilege: Senator Heffernan ...... 928 Howard Government: Discrimination ...... 929 Privilege: Senator Heffernan ...... 929 Telstra: Services and Sponsorship ...... 930 Privilege: Senator Heffernan ...... 930 Economy: Rural and Regional Australia...... 931 Committee Membership: Senator Heffernan...... 932 Environment: Paradise Dam...... 932 Privilege: Senator Heffernan ...... 933 Australian Tourist Commission: Funding...... 934 Defence: Ordnance...... 935 Law Enforcement: National DNA Database ...... 936 Defence: Ordnance...... 937 Questions Without Notice: Take Note of Answers— Privilege: Senator Heffernan ...... 937 Howard Government: Discrimination ...... 942 Business— Rearrangement...... 943 Privilege...... 944 Senator Heffernan— Censure Motion ...... 945 Privilege...... 967 Lucas Heights: Nuclear Reactor— Returns to Order ...... 968 Petitions— Telstra: Privatisation...... 972 Notices— Presentation ...... 972 Postponement ...... 978 Leave of Absence...... 978 National Library of Australia: Treasures from the World’s Great Libraries Exhibition...... 978 Basslink: Transmission Lines ...... 979 Community Development Employment Projects Achievement Awards ...... 979 Human Rights: Burma ...... 979 Documents— Auditor-General’s Reports—Report No. 37 of 2001-02 ...... 980 Auditor-General’s Reports—Report No. 38 of 2001-02 ...... 980 Budget— Consideration by Legislation Committees—Report...... 980 Committees— Membership...... 980 States Grants (Primary and Secondary Education Assistance) Amendment Bill 2002— Second Reading...... 981 SENATE CONTENTS—continued

Ministers of State Amendment Bill 2002— Second Reading...... 997 Disability Services Amendment (Improved Quality Assurance) Bill 2002— Second Reading...... 1005 Criminal Code Amendment (Anti-hoax and Other Measures) Bill 2002— Second Reading...... 1011 Adjournment— Zimbabwe...... 1021 France: Australian War Graves...... 1023 Australian Labor Party: Minutes ...... 1025 New South Wales: Education ...... 1026 Documents— Tabling...... 1028 Tabling...... 1028 Indexed Lists of Files ...... 1028 Departmental and Agency Contracts...... 1029 Tuesday, 19 March 2002 SENATE 925

Tuesday, 19 March 2002 basis of the allegations he passed on to the ————— New South Wales Police are definitely not documents provided pursuant to any FOI The PRESIDENT (Senator the Hon. request? Minister, that is my question. It Margaret Reid) took the chair at 2.00 p.m. does not go to operational matters; it goes to and read prayers. the question of the status of these documents QUESTIONS WITHOUT NOTICE and whether or not they were provided pur- Privilege: Senator Heffernan suant to an FOI request. Senator FAULKNER (2.01 p.m.)—My Senator ABETZ—I think there is a question is directed to Senator Abetz, the slightly different question being asked now Special Minister of State. Can the minister by the Leader of the Opposition. I under- confirm the statement made by Senator Hef- stand in the normal course of events, when fernan that he had made an FOI request for FOI requests are made, if people do not ob- Comcar documents relating to Justice Kirby ject et cetera, certain information may or and that he had been refused access to those may not be made available. The department documents? Did Senator Heffernan ever did respond and act appropriately in relation formally or informally seek a review of any to FOI requests made by our friends in the FOI decision on this matter and what was the gallery or by individual senators and/or citi- result of any such review? Can the minister zens. In relation to the document that I think confirm that Senator Heffernan did approach Senator Faulkner is referring to, namely, the the then secretary of the department, Dr Pe- purported Comcar docket, I understand from ter Boxall, asking him to obtain copies of my department that is a document the de- departmental documents for him? What ac- partment cannot authenticate. tions did Dr Boxall take as a result of this Economy: Growth request from Senator Heffernan? What did Senator WATSON (2.04 p.m.)—My Dr Boxall know about any documents which question is directed to Senator Hill, the form the basis of Senator Heffernan’s allega- Leader of the Government in the Senate. tions against Justice Kirby and when was he Will the minister inform the Senate how first made aware of any documents, whether Australian families are benefiting from the they be from the department or elsewhere? Howard government’s responsible economic Senator ABETZ—As the Leader of the management? Opposition would be aware, this matter is Senator HILL—The coalition govern- now in the hands of the New South Wales ment continues to provide the good eco- Police. They have received, as I understand nomic times Australia is currently enjoying. it, information from Senator Heffernan and, There has been more good news today. The until such time as the New South Wales Po- building industry is booming. ABS figures lice have completed their investigations, it is out today show commencement of new pri- my respectful suggestion to the opposition vate sector houses rose 18.6 per cent in the that it is not appropriate to pursue the course latest quarter. The trend estimate for the total and line of questioning Senator Faulkner is number of dwelling units commenced rose trying to pursue. 17 per cent in the December quarter in the Senator FAULKNER—Madam Presi- year 2001. This of course means more jobs, dent, I ask a supplementary question. I re- greater consumer confidence and more retail spectfully suggest to the minister that these spending. are process questions about an FOI request. We all remember the now Leader of the My supplementary question is this: given Opposition, Mr Crean, saying in March that at least some of these documents were 2001: leaked to a Sunday newspaper before they were provided to the New South Wales Po- We are in a severe downturn. The GST has lice, can the minister confirm that the docu- mugged the Australian economy. They have given us the slowdown we did not need to have, ments waved about by Senator Heffernan in and how could this government get it so wrong. this chamber last week and which form the 926 SENATE Tuesday, 19 March 2002

It is now blatantly obvious Mr Crean got it Minister of State. I appreciate the point that so wrong. The Australian economy has the senator made earlier, so I will try to stick shown considerable resilience to the interna- to process issues. When was the Department tional economic downturn and the outlook of Finance and Administration first made continues to be positive. The Australian aware of the existence of the document pur- economy grew by a strong 1.3 per cent in the porting to be a Comcar record, on which December quarter and 4.1 per cent through Senator Heffernan has based serious allega- the year—faster than the major OECD tions against Justice Kirby? When was the economies. The latest business surveys, in- department first provided with a copy of this cluding those of the National Bank, ACCI, document and by whom? What action did the Dun and Bradstreet and Yellow Pages, show department take to assess the authenticity of that business conditions have recovered sig- this document? How was such an investiga- nificantly since the terrorist attacks on the tion carried out? What was the result of the US of 11 September and the collapse of An- investigation? When was the minister first sett. Interest rates continue to be at their low- informed of the result? est levels in 30 years. Today the average Senator ABETZ—I am sure Senator home buyer is saving more than $370 each Conroy would appreciate that I was not able month on their interest bill. We have created to take all of those questions down, but what more than 950,000 new jobs, or 430 jobs per I can do for the honourable senator is take day, since coming to office. The unemploy- those questions on notice and provide him ment rate is down from seven per cent to 6.6 with a response. per cent. Senator Carr—How weak! It is all good news for Australian workers and Australian families—news that Labor Opposition senators interjecting— does not want to hear. Why would it when Senator ABETZ—We get the predictable the Labor legacy is so embarrassing? A high cacophony from the opposition, but I do not taxing, high spending, high deficit govern- think anybody would anticipate that I would ment; nine budgets in successive deficit; a know the dates and times when DOFA were $10 billion black hole when it left office; tax first advised. Indeed, in relation to the increases when it promised cuts; interest authenticity, I have already indicated to his rates up to the level of 17 per cent; and small leader—and that is a problem, isn’t it, when business tax, under Labor, of over 20 per the opposition have their question time tac- cent. And it seems it is proud of it! Unem- tics worked out but then do not listen to the ployment was at its highest rate since the answer given to the first question—that the Great Depression—over one million unem- department have been unable to indicate the ployed at its height under Labor; $96 billion authenticity of the document. That is my ad- of government debt was run up between vice, that is what I said to your leader, and I 1990 and 1996, $57 billion of which this will say it to the deputy leader. Senator Con- government has repaid, and average inflation roy makes certain conclusions, and that is for was 5.2 per cent. Senator Conroy to do. My advice from the This is the comparison: good economic department is that they cannot authenticate times under the Howard government; bad the document. economic times under Labor. This was the Senator CONROY—I have a supple- primary distinction on which the Australian mentary question, Madam President. I draw people voted at the last election, and they to the minister’s attention that in the other will vote again for a government that can place the acting leader of the Liberal Party give good economic outcomes, a government has indicated that it is a fabrication. I ask which is good for Australian workers and again: when was the minister first informed good for Australian families. of the result of his department’s investigation into the authenticity of the purported Comcar Privilege: Senator Heffernan document? Who in the department was told Senator CONROY (2.08 p.m.)—My of any such assessment of the document’s question is to Senator Abetz, the Special Tuesday, 19 March 2002 SENATE 927 authenticity? Were current or former minis- Crean said? Mr Crean says, ‘Basically, the ters told? Which other departments were factions are our biggest problem.’ And does told? he give a few people a serve on the way Senator ABETZ—In relation to the an- through! He says: swer that was given in the other place, the Labor’s factional system was rewarding medi- honourable senator would know very well ocrity and promoting candidates with few life that he is parroting what Mr Costello said in skills and little understanding of the community. relation to Senator Heffernan’s personal con- Well, there is the proof. He is absolutely clusions. He has indicated to the other place right on that count, isn’t he? It is not good that that is what Senator Heffernan has con- enough for Mr Crean to say, ‘I’ll set a 1,000- cluded. As the responsible minister, all I can day deadline for change, and change is about comment on is the conclusion that my de- culture, attitudes and commitment,’ because partment have come to—and that conclusion serious and meaningful change is about poli- is that they cannot authenticate the document cies and legislation. If you are fair dinkum that was provided. about wanting to help small businesses, ordi- Opposition senators interjecting— nary Australians and those whose real in- comes declined under your accord and have The PRESIDENT—Order! There are too gone up dramatically under our workplace many people shouting. reform initiatives, then you would be out Senator ABETZ—In relation to the there supporting that legislation, not pre- question as to all the people who were con- tending somehow ‘The factions are the sulted and at what time they came to certain problem’; ‘We’ve got to modernise’—what- conclusions, I will take that on notice and get ever that might be—and ‘I’ll give myself a back to the honourable senator as soon as I three-year timetable to basically do nothing can. (Time expired) but mouth slogans’. You had Knowledge Workplace Relations: Policy Nation—that was a three-year slogan—and Senator COLBECK (2.12 p.m.)—My that did not work very well. You have to do a question is to the Minister of Communica- lot better than that. tions, Information Technology and the Arts, Of course, while Mr Crean is busy Senator Alston. Will the minister inform the wringing his hands, you have the part-time Senate of any new policy proposals regard- shadow minister for communications, Mr ing workplace relations that have been initi- Tanner, who is of course much more inter- ated under the strong leadership of the How- ested in getting up the factional pole—a clas- ard government? Is the minister aware of any sic case study. He says, ‘As a trade unionist, alternative proposals in this area that are we have got too many trade unionists in the worthy of consideration? parliament. I’ve got there, so enough is Senator ALSTON—I thank Senator Col- enough.’ I can understand him saying it if he beck, and he would know as well as anyone is an example of what happens when you go else in the chamber just how important it is that one step too far. He is probably right. for small businesses to have the unfair dis- But, again, he says, ‘The party is in serious missal laws repealed. decline. The organisation needs an overhaul. Branch stacking has made a mockery of the Senator Jacinta Collins—That’s not new. branch system. There is a lack of diversity in He is asking for new ones! Labor’s parliamentary ranks. Too many of its Senator ALSTON—No, it is not new— MPs were drawn from the Labor movement.’ exactly. But what is new is that Mr Crean is Need I say any more? He is almost pinching out there pretending he is on a modernisation my words, isn’t he? The fact is that it is all path. No-one knows what it means—he has reflected in policies and initiatives and not been prepared to spell it out—but, pre- knowing what you have got to do to win sumably, it means standing up to the trade back middle Australia. That is what it is all unions. They are walking away because they about; it is not about going along and talking think Labor is irrelevant. So what has Mr about changing the culture or reforming 928 SENATE Tuesday, 19 March 2002 branch stacking. Branch stacking has got Comcar documentation? Does the Prime nothing to do with having good policies. Minister have even more information about We have got people here, most of whom other aspects of Senator Heffernan’s allega- have had at least a primary education, who tions and what is that information? Most im- ought to be capable of understanding what portantly, when did the Prime Minister re- issues are about. They ought to know the ceive that information and who provided it? benefits of the initiatives that we have intro- Senator HILL—I do not know what the duced that Senator Colbeck was referring to: ‘certain information’ was. addressing the excessive burden of current Senator Bolkus—Ha, ha! unfair dismissal laws, ending these service fees from non-union members, secret ballots Senator HILL—How would I know? The before you can embark on a lawful strike— Prime Minister indicated at a press confer- what on earth is wrong with that?—enhanc- ence he had certain information, upon which ing the IRC’s powers to promote genuine he therefore asked the senator to take a par- bargaining and facilitate dispute settling, and ticular step. The senator agreed to do so and restoring the previous termination agree- that was the end of the matter. What the ad- ments. Why does Labor simply go out there ditional information was I am not aware. and say, ‘We are going to change all that; we Senator FAULKNER—Madam Presi- will review all our policies except Telstra’? dent, I ask a supplementary question. In that Because the public sector unions do not want element of my question about the ‘certain them to touch Telstra. Why are they not pre- information’, I would ask if the Leader of the pared to reform IR legislation? Because the Government in the Senate, Senator Hill, unions do not like it. Why do they say they could take that on notice and report back as are opposed to modernising the media laws soon as possible. And, further, could I ask: in this country? Because the unions do not what action did the Prime Minister himself like it. So, if you are serious about this, stand take? Did he demand documents from up for them. Do some decent things on the Senator Heffernan? Did he seek confirmation policy front. Do not just get out there and from the ministers responsible? Did he have think that you will be able to get away with his own department consider the claims or another three years of talking the talk, be- did he have his own staff thoroughly exam- cause you will not. You have the perfect op- ine the allegations before any abuse of par- portunity right now to do something that is in liamentary privilege occurred? What action the interests of ordinary Australians and I did the Prime Minister take in exercising due suspect that once again you will flunk the diligence in this matter and when did he do test. (Time expired) it? Privilege: Senator Heffernan Senator HILL—I think the Prime Minis- Senator FAULKNER (2.17 p.m.)—My ter has indicated he was unaware that the question is directed to Senator Hill, Leader speech was to be made last Tuesday. That is of the Government in the Senate and Minis- when the detail came to his attention and to ter representing the Prime Minister. Does the the attention of all of us. Subsequent to that, minister recall the Prime Minister saying in the Prime Minister obviously learnt that his last-minute press conference at the air- there were significant shortcomings in mate- port yesterday that he had been provided rial that was provided to the New South with certain information regarding Senator Wales Police, as a result of which he has Heffernan’s allegations against Justice Kirby asked Senator Heffernan to resign, which he and in the light of that information he was has indicated he will do. And that really is requesting that Senator Heffernan resign as the end of that matter. I will ask the Prime Parliamentary Secretary to Cabinet? Minis- Minister if he wants to provide further detail ter, what was this certain information re- on the ‘certain information’ aspect, but it ferred to by the Prime Minister and was it in really seems to be exploring the past rather addition to Labor’s revelations yesterday than catching up with the future. about the apparent false elements of the Tuesday, 19 March 2002 SENATE 929

Howard Government: Discrimination tled to do so, and it may be one day that the Senator GREIG (2.20 p.m.)—My ques- national parliament as a whole supports him. tion is also to Senator Hill representing the But, basically, we do not seek to be discrimi- Prime Minister. I ask the minister: given that natory in our legislation and as we approach the Howard government discriminates our legislative task that guides us in that di- against gay and lesbian people and their re- rection. lationships in and with superannuation, taxa- Privilege: Senator Heffernan tion, family law, the Commonwealth Public Senator SHERRY (2.22 p.m.)—My Service, the Australian Federal Police, the question is to Senator Hill, representing the defence forces, immigration, veterans’ af- Prime Minister. Can the Leader of the Gov- fairs, industrial relations, social security and ernment confirm that the Prime Minister parliamentary entitlements, and given that only demanded Senator Heffernan’s resigna- the government and the opposition have tion from his frontbench after Labor demon- blocked or stymied every attempt by the strated that the purported Comcar documents Australian Democrats to remedy this situa- relating to Justice Kirby were false and likely tion with legislative reform, how does the to be fraudulent? Given the seriousness of minister explain the Prime Minister’s recent the allegations made by Senator Heffernan, assertion that the government is not homo- what action had the Prime Minister himself phobic? taken to verify the authenticity of Senator Senator HILL—I missed the last few Heffernan’s documents, either before or sub- words, but I think I should advise the hon- sequent to Senator Heffernan’s statement to ourable senator that laws are made by the the Senate last Tuesday? If he took no action parliament, not by the government, and if he to verify their authenticity, why then was the wishes to object, arguing that Australian Prime Minister ramping up the political heat laws are discriminatory, he can do so but he on Justice Kirby on radio last Friday? is very much part of that process that deter- Senator HILL—As I understand it, the mines the laws under which we act. We do Prime Minister caused his own inquiries to not seek to be discriminatory, particularly on be conducted and when, as a result of those the ground of sex, and that is our driving inquiries, he believed there were significant influence in this particular matter. shortcomings in documentation that had been Senator GREIG—Madam President, I provided to the police by Senator Heffernan ask a supplementary question. I acknowledge he asked Senator Heffernan to resign. I that peculiar answer, but I would ask the would have thought the opposition would minister if he is aware of the fact that Aus- think that was the appropriate thing to do. tralia is one of the few Western countries in Senator SHERRY—Madam President, I the world that has no national antidiscrimi- ask a supplementary question. Who carried nation laws whatsoever to protect gay and out the inquiries on behalf of the Prime lesbian people from harassment and dis- Minister, and does the Prime Minister have crimination. And, given this is the case, why information shedding further doubt on the does the government prevent moves by the authenticity of the purported Comcar docu- Australian Democrats to progress the sexu- ment, including doubts from other persons ality discrimination bill to address this and allegedly travelling on the same day? Can which has been on the Notice Paper since the minister confirm, for instance, that John 1995? Dawkins has claimed he was in Fremantle Senator HILL—Antidiscrimination laws preparing for his daughter’s christening on have been basically implemented at a state that day or that Ian Sinclair has also cast level because that is where the occurrences doubt on any suggestion that he used a Com- of discrimination that were seen to require a car in Sydney on that Easter Saturday, a fact legislative response were found. If Senator confirmed by an examination of his TA rec- Greig wants to continue to promote legisla- ords which show he was not claiming TA for tion of the Commonwealth to cover the field, Sydney at that time? that is his business and he is certainly enti- 930 SENATE Tuesday, 19 March 2002

Senator HILL—The opposition seem to will see if I can find some more information be missing the vital fact that, when the Prime for you. Minister determined yesterday that the Privilege: Senator Heffernan document in question was not authentic, he asked Senator Heffernan to resign and Senator LUDWIG (2.28 p.m.)—My Senator Heffernan agreed to do so. question is to Senator Hill, Leader of the Government and Minister representing the Telstra: Services and Sponsorship Prime Minister. Can the Leader of the Gov- Senator HARRIS (2.25 p.m.)—My ques- ernment confirm that the Prime Minister has tion is to Senator Alston, the Minister for demanded Senator Heffernan’s resignation Communications, Information Technology only as Parliamentary Secretary to Cabinet? and the Arts. Has Telstra incorporated a use- Can the Leader of the Government also con- by date into phone cards or do they intend to firm that Senator Heffernan undertook his insert a use-by date? If a person purchases a speech slandering Justice Kirby under privi- phone card for emergency use, would that lege and based on fraudulent documents as a use-by date ultimately have the potential to senator representing the Liberal Party, not in make it unavailable in an emergency? Is it his role as Parliamentary Secretary to Cabi- true that Telstra shut down the Easymail net? Shouldn’t the Prime Minister’s demand service as of 13 March 2002, and is it correct for Senator Heffernan’s resignation go to the that Telstra is providing quite considerable role under which he committed the breach of sponsorship for racing cars? parliamentary standards, that is, as a Liberal Senator ALSTON—I am not sure I can Party senator? When will the Prime Minister, give precise answers to any parts of those or indeed the Leader in the Senate himself, questions. They do not consult me about take action in regard to the Liberal Party’s sponsorship, for example. I would have endorsement of Senator Heffernan in this thought that they should be sponsoring place? Collingwood, but there is probably a conflict Senator HILL—If I had been in opposi- of interest there. tion for six years and still had not developed Senator Conroy—Shows you what a an economic policy, I would be looking for a judge you are. diversion. So, lucky Labor Party, they have got a diversion. They no longer have to face Senator ALSTON—One can only advise up to the real responsibility of opposition— in these matters. Whether they are sponsor- ing some racing car event, I can find out for Opposition senators interjecting— you, Senator Harris. As far as expiry dates Senator HILL—We have given it to you. on phone cards are concerned, all I can think I have conceded; we have given you a diver- of is that there are pre-paid cards that you sion. So for today you do not have to face up can purchase which expire when you run to your own shortcomings—shortcomings down the stored value of that card, but I do which, after six years, failed to deliver to the not see why there would be a card that would Australian people an alternative economic simply expire by a fixed date irrespective of policy; shortcomings that meant in the last use. I will check it out, but it sounds unlikely election they had no alternative but to vote to me. As for shutting down Easymail by a for the Howard government, because it was particular date, I recall that, as a result of a only the Howard government that gave them fairly lively media debate, Telstra extended the economic credentials of a prosperous the closure date of that service by about six future. weeks. I think we also required them to make Opposition senators interjecting— inquiries about the number of small busi- nesses and people operating from home who Senator HILL—Okay, then, let’s talk might be affected by the fact that it would about slander. Let’s start with Senator Faulk- not be possible to relay an email through to a ner. When is Senator Faulkner going to new email address. I think that matter was apologise to the Baillieu family? This is the also dealt with in a satisfactory way, but I old double standard of the Labor Party. When he came in and slandered the Baillieu Tuesday, 19 March 2002 SENATE 931 family—actually slandered a dead man—did Senator HILL—Did the honourable he apologise? No; he said, ‘I will never senator ask Senator Faulkner to resign? Did apologise.’ The Labor Party never apolo- his colleagues ask former Senator Walsh to gises. So, yes, he used the coward’s castle. resign? Of course not, because it was differ- He came in here and defamed a dead man, ent: it was the other side of the chamber! years ago, and he still has not apologised. Honourable senators interjecting— Perhaps we could start this debate today with clean hands. Senator Faulkner could get up The PRESIDENT—Order! There are and say, ‘I apologise to the Baillieus for de- senators shouting on both sides. It makes it faming them under parliamentary privilege,’ difficult to hear, and the behaviour is disor- and then we could hear what comes from the derly. other side. Senator HILL—Senator Heffernan has Opposition senators interjecting— suffered a significant penalty in this regard, and the fact that he is prepared to take that Senator HILL—I could give examples of penalty is the first step towards putting the Labor defaming judges who have retired— mistakes right; in other words, demonstrating even deceased judges. When I took that point to the honourable judge that mistakes have of order, did Senator Ray leap to his feet and been made and Senator Heffernan will say, ‘I will not stand the Labor Party defam- apologise for those mistakes. ing under the privilege of parliament’? Did he say, ‘I will not use the coward’s castle; I Economy: Rural and Regional Australia will not allow my colleagues to do this’? Of Senator EGGLESTON (2.34 p.m.)—My course not, because of the same old double question is directed to the Minister for For- standards from the Labor Party that we al- estry and Conservation, Senator Ian Mac- ways get. donald. Would the minister outline how the Senator Heffernan has made an error, and government’s strong economic management he has suffered a significant penalty as a re- is delivering benefits to rural and regional sult of it. He has lost his position as Parlia- communities, and is the minister aware of mentary Secretary to Cabinet—a significant any alternative approaches to rural and re- penalty for a mistake that was made, even gional policy? though it was a mistake that was clearly un- Senator IAN MACDONALD—Senator intended. Senator Heffernan was not aware Eggleston, coming from rural Western Aus- that the document in question was false. He tralia, is very much interested in what the was not aware of it. On that basis, I think the Howard government’s good economic record penalty he has suffered is more than enough has done for rural and regional Australia. In for the offence that has been committed. the last six years, the Howard government Senator LUDWIG—Madam President, I have been concentrating on economic man- ask a supplementary question. Given Senator agement to the extent where we now have Heffernan’s failure as yet to comply with the what has been described as the economic Prime Minister’s belated instruction to make miracle economy of the world. That has a statement to the Senate apologising to Jus- meant real benefits to rural and regional tice Kirby and to the Senate, what action will Australia. Rural and regional Australia has the Prime Minister—or Senator Hill, as been part of the reason for the economic in- Leader of the Government in the Senate— crease and it is certainly a beneficiary. There take to ensure that Senator Heffernan begins has been 4.1 per cent growth, which is even to set right the incalculable damage he has more remarkable when you consider this is done? Why doesn’t the negligent peddling of against a background of recession in the US fraudulent documents under parliamentary and in Japan. The agricultural outlook re- privilege mean the removal of Senator Hef- mains positive and there are good signs fernan’s Liberal Party endorsement and, ahead for rural and farming areas. Future preferably, his resignation as a senator alto- agricultural projections show that exports are gether? forecast to rise by some five per cent to $30 billion this financial year and that gross farm 932 SENATE Tuesday, 19 March 2002 production is forecast to increase by five per jobs in the timber industry in that state. The cent. Milk prices, for example, are also fore- Labor Party opposed all the good things that cast to rise by seven per cent. the Howard government has done. It opposed The good economic work of the Howard our productivity gains across the wharf and, government has meant we have been able to of course, it could not do anything about remove $3.5 billion of taxes from exports. that. (Time expired) That has been fabulous for the rural sector. Committee Membership: Senator Increased productivity in transport and Heffernan across the wharves has also helped rural and Senator O’BRIEN (2.38 p.m.)—My regional Australia. We have a lot to thank question is to Senator Hill, Leader of the Peter Reith, Chris Corrigan and Patrick’s for, Government in the Senate and the Minister for the good work they have done across the representing the Prime Minister. In the light wharves, because it allowed our exports to of the comprehensive discrediting of Senator be exported much more productively. The Heffernan in recent days, does the Leader of good return from the economy has meant the Government in the Senate propose to that Australia can invest $1.5 billion in the maintain Senator Heffernan’s position as one first part of the Natural Heritage Trust, which of his nominees on the Senate Select Com- helps in rural and regional Australia, and can mittee on a Certain Maritime Incident? invest an additional $1 billion, which was announced last year as part of our election Senator HILL—Senator Heffernan has indicated to me that he wishes to stand down commitment to the Natural Heritage Trust. from that position, and we will accord with The Commonwealth have given $700 his wish. million for the National Action Plan for Sa- linity and Water Quality. We have been able Environment: Paradise Dam to use Australia’s good fortune in the econ- Senator BARTLETT (2.39 p.m.)—My omy to open up rural transaction centres, to question is to the Minister representing the have programs like the Regional Solutions Minister for the Environment and Heritage. Program, and to invest almost $500 million The minister would be aware that the Burnett in helping medical facilities in rural and re- River is recognised as a priority river under gional Australia. This has all had an impact. the National Action Plan for Salinity and Our unemployment figure was down to 6.6 Water Quality and will receive part of the per cent last week. You only have to compare $162 million allocated for Queensland under that with what Labor had, which was unem- that program. Given that construction of the ployment up into the 10 per cent, 11 per cent Paradise Dam along this river in conjunction and 12 per cent range. with amendments to the Queensland Water I was asked by Senator Eggleston whether Resources Act will lead to a major reduction I am aware of alternative policies. Of course, in environmental flows in the Burnett River the Labor Party has no policies whatsoever and a doubling of the amount of available in the federal sphere, but you can look at its irrigation water, on what basis did the federal state counterparts and see what they are do- minister decide that the Paradise Dam would ing. Australia’s newest Labor government, not increase the severity of the salinity in this the Labor government in South Australia, priority catchment and would not cause un- has announced this morning that it is slash- acceptable degradation to fisheries and to ing regional development programs in that lungfish habitat? state. So the bush will fail under a Labor Senator HILL—There have been a num- government in South Australia, and that is ber of environmental studies on this particu- the same as you get from the Labor Party lar matter which I presume are the basis for a here. The Bracks government had a con- conclusion in the form that has been stated certed attack on timber communities in Vic- by Senator Bartlett. In relation to the detail toria and that will cost jobs and livelihoods of that matter it is probably better that I get in Victoria. The Western Australian Labor Dr Kemp to respond and give the honourable government similarly slashed hundreds of senator exactly what he is seeking. Tuesday, 19 March 2002 SENATE 933

Senator BARTLETT—Madam Presi- suing? What has this debacle done to the dent, I ask a supplementary question. I ap- credibility of efforts to bring public attention preciate that commitment from the minister. to the incidence of paedophilia in Australia? Why is it that the federal government is giv- Senator HILL—Labor would be more ing money to a state to address salinity legitimately in this debate if there had been whilst at the same time approving major pro- one person on their side who stood up to the posals that will increase salinity in the same then senator Peter Walsh when he was de- area? Is it the case that irrigators have thus faming former Chief Justice Barwick. How far failed to pay for water derived from the many on the Labor side stood on their feet Walla Weir in the same region as they have and said, ‘As a matter of principle, I deplore been required to do? What steps will the what is happening’? Not one. And now they Commonwealth take to ensure that irrigators come into this place wringing their hands. pay for the infrastructure and water costs They are so precious; but with what credibil- associated with the Paradise Dam? Will the ity? With very little. What I will say about federal minister require that such payments Senator Heffernan is that he is committed to are made before permission for the dam is fight against the abuse of children. He is ab- given? solutely committed, and I would have Senator HILL—I cannot see that the irri- thought that every honourable senator in this gators would be making payments to the place would recognise that fact. In this in- Commonwealth, but I will add that issue to stance he has made an error and he has suf- the question. I think it should be understood fered a significant price for doing so: he has that this is a government that supports eco- lost his job as a parliamentary secretary. He nomic development, including rural eco- has lost, if I might say, a lot of credibility nomic development; it is just that the gov- from this experience and he will apologise to ernment wish that this be achieved on a sus- the judge today, which is more than any La- tainable basis. We do see scope in parts of bor person was prepared to do in relation to Australia for further economic development Chief Justice Barwick. that can achieve the win-win outcome of the That is the distinction: when someone on creation of wealth at the same time as con- this side of the chamber makes a mistake, serving our natural systems. I guess that is they will accept the consequences; when one way in which we distinguish ourselves someone on the other side—that is, Labor— from others in this chamber who have never makes a mistake, they say, ‘Too bad.’ Sena- believed that you can achieve both of those tor Faulkner said: ‘Never will I apologise to objectives. We have been strongly committed the Baillieu family. I might have alleged that to good environmental outcomes but also, as they got money from this government’— the record shows, strongly committed to when they were already dead—‘but I will economic growth, jobs and all of the benefits never apologise.’ The Labor Party do not that that brings to all Australians. apologise—that is the distinction. A mistake Privilege: Senator Heffernan has been made and the senator will say how Senator MACKAY (2.42 p.m.)—My much he regrets the damage that has been question is to Senator Hill, Leader of the done. He will start a process of trying to Government in the Senate and the Minister right that wrong. He has accepted a penalty representing the Prime Minister. Does the for himself. The Labor Party ought to take a Leader of the Government in the Senate lesson from that experience. agree that the actions of Senator Heffernan in Senator MACKAY—Madam President, I the past week in attacking a judge of the ask a supplementary question. In light of the High Court under parliamentary privilege damage done by both Senator Heffernan’s while relying on the statements of discred- actions and the insensitive comments by ited so-called rentboys and apparently Governor-General Hollingworth, what action fraudulent Comcar documents have done will the Howard government now take to immeasurable harm to the very cause that address the serious issues at the heart of the Senator Heffernan claims to have been pur- scourge of child sexual abuse in Australian 934 SENATE Tuesday, 19 March 2002 society and the very separate issues of dis- hardest hit by recent domestic and interna- crimination and vilification based on sexual tional events, attracting large conference and preference as demonstrated by Senator Hef- convention business, and converting the rec- fernan in this instance? ord awareness of Australia into actual sales. Senator HILL—This government will Key elements of the strategy made possible continue to fight child abuse in every way by this additional funding will include spe- that is open and possible for it to do so. But cific marketing campaigns, working with key it will also attempt to judge individuals industry partners and focusing on leisure fairly—which is more than the Labor Party travel in Asian markets, a business tourism were ever prepared to do with the Governor- marketing program to attract large confer- General. A whiff of an opportunity and Mr ences and convention business to Australia, Crean was on his feet, ‘Resign, resign, re- and a campaign in key markets focusing on sign,’ because he saw a short-term political specific market segments once conditions are gain. There was no respect for the individual favourable. in that circumstance—just another illustra- The ATC has already developed plans to tion of double standards. When the Labor allocate the additional $6 million to be pro- Party face up to their own failures in this vided this year to maximise benefits to the regard and start to adopt standards that apply inbound tourism industry. In accordance with across the board rather than when it suits the Howard government’s commitment to them for a short-term political gain, then ensuring the ATC’s activities are targeted they will start to earn credibility in the eyes effectively, the minister has met with the of the Australian people. But all signs are chair, deputy chair and managing director of that they still have a long way to go in that the ATC to discuss ways in which the com- regard. mission can maximise the benefits to Aus- Australian Tourist Commission: Funding tralia from the additional funding over the next four years. I would also remind senators Senator BARNETT (2.46 p.m.)—My that the Howard government has previously question is to the Special Minister of State, allocated to the ATC a record $361 million Senator Abetz, representing the Minister for over the four years to 2001-02. So the gov- Small Business and Tourism. What benefits ernment’s commitment to the tourism indus- to the Australian tourism industry are ex- try and to thousands of small businesses pected to flow from the provision of an ad- which rely on tourism is not new; it has been ditional $24 million over five years to the a constant feature of this government. Australian Tourist Commission? What else is the Howard government doing to support Another example of this commitment was Australia’s tourism operators? the establishment of the tourism industry working group—a body convened to advise Senator ABETZ—I thank Senator Bar- the government after the terrorist attacks in nett for his question and his ongoing interest the United States and the collapse of Ansett. in matters of small business and tourism, The group reported back to the government both of which are important employment barely a month after the September 11 ter- generators for Australia, especially for our rorist attacks. Acting on the thrust of the home state of Tasmania. All senators would working group recommendations, the How- be aware that it has not been an easy six ard government announced $20 million in months for our tourism operators. The How- assistance for the tourism industry—$15 ard government has recognised this fact and million to be used to assist small to medium responded promptly and effectively. During tourism enterprises and $5 million to be used the election campaign the government made to promote tourism. It was announced on 30 a commitment to provide an additional $24 October that the $5 million would be used to million over five years to the Australian establish the Holiday Incentive Program. Tourist Commission. This commitment is This program encouraged people, by means aimed at protecting Australia’s market share of a $150 rebate, to travel within Australia. of international travel, restoring and in- To ensure that the program was not simply creasing visitor numbers to regional areas Tuesday, 19 March 2002 SENATE 935 about rewarding people who happened to be mal levels of ammunition required for train- travelling anyway, travel over the Christmas- ing purposes and will also evaluate where New Year period was not eligible, nor was recent advances in technology and simula- business travel. There was also a requirement tion might support live firing. The results of that travel be booked through a travel agent. the study will be benchmarked against the Over 29,000 Australian households took ad- practices of our major allies, the United vantage of the rebate offer in order to holiday States and the United Kingdom. at home and support our local tourism in- The study is the first step in determining dustry. That indicates just some of the initia- the way Army will acquire, manage and use tives we as a government have taken to pro- ammunition in the future. Army acknowl- mote tourism and especially the small busi- edges that a small number of specific ammu- ness sector within tourism. nition natures are currently in short supply Defence: Ordnance for either technical or supply reasons. Some Senator CHRIS EVANS (2.50 p.m.)—My of these technical issues are being resolved question is directed to Senator Hill, the through a rigorous and enhanced testing re- Minister for Defence. Can the minister con- gime. Ammunition stock levels are deter- firm that an Army report identifies critical mined by considering many factors including shortages in ammunition and raises concerns resource priorities, delivery lead times, shelf of accidental deaths as a result? Doesn’t the life, training requirements, and operational report note that the Army has been receiving and contingency demands. just 50 per cent of the ammunition it needs to Ammunition is allocated based on clearly train properly, which represents a shortfall of defined priorities to those units and soldiers up to $80 million a year? As a result, doesn’t who most need it. The most recent example the report raise serious concerns about the was the allocation of additional resources to risk of fratricide or accidental deaths? Why support the increased readiness of the 1st haven’t Australian soldiers been given the Brigade in 1999. Troops training for immi- support they need to attain the skills vital to nent operational service receive a priority for their safety and effectiveness? ammunition. Army actively risk manages the Senator HILL—The Chief of Army allocation of ammunition. Indeed, the figures commissioned an ammunition study in De- in the newspaper today detail the ammuni- cember 2000. That study is not yet finalised. tion allocated against internal Army bids. It is due to be considered by the Chief of Additional stocks are held above those allo- Army in May this year. A thorough study of cated. Army soldiers are properly trained and that nature was last conducted in the early have enough ammunition to do their job on 1990s. So that which is reported on today is operations. This is clearly demonstrated by an interim report still under development. the performance of our soldiers on opera- When the report is finalised and reviewed by tions. the Department of Defence, it will be con- Senator CHRIS EVANS—I ask a sup- sidered by the government. plementary question, Madam President, and I The ammunition study deals with the thank the minister for his answer. Doesn’t the Army’s operating stocks to raise, train and detail of the report directly contradict the sustain units. The Australian Army currently assurances the minister has just given the has sufficient ammunition to support the Senate? The report actually details com- training for and the conduct of current op- plaints from senior Army personnel about erations and to meet anticipated contingency the fact that there is not enough ammunition requirements. Every soldier on operations or to ensure proper training and preparation for on high readiness notice has enough ammu- deployment. The assurances the minister nition to do their job and is properly pre- gave are quite contrary to what is contained pared and highly trained. The ammunition in the report. I also ask the minister when he study is being conducted to develop and con- became aware of the report and what action firm the detailed ammunition requirements he has taken in response to the report. of Army. The study will determine the opti- 936 SENATE Tuesday, 19 March 2002

Senator HILL—I responded to the news- ing of DNA profiles in the CrimTrac data- paper reports and what I have advised the base had been held up by the Common- Senate is today’s advice from the Depart- wealth. Mr Cowdery should be the first to ment of Defence—so that is the authentic know that this requires the cooperation position. As I said in my answer, the report across the board of all states and territories. to which the honourable senator was refer- In fact, whilst uniformity across the board ring is a work in progress and its conclusions does remain to be achieved, I have written to do not seem to be those of the Department of the Queensland and the Northern Territory Defence as a whole today. In conclusion, in governments to see whether further progress the 20 years that I have followed the foreign can be made in those jurisdictions. We are affairs and defence debate in this country, I working with other jurisdictions to advance have lost count of the number of times when this further. But, so far, there has been prog- an individual service has said that it would ress, and people should recognise that. wish to have more ammunition. It seems to This is an initiative which will see a DNA be part and parcel of the process of defence database working on a national basis so that that all units would obviously like to have police in regional, suburban and metropoli- more ammunition. The task of government is tan centres can have access to this world- to ensure that the ammunition they have is class database not only to detect the guilty adequate in order for them to do their job but also to exonerate the innocent. This ini- effectively and safely. Our troops in the field tiative is at the cutting edge of law enforce- have demonstrated how that works in prac- ment. It is something to which the Com- tice. monwealth government are totally commit- Law Enforcement: National DNA ted. We are driving it from a national level Database and we will see the benefits in relation to law Senator CALVERT (2.56 p.m.)—My and order at a local level across Australia. question is directed to the Minister for Jus- I reject totally the claim that the Com- tice and Customs, Senator Ellison. Will the monwealth have held up progress on this minister provide the Senate with an update matter in any way. We are attempting to de- on the progress being made to establish a velop uniform legislation across Australia national DNA database to assist law en- and to ensure that there are also safeguards forcement agencies with catching the guilty for the individual. Safeguards are an impor- and protecting the innocent? tant part of this and we are working with the Senator ELLISON—Senator Calvert has Privacy Commissioner and the Ombudsman asked a very important question in relation to in this regard. These are important aspects law enforcement in this country. As part of and we want to see that in all the jurisdic- the Safer and Stronger Australia program, tions across Australia this is protected and last year the Prime Minister launched the respected. CrimTrac initiative. That $50 million initia- The initiative that I am talking about will tive was for a DNA database and it has been take the cooperation and the efforts of state in place since June last year. I am pleased to and territory governments. I ask those juris- say that a number of jurisdictions have made dictions which still have a way to go to move progress in relation to this matter. Victoria apace in implementing this initiative in their has reported that, out of 2,800 prisoners own jurisdictions so that other jurisdictions tested, 99 have been linked or charged with in Australia can have access to that database. 238 serious offences. This is a very impor- As I say, there has been great progress made, tant national tool in crime fighting. and I point to Victoria, which has already got Progress has been made across a number some runs on the board. But there are some of jurisdictions because, after all, this can jurisdictions, of course, which have a way to only work with the cooperation of the states go. But certainly the Commonwealth reject and territories. I was therefore surprised to entirely any allegation that we are holding hear that the New South Wales DPP, Nicho- this matter up; indeed, we are pushing it for- las Cowdery QC, suggested that the match- ward. Tuesday, 19 March 2002 SENATE 937

Defence: Ordnance Senator HOGG—Madam President, I ask Senator HOGG (3.00 p.m.)—My ques- a supplementary question. I will take up the tion is to Senator Hill, the Minister for De- minister’s request there. Will the minister fence. I note, Minister, your answers to an undertake to provide information on levels of earlier question by Senator Evans. Is the ammunition provided to the SAS for training minister aware that the training of SAS over the last two years compared with the troops over the last few years has been po- ammunition requested by that organisation? tentially compromised because of a lack of Senator HILL—I do not think that that is different forms of ammunition? Given the appropriate, Madam President. What I have dangerous nature of roles they carry out and said is that I am satisfied and it is confirmed the high level of readiness they must main- by the brief that I have read to the Senate tain, why have they not been given the am- today that the Australian Defence Force in munition they need? Hasn’t the SAS been general and our special forces in particular allocated far less ammunition than their are well trained. They cannot be well trained equivalent units in the US and UK? Is this unless they have sufficient opportunity to use not an issue for those troops that are cur- their weapons. I am satisfied with the assur- rently deployed in Afghanistan? ances that I have been given and I invite the Senator HILL—Madam President, I vis- honourable senator to be likewise satisfied. I ited our SAS troops, who have been de- ask that further questions be placed on the ployed in Afghanistan, in Kuwait. I talked to Notice Paper. them about their equipment and readiness. I QUESTIONS WITHOUT NOTICE: visited our SAS troops in Perth at their head- TAKE NOTE OF ANSWERS quarters and talked to them about similar Privilege: Senator Heffernan matters. I visited our SAS troops who were helping guard CHOGM in Queensland and Senator FAULKNER (New South they demonstrated to me their undoubted Wales—Leader of the Opposition in the Sen- capability in that task, and I met with some ate) (3.04 p.m.)—I move: of our SAS troops who are helping with the That the Senate take note of the answers given upgrading of capability of our commandos in by the Minister for Defence (Senator Hill) and the Sydney. In no instance have I been told by Special Minister of State (Senator Abetz) to questions without notice asked today relating to any of those troops that there is a shortage of remarks made by Senator Heffernan concerning a ammunition in their training. Instead, what judge of the High Court of Australia. they have done is say that they are pleased with their level of training and their com- We are aware that the Prime Minister has petitiveness in terms of other operating units requested that Senator Heffernan apologise of a similar type. That has been illustrated both to the Senate and to Justice Kirby as a very well in Afghanistan where our special result of statements that Mr Howard made at forces have been commended for doing an a doorstop interview yesterday evening. He outstanding job, at least as capable as any has suggested that this occur because of other special force currently operating in that Senator Heffernan’s gross breach of parlia- region. I can only suggest to the honourable mentary standards last Tuesday night in this senator that he go back and reconsider the chamber. I think the Senate needs to be very source of his information. Perhaps he might clear about this issue. Senator Heffernan, I like a briefing from the SAS commanders or suspect, is only going to apologise because from other senior Defence personnel but, of the belated direction of the Prime Minis- certainly, I would not rely just on a work in ter. I suspect he would not be doing this if he progress. I invite the honourable senator to were left to his own devices. But it was the explore the issue further and I am sure that Prime Minister who finally was left with no he will then be satisfied that our special choice on these matters. It was the Prime forces are in fact very well trained and very Minister who took the only possible course effective in their task. of action at the last possible time in sacking Senator Heffernan as Parliamentary Secre- tary to Cabinet and requiring him to apolo- 938 SENATE Tuesday, 19 March 2002 gise to the Senate and Justice Kirby. His Senator HILL (South Australia—Leader problem is that it took the Labor Party’s of the Government in the Senate) (3.09 revelations about the false claims in the p.m.)—I am disappointed, because I thought Comcar documentation to force the Prime that Senator Faulkner would take this op- Minister to make the statement he did at the portunity to apologise to the Baillieu family airport last night. for having defamed them in this place and You have to ask yourself the question: therefore put himself in a position where he why didn’t the Prime Minister act earlier on could participate in this debate with a touch this matter? Why didn’t he act earlier to of credibility. He chose not to, but rather to force Senator Heffernan to retract his claims again demonstrate the double standards of and apologise for what he said in the Senate the Australian Labor Party in these matters. a week ago? Why did the Prime Minister act Apparently, he now seeks to attack the Prime in such a blatantly political way last Friday Minister for the fact that an individual sena- when he deliberately ramped this issue up tor in this place made allegations that have and ramped up the heat on Justice Kirby turned out to be unsubstantiated. As the during a radio interview? Why does the Prime Minister has said, he was unaware that Prime Minister, who self-styles as the most Senator Heffernan was going to make that conservative Prime Minister this country has speech on Tuesday night and it logically ever had—who calls himself a conserva- follows that he was unaware of the content tive—fan the flames of Senator Heffernan’s of that speech. attack on a High Court judge? In relation to Senator Heffernan’s broader The public deserves now to know the full concerns on the issue of child abuse, and in extent of the Prime Minister’s knowledge of particular his concerns that principal safe- the allegations that Senator Heffernan was so guards within our system have failed Aus- intent on making. In question time today, I tralian children and that important institu- asked about this information and Senator tions that have that primary responsibility Hill said that the Prime Minister caused in- have failed to provide that protection, I vestigations to be made. Senator Hill also would think that we are all aware of Senator said we could ask for another month and we Heffernan’s views and that Senator Heffer- still would not be told who conducted those nan believes certain individuals have a lot to investigations and when they were con- answer for in that regard. It has been a mis- ducted. The situation here is that the Prime sion of his for years. There is no secret about Minister has told the parliament he knew of his concern that the major institutions of our the nature of the allegations some consider- society have failed Australian children and able time ago. The Labor Party has been at- that all of us, including this parliament, have tempting to establish when he knew of these been inadequate in our efforts to stamp out allegations, when he became aware of any child abuse. documentary basis for the allegations and In following that mission, he has now what action he insisted on, if and when that taken an action in this place which I indi- information was available to him. If the cated the other day was the final resort of a Prime Minister had been exercising the due senator: the opportunity to use privilege to diligence you would expect of a Prime Min- make allegations when all other opportuni- ister, why didn’t he stop Senator Heffernan ties have failed. He has done so and, regret- making those attacks under parliamentary tably, he has failed to meet the standard that I privilege way back then, instead of allowing also talked about the other day; that is, if an what occurred last week and the events since honourable senator takes that last resort, they last Tuesday? Why didn’t the Prime Minister must do so with due care. They must have instigate a comprehensive investigation into made every effort to ensure that the argu- those serious allegations when they were ment that they were going to put or the mate- made to him? We are entitled to answers. rial that they were going to provide was valid (Time expired) and accurate. In this instance, we now learn that a primary document which was a basis Tuesday, 19 March 2002 SENATE 939 of Senator Heffernan’s allegations was not chamber knows, the Prime Minister must what it purported to be, and when this came know he was dealing with an obsessed man, to the attention of the— because what has come out today is that we Senator Conroy—He knew about that! have found that Senator Heffernan went through the FOI process, as any Australian Senator HILL—No, he didn’t. He citizen is entitled to do, and came up with thought it was a valid document; he thought nothing. Despite this, he went to Dr Peter it was exactly— Boxall, the head of the department, and he Senator Conroy interjecting— sought Dr Boxall’s assistance. What we are Senator HILL—That is the point, Sena- trying to establish today is what Dr Boxall tor Conroy. He thought it was what it pur- did. We have a situation where it appears, ported to be, and yesterday, when it came to according to Mr Abbott in the other place, his attention and the Prime Minister’s atten- that there was an investigation and no im- tion that it was not what it purported to be, propriety in Comcar use came to light. When he was asked to resign and he resigned. He did it happen? accepted the price and he paid the penalty for How long has the government known that having made a mistake—which, as I said Senator Heffernan has been waving around a during question time, is more than other fabricated document? The department have honourable senators have been prepared to looked at this. The department rejected this do when they have been found to be in error. as evidence, and in the other chamber Mr It is all right for the Labor Party to huff Costello has said that the Minister for Jus- and puff today, but when they have been tice, Chris Ellison, will conduct an inquiry found to be in error, such as—I know they into the document, but the right thing to do laugh about it—when the Baillieu family in these circumstances is to give an unquali- were defamed by Senator Faulkner, the La- fied apology. But what we want to know is bor Party have not been prepared to accept why, when DOFA received these documents responsibility. At least Senator Heffernan is and established that they were fabrications of prepared to accept that responsibility: he has Commonwealth documents, they did not re- resigned from his position of parliamentary fer it to the police for investigation. Fabri- secretary and he has suffered a very consid- cating Commonwealth documents is a seri- erable price for making an error, and it is a ous offence, and yet this government sat on price that is fair to pay because of the dam- its hands. We have asked Senator Abetz, age that has been done to the other party. ‘When did you find this out?’ That is the balance that I spoke about the Senator Robert Ray—He covered up. other day. When an honourable senator be- Senator CONROY—Senator Abetz cov- lieves that, in the public good, a step should ered up. That is right, Senator Ray. Why, you be taken that is injurious to an individual, he have to ask, does Senator Abetz have his or she must be very sure of their facts and fingerprints on this shabby little exercise by must be very sure that they have taken every Senator Heffernan? What did Senator Abetz avenue and every opportunity to validate the know? Why couldn’t he tell us today that he basis of their information. In this instance, it received a brief? Are we to believe that was found that Senator Heffernan had not Senator Abetz did not have a briefing today done that task well enough, the document on this matter, that he could not just open the was in fact found to be wrong and the pen- brief, like he does every other day, and tell us alty has now been paid. (Time expired) when the department received this bogus Senator CONROY (Victoria) (3.14 document, what they did about it, when they p.m.)—Senator Heffernan in his speech last decided it was bogus, when they referred it Tuesday said that over a period of years he to the police and when they advised the had interviewed young male prostitutes. This minister? These are all questions that have to is a man obsessed. The Prime Minister also be answered, and taking them on notice and said that he had had discussions with Senator stonewalling on this will not get the minister Heffernan. Surely, as everybody in this through this, because this goes to the heart of 940 SENATE Tuesday, 19 March 2002 the corruption in the heart of this govern- Senator Robert Ray—Are you denying ment. They are prepared to do anything, to it? say anything. Senator ALSTON—I am not here to pass They debauched the High Court in the last judgment; I am simply here to find fault with week. They debauched the Department of your logic. If you put in an FOI request, for Defence. They have humiliated the Chief of example, Senator Ray— the Defence Force. They lied to the Austra- The DEPUTY PRESIDENT—Address lian public before the election and after the the chair, please, Senator Alston. election about their role in the ‘kids over- board’ affair. They have defended the right of Senator ALSTON—Through you, staffers to mislead and not supply informa- Madam Deputy President, if a document tion. This is a government that is getting does not come to light, that does not neces- more and more rotten to the core, and this is sarily mean that this document was fabri- more evidence. Why is it so hard to simply cated or that someone took a view on this give the answer as to when the department document. In fact, there is no evidence that first received this document? When did the this document was made available to the de- department decide it was bogus? When did partment that was the subject of the FOI re- the department pass this information on to quest. If, for example, the answer to the FOI the minister, Senator Abetz? When was this request was that all documents had been de- information passed to the Prime Minister, or stroyed, does that mean that this document is this another case of the Prime Minister must necessarily be a fabrication? It may saying, ‘Nobody told me’? mean that this document was one of those that was not destroyed, that this document It has been a live issue; he has even dis- somehow managed to avoid the destruction cussed these issues with Senator Heffer- that was supposed to have occurred— nan—but nobody told the Prime Minister that the department of finance had actually Senator Robert Ray—Except that Peter investigated the document and knew it was a Costello said it was bogus today. fabrication. We have yet again this govern- Senator ALSTON—We now know, as a ment pretending it knew nothing. Senator result of what occurred on Friday, that the Heffernan may take the fall today, but there document is bogus— is a rotten core in evidence here and the truth Senator Robert Ray—What happened on will come out. The departmental officers will Monday? appear before estimates and have to answer Senator ALSTON—Sorry, Monday. those questions if the minister does not want Time flies, doesn’t it? Mr Brereton was out to. The truth will come out, so come clean there demonstrating that some of the nota- today and tell us what really happened. (Time tions on it were on their face wrong as far as expired) he was concerned. The Prime Minister made Senator ALSTON (Victoria—Minister certain inquiries and came to a similar con- for Communications, Information Technol- clusion. None of that for a moment suggests ogy and the Arts) (3.19 p.m.)—Senator Con- that anyone was aware prior to yesterday that roy and, I suspect, Senator Faulkner seem to the document was a fabrication. Yet most of be labouring under a massive misapprehen- these contributions we have just heard seem sion, and that is that the document that has to proceed on the basis that somehow people now been demonstrated to be false was one have known for days or weeks or months. I that other people, including the department, know it is the laziest form of political debate were aware was false some time ago. to allege a conspiracy and then run around Senator Robert Ray—Are you denying pretending that somehow everyone is trying that? to cover up. There is not a skerrick of evi- Senator ALSTON—I do not know on dence to suggest that anyone, including what basis you make that allegation. Senator Heffernan, believed this document to be a fabrication prior to yesterday afternoon. Tuesday, 19 March 2002 SENATE 941

Senator Carr—He didn’t check anything, tigated what, and when, and who was there, did he? and how much did they pay, and how many Senator ALSTON—You can argue quite cups of tea did they have— separately about the extent to which he made Senator Schacht—Who did he speak to? reasonable inquiries. But whether he had Senator ALSTON—What has that got to knowledge or reason to believe that is a dif- do with it? ferent issue. Again, there is no evidence to indicate that Senator Heffernan had other The DEPUTY PRESIDENT—Order! than an innocent view which involved taking Senator Schacht, come to order; and Senator this document at face value. Alston, address the chair. Senator Carr—Bit of a problem there, Senator ALSTON—Once again, it is Easter Saturday. suggested that somehow, unless we tell you who, you do not take it at face value; you Senator ALSTON—Senator Carr does disbelieve the Prime Minister or you think he not seem to be following this debate too is lying. It is just not good enough. (Time closely either because, again, the premise is expired) that the Prime Minister should have acted earlier—meaning that the Prime Minister Senator ROBERT RAY (Victoria) (3.24 must have known about this document being p.m.)—Listening to Senator Alston and a fabrication. The Prime Minister has told us Senator Hill defend Senator Heffernan last as recently as yesterday afternoon that, fol- week, I got a sense of déjà vu: it reminded lowing inquiries made by him, he took cer- me of their vociferous defence of Senator tain action in relation to Senator Heffernan. Colston, with the same two suspects being In other words, that tells me that the Prime sent into the chamber. Guess what has hap- Minister, for the first time, became aware pened in both cases? With both Colston and that the document was likely to be a fabrica- Senator Heffernan, it was the PM who pulled tion. So, on what basis does anyone want to the rug just a few days later. Senator Hill last presume that that knowledge existed prior to Wednesday kept on referring to Senator Hef- that time? fernan’s contribution as a ‘technical breach’. That is what he described it as—‘just a tech- Senator Carr interjecting— nical breach of standing orders’. This was a Senator ALSTON—You can speculate as premeditated, calculated assault on standing much as you like, but that does not get you orders. This was the assassination, in politi- very far. cal terms, of a High Court judge, delivered in Senator Robert Ray interjecting— such a sneaky way that there could be no intervention by any senator in this chamber, Senator ALSTON—Senator Ray is really let alone a Presiding Officer, because Justice complaining that we will not get up here and Kirby was only named in the very last para- say that we knew that this document was graph. fabricated a lot earlier than yesterday after- noon. Normally, one reason you have diffi- Let us see what Senator Hill said last culty being able to do that is if it is not true. week. He said, ‘I trust that Justice Kirby has If you did not in fact know, it would make it not been unfairly maligned.’ What trust very difficult to be able to satisfy your could you have in Senator Hill’s judgment? yearnings on the subject. But the fact is that Then there is Senator Alston, himself, quoted you do not have any basis for making that last week. He says—and he is right in this— allegation. It might be wishful thinking. You ‘there has to be evidence to make us com- may love to think, in your heart of hearts, fortable that the person making the allega- that somehow there is evidence out there to tions has done his or her homework’. Oh suggest or demonstrate that everyone knew dear, oh dear, oh dear. The extent of the this document was false so many days or homework apparently is: accept the forgery, weeks ago. But there is not, and that is the talk to a couple of rentboys, buy one of them fault in all of this argumentation. You could a car—and this constitutes pristine research. go on as much as you like about who inves- 942 SENATE Tuesday, 19 March 2002

Today there has been a variety of sugges- peal it to the AAT, which is the only alterna- tions floating around that Senator Heffernan tive left to the rest of us. should be dealt with by this chamber by the I would also like to know before this day Privileges Committee, that he should be is out whether Senator Heffernan remains the fined, that he should resign his seat. The fact Prime Minister’s nominee on the New South is that responsibility for Senator Heffernan is Wales branch administrative committee, be- no longer in this chamber; responsibility for cause that is another place where he has rep- Senator Heffernan is with the Liberal Party resented him. The fact is that Senator Hef- of Australia—and no-one else. fernan’s circus in the gallery last Friday We have been in this position before, I really was disappointing. Here is someone admit it, when Franca Arena went out and who for five years has trawled through that made unsubstantiated attacks on a judge and gallery with media spinning and now sud- other people in regard to paedophilia. What denly objects to getting his photo taken. I was our reaction to that? We expelled her. have to say to Senator Heffernan that there When the case collapsed, we dismissed was no need for him to wear a yellow shirt: her—and in circumstances at that time where we are all quite well aware of what he is like. we had very rubbery figures in the Legisla- In conclusion, I also say this: the day I have tive Council, where we were vulnerable to to sneak over to the House of Representa- all sorts of numerical attack; but we expelled tives car park and sneak into this building is Franca Arena. So the message is clear to the the day I will leave politics. Liberal Party of Australia: they can deal with Question agreed to. their own. It is a great political philosophy: hunt and kill your own—and it applies in this Howard Government: Discrimination particular case. Senator GREIG (Western Australia) This is not a mere technical breach, as (3.29 p.m.)—I move: Senator Hill would have us believe; this is a That the Senate take note of the answer given massive failure of process. Today the gov- by the Minister for Defence (Senator Hill) to a ernment has closed the issue down both here question without notice asked by Senator Greig and in the other place. It will not answer the today relating to sexuality discrimination. technical questions as to whom the Prime I noted with interest that, just in standing to Minister asked to investigate this, not even ask the question, there was a hostile chorus which department did the investigation. We of interjections from government benches. It are not entitled to be told any of this, appar- is not the first time I have experienced that— ently. We would like to know those details. It and nor in this place. What I find intriguing does not necessarily draw the conclusion that is the question as to why just raising these any of the ministers involved in this are issues, why just talking about discrimination guilty of anything in particular. We would against gay and lesbian people particularly in just like the facts on the table so that we a Commonwealth context, angers those who know. are in power. I think the answer is because they do not like having that raw nerve prod- I am most concerned that Senator Heffer- ded. They do not like acknowledging and nan on two occasions went to interview the accepting the fact that this discrimination is Secretary of the Department of Finance and real, ongoing and persistent and that we Administration on an FOI matter—because Democrats have tried repeatedly to repeal the we all know that an FOI officer has discre- legislation that causes the discrimination tion in these matters, not a head of depart- which has been vehemently opposed by the ment. I am sure, knowing of the integrity of government. that particular secretary, there would have been no downward pressure—at least I When I mentioned in my question that the would hope so, but I am pretty certain—on Labor opposition had also never joined the that FOI officer to change their decision. But Democrats in legislative reform, there were it is pretty poor form that you take up FOI some angry interjections from this side of the matters with the department rather than ap- House, most notably from Senator Sherry. Tuesday, 19 March 2002 SENATE 943

But I phrased my question specifically. I crimination under Commonwealth law, as talked about legislative reform. Senator well as antivilification provisions, and it will Sherry interrupted me to say, ‘We supported then be the litmus test for Labor as to your last motion,’ and he was referring to a whether they are going to support this. matter of urgency or MPI or the like where In conclusion, I would reiterate that the we Democrats were calling for federal re- government clearly fails to understand there form in terms of sexuality antidiscrimination is ongoing comprehensive Commonwealth laws. Yes, I acknowledge Labor supported discrimination against gay and lesbian peo- that; but that is not legislative reform. That is ple and it is furthered and fanned and per- symbolic; it is iconic. It is important and it is petuated by the rising temperature of homo- a small step in the civil rights movement for phobia we now experience in this country. I the gay and lesbian movement in Australia, have had anecdotal reports already of in- but it has not changed the law. creasing levels of violence against gay and Most alarmingly, when Senator Hill tried lesbian people in Sydney and Melbourne as a to address, but failed to adequately address, direct result of the homophobia which my question he said, ‘This is a matter for Senator Heffernan, through his now infa- state jurisdictions. Discrimination against mous speech, spewed into this chamber. We gay and lesbian people should be dealt with need Commonwealth reform. The best way on a state basis.’ I point out to Senator Hill, to achieve that is through the passage of the who is clearly ignorant in this matter, that if Democrats’ sexuality discrimination bill, and you are suffering discrimination in social I call on both the government and the oppo- security or the defence forces or superannu- sition to support it and to support it soon. ation or the Federal Police or veterans’ af- Senator HARRADINE (Tasmania) (3.34 fairs or immigration or taxation, under the p.m.)—I do not know how long we have. Commonwealth umbrella there is absolutely nothing you can do about it at a state level. The DEPUTY PRESIDENT—Twenty- States can address these issues only if there nine seconds! is discrimination within state based jurisdic- Senator HARRADINE—Then there is tions or private sectors within those jurisdic- not much one can say. But I think Senator tions. That is why we need federal reform. Brian Greig should look at his own actions Senator Sue Mackay asked in part of a and those that put the taxpayer to great ex- question to the government: what is the gov- pense. Because a certain group was arguing ernment doing about vilification and dis- quite objectively about the matter, he or his crimination against gay and lesbian people office sent material to that body—weighty on the grounds of sexual preference? It is a material—on a reply— good question—it is one we Democrats have Senator Greig—Madam President, on a been asking for many years—but I point out point of order— to Senator Mackay that on each and every The PRESIDENT—It should be done at occasion when we Democrats have at- the end of the speech but, as it happens, the tempted reform, either through the introduc- time for the debate has expired. tion of a comprehensive bill or on a case by Question agreed to. case amendment to legislation, it has been opposed by Labor—each and every case. BUSINESS Yes, you support symbolic reform; yes, you Rearrangement support iconic reform; yes, you have made Senator IAN CAMPBELL (Western gestures of support—but not legislative re- Australia—Manager of Government Busi- form. So I give notice to Senator Mackay ness in the Senate) (3.35 p.m.)—by leave—I and to other Labor senators that it is my in- move: tention that, as soon as practicable, I will be That, on Tuesday, 19 March 2002: moving a contingency motion to bring on the Democrats sexuality discrimination bill (a) the hours of meeting shall be 2 pm to which addresses all of these areas of dis- 6.30 pm, and 7.30 pm to midnight; 944 SENATE Tuesday, 19 March 2002

(b) the routine of business from 7.30 pm to parliamentary privilege should always be 11.20 pm shall be government business used with the greatest of care. only; and I did not discuss with him or his office the (c) the question for the adjournment of the timing or the text of my speech to the Senate Senate shall be proposed at 11.20 pm. last Tuesday night. I wrote the speech, and I As discussed with all leaders and whips and take full and complete responsibility for it. I the Manager of Opposition Business, the think all members of the Senate know that I intention of the government is to progress have a strong—indeed, passionate—concern only second reading debates of bills on the for the rights of children. Despite some Notice Paper on the basis of no divisions and speculation in some quarters to the contrary, no quorums. The longer-term plan is to en- I do not believe in discrimination against sure that the government’s program is fin- homosexuals. I do not think there is an ished on time by Thursday and that we have automatic link between homosexuality and second reading debates at night and the de- paedophilia. The physical abuse of chil- tailed committee stage during the day. I ap- dren—whether by heterosexuals or homo- preciate the indications of support from all sexuals—is an appalling crime. honourable senators for that schedule. I want to give to the Senate an account, Question agreed to. particularly of the matter relating to the PRIVILEGE Comcar records. In doing so, I want to em- Senator HEFFERNAN (New South phasise that, at all times until late yesterday Wales (3.37 p.m.)—by leave—I rise today to afternoon, I believed and had what I thought make a statement to the Senate regarding good reason to believe that both documents I allegations I made in this place last Tuesday had been given and the source of those evening about the Hon. Mr Justice Kirby documents were authentic and credible. I AC, CMG. At the outset, I want to extend to was deeply distressed late yesterday after- Michael Kirby my sincere apology and deep noon when the individual concerned told me regret for the allegations I made in this place: that the primary record, the driver’s log, was I withdraw them unreservedly. I know that, not authentic. I immediately contacted the with the recent widespread media coverage office of the New South Wales Police Com- of my speech, his personal standing has been missioner to report that the document I had harmed. I do not expect him to accept my sent him was not authentic. I have today apology but, nonetheless, I give it, because I written to the commissioner confirming that recognise the personal hurt that must have fact and indicating my willingness to coop- been suffered. erate with any New South Wales Police Service inquiries into the matter. I also apologise to the Senate and the whole parliament. In addition, I want to ex- I have also written to the Minister for Jus- tend an apology to the Prime Minister and tice and Customs, Senator the Hon. Chris my coalition parliamentary colleagues. I Ellison, providing him with a copy of the want to make it clear that I did not speak to statement and to indicate my willingness to the Prime Minister about these matters from cooperate with any Australian Federal Police before the last election until I made the inquiry. Late yesterday I also immediately speech in the Senate on Tuesday of last rang the Prime Minister’s office to alert him week. As I have already indicated, and as the to this fact. As the Senate knows, the Prime Prime Minister has publicly confirmed, in Minister subsequently required me to resign the past I have generally discussed my con- my position as a parliamentary secretary, and cerns with him and have done the same thing I have written to the Prime Minister to that with others. John Howard has previously told effect today. me that I should not raise in the parliament In 1998, a Commonwealth car driver gen- allegations that could not be substantiated, erally known to me as a longstanding and that I ought to take great care about allega- experienced driver told me that he and other tions I received about public figures and that drivers had a concern about a judge. He made various general allegations about the Tuesday, 19 March 2002 SENATE 945 conduct of that person several years before- the period in question, for which I was de- hand. He told me that, after discussions with nied access under FOI rules. some other drivers at the time, he subse- In summary, a driver made allegations to quently raised the matter with the judge but me. I alerted the New South Wales Police. I the issue was not resolved to his satisfaction. asked the driver to speak to the New South On the basis of these allegations, which Wales Police. He did so. Subsequently I told were put to me with sufficient detail to him that, if he had any documentation to oblige me to take the matter further because support his allegations, he should provide it. the behaviour of the kind asserted by the After the Olympics he gave me certain mate- driver would be of public concern, I con- rial. I put in an FOI request and attempted to tacted the New South Wales Police Service. I ascertain if the material was genuine. I was then told the driver that he should take these told that other material, particularly that from matters to the police. He did so. A relevant 1992, could not be authenticated because the New South Wales police officer subsequently original logs had been destroyed. I was told confirmed to me that the driver had done so. that access to other records did not allow the In a subsequent discussion with the driver, I material to be authenticated, but I was also said that, if he had any records that would told that a document relevant to the judge’s substantiate the allegations, he should make travel, including 1994, could not be released them available. Subsequently, after the to me under FOI regulations for the reasons Olympics in late 2000, the driver handed to cited above. The driver continued to assert to me what he purported to have obtained from me the information he had previously pro- Comcar sources. This consisted of one com- vided. At no time before late yesterday after- plete page of a driver’s log from 1994 and noon did the driver ever intimate to me even several extracts from other purported drivers’ the slightest suggestion that the material he logs from 1992. had provided to me was anything other than After I received that material, I put in an completely authentic. FOI request in order to attempt to verify the Nothing in this explanation detracts from documents given to me. There was a long the fact that it is now apparent that the 1994 and involved process in which I sought ac- driver’s log and possibly the other extracts cess to various information. During that pro- are simply untrue; indeed, that the 1994 cess, I was advised that documentation for document was manufactured—it was not the period including 1992 had been de- manufactured by me. Although I believe I stroyed but that there were records covering was acting in good faith, on the basis of in- the period from 1993 onwards. I was also formation which appeared completely genu- told that a document would not be released ine from a source which appeared credible, to me on the basis—and I quote here from and although I had made inquiries to attempt the FOI decision maker’s ruling—that: to verify the material, I now fully accept that ... information contained in the document con- the key document is not authentic and that cerns travel of an individual in a Comcar vehicle. there is grave doubt about the credibility of The purpose of the journey is not mentioned and the other extracts. Accordingly, I again ex- it could be said that the information concerns that tend to Michael Kirby an apology and an individual’s private affairs. unreserved retraction of my allegations. I I was further advised that the disclosure have resigned from my position as parlia- would: mentary secretary and have apologised to ... be an unreasonable disclosure of his personal this chamber, to the Prime Minister and my information. colleagues and to the parliament as a whole. There was subsequent correspondence but, SENATOR HEFFERNAN while I was variously told that some records Censure Motion had been destroyed and that other records did Senator FAULKNER (New South not match material I had held, I had been Wales—Leader of the Opposition in the Sen- told that there was at least one document ate) (3.44 p.m.)—by leave—I move: relating to a judge’s Comcar usage, including 946 SENATE Tuesday, 19 March 2002

That the Senate— what Senator Heffernan has done. Senator (a) notes that: Heffernan took these matters to the New (i) on 13 March 2002 the Deputy South Wales Police some time in 1998 and President (Senator West) ruled that then referred them to the Wood royal com- Senator Heffernan’s speech on the mission. Justice Kirby was interviewed by address-in-reply debate on 12 March the police in 1998 after allegations by New 2002 was in breach of standing order South Wales MLC Franca Arena, who was 193, in that it contained offensive later forced to resign from the Labor Party words, imputations of improper by Premier Carr because of these matters. motives and personal reflections on a The allegations against Justice Kirby were judicial officer, and found to be baseless. Then the Wood royal (ii) the ruling recorded that Senator commission investigated allegations of a Heffernan’s speech was so structured cover-up. Again, they were found to be that it was impossible for the chair to baseless. At some point during this time, detect that the speech was in breach of the standing orders until the very Senator Heffernan was also referring matters end of the speech; and about Justice Kirby to the police. (b) censures Senator Heffernan for: We understand, at some time prior to the (i) breaching standing order 193 by his attack on Justice Kirby that Senator Heffer- reckless and highly disorderly attack nan made in the Senate, the Department of on a judicial officer, Finance and Administration looked at the (ii) making such serious allegations on Comcar documents and found those docu- the basis of insubstantial evidence, ments to be fraudulent. Senator Abetz con- firmed in answer to a question I asked him in (iii) failing to refer all the alleged evidence in his possession to the question time today that those documents proper authorities for investigation could not be authenticated. His representa- prior to making his allegations in the tive in the House of Representatives, Mr Ab- Parliament, bott, went further and said the department (iv) recklessly disregarding resolution 9 of had found no evidence of the misuse of the Senate’s Privileges Resolutions Comcars. But the truth is that this did not (of 25 February 1988) which require stop Senator Heffernan. He tried to interest senators to balance their responsi- journalists in these documents and this story, bilities with the rights of others, and but I think it is fair to the press gallery in this (v) abusing the trust of senators by building to say that they refused to be influ- speaking in such a manner that enced by this behaviour which I previously neither the chair nor senators could described as obsessive—and I stand by that detect that he was in the process of description. The Prime Minister admitted on breaching standing order 193. the 7.30 Report last night: I do not move that censure motion lightly— Oh, he— Senator Ian Macdonald—You should I interpolate he as Senator Heffernan— not. would have talked to me a number of times about Senator FAULKNER—Nor should I. In this. fact, I believe this is the most deserved of all Kerry O’Brien, the compere, asked him: those censure motions I have heard proposed and debated in my time in the Senate. I do Over a long period of time? believe that Senator Heffernan has used the Mr Howard said: Senate recklessly to pursue a personal ven- Over a period of time, yes, and the last time he detta. I said that last week. In doing so, I spoke to me was last year—probably September think he has grossly defamed a respected or October, but the actual speech he delivered was member of the judiciary, Justice Michael without warning. But, in having come into the Kirby. Nothing could be more deserving of public domain, I have to try and deal with it. censure by this Senate. For the record, I When Kerry O’Brien pressed the Prime think it is appropriate that I should recap Minister on the documentation surrounding Tuesday, 19 March 2002 SENATE 947 the allegations, Mr Howard did seem to be- the police. As Senator Heffernan is, we come very uncomfortable. Of course he was: know, a close confidante of the Prime Min- his closest political confidant had exploded a ister, you would expect the Prime Minister’s bomb in the Prime Minister’s own camp. The influence over him to be very strong but Mr questions about what the Prime Minister Howard, on the occasions available to him, knew and when he knew still remain unan- chose not to exercise his influence. Instead, swered, although they were asked in question he seemed to follow his standard operating time today. On 12 March at 8.45 p.m. during procedure of ‘hear no evil’. the address-in-reply debate, Senator Heffer- After the allegations were made in the nan launched a cowardly attack on Justice Senate, Mr Howard shamefully, in my view, Kirby, claiming: gave Senator Heffernan succour. It was a I refer to a judge who has put himself at grave disgraceful act of fanning the flames. He risk of blackmail, entrapment, compromise and aired extra material which was detrimental to hypocrisy. Justice Kirby’s reputation. He tabled Senator Senator Heffernan meant that the judge in Heffernan’s letter which, in part, stated: question, whom he did not name until the I was advised by a senior officer that, because the last portion of his speech, was not a fit and allegations provided in a police statement in- proper person to serve on the High Court. As volved a person aged 17 years and six months and we know, he accused the judge of picking up although of serious concern for the police, there male prostitutes in a Commonwealth car. In was no prosecution undertaken because, in their his speech he said that he had: assessment, it would not meet the technical prosecution guidelines of the New South Wales … personally interviewed at great length, and DPP. obtained statutory declarations from, former rent- boys from Sydney and Wollongong who worked That day, Mr Howard announced that Sena- the Wall at Darlinghurst as young male prosti- tor Heffernan had decided to stand aside as tutes. parliamentary secretary until the allegations He went on: were investigated. At the same time—as we have heard before in this chamber—in the I am informed New South Wales Police can con- firm these activities. I also have in my possession New South Wales parliament the police Comcar driver records … minister, Mr Costa, said: Note the use of the plural in the speech. I am advised that police have previously investi- When Senator Heffernan finally came up gated information provided to them by Senator Heffernan. I am advised that these investigations with documentation, it was very much in the did not warrant the laying of any charges in con- singular and it was false. It was false. nection with the matters recently raised by the The next day, on 13 March, Mr Howard senator. stated in parliament that Senator Heffernan On Thursday of last week, Mr Howard had made the speech off his own bat. He said brought the shutters down in question time in that his colleague Senator Heffernan felt that response to several questions about Senator he was justified in using parliamentary Heffernan’s behaviour. He refused to answer privilege to air the matters which he did. He the questions of the Leader of the Opposi- said in earlier discussions, amongst other tion, Mr Crean, in question time. things, ‘I counselled him against any im- The Attorney-General also gave succour proper use of parliamentary privilege.’ So to Senator Heffernan by damning Justice while Mr Howard realised that Senator Hef- Kirby with faint praise and by failing to ex- fernan was intent on airing this material, the press his confidence in Justice Kirby. Of Prime Minister did not categorically forbid course, by 3.36 p.m. last Thursday, in this this senior member of his own inner circle chamber, Senator Heffernan waved around from taking such a reckless course of action. what we now believe is a completely dis- Nor did he require Senator Heffernan to ex- credited and fraudulent Commonwealth car haust every avenue to both have his so-called record, failed to table it and stated: evidence authenticated and have his allega- tions properly investigated and dealt with by 948 SENATE Tuesday, 19 March 2002

I advise the Senate that, in response to an invita- We know that by yesterday afternoon Mr tion from the New South Wales police service, I Howard had sacked Senator Heffernan, his have today forwarded to Police Commissioner parliamentary secretary. He had belatedly Peter Ryan material I believe should be taken into reached the conclusion that the evidence on account in the further assessment of the matter in which Senator Heffernan had based his question. This material includes Comcar dockets, Comcar records and a statutory declaration. claims was bogus. Had he been concerned to establish the truth, he would have reached He posted the letter—this so-called evi- that same conclusion months ago, and he dence—to Commissioner Ryan. It seems should have acted on Senator Heffernan’s quite possible that that was an action deliber- allegations months ago. I think Senator Hef- ately designed to delay the receipt of the evi- fernan has got a lot of form when it comes to dence because at some point between that people who are dealing with dodgy docu- time and Sunday we had some of this mate- ments. I have not forgotten the Four Corners rial being supplied to the Sun-Herald news- program of July last year, which revealed the paper, and it was published. On Friday last close links between Senator Heffernan and week, Mr Howard said: Mr Seyffer, and the allegations, according to A person is qualified to be a High Court judge Four Corners— under our Constitution unless they are guilty of what is called ‘proved misbehaviour’. Senator Hill—This is what it is really about. This is the Labor Party in revenge. That is what he said on the John Laws show. He continued: Senator FAULKNER—It is about docu- ments and how you deal with documents, A proven misbehaviour under the Constitution Senator Hill. can take many forms and cover a lot of conduct. It is not defined. It doesn’t necessarily have to be Senator Hill—Like Keating and pigger- behaviour of a criminal kind, but I don’t want to ies. stray further. Senator FAULKNER—We know that the This insight had not been in the script for mysterious Mr Seyffer used the senator’s that week. Mr Howard was certainly hinting office to copy the documents. You know that that he was considering what action to take too, Senator Hill. Mr Seyffer laundered the against Justice Kirby if any criminal investi- documents and made them look as if they gation failed. had been received from Indonesia by faxing We had the extraordinary situation that them using some old letterhead of an Indone- same day, in the afternoon, where Senator sian mining company— Heffernan tried to background the ABC on Senator Hill—You are degrading the these allegations. He was caught in the press quality of your own argument now. gallery pack on the second floor and, quite Senator FAULKNER—I am afraid, hypocritically, tried to use parliamentary Senator Hill, that the point is valid. Senator privilege to stop the press gallery filming Heffernan does have form on this; he has him. He then started to act in the press gal- done it before. That was another example of lery as if he had completely flipped out. a deliberate attempt to deceive people as to On Sunday, the document was published. the true origin of material. The truth of the Within 24 hours of its publication, the Labor matter is that there are many questions that Party—the opposition—was able to blow the remain unanswered. Where did Senator Hef- documentation out of the water and cast seri- fernan get the Comcar document from? What ous doubts on its authenticity. This is the steps did Senator Heffernan, or anyone in the same document that Senator Heffernan had government, take to authenticate that Com- been aware of for many months and that the monwealth car document? Did he provide it Prime Minister had been aware of for to Senator Abetz or the Department of Fi- months, but no-one had done anything to nance and Administration and have it check it. No-one had taken their responsi- authenticated? Was he informed by anyone at bilities seriously and checked that document. any stage that the document was fraudulent That is a complete indifference to the truth. or that there were at least doubts about the Tuesday, 19 March 2002 SENATE 949 document’s authenticity? If so, when was he Senator HILL (South Australia—Minis- informed? What action did he take as a con- ter for Defence) (4.05 p.m.)—We on this side sequence of this information? What action of the chamber trust that the wrong that has did government ministers take as a result of been done to Justice Kirby can be put right. this? What information, precisely, did Sena- We recognise that it is not going to be easy, tor Heffernan convey to the Prime Minister, but we believe it can be done. The clear and and when did he tell the Prime Minister that unambiguous apology from Senator Heffer- the allegations were based on nothing more nan today is a significant step in that direc- than a fraudulent Commonwealth car docu- tion. For the Labor Party, the debate has ment and the statement of a rentboy who moved on; it is now interested in extracting apparently has been discredited in other judi- political pain. As one would have gathered cial forums? These are reasonable questions. from question time today, from Senator I asked Senator Hill today about providing Faulkner’s contribution in this debate and certain information that the Prime Minister from the motion itself, it is really no longer referred to and about the investigations that an issue of how to right the wrong done to we were told the Prime Minister had con- Justice Kirby. It is really no longer an issue ducted. By whom and when were they con- that relates to the error of judgment by ducted? These are very reasonable questions. Senator Heffernan. It is now an issue of But the truth of this matter is that we know, it whether the Labor Party can get the Prime is a matter of fact, that on 13 March the Minister into this and whether it can extract Deputy President—in your absence, Madam further pain from the Howard government as President—ruled that Senator Heffernan’s a whole. That is disappointing, but I guess it speech to the Senate the previous day was in is in the nature of politics. breach of standing order 193 in that it con- It is evident by the way in which the press tained offensive words, imputation of im- gallery cleared as soon as this censure mo- proper motives, and personal reflections on a tion started that this was the inevitable next judicial officer. That is a fact. In breaching step in the political process. If the Labor standing order 193, Senator Heffernan was Party were so upset by the breach of standing guilty of highly disorderly conduct. That is orders—and we do not dispute that it was a another fact. breach of standing orders; it was determined It is a matter of fact also that Senator Hef- by the Deputy President—they should have fernan’s speech was so deliberately struc- moved the censure motion at the time. But tured that it was impossible for the chair pre- they did not, because they were not so upset. siding at the time, or for any senator in the When the breach was determined by the chamber, to detect that that speech was in Senate, the Labor Party did not believe that it breach of the standing orders until the very deserved a censure motion at all. end of the speech. That was a cowardly way So what is the difference now? The differ- to deliver such an undeserved attack on such ence now is that it has been found that a key an eminent Australian. I suppose now, when document upon which Senator Heffernan Senator Heffernan looks back, he wonders if relied was false. Somehow they now wish to that was indeed so clever. A different speech censure Senator Heffernan for that fact. But may well have protected Senator Heffernan in actual fact it would seem that Senator Hef- from such extreme embarrassment. But I say fernan did make efforts to authenticate the there is nothing clever about it. It is devious- facts. Senator Heffernan did, in fact, under- ness and cowardice. It is creeping up on your take freedom of information processes to enemy from behind and plunging a knife into seek to obtain the records that were held by their back. The truth is that Senator Heffer- the then Department of Administrative nan has been reckless, he has been disor- Services in order to authenticate the docu- derly, he has been cowardly and he has been ments he held. In other words, he did try to grossly negligent. This is a deserved censure. authenticate the documents before he went (Time expired) public with those documents in the delivery of them to the police. 950 SENATE Tuesday, 19 March 2002

Senator Conroy—You do not even be- sion in relation to combating child abuse. He lieve that yourself. is fanatical about the subject—he will not Senator HILL—It is convenient for the apologise for that. Probably, we need more Labor Party to overlook that because it does people in the community who are fanatical not help them in their debate today. What about it. We know he believes that child this debate really is all about is not the abusers have been protected by institutions breach of a standing order—which is what a that should be doing otherwise and that censure motion would normally relate to— should be the protectors of the children. but rather whether or not the senator, in exer- Senator Jacinta Collins—What is the cising what everyone would accept is a le- source of that fanaticism? gitimate right, exercised that right with rea- Senator HILL—If you have not seen sonable care. That gets into the argument of evidence of that, Senator, then I regret it, what effort Senator Heffernan did make to because you have obviously closed your eyes satisfy himself that the documents he was to this issue as well. relying on were valid. As we all now know, the document turned out to be false. Justice Senator Jacinta Collins—You said that Kirby has suffered as a result of that. he is fanatical. Senator Conroy—When did the govern- The PRESIDENT—Order! This is not ment first know that it was false? the time to be asking questions. Senator HILL—Yesterday, Senator. Senator HILL—The institutions have not Senator Heffernan has suffered a significant done well enough in combating child abuse, penalty in that regard and we on this side of and that upsets Senator Heffernan; we know the chamber therefore think that it is time to that. He is committed to doing more than move on. most of us to right that wrong and to do his bit to protect Australian children. He utilised Senator Conroy—You will be back in a power that was open to him but he made an here within 24 hours to retract that. error in doing so, and that was his mistake. Senator Jacinta Collins—What about He took evidence that had been provided to DOFA’s evidence? Table that. him by a Comcar driver and which he be- The PRESIDENT—Senator Conroy, lieved—and which he had no reason not to cease chattering. believe—was, in fact, true. He made efforts to authenticate it, but that did not work either Senator HILL—I will take the interjec- because under the freedom of information tion, because it is important. What I am re- processes he was not given the documents. lying on is the Prime Minister becoming aware yesterday that the document was in- Senator Jacinta Collins interjecting— valid, and Senator Heffernan indicating that Senator HILL—He was unable to he found, for the first time, yesterday that the authenticate it in that way. document was invalid. I have seen no evi- Senator Jacinta Collins interjecting— dence to the contrary. I therefore accept those facts on the basis of the knowledge that is The PRESIDENT—Order! Senator currently before all of us. Collins, you can have an opportunity to speak later. It is not appropriate to be shout- The Labor Party for their purposes, as I ing during a speech. said, are obviously trying to wring the last ounce of political blood from this matter not Senator HILL—Having said all of that, because they have any particular interest in he did make a mistake. He acknowledged Justice Kirby, not because they have any that he made a mistake, he acknowledged particular interest in further inflicting pain on that it has caused pain and suffering to the Senator Heffernan but because they are in- judge, he has apologised to the judge, and he terested in the attack on the Prime Minister hopes the wrong will be righted. He has and the attack on his government. In this taken a very significant penalty for doing so. instance, what we do know and what we all I have been censured in this place—I might accept is that Senator Heffernan is on a mis- have found it temporarily upsetting but I can Tuesday, 19 March 2002 SENATE 951 say to you, Madam President, that it does not the Australian Democrats to also support this linger—but, if I had my executive position motion of censure. However, we recognise removed from me so publicly by the Prime that its purpose is purely symbolic, in the Minister, that would be a real penalty. That is sense that it does nothing to address the un- a public penalty of consequence. derlying problems associated with the abuse Therefore, for not taking an extra step— of parliamentary privilege and it does noth- whatever that step might be—to satisfy him- ing to penalise Senator Heffernan for the self that the document was authentic, Senator outrageous allegations that were made last Heffernan has paid a high price. It is the week. The Senate must ensure that its re- submission, therefore, of the government sponse to this matter is more than mere sym- side that Senator Heffernan has been pun- bolism, and as a chamber we must address ished for the wrong that he has done. The the broader issues raised by this sorry affair. wrong was that he did not take sufficient care Last week, in response to a request by the and he did not take every opportunity that Leader of the Australian Democrats, the was open to him to satisfy himself that the Deputy President ruled that Senator Heffer- document was factually correct. He has nan’s speech in which he attacked Justice apologised to the judge, and from there we Kirby was in fact in breach of the standing believe that the Senate should move on. I orders. The government’s response was es- could talk about, as I said earlier today, the sentially that there are countless technical double standards that have been illustrated breaches of the standing orders and that this by the Labor Party. should not be of concern to the Senate. This Senator Conroy interjecting— was, in my view, an entirely inadequate re- sponse. It ignored a number of crucial factors The PRESIDENT—Senator Conroy, you that set this scurrilous attack apart from the are out of order. minor and technical breaches of the standing Senator HILL—I could talk about the orders that occur from time to time. double standards that have been illustrated First, Senator Heffernan’s speech was by the Labor Party for a long time in these structured in such a way as to suggest that matters. They condemn when it suits their the breach of the standing orders was in fact short-term political gain but, when it is em- premeditated and deliberate. The standing barrassing politically, they turn a blind eye. orders, relevantly, provide that: That has been the Labor Party standard for many, many years. That is why I say that A senator shall not use offensive words against there is no real concern about the values of ... a judicial officer, and all imputations of im- proper motives and all personal reflections on the Senate in this motion from the Australia those ... officers— Labor Party; Senator Faulkner’s refusal to apologise to the Baillieu family illustrates that is, judicial officers— that. There is no real concern for Justice shall be considered highly disorderly. Kirby in this motion. Labor have defamed a Had Senator Heffernan indicated earlier in range of previous judges and it has not wor- the speech that he intended to attack Justice ried them one little bit. This is a political Kirby, I have no doubt that the standing or- exercise and this censure is simply about ders would have been enforced and that he trying to extract a little extra pain. We on this would have been prevented from making his side of the chamber believe that sufficient outrageous allegations. Instead, he revealed pain has been extracted by the action that the only at the conclusion of his speech that Jus- Prime Minister took so promptly when he tice Kirby was in fact the subject of the at- learnt that this document was in fact false tack. and we believe that the matter should rest at The Deputy President has indicated that that point. this was the reason the chair did not inter- Senator RIDGEWAY (New South vene: that it was not clear until the end of the Wales—Deputy Leader of the Australian speech that Senator Heffernan was in fact Democrats) (4.15 p.m.)—I rise on behalf of making serious allegations against an identi- 952 SENATE Tuesday, 19 March 2002 fiable and serving judicial officer. It would and remedies are also appropriate. Some of appear that Senator Heffernan was mindful the members of the Privileges Committee of the restrictions in the standing orders and may not want to consider the matter—and I structured his speech to deliberately defeat note Senator Ray’s recent comments in that them. Not only did he seek to defeat the vein—but it is the Privileges Committee’s standing orders but he also disregarded responsibility to deal with issues of this type, resolution 9 of the Senate’s privilege resolu- and it must discharge its duties on behalf of tions, which sets out a number of matters the entire Senate. Behaviour such as that of senators must take into account when Senator Heffernan cannot help but detract speaking in the Senate. These matters in- from the standing of parliament as an insti- clude: tution. Parliamentary privilege exists to al- (b) the damage that may be done by allegations low senators to raise matters of public inter- made in Parliament to those who are the subject est without fear of reprisal; it is not an op- of such allegations and to the standing of Parlia- portunity for senators to make slanderous ment; and unsubstantiated allegations against indi- (c) the limited opportunities for persons other viduals, whomever they may be. than members of Parliament to respond to allega- I would also like to express dissatisfaction tions made in Parliament— with the manner in which the government and, most relevantly— has handled this matter. Senator Heffernan (e) the desirability of ensuring that statements has raised these allegations with the Prime reflecting adversely on persons are soundly Minister in the past and, having known of the based. allegations, it appears that the Prime Minister Clearly, these matters were not taken into took no action to determine whether they account by Senator Heffernan. He failed to were baseless; he merely discouraged Sena- ensure that his evidence was true. He failed tor Heffernan from raising them in parlia- to take into account the damage that could be ment. By the time these allegations came to done to the institution of parliament by parliament, the Prime Minister should al- abusing its processes and privileges. He was ready have considered the substance of the indifferent to the damage his actions would claims and have been in a position to offer a do the reputation of one of Australia’s more swift rebuttal. Instead, he appeared not to eminent jurists. know whether the allegations were true and The question is: what action must now be was defensive of Senator Heffernan’s right to taken by the Senate? The Labor Party have use parliamentary privilege, even though his proposed this censure motion—which, as I speech was a clear abuse of that privilege. have said, is an exercise in symbolism. I do The Prime Minister even flagged the issue not want to detract from the importance of a of proved misbehaviour in relation to Justice condemnation by the Senate, but we should Kirby, indicating that a judicial officer could not be under the impression that it addresses be dismissed for misbehaviour that is not the underlying issues themselves. The Aus- strictly limited to criminal behaviour. The tralian Democrats were today to move that message that came through was that he the Senator Heffernan affair be referred to tended towards supporting Senator Heffernan the Senate Privileges Committee to inquire over Justice Kirby. The Prime Minister’s as to whether the senator committed a con- comments enhanced the standing and re- tempt of the Senate. We have postponed this marks of Senator Heffernan at a time when motion until tomorrow to allow for a consid- the Prime Minister should have extended the ered response and a considered debate of the benefit of the doubt to an eminent High broader issues to take place here today. Court judge. There is no question that the It is important that this matter does go to claims need to be investigated, but the Prime the Privileges Committee for proper consid- Minister should not have further fuelled that eration. We need to ensure that the existing fire. The Attorney-General, Mr Williams, checks and balances are indeed appropriate. drew an artificial distinction between attacks We need to ensure that the existing penalties on a member of the High Court and attacks Tuesday, 19 March 2002 SENATE 953 on the institution of the High Court. He went privileges and has to consider the implica- so far as to say: tions of that abuse. His credibility, in my While I understand the reaction, particularly view, will forever be tarnished and his ability within the legal profession, to Senator Heffer- to discharge his duties on behalf of the nan’s allegations, there can at the same time be no Commonwealth will forever be diminished. credible suggestion that the High Court as an The Senate has no power to force Senator institution is under challenge. High Court judges Heffernan to resign from the Senate. We can have both the right and the ability to address any only ask him to reflect upon his conduct and personal criticisms addressed against them. make a principled decision about this matter While the Attorney-General appears to ac- in the future. knowledge that it is his role to defend the The Australian Democrats support this High Court as an institution, he claimed that motion but do not consider it to be the end of this was merely a personal attack on a mem- this matter. The Senate must take action to ber of the High Court. This is an artificial ensure that parliamentary privilege is not distinction by which the Attorney-General abused in the future in order to make un- avoided taking responsibility for this matter. founded allegations against any individual. It The point of Senator Heffernan’s allegations is therefore incumbent upon us to refer this was that a sitting member of the High Court breach to the Privileges Committee to deter- was open, in his words, to ‘grave risk of mine what action is to be taken. When it blackmail, entrapment, compromise and hy- comes to dealing with processes in this pocrisy’. He went further and said: place, there are two important tests of the I believe that most Australian families would integrity of an institution such as the Senate. have the view that this judge fails the test of pub- In the first instance, I remind the Senate that lic trust and judicial legitimacy as set out by the when this debate started the Democrats pur- Chief Justice of the High Court in his New York sued a ruling from the Deputy President that speech and clearly is not fit and proper to sit in judgment of people charged with sex offences Senator Heffernan had breached standing against children. order 193. In the second instance, the Demo- crats amended a motion so that Senator Hef- In my view this is clearly an attack on the fernan would be required to apologise to High Court as currently constituted. The At- Justice Kirby and to the Senate for his breach torney-General’s claim that this is purely of that standing order. At the time, the Prime personal is a claim that is unfounded. It is an Minister dismissed that as politicking. attack on Justice Kirby in his capacity as a Senator Hill said last week that it was a tech- justice of the High Court and it relates spe- nical breach. Today, we even heard that it cifically to his fitness to serve in that capac- was a simple error, a mistake. Today, we also ity. have Senator Heffernan making the apology. The government has only belatedly di- Finally, the important matter is our ability rected Senator Heffernan to apologise. This to address the misconduct when it occurs. follows a Senate resolution last week moved That is the last test we now face and it will by the Democrats that Senator Heffernan not be resolved simply by moving a censure make that apology. Senator Heffernan will motion. We will be revisiting this issue to- need to make up his own mind about how he morrow when the Democrats move to refer is to address the misconduct. In addition to this matter to the Privileges Committee and I the necessary steps of making an unqualified would urge the government and the opposi- apology to Justice Kirby, the High Court, the tion to support that motion. Senate, his colleagues, the Prime Minister and the entire parliament—as we have seen Senator BROWN (Tasmania) (4.26 today—perhaps Senator Heffernan ought to p.m.)—Last Tuesday was a day of infamy as consider the proposition of resigning from far as parliamentary behaviour and precedent the Senate. He has had the honour of serving were concerned. Like Senator Faulkner, I as a senator for the Commonwealth of Aus- cannot ever remember a worse and more tralia and has had access to all the privileges damaging piece of parliamentary misbehav- that attach to that office. He has abused those iour and disorderly conduct than occurred 954 SENATE Tuesday, 19 March 2002 with Senator Heffernan’s false accusations. I Senator Lightfoot—I raise a point of or- know from my many contacts with the Aus- der, Madam President. Senator Brown is re- tralian public that good Australian citizens flecting on the Prime Minister by suggesting everywhere are aghast at the events that un- that he was not defending parliament or the folded then and have unfolded since then in High Court. I would say that that is contrary the Australian parliament. Not only were the to standing orders. proper protections of the parliament abused The PRESIDENT—I do not think there by Senator Heffernan but also the safeguard is a point of order. I am listening carefully. systems that we would expect in such cir- cumstances failed. Senator BROWN—I will proceed. Senator Heffernan did seek the advice and Justice Kirby was traduced by false accu- counsel of the Prime Minister. The question sations. Those came from a senator who had is: did Senator Heffernan check the docu- an enormous amount of time to investigate ments? The answer is no, he did not. The and find those accusations to be false and the question then arises: did he insist on inde- evidence upon which he based those accusa- pendent legal advice about those documents? tions to be false. That has now happened No, he did not. The question is then: did he within a matter of days of documents be- understand that he would abuse privilege in coming available to the public. It does not this place if he presented his case to the Sen- pass anybody’s observation that had Senator ate? I believe he did; the format of his speech Heffernan phoned Mr Sinclair this terrible showed that. But he did seek the counsel of series of events would have been avoided. the Prime Minister. When an obsession overtakes any member Then I ask the question: did the Prime of parliament there are likely to be untoward Minister check those documents? No, he did consequences. There are safeguards—par- not. Did the Prime Minister seek and insist ticularly in the parliamentary system for the upon independent legal advice and certainly big parties—and the safeguard on this occa- political advice? Clearly, he did not. The sion was none other than the Prime Minister. question then is: did he forbid the use of It has to be said that Senator Heffernan did privilege to prosecute a case which could not seek advice. On a number of occasions he be prosecuted safely outside? The answer is spoke about his concerns on this matter with no, the Prime Minister did not. The Prime none other than his friend the Prime Minis- Minister, instead of defending the privilege ter. The Prime Minister should have taken of the parliament—and in so doing, inciden- action to prevent these awful circumstances tally, his friend Senator Heffernan—not only unfolding. It is very clear that he had time failed to be the safeguard of the parliament not only to advise and counsel Senator Hef- and the High Court and the standing that fernan not to proceed without proof but also politics should have in the public eye; he to absolutely forbid the senator from doing compounded the damage done by Senator so. Heffernan. Both the senator and the Prime Minister On the day following Senator Heffernan’s had access to an enormous array of legal false and malicious statement to the Senate, opinion. If they could not read parliamentary the Prime Minister was asked a question by history, they could have sought advice to the Leader of the Opposition in the House of make sure that in a matter so enormously Representatives which, in itself, in no way important as this they did not make a mis- breached privilege. I would remind those take. One could possibly understand that who have seen the defence from the Prime Senator Heffernan, in his obsession, could Minister’s office—that the Prime Minister not see that. But how does one forgive the was in effect responding to a question—that Prime Minister? The alarm bells should not that question did not invite the Prime Minis- only have been ringing; the Prime Minister’s ter to breach privilege. Mr Crean asked his judgment should have been immediately to question to the Prime Minister: defend not only the parliament and the High Is the Prime Minister aware that his parlia- Court but his friend Senator Heffernan. mentary secretary made comments prejudicial to Tuesday, 19 March 2002 SENATE 955 a judge in the Senate last night? Is the Prime Australia. The name of the justice is only pro- Minister aware of the foreign minister’s comment vided at the very end of the speech. reported by AAP at 12.40 today that— The Prime Minister’s statement is recorded at that is, Wednesday— pages 1056-7 of Hansard for Wednesday 13 I think when people use the parliament and use March 2002. parliamentary privilege they should always re- The Prime Minister’s statement was made in re- member that privileges bring with them responsi- sponse to a question without notice. It was not bilities and if you are going to attack people who made pursuant to any substantive motion. are out of the political sphere it’s very important At the time of making his statement, the Prime to have evidence to back that up. Minister tabled two letters. The first, from Sena- Prime Minister, do you agree with your foreign tor Heffernan to the Prime Minister and dated 13 minister and, given that there is no credible evi- March 2002, appends the second, a letter from dence to support Heffernan’s allegations, when Senator Heffernan to the Commissioner of the will you sack him? New South Wales Police Force. Rather than inviting the Prime Minister to The letter to the Prime Minister, and tabled by the breach privilege, that question was loaded Prime Minister, refers to Senator Heffernan’s with caution that the Prime Minister should allegations “against a senior member of the judi- not breach privilege. It was a question con- ciary” (which can only be taken to refer to Justice Kirby) and contains the following words: cerning the Leader of the Opposition’s own trouble and certainly the Minister for Foreign As my letter to the Commissioner indicates, I Affairs’s concern about the defence of privi- have previously provided background infor- mation relating to the potential commitment lege in the parliament. Nevertheless, Mr [sic] of criminal offences. That information Howard, ignoring all of that, proceeded to was subsequently assessed by the NSW Police extend the case that Senator Heffernan had Service and I was advised by a Senior Officer put to the Senate the night before. that because the allegation provided in a po- Madam President, I seek the leave of the lice statement involved a person aged 17 years Senate to incorporate into Hansard the and 6 months, and although of serious concern opinion of Mr Brian Walters, Senior Counsel for the police, there was no prosecution un- dertaken because in their assessment it would from Melbourne, on the matter of privilege. not meet the technical prosecution guidelines It is titled In the matter of an attack upon a of the NSW DPP. member of the judiciary in the House of Rep- The imputations in this passage, (mirrored by a resentatives. similar passage in the letter to the Chief Commis- Leave granted. sioner of police) are as follows: The opinion read as follows: (a) that Senator Heffernan had made allegations In the Matter of an attack upon a member of of the commission of criminal offences by the Judiciary in the House of Representatives Justice Kirby; Memorandum of Advice (b) that the allegations Senator Heffernan had made about Justice Kirby were “of serious We are asked to advise as to the propriety, both concern for the police”; constitutionally and in terms of the Standing Or- ders of the House of Representatives, of the (c) only the failure to fulfil technical guidelines statement made by the Prime Minister, the Hon- prevented the commencement of a prosecu- ourable John Howard, to the House of Represen- tion. tatives on Wednesday 13th March 2002, and the None of these matters were stated in the speech of tabling of two letters at that time. Senator Heffernan. The statement of the Prime Minister was made The tabling of these letters by the Prime Minister after a statement the previous evening by Senator therefore seriously extended the allegations which the Honourable Bill Heffernan, Parliamentary had been made by Senator Heffernan. Secretary to Cabinet (“Senator Heffernan”). That It is trite law that to publish the statement of an- statement is reported at pages 402 to 404 of Sen- other is to publish that statement oneself. This has ate Hansard for 12 March 2002. The statement been expressed in the Parliamentary context as makes a number of allegations concerning Justice follows: Kirby, a serving Justice of the High Court of 956 SENATE Tuesday, 19 March 2002

A member is not allowed to use unparliamen- The Court was there considering the question of tary words by the device of putting them in whether legislation interfered with the proper someone else’s mouth, or in the course of a exercise of judicial function, but the principle also quotation.1 applies to criticism of the Judiciary by other arms The fact that the letter tabled by the Prime Min- of government. ister was authored by Senator Heffernan does not It will be readily apparent that the criticism of lessen the responsibility of the Prime Minister judges in Parliament has a very real likelihood of himself in tabling it. In so doing, there can be no politicising the Judiciary such that the Judiciary is doubt that the Prime Minister used Parliament to no longer perceived to be independent of the leg- substantially extend the attacks on a member of islative and executive arms of government. Such the Judiciary which had been made in the Senate a situation has the capacity to fundamentally un- by Senator Heffernan. dermine the effectiveness of the constitutional By long tradition, Members of Parliament may system of government enjoyed by the people of criticise judgments of the courts, but never the Australia. judges—unless such criticisms are in speaking to This restriction on the Parliament, which is a rec- a substantive motion for the exercise of the func- ognition of its proper constitutional role, in no tions of the parliament, as with a motion to re- way restricts Members of Parliament making such move a judge. A classic formulation is that of the statements as they see fit outside that institution. Speaker in the House of Representatives Debates The practice of the House, and the constitutional in 1937: principles underlying that practice, have been From time immemorial, the practice has been recognised by the House of Representatives in its not to allow criticism of the judiciary; the Standing Orders, notably Standing Orders 75, 77 honourable member may discuss the judg- and 78. 2 ments of the courts, but not the judges . Standing Order 75 (not inserted until 1950) pro- The reason for this practice lies in the Westmin- vides: ster system of government, upon which our con- No Member may use offensive words against stitutional system rests. either House of the Parliament or any member One aspect of this system of government is the thereof, against any member of the Judiciary, doctrine of separation of powers (although in or against any statute unless for the purpose of different contexts this can have different mean- moving for its repeal. ings). Section 71 of the Constitution (which cre- The term “offensive words” is not limited to mere ates the High Court of Australia) as well as Ch III bad language: it includes offensive allegations. of the Constitution, give effect to the doctrine of This is made clear by numerous rulings of the the separation of powers by divorcing judicial Chair in relation to parliamentary practice. from executive and legislative power. It follows that the Prime Minister’s attack upon a A useful statement in relation to the doctrine of member of the Judiciary in Parliament on 13th separation of powers is to be found in the obser- March 2002: vations of McHugh J in Nicholas v The Queen, in which his Honour held: (a) was a serious breach of longstanding parlia- mentary practice; Moreover, as I pointed out in Kable v Director of Public Prosecutions (NSW) a basic princi- (b) lacked propriety constitutionally in that it ple which underlies the distinction between ju- undermined the fundamental doctrine of dicial and legislative or executive power aid separation of powers; the doctrine of the separation of powers (c) amounted to a breach of Standing Order 75. premised on that distinction “is that the judges Brian Walters SC of the federal courts must be, and must be per- Andrew Palmer ceived to be, independent of the legislature and the executive government”.3 16 March 2002 1 As his Honour went on to say: Harris, House of Representatives Practice p 489, citing 22nd edition of May and HR de- If the doctrine of the separation of powers is to bate 5 May 1978, at 1894-5 be effective, the exercise of judicial power 2 needs to be more than separate from the exer- Reported in Hansard (HR) 28-9 June 1937, cise of legislative and executive power. To be quoted in Harris at p 493 fully effective, it must also be free of legislative 3 (1998) 193 CLR 173 at 220, but see all of his or executive interference in its exercise. Honour’s discussion from 218-222. Tuesday, 19 March 2002 SENATE 957

Senator BROWN—I thank the Senate. but also with the Prime Minister—without The second page of this opinion from Mr checking documents, without seeking legal Walters reads as follows: advice and with months of time to consider The letter to the Prime Minister, and tabled by the this beforehand—deliberately extending that Prime Minister, refers to Senator Heffernan’s attack, based on false evidence, in the House allegations “against a senior member of the judi- of Representatives. This is a matter not just ciary” (which can only be taken to refer to Justice for censure of Senator Heffernan but for cen- Kirby) and contains the following words: sure of the Prime Minister himself. He has As my letter to the Commissioner indicates, I let down not only his friend Senator Heffer- have previously provided background information nan but also, far more importantly, he has let relating to the potential commitment [sic] of down the Senate, the parliament, the High criminal offences. That information was subse- Court and the people of Australia who regard quently assessed by the NSW Police Service ... those institutions as important and as re- That paragraph goes on to detail allegations quiring safeguarding by everybody but, most about events in Sydney. The opinion from importantly, by the Prime Minister of this Mr Walters continues: country. The imputations in this passage, (mirrored by a Therefore, I move an amendment to similar passage in the letter to the Chief Commis- Senator Faulkner’s censure motion: sioner of police) are as follows: At the end of the motion, add: that Senator Heffernan had made allegations of the commission of criminal offences by Justice (c) censures the Prime Minister (Mr Kirby; Howard) for not preventing Senator Heffernan’s reckless and abusive actions that the allegations Senator Heffernan had in the Senate and for not acting made about Justice Kirby were of “serious con- immediately, after 12 March 2002, to cern to the police”; reverse the effect of those actions. only the failure to fulfil technical guidelines Finally, before I finish, I want to express my prevented the commencement of a prosecution. personal grief to two entities in this matter. None of these matters were stated in the speech of The first is to His Honour, Justice Michael Senator Heffernan. Kirby, who is a great Australian, a distin- The tabling of these letters by the Prime Minister guished citizen, a person who has added therefore seriously extended the allegations which greatly not just to public life but also to the had been made by Senator Heffernan. furtherance of ideals which Australians It is trite law that to publish the statement of an- themselves hold in high esteem, both within other is to publish that statement oneself. This has this country and beyond. It is a remarkable been expressed in the Parliamentary context as reflection on the honour of the gentleman follows: that only a simple, short statement branding A member is not allowed to use unparliamentary the accusations against him as false and ab- words by the device of putting them in someone surd came from His Honour, Mr Justice else’s mouth, or in the course of a quotation. Kirby; there has been no further entry into Mr Walters goes on to say: the public arena in his defence. The fact that the letter tabled by the Prime Min- One of the things we have to understand ister was authored by Senator Heffernan does not here is that when one is accused in this way lessen the responsibility of the Prime Minister it is so difficult to defend oneself. The more himself in tabling it. In so doing, there can be no doubt that the Prime Minister used Parliament to one enters into the melee, the more difficult substantially extend the attacks on a member of it is and the more vulnerable one becomes to the Judiciary which had been made in the Senate false attack. Nevertheless, I want to express by Senator Heffernan. my admiration—as a citizen who has only Madam President, we are dealing in this met Mr Justice Kirby in passing—not only situation not only with the failure of the for his life and his contribution to this coun- Prime Minister to prevent his friend and try but also for the forbearance he has shown Senate colleague from producing the awe- in these extraordinary, harrowing, and one some attack on false evidence in this place 958 SENATE Tuesday, 19 March 2002 can only guess how difficult, times of the last gations against members of the Labor Party, week. please take it to the police. Take that little Secondly, I want to express my admiration piece of paper you have tucked inside your for the people of Australia. The feedback I lapel and give it to the police.’ But no, have had on this issue has been very wise. Senator Heffernan has never once had the People have been shocked, and Australians courage to do that. He has never once fol- were horrified that the defences of their in- lowed through. I see some nods around the stitutions and a citizen like Justice Kirby chamber and I know some senators have ex- were so easily eroded by both the actions of perienced what I have described. Senator Senator Heffernan and the failure of action Heffernan has also been known to say to by the Prime Minister. This is a wonderful, both his colleagues and the gallery, ‘When democratic nation, which depends on long- John Howard goes, I’ll not be far behind.’ held institutions and the defence of those by Basically, he has not got a friend in the place. all of us in this place. It is enormously trou- He has survived on patronage. Senator Light- bling that that defence has been breached— foot, you were defending him last week; despite all the safeguards, despite the history maybe he had you as well. But he did say, and despite the forbearance that all of us ‘When John Howard goes, I’ll not be far be- must show—in such an egregious fashion, hind him.’ Well, Senator Heffernan, the based on the word of a falsifier, a person Prime Minister has said for you to go, so who was able to con a senator and a Prime why do you not take your own advice and do Minister and therefore those false accusa- the honourable thing? Do not just walk off tions went into the public arena where they the frontbench; just keep walking. should never have been allowed to trespass. Senator Payne was here and has listened Thank God for the Australian people and for to much of this debate; I am sorry that she is the institutions we have. not here now. Last week there was a test Senator Conroy—You’re an atheist. You about whether or not senators felt that Sena- can’t thank God. tor Heffernan had stepped across the line and there was a tight vote. Perhaps Senator Senator BROWN—I still can thank God Payne has experienced Senator Heffernan at in the person of the Australian people in this his lowest. Perhaps she has experienced case, for their wisdom and for the way in Senator Heffernan’s smear campaigns, half- which they have rallied to take part in this truths and falsified documents before. Maybe debate. It is a case of the people, I believe, she smelled a rat, because when the motion safeguarding the parliament at a time when calling for an apology from Senator Heffer- at least one or two parliamentarians had nan came to the vote last week it was carried. failed to safeguard them. It was carried because Senator Payne, a Senator CONROY (Victoria) (4.44 member of the New South Wales Liberal p.m.)—Senator Heffernan prides himself on Party, chose deliberately to walk out of the being known around the building as ‘the chamber, giving the numbers to the opposi- phantom: the ghost who walks’. The truth is tion and minor parties to carry the motion. that Senator Heffernan has always been the So Senator Payne is the only member on the ghost who stalks—he stalks around the cor- other side of the chamber who can hold her ridors. I am sure many in this chamber, many head up today because she smelled a rat last in the gallery and those who have dealt with week. The rest of the government all voted Senator Heffernan have experienced the con- like sheep just to back up Senator Heffernan spiratorial ‘come over here’. He pulls you without ever trying to get to the bottom of aside in the corridor, reaches into his jacket what was really going on. and half pulls out the information, offering to The conduct of Senator Heffernan does show it to you. He gives you a teaser of what raise questions. It is now apparent that is contained in it. Many have experienced Senator Heffernan’s attack on Justice Kirby that. I have said to him at times, ‘If that is the last week was based on fabricated evidence. information you have, Senator Heffernan, go Given the seriousness of the allegations to the police. If you want to make those alle- Tuesday, 19 March 2002 SENATE 959 made by Senator Heffernan, this is a serious fernan, to which Senator Brown has moved breach of the responsibility he owes to the an amendment to censure the government Senate, to the judiciary and to the Australian and the Prime Minister. The amendment has people. His actions are evidence again of this been circulated. Senator Conroy is, at this government’s complete disrespect for demo- stage, free to speak to the motion and to the cratic institutions and for the rule of law in amendment. Australia. We have a government that is Senator CONROY—Hopefully, you will quick to make false claims and slow to re- get a chance to have a look at it in a moment, veal the truth. We are still to conduct the in- Senator Boswell. The government has sought quiry into the ‘children overboard’ incident, to set Defence officer against Defence offi- but it was established at estimates that the cer. It is the government and its actions that photographs used by the government were led to Admiral Barrie’s humiliation at the deliberately released in that form to mislead hands of his own officers. As he said, ‘If you the Australian public. I am sure all those in think this press conference is going to be the gallery and those who are listening today tough for me, I’ve just faced my harshest saw the photographs in the newspapers. The critics,’ because Defence officers know that government released the photographs of its there is no greater duty than to serve the own volition—it was not forced by anyone— Australian public to ensure that the truth be to prove the story that kids were thrown known—not just to serve the government of overboard. But we now know they did not the day, but the Australian public. The gov- represent the full picture—and a pun is in- ernment has undermined the independence of tended. the Public Service and now has attacked the Senator Lightfoot—You are not sug- highest court in the land. gesting that the government manipulated Senator Lightfoot interjecting— those photographs? Senator CONROY—I have not stacked Senator CONROY—I am afraid the the parliament with my girlfriend, Senator photographs were issued by the minister’s Lightfoot. We need to discover exactly by office but not in the form in which they were whom it was known and whether the Prime supplied by the departments. It is all on the Minister chose to deliberately mislead the public record. When the photographs came Australian electorate. A similar cover-up has across, they contained captions to describe been employed recently by the Treasurer. He what was going on and they contained the has lost almost $5 billion on currency trad- date—just a small, insignificant issue—being ing, but continues to hide behind the defence the day after the alleged ‘children overboard’ that his departmental officers did not tell incident; that is what these photographs him, despite the fact that the Treasurer re- show. During the election campaign, did the ceived a report every year from Treasury— truth come out of the government’s duplicity The Treasury Annual Report—containing the in this matter? No it did not, and more will information, which he then signs and tables come out during the Senate inquiry into this in parliament—yet again, standards over- disgraceful performance. The government board. Yet he wants us to believe that he did misled the electorate during the election not know the losses were being suffered. The campaign over the children being thrown Treasurer does hold a position of privilege overboard. They have misled the parliament and, with that position, comes responsibil- in their attempts to cover it up. They have ity—a responsibility to ask questions. This is misled the press. They have abused the hon- not being done by this government, and the our of the defence forces. They have sought Australian electorate is being cheated. to set— In relation to the allegations made by Senator Boswell—Is this a censure mo- Senator Heffernan last week, we do not yet tion on the government or on another sena- know how much information the government tor? and the Prime Minister had regarding Sena- The PRESIDENT—We are dealing with tor Heffernan’s allegations and the insub- a censure motion in relation to Senator Hef- stantial, fabricated evidence those allegations 960 SENATE Tuesday, 19 March 2002 were based on. Today, in the House of Rep- and when did you know?’ about this gov- resentatives and in the Senate, we asked ernment. questions—simple questions which were not We are told that the Minister for Justice about operational matters, as Senator Abetz and Customs, Senator Ellison, is conducting tried first to hide behind. Did Senator Hef- an investigation. What form will this investi- fernan seek a review of his original or any gation take? Will it be conducted by Senator other FOI decision? You would not have Ellison himself? Will it be conducted by the thought that was a matter that had to be an- AFP, the New South Wales police, the Prime swered by saying, ‘It’s a police inquiry; I Minister’s office? Perhaps the officer who can’t tell you that.’ Did Senator Heffernan conducted the investigation into kids over- approach the then Secretary of the Depart- board has some spare time and she is con- ment of Finance and Administration, Dr Pe- ducting another investigation. What is the ter Boxall, a former Liberal staffer, and ask form of this investigation? Is it independent? him to obtain copies of departmental docu- Is it at arm’s length? Is it just another cover- ments? What did Dr Boxall do in this set of up? circumstances? All of those questions, one would have But the key question was: when did thought, were pretty simple. Yet Senator DOFA first see the fabricated document—a Abetz chose basically to plead the fifth, as document which, at the time, had been pur- they say in the US: ‘I’ll take them on notice ported to be a real document? When did they and get back to you.’ What has Senator first receive Senator Heffernan’s document Abetz been doing? All he had to do, just as and who gave it to them? What action did the he does every other day he gets a question department take to check the authenticity of without notice, was reach down, pick up his this document? How was this carried out? brief, supplied by the department, and read What was the result of this investigation into the answers. Does Senator Abetz expect the the very document which is now admitted, Australian public to believe that, with all the even by Senator Heffernan, to be fabricated? intense media scrutiny in the last seven days, When was the minister first informed that a the department did not supply him with a check had been done and a document could brief for today’s question time? Does any not be substantiated? Who else was told? senator on the other side believe that Senator Who else in the department knew about this Abetz was not supplied with a brief to argue investigation? Which current or former min- his case, to provide information, to answer isters were informed? Which other depart- questions—the purpose of question time? ments were informed? All of those questions that I have men- Today, in the other place, the Minister for tioned are still outstanding and must be an- Employment and Workplace Relations, Mr swered. There is no use trying to hide; there Abbott, said there was no illegal use of is no use running away, hiding behind the Comcar—they did look at this issue and words, ‘I’ll take it on notice and get back to there was no illegal use of Comcar. How was you.’ They are questions that the Australian this established? Somebody supplied infor- public want an answer to and deserve an an- mation to DOFA on the matter of Justice swer to. If, as is suggested, this information Kirby’s Comcar travel. Yet today you were was kicking around inside the department able to say that an investigation was con- some considerable time ago, you would have ducted and he was cleared. Where was that to ask: why was there no correction last last week? Have you been able to do it in the week? Why didn’t somebody say something last 72 hours, 48 hours, 24 hours? When was last week? this investigation done? This goes to the heart of who knew and when did they know. Mr Brereton saw the documents in the It is a common theme; senators may have media on Sunday, saw his name, and imme- heard that saying a few times in the last cou- diately checked to see whether the document ple of weeks. There is a lot of ‘who knew, was correct. He asked questions. When Senator Heffernan went to see the Prime Minister, and when he went to see the Attor- Tuesday, 19 March 2002 SENATE 961 ney-General, Mr Williams, did they think to was no mention from Senator Heffernan ask why Senator Heffernan was pursuing about going to Dr Boxall, no mention of who this, where he got the information from and the person was who supplied him with the whether he really believed it? Did Senator documents. The FOI legislation has been Heffernan tell them the source of these drafted by this parliament to balance all the documents? If he did not, why would you let interests of the relevant parties. Why did Senator Heffernan proceed? Why wouldn’t Senator Heffernan not respect those laws? you say, ‘Don’t you dare raise these issues We know that Senator Heffernan is ob- because they’re not of substance; the infor- sessed. Even Senator Hill described him as mation you have to support them is not of passionate—some might say a zealot. He substance’? admitted as much when he said in his speech Why were the documents so believable to on Tuesday last week that he had been inter- the Prime Minister and Mr Williams? It is a viewing male prostitutes for a number of good question, Senator Herron; you might years. What a good use of a senator’s time! want to ask somebody. Why was the source A number of years! We know that the Prime of these documents so credible to Senator Minister knew of Senator Heffernan’s obses- Heffernan? I suggest that you take that one sion. The Prime Minister and Senator Hef- up, Senator Herron. It is a very interesting fernan were confidants. The Prime Minister question. But Mr Brereton discovered the also knew of Senator Heffernan’s tenacious- document was, at the very least, incorrect, ness. Why else did he appoint the senator to and he acted appropriately. It took him less the ‘children overboard’ inquiry? than 24 hours to prove it was a fraudulent Senator Ferguson—What a load of rub- document. bish. Senator Lightfoot—That was quick for Senator CONROY—Welcome, Senator him. Ferguson. The Prime Minister had an addi- Senator CONROY—‘Danger Man’ tional responsibility to keep a check on found out in 24 hours, Senator Lightfoot. Senator Heffernan, because he knew his ob- That is the truth of this. What did Senator jectivity in this area. He is his best mate. He Heffernan do to check the accuracy of the knew how obsessed Senator Heffernan was. document? We have heard his pathetic ex- He had an added responsibility to keep cuse in his attempts today, and he still came Senator Heffernan in check and to try to ver- up with the wrong answer. What did the ify Senator Heffernan’s allegations. Prime Minister do to check the accuracy of We know that Senator Heffernan rarely these documents? What did the Attorney- speaks in the Senate, but when he does it is General do to check the accuracy of these often dirty. A quick search of ParlInfo indi- documents? We are still to find out the com- cates that since 1996, when he was appointed plete story. a senator, his performance in this chamber Senator Heffernan has just indicated that has been a joke. Many times we have been in the source of his Comcar document never a position of calling on Senator Heffernan to indicated that it was a false document. Why enlighten us. In five years, he has made 12 did this person have so much credibility with adjournment speeches. Senator Heffernan? We are still to establish Senator Ferguson—I bet you’ve only what inquiries were made to ensure that this made 12. was the case. That is what should have hap- pened—not a week later, when members of Senator CONROY—Thank you, Senator the opposition smelled a rat and Laurie Bre- Ferguson. We know also that the Attorney- reton was able to find the truth. Questions General, Australia’s legal officer, knew of and inquiries need to be made. Senator Heffernan’s obsession. Why did the Prime Minister and the Attorney-General not Senator Heffernan has said that he made inquire into the basis of Senator Heffernan’s an FOI request and that it was refused. He claims and ask for the evidence on which he needs to explain. He was silent today; there was basing his claims? Like Senator Heffer- 962 SENATE Tuesday, 19 March 2002 nan, they had a responsibility to ensure that ernment. That is really what is behind it. the allegations against the judiciary—against This is not definitively a censure motion of anyone, in fact—were not raised without Senator Heffernan; the motion has been proper investigations being made. Proper amended by Senator Brown to include cen- avenues of inquiry should have been ex- sure of Prime Minister Howard. hausted. They were not. The Prime Minister has made perfectly Indeed, the Prime Minister added to clear he was unaware that Senator Heffernan Senator Heffernan’s allegations. When he did was going to make his speech in the Senate. not need to, the Prime Minister hitched his He had not seen the document that Senator coat-tails to Senator Heffernan last week Heffernan referred to and that was made when he read into Hansard a letter from available to the media. He counselled Sena- Senator Heffernan further slandering Justice tor Heffernan not to use parliamentary privi- Kirby. When he could have given a High lege. But one of the great virtues of the Lib- Court judge the benefit of any doubt—and eral Party, and the reason that I am here, is there must have been doubt—he backed his that the Liberal Party has a great respect for mate Senator Heffernan. The Prime Minister the importance of the individual. I have the also helpfully pointed out that Justice Kirby perfect right, as an individual, to exercise my needed only to be guilty of ‘proven miscon- right of parliamentary privilege. I have the duct’ to be removed from the High Court. We right, as an individual, to cross the floor and can see which side of this debate the Prime vote on a motion that I feel strongly about— Minister has been on. It is no good trying to as I did when I had been in parliament about back away and dumping your mate last six months: I supported a Democrat motion night. The Prime Minister was quick to de- in relation to the advertising of tobacco. I am fend the integrity of the thoroughly discred- pleased to say that 18 months later my party ited Senator Heffernan. Further, the Prime changed its view on that. It is an important Minister defended Senator Heffernan’s use right that we on this side of the chamber of parliamentary privilege to air his obses- have—to exercise our rights as individuals. sion. Only yesterday, he defended Senator And if Senator Heffernan felt that he had the Heffernan’s right to use ‘the ultimate safety privilege to use that right in parliament, so be valve of democracy’ to make his allegations it. I would defend that. He has a perfect right against Justice Kirby. Parliamentary privi- as an individual to take whatever action he lege is, as the name suggests, a privilege. believes—albeit incorrectly in this case— Senator Heffernan has acted recklessly. He and to exercise that privilege. has disregarded the resolutions and proce- The ALP are now into parliamentary tac- dures of the Senate to pursue an obsession, tics, which dictate that when you have got an and he did that intentionally. He deserves to issue you ask the questions how, what, when, be censured. why and by whom so you can pursue that Senator HERRON (Queensland) (5.04 debate as long as possible rather than the p.m.)—We have just heard an abuse of par- things that are really affecting the country, liamentary privilege from Senator Conroy. In like our unemployment rate, our outstanding his general spray about this motion, he has economic achievements, and all the things maligned the reputations—and I took note of that are important. The Australian public it—of the Prime Minister, the Treasurer, Mr knows this is going to deteriorate during the Abbott, the Attorney-General, Senator Elli- remainder of this particular week in relation son and Senator Abetz. The facts of the to an attack on the Prime Minister and an matter are that Senator Heffernan made an attack on the government. It was asked, error of judgment and that he came into the ‘Why didn’t the Prime Minister stop him?’ Senate this afternoon and apologised to the The reality is that the Prime Minister cannot Senate, to the Prime Minister and to his col- stop him. He cannot stop any member of the leagues. End of story. But I understand the party from exercising his right. He can ad- ALP. This is a tactic—one might say a le- vise him, he can counsel him and he can tell gitimate political tactic—to attack the gov- Tuesday, 19 March 2002 SENATE 963 him that it is not in the best interests of the been convicted and punished there, and usu- party, but ultimately it is up to the individual. ally only the ones who plead guilty. For their own reasons, the ALP interpreted In 1998, in South Australia, the police the refusal of the Freedom of Information handled 621 cases—227 involving the rape Act to allow Senator Heffernan to authenti- of a female child—and only 348 went to the cate his records as indicating the records Magistrates Court, 10 per cent of those went were not authentic. Perhaps it should have to the Supreme Court and only two offenders been allowed, and then he would have been were convicted and both of those, I believe, aware that they were not authentic Comcar pleaded guilty. It is no good saying that there records. But no, the ALP is saying, ‘We in- is not a failure of institutions. If that is the terpret that to mean they were incorrect.’ record of institutions, then that needs to be How could Senator Heffernan know they looked at. I believe that Senator Heffernan were incorrect if he was not allowed access may well have been motivated by his hatred to the authentic records? It may equally be of paedophilia and paedophiles and that ob- interpreted that it confirmed his beliefs that scured his judgment in this particular case. somebody was protecting those records so There is a case there for further debate about they were unavailable to him. the particular issue because ultimately I think It is obvious that the action should be re- it is incumbent on all of us in this chamber to ferred to the Privileges Committee—as has protect innocent children—that is the bottom been suggested by somebody—but, I would line—not institutions, not individuals as refer to the hypocrisy of the ALP too. I refer such, but to protect innocent children from particularly to my state of Queensland where predatory paedophiles. And that question is we have a minister of the state Labor Party still to be addressed. who is in jail as a convicted paedophile. The I do not think this issue will go away. It is rumours were around about that gentleman something that needs to be addressed in the for many years, and were in the press. What community. I know that in my previous port- did the ALP do? Nothing. A former state folio of Aboriginal and Torres Strait Islander leader of the ALP in Queensland was also in Affairs, it is an enormous problem in some jail, and has now served his term, for the communities and I had investigations done same offence. What did the ALP do about into that. The facts are there and they need to that? Nothing. It was obvious that nobody be addressed. had the courage to speak up about him in a Madam President, it is all very well to public manner. It was gossip around the state play the politics of this out, and I understand for many years as well. I think there is a rea- the ALP to do that, but there are greater is- son for that, and that is they do not have the sues involved here than a meaningless cen- opportunity to do that as we do in the party. sure of the Prime Minister. The Prime Min- I commend an ALP senator for asking a ister has made his position perfectly clear. I question today about paedophilia in general. have known him for over 20 years and he is That question is far more important than the on the public record and private record of individuals concerned, far more important telling the truth. It is no good attacking his than Senator Heffernan or the distinguished credibility; it stands. Senator Conroy and judge. It is a question that needs to be further Senator Faulkner have dragged in other is- addressed because there has been a failure of sues—Senator Brown as well—so the institutions—and I believe in a sense that amendment accepted by the ALP is that the that may have been part of Senator Heffer- motion censures the Prime Minister for not nan’s reasons for doing what he did—and I preventing Senator Heffernan’s reckless and can give you a direct indication of that. abusive actions in the Senate and for not South Australia, and it is on the public rec- acting immediately after 12 March to reverse ords, has the worst conviction rate in Aus- the effect of those actions. tralia for paedophilia—both heterosexual and The only issue I have not dealt with is to homosexual. Only two per cent to three per the idea of ‘immediately’ addressing the cent of reported child sex offenders have senator. How was the Prime Minister to 964 SENATE Tuesday, 19 March 2002 know that that record was false? He obvi- breaching of that standing order in a reckless ously did not. He was not aware until Sena- and highly disorderly way. It is one that is tor Heffernan himself, as he said in the Sen- particularly relevant in relation to the content ate this afternoon, notified him that it was so. of that speech and the fact that it is not just a Others then attested to that as well. Senator technicality or a run-of-the-mill, everyday Heffernan has unreservedly apologised this breach of standing orders but a very funda- afternoon, unreservedly. His apology should mental and serious one involving obviously be accepted and Justice Kirby will, I believe, very serious allegations. It is hard to think of accept that apology in the spirit in which it is many allegations more serious than those given. And that is the end of the matter as far ones against anybody, let alone a High Court as all of us should be concerned. judge. There may be motivations there we are The terms of the censure motion put for- not aware of. I think Senator Heffernan has ward reflect very closely the content of the made his position perfectly clear. I support motion that is on notice that was put forward him for the courage it took him to stand up in again by Senator Stott Despoja, the Demo- front of us, and it does take a lot of courage crats leader, in relation to referring this mat- to unreservedly apologise for your actions in ter to the Privileges Committee. As Senator this place. It is an action I commend him for. Ridgeway, the acting leader this week, said It is an action that was warranted in light of in his contribution, that is something that the the events that have transpired and I believe Democrats will continue to pursue because there is no place to try and link this thing we should make this more than just address- with the Prime Minister, as the ALP is doing, ing the issue of the moment. If we think that and obviously I think we should oppose the is all finished with and we move on, we will motion. be doing ourselves a disservice and to some Senator BARTLETT (Queensland) (5.14 extent might leave ourselves open to the ac- p.m.)—I would like to speak briefly to this cusations made by some on the government motion. I will not take up too much time of side that this is all about politics. I think it is the Senate but I think it is appropriate to put important that we not just recognise the further on the record some aspects of the wrong that has been done and censure Sena- Democrats views in relation to this censure tor Heffernan accordingly but also look at motion. It is worth outlining a little bit more ways to address all this in a longer term specifically the detail that has led to this fashion to try and get better understanding, if point, not so much in terms of the speech of you like, of what is appropriate and inappro- Senator Heffernan—I think everybody is priate use of parliamentary privilege in this aware of that—but some of the actions of the chamber and what sorts of mechanisms we Senate since then. It is worth emphasising should have to try to minimise the prospect those things the Senate has done since that of its happening again and to deal with it if it speech was made to try and reverse the does happen again. I am sure all senators wrong that occurred and to lead us to this would hope that it does not happen again. stage we are at today in debating this censure This motion follows on from Senator Hef- motion. fernan’s apology that he gave to the Senate Firstly, the motion we are debating does just under a couple of hours ago. It is worth start by noting the ruling of the Deputy noting that, according to reports on the AAP President, acting in the President’s role last wire, that apology has been accepted quite week, that the speech by Senator Heffernan graciously by Justice Kirby. He has made was in breach of standing order 193. That some very positive comments, I think, which ruling was made following a request for a I will not go into in detail because I under- ruling put to the Deputy President by the stand that some brief comments of his will Leader of the Democrats, Senator Stott be tabled in the chamber after this debate, so Despoja. That is the ruling that is noted at it is probably not appropriate to mix them up the start of the motion. The censure of with the censure debate about Senator Hef- Senator Heffernan is put forward for his fernan. But it is appropriate to mention in the Tuesday, 19 March 2002 SENATE 965 context that this is not just about Senator been predominantly on the Prime Minister’s Heffernan being censured and that is that; part. It was the government senators that op- there are broader issues here that we should posed in this chamber the motion and the not forget, because there are lessons to be amendment that was put forward by the learnt from this unfortunate episode. If we Democrats that called on Senator Heffernan could do that, that would be all the better. to resign. You have to wonder why the gov- It is worth reflecting on the comments that ernment members thought it was inappropri- my colleague Senator Greig made earlier ate last week for the Senate to call on Sena- today in response to an issue raised in ques- tor Heffernan to apologise but think it is ap- tion time. In his statement today Senator propriate today for Senator Heffernan to pro- Heffernan said that he does not believe in vide that apology. I think there is a lot of discrimination against homosexual people inconsistency there. It again calls into ques- and sees no link between paedophilia and tion the genuineness of some of the govern- homosexuality. I am certainly glad to hear ment statements in relation to that. It was, of him say that. We have had similar comments course, Mr Howard, and a few others— from government members, including the Senator Lightfoot springs to mind—who Prime Minister. What is needed, if they are opposed that call by the Senate for Senator genuine in removing the stigma of homo- Heffernan to resign, and the motion and phobia that has been perceived as a conse- amendment were moved by the Democrats. quence of Senator Heffernan’s comments, is It is worth noting and it is probably par- that they really need to be moving proac- ticularly ironic, given the amendment moved tively to remove the widespread discrimina- today by Senator Brown, that Senator Brown tion that occurs across a whole range of leg- also opposed the Democrat amendment to islation at Commonwealth level and to pro- call on Senator Heffernan to apologise. Then vide national protection against discrimina- there was the curious scenario of Senators tion on the grounds of sexuality and gender Brown, Heffernan and Lightfoot and Mr status. If the government is genuine in saying Howard all agreeing that it should not be this is not about homophobia, that is the way Senator Heffernan who should apologise. I they can demonstrate it. Otherwise, I think found it a bit perplexing that Senator Brown the doubt will still be there. I think there are opposed the Democrat amendment calling on positives to be gained from this very unfor- Senator Heffernan to apologise, but certainly tunate episode if we look beyond just making we are pleased that he has done so today. It this a political activity and look at the les- was an appropriate resolution of the Senate sons we can learn from it. As with the un- last week and an appropriate amendment fortunate episode with the Governor- moved by Senator Stott Despoja, despite the General, if this serves to focus on the reality attacks made upon her at the time for moving of child sex abuse as opposed to false alle- that way. Indeed, Senator Brown went so far gations and smearing of people, perhaps as to put out a statement criticising the deci- there are some positives that can come out of sion of the Senate, and the Democrats in it. particular, to move an amendment that The apology that Senator Heffernan gave Senator Heffernan resign—sorry, apologise; follows a motion by this chamber last week Freudian slips keep occurring. But it is justi- calling on him to do just that. As was stated fication for that resolution of the Senate that earlier in the debate today, when that motion today we have seen this apology. The re- was passed by the Senate calling on Senator sponse from Justice Kirby, following that Heffernan to apologise, the Prime Minister apology, is a positive one as well and pro- dismissed that as politicking. It seems that vides as good a resolution as you could get when the Senate does that it is politicking of what is a very unsavoury matter. and when Mr Howard requires Senator Hef- The other aspect that is appropriate is the fernan to apologise that is just him behaving censure motion, which of course the Demo- appropriately. I think it is quite clear that the crats support. It mirrors, as I say, in many politicking in this over the last few days has ways, the motion of referral to the Privileges 966 SENATE Tuesday, 19 March 2002

Committee that was put forward by Senator earlier contribution—that remain unan- Stott Despoja. In a way, it is an almost in- swered by Senator Heffernan. evitable outcome of a range of actions by the One of the most important of those ques- Senate, including many actions by the tions is why Senator Heffernan did not take Democrats, highlighting the need for re- the elementary step of getting the Special dressing the wrong that occurred in relation Minister of State or his department, the De- to Senator Heffernan’s speech. I hope that partment of Finance and Administration, to positive aspects come from this sad and un- check the authenticity of the Comcar records. fortunate circumstance. Then, perhaps we Surely, before defaming an eminent member will all learn from it and try to avoid such of the High Court of Australia on the basis of things happening again in the future. a single Comcar record, Senator Heffernan Senator FAULKNER (New South might have taken the precaution of checking Wales—Leader of the Opposition in the Sen- with Comcar, of checking with the Depart- ate) (5.24 p.m.)—The opposition has given ment of Finance and Administration as to consideration to the amendment that Senator whether the documentation was authentic. Brown proposes, and I indicate to the cham- He did not do it, and he has not explained ber we will be supporting it. We do so on the why he did not do it. basis that it is absolutely clear that the Prime This affair will not go away as a result of Minister failed to take effective action to apologies offered by Senator Heffernan. I am ensure that Senator Heffernan did not air his pleased that Senator Heffernan has retracted damaging accusations before having them his allegations against Justice Kirby, and I thoroughly investigated. am pleased that Justice Kirby has accepted But it is not just a case of the Prime Min- the apologies that have been proffered by ister failing to exercise due diligence in this Senator Heffernan. I suspect that nothing can matter. He actually added to the accusations be done to rectify some of the damage that against Justice Kirby by tabling the corre- has been done to Justice Kirby’s reputation spondence between Senator Heffernan and by the airing of the allegations themselves. I the New South Wales Police Commissioner, think Senator Heffernan, regrettably, has which of course contained new information. succeeded in smearing the name of Justice What the Prime Minister did was to give Kirby, and everyone in public life knows comfort to Senator Heffernan and give no how difficult it is to shake off those sorts of comfort to Justice Kirby. Neither the Prime smears. So it is appropriate, at the very least, Minister nor the Attorney-General was will- that Senator Heffernan be censured for this ing to express confidence in Justice Kirby. I reprehensible behaviour. believe that the Prime Minister has shown an Frankly, I think this is even more impor- abysmal lack of leadership on this matter, as tant given the actions of the government in he has in relation to the ‘children overboard’ the House of Representatives this afternoon deception. in refusing, as I understand it, to allow the I note—and it would be churlish not to— censure motion moved by the opposition to that Senator Heffernan has come into the proceed. I suspect that was probably due to a chamber and made an apology to Justice lack of confidence by the coalition leader- Kirby. I note that Senator Heffernan has also ship that their troops would line up with the apologised to the Senate. I know that Justice government side when a vote came on this Kirby has accepted the apology that has been particular issue. offered by Senator Heffernan. But I also The question for the Senate to determine know that Senator Heffernan was obliged by today is whether it is appropriate to censure the Prime Minister to give an adequate ex- Senator Heffernan for his behaviour. As I planation for his actions, and I do not believe have said before, apart from the breach of that the explanation that Senator Heffernan standing order 193 and apart from the Dep- has given to the chamber this afternoon has uty President having found that Senator Hef- been adequate. There are many questions— fernan was guilty of highly disorderly con- and I outlined some of them at the end of my duct, it is a fact that Senator Heffernan Tuesday, 19 March 2002 SENATE 967 structured his speech so effectively he could Crane, A.W. Eggleston, A. not be drawn to order by either the chair or Ellison, C.M. Harradine, B. any senator concerned at a possible breach of Harris, L. Heffernan, W. standing orders. I think that is a devious way Herron, J.J. Hill, R.M. to attack an eminent judge—a devious way, Knowles, S.C. Lightfoot, P.R. frankly, to attack anyone—but it is a cow- Macdonald, I. Macdonald, J.A.L. ardly way also. It is a matter of fact that Mason, B.J. McGauran, J.J.J. Senator Heffernan failed to exhaust the legal Patterson, K.C. Payne, M.A. avenues available to him to have his allega- Reid, M.E. Tchen, T. tions against Justice Kirby properly investi- Tierney, J.W. Troeth, J.M. gated. It is a matter of fact that Senator Hef- Vanstone, A.E. Watson, J.O.W. fernan failed to take proper action to have his PAIRS so-called ‘evidence’ authenticated. As I said Conroy, S.M. Scullion, N.G. before—and I stand by it—Senator Heffer- Forshaw, M.G. Kemp, C.R. nan has been reckless, he has been disorderly Gibbs, B. Chapman, H.G.P. in his conduct, he has been cowardly in his McKiernan, J.P. Ferris, J.M. attack; and he has been grossly negligent. He McLucas, J.E. Minchin, N.H. has defamed the good name of an eminent Sherry, N.J. Campbell, I.G. judge of the High Court of Australia. He Stott Despoja, N. Ferguson, A.B. ought to be censured by the Senate. * denotes teller Question put: Question agreed to. That the amendment (Senator Brown’s) be Original question, as amended, agreed to. agreed to. PRIVILEGE The Senate divided. [5.36 p.m.] The PRESIDENT (5.37 p.m.)—I wish to (The President—Senator the Hon. Marga- report that this afternoon I have received a ret Reid) letter and a short statement from the Hon. Ayes………… 31 Justice Michael Kirby AC, CMG, a justice of the High Court of Australia. The letter states: Noes………… 30 Dear President, Majority……… 1 I have the honour to attach a copy of a state- AYES ment which I am releasing following the speech in the Senate by Senator the Hon. Bill Heffernan. Allison, L.F. Bartlett, A.J.J. If you consider it appropriate and the Senate gives Bishop, T.M. Bolkus, N. permission, the statement might be tabled. Bourne, V.W. Brown, B.J. Buckland, G. Campbell, G. With the leave of the Senate, I will incorpo- Carr, K.J. Cherry, J.C. rate the statement, and I will table the origi- Collins, J.M.A. Cook, P.F.S. nals of the letter and the statement when they Cooney, B.C. Crossin, P.M. * are received. Crowley, R.A. Denman, K.J. The statement read as follows— Evans, C.V. Faulkner, J.P. STATEMENT BY JUSTICE MICHAEL KIRBY Greig, B. Hogg, J.J. Hutchins, S.P. Lees, M.H. My family and I have suffered a wrong. But it is Ludwig, J.W. Lundy, K.A. insignificant in comparison to the wrong done to Parliament, the High Court and the people. Mackay, S.M. Murray, A.J.M. O’Brien, K.W.K. Ray, R.F. I have been sustained by my innocence, by the Ridgeway, A.D. Schacht, C.C. love of my partner and family and support and West, S.M. prayers from all sections of the community. NOES I accept Senator Heffernan’s apology and reach out my hand in a spirit of reconciliation. I hope Abetz, E. Alston, R.K.R. that my ordeal will show the wrongs that hate of Barnett, G. Boswell, R.L.D. homosexuals can lead to. Brandis, G.H. Calvert, P.H. * Colbeck, R. Coonan, H.L. 968 SENATE Tuesday, 19 March 2002

Out of this sorry episode, Australians should With regard to paragraph (c) of the order, emerge with a heightened respect for the dignity these documents have already been supplied of all minorities. And a determination to be more to the Senate Committee for an Inquiry into careful in future to uphold our national institu- the Contract for a New Reactor at Lucas tions—the Parliament and the Judiciary. Heights and would be available in the com- LUCAS HEIGHTS: NUCLEAR mittee’s records. They are described in detail REACTOR in paragraphs 7.5 to 7.6 of the committee’s Returns to Order report, A new research reactor?, and are pro- Senator TROETH (Victoria—Parlia- vided for the information of the Senate. mentary Secretary to the Minister for Agri- With regard to paragraph (d) of the order, culture, Fisheries and Forestry) (5.41 p.m.)— advice on the Argentine economy is reported by leave—I rise to make a statement in rela- to the government by our embassy in Buenos tion to a return to order about the Lucas Aires in classified cables, the release of Heights reactor, due today. It relates to a which would prejudice Australia’s national matter handled by the Minister representing security. The minister has been briefed ver- the Minister for Education, Science and bally on matters concerning INVAP and the Training, Senator Alston. Pursuant to order Argentine economy by officials, the Argen- of the Senate agreed to on 14 March 2002 tine Ambassador to Australia and the Aus- relating to the Lucas Heights reactor-INVAP tralian Ambassador to Argentina. contract, I table documents. With regard to paragraph (e) of the order, With regard to paragraph (a) of the order, since formal negotiations with INVAP com- as part of the technology transfer provisions menced, there have been no significant of the contract with INVAP, ANSTO officers variations to the specifications or capacity of are regularly in Argentina. However, these the reactor and no amendments to the provi- officers have not had any responsibility in sion of neutron beam assemblies. This can be relation to the matters raised in this para- seen by a review of the Preliminary Safety graph and have not reported on them. Hence, Analysis Report, which was submitted to ANSTO holds no documents relevant to this ARPANSA in May 2001 and which has pre- paragraph. The ANSTO executive director viously been provided to the Senate. Ac- and the replacement research reactor pro- cordingly, there are no corresponding project gram manager have visited Argentina to cost revisions and the research capacity and monitor the implementation of the contract potential of the reactor have not changed. and have provided verbal reports on the out- There are therefore no documents under this come of these visits to the ANSTO board and paragraph, but for the information of the to project staff. The executive director, Pro- Senate we provide a summary of the PSAR. fessor Garnett, has also provided an oral The second return to order relates to the briefing on these matters to the Minister for area administered by Senator Patterson, the Science. Minister for Health and Ageing, and is pur- With regard to paragraph (b) of the order, suant to the order of the Senate agreed to on there have been no discussions on renegoti- 12 March 2002 relating to the proposed nu- ated financial agreements for the contract, clear reactor at Lucas Heights. I table docu- nor on ‘repeated applications for Argentinian ments. government loans’. All commercial and With regard to paragraphs (a), (b) and (c) technical discussions between ANSTO and of the order, the remainder of the documents INVAP are covered by the commercial-in- falling within the scope of this paragraph confidence provisions of the contract, and cannot be tabled, as they are classified confi- documents relating to such discussions are dential or above and, consequently, their re- commercial-in-confidence. Other documents lease would prejudice Australia’s national falling under this head cannot be tabled, as security. they are classified confidential or above and, With regard to paragraph (d) of the order, consequently, their release would prejudice the remainder of the documents falling Australia’s national security. Tuesday, 19 March 2002 SENATE 969 within the scope of this paragraph cannot be ernment in particular. I think it has been a tabled, as they are either classified confiden- trend for a while, including the previous tial or above and, consequently, their release government, but it is getting worse and would prejudice Australia’s national security worse. These two returns to order—one or they are commercial-in-confidence. originally put forward by Senator Stott With regard to paragraph (e) of the order, I Despoja, the Leader of the Democrats, and indicate that the documents sought were the the other by Senator Carr—both deal with subject of a Senate committee inquiry and an substantial documents relating to a very sig- earlier Senate return to order, pursuant to nificant issue of major public importance: which documentation has previously been the new Lucas Heights reactor. With the new tabled by the Minister for Industry, Science information that has come to light from Ar- and Resources on 8 February 2001 or pro- gentina on the state of the Argentinean econ- vided by ANSTO. The publication of docu- omy and the state of the relevant organisa- ments relating to the evaluation and com- tion which has tendered for the new reactor, parison of tenders would directly breach the to continually say ‘national security’, ‘com- undertakings made by ANSTO to all four mercial-in-confidence’ and ‘confidential’, tenderers in the request for tender. Clause 4.5 from the Democrats’ point of view, simply is of the request for tender reads: not good enough. 4.5 Confidentiality This is an issue that my colleague Senator Subject to the provisions of the Freedom of In- Murray has pursued in recent times to try to formation Act 1982, information relating to the get a better standard of the application of the examination, clarification, evaluation and com- principle of commercial-in-confidence. The parison of tenders and recommendations for the Democrats recognise that there are legitimate award of a contract shall not be disclosed to ten- occasions where that may apply, but it seems derers or any other persons not officially con- quite clear that, more and more, it is being cerned with such process other than to the Minis- applied inappropriately and as an excuse for ter for Industry, Science and Resources, officers keeping things from the public eye. That is of the Minister’s department and the Common- completely inappropriate. It is appropriate to wealth Auditor General. remind the Senate, and the public more With regard to paragraph (f) of the order, I broadly, that returns to order—or orders for indicate that the remainder of the documents the production of documents—by the Senate sought either were the subject of a Senate are not idle things that people do when they committee inquiry and an earlier Senate re- have a bit of spare time; they are very sig- turn to order, pursuant to which documenta- nificant orders. To require a document to be tion has previously been tabled by the Min- produced before the Senate is a significant ister for Industry Science and Resources on 8 order and to refuse to comply, as the gov- February 2001 or provided by ANSTO, or ernment has done predominantly in relation cannot be tabled as they are either classified to these two returns to order, is a serious confidential or above and, consequently, matter. It is not an FOI application; it is an their release would prejudice Australia’s na- order of this house of parliament. It is a sig- tional security or they are commercial-in- nificant one with significant weight, and for confidence. it to be dismissed so flippantly or easily by Senator BARTLETT (Queensland) (5.48 the government sends a very bad signal p.m.)—by leave—The Australian Democrats about how seriously this government takes will examine the statement of the Parlia- the institution of parliament and the Senate. mentary Secretary to the Minister for Agri- Perhaps, given everything we have seen in culture, Fisheries and Forestry, but the re- the last couple of months about this govern- peated resort to commercial-in-confidence, ment, it is possibly no surprise that the gov- national security and confidentiality ernment’s respect for the institution of par- throughout all of these documents highlights liament is about as low as its respect for a major flaw in this whole approach and an every other institution in this country. ever growing degree of secrecy by this gov- 970 SENATE Tuesday, 19 March 2002

Certainly the Democrats still hold the tered into between ANSTO, the Australian Senate and the parliament in high esteem. Nuclear Science and Technology Organisa- We believe that orders like these should be tion, and an Argentinean company, INVAP, complied with except under exceptional cir- which is contracted to construct, with its cumstances. We are very dubious about Australian partners, our replacement reactor whether this rationale as put by the govern- at Lucas Heights. It is a $300 million con- ment is adequate in a matter as important as tract. It is the largest capital project that this this. It is worth looking at the list in the No- government have undertaken in the scientific tice Paper on page 23 onwards that lists all field at the moment. It is a major infrastruc- the orders for production of documents still ture project for this government. It involves a current from previous parliaments. They go very, very significant research exercise by right back to 1995. There are about 14 or 15 this country. different areas where, basically, those orders Senator Troeth—And important. have not been complied with. Then we have ones like this where probably in a technical Senator CARR—A very important re- sense it would be said it is complied with, search exercise. There are serious questions, but the amount of loopholes and exemptions however, about whether or not this is the that the government has given to itself means appropriate way to spend the money. Serious that—at least as I heard the minister’s state- questions are being raised in the scientific ment—it has fairly much gutted the whole community about whether or not it is appro- intent of the orders made by the Senate. priate to invest this level of expenditure in this particular project. There are real safety A matter of concern to all senators in this concerns about waste disposal. place should be the principle, the powers and the responsibilities of this Senate and this However, putting all of that aside, there parliament in representing the people and are real worries about the capacity of this representing legitimate and serious public company to fulfil its contractual obligations. concerns. It is a matter of concern in relation Those concerns have been expressed in a to this issue, which is of major concern par- number of places. I expressed those concerns ticularly to the residents of Sydney where the with a question in this place about the loan of reactor is planned to be but also to those of some $10.5 million that the bankrupt gov- us around the country who are concerned ernment of Argentina is extending to this about further expansion of the nuclear in- state owned company in Argentina. I was dustry. It is a concern, and given that one of told that as far as the government is con- the two orders was generated by the Demo- cerned this had now been confirmed. What crats, by Senator Stott Despoja, it is one that really troubled me was that the government we will continue to pursue. has said repeatedly that it is constantly monitoring the implementation of this con- Senator CARR (Victoria) (5.53 p.m.)—I tract. In fact, as the terms of the return to seek leave to take note of the statement by order point out, the Minister for Science, Mr the government in response to the return to Peter McGauran, said, ‘We are constantly order that I have raised in regard to the Lucas monitoring the situation, through our ambas- Heights reactor. sador specifically. We are alert to any flow- Leave granted. on effects from the difficulties in the Argen- Senator CARR—I move: tinean economy, but INVAP is insulated to all intents and purposes from these prob- That the Senate take note of the statement made by Senator Troeth. lems.’ The government has said repeatedly that there was no financial support being I am concerned—I think that would be extended by the Argentinean government to somewhat of an understatement—at the gov- this contractor. We now discover that that is ernment’s response. The opposition have simply not true. The Argentinean budget sought documents relating to the govern- papers on 1 March this year indicated that a ment’s claim that they are constantly moni- loan had been extended by the Argentinean toring the implementation of a contract en- government to this contractor. When I put Tuesday, 19 March 2002 SENATE 971 those facts together—the government saying number of real concerns that are being ex- that it is constantly monitoring the situation pressed about the nature of this contract. and that there is no support from the Argen- It does not end there. What we are now tinean government—and we discover that discovering is that the Rio Negro state gov- there is support, we have to ask ourselves: ernment in Argentina is pressing the national how effective has the monitoring process, the government, in regard to a company that due diligence process, been in regard to this they control, about the legal process around contract? I would say on the evidence, since this contract, particularly the issue of bring- we now know that the project manager in- ing the nuclear waste back from this plant to volved with the construction of the new re- Argentina. I understand that this is quite a actor did not know about the loan, and fur- significant matter, given that the French have thermore that Mr John Loy, the Chief Ex- pulled out of the arrangements entered into ecutive Officer of the Australian Radiation to reprocess the nuclear waste from this par- Protection and Nuclear Safety Agency, did ticular site. That seems to me to be a signifi- not know about this loan, and that this par- cant matter in relation to this contract be- ticular contract is the subject of quite exten- cause, as I understand it, the contract was sive investigation by ARPANSA in regard to actually signed in Argentina, which makes the licence to proceed, these are significant the matter a question of Argentinian law, not events. Australian law. If I am right about that, then I When we put in a return to order, we hear think a whole series of other matters flow from the government, ‘There are no docu- from that. The government refuses to provide ments. We’ve got no idea what is going on.’ I information, which I think is quite basic and find that an extraordinary matter. That is it is reasonable to ask for, about the moni- what troubles me. There is this issue, as I toring process and about all the officers we say, about the appropriateness of the invest- are supposed to have in Argentina keeping ment in this particular site, but when we dis- an eye on the situation, who do not seem to cover that there is such a shoddy approach to know what is in the Argentinian budget on a the contract compliance issues then I have matter of such significance to Australia. real cause for concern. I am not satisfied Now we have other issues of concern with with the government’s response that we can- this contract. You say there are no significant not have access to the documents that we do technical changes to the contract. How have because it is in the national interest that would we know? Serious rumours are being this parliament not be told. A lot of the con- spread about significant changes to the tech- cerns about the contract could be clarified if nical specifications of the contract. You are the government took the parliament and the denying them flatly: ‘That is not true.’ You people of this country into its confidence and did not know about the $10.5 million loan discussed the terms of that contract and ta- from a bankrupt government to a struggling bled the contract. There is no commercial-in- company that is supposed to be building this confidence in this issue. We have a monop- new facility, so how can we accept your as- oly provider in regard to the reactor. There is surances that there are no significant techni- only one in the country. There can be no cal changes to the terms of the contract it- competition to it. The issue that concerns me self? Remember, the basic question about here is about whether or not the tender proc- this issue, in terms of research capacity, was ess was appropriate or was effective in pro- that this facility was going to do new and ducing the best result. That is the issue that wonderful things. What if it emerges that it is now comes to the fore. We can only presume not able to do that? that the government’s reluctance to deal squarely with these issues stems from its I think there are some significant issues internal administrative failure to produce an and I am not satisfied with the parliamentary appropriate response in terms of the con- secretary’s answer today. Frankly, these are struction of this reactor. That is the suspicion matters that will be pursued further. We I am left with. What has it got to hide is the would like to study the documents that the issue that comes to mind. It could clarify a minister is tabling today. I am deeply con- 972 SENATE Tuesday, 19 March 2002 cerned that the most significant issues are Small business employment, with par- being ignored in this cavalier way. We will ticular reference to: not be put off by this rebuff today; this mat- (a) the effect of government regulation on ter will be pursued. I will seek leave to con- employment in small business, specifi- tinue my remarks so that I have an opportu- cally including the areas of workplace nity to discuss this matter further after I have relations, taxation, superannuation, seen the documents the minister has tabled. I occupational health and safety, local understand that a statement was to be made government, planning and tenancy laws; straight after taking note of answers, and the (b) the special needs and circumstances of government has responded appropriately. It small businesses, and the key factors that would have been helpful to have been given have an effect on the capacity of small access to that statement and to have had businesses to employ more people; more opportunity to give a considered re- (c) the extent to which the complexity and sponse to the government’s statement today. duplication of regulation by Common- wealth, state and territory governments If I had more opportunity to study the state- inhibits growth or performance in the ment, I could add to what has been said to- small business sector; and day but, on the surface, this is a totally inap- (d) measures that would enhance the propriate response. I seek leave to continue capacity of small businesses to employ my remarks later. more people. Leave granted; debate adjourned. Senator Chris Evans to move on Thurs- PETITIONS day, 21 March 2002: The Clerk—A petition has been lodged That Health Insurance Determination HS/5/01, for presentation as follows: made under section 3C of the Health Insurance Act 1973 and published in the Commonwealth Telstra: Privatisation Gazette of 30 October 2001, be disallowed. To the honourable the President and the members Senator Robert Ray to move on the next of the Senate in Parliament assembled: day of sitting: The petition of the undersigned shows our con- cern that: That the following matter be referred to the Committee of Privileges: (1) the Howard-Anderson Government plans to fully privatise the Australian people’s 50.1 The desirability and efficacy of engaging percent share of Telstra as stated in the Gov- counsel to represent the Senate in court and other tribunal proceedings on ques- ernment’s own 2001 Budget papers; tions involving parliamentary privilege af- (2) a fully privatised Telstra will focus on profits fecting the Senate or senators. not people; and Senator Ian Campbell to move on the (3) services will suffer under a fully privatised next day of sitting: Telstra, particularly in outer metropolitan, ru- ral and regional Australia. That the following bill be introduced: A Bill for an Act to amend the Health Insurance Your petitioners request that the Senate oppose Commission Act 1973, and for related purposes. the Howard-Anderson Government’s plans to Health Insurance Commission Amendment Bill fully privatise Telstra. 2002. by Senator Hogg (from 109 citizens) Senator Ian Campbell to move on the Petition received. next day of sitting: NOTICES That the following bill be introduced: A Bill Presentation for an Act to amend legislation relating to health, and for related purposes. Health Legislation Senator George Campbell to move on Amendment (Private Health Industry Measures) the next day of sitting: Bill 2002. That the following matter be referred to the Senator Allison to move on the next day Employment, Workplace Relations and Education of sitting: References Committee for inquiry and report by 19 November 2002: That the Senate— Tuesday, 19 March 2002 SENATE 973

(a) notes that: That there be laid on the table, no later than (i) Sane Australia, a national charity 4 pm on Thursday, 21 March 2002, all documents helping people affected by mental used by Environment Australia as part of the illness, said in the week beginning 17 assessment under the Environment Protection and March 2002 that despite two national Biodiversity and Conservation Act of the mental health plans and a 30 per cent proposed Paradise Dam, including: increase in funding in the 1990s, there (a) a copy of the report, ‘Ecology and has been very little real progress in demographies of lungfish: Neoceratodus the care of people with mental illness, forsteri and general fish communities in (ii) many Australians are not receiving the Burnett River Queensland with effective treatment from public reference to the Impacts of Walla Weir mental health systems, often leading and future water infrastructure develop- to tragic situations, ments—Draft lungfish scientific report’ (Queensland DPI, SG Brooks & T Kind, (iii) there is no coherent Australia-wide 2001); and system of rehabilitation for people with a psychiatric disability, (b) a copy of the Queensland Treasury Department report, ‘Treasury comments (iv) there are few specialist programs to on economic viability of water allocation help those with a mental illness and scenarios for the Burnett Basin’ coexisting alcohol and drug problems, (Queensland Treasury Department, (v) family and other carers are not 2000). routinely provided with education and Senator Bartlett to move on the next day support, of sitting: (vi) Australia still has eight different Mental Health Acts not in harmony That the Migration Legislation Amendment with each other, and (Transitional Movement) Bill 2002 be referred to the Legal and Constitutional Legislation (vii) Australia spends only 5 per cent of its Committee for inquiry and report by 22 April health budget on psychiatric services 2002. while other Organisation for Economic Co-operation and Develop- Senator Kemp to move on the next day ment countries allocate closer to 10 of sitting: per cent; and That the Senate— (b) urges the Federal Government to take a (a) recognises the outstanding success of the national approach to seriously address Australian Winter Olympic and Para- these issues. lympic teams competing at the 2002 Salt Senator Ian Campbell to move on the Lake City Olympics and Paralympics; next day of sitting: (b) congratulates the Australian Winter That on Wednesday, 20 March 2002: Olympic and Paralympic teams for their outstanding effort in achieving the best (a) the hours of meeting shall be 9.30 am to ever result for Australian teams in these 6.30 pm and 7.30 pm to midnight; competitions; (b) the routine of business from 7.30 pm to (c) conveys, on behalf of all Australians, the 11.20 pm shall be government business nation’s pride and congratulations for the only; and performances of all athletes who (c) the question for the adjournment of the represented Australia at these games, Senate shall be proposed at 11.20 pm. particularly the outstanding perform- Senator Crowley to move on the next day ances of our medal winners; of sitting: (d) expresses thanks and gratitude to the Australian Olympic Committee, the That the Community Affairs References Australian Paralympic Committee and Committee be authorised to hold a public meeting the team support staff and others who during the sitting of the Senate on Thursday, have worked so hard to prepare 21 March 2002, from 3.30 pm, to take evidence Australia’s most successful Winter for the committee’s inquiry into nursing. Olympic and Paralympic teams to date; Senator Bartlett to move on the next day and of sitting: 974 SENATE Tuesday, 19 March 2002

(e) notes the role of the Commonwealth in Legislation Amendment (Transitional Movement) supporting the preparation of Australian Bill 2002, allowing it to be considered during this athletes for the Winter Olympic and period of sittings. Paralympic Games, through the I also table a statement of reasons justifying Australian Sports Commission and the the need for this bill to be considered during Australian Institute of Sport. these sittings and seek leave to have the Senator Cook to move on the next day of statement incorporated in Hansard. sitting: Leave granted. That the Senate— The statement read as follows— (a) notes: MIGRATION LEGISLATION (i) that Princess Margaret Hospital is the AMENDMENT (TRANSITIONAL only major children’s hospital in MOVEMENT) BILL 2002 Australia without a magnetic resonance imaging (MRI) machine, Purpose of the Bill (ii) the unsatisfactory situation in which The Bill is to allow for the lawful transfer of cer- 200 Western Australian children are tain non-citizen asylum seekers into and out of awaiting MRI appointments at Australia, if necessary in exceptional circum- another public hospital without stances. These non-citizens will have previously specialist services for children, attempted to enter Australia unlawfully and been removed to a third country for assessment of their (iii) that the Western Australian Govern- status. ment has agreed to fund the purchase of an MRI machine at a cost of $2 The Bill also ensures that these non-citizens have million, provided the Commonwealth a designated status in Australia so that they can- provides a Medicare licence for it, not apply for any visa except at the discretion of the Minister, nor institute legal proceedings in (iv) the refusal of the Minister for Health relation to their status. and Ageing (Senator Patterson) to provide a Medicare licence for an Reasons for Urgency MRI machine at Princess Margaret The Bill is an integral part of the Government’s Hospital, and strategy to preserve the integrity of Australia’s (v) that the Commonwealth has provided borders and the migration and humanitarian pro- four Medicare licences for MRI grams. machines to private health providers The amendments deal with matters that are ur- in Western Australia and only two to gent, as some of these non-citizens may be re- public hospitals, none of which quired to enter Australia in exceptional circum- provide specialist paediatric services; stances, including to receive urgent medical and treatment or to provide evidence in people smug- (b) calls on the Minister to alleviate the gling prosecutions. chronic need for the provision of an MRI (Circulated by authority of the Minister for Im- machine at Princess Margaret Hospital migration and Multicultural and Indigenous Af- by immediately providing a Medicare fairs, the Hon Philip Ruddock MP) licence for such an MRI machine. Senator TROETH (Victoria—Parlia- Senator Brown to move on the next day mentary Secretary to the Minister for Agri- of sitting: culture, Fisheries and Forestry) (6.05 p.m.)— That the Senate does not require media I give notice that, on the next day of sitting, I representatives in the Senate gallery, or senators’ shall move: advisers, to wear coats. That the provisions of paragraphs (5) to (7) of Senator TROETH (Victoria—Parlia- standing order 111 not apply to the following mentary Secretary to the Minister for Agri- bills, allowing them to be considered during this culture, Fisheries and Forestry) (6.04 p.m.)— period of sittings: I give notice that, on the next day of sitting, I Appropriation (Parliamentary Departments) shall move: Bill (No. 2) 2001-2002 That the provisions of paragraphs (5) to (7) of Appropriation Bill (No. 3) 2001-2002 standing order 111 not apply to the Migration Appropriation Bill (No. 4) 2001-2002 Tuesday, 19 March 2002 SENATE 975

Financial Corporations (Transfer of Assets FINANCIAL CORPORATIONS (TRANSFER and Liabilities) Amendment Bill 2002 OF ASSETS AND LIABILITIES) AMEND- Quarantine Amendment Bill 2002 MENT BILL 2002 Taxation Laws Amendment (Baby Bonus) Purpose of the Bill Bill 2002 To extend the date for a foreign subsidiary to be Taxation Laws Amendment Bill (No. 1) 2002 eligible to transfer to a branch status and to trans- Therapeutic Goods Amendment Bill (No. 1) fer its assets and liabilities without incurring a tax 2002 liability Therapeutic Goods (Charges) Amendment Reasons for Urgency Bill 2002 The banking industry (including the International Therapeutic Goods Amendment (Medical Banks and Securities Association of Australia Devices) Bill 2002 (IBSA) and Australian Banking Association Veterans’ Entitlements Amendment (Gold (ABA) members) are anxious for the Bill to be Card Extension) Bill 2002 passed. Passage of the amendments would re- Veterans’ Affairs Legislation Amendment move any doubt that the change from foreign (Further Budget 2000 and Other Measures) bank subsidiary to foreign bank branch status Bill 2002. would not incur a tax liability for the associated banking operations in Australia. If this amend- I also table statements of reasons justifying ment is not passed by the critical date a case the need for these bills to be considered could be mounted for the foreign bank to be liable during these sittings and seek leave to have for tax obligations when changing status. the statements incorporated in Hansard. This amendment was to be included in the Finan- Leave granted. cial Sector Legislation Amendment Bill 2001 to The statements read as follows— be introduced in August last year. Due to the election the Bill was not passed. APPROPRIATION (PARLIAMENTARY DEPARTMENTS) BILL (No. 2) 2001-2002 (Circulated by authority of the Parliamentary Secretary to the Treasurer, Senator the Hon Ian APPROPRIATION BILL (No. 3) 2001-2002 Campbell) APPROPRIATION BILL (No. 4) 2001-2002 ————— Purpose of the Bills QUARANTINE AMENDMENT BILL 2002 The Appropriation Bills request legislative authority for additional expenses to be incurred in Purpose of the Bill 2001-2002. Passage of the Bills in the Autumn The Bill will introduce a complementary range of sittings will allow funds to be made available to measures intended to improve Australia’s capac- agencies, thereby ensuring the continuity of Gov- ity to prevent or control and eradicate an outbreak ernment activities as the financial year draws to a of an exotic disease such as foot and mouth dis- close. ease such as that which occurred in the United Reasons for Urgency Kingdom. Any outbreak in Australia would be severely economically and socially debilitating, The bulk of funding for Government programmes particularly in terms of our exports of beef, sheep in 2001-2002 was provided by the Appropriation and dairy products, and Australia’s reliance on the Acts passed in the Budget Sittings. These Bills tourism industry. In the event of an outbreak, seek authority for expenditure on activities which appropriate response measures would be vital to require additional funding and new activities limit the economic and social impacts. Reducing agreed to by the Government since the last the extent of the disease and the length of an out- Budget. break would result in corresponding reductions in Unless new expenditure authority is in place in a impacts on the economy. timely manner, some activities of Government agencies, some activities administered on behalf In particular, the Bill will: of the Government and some activities of the • enhance Australia’s national emergency Parliamentary Departments may not have suffi- powers by allowing the Minister for Agri- cient funds to continue to the end of 2001-2002 culture, Fisheries and Forestry, upon procla- and new activities will not commence. mation by the Governor-General to authorise (Circulated by authority of the Minister for Fi- certain State and Territory officials to under- nance and Administration) take appropriate measures in response to an ————— 976 SENATE Tuesday, 19 March 2002

emergency animal disease outbreak, such as year period. Low income taxpayers will be guar- foot and mouth disease; and anteed a minimum annual credit of $500. • deter commercial smuggling of quarantine Reasons for Urgency risk material by introducing a new offence The Government’s election commitment was that with a maximum penalty of 10 years impris- payment of the Baby Bonus would commence on onment and/or a fine of $1,000,000.00. assessment for the 2002 year of income. It is Reasons for Urgency therefore important that the legislation be in place National emergency measures. Animal production before 1 July 2002, so that issues about taxpay- and health issues are regarded as the responsibil- ers’ eligibility for the Baby Bonus and adminis- ity of the States and Territories and it is predomi- trative issues surrounding its delivery can be re- nantly the State and Territory animal health acts solved before then. (with support from emergency management leg- (Circulated by authority of the Treasurer) islation) which will be utilised in the event of an ————— emergency animal disease outbreak. States and Territories are reasonably well prepared in terms TAXATION LAWS AMENDMENT BILL of legislative powers, but there are some gaps in (No. 1) 2002 their acts that may hamper critical response Purpose of the Bill measures in the event of a major animal disease The purpose of this Bill is to amend various parts emergency such as foot and mouth disease. of the Income Tax Assessment Act 1936 and the Amendments to the Quarantine Act 1908 would Income Tax Assessment Act 1997 which have allow for the executive heads of national response particular impact on the plantation forestry sector. agencies, which include State and Territory agen- The amendments introduce a new ‘12 month rule’ cies, to take appropriate actions when authorised allowing an immediate deduction for certain pre- by the Minister for Agriculture, Fisheries and paid expenditure when invested in a plantation Forestry to do so. forestry managed investment agreement. If these powers are not able to be transferred to The Bill also allows the Commissioner to exer- State and Territory officials in the event of a ma- cise his discretion in relation to the non- jor disease outbreak, any response to an outbreak commercial loss rules past a point in time at would be found wanting. which a profit was made or one of the objective New offence of commercial smuggling. This pro- tests was passed, if this is consistent with the na- posed new offence is the Government’s response ture of the business activity. to those cases where the penalties imposed by the Reasons for Urgency courts have not reflected the strong community These measures were announced on 2 October view that illegal importations of items of quaran- 2001 and since this time industry has had an ex- tine concern for commercial gain should be pun- pectation that they will apply in the current finan- ished severely. (Our Future Action Plan: Austra- cial year. However, new investment in the indus- lia’s Rural Industries—Growing Stronger). Given try will be limited in the absence of legislative the disastrous impact of the foot and mouth dis- certainty and sufficient planning and setup time. ease outbreak in the United Kingdom, it is im- Therefore, the Bill needs to be passed as soon as portant that a strong message be given to potential possible. offenders about the serious consequences of such behaviour. (Circulated by authority of the Treasurer) (Circulated by authority of the Minister for Agri- ————— culture, Fisheries and Forestry) THERAPEUTIC GOODS AMENDMENT ————— BILL (No. 1) 2002 TAXATION LAWS AMENDMENT (BABY Purpose of the Bill BONUS) BILL 2002 The Bill will amend the Therapeutic Goods Act Purpose of the Bill 1989 to give the Minister power to allow certain essential unregistered therapeutic goods (such as The Bill implements the Government’s election antibiotics, vaccines and chemical antidotes) to be commitment to introduce a First Child Tax Re- imported and supplied in Australia in the event of fund or ‘Baby Bonus’. It will provide a parent a bioterrorism incident. (primary carer) with a capped refund of tax paid on income earned in the year prior to the birth of Reasons for Urgency the first child. The repayment will occur over a 5 The recent bioterrorist activities in the United States have highlighted the need world-wide for Tuesday, 19 March 2002 SENATE 977 preparedness for chemical, biological and radio- of overseas manufacturers to tangle with Austra- logical disasters. The nature of these terrorist lia’s unique red tape. Australian manufacturers threats is such that some of the recommended are frustrated by the need to meet different regu- treatments may not be registered in Australia but latory requirements in other countries. may need to be supplied with minimum delay. The alignment of regulatory requirements will The creation of a national emergency capacity for benefit Australian industry with faster and more therapeutic goods is consistent with the Com- efficient access to European markets and will monwealth’s national responsibility in coordinat- benefit the Australian community with faster ac- ing public health protection. cess to new medical devices from the European The Government places a high priority on the Union. Both industry and consumer groups con- need for such measures to meet emerging and sider that there are significant advantages in the unknown threats. new regulatory system and stakeholders are dis- appointed at the delay. There is now a strong ex- (Circulated by authority of the Minister for pectation that the new system will be imple- Health and Ageing) mented early in 2002. In order to meet these ex- ————— pectations and remain relevant in the international THERAPEUTIC GOODS (CHARGES) market place, legislation to harmonise medical AMENDMENT BILL 2002 device regulation must be passed as a matter of priority. THERAPEUTIC GOODS AMENDMENT (MEDICAL DEVICES) BILL 2002 (Circulated by authority of the Minister for Health and Ageing) Purpose of the Bills ————— The Bills will amend the Therapeutic Goods Act 1989 and the Therapeutic Goods (Charges) Act VETERANS’ ENTITLEMENTS 1989 to harmonise Australia’s medical device AMENDMENT (GOLD CARD EXTENSION) regulatory requirements with international best BILL 2002 practice based on the principles of the Global This Bill will give effect to an election commit- Harmonisation Task Force and drawing on the ment to extend eligibility for a Gold Card to European Union scheme, and will allow sponsors Australian veterans who are aged 70 years or over to electronically lodge applications for entry of and who have post World War II qualifying serv- medical devices on the Australian Register of ice. Therapeutic Goods. The amendments will allow Reasons for Urgency better protection of public health while facilitat- ing access to new technologies. This measure is beneficial. It is estimated that approximately 4,000 veterans will be eligible for Reasons for Urgency the Gold Card in the first year. Introduction and On 24 June 1998 Australia signed a Mutual Rec- passage of the Bill in the Autumn sittings, in ad- ognition Agreement with the European Union vance of the May 2002 Federal Budget, will pro- which paved the way for harmonisation of regu- vide sufficient lead time for all anticipated eligi- lation. Since then significant consultation with ble veterans to apply for and receive their Gold industry and consumer groups has taken place. Cards by 1 July 2002. Introduction and passage of On 17 September 1999 the Government an- the Bill in the Winter sittings is likely to leave nounced its decision to align Australia’s medical insufficient lead time to provide Gold Cards to all device regulatory requirements with those of the anticipated eligible veterans by the commence- European Union. Amending legislation was in- ment date of 1 July 2002. troduced into Parliament on 29 March 2001 but (Circulated by the authority of the Minister for did not pass both Houses prior to Parliament’s Veterans’ Affairs) prorogation. ————— The decision to harmonise medical device regu- lation responded to calls from consumer groups, VETERANS’ AFFAIRS LEGISLATION industry and government agencies to remove AMENDMENT (FURTHER BUDGET 2000 regulatory duplication in the medical device in- AND OTHER MEASURES) BILL 2002 dustry and improve the quality of medical device Purpose of the Bill regulation in Australia. Australia’s current regu- The Bill will give effect to a number of 2000-01 latory requirements for medical devices are Budget measures and one other measure in the unique and are considered a significant barrier to Veterans’ Affairs portfolio. The Budget measures trade. Consumers are missing out on access to are beneficial to veterans and their families. emerging medical devices through the reluctance 978 SENATE Tuesday, 19 March 2002

The Budget measures will: Despoja) for today, relating to the refer- • provide for more generous treatment of the ence of matters to the Standing Committee effect of periodic compensation payments on of Privileges, postponed till 20 March partner pensions; 2002. • provide for the direct recovery of certain General business notice of motion no. 35 compensation debts from the compensation standing in the name of Senator Greig for payers and insurers; today, relating to the jurisdiction for set- • tlement of property issues for de facto cou- exclude financial assets determined to be ples, postponed till 20 March 2002. unrealisable under the hardship rules from the deeming provisions; and General business notice of motion no. 10 • standing in the name of Senator Murphy streamline the operation of the income for today, relating to the establishment of a streams rules. select committee on forestry and plantation The other measure will align the Veterans’ Affairs matters, postponed till 20 March 2002. rounding rules with those of social security law. Business of the Senate notice of motion no. Reasons for Urgency 2 standing in the name of the Chair of the The Budget measures are beneficial and have a Economics References Committee (Sena- retrospective commencement date of 20 Septem- tor Collins) for today, relating to the refer- ber 2001. These measures cannot be implemented ence of a matter to the committee, post- until the Bill receives Royal Assent. Early pas- poned till 20 March 2002. sage of the Bill will directly benefit veterans and General business notice of motion no. 31 their partners. standing in the name of Senator Allison for (Circulated by authority of the Minister for Veter- today, proposing an order for the produc- ans’ Affairs) tion of documents by the Minister for De- fence (Senator Hill), postponed till 20 Postponement March 2002. Items of business were postponed as fol- LEAVE OF ABSENCE lows: Senator BARTLETT (Queensland) (6.07 Business of the Senate notice of motion no. p.m.)—by leave—I move: 1 standing in the name of Senator Bartlett for today, relating to the reference of mat- That leave of absence be granted to Senator ters to the Legal and Constitutional Refer- Stott Despoja for the period 19 March to 21 ences Committee, postponed till 21 March March 2002, on account of ill health. 2002. Question agreed to. General business notice of motion no. 1 NATIONAL LIBRARY OF AUSTRALIA: standing in the name of the Leader of the TREASURES FROM THE WORLD’S Australian Democrats (Senator Stott GREAT LIBRARIES EXHIBITION Despoja) for today, relating to a request to the Inspector-General of Intelligence and Senator TIERNEY (New South Wales) Security to investigate certain actions in (6.08 p.m.)—I move: relation to the MV Tampa, postponed till That the Senate— 14 May 2002. (a) recognises the outstanding triumph of General business notice of motion no. 24 the National Library of Australia’s standing in the name of Senator Bourne for ‘Treasures from the World’s Great today, relating to measures to resolve ten- Libraries’ exhibition, which saw sions between India and Pakistan, post- 161 exhibits from 24 countries fascinate poned till 20 March 2002. and intrigue the nation; General business notice of motion no. 14 (b) congratulates Library Director General, standing in the name of Senator Harris for Jan Fullerton, and Director of today, relating to the establishment of a Exhibitions, Nat Williams, on the select committee on the Lindeberg griev- exhibition and its outstanding success; ance, postponed till 20 March 2002. (c) appreciates the good fortune Australians Business of the Senate notice of motion no. had to experience exhibits first hand, 3 standing in the name of the Leader of the which included the first ever book Australian Democrats (Senator Stott published in English, part of Martin Tuesday, 19 March 2002 SENATE 979

Luther King Jnr’s ‘I have a Dream’ Workforce Aboriginal Corporation, speech, one of Beethoven’s music Launceston, Tasmania—Training Award manuscripts, and letters from Florence Elimatta Housing Aboriginal Corporation, Nightingale, John Keats, and Groucho Coonamble, New South Wales—Community Marx; Development Award (d) applauds the National Library of Ngunawal Aboriginal Corporation, Can- Australia for attracting a record berra—Employment Award 115 081 people to the exhibition; and East Gippsland ACDEP Co-op Ltd, Bairns- (e) encourages the National Library of dale, Victoria—Business Development Australia to organise similarly Award innovative exhibitions in the future. Barriekneal Housing and Community Ltd, Question agreed to. Lightning Ridge, New South Wales—Busi- BASSLINK: TRANSMISSION LINES ness Development Award Senator BROWN (Tasmania) (6.08 Yarnteen Aboriginal and Torres Strait Island- p.m.)—I move: ers Corporation, Newcastle, New South Wales—Innovation Award That the Senate considers that, if Basslink pro- ceeds, the associated power lines in Victoria Kurrachee Co-operative Society Ltd, Coraki, should be placed underground. New South Wales—Cultural Maintenance Award Question negatived. Lombadina Aboriginal Corporation, Lomba- Senator Brown—I would like it recorded dina, Western Australia—Capacity Building that only I and Senator Bartlett supported Award that motion. Glen Oliver, Tangentyere CDEP, Alice The DEPUTY PRESIDENT—There was Springs—Individual Participant Award, Male only one voice in support of that motion, Rosemary Lennon, Bungala CDEP, Port Senator Brown. That is noted. Augusta—Individual Participant Award, Fe- Senator Brown—I note that I was the male only voice in support of that motion. Wunan Regional Council, Kununurra, West- ern Australia—Regional Council Award for COMMUNITY DEVELOPMENT increased training opportunities; and EMPLOYMENT PROJECTS (c) recognises that unemployment is an ACHIEVEMENT AWARDS inter-generational problem in most Senator BARTLETT (Queensland) (6.09 Indigenous communities and that CDEP p.m.)—I wish to record that I was in favour projects play a key role in restoring pride of the last motion but did not want to call for in Indigenous communities and a division. On behalf of Senator Ridgeway, I individuals as they see the tangible move: results and benefits of their work. That the Senate— Question agreed to. (a) recognises the Community Development HUMAN RIGHTS: BURMA Employment Projects (CDEP) Achieve- Senator BOURNE (New South Wales) ment Awards as highlighting individual (6.10 p.m.)—I move: and organisational achievement in a scheme which now covers more than That the Senate— 36 000 Indigenous people working in (a) notes that: urban, rural and remote locations on a (i) 13 March 2002 was Burma’s 14th diverse range of projects and enterprises Human Rights Day and marks the right across Australia; killing of student, Phone Maw, in (b) congratulates the following recipients of 1988, and National CDEP Achievement Awards for (ii) earlier in March 2002, the United the outstanding contributions they have States’ State Department released its made to their communities and to the 2001 report on human rights, in nation: which it was noted that Burma’s record remains extremely poor and 980 SENATE Tuesday, 19 March 2002

includes disappearances, forced COMMITTEES labour, torture, forced relocations, Membership arbitrary detention, and severe restrictions on freedom of political The ACTING DEPUTY PRESIDENT expression and religion; and (Senator Lightfoot)—The President has (b) calls upon the State Peace and received letters from party leaders seeking Development Council to: appointments and variations to the member- (i) take immediate steps to end violations ship of various committees. of human rights, and Senator ALSTON (Victoria—Minister (ii) restore the rule of law in Burma. for Communications, Information Technol- Question agreed to. ogy and the Arts) (6.13 p.m.)—by leave—I move: DOCUMENTS Auditor-General’s Reports That senators be discharged from and ap- pointed to committees as follows: Report No. 37 of 2001-02 The DEPUTY PRESIDENT (6.10 Economics Legislation Committee–– p.m.)—Pursuant to standing order 166, I pre- Substitute member: Senator Allison to sent the following report of the Auditor- replace Senator Murray, for the consid- General: Report No. 37 of 2001-02—Per- eration of the Taxation Laws Amend- formance Audit—Purchase of Hospital ment (Superannuation) Bill (No. 1) Services from State Governments: Follow-up 2002 and a related bill audit—Department of Veterans’ Affairs. This Employment, Workplace Relations and was presented to the Temporary Chair of Education Legislation Committee–– Committees, Senator Hogg, on 15 March 2002. In accordance with the terms of the Appointed: Senator Barnett standing order the publication was author- Discharged: Senator Brandis ised. Employment, Workplace Relations and Auditor-General’s Reports Education References Committee–– Report No. 38 of 2001-02 Appointed: Senator Barnett The DEPUTY PRESIDENT (6.11 Discharged: Senator Brandis p.m.)—In accordance with the provisions of the Auditor-General’s Act 1997, I present the House—Standing Committee–– following report of the Auditor-General: Re- Appointed: Senator Colbeck port No. 38 of 2001-02—Performance Discharged: Senator Brandis Audit—Management of Australian Defence Force deployments to East Timor—Depart- National Capital and External Territo- ment of Defence. ries—Joint Standing Committee–– BUDGET Appointed: Senator Colbeck Consideration by Legislation Committees Discharged: Senator Watson Report Rural and Regional Affairs and Trans- Senator CALVERT (Tasmania) (6.11 port Legislation Committee–– p.m.)—Pursuant to order and at the request Appointed: Senator Colbeck from 25 of the chair of the Economics Legislation March 2002 Committee, Senator Brandis, I present the report in respect of the 2001-02 additional Discharged: Senator McGauran from 25 estimates, together with the Hansard record March 2002 of the committees proceedings. Senators’ Interests—Standing Commit- Ordered that the report be printed. tee–– Appointed: Senator Barnett Discharged: Senator Brandis Tuesday, 19 March 2002 SENATE 981

Superannuation—Select Committee–– believe that the program should be equita- Appointed: Senators Buckland, Hogg ble—but it is not. It provides funds on the and Sherry. same per capita basis for rich and poor schools alike. Thirdly, we are concerned that Question agreed to. the legislation should contain provisions for STATES GRANTS (PRIMARY AND the review of the program after 12 months. SECONDARY EDUCATION Later on I will come back to the amendments ASSISTANCE) AMENDMENT BILL I will be moving. 2002 The bill takes us back, unfortunately, to Second Reading that controversial and deeply divisive debate, Debate resumed from 11 March, on mo- engendered by this government, over private tion by Senator Ian Campbell: schools funding which raged throughout the That this bill be now read a second time. last parliament and since the government announced that it was moving to this new Senator CARR (Victoria) (6.13 p.m.)—I socioeconomic status method of allocating have a number of amendments to this bill money. Nobody, least of all the opposition, which are standing in my name and which wants to return to the bitterness of that de- have been circulated in this chamber for con- bate, which has wrought such damage to the sideration. The States Grants (Primary and body politic since that time. We are firmly of Secondary Education Assistance) Amend- the view that the government has engineered ment Bill 2002 seeks to provide an increased the debate and encouraged widespread con- allocation of establishment grants for newly cern within the community about the gov- established non-government schools. It plans ernment’s schools funding policy by throw- to do it in a new way: by specifying a for- ing millions and millions of dollars in hand- mula based method, based on enrolments, for outs to the wealthiest private schools in this the channelling of funds from this program country. The government has been about to eligible schools. As a consequence, the encouraging division and greed. funding for this particular program will be open ended. The opposition have never had We want to put before this chamber our any intention to deny funding under this pro- concerns about the government’s clear inten- gram to genuinely deserving new non- tion when it comes to schools. By its actions, government schools. However, we are, and this government has shifted public resources have been for some time, gravely concerned into private schools. A senior official of the about several aspects of the establishment Department of Education, Science and grants program as introduced and imple- Training told the Senate estimates committee mented by this government. just a little while ago: This bill in various forms was introduced One of the objectives of the new regime was in twice in the last parliament, and of course fact to increase private investment in education. now it is before us a third time. We were Of course what has happened is that there concerned, and remain concerned, about this has been an increase in public investment in bill. That is why, in the government’s mind, a particular brand of school—the elite, the it was rejected twice. Because of our con- wealthy, the privileged schools. If this is an cerns, the government withdrew this bill accurate depiction of the government’s in- twice in the last parliament. It was due to the tentions, as stated by the departmental offi- government’s actions that this bill did not cials, it seems that the government is quite become law in this country. The government opposed to the concepts that we have tradi- chose not to proceed with it. Our concerns tionally known in this country about the role remain. Firstly, we are concerned about the of the government with regard to the provi- administration of the program, about the eli- sion of assistance for education. Our goal gibility of the schools to receive the funding ought to be the provision of free, universally and about their accountability for the use of available public education but we also extra public money supplied to them by this should be providing an equality of opportu- Commonwealth government. Secondly, we nity for all children in this country. That 982 SENATE Tuesday, 19 March 2002 clearly is not happening under this govern- poses reasonable changes to this legisla- ment. tion—consistent with the principles of We are particularly concerned that this genuine need, Reddam House would not be particular program hands out money in an eligible for an establishment grant. undifferentiated manner—at a flat rate—to The Reddam House school is associated new schools, both rich and poor. It has no with three companies that are registered on means of assisting genuinely needy schools the ASIC register: Reddam House Ltd, Red- which require extra help. I am deeply con- dam House Pty Ltd and Reddam House cerned about the way in which there are ex- Holdings Pty Ltd. None of these companies traordinary numbers of small schools mush- is listed as not for profit. Not-for-profit rooming over the country that are not able to schools are, of course, not eligible for Com- provide a proper, broadly based, high quality monwealth recurrent establishment grants education for the children who participate in assistance. During the last estimates hearing them. The government is seeking to provide a detailed discussion took place about these encouragement for the start-up of new pri- matters in relation to another school, Mur- vate schools—any new private schools— doch College. There was good reason for irrespective of the financial or the educa- surmising—the department’s assurances tional cost to the Commonwealth budget. notwithstanding—that Murdoch College is I have a range of examples to put before essentially a for-profit enterprise. It is oper- this chamber, as I did through the Senate ated by Murdoch University in Perth in con- estimates. There has, of course, been exten- junction with a private company, Alexander sive discussion on previous occasions, but I Education Group. It is clearly associated would like to take one example which was with the Murdoch University’s commercial recently described by a Channel 9 journalist operations. who said: I believe the government should take a It may look like an upmarket hotel with its so- long, hard look at the way in which its phisticated reception area, marble bathrooms and schools funding policies are being adminis- ultra modern décor but it’s actually a school with tered by this department. I believe there are a difference. good grounds for thinking that for-profit There’s the student café, the radio station and the schools are in receipt of financial subsi- relaxed uniform policy ... not to mention the early dies—both recurrent subsidies, which are morning surfing and golf lessons. sizeable and ongoing, and establishment This school is known as Reddam House and grant funds. If that is the case, then the the fees are $11,500 per year. The students Commonwealth is in breach of its own have a broad based education. They learn guidelines and regulations. This is the sort of table etiquette and how to write a cheque. thing that concerns me about this type of They learn how to get on in the world. There open-ended legislation. This is another ex- is a music centre, a ballet dancing studio and ample where the guidelines appear to be a state-of-the-art computer centre. On its web openly flaunted. site, this school describes itself as being ‘set We had a detailed debate about establish- in the beautiful surroundings of the world ment grants in the last parliament, and we famous Bondi Beach’. raised a number of examples of the so-called I am not saying that people are not entitled newly established registered schools in re- to send their children to schools of that de- ceipt of establishment grants which are in scription—in fact, all schools should have fact nothing more than new campuses of ex- that capacity. What concerns me is whether isting schools. They are clearly outside the or not the Commonwealth should be pro- guidelines. These schools are registered, viding additional resources to a school like technically, by the states. That registration that particular one, which has an SES score process is not set up for the purposes of ad- of 122 and charges $11,500 per year per ministering Commonwealth programs, yet child. It seems to me that under any reason- this Commonwealth government has clung to able assessment—and the Labor Party pro- the absurd notion—which is quite contrary to Tuesday, 19 March 2002 SENATE 983 all the evidence and all reasonable public and poor, is wrong. There is a need for a re- administration—that the states are register- view process because so many people are ing schools in an appropriate way: that the now using this device and getting access to schools are established under state govern- Commonwealth money as a business incen- ment legislation and are therefore automati- tive scheme, not as an education program. It cally entitled to access this money. troubles me that the Commonwealth De- For instance, there was a large school—a partment of Education, Science and Training school with 837 students—in Perth which seems so incapable of standing up to the task was not a new school but the result of a re- of protecting the Commonwealth’s interests structuring of the existing multicampus and the public’s interests in the administra- school, and this school was deemed eligible tion of not just this program but what goes for an establishment grant. There was an- beyond it: a $24 billion schools program. other one in Geelong in Victoria which es- There is a need for this matter to be dis- sentially did the same thing: a Christian col- cussed properly and in detail. We have an lege at Highton split its year 10 to year 12 to opportunity tonight to hear speeches in the a new campus adjacent to the existing cam- second reading debate and an opportunity to pus. They registered that new campus as a consider these amendments in detail tomor- separate school and, of course, automatically row. I will be arguing those cases fully and I got an establishment grant. will expect answers from departmental offi- Another example is the Sommerville cials in the committee stage on a number of Baptist College in Perth. It has not appeared quite serious issues that concern me. on the list of eligible schools even though it The Minister for Education, Science and was newly registered in 2001. This school Training, Dr Nelson, in a low-rent, scurrilous has been created as a result of a split. The manner, in a dorothy dixer today raised my Winthrop Baptist College is right next door; concerns about this bill. This followed an the college was split into two smaller schools invitation by this government to a briefing on the same site. Why has the department not this morning—just this morning—on consid- seen fit to hand out an establishment grant to eration of a matter of this importance. We Sommerville College following this new have considered this bill three times now and fashion in the guidelines that are now in I get offered a briefing this morning. When I place in regard to so many other examples. If told him that I think it is probably too late in it was not new, why were the two other the process and that what we should be do- schools already mentioned deemed by the ing, if this government was serious about department to be new? education reform, was discussing the It strikes me that it is possible that the op- amendments, I find my remarks—which I position, which drew this to the attention of thought were part of a private conversa- the decision makers over the last couple of tion—distorted and misrepresented in the years, may well have drawn this anomaly to other chamber. the government’s attention. The problem This minister is essentially a lackey of the remains: why was the government enforcing Prime Minister—he is a doormat—and he the rules in such an inconsistent way? This makes Senator Alston look quite mild. He is legislation is in need of quite substantial not able to discuss those amendments be- renovation. As indicated by my colleague Ms cause the Prime Minister said that he is not Macklin in the other house, a series of allowed to. We should discuss the capacity of amendments are needed. My amendments this minister to actually do his job, and I will will seek to improve this legislation in terms be exploring that in some detail. This minis- of its stated purpose, the administrative pro- ter thinks he can play a game in this way: he cedures that underpin it, the accountability can say that our amendments are worthy of and transparency provisions and its lack of consideration and debate, then we find out equity. that he has been given orders by the Prime The indiscriminate targeting of funds to Minister and he is not allowed to discuss all new non-government schools, both rich them. He acts his part as the Prime Minis- 984 SENATE Tuesday, 19 March 2002 ter’s doormat. He then seeks to misrepresent We are not acknowledging the legitimacy conversations, made on his request to me, in of the SES measure in assessing need. We do the other chamber. He will find that there not endorse that SES formula as a satisfac- will be plenty of opportunity to discuss this tory measure. We say there needs to be con- Grants (Primary and Secondary Education sistency in the approach and the principle. In Assistance) Amendment Bill 2002 in detail the absence of a genuine, satisfactory, up-to- in this chamber. date method, we have to use the tools that Sitting suspended from 6.30 p.m. to are at hand. 7.30 p.m. I am very concerned that this bill is not Senator CARR—The opposition is con- able to meet the criteria of reasonable public cerned that the government’s schools pro- administration, of reasonable public policy in gram is not predicated on some of the most regard to the administration concerns that fundamental principles that we in this coun- have been expressed, the eligibility of try have come to accept as being the bedrock schools that are receiving moneys under this for education policy. We have argued in this program and the accountability provisions. country for 30 years that there ought to be We say that this program is not equitable. We equality of opportunity for all Australians. are, however, particularly concerned about What we see under this government is a the failure of the government and the Minis- policy that rewards the rich and the privi- ter for Education, Science and Training, leged, a policy that gives particular encour- Minister Nelson, to show political leader- agement to particular groups in our society ship. This minister has not demonstrated a that are already very well off. We are not genuine seeking of a constructive solution to satisfied that this government understands the disgraceful shemozzle that is this gov- the concept of equity; we are not satisfied ernment’s administrative arrangements in that the government appreciates that schools regard to these establishment grants. The that charge fees way above the average level minister said that he wanted to consider our of government expenditure per student in amendments properly. He made it very clear government schools—if you take the in a press statement on 20 February, when he AGSRC, the index that is used, which stands said that they would give consideration to at the moment at $5,378 for a primary school those amendments. What we now hear is that student and $7,101 for a secondary student— the Prime Minister will not let him. What a ought not receive establishment grant fund- doormat! (Time expired) ing. Senator ALLISON (Victoria) (7.34 Many schools are charging fees way in p.m.)—The States Grants (Primary and Sec- excess of those amounts of money. The op- ondary Education Assistance) Amendment position wants to see a sliding scale intro- Bill 2002 proposes to change the establish- duced to ensure that needy schools, those ment grant funding arrangements from a that serve the neediest school communities, special appropriation to a standing per capita receive a higher level of assistance than do appropriation. This will increase the amount the less needy. We argue that schools that of funding available for the establishment serve populations above the SES level grants program. should not receive the same degree of Com- The government argues that this change is monwealth assistance as those serving the needed in order to address the shortfall in the poorest members. To do this, we would ar- original estimates, which has meant that gue that the overall recurrent support for certain new non-government schools have non-government schools needs to be re- not been able to receive their full entitlement examined in that regard, and that in general for the 2001 program year. In other words, recurrent grants should be adjusted on the the government failed to properly estimate basis of need. That is why we say that the the demand for establishment grants in 2001 establishment grants as proposed in this bill and failed to make the changes to the 2000 do not meet the task. legislation, even though the shortfall was Tuesday, 19 March 2002 SENATE 985 known at the time. Because of this, it needs Educational Resource Allocation Committee to to amend the existing legislation. assess applications for funding for the establish- ment of new schools in each state and territory, This is now the third time this issue has and this committee: been dealt with in the Senate, and the Demo- crats’ position has not changed. If anything, (a) will comprise representatives of the we are even more concerned by this bill, be- Commonwealth Department of Educa- cause of the open-ended funding arrange- tion, Science and Training, government ments in it. At least with the previous bills and non-government school employing we knew how much additional money the authorities, parents and teacher unions; government was going to spend. The Demo- (b) shall advise the Minister on the funding crats do not support the government’s estab- of new schools, taking into considera- lishment grants program, which both the tion the following: government and the ALP created when they (i) the duplication of educational serv- supported the states grants bill at the end of ices in an area, the year 2000. (ii) the impact of the establishment of Our chief concern is the lack of strategic the new school on surrounding planning associated with the provision of schools, these funds. While some of these schools (iii) the willingness of the school to co- may be needed in order to provide adequate operate with other schools in the educational services in particular areas, there sharing of resources, is no proof to say that they are needed. This, we think, is not good enough, particularly for (iv) the level of determined community a government that prides itself on being a need for the new school, good economic manager. There is no test that (v) the financial viability of the new a school needs to pass before it is granted school, Commonwealth funding except that it is (vi) the size of the new school, and registered at the state level. No proof of (vii) specific local, community or educa- meeting an educational need or proof of fi- tional needs; and nancial viability are asked for by the Com- (c) shall provide an annual report to Par- monwealth. As has already been pointed out liament on its assessments”. on a number of occasions, there are very limited accountability requirements in this It is my hope that both the government and whole package. This is more than a system the opposition will support our second read- open to abuse; it is a system that invites ing amendment, which will at least bring abuse. One has to wonder how many more some legitimacy to the public funding of new campuses of existing schools will re- these new schools. In her speech on the bill, ceive establishment grant funding over the the Deputy Leader of the Opposition spoke coming years. at some length about the lack of equity con- siderations in the funding arrangements. Like It is interesting to compare the govern- the opposition, the Democrats are also con- ment’s laissez-faire approach on this issue cerned that under the program, new non- with an approach to the payment of people government schools receive the same amount on any form of income support. These peo- of funding regardless of how wealthy they ple have to jump through hoops—hardly a are—or will be. The amount of income de- phrase that comes to mind when describing rived from fees and other sources is simply funding arrangements under the establish- not taken into consideration. ment grants program. We believe that funding should be distrib- In view of this unacceptable situation, I uted on the basis of need in both the public move the following second reading amend- and private school sectors. We would there- ment: fore much prefer to see a resource-poor At the end of the motion, add “but the Senate school, in an area where there is a need for a calls on the Government to undertake that from new school, receive more of the establish- 2003 the Commonwealth will establish a Planned 986 SENATE Tuesday, 19 March 2002 ment grant funds. To me, this sounds like a lishment grants to 60 students in a primary or very logical and sensible approach but, un- secondary school for both the first and sec- fortunately, it seems the government is not ond year of funding, and to 90 students for a interested in needs based funding arrange- combined primary and secondary school. We ments for the school sector. While the hope that this amendment will limit the ex- Democrats were pleased to hear the Deputy tent to which new schools take students from Leader of the Opposition speak on this point, existing schools. We also hope it will mean we are disappointed that the opposition that new campuses of existing schools will seems to have dropped the issue of equity not receive the funding windfall that they concerns, vis-a-vis the government sector. should not, if the government properly en- Last year, the opposition vowed that it would forced its funding guidelines. At this point, I not support this bill unless an extra $30 mil- would also like to flag that the Democrats lion was allocated to the government sector’s will be supporting the amendments the ALP capital grants program. In the shadow min- is moving this time around in order to bring, ister for education’s press release last year, as they describe it, discipline, accountability, he said: transparency and equity into the funding Labor is simply asking that a fair and balancing model, although we believe that some of increase of $30 million over the same four year them could have been made more rigorous. period be provided to public schools which teach The other matter I wish to raise in this twice as many children. speech in the second reading debate tonight, Mr Lee went on to say: is to indicate that the Democrats will be How can he— moving a separate group of amendments to meaning Dr Kemp— the States Grants (Primary and Secondary Education Assistance) Amendment Bill 2002 argue that new private schools need extra funding regarding child abuse. The amendments will for additional costs they face when they start up, but public schools face no costs at all? All we are require states and relevant authorities in the seeking is equal and fair treatment for public government and non-government school schools. sector, as a condition of funding, to submit a But, as far as I understand it, this year the detailed plan that sets out the procedures for ALP is not moving this request so the Demo- and responsibilities of schools in dealing crats will do so for it. We hope the ALP will with the abuse of students either within or reconsider its position and support the re- outside the school, ways in which schools quest because it is a good one. Government will seek to create an anti-abuse environ- schools are critically underresourced and are ment, the means by which schools will desperately in need of more funding. Anyone communicate with students about their rights who visits schools in the government sector in relation to abuse and how the state or rele- on a regular basis, as I do, will know this. vant authority will implement the plan in They will recognise it because so many schools under its jurisdiction. schools—in fact, I would argue all schools I Our amendments will require that the plan have been into—rely on portable classrooms, be approved by the minister and be consis- and there is a very different environment in tent with the standards set out in the regula- those schools compared with many non- tions to the act. The current laws of the state government schools which have, it seems, must also require the mandatory reporting of far better access to funding. abuse by teachers. I ask the Senate to note If the government is able to introduce an that this is not currently required by legisla- open-ended funding stream for new non- tion in Western Australia. It is in other states, government schools, then surely an extra $30 but not WA. This amendment is needed to million in capital grants for cash-strapped ensure that there are minimum standards for government schools is not too much to ask, the protection of children in our schools, and especially when we know that the funding is I will speak on that matter further in the genuinely needed. We will be moving committee stage of the bill. amendments that reduce per capita estab- Tuesday, 19 March 2002 SENATE 987

Senator TIERNEY (New South Wales) back to the parliament for more money was (7.43 p.m.)—I also rise to speak on the States that more parents made a choice—more par- Grants (Primary and Secondary Education ents decided to send their children to a pri- Assistance) Amendment Bill 2002. One vate school—more schools were being set up thing we have to give the Democrats credit and those schools were of a larger size. That for is being consistent. They are consistent in is what this whole debate is really about. their opposition to parent choice, which The Labor Party originally supported the comes out again in the amendments that they principles and supported the system and put to this bill. We have particular disap- then, halfway through the next year, to gain pointment in the ALP because, when the political points, they reneged on that. It is original bill went through in December 2000, unfortunate because 5,000 students have the ALP supported the objectives of the bill. been affected by that decision and 58 schools The ALP supported the replacement of the are owed $1.5 million because of the intran- ERI system of allocating money to private sigence of the Labor Party. Senator Carr was schools with the SES indicator model, and saying that these are rich schools but 60 per put this legislation through. cent are from the poorest socioeconomic So one wonders why we have such oppo- groups. They include independent schools, sition to this bill, particularly when it comes Christian schools, Catholic schools, Aborigi- on top of opposition over the last year in re- nal schools, Steiner schools, Lutheran lation to this bill. We could understand be- schools, Anglican schools—a plethora of fore November why they were opposing it: schools across a wide range of the socioeco- they were just playing political games and nomic spectrum is affected by this legisla- they were trying to score political points in tion. They are certainly not all rich schools. the lead-up to an election. Unfortunately, Let me give you one example: an Abo- there were a lot of casualties to that political riginal school in Western Australia, the Ny- game they were playing—the schools out ikina Mangala Community School. The stu- there, the students trying to get an education dents here are amongst some of the most and the parents trying to support that. But educationally disadvantaged students in they were not able to do this because, quite Australia. They only received half the money unreasonably, the ALP was blocking the es- for their establishment grant because the La- tablishment grant to the school. There had bor Party had blocked as of June last year the been no change in government policy. The additional money that they needed. This Labor Party were not objecting to govern- Aboriginal school is owed money, and it has ment policy; the policy was consistent. The not been paid because of what the Labor department of education federally had made Party has done. Twenty-five families have an estimate on the number of schools that been affected in that school—they are not were going to be established and in need of a receiving the education they deserve because capital grant and the size of those schools— of the way in which the Labor Party has held in other words, the number of students. this matter up. They always do those estimates based on Senator Carr raised the point about what has been happening in recent times. whether these new schools are legitimate. It They do not have a crystal ball and cannot is claimed that in terms of the corporate project exactly over the next 12 months how structure there is some sort of fiddle going many people across Australia will set up on here. What has to happen is that this has schools and how big those schools will be. got to go through and be approved by the The result of the exercise was that in reality different state authorities, that they have there were more schools established in the management structures and the financial private sector than they expected and those structures that are separate. But Senator Carr schools were larger than was expected. and the Labor Party seem not to be prepared Therefore, the amount of money allocated to accept what the various states have raised. under this program per student was no longer So this objection is a total furphy. Another enough. The reason the government went thing the Labor Party want to do is to renege 988 SENATE Tuesday, 19 March 2002 on the original principle and set-up of this with teachers, they are prepared to follow the bill with the SES system. They now want to state curriculum, why shouldn’t they be able create some sort of sliding scale for schools to create these schools? The federal govern- that have an SES score in excess of 100. Be- ment is prepared to back their doing that, just cause of their support for the original bill, I as it is prepared to back public schools in this believe they are morally obliged to continue country. All we have to do is look at the fig- to support the system without such a sliding ures—figures that the Labor Party chooses to scale. ignore. Since we came into government in Let us go back and look more broadly at 1996, the populations in public schools have the picture of what is happening in the gone up by one per cent while, over those six funding of private and public schools in this years, federal funding has gone up by 43 per country. It is a pity that the ALP, in conjunc- cent. In Australia, we have public schools tion with the Democrats, has turned this into with 69 per cent of the students but 78 per a public-private school debate. If we have a cent of the federal funds; we have private look at what the Democrats have suggested schools with 31 per cent of the students but for amendments, it shows where their col- only 22 per cent of the federal funds. In total, ours are firmly nailed. It shows the fact that for the year 2002, our government has put in this public-private debate they are totally $5.9 billion into this system. It has increased opposed to parent choice at all. If you go money to private schools and it has increased through the amendments, as moved by money to public schools—and it is increas- Senator Allison, they suggest that we create ing money to public schools in my state, in a planned education resource allocation particular, much faster than the local state committee—only the Democrats could come government is doing. up with a name like that. This committee is So, when we look at the broader picture supposed to have a look at these schools be- here, we have a situation where the federal ing established in a particular area. government is supporting both private and The first thing they have to take into con- public schools and it is increasing funding sideration is the duplication of educational for public schools ahead of growth in those services in an area. So on that basis assume schools’ populations. Therefore, we are sup- that, if there is already a public school there, porting choice in education in this country. they would rule there is a duplication of edu- This bill, which this opposition should be cational services, and that if some class- supporting, will help enhance that choice. rooms at the local school are not full that But the opposition—that is, Labor and the they would not allow the private school to Democrats—is trying to stop parent choice establish. That totally overlooks the point in this country. If people want to make a that many of these private schools are not choice between private and public schools, suburb based. They might exist in a suburb they certainly have the right to do so. but they draw students from a wide range of Senator Carr—You didn’t go your full areas and quite often some pupils will travel time. 30 or 40 kilometres a day to a particular Senator CROSSIN (Northern Territory) school. They are not in any sense a local (7.54 p.m.)—It is amazing, isn’t it, Senator school. What Senator Allison and the Demo- Carr. I rise this evening to contribute to the crats are trying to do with these amendments debate on the States Grants (Primary and is to actually recreate the discredited new Secondary Education Assistance) Amend- schools policy of the last Labor government. ment Bill 2002. I am very surprised that We used to call that the no new schools pol- Senator Tierney, the proponent of education icy, because the aim of Labor’s new schools on the government side in the Senate, is— policy was to stop the creation of new schools. Senator Carr—The only one. But parents should have choice. If parents Senator CROSSIN—Of course, Senator are prepared to put up their own money for Carr—the only one who has not been able to their child’s education and if, in conjunction go the full 20 minutes; I am very surprised at Tuesday, 19 March 2002 SENATE 989 that. But let us get back to the purpose of this $4.7 million for 2001-2004 to $14.260 mil- bill. The bill seeks to amend the States lion. That is nearly a $10 million increase. Grants (Primary and Secondary Education Why did that occur? That occurred because Assistance) Act to alter the provisions for the of the incompetence of the department and granting of establishment assistance to new the minister at the time to accurately calcu- non-government schools. We well know that late the amount of money needed to meet the this bill has been before the parliament twice increase in demand for new schools in the before and has been rejected by this cham- non-government sector. This was an increase ber—and for very good reasons, which I will in demand of more than 200 per cent. This outline now. The third time the government amount was to be allocated to schools that tried to send this bill through both houses, it had applied from October 1999. did so in a somewhat different format. You But the government did nothing to act on might remember that it was part of a bill that that when the budget came around in the had three sections to it. It was a bill that was following year. In fact, it continually refused designed to look at research and the new to do something about it, until finally it real- postgraduate loans scheme, and then this was ised it needed to shoot a bill through this rolled into it. parliament in whatever form it took—and it It failed to pass at that time because of took a number of forms—to increase that concerns that not only this party had but also allocation. The problem is that the original other parties in this chamber had to do with estimates back then did not allow for new the eligibility and accountability criteria for non-government schools that lodged appli- the grants that seek to be established through cations after May of 1999 and those that this bill. We argued at the time—and we were then subsequently approved for funding would still argue—that there needed to be in 1999 and the year 2000. There was also an equity for government schools. With this bill, unexpected increase in the number of stu- of course, the goalposts have somewhat dents who would be attending these new changed now. In trying to determine the non-government schools as they were estab- amount of money to be given as an estab- lished. lishment grant to new non-government There are a number of major issues that schools, there is the argument that the same need to be explored and addressed in debat- amount of money should be provided, on an ing the bill this evening. As I said, the goal equity basis, to government schools. Why posts have now changed. The grants will are we looking at increasing the bucket of now be paid automatically to eligible funding which non-government schools are schools, as they have been in the past, and able to access to establish new schools when there are no requirements for schools to ap- the same kind of assistance is not provided to ply for the grants. But there is no defined new government schools when they seek to bucket of money from which this amount of establish in this country? money will come. There is an increase in the The earlier bills sought to increase the to- allocated amount of $10 million until the tal amount available for establishment assis- year 2004, but after that one would assume, tance by amending schedule 7 of the original once new schools apply for funding, that act. This new bill inserts a new section 75, money will become available and will not be and schedule 7 is repealed. The grants would confined by any restricted amount—that is, be paid in a similar manner to general recur- of course, if we can expect the department to rent grants—that is, on a per capita amount get their projected numbers for new estab- rather than on a special determination. It is lished schools accurate in the years after necessary to ensure that there are always 2004. enough funds to meet the demands for estab- But once the money is actually paid to lishment assistance, but we know that that these new non-government schools and they did not happen with this government. The have passed the state or territory process for original bills before this parliament sought to registration there is no accountability for the increase the allocation for the grants from money, and that needs to occur. There has 990 SENATE Tuesday, 19 March 2002 been a major debate—and the Senate looked government sector for establishment schools at this when it last examined these bills—as would equate to an additional $30 million for to what constitutes an eligible school. We the government sector. The share of federal have seen examples where there has just funds going to public schools has severely been an extension of existing schools. We diminished since this federal government have seen where existing schools have came into power. Since 1996 there has been sought to re-establish themselves under an- a decline from 41.5 per cent to 33.6 per cent. other name but in fact are another campus of Clearly, the philosophy and policy of this the existing school and have become eligible, federal government is that public schools and had money paid to them, under this should not be funded on an equity and needs grant. The Australian Education Union has basis. There is a huge emphasis by this gov- suggested one way in which some form of ernment on propping up the non-government eligibility may be confined is to have a and private sector of education in this coun- minimum enrolment in the establishment of try. Over the period 1998-99 to 2004-05 new schools which is monitored as a way to funding to non-government schools will have keep those schools accountable as opposed increased by 68 per cent, but government to enrolment numbers coming under the schools will have experienced an increase in same heading of existing schools. their funding of only 37 per cent. But fundamental checks of the applica- These establishment grants are conferred tions for these new schools to be established without an examination of the school or of are not conducted and, in some cases, have its circumstances. There is nothing from the been ignored by the department. As I said, Commonwealth, as I said earlier, in similar there have been examples of schools regis- assistance to new government schools. New tered under a similar name where they have government schools that need to be estab- simply sought to extend their buildings or to lished and seek to be established—and a upgrade their facilities or they have reregis- number of those have opened recently in the tered as another campus of that same school. Northern Territory, particularly in the rural As the criteria now apply, the money can be area because of the growth in population— used for advertising purposes. One would do not get a similar handout or hand-up from say that is not an unusual use of funds under this government in the way non-government an establishment grant, but it is. Once you schools do. Money is provided to those new get a new school established, part of that non-government schools only to assist with money would be for advertising and part of set-up and establishment costs. that would be for staffing, but part of that is This leads us to our amendments and why not providing for excursions. Therefore, at our amendments to the bill have been for- this stage there are no criteria under which mulated as they have. We moved in the the money can be used. The money can be House of Representatives through our used for excursions. It can be used for all shadow spokesperson for employment, edu- manner of things that are part of the day-to- cation, training and science, Jenny Macklin, day activities of a school, whether about to that the way the grants are used needs to be be established or not, and there is no ac- clarified and, therefore, the purpose of the countability for the way the money is used. establishment grants and the link to the con- There should be checks and balances to en- ditions of funding for meeting this purpose sure the money is used for establishment and need to be specified, monitored, evaluated set-up purposes of that school. and regulated by the department. Unlike the major general recurrent grants, Money should be allocated on the basis of these establishment grants are not scaled ac- need. Of the 39 or so new non-government cording to needs. They should actually pro- schools assisted by this funding, a number vide a balance of money to the government have an SES score over 100. A number of schools. We advocated previously when this those charge fees way in excess of the aver- bill came before us that, on a pro rata basis, age government score by which funding is an additional $10 million to the non- calculated. Where a school is charging in Tuesday, 19 March 2002 SENATE 991 excess of $12,000 for fees, one wonders why that, as I said, there is a need for this gov- they would need the same amount of funding ernment to make sure that schools that derive for set-up costs as would some schools that income from student fees in excess of the per have a lower SES score and a greater need. capita average government school recurrent Regardless of the fees being charged, this costs are ineligible for establishment grant bill allocates money as flat per capita grants funding. In other words, those schools that with no regard for the status of the school are able to charge exorbitant fees should not and for the kind of need that exists or be eligible for this sort of funding at all. Fi- whether any real need exists in relation to the nally, we have suggested that there needs to funding for that school. The administration be a review of this establishment grants pro- of this scheme needs reforming. We have gram and a report to the parliament within 12 suggested that there is a need to improve the months of it being put in operation. accountability and transparency provisions In essence, we believe that grants to non- of the bill by including an application proc- government schools should be allocated on ess to replace the automatic conferral of the basis of need. The allocation of those grants following state or territory registra- grants needs to be transparent and account- tion—that is, a non-government school able. On application by those non- should apply for these grants and there government schools, the government needs should be some sort of accountability and to satisfy itself that they are genuine new transparency as to why this school needs this schools and those schools need to be ac- money and what it intends to do with it. A countable for the use of the funds. Finally, definition of Commonwealth eligibility crite- those schools that currently are able to derive ria for new schools needs to be established, income in excess of the average funding and and that goes back to the point I made about to charge exorbitant fees should not be eligi- existing schools simply applying for these ble for this sort of funding at all. grants to set up an additional campus for This government talks about practical rec- their school or just trying to get some money onciliation in relation to indigenous people. to improve existing conditions. While I recognise and acknowledge that the We have suggested that there needs to be minister two weeks ago provided funding to an established sliding scale of per capita a non-government school at Woolaning in grants for new schools with an SES score the Northern Territory, that is only the sec- exceeding 100. As I said before, once a ond postprimary school that has been estab- school that has an SES score of more than lished and funded in the Northern Territory. 100 applies for this money, surely those that Under the Country Liberal Party for 27 have a score far greater than 100 could not years, the provision of secondary education justify the funding that they would get under and postprimary education in the Northern this bill in relation to a school which may Territory outside the major regional centres have a greater need with an SES score of far was severely neglected. It has been severely less than 100. Surely a school with an SES neglected since 1996 by this federal govern- score of 85, in being established, would need ment, although there has been recognition far greater funding than a school that has an that money under the IESIP program by all SES score of, say, 119. states and territories will now incur only a 10 There is a need to ensure that, once this per cent administrative on-cost rather than a bill is established, only truly new schools 48 per cent administrative on-cost. actually get the funding. Our amendments go I want to take this opportunity to pay trib- to improving the accountability and the ute to the new Northern Territory govern- transparency provisions of these public, gov- ment, the Clare Martin government, for fi- ernment funds to the non-government nally doing something about indigenous edu- schools sector. There is a need to clarify the cation and for finally acting on the report purpose of the establishment grants and to compiled by former senator Bob Collins, make sure that these grants are handed out which has now become renowned nationally on the basis of need. We have also suggested as the ‘Learning Lessons’ report. This was a 992 SENATE Tuesday, 19 March 2002 report commissioned by the CLP during its the other side of the chamber should take time and completed by Bob Collins in 1999, cognisance of. but it was never acted on. There was one Let us also make it equally clear, so as not recommendation, out of many, that was acted to be fooled by the rhetoric of the Minister upon, and that was simply a name change to for Education, Science and Training, why the Indigenous Education Branch. this legislation is before the Senate. All The Martin government have decided to members of this chamber are well aware of take on this challenge, and I want to con- why this legislation is needed. It is needed gratulate them for doing that. They have set simply because this government has failed to up a committee to implement the recommen- correctly estimate the amount of funding that dations of the Bob Collins report. That was required to meet the demand for estab- committee met for the first time in the last lishment grants. Indeed, this is just another few days. It has a huge task ahead of it, try- bucket of money that the government has ing to do what the CLP government could allowed, through its mismanagement, to run not do and refused to do for 27 years and dry—perhaps through maladministration or trying to do what this government has failed even an inability to administer the education to do since it came into office. It is a com- bucket of money. Now we find that the gov- mittee that has a lot of expertise. Many peo- ernment’s only solution for this problem is to ple from the indigenous community are rep- introduce legislation that creates an open- resented on that committee: the indigenous ended funding stream that has few safe- principal from Numbulwar, a teacher at guards, minimal accountability standards and Yipirinya Primary School, people from Mel- little to commend itself in the way of funding ville Island and Kim Hill, the ATSIC com- fairness and equity. In short, it could really missioner. Peter Buckskin, representing the only be summarised as poor legislation— Commonwealth, sits on this committee, and poorly thought out, poorly considered and that is certainly welcome. poorly drafted. In fact, one wonders why If this government were serious about they have not taken a little bit more time to practical reconciliation, we would not have ensure the safe passage of this legislation in before us a bill that gives an additional $10 a fair and even manner. million to the non-government sector for As I have already stated, the Labor Party new schools and then a blank cheque after is committed to education funding for all our 2004. We would have a bill before us that educational institutions that is based on fair- provides millions of dollars for the estab- ness and equity. Therefore, in order to save lishment of secondary education in the this bill, we need to introduce into this Northern Territory out bush. chamber a number of amendments that we Senator LUDWIG (Queensland) (8.14 believe will give the proposed legislation the p.m.)—I rise to speak in this evening’s de- accountability, the transparency and the eq- bate on the States Grants (Primary and Sec- uity that it currently lacks. Those amend- ondary Education Assistance) Amendment ments have been circulated in the chamber. Bill 2002. I would like to make it completely They go to those various issues that I have clear to those senators sitting opposite that indicated. I understand that the shadow min- the Australian Labor Party has no problems ister with carriage of the bill here will move with providing financial assistance to genu- those in the committee of the whole. In fore- ine newly established schools. The Austra- shadowing those amendments, I did want to lian Labor Party has always believed in the speak to some of them just briefly to high- proper, fair and equitable funding of all our light the issue that I have been talking about, educational institutions, both public and pri- which goes to the lack of accountability, the vate. Indeed, since its inception the Labor lack of transparency and the lack of the in- Party has always regarded a good education sight that a department as large as the federal to be a basic right of all Australians and not Department of Education, Science and just something to be made available to those Training requires to be able to deal appropri- wealthy few—which is something those on ately with the diverse needs of educational Tuesday, 19 March 2002 SENATE 993 institutions across Australia, to be able to redundant and obviously had to find other deal widely with the needs and aspirations of careers or other teaching posts. But within a educational institutions themselves and their very short time—in 2000—it reopened. It students. reopened after it was bought by a number of Before I continue on with the substance of former students. It was located in the same those amendments, I would like to draw the premises, with the same phone numbers and, attention of the chamber to a press release one suspects, the same administration. Many from the Minister for Education, Science and of the same students re-enrolled. I suspect Training, Dr Nelson, accusing the Labor they were from the catchment area. It is pos- Party of neglecting or not supporting our sible that the teachers might have been re- poorer non-government schools. I am sure— employed or some of them might have come in fact, I almost can say without checking— back, one would hazard a guess. On the out- that Dr Nelson has raised in the other cham- side we have a situation here where a school ber against Queensland members and sena- closes, changes ownership and reopens and tors, probably even me, our ‘apparent’ lack is eligible for an establishment grant because of support for educational institutions or new it has to be reregistered under the name of establishment grants. A press release dated the new owners. 14 February 2002 details a number of Senator Lightfoot—Are you saying it schools, including the Pacific Lutheran Col- should never have reopened? lege in Caloundra, Queensland, and the Faith Senator LUDWIG—This happened de- Lutheran in Plainland, Queensland. Dr Nel- spite assurances given at the Senate inquiry son seems to suggest that a number of hearing relating specifically to examples of schools or all of those schools which are part this type. A further question remains: did the and parcel of the claim, because of the non- ailing school in 1999 receive an emergency passage or perhaps delay of the bill, may grant or loan from the government? Perhaps have funding shortfalls. But it really does not we can explore some of these issues during expose the whole issue. the committee stage. But during a second Senator Lightfoot—But you would admit reading it is appropriate just to go to the is- that the delay causes harm? sue itself. These forms of assistance are Senator LUDWIG—We seem to have available to private schools in financial diffi- this view about harm in education that at- culties. What it underscores—and this is taches from the other side. What they fail to where Senator Lightfoot seems to really miss recognise, what they fail to fully understand, the point—is perhaps an administration that is that in many instances the fault lies in the has not got its eye on the ball, that is just not maladministration and the inability of the looking hard enough at all of these things. department to administer these, not in the Senator Lightfoot—You are picking on process. You have to look at the legislation the Anglicans, are you, not from your own itself. You cannot simply take a broad brush experience? You are partisan in the schools and come to that conclusion, Senator Light- you choose. foot. I find it a very short-sighted argument Senator LUDWIG—I could take the op- that Senator Lightfoot raises. It is an argu- portunity of explaining to Senator Lightfoot ment that Dr Nelson seems to consider has that I am perhaps now ecumenical in my up- some merit, but it does not. It does not for a bringing. I am married to an Anglican. I am a number of reasons. Let us look at one school, Catholic. I got married in an Anglican All Souls St Gabriel School, an Anglican church, but don’t tell the bishop. So I find school in Charters Towers, Queensland, the interjection that I might be picking on which had in the order of 197 enrolments Anglicans a little bit unusual really. I do when it opened in 2000. It was formally know them well and respect their position. known as the All Souls and St Gabriel’s But I do not need you to actually pass it on to School, which went bankrupt, as I under- the bishop. stand it, in 1999 and actually closed for a time. Teachers were, as I understand it, made 994 SENATE Tuesday, 19 March 2002

I find the press release truly amazing at will be moving during the committee stage two levels. The first is that, as I have pointed seek to clarify the purpose of the establish- out, the Labor Party have always believed ment grants, link conditions for funding to that funds should go to those most in need meet this purpose and improve accountabil- and we are prepared to back that with legis- ity and transparency provisions in the bill. It lation. I think and the Labor Party believe is clear that there has been some confusion that the foreshadowed amendments in the as to just what these grants can be used for, committee stage make for a better outcome. with reports of funding being used for ad- Hence we are seeking to amend, with the vertising and, according to the minister for foreshadowed amendments, this current education’s press release, running excur- piece of legislation that creates a flat per sions. It has also been reported that some capita grant irrespective of the relative afflu- established schools have successfully ob- ence of the school into one that takes into tained new funding to establish a satellite consideration the financial needs of the campus when this has clearly not been the school and that will deliver a greater level of case. They really highlight some of the funding to those poorer non-government problems that come about, and the amend- schools that the minister for education pur- ments seek to flush out those issues and en- ports to be so concerned about. If you were courage the department to look more closely, genuinely concerned, Senator Lightfoot, for to scrutinise and to administer its portfolio in poorer non-government schools, then you a way that ensures equity, fairness and I would pick up our amendment. In fact, I think you can even translate it into a fair go would expect you to speak to it and, if you all round to ensure that non-government were allowed to speak freely, in support of it. schools do get the proper establishment I would be surprised if that was not the real grants and the proper administration from the basis of your belief in any event. I also find it department and they are not ignored. amazing that the minister for education ac- Our third amendment seeks to make the cuses the Australian Labor Party of not sup- funding far more equitable for poorer non- porting poorer, non-government schools government schools by establishing a sliding when it was his predecessor in government scale of per capita grants for new schools who was so determined to introduce SES, or with an SES exceeding 100. I do not want socioeconomic score, in the first place. this amendment to seem to be some form of I remind the Senate that the Australian tacit support for the SES. It is simply that we Labor Party is not necessarily in favour of must work within the confines established by the SES as a means of determining a school’s the Howard government. In simple terms, we socioeconomic status and, therefore, its level are proposing to link establishment grants to of funding. The reason for this is that we feel the same index that determines the level of that this system of scoring may well disad- per capita grants. We believe that this will go vantage the poorer non-government schools some way to providing some degree of inter- in favour of the affluent category 1 schools. nal consistency and will help provide some But we have had that debate, haven’t we, equity in the funding model. Senator Lightfoot? We have had that debate Our fourth amendment is intended to about the affluent category 1 schools. How- make those schools that obtain their income ever, I am perhaps being too harsh on the from student fees in excess of per capita av- new minister for education and it just may be erage government school costs ineligible for that he intends to introduce amendments to establishment grants funding, which seems the SES legislation that will redress these sensible, quite frankly. This is clearly aimed funding disparities. at those few schools with fee levels exceed- Returning to the legislation at hand and ing $14,000 per annum, schools such as Labor’s amendments to make this funding Scots College—which we have heard so model far more equitable for poorer non- much about and, frankly, I do not hear government schools, the first and second Senator Lightfoot defending that—and Syd- amendments we have foreshadowed that we ney Grammar that would operate in excess of Tuesday, 19 March 2002 SENATE 995

200 per cent of average school recurrent Party has always regarded a good education costs. In the interests of equity, it would be as being a basic right and not just something quite inappropriate for the Commonwealth to for the privileged few. increase the financial advantages of new Senator HUTCHINS (New South Wales) schools charging this level of fees by nearly (8.29 p.m.)—This evening I have pleasure in doubling their recurrent grants in their first following my colleagues Senator Ludwig year of operation. and Senator Crossin in this debate on the Our fifth and last amendment will insert a States Grants (Primary and Secondary Edu- legislative requirement for the review of the cation Assistance) Amendment Bill 2002. As establishment grants program that will report you may be aware, Madam Acting Deputy back to parliament 12 months after it has President, Senator Crossin was a teacher and come into effect—another sensible proposal has hands-on experience in education. that I am surprised the government has not Senator Ludwig talked about the outrageous picked up. No-one can be certain of all out- comments made by Dr Nelson in relation to comes when a new program is established the Labor Party’s position on this particular and it is a device used often by the govern- bill. In the House of Representatives, Dr ment, often found in committee reports, of- Nelson has been working himself into a flap ten in suggestions which the government because he believes we are engaging in the picks up itself, where it puts the process of politics of envy. He believes that we should review of the legislation in the legislation be kowtowing to the government and allow- itself. This means that if issues do arise then ing them to transfer lots and lots of Austra- matters can be addressed and there is confi- lian taxpayers’ dollars into the pockets of dence from the opposition’s perspective that people in the education field who do not the government understands that any new need them. In my previous occupation I have legislation may require amendments in the seen people, mainly men, whom I worked future and has a bedding-down period and with who never had the opportunity to com- recognises that, in some respects, it is worth plete even their secondary school education ensuring that the review process is legisla- let alone go any further. The talents of those tively based. No-one can be certain of all the men were wasted because they did not have outcomes when a new program is estab- the opportunities for education that should lished. Therefore, the Labor Party believes it have been available to them. is only prudent to review this program and I remember clearly years ago that, when I have that review brought before parliament. was an official of the TWU, a transport com- These five amendments are all intended to pany, Rapid Transport, took over the distri- improve the bill’s accountability, fairness bution of an engineering company’s transport and equity, as I said earlier. Given the rheto- fleet. They approached this driver—I do not ric and false accusations levelled at the La- want to use his name—and said they wanted bor Party by the new minister for education, to reorganise the run so that they could whom I would have thought more highly of, achieve economies of scale in taking over I would be most surprised if these amend- that transport fleet. For some reason, there ments were not supported by those opposite. was a lot of resistance by the drivers in that However, it is always easier to take a few yard to any changes that the company cheap shots in a press release than to back wanted to make. They were sometimes scal- those sentiments with legislation. I hope that lywags, but the bosses—Stephen Brown, this is not the case in this instance and that whom I worked for at TNT, and Dickie the government can look favourably on those Wyeth—were quite genuine men. After a lot amendments in the committee stage and look of argy-bargy and discussion, we found out past the rhetoric, look past the cheap shots that one driver, who was expected to change and perhaps look at the merit of the amend- his route to make the deliveries, was illiter- ments that are being proposed. In closing, I ate. He could not read the street signs where would like to remind those sitting opposite of he was to make deliveries. This man, who what I said earlier: the Australian Labor subsequently retired from that company after 996 SENATE Tuesday, 19 March 2002 many more years, was one of the men—and to government funding. It was based on their women—who were abandoned in the middle sectarianism. I suppose it is to his credit that part of this century because they did not have Sir Robert Menzies changed that in the the educational opportunities that we now 1960s, but that was a long time in coming. take as a right. They were motivated by terrible prejudices I remember when I used to go into the that we hope have now been dispatched, but yards, when I worked at TNT, and men the education minister, Dr Nelson, has said would get documents and they would say, ‘I that we are motivated by the politics of envy. have forgotten my glasses. Can you read this During the committee hearings, it was to me?’ I knew they had not forgotten their identified that a number of schools have been glasses; they could not read those docu- shonky enough to close and start up again. I ments. It is because we are now reverting to hope I have not defamed them or anything, a very class based allocation of education but Senator Ludwig has gone through a funds that men and women like them, and school at Charters Towers, there is another their children and grandchildren, are now school in Kewdale in Perth I gather, and going to be penalised by the government. I there is another school in Highton in Victoria am sick and tired of hearing the government where this has happened. People have looked say, ‘This is the politics of envy.’ As has at how you can scam the scheme. They have been so articulately outlined by our spokes- put the applications in and got the additional man, that is not the case. funds. I am sure that that was not the inten- The only people who we believe should tion of the government when they introduced be disadvantaged—I will use that word and this change in funding. I am sure that, in you can take it anyway you like—are those their own way, they felt that they were going category 1 schools: the King’s, the Newing- to continue to fund the growth in non- tons and the Sydney Grammars. On the way government schools. Yet I do not believe that to the airport to come to Canberra, I have to they had any intention of seeing these things pass Newington. They have fine tennis happen, and I hope that, with our amend- courts there, ready for the boys to play on—I ments, we will be able to make sure that is do not know if it is a co-ed school or not. I reversed. do not see tennis courts at some of the gov- As my party have said, we do not neces- ernment, non-Catholic education institutions sarily believe in advantaging one group over in Western Sydney. For all I know, they may another, and I genuinely feel that those cate- have squash courts and swimming pools. I gory 1 schools will be enjoying additional imagine that the kids at King’s have a polo funds from the Commonwealth that could be set where they can train and play polo. There better placed in non-government and gov- is no reason why the children at these ernment schools. There are many areas in schools should receive additional govern- Australia that are calling out for additional ment funding. Their parents, no doubt for funds—particularly the area that I come from good reasons, have decided to make the in Western Sydney—because of the number commitment to send them to those schools. of children that are being born and raised They have decided to pay school fees, but there. I know that the Catholic Bishop of there is no reason why we should be divert- Parramatta, Kevin Manning, is going even ing money that should be going to either the more grey in planning for the number of government or the non-government sector schools that he is being asked to develop in into these schools. the burgeoning suburbs of Western Sydney. I This reiterates another terrible period we know that this is of great concern to those went through in Australia when we had sec- educators who want to provide the best edu- tarianism in the distribution of education cation they can to children. This is being funding. One of the big reasons why the con- subsumed by the fact that the government is servatives opposed any form of state aid in making a class based decision to allow cate- the early 1920s was that they did not believe gory 1 schools to have access to money, and that Catholic schools should have any access I think that decision is a disgrace. Tuesday, 19 March 2002 SENATE 997

It is a disgrace particularly in this new the funding was going. We still believe, and century, after we struggled for over 150 still hold dear, the idea that in fact this years to make compulsory education avail- money should be distributed to those schools able for children. In New South Wales it was that are in need of it. only in 1880 that public education was made As I said earlier, I recall clearly the sec- compulsory up to primary school level for tarian debates within the Labor Party during children. It was only in the 1920s that it was the sixties about per capita or per head grants made compulsory, in some form or another, and needs based grants. There was a lot of for children to attend secondary school. We division in my own party. Fortunately, we are talking about, for people like me, the were able to put that behind us, move ahead generation of my grandparents and how they and make sure that children whose parents had to get an education. How sad it is to look made the decision to put them into non- at documents from that period and earlier, government schools for religious or other when people were asked to sign either their reasons have access to quality education and marriage certificates or the certificates reg- that funding is available for that. That is not istering their children’s birth, and see that the case in the legislation which is before us they were signed with a cross. We cannot this evening. I find it strange that some allow that to occur again. We cannot allow members of the Liberal Party, who I am told this class based allocation of funds to some- have some kind of egalitarian streak in them, how continue to advantage category 1 could get up here this evening or get up in schools that I do not believe are entitled to it. their party room and support this legislation This is not the politics of envy; this is the that diverts money from what we believe are politics of fairness and equity, as Senator the needy and the disadvantaged to those Ludwig said. It is up to us to make sure that people that may, for all I know, be training this generation of children has opportunities their ponies for polo. equal to those that we and our generation have held so dear. I believe the amendments put forward by the opposition will go some way to ensuring I would not be on my feet this evening that, as I said earlier, the funds to educate our saying these things except for this experi- children are put into those areas that are most ence. During the last federal election cam- in need of them, that we will not have a gen- paign—and it would not surprise you, eration of people who have talents that are Madam Acting Deputy President, to hear that not used and that we will be able to give our I was involved in the electorate of Lindsay— children the best quality education this I saw the misleading signs that the Liberals Commonwealth can provide to them. It is the put up in relation to Labor’s education poli- duty of the government, the opposition and cies. These signs were on the back of card- the Senate to make sure that those provisions board—they were not authorised—and they are made so that our children are educated in said: ‘Labor will take away your funding’. the best manner possible. The signs were out the front of the Penrith Anglican College, the Orchard Hills Pre- Debate (on motion by Senator Ellison) paratory School and the Nepean Christian adjourned. Community College. None of these schools MINISTERS OF STATE AMENDMENT are category 1 schools; all of them would BILL 2002 have received funding under the position that Second Reading Labor is prepared to support. However, the Debate resumed from 14 March, on mo- Liberals were doing this in the electorate of tion by Senator Ian Campbell: Miss Kelly, the member for Lindsay. It was a campaign of downright lies. I am told that it That this bill be now read a second time. was only after school had finished that those Senator MURRAY (Western Australia) signs were taken down; those signs were not (8.45 p.m.)—The Ministers of State Amend- there the next day when parents dropped off ment Bill 2002 increases the annual amount their children. However, it had its desired payable for the salaries of ministers from effect: it made people concerned about where $2.3 million per annum to $2.8 million. The 998 SENATE Tuesday, 19 March 2002 government indicates that these additional being influenced by the prospect of future funds are necessary to give effect to the de- employment. Whatever the motivations of termination of the Remuneration Tribunal. former Minister Wooldridge to grant $5 mil- The Australian Democrats support the pro- lion of public funds to the Royal Australian posed increase in the salaries of ministers. College of General Practitioners prior to My personal view is that ministers of the leaving office, his later employment with Commonwealth continue to be underpaid. that same organisation inevitably generated The bill amends the Ministers of State Act perceptions and doubts as to the basis on and comes amidst controversy surrounding which those funds were allocated. Further- the conditions of employment of ministers. more, the public is justifiably concerned Lucrative consultancies obtained by former about former ministers and advisers being ministers Reith, Wooldridge and Fahey have used to facilitate preferential or privileged brought the issue of post-ministerial em- access to government. It certainly appears ployment into sharp focus. that the reason many private organisations When ministers and their senior advisers hire ministers or their top advisers is for their leave office, they take with them different connections and their ability to obtain access sorts of information. On the one hand, they to government at the highest level. take a general understanding and insight into These matters have caused great public the workings of government; on the other concern. The Democrats are taking the first hand, they take specific, confidential infor- opportunity we have to address these issues. mation about programs, policies, needs of Since this bill directly relates to ministerial the departments and agencies and proposed employment and the salaries being paid, this budgets. Where ministers and their advisers is the appropriate time to do it. Very seldom take into the private sector merely an under- will there be other bills that would make this standing of the workings of government, possible. I will be moving amendments on there can be no complaint. That can only behalf of Senator Stott Despoja, Leader of promote effective and efficient relationships the Australian Democrats, to address these between the private and public sectors, and concerns. The amendments reflect the sub- the greater the private and public sectors un- stance of the Ministers of State (Post- derstand each other’s processes, the better. Retirement Employment Restrictions) Bill However, when ministers and their advisers 2002—a private senator’s bill introduced by go into an area of the private sector directly Senator Stott Despoja and me last week. The related to their former duties, a very different amendments would prevent ministers and set of considerations arises. They may well ministerial advisers prior to retirement al- have a conflict of interest arising from the lowing themselves to be influenced in the clash between their duty of fidelity to their conduct of their official duties and responsi- new employer and their duty to the public to bilities by plans for or offers of employment safeguard confidential information about or other remuneration when they leave of- government departments and agencies. fice. This would prevent a minister from al- The public is justifiably concerned about locating funds to or making decisions in fa- the misuse of a position of privilege to se- vour of a particular organisation prior to cure employment in the private sector with leaving office, with a view to securing em- an organisation that stands to benefit from ployment with that organisation. confidential information possessed by the If these amendments are successful, min- former office holder—and, might I say, the isters and their advisers would know that former office holder is often privy to com- they would face the full sanctions of the mercial-in-confidence information that even criminal law if they allowed themselves to be the parliament is not privy to. The public is influenced in their duties by the prospect of justifiably concerned about the independence future employment. Favouritism from a of the decision making processes of govern- minister in return for post-ministerial em- ment when there is no specific legislative ployment would be corrupt. These amend- protection to prevent decision makers from ments would substantially lessen the poten- Tuesday, 19 March 2002 SENATE 999 tial for such behaviour and perceptions of off period for ex-employees and officials of such behaviour by impressing upon ministers the executive branch. During this time they and their advisers how seriously such con- are subject to a range of restrictions as to duct is taken by the community. In addition lobbying and other activities in which they to these pre-retirement restrictions, there is a can engage. They are also subject to perma- range of post-retirement restrictions. The nent restrictions on making representations amendments provide for a two-year cooling- on behalf of a person or entity in a matter in off period after ministers and their advisers which they personally participated in their cease to hold office. During this time they capacity as an officer or employee of the are prohibited from engaging in three broad executive. The punishment in the United classes of activity. First, they must not pro- States for breaching this provision is set out vide advice for profit or commercial advan- in section 216 of the United States code. The tage on the work of their former department maximum penalty for wilfully committing and its agencies. Second, they must not ac- any of the offences is five years imprison- cept employment or enter into consultancy ment. So one can see that the United States agreements with any entity with which the adopts an even stronger approach than we department had significant dealings in the are proposing. previous two years. Third, they must not In Canada, the Conflict of Interest and make representations for profit to the rele- Post-Employment Code for Public Office vant department and its agencies on behalf of Holders sets out restrictions on ministers and any person. some ministerial staff during their tenure and There are a number of important excep- after leaving office. Before leaving office, tions which allow former ministers and their the key obligation is that public office hold- advisers to work for a range of organisations. ers not allow themselves to be influenced in They can work for charitable organisations, the pursuit of their official duties and respon- the Commonwealth, political parties and, sibilities by plans for or offers of outside with the approval of the Minister for Foreign employment. This provision is mirrored in Affairs, international organisations and for- the amendments I will be moving on behalf eign governments. The restrictions in these of the Australian Democrats. After leaving amendments are carefully measured to strike office, public officials in Canada are forever the right balance between allowing former restricted from switching sides in any ongo- ministers and their former advisers to make ing proceedings, transactions, negotiations or an ongoing contribution to public life while case where the public official acted for or not acting improperly in terms of their posi- advised the government. tion of privileged information relative to Canadian public officials also face a total their former employment with the Com- ban on giving advice to their clients using monwealth. Failure to comply with these information that is not available to the public restrictions will constitute an offence punish- concerning the programs or policies of the able by two years imprisonment or a fine not departments with which they were em- exceeding $250,000. These penalties are a ployed, or with which they had a direct and reflection of the very serious nature of this substantial relationship during the period of issue and are within the scope of interna- one year immediately prior to the termina- tional precedent. It is perfectly appropriate tion of their service in public office. In addi- that the integrity of our political system be tion, Canadian public officials are subject to defended by the full force of the law. a two-year cooling-off period where they are I would now like to refer to the interna- restricted from doing two things. Firstly, they tional precedents for the approach proposed must not accept appointment to a board of by the Democrats. Firstly, the United States directors of, or employment with, an entity is particularly strong in the limitations it with which they had direct and significant places on former members and officers of the official dealings during the period of one executive branch. Section 207 of the United year immediately prior to the termination of States code provides for a two-year cooling- their service in public office. Secondly, they 1000 SENATE Tuesday, 19 March 2002 must not make representations for or on be- rounding postministerial employment may half of any other person or entity to any de- pass, but they will come again. They have a partment with which they had direct and sig- history in other jurisdictions in Australia and nificant official dealings during the period of if the underlying problems are not addressed one year immediately prior to the termina- we will be confronted with similar scandals tion of their service in public office. A more in the future. minimalist approach applies in the United Senator FAULKNER (New South Kingdom whereby an obligation is imposed Wales—Leader of the Opposition in the Sen- to seek advice from a committee, the inde- ate) (8.57 p.m.)—The Ministers of State pendent Advisory Committee on Business Amendment Bill 2002 is one of a series of Appointments, about offers of employment annual bills which appropriate the funds nec- they propose to accept within two years of essary for the payment of salaries of minis- leaving ministerial office. The United States, ters and parliamentary secretaries. We note Canada and Great Britain have all dealt with that this bill will provide an extra half a mil- this matter and have realised what a public lion dollars this year, increasing the appro- problem it is. The precedents established in priation from $2.3 million to $2.8 million. those jurisdictions should be respected in This flows from the Remuneration Tribunal Australia. determination of 5 July 2001 with effect The Australian Labor Party have also put from 1 July 2001 which increased salaries forward a minimalist proposal in relation to for the principal executive officer band by this issue in response to public concern. La- 3.9 per cent. Since 1999, again pursuant to bor propose a 12-month restriction on certain Remuneration Tribunal determination, the postministerial employment to be outlined in annual salary for parliamentarians has been a code of conduct. I agree that that would be linked to a reference salary in the principal a great improvement on the present situation. executive officer classification. Ministers As I understand it, though, the code would and parliamentary secretaries are paid an not have legislative force. I am sometimes additional salary that is expressed as a per- asked why we put into legislation prescrip- centage of parliamentarians’ base pay. tive matters relating to people’s conduct. The opposition will be supporting this bill. When you discover that you can no longer But this bill, as Senator Murray notes, pro- trust people to do the right thing, which I am vides us with an opportunity to reflect on the afraid we are discovering more and more in responsibilities of ministers and the stan- Australia, self-regulation or an unenforceable dards that should be applied to ministers. code will be found to be worthless and you The flip side of higher levels of remuneration will need legislation. I urge the Labor Party for those in public office is commensurate to reconsider their approach and to direct higher standards and higher levels of per- their minds to ensuring that their restrictions formance. But that is not what we are getting would have some credible enforcement from the Howard government. mechanism. We would obviously support any improvement on the existing situation. It Take, for example, the case of the three is difficult to assume that former ministers recently retired members of the Howard will always comply with a code of conduct ministry: former defence minister Peter that is essentially voluntary. Reith, former health minister Michael Wooldridge and former finance minister In conclusion, I would like to stress to the John Fahey. We all accept that, over the past Senate the need to support the Democrats’ 20 years, there has been a growing trend for amendments or to put up amendments with people to leave or to be driven from office at some equivalent force. The Democrats’ a younger age. At the same time, the growth amendments draw on credible international of the lobby or government relations industry precedents and are necessary to enhance has been exponential. The Australian econ- public faith in Commonwealth ministers and omy has become more complex, with higher the decision-making process of government. competing demands from the finance, IT and Public focus on recent controversies sur- manufacturing sectors. Government has had Tuesday, 19 March 2002 SENATE 1001 an increasing role in the regulation of many tium—one of three bidders for the $4 billion Syd- kinds of industry. It is safe to say that the ney Airport sale. interface between government and industry The sale of Sydney airport and the sale of has changed significantly. As society Telstra were central to Mr Fahey’s time as changes, standards too change. minister. If—God forbid—legislation were The three aforementioned Howard gov- passed to sell more of Telstra, Mr Fahey ernment ministers all started working within would be on the other side, trying to access a very short time after their retirement from and extract as much Commonwealth money the parliament, and they started working for as possible on behalf of his new employers. companies and organisations that can benefit And we have the case of a former health from their insider knowledge and personal minister, Dr Wooldridge, who offered him- contacts at the very highest level of govern- self as a part-time consultant to the Royal ment. Even if they zip their lips about com- Australian College of General Practitioners mercial-in-confidence issues brought up in three months after he had signed a depart- cabinet when they were ministers, there is mental minute to clinch a deal between the still a very smelly perception that lingers. college and the health department to fund a Who knows what is said when the doors of commercial venture in the Barton precinct. the boardroom click shut and who knows The amount of $5 million was funnelled what information is shared when former from existing health programs on asthma ministers meet colleagues who might be cur- prevention and rural health, as has been dis- rent senior ministers of government? cussed at some significant length in this Former defence minister Mr Peter Reith chamber. shifted almost immediately to Tenix, a de- Probably Dr Wooldridge does not have the fence equipment manufacturing company. same level of superannuation entitlements as We do not know what level of remuneration the longer-serving former minister Peter or other conditions of employment Mr Reith Reith. Still, if he wanted to, I think he would enjoys from his new employer. What we do himself be able to access about $85,000 a know is that Mr Reith has a superannuation year in pension payments for the rest of his payout of more than $2 million that he can life. This is not unique to these politicians; as access immediately—a lump sum of everyone knows, there is a generous parlia- $430,000, not to mention the very large pen- mentary superannuation scheme. But think sion he might receive immediately. Mr Fa- of this. On Wednesday, 13 March, broad- hey, a former finance minister, now working caster John Laws grilled Dr Wooldridge for merchant banker JP Morgan, served for about his new job and the GP House scandal. only two terms in the federal parliament but, I try to be fair about these things, as senators after rolling in his pension from his years as know, but it was a very oily performance a New South Wales government politician from former minister Dr Wooldridge. He and premier, he is also on a very comfortable said this: wicket. Steve Lewis, a journalist from the Now it would be very nice if at forty-five years of Australian Financial Review, wrote on 18 age I could retire but I haven’t become rich in February: politics. I can’t go back to training and surgery. Mr Fahey, who retired at the last election, con- I’m fifteen years out of date. I have a wife who is firmed yesterday he had signed on with JP not in the work force, I’ve got young kids and I Morgan three weeks ago. The bank’s head of in- have to work. Prior to leaving politics I actually vestment banking, Mr Trevor Loewensohn, said took written advice from the Secretary of my the former minister would assist JP Morgan in Department as to what should apply to a senior securing government deals as well as providing public servant if they left their job. Although not broader government relations advice. required to do so I actually applied those same standards to myself. I’d suggest no Minister’s JP Morgan acquired one of Australia’s oldest ever done that before ... But I am a doctor, I was broking firms, Ord Minnett, last year. Ord Min- working in health before I went into politics and I nett, in turn, played a significant role in the sale do have to work to support my family. of the first two tranches of Telstra. JP Morgan is also a member of the AMP-led Gateway consor- 1002 SENATE Tuesday, 19 March 2002

These standards did not last too long. He was But you could’ve applied for your super be- snaffled by the Royal Australian College of cause that change only applied to new MPs. Then General Practitioners and his new part-time it wouldn’t have applied to you? job was announced on 16 January this year. Dr Wooldridge says: This is what Dr Wooldridge went on to say Sure and any law that’s passed about work af- to John Laws: ter politics won’t apply to me because it can’t be I’ve voluntarily chosen to apply a standard that retrospective. I’m talking about the future and if applies to a senior public servant even though … you want good people to go into politics you have I’m not required to do so. I’ve done that at sub- got to find a way for them to earn a living once stantial financial cost because a lot of work I’ve they leave. knocked back and a lot of money I’ve knocked That is a bit of a surprise, isn’t it? You have back even though I’m not required to knock it Dr Wooldridge talking about the future, al- back I just thought it proper to do so. though I think until then you could have Senior public servants have to cool off for a taken it as read that the impression was that year. Dr Wooldridge cooled off for a month. he was talking about himself. So Dr That is what he did: he cooled off for a Wooldridge, in this particular interview with month. John Laws said: John Laws, was badly sprung. Do you think that there should now, given the I want to say this: some of the arguments stir that’s been caused by this and by Peter Reith that Dr Wooldridge mounts are valid, al- and to a degree by John Fahey, do you now think though the context they were being put in that there should be a cooling off period for your was entirely self-serving. There ought to be people’s sake as much as anybody’s? cooling-off periods for ex-ministers, along Dr Wooldridge said: with the capacity for young retired politi- Well that’s what I have observed myself … cians to continue working. Of course, we say He knew the rule for senior public servants, that trying to fudge your own circumstances, and then he disregarded the rule for senior like Dr Wooldridge was doing on the John public servants. Laws program, is beyond the pale. These two There is more. This is an extraordinary conflicting elements have to be sorted: a interview. During the next part of the inter- right to a profession beyond politics and the view you would really think you would be public’s right to be satisfied that a former hearing violins in the background as Dr minister is not advantaging a company with Wooldridge was speaking to John Laws. He some insider knowledge. said: Senator Murray indicates that the Demo- … you have to earn a living. So if the public crats will be taking advantage of the fact that doesn’t want MPs to get their super that’s fine but this particular bill is before the Senate by how are they actually going to live? It’s not like a attempting to entrench in legislation their plumber who loses their job and can get another own remedy: a two-year cooling-off period job as a plumber. If you’ve given up a career for during which ex-ministers and senior minis- fifteen years to go into parliamentary life, you terial staff would not, to quote the Demo- know I can’t go back to my surgical training and I crats, be able to: can’t pick up where I left off. So you do actually … provide advice for personal profit or for com- have to earn a living somehow. mercial advantage on any aspect of the work of This is a situation where Dr Wooldridge is any department or agency for which the former trying to peddle some sort of perception to minister had ministerial responsibility for any radio listeners that he is getting a piddling period of time during the last two years of service amount from the Royal Australian College of as a minister. General Practitioners and that he cannot ac- Last week, the Senate dealt with a motion, cess his $2 million worth of superannuation. standing in the name of Senator Brown, that In this case, the radio interviewer called Dr put forward the Greens’ remedy to this same Wooldridge’s bluff. He said: problem: a five-year cooling-off period, as I recall, during which an ex-minister would be Tuesday, 19 March 2002 SENATE 1003 banned from taking an appointment that is Senator FAULKNER—I was not sure directly related to his or her portfolio. whether you were going to bring your Min- I accept that these are all worthy attempts isters of State (Post-Retirement Employment to try to fix the problem. They are brought Restrictions) Bill 2002 forward, because I about in the face of inaction from the gov- think we all understand there is pressure on ernment. But, as Senator Murray said in his general business time in the chamber. In that speech during the second reading debate, just situation, as we are going to have a further a few moments ago, the opposition have debate, I am happy to elaborate on these im- their own remedy. We believe it is more bal- portant issues later in the week. But I have anced and more appropriate to Australian indicated what the opposition’s constructive circumstances. It was announced by the approach on this issue is. We will be pro- Leader of the Opposition, Mr Crean, on 20 gressing our views and, as I indicated in my February this year. We believe that the ap- opening remarks, the opposition will be sup- propriate cooling-off period is 12 months. porting this legislation. This means that ministers, for a 12-month Senator COONEY (Victoria) (9.16 period after ceasing to be minister, could not p.m.)—I begin my contribution to the debate take employment with, nor act as advisers or on the Ministers of State Amendment Bill consultants to, any company or business in- 2002 by saying that while I have been in terest with which they had had official deal- parliament I have seen many people become ings as minister in their last 12 months in ministers, and many of them have been great office. Ministers would also be required to ministers. Ministers are paid very modestly, undertake that, on leaving office, they will given the responsibility they have and the not take personal advantage of information work they have to do. When you compare to which they have had access as a minister, what they do with what people outside get where that information is not generally for what they do, it is clear that ministers are available to the public. not paid enough by that standard. But I think We also believe that this new standard, the there is a concept in the community that the need for which has been drawn starkly to the office of ministers and, indeed, the office of attention of the Australian public because of members of parliament have sacred dimen- the examples of Mr Reith, Dr Wooldridge sions to them. I mean by that that it is ex- and Mr Fahey, is more appropriately en- pected that what motivates a member of par- trenched in the so-called prime ministerial liament, what motivates a minister of the code of ministerial conduct. It is for the Crown, is more than the remuneration or the Prime Minister to determine the standards of glory which they might gain from those ca- conduct required of his or her ministers. It is reer paths: what motivates them, or should then for the electors who put the government motivate them—and I think in most cases in office to hold ministers to account for their does motivate them—is a desire to see the observance of those standards and, impor- country better governed and the country ad- tantly, to hold the Prime Minister to account vanced at all levels and that the citizens who for his or her willingness to enforce the stan- they are elected to represent are properly dards. represented in the sense of gaining good laws and good administration. I am aware that we will have a further op- portunity to debate these issues at a later Ministers are kept honest, if you like, to stage. It is still not entirely clear to me use that expression, by the operation of the whether we will be doing that in the com- parliament from which they are taken. This mittee stage of this bill or when Senator is a system where we have responsible gov- Murray, perhaps as soon as Thursday of this ernment. It is proper that there be between week, brings forward the private member’s the executive, the ministers, and members of bill— parliament who are not ministers a proper respect. I think things function only if there Senator Murray—We have circulated the is a level of respect and a level of acknowl- amendments to this bill. edgment that each has a function to perform. 1004 SENATE Tuesday, 19 March 2002

That goes as well for the other arm of gov- discussion here tonight about whether or not ernment, the judicial arm. It is proper that people who have been ministers should take this place pays proper respect to the judiciary on work related to the portfolio they held for and that the judiciary pays proper respect to two years or 12 months, or what have you, the government and to parliament. and it is proper that the appropriate laws are A good example of that is the discussion passed. But in the end laws, written laws or or exchange of letters that took place be- black letter laws, do not bring to a system tween Mr Tim Fischer, a person for whom I what is fundamentally needed. What is al- have the greatest of respect, and the then ways fundamentally needed, I believe, is a Chief Justice of the High Court, Sir Gerard particular approach to things, an ethical atti- Brennan, when there was loudly proclaimed tude to things, a realisation that we are about criticism of the High Court over the alleged the noble function. Those sorts of attitudes, delay it took in producing the judgment in those sorts of realisations, those sorts of in- the Wik case. I think it became clear at that sights I think are what are more likely to point that there has to be, for the proper gov- bring the sorts of results we want in this ernance of this country, a respect paid by and place. between all arms of government. Sir Gerard Senator Faulkner said that, in the end, it is Brennan made that clear at the time. He is a the Prime Minister who decides whether a person who has had a great and lasting effect minister comes or goes and what happens. on good government in this country, together That is true, and I have seen that happen over with two of his children that I know: Frank the years. Some people I think are very Brennan, the eminent reformer in Australia harshly dealt with by that system. Two peo- of government in general, ought to be ac- ple who have sat in this chamber who I feel knowledged on this occasion; and another were overharshly dealt with were Senator person who is not as often acknowledged but Short and Senator Gibson; other people have ought to be acknowledged, Mr Tom Brennan, had much greater latitude allowed them. But, a jurist in this town. in any event, this is the point I want to make When we are discussing the issues of what tonight: the concept that, to get a system should happen to ministers once they leave working as we want, laws are important. The here and what should happen to ministers laws we pass tomorrow when we come back while they are here, the point I want to make here into the committee stage are important. is that when we are discussing those things But, overall, unless there is a particular ap- we have to discuss them in a context of some proach to things, a realisation of what we are expectation that as a parliament, as an ex- on about, we really will not get to the point ecutive and as a judiciary we are about high we would like to get to. and noble tasks. We might laugh at that ex- Senator MURPHY (Tasmania) (9.25 pression because oftentimes it is the grim p.m.)—I want to say a few things about the part of the processes in this place that we Ministers of State Amendment Bill 2002, but look to—the tough riposte, the tough ques- also I want to give more focus to the tion and answer and the exchange across the amendments proposed by the Democrats. I chambers. All of these are needed, but at the take Senator Cooney’s point: you can make same time there should be this underlying as many laws as you like; but unless those regard and respect in the system; otherwise I laws are applied, and applied properly, then think we do get to problems where there is they are of no real consequence. I think that insufficient regard had to the system, and is a very important fact in all of this, when that is a bad thing. It would be overdramatic considering what the Democrats are sug- to say that that was a problem at the moment, gesting by way of their amendments con- but it could become a problem, and I think it cerning people not being able to take up em- is worthwhile talking about it at this stage. ployment in other areas that might be di- Given matters that have occurred here re- rectly linked to their role in the public sector. cently and, indeed, in the past, I got up to Looking at the administration process contribute to this debate. There has been a generally, we see that certain people are re- Tuesday, 19 March 2002 SENATE 1005 sponsible for oversight of public administra- I have dealt with one inquiry in respect of tion, whether in finance or other areas. That the Taxation Office where a senior tax coun- is one of the major problems we have, and sel came and gave evidence on behalf of the that has always seemed evident to me during tax office but who subsequently went to pri- my time in the Senate and in the inquiries vate sector employment. It is not difficult to with which I have been involved regarding envisage the sorts of problems that might public administration or problems associated arise as a result of that transfer in employ- with public administration. Cutbacks occur ment. By the same token, you cannot deny a in the resources, the financing of bodies that person the opportunity of remuneration to are responsible for public administration and take up that opportunity. We know there are oversight in various areas. Here I am talking a significant number of laws in place that about authorities such as ASIC and APRA, deal with these matters, including the Crimes even some aspects of the Reserve Bank, and Act, and we know most public servants are areas such as telecommunications and taxa- required to sign and enter into secrecy provi- tion. As a result of problems associated with sions of employment, but at the end of the taxation, we saw the Prime Minister during day I think the responsibility of ensuring all the last federal election campaign make an this actually works is going to fall on the announcement about having an inspector- administrators of the law. They are just a few general of taxation; that has yet to come to comments I was seeking to make in respect fruition. It is clear to me that many of these of the Ministers of State Amendment Bill authorities have insufficient resources to 2002 and the amendments that the Demo- check on what is really happening. crats are proposing to move. Even if we were to put the Democrat Debate (on motion by Senator Coonan) amendments in place, and I support their adjourned. general thrust, we in this chamber and those DISABILITY SERVICES AMENDMENT in the other place are not to know, necessar- (IMPROVED QUALITY ASSURANCE) ily, whether a former minister, a former ad- BILL 2002 viser or, indeed—I think, equally impor- tantly—people who have worked within Second Reading some of the departments have transferred Debate resumed from 13 February, on into the private sector, and we cannot and motion by Senator Ian Campbell: should not stop them from doing so. We live That this bill be now read a second time. in a democracy and, if people who are expert Senator BUCKLAND (South Australia) in a particular field are offered an opportu- (9.31 p.m.)—I rise to speak on this important nity with a substantially increased salary ar- bill, the Disability Services Amendment rangement in the private sector, we should (Improved Quality Assurance) Bill 2002— not be denying them that. But we must have and indeed we are supporting this bill. How- in place checks and balances that allow us to ever, there are some comments I would like ensure that the public interest is protected. I to make tonight about it. The bill seeks to think that is one of the greatest problems we improve disability services for Australian are confronted with at this point in time with people, those people who are suffering from the people to whom we give the responsibil- disabilities of many types, and to provide ity for oversight of public administration—in funding for services under section 14K of the terms of ASIC and APRA—and private ad- Disability Services Act 1986, requiring ministration. Many reports, including media monitoring quality against standard of the reports, have highlighted problems with the services—something we often do not think failures of insurance companies, telecommu- very much about at all. We often set stan- nications companies and a number of others, dards for things like services for people with and there is the need for a strong public ad- disability, but whilst there is a standard there ministrator that can ensure the potential for is not necessarily a service that can really ‘insider trading’, for want of a better de- deliver the standard in real terms. I trust, scription, does not occur. 1006 SENATE Tuesday, 19 March 2002 from reading through the bill, that it will be decision making and choice; privacy, dignity able to provide those things required. and confidentiality; participation and inte- The bill’s primary aim is to establish a gration; valued status; complaints and dis- new quality assurance system for specialist putes; service management; employment disability employment services and rehabili- conditions; employment support; and em- tation programs. Perhaps what really brings ployment skills development. We often me to my feet tonight is a desire to get those overlook those things, and indeed they people into the workplace. On that basis the should not be overlooked, particularly em- bill is good. It seeks to improve services to, ployment conditions, employment support and treatment of, people with disabilities. and employment skills development. The bill is very similar to the Disability As a child, I remember a young lady Services Amendment (Improved Quality whose age at that time I could not tell you. I Assurance) Bill 2001 which lapsed before always thought she was quite old, but appar- the most recent federal election. As it stands ently she was in her late 20s or early 30s. At now, this bill is the outcome of the recom- that time, of course, anyone over 16 or 17 mendations of the 1997 Disability Quality was old to me. I remember that this young and Standards Working Party report. The lady was picked up each morning by a spe- report was called Assuring quality. The bill cial bus and taken to a special school. She represents the open consultation that has oc- was locked away from society. As I said, I curred. grew up in a time and in an environment that It is interesting to look at disability serv- did not encourage too much interaction with ices provided today and compare them to this type of person, but I actually got to talk disability services provided when I was a to this lady at one stage. I found that her younger person. When I walked around the mind was not affected at all—she could have streets I was told not to look at a cripple be- a conversation—but she had some difficul- cause that was rude. If someone was in a ties with handling the stresses of life with her wheelchair, it was very hard as a child not to physical handicaps. Today it is a joy, in my notice them. Your parents, or those you were view, to visit some of those places that we with, did not want you to really notice them: have set up to help train and integrate people there was something wrong with them. with mental and physical disabilities into our Sadly, I grew up in an environment that re- mainstream society. lated disability through some body malfunc- In the late eighties and early nineties, par- tion with disability of the mind. Of course ticularly around the 1994-95 period, I was we know now that is not the case. I think we very pleased to help workers of the Com- should count our blessings daily it is not the monwealth Rehabilitation Service map out case. We now find people with a multitude of programs for a number of people in Whyalla disabilities to be an integral and important to be integrated into the mainstream work part of our everyday society. I think this bill force. It was a wonderful thing to see people will strengthen that. I trust that will be the who, in the past, would never have been con- case. sidered suitable to go into places such as The Labor government in 1993 introduced steelworks or manufacturing plants or to go the disability services standards. It was the into heavy industry situations. By our stan- right thing to do then. It was the right time. It dards, much of the work was quite menial was a good thing to do and, as we now know, but, by their standards, they were having a it was a very decent thing to do. As our soci- chance at life that has developed quite sig- ety moves forward, decency is becoming nificantly. more an important part of our daily living. I was also pleased, in the not too distant The standards set out in the 1993 bill were past, to visit the new facilities of one of the important standards, but they are standards disability services in the Upper Spencer Gulf that need constant revising, upgrading and region. There I saw young ladies—who adding to. Some 11 standards were set out in again in the past would have been put out to relation to service access; individual needs; pasture, left at home or locked away—car- Tuesday, 19 March 2002 SENATE 1007 rying out for industry in the area quite com- integration and participation, but I think it is plex cutting and sewing operations, setting an area that we need to address in a very real machines and putting names on workers’ way. shirts. Again, many of us would think these My understanding is that the Senate quite menial tasks, but setting these ma- Community Affairs Legislation Committee chines is quite complex—knowing how to received some 20 written submissions on the set them, knowing how to spell the names 2001 bill and took verbal evidence at hear- and copying things that in the past they ings in September of last year. Evidence was would not have got a chance at—and they given by representatives of ACROD, a peak are happy in their work. body for disability services, and the National I was also quite interested to see that one Caucus of Disability Consumer Associations. of the contracts this particular company with I think ACROD expressed their support very people with disabilities has is that they—and well. Its CEO stated his belief that this bill: we all take advantage of this, I would sug- … will make a very significant contribution to gest, in our roles here in the Senate—clean, improving the quality of employment services pack, reset and service the headsets that provided to people with disabilities and will im- Qantas gives you to listen to videos or radios prove the consistency of those services across the on the plane. There are not too many among country us who would like that for a job, but these I have described just a few examples of how people are learning the various skills associ- I have seen changes occur. I was very proud, ated with that, and I think it is quite wonder- as I said, particularly in the nineties, to be a ful to see them develop. The good thing with part of developing pathways with the CRS those types of things is that they can develop for these young people, to put them into jobs into other regions or areas of the work force. that in the past, God forbid, we would not let That is something quite wonderful. It is quite women work in, let alone people with dis- wonderful too to see young people who in abilities. It was a wonderful thing to work the past had very little opportunity to com- through that process of bringing another part municate or to be communicated with, using of society into important roles in manufac- computer-aided technology to bring them turing in particular. I think the CEO of into the parts of our society that we so sadly ACROD really summed it up in quite mar- have neglected but are addressing now. vellous words. He said: It is those types of things, providing those It may be that after that three-year period there services to get them into the work force to are some that cannot reach the required stan- make them a part of the community, that are dards— so important in the concept of this bill. But that is, the providers. He said: there are other areas, as there always are. We The bottom line as far as ACROD is concerned is must monitor some of those other standards not the survival of any one organisation but the that continue to be there, such as individual survival of a service to people with disabilities. needs. Rather than cater for a group of peo- I think that sums it up. It is not the survival ple with disabilities, we must look at the in- of the organisation. It is the survival and care dividual, look at the individual needs and of the individual. I think they are quite beau- cater for those individual needs separately so tiful words in the context of this bill and they that each person is treated as a human being are words that I think can ring around for with single needs and single provisions. some time. To provide dignity and confidentiality As is my wont, I keep going back to em- when dealing with these people, to include ployment situations because I do not think them in the negotiations or the discussions that any person contributes to society fully about their care, about their treatment, about until they are in that paid work force, until their future, to have them a part of it and to they themselves feel they are contributing. I help them develop is quite a wonderful thing. have a son who spent a period of time not I applaud the drafters of legislation that pro- able to gain employment in his chosen field. vides these things. I have talked a bit about He and some friends took up voluntary and 1008 SENATE Tuesday, 19 March 2002 part-time work until the right job came along with the same rights as other Australians. A that they could manage and use the skills key principle of that act is the integration of they had been trained for. For a person doing people with a disability as valued members that and knowing that in themselves, despite of the community, and that includes the right them not telling you, they are not worthy to to participate economically. There is a clear be a part of that, it is very hard. I guess that need for reform. Sixteen years after the in- is why many of us feel so much for those troduction of the Disability Services Act, who are unable to gain employment. But, many organisations continue to provide em- looking at people with disabilities, the pay- ployment terms and conditions that are much ment of award based rather than award less favourable than those enjoyed in the wages, the mooted implementation of the general work force. Many do not have a legal supported wage system and the special diffi- workplace agreement; many pay wages well culties faced by people in negotiating and below the federal award wage—the award understanding workplace agreements were safety net enjoyed by others in the Australian discussed as part of the inquiry. We do often work force by the use of pro-rata wage as- discuss these things. I remember, when I was sessments but which do not take into account in negotiation in the nineties with the groups the capacity of the individual compared to that were going to go into the work force, a productivity and conditions of employees damned lot of discussion taking place—but without a disability. Some employers seek to not until I had convinced the group that we take advantage of the intellectual impairment did not actually have any of the potential of employees by negotiating workplace workers with us while we were making quite agreements that they cannot understand or significant decisions for them. We had not where they cannot bargain with any power. even showed them what we might be doing The present system of compliance is being to get their views. I think that, in promoting a monitored by a combination of annual self- bill like this, we should be ensuring that assessment by the service provider, and an these people are involved in each and every audit by the Department of Family and step of the way so that they do take a part in Community Services has not ensured service their future. Seeing a person who has got provision of adequate quality. severe disabilities does not mean that they The bad-news reports and lack of compli- have disabilities of the mind and they cannot ance continue to undermine the principles do things. There is a differentiation there. I and objectives of the Disability Services Act. have been guilty myself in the past of not The Australian community, rightly I think, realising the real potential that exists. expects that taxpayer funding should not be If we are serious about a bill such as directed to any organisation that discrimi- this—and I believe that we are serious about nates against the rights of people with a dis- it—not only do we need to pass this particu- ability. The basic precept of the Disability lar piece of legislation but we have to be Services Act is to treat people with a disabil- diligent in monitoring it carefully, amending ity as people, as Australians with the same it as needs be and continually talking to the rights to grow and participate in the commu- people in the system to get feedback from nity, including in the work force. Quality them and investigating better ways because, assurance is an integral measurement tool of whilst this is as good as we can do now with the degree to which those rights are being the knowledge we have, in five years time met. We have an obligation to prevent people we may find it is not the best way. (Time ex- who are least able to stand up for their own pired) rights from being exploited by being em- Senator ALLISON (Victoria) (9.52 ployed under appalling employment terms p.m.)—I rise to speak about the Disability and conditions. At the same time, we recog- Services Amendment (Improved Quality nise that consideration must be given to the Assurance) Bill 2002. The primary goal of viability of enterprises that employ people the Disability Services Act 1986 is its recog- with a disability. To have people with a dis- nition of people with a disability as people ability in non-viable businesses provides Tuesday, 19 March 2002 SENATE 1009 neither decent wages nor decent employ- them. I am particularly concerned for the ment. vulnerability of isolated rural and regional I recall the story in a recent disability services in this respect. The Democrats rec- sector publication of Mr Gary Partridge, who ognise that employers who take on employ- single-handedly decided to fight the exploi- ees with a disability do so with good inten- tation of workers with a disability. Mr Par- tions or that those whose businesses com- tridge had worked at the same factory in prise wholly or mainly of people with a dis- New South Wales for 13 years for 73c a day. ability have good intentions. Accordingly, if In addition to being paid this pittance, Mr we are to move the goal posts of compliance Partridge was not receiving any superannua- standards, it is essential that employers be tion. He sought help from the relevant union given encouragement to provide practical, but received no help from them. The Demo- workable strategies to help them improve the crats asked questions on notice in this place quality of the services they provide. regarding the employment conditions, pay If there is one thing that strikes me about and superannuation of employees at Gary’s this bill and the means it intends to intro- workplace. Additionally, he approached tele- duce, it is the inordinate delays that surround vision media. The preparation and airing of it. The Disability Services Act has been employment conditions at this workplace around for 16 years. For nine years we have subsequently shamed them into ensuring that had had the disability services standards, employees were being paid the lowest pro- which introduced the three levels of per- rata rate under the award and also superan- formance within that legislative regime with nuation as per the award, backdated to Octo- the intention of improving the standard of ber 2000. Later, Mr Partridge was successful services being offered. The bill before us in making retrospective payments for wages arises from an announcement from the gov- and superannuation to him and other em- ernment in the 1996-97 budget that it in- ployees back to 1996. tended to reform the quality assurance proc- It is all too clear that the present Disability esses for disability employment assistance Services Act and standards, despite the well- services. Five years later, we finally have the meaning rhetoric therein, did not help Mr bill before us, although we still do not have Partridge. There are many more consumers tabled the disallowable instruments to be in the work force who do not have his deter- utilised in assessing whether the standards mination or are too afraid for the security of have been met or not. I can only hope that their jobs to question the legality and the these are tabled with a bit more speed than discrimination of their own positions. The this bill which provides for them. At the quality assurance system proposed by this same time, however, it has proven critical bill is tough in a number of ways, particu- that we dedicate the necessary time and ef- larly on identifying and punishing non- fort to the bill to ensure the interests of con- compliance. Organisations which fail to sumers are being served. We recognise that a comply after the implementation period face genuine effort has been made to gain consen- being defunded. However, as much as we are sus from the sector, and this is demonstrated in the business of ensuring the rights of peo- by the inclusion of the key performance indi- ple with a disability, we cannot disregard the cators in the disallowable instruments. The viability issues that organisations will face as issue of performance indicators as part of the a consequence of this bill. In this regard, I KPIs, as they are known, has dominated in- am particularly concerned that one organisa- dustry debate on the bill since it was her- tion that currently employs 1,100 people alded over the last six months. Certainly with disabilities indicated at the introduction there was dissatisfaction within the sector of this bill last year that it would not be able over that period with the way the KPIs were to continue to employ about 440 of its cur- progressing. rent work force. We certainly do not want to Currently the standards of the Disability see people with a disability put out on the Services Act do not have performance indi- street because of a bill that purports to assist cators. While the primary act contains well- 1010 SENATE Tuesday, 19 March 2002 meaning words and phrases and good inten- the tabling of the disallowable instrument tions, it nonetheless fails to provide the and a closer scrutiny of the key performance framework for fair wages for people with a indicators. We foreshadow that we will dis- disability. It is essential therefore, whatever allow these if they do not do the job at hand; performance indicator is set by the stan- that is, the key performance indicators must, dards—whether it is a one size fits all or a after consultation with the disability sector, multilevel model—that it is specific and not significantly improve the rights of people one which, by its transparency or lack of it, with disabilities in all aspects of employment fails to protect the rights of Australians with and economic participation. a disability. While it is easy to talk about Senator MARK BISHOP (Western Aus- people with a disability as a whole group, the tralia) (10.02 p.m.)—I wish to make a few reality is that true integration does not as- general remarks before I speak about specific sume that all people with disabilities are the elements of this bill, the Disability Services same. Levels of disability range from low to Amendment (Improved Quality Assurance) very high, and support needs and relative Bill 2002. We have come a long way since productivity in employment have exactly the the early 1980s in our treatment of people same variable range. The instrument must with disabilities. The Commonwealth-State have regard for this. Disability Agreement, introduced in 1986, I remarked earlier that the current self- has provided an important framework for the assessment and annual departmental audit delivery of services to people with a disabil- have not worked. This bill provides for the ity. While there is a notional division of re- introduction of a system of accreditation and sponsibility under the agreement, which fa- certification for service providers, compris- cilitates the efficient administration of serv- ing audit teams to be monitored by the Joint ices, the Commonwealth retains a funding Accreditation System of Australia and New responsibility across both employment and Zealand, and it is pleasing to note that each support services. audit team is to include a person with a dis- As we approach the negotiation of a new ability. five-year CSDA, it is important that the The Democrats have not taken lightly our Commonwealth does not walk away from its decision to support this bill. Inasmuch as we commitments. Two years ago, the Common- do not want to see people with a disability wealth and the states recognised significant deprived of employment, it remains that levels of urgent unmet need for disability there is a clear need for reform. It remains of support identified by the Australian Institute concern that some organisations will not, of Health and Welfare. This financial com- after the three years allowed for compliance, mitment must be maintained over the next be able to satisfy the accreditation process five years. Over and above this, the Com- and will lose funding. However, we do not monwealth must show funding leadership in want to promulgate the attitude that change recognising that over the next five years the in the sector of disability employment cannot need for services will continue to grow. This be possible without loss of employment. We growing demand must be met with appropri- strongly encourage the government to dedi- ate levels of growth funding in the new five- cate sufficient assistance to those organisa- year agreement. I am sure people with dis- tions which, in the early process, reflect abilities, and their families and carers, do not symptoms of inability to comply and maxi- want to see a game of blame between levels mise early and full compliance of other or- of government on the issue of funding. They ganisations well within the three-year period. know improvements to services have come We support this bill in the belief that it over time, though not as quickly as demand will make a very significant contribution to has risen. They will be looking for some improving the quality of employment serv- leadership from the Commonwealth and ices provided to people with disabilities and from Senator Vanstone to ensure the next that it will improve the consistency of those CSDA is a further step forward for people services across the country. We eagerly await with a disability—not a backward one. Tuesday, 19 March 2002 SENATE 1011

The purpose of this bill is to introduce a need to change and adapt over time, and this new quality assurance system in the area of is an efficient means for facilitating this. employment services for people with dis- Secondly, and more importantly, there re- abilities, and I believe it represents a step main some concerns, which we share with forward. The previous Labor government the sector, that the draft disallowable instru- was instrumental in reforming disability ment could be improved. This means that, services—and today’s bill builds on those while we are happy to support the bill, we reforms. The disability reform package in- would like to see some further work to ad- troduced by the Hawke government in the dress these deficiencies before we are pre- early 1990s revolutionised services for peo- pared to endorse the disallowable instrument. ple with disabilities and recognised their It is very clear that the changes evident in right to participate actively in society. Some this bill result from the consultative process no doubt believe that the changes begun at discussed previously. It is equally clear that this time did not go far enough and that, the detail contained in the disallowable in- since then, further reform has not progressed strument must also go through a similar pro- quickly enough. Both claims are probably cess of full and honest determination. Any true. That said, we must look at this bill as an determination from the government to do opportunity to move forward to ensure that otherwise would jeopardise the outcome. A people with disabilities who are participating great deal of dedication and hard work have receive quality services. gone into the process so far. That process The Disability Services Act 1986 pro- must be allowed to continue in the same posed a self-assessment process against the fashion. As I have already said, the opposi- disability services standards, with five-yearly tion believe that this bill represents a step audits of services by FACS. This has not forward. We look forward to that initiative been successful for many reasons, including continuing in a similarly positive manner. lack of funding, limitations of the self- Debate (on motion by Senator Abetz) assessment process, radical changes in our adjourned. understanding of disability, and our attitudes towards people with disabilities. Some or- CRIMINAL CODE AMENDMENT ganisations have not been able to meet the (ANTI-HOAX AND OTHER challenge. The bill proposes a new system of MEASURES) BILL 2002 quality assurance. It arises as a response to Second Reading the recommendations of the 1997 Disability Debate resumed from 11 March, on mo- Quality and Standards Working Party report, tion by Senator Ian Campbell: Assuring Quality. It proposes the introduc- That this bill be now read a second time. tion of a system of accreditation managed by an external body, the Joint Accreditation Senator FAULKNER (New South System of Australia and New Zealand. The Wales—Leader of the Opposition in the Sen- revised bill has benefited from a lengthy ate) (10.09 p.m.)—I do hope that this is the consultation process that included the in- second reading debate on the Criminal Code volvement of a Senate committee and dis- Amendment (Anti-hoax and Other Meas- cussions with disability groups. I think the ures) Bill 2002. If it is, I would like to com- bill reflects the honest consultation that oc- mence my contribution by indicating that the curred. However, we have a couple of lin- opposition supports the bill because the bill gering concerns about the bill, and these re- is consistent with commitments made by the late to the key performance indicators that opposition in the lead-up to last year’s elec- will drive the new quality assurance process. tion. At that time, Labor welcomed the coa- lition government’s announcement that, if re- The government have separated out the elected, it would introduce strong legislation KPIs from the bill, and they will now be ta- to deal with the people who prey on insecu- bled as a disallowable instrument. The oppo- rity by sending hoax material through the sition view this as a sensible decision for two post, by courier or by other delivery means. reasons. Firstly, the KPIs will inevitably The bill is part of the government’s fore- 1012 SENATE Tuesday, 19 March 2002 shadowed package of antiterrorism laws. ing of dangerous, threatening or hoax mate- Other parts of the package include enhanced rial through the post or similar services. The powers for ASIO, a general offence of ter- new offences would replace the existing out- rorism, an offence of preparing for or plan- dated postal offences in section 85S, 85X ning terrorist acts and a statutory scheme to and 85Y of the Crimes Act 1914. allow certain property to be frozen and This bill targets the use of postal or simi- seized. I will deal with those broader matters lar services to harass, threaten or menace a little later in this contribution. people. The amendments would ensure that I do think it is important to see this bill in federal offences cover the use of all postal its full context. Following the attacks on the and other like services, not just Australia World Trade Centre and the Pentagon on 11 Post, which is the case at present. Services September 2001, there were a number of that would be covered by the proposed incidents involving the use of anthrax. Most amendments include commercial courier and of these incidents involved contaminated parcel and packet carrying services. The mail. Amid concerns about bioterrorism amendments would also increase the penal- there was considerable public alarm about ties for the offences to reflect the potential suspicious postal items in Australia, and a harm that can be caused by the sending of number of hoaxes were perpetrated involving threatening, dangerous or hoax material. The letters supposedly contaminated with an- new offence regime falls into two distinct thrax. One of those hoaxes was, in fact, per- parts. The first part operates retrospectively petrated on the ALP’s national campaign and commences on 16 October 2001—the office. Indeed, in the period 15 to 16 October date on which the Prime Minister signalled 2001 there were 131 suspicious packages or his intention to introduce such new laws. The letters reported to the police in Australia. government has said that it does not lightly Public alarm about anthrax was not con- pursue retrospective legislation. It justifies fined to postal articles. In late October 2001 its proposed retrospectivity on the grounds white powder was found at the University of that the Prime Minister’s announcement re- Canberra, the National Gallery of Australia ceived widespread media coverage. and the Qantas baggage handling area at One of the criticisms that can be directed Canberra Airport. This resulted in evacua- at retrospective criminal legislation is that tions, decontaminations, quarantining and people will be unaware that their conduct other such disruptions. Between 11 Septem- may be an offence. Generally, the rule of law ber 2001 and February 2002 it is reported is undermined when citizens are unable to that Australian police investigated more than make choices and conduct their lives in reli- 1,000 anthrax hoaxes. Given the manipula- ance on the law as it stands at any particular tion of information by the Howard govern- point. However, in this case, the govern- ment over the course of the 2001 election, I ment’s statements were in clear terms and take considerable comfort from the fact that received immediate and widespread public- this legislation is a response to independently ity. Further, the perpetration of a hoax by verified and corroborated events. sending a dangerous thing could never be Of course, it is a sad day, as my col- considered a reasonable action that a person leagues would acknowledge, when you was entitled to do before these amendments. doubt the veracity of the government over As such, the bill does not retrospectively matters of national security. But that, of affect a legitimate right and does not contra- course, is the sorry state of affairs we now vene fundamental principles of fairness or face following the government’s handling of due process. In these circumstances, Labor is the now infamous ‘children overboard’ affair. prepared to support the retrospective appli- The irony of the Howard government legis- cation of this provision. The retrospective lating to punish those who perpetrate hoaxes provision will be a new offence to deal with is not lost on the opposition. This bill pro- hoaxes involving explosives and dangerous poses to amend the Criminal Code Act 1995 substances. A person will be guilty of that by adding new offences relating to the send- Tuesday, 19 March 2002 SENATE 1013 offence if they intentionally send an article those provisions have been excised from that by a postal or similar service. bill—at least for the time being. Public ser- The second part of the proposed amend- vants and journalists should never be treated ments covers those offences commencing on as spies. A free press, an independent Public royal assent. These are: firstly, using a postal Service and protections for whistleblowers or similar service to make a threat to kill or are important safeguards against heavy- cause serious harm; secondly, using a postal handed abuse of power by governments. La- or similar service to menace, harass or cause bor will be careful to ensure the espionage offence; thirdly, causing a dangerous article legislation does not have the consequence, to be carried by a postal or similar service intended or otherwise, of creating new of- where there is a danger of death or serious fences or increasing penalties for whistle- harm; and, fourthly, causing an explosive or blowers who communicate information that dangerous or harmful substance to be carried does not prejudice national security. by post. The opposition believes that the of- Parliament ought to be smart enough to fences and penalty levels set out in this write laws that differentiate between, on the amendment to the Criminal Code are appro- one hand, spies who are acting against the priate. national interest and our national security While this bill is in line with Labor’s and, on the other hand, whistleblowers commitment to fight terrorism, it is only one whose actions may well be in the national piece in a larger scheme of legislation that interest. A public servant may well act in the the government proposes to introduce in this public interest when they provide informa- session. Labor will be keeping a very close tion on government wrongdoing or rorts. Of eye on these new laws. Labor are committed course, those who have received that infor- to dealing with terrorism. We believe it is mation, whether it be members of parlia- important to protect the safety of the Austra- ment, journalists or others, can also act in the lian community and to play an informed role public interest by exposing it. We are also in the international effort against terrorism. very sceptical of the proposed powers to be We are committed to responding to the threat given to the Attorney-General to unilaterally of terrorism because we want to protect the ban organisations. That proposal, along with very systems and institutions that set us apart the whole of the government’s antiterrorism from the terrorists. The reason for the war on package, will of course be reviewed—I hope terrorism is to protect the rights and privi- exhaustively—by a Senate committee. leges that we all enjoy in a functioning de- The Labor Party are about balancing secu- mocracy. It is about protecting such princi- rity and freedoms. We are about protecting ples as the rule of law, freedom of speech the freedoms that terrorism seeks to take and the right of free movement. away from us while at the same time making I am concerned that the freedoms we sure the systems are in place to tackle ter- cherish could be threatened by some ele- rorism head on. That is a tough balancing ments of the government’s package of act, but it is a necessary balancing act for this antiterrorism laws—the biggest raft of secu- parliament. It is important to keep our sense rity legislation since World War II. An ex- of reality when dealing with these matters ample of a potential threat to our freedom and to make sure that we strike a balance that was the government’s proposal to label pub- does not forget important civic traditions. lic servants and journalists as spies, prose- To preserve liberty we must preserve the cute them and throw them in jail—ironically, rule of law. Of course, the rule of law is the by a government that itself has shown a pro- alternative to the rule of terror. Labor will pensity towards the spying game. Those pro- not be writing the government a blank visions were to be contained in the Criminal cheque on antiterrorism laws. We will work Code Amendment (Espionage and Related with the government to tackle terrorism but Offences) Bill 2001. But, as my colleagues the government must proceed with caution would acknowledge, as a result of pressure and work with Labor to ensure that we pro- from the opposition and the community, tect the freedoms that are the signposts of 1014 SENATE Tuesday, 19 March 2002 our democracy. I know that Senator Bishop punish that person even though the matter in his second reading contribution will ex- may not be made a crime until months later. plain in some detail the opposition’s ap- Are we going to have a declaration made proach on the provisions of this bill. In now for which a person can be later pun- summary, the opposition support the bill. ished, even though at the time the declaration Senator COONEY (Victoria) (10.24 is made the matter is not a crime? Anyone p.m.)—As Senator Faulkner has said, the who committed an act that is going to be opposition supports the Criminal Code made a crime under this legislation could not Amendment (Anti-hoax and Other Meas- have been punished between October last ures) Bill 2002. I have a particular concern year and now—that is, for the past five with this bill in terms of the retrospectivity months. But now, because of this retrospec- which it will enact. It will make a particular tive legislation, a person is going to be pun- act a crime back to 2 p.m.—by legal time in ished for actions which were not a crime the Australian Capital Territory—on 16 Oc- when they were taken. tober 2001. Retrospectivity in criminal law is The only justification for this retrospec- a bad thing, and I am not the first one to have tive legislation is that the Prime Minister has said that. declared—as said by Senator Faulkner in Thomas Hobbs wrote the Leviathan in fairly precise terms—that it would be a 1651 and at the time he was moved to say: crime. Are we going to have criminal law made by declaration? I can understand civil No law made after a fact done can make it a crime. law being made retrospective, but civil law does not do what criminal law does. Under He goes on to say: this retrospective legislation, criminal law Harm inflicted for a fact done before there was can lock you up for 10 years. It can take the law that forbade it is not punishment but an away your reputation, it can take you away act of hostility. from your family, it can take you away from Over 110 years later, Sir William Blackstone, your job. Criminal law can inflict upon you who Senator Bishop would know about, in all those disadvantages. The basis of our his commentaries on the laws of England— laws are the great documents like the Magna Senator Mark Bishop—I don’t know Carta, the Bill of Rights and so on—and they him. have underpinned the law not only in Eng- Senator COONEY—You should have land but also here and in America—where heard of him if you have any regard for the constitutional rights are embedded to enable law. Sir William Blackstone said: people to be treated as they should be treated. Crime has always been with us. All laws therefore should be made to commence in futuro and be notified before their commence- I now want to quote a statement by Mr ment, which is implied in the term prescribed. Frank Vincent, as he then was, made at the When this rule is in the usual manner notified and Crimes Commission Conference in the old prescribed, it is then the subject’s business to be Senate chamber, where I began my career in thoroughly acquainted with it. this parliament. Mr Vincent was at that stage I also quote from an earlier part of Sir Wil- an eminent silk; he went on the become a liam Blackstone’s statement: Supreme Court judge in Victoria and is now There is still a more unreasonable method than a judge in Appeal of the Supreme Court of this which is called making of law ex post facto Victoria. He is an eminent jurist, a person when after an action is committed the legislature who I would declare to be—who I do declare then for the first time declares it to have been a to be—a man with more knowledge and ex- crime and inflicts a punishment upon the person perience of the criminal law and more feel who has committed it. for the criminal law than any other lawyer in What has been said tonight is this: if a Prime Australia. I do not make that statement Minister, a minister of the Crown or indeed lightly, but it is true. Mr Vincent made this anybody with any authority says something statement on 28 July 1983, which is now is wrong, then it is all right for the state to almost 20 years ago: Tuesday, 19 March 2002 SENATE 1015

It was made perfectly clear this morning, as a criminal offence to do what is set out here.’ you will all know, that there is no new problem of What is set out here is to be condemned. The organised crime— idea is that people will be punished if some- they were talking about organised crime at thing is a crime. The idea is to make it a the time— crime tonight, and then people who do these This and every other community have suffered deeds afterwards will be properly punished. from crime, organised and disorganised, through- Have the offences that this punishes oc- out their entire histories. Yet, we are being sub- curred in a proliferation of cases? What jected at the present time to an amazing amount about this matter of a person who causes an of propaganda which has been introduced in the article to be carried by a postal or similar media in the form of assertions, all of which are likely to engender considerable fear and appre- service where the article is dangerous? Has hension in an already fearful community. that been prevalent? No. Is this sort of thing already a crime, in any event? Yes, so it can I am concerned because this community is as much in danger from those who wish, in their be dealt with under other provisions. Why attempts to protect its members, to limit rights then do we have to introduce this new prece- and freedoms as I am concerned with the prob- dent of making criminal law retrospectively lems of organised crime. Both of these philoso- effective from the time that a Prime Minister phies, based on greed— or a minister makes a declaration? Is a single in that case he was talking about people who person, even one who is the head of a gov- rob and steal, but it is comparable to what is ernment, so all wise that he or she—I hope it going on here now— will be she one day—makes a statement about it? on the one hand or, on the other, on some attempt in the interests of the community, have the practi- Indeed, why have parliament? Why don’t cal effect of subverting the very society in which we simply have the executive making these we live. That cannot be tolerated on either basis. statements? People will come along and say, That has to be emphasised and re- ‘That seems fair enough. Yes, we’ll tick off emphasised again. We do not want the arbi- on that.’ Why have a parliament? Why have trary power of the criminal inflicted upon an institution dedicated to making laws if all society; nor do we want the arbitrary power we are doing is rubber-stamping what is of government. Both can destroy the sort of said? What would happen if we rejected this society we want. And if we want a society legislation? What would happen to all the where the criminal laws are made by decla- people that Senator Faulkner spoke about ration, months before a bill is enacted, and who have done these deeds? Does that mean where people are punished for that, the rule they do not go punished? And if they do not of law in this society is under serious attack. go punished, why do they not go punished? I want to be very much on the record to- Because parliament has not made the law. night as showing my great concern, my dis- Where does that get us? If a statement is appointment and my apprehension at this made by a Prime Minister or a senior gov- legislation in so far as it is made retrospec- ernment official—the Attorney-General, for tive to 16 October 2001. Criminal law is example—what do people do? Are they go- needed to ensure that this society is the sort ing to be able to act in a particular way? If of society we want to live in, but the proper one lot acts in a particular way and the other enactment of criminal law—the proper proc- says, ‘No, I’m going to wait to see what hap- esses by which criminal law is to be made— pens,’ that means one lot do deeds for which is also absolutely necessary for the sort of they are not punished, because the law ulti- society we want to live in. It is very worry- mately is not passed, whereas the other lot ing that this parliament can get up and say, are put at a disadvantage because they have ‘Well, because the Prime Minister made a desisted from doing things for fear of some- statement at a particular time on a particular thing becoming criminal which in fact never date and gave people a general idea about it, does. and because we do not like the sorts of things The sort of thing talked about here is these people have done, we will now make it criminal, you would have thought, in the 1016 SENATE Tuesday, 19 March 2002 sense of being a bad thing. I fully acknowl- The interesting thing is—and I keep edge that. I acknowledge that the sort of coming back to this—that the sorts of things thing that is being done here is bad. But I am I am talking about are by no means new; saying that just because things are bad does they have been the tradition in the law that not mean that they ought to automatically we have followed for hundreds of years. But attract punishment. Why is that? Because now people have gone ahead and done that is how our democratic system works. We something and suddenly we say, ‘Look, this in a democratic society say, for better or is bad and we are going to retrospectively worse, that we are going to have a process pass a law that punishes it, and we are going and that, although there are downsides to to do that from now on.’ Is this the proposi- that—perhaps people are not punished when tion, that from now on whatever we find to they should be—there is a much greater up- be against conscience or to be wrong, or side, because we say that there should be a whenever we think something ought to be process so that people are not wrongly op- made criminal, we simply make a retrospec- pressed, wrongly punished, for what they do. tive law? At this stage, at least, somebody Should we suddenly say one day that has to declare that they are going to make statements people made six months ago are that law, but are we now on the slippery slide now punishable because we say that they so that the next step is you do not even have should have known they were going beyond to talk about making the law? Is the next step a joke when they made those statements? Is the proposition Senator Faulkner put forward that fair? Senator Faulkner said that we will that, if we should have known it was wrong, make sure the media are not punished. But that is near enough? what if a prime minister says, ‘I am going to The opposition is supporting this legisla- punish the media for past deeds as soon as I tion. You have probably gathered that I have get legislation through.’ It might be a year some difficulties with part of that approach. I later that he gets it through. Are the media do think that it would be a dereliction of duty then going to be punished because the Prime on my part not to raise these problems at this Minister made a statement 12 months prior time. If we had a sense of what this society is to that? all about, a sense of where we ought to be Senator Faulkner says that he trusts the going, a sense of the preciousness of the de- Prime Minister in these circumstances and he mocracy we live in and if we had a true ap- understands what the Prime Minister says. preciation of the sort of society we want—a Senator Faulkner says, ‘I am going to go all secure one certainly, but also a free and open the way with the Prime Minister on this be- one—then we would be very troubled by this cause the Prime Minister made it clear.’ particular clause. I hope Senator Crane is What if you think that the Prime Minister going to speak on this. I can see he is. I am should not be accepted on this occasion be- glad there are a couple of other senators who cause he did not make it as clear as he are going to speak on this, and so they should? If you are going to be punished with should. I will sit down and let them at it. But a 10-year jail term, shouldn’t you be entitled before I do I indicate that this is a bad law to have a law so that you can look at it and and as Edmund Burke said in 1780, ‘Bad see exactly what is prohibited? If you simply laws are the worst form of tyranny.’ This leave it nice and vague and say, ‘We are go- particular legislation fits the category that ing to punish anything that people ought to Edmund Burke was talking about. have a problem of conscience about’ then Senator CRANE (Western Australia) where do we end up? We can come in here (10.42 p.m.)—I rise tonight to speak on the and say, ‘Oh well, you should have known Criminal Code Amendment (Anti-hoax and that this might become a criminal act, you Other Measures) Bill 2002. My interest in should have known that this is a bad sort of a this was fuelled, as was the interest of the thing to do, therefore we are going to punish previous speaker, Senator Cooney, by my you.’ work on the Scrutiny of Bills Committee. There are two or three points I would like to Tuesday, 19 March 2002 SENATE 1017 make. I am not opposing this legislation, that I want to see a very clear commitment because I believe it was made in exceptional that it will not become the norm or even circumstances. As I understand it, the state- happen every now and then. We had extraor- ment was made by the Prime Minister with dinary circumstances on September 11. I do the full knowledge and support of the oppo- not think anybody would deny that. We had a sition—that is what I am informed. My con- situation where we were in the middle of an cerns are these: one, the retrospectivity of it election and there was need to take action. I and, two, the issue of the making of law, can accept it on that basis. But I think that particularly criminal law, by press release. we should make it very clear as a parliament Even though this has been done, and I under- that we do not want it to become part of the stand the necessity at the time of it being normal process of making criminal law. done, I would like to see a very clear state- I further quote from my letter, which re- ment that neither the opposition nor the gov- fers to this part of the committee’s response: ernment will use this as a precedent setting In addition, while it is undeniable that perpetrat- mechanism. We see consistently in tax law ing a hoax cannot be considered a ‘legitimate’ and finance law, coming before the commit- activity, what this bill proposes to do is retro- tee I mentioned, legislation or decisions be- spectively declare it to be ‘criminal’ activity— ing made by press release. When you get into again, a different, and more serious, issue of prin- the area of criminal law, you are looking at ciple. Not every ‘illegitimate’ activity is ‘crimi- something very different. It would certainly nal’ activity. Declaring something ‘illegitimate’, be a very dangerous precedent if this were and then retrospectively declaring it to be a crime, used by whoever might be in government in would seem to establish an unfortunate and unde- the future. One of the reasons I raise this is to sirable precedent. A crime may be created by a try to extract a clear statement. simple announcement. The Committee asks the Attorney-General to reconsider these provisions I have spoken to our Attorney with regard ... to that and I have asked him to do this. I I add to that the necessity for a very clear wish to quote some comments that I made in statement here now in the Senate. the letters that I have sent to him. Some of them are taken from our report. In the Attor- I received a reply back from the Attorney. ney’s letter back to us he says: I do not intend to quote the whole letter but I am quite happy for anybody to have a look at It has been accepted that amendments to taxation the correspondence. He says: law may apply retrospectively where the Gov- ernment has announced, by press release, its in- In your letter you outline your objections to the tention to introduce a Bill to amend taxation retrospective application of the new hoax offence law— in the Bill. I make the point that he acknowledges that it He goes on to say: has been used in tax law and other forms of Secondly, your letter states that retrospectivity in finance law. He continues: this instance is wrong, unnecessary and sets a and the Bill is introduced within six months after very dangerous precedent. the date of the announcement (Senate Resolution I stand by those particular statements as far of 8 November 1988). The new hoax offence was as this is concerned, and into the future, be- introduced within four months after the date of cause we really are talking about the setting the Prime Minister’s announcement. of criminal law in this nation in terms of this That is a very long period of time to have particular legislation. I have since written sitting out there what is in effect a criminal back to the Attorney and I have said this: offence law when it has to be debated and Unfortunately it contained no reference of the discussed, and run the gauntlet of the House agreement by the Prime Minister with the Labor of Representatives, of this place and the Party— committee system. It could create some very I had been told absolutely clearly that there interesting and very embarrassing situations was an agreement between the Labor Party for any government if they were to make this and the Prime Minister in terms of the re- a normal process. So my first comment is lease of it— 1018 SENATE Tuesday, 19 March 2002 to the announcement by press release of the both make it quite clear that it is not intended changed or new penalties. to use this into the future. I feel it is important that it is publicly stated dur- Senator GREIG (Western Australia) ing the debate in the Senate that it is not the Gov- (10.51 p.m.)—I echo much of what Senator ernment’s intention in the future to introduce new Barney Cooney has said tonight and some of provisions in the criminal code by press release or retrospectively, except in exceptional circum- what Senator Crane has said. I guess the stances, such as in the period of election, and then point of difference, the voice of dissent, as it with the full support of the opposition. were, between me and the previous two I have no doubt about our responsibilities on speakers is that it is my intention on behalf the committee that I referred to and which I of the Australian Democrats to seek to serve on and many distinguished senators amend this legislation so that retrospectivity have served on—I believe Senator Abetz, the does not apply. Given Senator Cooney’s minister at the table, may have done, and strong argument in that direction, I look for- Senator Ellison, who will be handling this ward to him joining us in support of that legislation, certainly did. It is my view and amendment. that of the committee that this legislation The purpose of the Criminal Code does trespass unduly on personal rights and Amendment (Anti-hoax and Other Meas- liberties in breach of principle 1(a)(i) of the ures) Bill 2002, as has been articulated by committee’s terms of reference. I think it is some here tonight, is to extend federal of- important that I acknowledge that in this de- fences to cover the use of all postal and other bate. I realise that from time to time there are like services, not just Australia Post, as hap- situations where some of these terms of ref- pens at present. The bill also increases the erence may have to be stretched a little— penalties for the offences of sending threat- may have to be broken, if you like—but I ening, dangerous or hoax material through would be alarmed if we cannot get a very postal or similar services. As I have said, and clear position from both the opposition and other speakers have said, the most conten- the government that we do not intend in the tious feature of this legislation is that the future to use this for a precedent setting new hoax offence will operate retrospec- mechanism when it is not necessary. tively, that is from 16 October 2001, which is There were many terrible things in the the date on which the Prime Minister an- follow-up to September 11 such as the an- nounced the government’s intention to create thrax hoaxes, and I cannot think of anything the new offence. quite as horrific as the scenes that we saw, The new offence differs from the existing with the impact that had and the fear that was offence in two parts. Firstly, the existing of- engendered. You can stretch the limits of fence is limited to articles carried by Austra- your principles to deal with those particular lia Post, whereas the new offence extends to aspects of it. But, in terms of lesser things commercial, postal and similar services— and changing the law, I do not think that we and I am sure that we are all familiar with should find ourselves waking up one morn- that kind of parcel/postage availability. Sec- ing—regardless of who the Prime Minister ondly, the penalty for the offence is increased is, regardless of who the Attorney-General is from a maximum of five years imprisonment and regardless of who the government is— to a maximum of 10 years imprisonment; in and find this type of change becoming the other words, doubling it. norm, as it has become in taxation law, fi- The retrospective creation of criminal of- nance law and some other areas. fences is almost always inappropriate. In My appeal to both the opposition and the particular, the practice of backdating the op- government is to recognise the issue that I eration of offences to the date of a press re- have raised in terms of the precedent setting lease should not be encouraged. The Scrutiny nature of this legislation both in its retro- of Bills Committee made the following spectivity and in the nature of the fact that it comments in relation to this bill: is making law by press release. They should Notwithstanding the seriousness of the conduct at which this bill is directed, the retrospective crea- Tuesday, 19 March 2002 SENATE 1019 tion of a criminal offence is similarly a serious appropriate situation in which to use the matter. The bill itself is a very clear example of power to pass retrospective laws. “legislation by press release”— Passing laws creating serious criminal of- and Senator Crane has spoken on that— fences is a much more serious proposition a practice which the Committee has consistently and one which should not be encouraged. brought to the attention of Senators. As the The International Covenant on Civil and Po- Committee has previously noted, “the fact that a litical Rights offers a strong condemnation of proposal to legislate has been announced is no retrospective criminal offences in the fol- justification for treating that proposal as if it were lowing terms, and I will read here from enacted legislation”. within one section of the ICCPR. It states: So the committee then drew the senators’ (1) No one shall be held guilty of any criminal attention to this provision, as it argued: offence on account of any act or omission which it may be considered to trespass unduly on per- did not constitute a criminal offence, under na- sonal rights and liberties, in breach of principle tional or international law, at the time when it was 1(a)(i)— committed. Nor shall a heavier penalty be im- as Senator Crane has outlined— posed than the one that was applicable at the time when the criminal offence was committed. If, of the Committee’s terms of reference. subsequent to the commission of the offence, I would argue that the Scrutiny of Bills provision is made by law for the imposition of a Committee is quite right to make these ob- lighter penalty, the offender shall benefit thereby. servations. There is however an important exception in The government asserts in its explanatory the ICCPR to this proposition. In the same memorandum that ‘there is no circumstance article setting out the general prohibition of in which the perpetration of a hoax that a retrospective offences, the ICCPR states dangerous or harmful thing has been sent also: could be considered a legitimate activity in (2) Nothing in this article shall prejudice the trial which a person was entitled to engage pend- and punishment of any person for any act or ing these amendments’. It is the view of we omission which, at the time when it was commit- Democrats that this does not provide a solid ted, was criminal according to the general princi- basis for supporting retrospectivity. It is true ples of law recognised by the community of na- that hoaxers may not have regarded their tions. activity as legitimate, but that is quite differ- So one context in which retrospectivity has ent from saying that they must therefore have arisen under this second head of the ICCPR regarded it as unlawful. article is that of war crimes and genocide. It is particularly significant that the pre- These are crimes that are clearly criminal, cise terms of the legislation were not avail- according to the general principles of law able at the time of the press release. A person recognised by the community of nations. whose conduct just barely falls within the Retrospective criminal laws dealing with war proposed retrospective offence provisions crimes were debated in relation to the War may have been under the impression that Crimes Bill 1987, which created retrospec- their conduct was lawful; that is, they may tively criminalised war crimes committed by not have thought the offence would be con- Australian residents during World War II in structed so broadly. The parliament from the European theatre of war. This bill then time to time does pass retrospective laws, but went on to become the War Crimes Amend- they generally relate to administrative or ment Act 1988. In supporting the bill at that regulatory matters. For example, a bill time, then Democrat Senator Jenkins said— passed last week with retrospective effect and this is from Hansard of 15 December was designed simply to correct a drafting 1988: error. The bill was backdated to the time of I have listened to the arguments put against the the passage of the legislation containing that legislation—that it is unprecedented, retrospec- error, to ensure that the principal act operated tive and selective; it could produce show trials ... properly throughout the period in question— I admit that it will cause difficulties if it is passed, just like any potential murder trial. But I do not and I have no argument with that. That is an 1020 SENATE Tuesday, 19 March 2002 believe that those are reasons for us not to aim at broadly—although, sadly, the bill has not justice. progressed. So I find a certain, if not hypoc- Also at that time, then Democrat senator Mi- risy, extraordinary contrast in the govern- chael Macklin also supported the bill. He ment saying, ‘We will ignore the interna- said, in Hansard of the same date: tional precedent which says retrospectivity is The injustice which can lie in retrospective legis- acceptable in genocide, although the prece- lation is that the actor can be punished for acts dent is there, but we want to breach that un- which, at the time of their commission, did not derstanding in other areas of criminal sanc- entail any moral responsibility or guilt. Who dare tion.’ I also find an extraordinary contrast assert that those who performed the acts which I between a government saying, ‘We do not have mentioned should not have to bear any want and we do not accept retrospective leg- moral responsibility or guilt? The concept of war islation to prosecute somebody involved in crimes is not a new one. genocide who may have killed or slaughtered Mr Acting Deputy President, in terms of an- hundreds if not thousands of people,’ and not tigenocide legislation, I have taken this one supporting retrospectivity for that and a gov- step further. You may be aware that, through ernment supporting retrospectivity for some- a private members bill, I have endeavoured body who might have sent an envelope with to progress antigenocide legislation in the some talcum powder in it. I think that is current parliament and through this chamber. worth reflecting on. In doing so, I framed a private members bill In the past I have spoken against retro- that did not include retrospectivity, and yet I spective legislation, not just on antigenocide argued passionately for that. Perhaps I can legislation but also in the debate we had refer for a moment to the report entitled Hu- some time ago on the National Crime manity diminished: the crime of genocide, Authority—in fact, an amendment bill from published in June 2000. Following the proc- 1999 which retrospectively validated NCA essing of the report through the Legal and activities back to 1984. I expressed concerns Constitutional References Committee, in part at that time at the number and nature of the I said the following—and I was talking about NCA’s activities that would retrospectively the issue of retrospectivity: be validated. I said at that time: If Parliaments and the community are to engage We (Democrats) are not opposed to retrospective in a meaningful discourse about the prevention legislation per se, but as a party we have histori- and punishment of the crime of genocide—then it cally argued that retrospective legislation is best cannot be done in isolation of the historical facts. dealt with on a case by case basis and in accor- Indeed to do otherwise is to condemn the memory dance with clear need. This legislation is whole- of countless peoples and the worst expressions of sale, not case by case, and is not founded on any inhumanity to irrelevance. In the Australian do- clear need. Our serious concerns with it remain mestic context, this has been reflected in some unchanged. antipathy towards the issue of possible retrospec- tive application of this legislation. For the record, We therefore opposed the legislation at the the Australian Democrats support the retrospec- time on the basis of its retrospectivity. The tive application of Anti-genocide legislation. We circumstances in which the Democrats will believe that fundamentally, the Convention for the support retrospective legislation are very Prevention and Punishment of the Crime of limited. As I said, only last week we sup- Genocide—anticipates a retrospective (i.e. pun- ported a bill retrospectively, simply correct- ishment) and the prospective (i.e. prevention) of ing a drafting error. We are open to support- genocidal effect and actions. Many if not all expe- ing retrospective legislation that is purely riences of genocides will precede the creation of this Bill. We cannot in all conscience deny those procedural. We support retrospective legisla- realities. tion also in relation to the issue of genocide on which I have spoken. However, in this What I was aiming to do there was to make case, we readily and happily support the the point that, while passionately believing in broad thrust of the legislation but do not retrospectivity in relation to genocide, I was support it to the extent it seeks to operate prepared to forgo that to win government and retrospectively. We will be moving an opposition support for the bill more amendment to provide that the bill operates Tuesday, 19 March 2002 SENATE 1021 purely on a prospective basis—that is, that it tember 11 spilling into the Australian com- will commence on royal assent, as is usually munity through death threats or bomb threats the case. or opportunities for anthrax or hoax anthrax, The creation of retrospective criminal of- we Democrats still do not believe it is any fences is justified only in extraordinary cir- foundation on which to base retrospective cumstances, and we do not believe the crea- legislation because of the serious criminal tion of such an offence is justified in the cur- nature of it. As I say, in the committee stage rent context. We believe, therefore, it is a of this debate we will be moving an amend- very bad precedent, notwithstanding Senator ment to ensure that the bill is entirely pro- Crane’s plea to the chamber. As a rhetorical spective. I understand at this stage the mo- device that may be well meaning, but I fear it tion does not have support from the govern- does not set anything in concrete. It does not ment or the opposition and so the amend- and cannot ensure this kind of precedent is ment is likely to fail. On that basis we not used in the future, despite the senator’s Democrats will not be supporting the bill as strong words. I worry about strong words a whole. being used in a way which leaves people Debate (on motion by Senator Abetz) with the impression they might have some adjourned. kind of legislative effect. Of course they do ADJOURNMENT not. Senator ABETZ (Tasmania—Special After the events of September 11, as hor- Minister of State) (11.06 p.m.)—I move: rible and horrifying as they were, there were numerous commentators and civil libertari- That the Senate do now adjourn. ans around the world who said that the Zimbabwe events were horrifying and that we needed to Senator SANDY MACDONALD (New talk about them and analyse them but that we South Wales) (11.06 p.m.)—I wish to speak should also be very much on the lookout for briefly tonight on Zimbabwe. It is a country governments swift to introduce what might that I have an interest in but, also, a number be considered harsh or draconian legislation of Zimbabweans have come to this country they might otherwise never get away with and have made Australia their home. There under different, normal and civil circum- are a lot of Australians who also have an stances, and my fear is that this is one of interest in Zimbabwe and in what has been those. Senator Crane has said this issue hap- occurring there over the last few years, par- pened during an election period and felt there ticularly with the election which all senators was some justification for the application of would know was held the weekend before retrospectivity. I would argue that the mael- last. Our colleague Senator Alan Ferguson strom of an election period, of a campaign was there as a Commonwealth observer, and period, is a very dicey, very insecure and I understand he will report to the Senate unbalanced environment in which to prog- more formally later in the week. I look for- ress legislation, let alone legislation which ward to that, but I wanted to make some provides retrospective criminal sanction. comments about the election as I see it. I was aware in the media over the cam- It was an election held by a government paign period of the many anthrax hoaxes, that had failed to address the irregularities of including the one which affected a staff the electoral roll, which is quite extraordi- member in Minister Ruddock’s office. I re- nary in a country where it is compulsory to member being particularly appalled by that have an identity card. It was also held in cir- because it was the first instance I think when cumstances where the number of polling sta- a parliamentary staffer had been subject to tions available in the June 2000 election, at this. I felt for my own staff and I thought it which I was a Commonwealth observer, had would be really awful if that were to happen been reduced for this particular election— in my own office. I sent the minister a letter which was, again, a most unusual occur- of moral support and he was kind enough to rence. From reports, only in some districts send a reply. But, despite the issues of Sep- were the polling booths open on Monday as 1022 SENATE Tuesday, 19 March 2002 well, despite the Zimbabwean Supreme with southern Africa if Zimbabwe, a country Court order that all the booths be reopened. with such a great start, goes down so quickly. This contravention of a Supreme Court order The European Community, the Americans is only a small part of a 25-year history of an and almost all observers, with the exception increasingly desperate ruling party, ZANU- of some of the observers from SADC—the PF, to retain power by any means as the once southern African countries—have said that abundant grain bowl of southern Africa is the violence and intimidation on the week- degraded and starved. end before last have prevented the election What is happening in Zimbabwe is wrong being free and fair and have prevented the and should not happen, and we should say will of the people being properly reflected. I so. People who do not know the country may read today a very telling report in the Aus- be excused for asking why we are concerned tralian by Ms Julie Bishop, who was also a about what happens in Zimbabwe. The cyni- Commonwealth observer. She said: cal might say, ‘It’s just another tin-pot Afri- Zimbabwe has been holding elections since can country; why should Australia be con- 1980. But the quality of its democracy was ex- cerned?’ Australia should be concerned be- posed by this election. It was nothing more than cause Zimbabwe is a wonderful country full an all-out campaign to crush the opposition by of decent, educated people with a commit- whatever means were available to ensure the re- election of the President and the dominance of the ment to the churches, to civil society and, ruling party. traditionally, to the rule of law. These exist in a wealthy country that has been systemati- But the tragedy is that the hardworking polling officials who turned up in their thousands to su- cally wrecked by the paranoia of a leader and pervise the polling booths and the millions of ruling party which came to power 22 years voters who turned out to cast their vote should not ago, substantially as a result of Common- have bothered. This was an election that was fa- wealth pressure. They have devalued Zim- tally compromised before a single vote was cast. babwe’s heritage through their rhetoric about What now? Some question the influence of the race and land. President Mugabe’s racism is Commonwealth. But I believe that the Common- quite unusual, putting aside tribal loyalties, wealth’s response will be of grave concern to because over 99 per cent of the 12 million Mugabe. The Commonwealth Observer Group population is black. President Mugabe stood virtually unanimous in its condemnation of falsely claims this is a black versus white the election. Among the group were eminent peo- issue, and he has been successful in making ple and serving or former members of parliament it seem that way—at least to the Common- from southern African states. Mugabe longs for wealth—but it is wrong. peer group approval and respect from those countries. There have always been very high expec- I think that encapsulates very strongly the tations for Zimbabwe because it has been feeling of many people who observed the seen as a real hope of much of the African poll and also of the great majority of the continent. South Africa’s apparent weak re- Commonwealth observers who were there. sponse to the outcome is hard to understand, The reports that have been coming out of because a destabilised Zimbabwe has cost Zimbabwe from the election are also most South Africa dearly already. It has cost it concerning in relation to the prospect of the dearly in direct costs of assistance—because ruling ZANU-PF systematically paying back of the increasing costs of supplying its power the opposition and its supporters. Many of and fuel—in the increasing number of politi- the opposition—the Movement for Demo- cal and economic refugees from its small cratic Change—and electoral observers have northern neighbour and, of course, in the been imprisoned, and people have been value of its currency. We have seen the rand beaten and killed. being consistently devalued over the last few years. The question you must ask is: why is Australians do not approve of these kinds this so? of things, however far away they are. As somebody lucky enough to have been to It is because in future the world—the Zimbabwe both before and since I entered West, especially—will hardly be bothered the Senate, I wonder at the bravery and Tuesday, 19 March 2002 SENATE 1023 commitment of the decent people of the France: Australian War Graves MDC who wish to make their country a bet- Senator MARK BISHOP (Western Aus- ter place. They have certainly got their work tralia) (11.17 p.m.)—I rise tonight to address cut out now. the issue of Australian war graves in France Tonight as I speak, the Prime Minister, as being moved for the sake of an airport, and the chair of the Commonwealth working the failure of the Australian government to group, is in London with the President of do anything to date about that move. As the Nigeria and the President of South Africa Senate knows, 330,000 Australians fought in determining the Commonwealth’s response the First World War and many did not come to the election. I very much hope that they home. Of those who perished, almost 54,000 can bring all the pressure to bear that is died in battle, most in faraway Europe, bur- available to the Commonwealth. I can only ied in graves that many families never saw, see one option and that is that Zimbabwe is or were simply lost in the mud forever. suspended from the Commonwealth. One Throughout northern France and Belgium, must remember that Zimbabwe was substan- these fearless young Australians lie in tially—and President Mugabe himself was cemeteries cared for by the Commonwealth substantially—a creature of the Common- War Graves Commission and by the grateful wealth. It was the immense pressure that was citizens of France and Belgium whose coun- brought by Commonwealth countries in the tries would otherwise have been overrun. late 1970s that pushed hard for the Lancaster Those cemeteries are today a stark and House agreement, and the Commonwealth chilling reminder of their bravery and of the observed and basically ran an election in sheer waste of war which we should never 1980 that brought President Mugabe to forget. Similarly the green fields and pas- power. Unfortunately it is not possible for tures are a reminder of those who were never Australia to unilaterally bring a lot of pres- found, the sight of which alone can hold our sure to bear on Zimbabwe. After all, we memory of them. might talk about smart sanctions, but we do The peace of this scene has been inter- not have substantial trade with Zimbabwe. rupted before, of course, under the feet of We do not have substantial Zimbabwe in- invading armies again in World War II, but vestments in this country that we might be the graves in whatever form survived until able to impound. It is unlikely that the last year when on 15 November the French ZANU-PF leadership would like to come to Prime Minister announced that a new airport Australia, and of course we do not have ex- would be built 125 kilometres from Paris at traterritoriality of our laws, so whatever Chaulmes in the Somme. The new airport, crimes might have been committed by the Mr Jospin said, was necessary because the leadership of ZANU-PF, however strongly existing Paris airports of Orly and Roissy we may feel about those issues, we certainly were at saturation point. The new site, he do not have a capacity to bring any pressure said, would be complementary to the auto- to bear apart from a theoretical desire to im- route system, the TGV fast train and the pose smart sanctions. AusAID, which does chunnel to the UK and would assist Air good work in Zimbabwe of course, has France in handling its growth in air traffic. found over recent times difficulty in finding Its cost was then estimated in the order of aid projects which have legitimacy. That is $A16 billion. The new three-runway airport another problem that we face. We have great was intended to be completed within 15 difficulty in finding things that can bring years. home the message from the unilateral point of view of Australia. But we certainly can This sounds like good forward planning of play a part in the Commonwealth, and I hope a kind we are not used to anymore as we that the Prime Minister is able to effect that watch the rest of the world pass us by on tonight in London. infrastructure investment, but that is not the point tonight. This site, according to reports, would have covered cemeteries containing the graves of 22,000 Germans—many of 1024 SENATE Tuesday, 19 March 2002 which had already been exhumed and relo- the Commonwealth War Graves Commission cated to Chaulmes, which is 24 kilometres which, from what I can make out, outranks east of Amiens near the village of Verman- the Australian government. Perhaps it dovilliers—and 6,590 French dead as well as should! Then came the confirming evidence some British and Canadian. Unfortunately, that this Australian government has abdi- the site for this forward thinking investment cated. In a general business notice drafted in would have covered many graves of those the office of the Minister for Veterans’ Af- who fell in the Great War. In fact, 370,000 fairs, the Member for Cook, Mr Baird, has Commonwealth troops are said to lie beneath moved that the parliament of Australia ‘do the black soil of the Western Front, and re- everything in its power to ensure that Aus- mains still continue to be dug up as land is tralian war graves are not disturbed’. I have developed. In the past 50 years, 2,100 sets of to inform the member for Cook and his min- bones have been recovered, of which only 65 ister who drafted the notice of motion that have been identified. the Australian parliament does not have For reasons not clear at this stage, but diplomatic relations with the government of perhaps as a result of many French villagers France. The responsibility in fact rests with enraged at the prospect of losing their vil- the minister. The responsibility for relations lages to this proposal, not to mention the with the French government on matters such reaction of the Royal British Legion, the as this rests with the Australian government. French government changed the site to the But not a word has been said except that, as a town of Rossiers. This new site is in fact late breaking initiative after all this, the Am- worse as it covers eight Commonwealth bassador to France has now been directed to cemeteries, three of which, so we have been speak—five months after the first an- told in a Senate estimates hearing on 6 nouncement. March this year, contain at least 61 Austra- We are entitled to ask what this govern- lians. In one named Fouquescourt there are ment is doing to protect these Australian 49 Australian graves and there are six more graves or to ensure that proper process is in each of the other two. That does not in- followed. It seems it is doing little. Firstly, clude 12,000 others who will probably never we have sat back like colonials and allowed be found. the Commonwealth War Graves Commission We have been told that war cemeteries to represent us to the government of France. such as these have been granted in perpetuity Secondly, the government gave a notice of to the Commonwealth and that the commit- motion to have the parliament protest to the ment of the French government to the pro- government of France, which of course tection of these very sacred sites is contained should be supported, where the government within an international convention. That seems to be paralysed—inappropriate and cemeteries should be moved in itself is no ineffective as it may be. Throughout, the great offence in normal terms, and we are minister responsible has done nothing until told that reinterment is a common enough prompted by concern at this inaction. The occurrence and, if managed sensitively, Australian people deserve better. should cause little concern. The trouble sim- The instant the French government made ply is this: we seem to have a government their announcement on 15 November last which has done nothing about this—nothing year, the government and the minister re- at least until the estimates hearing in the sponsible should have weighed in to register Senate last week when a joint press release concern and to demand that, if so many emerged in a flurry from the offices of the Australian war graves were to be affected, as Minister for Veterans’ Affairs and the Min- a minimum the Australian people needed to ister for Foreign Affairs and Trade, de- know the facts and that standing processes manding over the public media that the would be observed. We can only hope that French government consult. Nothing, it the Australian ambassador, now that he has seems, was said to the French government— his directions, can make known to the French which one might have expected—except by government what should have been commu- Tuesday, 19 March 2002 SENATE 1025 nicated five months ago: Australians need to ruary 1969, had not been sighted. This is all have an assurance that the memory of all the more remarkable when you consider that those Australians buried in France who died they are contained in one absolutely enor- protecting that country continue to be re- mous volume of 768 pages. spected in the same way they have been for Anyway, the suspicion fell on Gough almost a century. Whitlam. It fell on some other senior former Australian Labor Party: Minutes federal Labor figures, caucus figures, but the Senator FAULKNER (New South suspicion on Gough Whitlam was often Wales—Leader of the Opposition in the Sen- promoted by some quite embittered critics. ate) (11.23 p.m.)—I rise to speak in the ad- The truth is, as so often is the case in poli- journment debate tonight about a debate that tics—everyone knows that given the choice has raged in the Australian Labor Party for between a conspiracy and a stuff-up, go for some 25 years, and I am able to indicate to the stuff-up every time, and that is the case in the Senate tonight that that debate is now this situation—it was a stuff-up. It was not a over. The debate has been about the question conspiracy, because the minutes have been of what happened to the minutes of the fed- discovered. They happened to be in the eral parliamentary Labor Party for the period wrong box with the wrong label in the wrong 1952 to 1969. Those minutes of the federal place, but they were safe and sound in the parliamentary Labor Party have literally been National Library, so they certainly were be- missing for a quarter of a century, and it has ing looked after, though no-one actually been of some considerable interest to histori- knew they were there. Because of some ef- ans what the fate of those particular minutes forts that a number of us have undertaken has been. Who stole the caucus minutes? over recent years to track these minutes Who had the motive to steal the caucus min- down, including many hours of searching utes? Who had the means to steal them? through dusty archive boxes and the like, Who had the opportunity to steal the min- they have finally been located. utes? I can report to the parliament that this is The truth is that suspicion often fell on something that has been received with great Gough Whitlam because, historically, the pleasure by the federal parliamentary Labor minutes had been placed in the custody of Party, and it will be something that is going the leader in his office. Some suggested that to be very significant as far as historians in they were held for 75 years in a steel trunk in this country are concerned. The discovery of the leader’s office; others suggested that, these minutes means that we now have an after Old Parliament House became the site authentic record of some very significant for sittings of the Australian parliament, they events. This will be of material assistance to were in a safe in the leader’s office. What- historians. When you look at the period from ever the situation, there is no doubt that they 1952 to 1969, you will say that the federal were held in custody for the federal parlia- parliamentary Labor Party was in opposition mentary Labor Party by the leader—it was for the whole of that time. That is true: it was the leader’s responsibility to look after them. a period of repeated electoral defeat. It was a In the confusion that followed the turbulent period when we saw a lot of growing internal events of 11 November 1975, when the con- criticism and recrimination in the Labor tents of the then leader of the federal parlia- Party; we saw the disastrous split of 1954 mentary Labor Party’s office—that is, Gough and 1955; we saw many more years in the Whitlam’s office—were transferred, holus- wilderness. But at the end of this period we bolus, to the national secretariat of the Labor start to see the rebuilding and recovery of Party, a lot of things were lost. From that day Labor’s fortunes at the federal level. onwards—literally from 11 November 1975 Labor has spent much time trying to en- until a couple of weeks ago—the minutes of sure that its history is properly recorded and the federal parliamentary Labor Party that that we make available these important rec- had been missing, covering that extraordi- ords from our past and our history for those nary period of 7 September 1952 to 24 Feb- who are interested in them. In fact it was 1026 SENATE Tuesday, 19 March 2002

Gough Whitlam, when he was Prime Minis- and constitution, this would have invited con- ter of this country, who drove the publication tinuing chaos and quick disaster. of the caucus minutes from 1901, when the I am very pleased tonight that Gough Whit- federal parliamentary Labor Party was es- lam can be declared innocent in relation to tablished, to 1949. I need not say, in this the charges that have been levelled against particular chamber, that the Australian Labor him, for over a quarter of a century, that he Party is our oldest and greatest political party stole the caucus minutes. He did not, nor did in this country. any other individual. It was, as I have said, a Gough Whitlam drove the publication of stuff-up, not a conspiracy. those minutes, which was undertaken by Pat New South Wales: Education Weller, assisted by Bev Lloyd. I spoke very Senator TIERNEY (New South Wales) recently in the chamber about Bev’s contri- (11.33 p.m.)—I rise tonight to highlight the bution in that regard. Pat Weller, Bev Lloyd current deplorable state of education in the and a young Kim C. Beazley were probably New South Wales education system, after the last people to see the minutes book be- seven years of the Carr Labor government. fore it was mislaid in the National Library. In With the removal last year of John Aquilina late 1974, Dr Pat Weller and Bev Lloyd as the Minister for Education and Training in completed their three years of painstaking New South Wales, we were certainly hoping editing of the caucus minutes, and they were that we might see some real education re- published in three volumes. It was Pat form in the state and that we might see, at Weller, along with his research assistant, long last, some sort of financial commitment who undertook that task in the leader’s of- to the children in New South Wales public fice, where the minutes were kept. The Prime schools from the Carr government. But, alas, Minister at the time was very generous in we have not seen that. The run-down in the allowing access to the minutes for their pub- public education system that has occurred in lication. A young postgraduate student from New South Wales over the last seven years Murdoch University, Kim C. Beazley—who will see a continued drift from public schools was, of course, later to lead the party—also to private schools. New South Wales stands painstakingly recorded, longhand, all the out across Australia in terms of this drift. caucus foreign affairs and defence motions Indeed, last year’s 10,000 student increase in for a thesis that he was completing for his private schools was the 11th consecutive postgraduate studies. After that time, we did increase in the state. not see those minutes, but it is worth re- If you go back to the unfortunate time in cording tonight that they have been found. It history when Mr Carr became the Premier, is worth recording tonight the words of you might recall that he wanted to be re- Gough Whitlam, from his foreword to the membered as the education premier. Unfor- Weller and Lloyd published volumes of the tunately, that will now be considered ironic. caucus minutes of 1901 to 1949. He stated: In terms of the programs he has developed, From the beginning, the Australian Labor Party the percentage of the state budget he has de- has had a deep sense of history and has attached livered to education, and the run-down in the greatest importance to the written record of its public education, he certainly will not be proceedings. Its founders never doubted the en- during meaning of their work. Early struggles remembered as the education premier. I am inside as well as outside the movement invested trying to figure out at what point in time he the written record of those struggles with funda- decided to renounce this commitment to mental significance. The importance of keeping education. What did happen to the education full and accurate records was inherent in the very premier? Why did he turn a blind eye to in- nature of the Labor Party. The principle of major- creasing class sizes across the state? Why did ity rule made it so. Thus, from the outset it was he turn a blind eye to increasing pupil- fundamentally important to record exactly what teacher ratios? Perhaps most disgraceful of the majority had decided. There could be no all, when did he make the deliberate decision question of leaving the carriage of some pre- to cut resources to education in New South sumed decision or consensus to the judgment of the leadership. Given the nature of the party rules Wales—as shown by the percentage of the Tuesday, 19 March 2002 SENATE 1027 budget devoted to education, which has de- full-time positions and, therefore, we again clined over the last seven years from 25½ per faced a crisis in finding casual teachers to fill cent of the New South Wales budget to 22 these positions. The Carr Labor government per cent of the budget? have now become so desperate for teachers When you put these facts together, you that they actually advertise quite widely in have a picture of education after seven years newspapers in Adelaide, Brisbane and Mel- of a state Labor government in New South bourne for teaching jobs in New South Wales. By any major measure in education, Wales. They are trying to poach teachers New South Wales is running last—and this is from the other states as a result of their failed happening within the context of a consider- policies in staffing and in training enough able increase in federal funding over that teachers. They cannot find enough teachers, time. We have put another $812 million into particularly in the vital areas of maths, sci- the state education systems across Australia ence, business studies and music. Despite the since we came into office in 1996. Federally, large amounts of money being spent feder- we are contributing only 12 per cent of the ally, you will find that 60 per cent of New education budget to the state. The state puts South Wales public schools are having diffi- up 88 per cent. They are not putting in their culty in finding enough casual relief staff for share and that is why the state of education their children. in New South Wales is declining. It is quite common for school principals to If we are only 12 per cent of the budget, spend each Monday morning making up to they are 88 per cent, and their increase is 30 calls in a day to try to find enough teach- going up at only 2½ per cent a year com- ers to staff their school; that is some measure pared to our 5½ per cent on a much smaller of the growing shortage of teachers and the proportion of the total budget. This shows crisis that we face in New South Wales. Even why, despite federal resources, the state of if the school can find a teacher, a report by education in New South Wales is certainly in the New South Wales Teachers Federation on decline. This is despite the fact that we have class sizes from kindergarten to year 3 shows given them the resources to increase their that these teachers, when they are found, are funding in education if they only had the likely to be facing classes that are of much will. We have actually given the states all of greater size than in any other state in Austra- the GST revenue: $29 billion goes back to lia and that have all the education and disci- the states. New South Wales have about a pline problems that that brings with it. third of Australia’s population so their share The report from the New South Wales is about $8 billion. What are the Carr gov- Teachers Federation shows that 32 per cent ernment doing with that money? They are of kindergarten classes have 27 or more stu- certainly not spending it in the area of edu- dents, with frightening examples of class cation. The changes that have come about sizes of up to 37 students. That is a situation and the starving of the budget for education which the union admits will only get worse. is best shown by what is happening with Year 1 classes are only marginally better off staffing numbers and the number of people with 21 per cent of classes exceeding 28 stu- going into teaching in New South Wales at dents. Even worse, 22 per cent of year 2 the moment. This shows the likelihood of classes have more than 29 pupils. These fig- great shortages. The government cannot even ures will most certainly further deteriorate as support the number of casual teachers that the year unfolds and the usual work transfers they need to fill in for the times when they occur, pushing class sizes even higher. do not have full-time teachers. Yet another blight on the New South In the year 2000, the Carr government Wales education department, these figures created what they called a mobile teacher would never have come to light without the system, where they put up 350 teachers who work of the New South Wales Teachers Fed- were supposed to do relief teaching. Within a eration, simply because the department do very short period time, because the system not collect this data on individual class sizes. was so short of teachers, these people found Surely the department that are responsible 1028 SENATE Tuesday, 19 March 2002 for ensuring the education of our children Product Stewardship (Oil) Act 2000— should be monitoring such a fundamental Product stewardship arrangements for issue as this. The fact that they do not means waste oil—Report for the period 1 January that we are probably headed for more over- to 30 June 2001. crowded classrooms. If we need verification Productivity Commission—Report—No. of the Carr government’s arrogance, the 15—Cost recovery by government agen- Premier still refuses to acknowledge the re- cies, 16 August 2001. port and the concerns that it raises, even Roads to Recovery Act 2000—Roads to re- though it comes from his former ally the covery programme—Report for the period New South Wales Teachers Federation. 21 December 2000 to 30 June 2001 on the operation of the Act. It is quite shocking when you actually look at the figures for New South Wales on Tabling class sizes compared to the other states. New The following documents were tabled by South Wales runs last right across the coun- the Clerk: try. This will mean more education problems Airports Act—Determination under sub- and more discipline problems, and we will section 192(4B), dated 13 February 2002. find a decline in education in our state com- Australian Bureau of Statistics Act—Pro- pared to other states. New South Wales has posal No. 7 of 2002. long been labelled the premier state; we can- Class Ruling CR 2002/12. not say that anymore when it comes to the Commonwealth Services Delivery Agency field of public education. Not only is New Act—Commonwealth Services Delivery South Wales dragging the chain when it Agency Directions 2001. comes to matching the federal government’s Environment Protection and Biodiversity commitment to education; it is also being Conservation Act—Instruments under sec- shown up by other states and territories who tion 303DC amending list of exempt native are giving a much higher priority to educa- specimens, dated 5 February 2002 [3]. tion, spending more funds and, therefore, Fisheries Management Act— getting better outcomes, particularly in terms Northern Prawn Fishery Management of such vital measures as class sizes. Plan 1995—Directions Nos NPFD 57- Senate adjourned at 11.43 p.m. 63. DOCUMENTS Southern Bluefin Tuna Fishery Man- Tabling agement Plan Amendment 2002 (No. SBT 04). The following government documents Native Title Act—Recognition of Repre- were tabled: sentative Aboriginal/Torres Strait Islander Airservices Australia— Bodies (No. 4: 2001). Equity and diversity program—Report Ozone Protection Act—Notice of Grant of for 2000-01. Exemptions under section 40, dated 20 Sydney Airport—Maximum movement February 2002. limit compliance statement for the pe- Product Ruling PR 2002/24 (Addendum). riod 1 July to 30 September 2001. Taxation Rulings TR 2002/5 and TR Broadcasting Services Act 1992—Re- 2002/6. port—Review of spectrum allocation pow- Indexed Lists of Files ers of the Australian Broadcasting Author- ity, March 2002. Indexed lists of departmental and agency Environment Protection and Biodiversity files for the period 1 July to 31 December Conservation Act 1999— 2001—Statements of compliance— Australian State of the Environment Centrelink. Committee—Report—Australia state of Comcare. the environment 2001, December 2001. Department of Family and Community Report for the period 16 July 2000 to 30 Services. June 2001 on the operation of the Act. Department of Veterans’ Affairs. Tuesday, 19 March 2002 SENATE 1029

Industry, Tourism and Resources port- folio. Departmental and Agency Contracts The following documents were tabled pursuant to the order of the Senate of 20 June 2001, as amended on 27 September 2001: Departmental and agency contracts—Let- ters of advice— Australian Electoral Commission. Commonwealth Grants Commission. ComSuper. Department of Finance and Administra- tion. Department of Veterans’ Affairs.