1998-04-023816SENATE181901998-04-02The PRESIDENT(Senator the Hon. Margaret Reid) took the chair at 9.30 a.m., and read prayers.Personal Explanations181909:31:001819Abetz, Sen EricSenator ABETZN26TASLP10—I seek leave to make a brief statement that I anticipate will take about 90 seconds.Leave granted.N26Abetz, Sen EricSenator ABETZ—Yesterday during the taking note of answers debate I made an assertion about Senator Denman owning a CSR shareholding. I was clearly wrong, noting that Senator Denman divested herself of that shareholding prior to the critical date. As soon as this was pointed out to me, I personally approached Senator Denman in the chamber to apologise unreservedly. I also explained to her how this unfortunate occurrence was occasioned. But, in politics, the buck stops with me. It is therefore appropriate that I put my unreserved private apology to Senator Denman on the public record as well. Having done so, could I invite Senator Faulkner and the Labor Party to apologise to the Baillieu family.Opposition senators interjecting—N26Abetz, Sen EricSenator ABETZ—Senator Denman in her personal explanation went beyond the standing orders and made a gratuitous attack on me which is demeaning both of her and of her party, and has dredged up an issue which the happy events of this weekend—4J4SCHACHTSenator Schacht—Madam President, I raise a point of order. We certainly gave leave for Senator Abetz to make a statement which he indicated was an apology in relation to a matter that he said yesterday. He said that in the first 30 seconds. Now he is making a broader political comment, a debating point, and I think he ought to end his statement right now. He has made the apology, which we are pleased to accept.10000PRESIDENTThe PRESIDENT—Senator Abetz, you seem to have gone beyond a personal explanation. You should restrict your remarks to that. N26Abetz, Sen EricSenator ABETZ—Madam President, in that case—656FORSHAWSenator Forshaw—It's a pity you don't leave instead of being granted leave.N26Abetz, Sen EricSenator ABETZ—No. I seek to make a personal explanation and claim that I was misrepresented yesterday by the comments by Senator Denman.10000PRESIDENTThe PRESIDENT—Are you seeking leave?4J4SCHACHTSenator Schacht—Madam President, I raise a point of order. That should be sought as a separate leave of the Senate.N26Abetz, Sen EricSenator ABETZ—Yes; that is exactly what I am doing.10000PRESIDENTThe PRESIDENT—Is leave granted for Senator Abetz to take the matter further, as he has indicated?4J4SCHACHTSenator Schacht—On the basis that he has clearly finished his apology to Senator Denman and now is seeking further leave to make a separate statement.10000PRESIDENTThe PRESIDENT—Is leave granted for Senator Abetz to make a further statement?YW4MACDONALDSenator Ian Macdonald—Madam President, I raise a point of order. Under standing order 191, Senator Abetz does not even need leave. He is entitled, under that standing order, where he has spoken on a question, to again be heard to explain—10000PRESIDENTThe PRESIDENT—He does need leave because it is not a matter that has just been debated.YW4MACDONALDSenator Ian Macdonald—Does that rule apply only where it has just been debated?10000PRESIDENTThe PRESIDENT—It is where it is in a current debate. That is my understanding of it.FF4CHAPMANSenator Chapman—It was last thing last night.YW4MACDONALDSenator Ian Macdonald—It was last thing last night. But it certainly does not appear that way from the standing order, Madam President.10000PRESIDENTThe PRESIDENT—My advice is that my ruling is correct; but that can be checked.WP6LIGHTFOOTSenator Lightfoot—Madam President, further to the point of order: I submit that Senator Abetz has the time of this chamber and the permission of this chamber to continue with the statement that he sought permission to make.10000PRESIDENTThe PRESIDENT—Senator Abetz was given leave to make a personal explanation, and there are certain rules about that.WP6LIGHTFOOTSenator Lightfoot—Yes, Madam President. But he did not seek permission of the chamber in order to make an apology; inter alia, he included an apology in that. I submit he has the right to continue with the statement that he sought permission of the chamber to make, and that permission was given.4J4SCHACHTSenator Schacht—On the point of order: in the informality of running this place sensibly, we were told just before the start of this morning's proceedings—B36NEALSenator Neal—By Senator Calvert.4J4SCHACHTSenator Schacht—We were told by Senator Calvert that Senator Abetz was going to make a short statement to apologise to Senator Denman. That is the reason we gave leave. He is now seeking to claim that he has been misrepresented and he wants to make a personal statement.10000PRESIDENTThe PRESIDENT—And the question before the chair is whether leave is granted for that.4J4SCHACHTSenator Schacht—I want to ask you, therefore, before we grant leave, whether this is the appropriate time for him to get leave to make a personal explanation where he claims to be misrepresented or whether there is another time later in the day when he should do that.10000PRESIDENTThe PRESIDENT—He can seek leave at any time to make an explanation about being misrepresented. It is for senators to grant leave or deny leave. Senator Abetz has sought leave to make a further statement on the basis of his being misrepresented. Is leave granted?4J4SCHACHTSenator Schacht—We understand that this will be another short statement, no more than one or two minutes.N26Abetz, Sen EricSenator ABETZ—One minute.4J4SCHACHTSenator Schacht—One minute. On that basis, we will give leave.Leave granted.N26Abetz, Sen EricSenator ABETZ—The whole lot would have taken only 90 seconds had I been allowed to continue. Senator Denman in her personal explanation yesterday went beyond the standing orders and made a gratuitous attack on me which is demeaning both of her and of her party, and has dredged up an issue which the happy events of the past weekend should have told Senator Denman to leave well alone. The gratuitous innuendo in trying to link some of my prior comments with an attempted suicide is disgraceful and reprehensible.AX5EVANSSenator Chris Evans—You had form.N26Abetz, Sen EricSenator ABETZ—At the time of my private apology to Senator Denman I was not aware of her horrendous allegations against me. Most honourable senators would acknowledge that an honest but mistaken assertion of a failure to declare a shareholding is a far cry from snidely implying someone is responsible for another person's attempted suicide. Yesterday an honest mistake was made by me. An unreserved apology has been delivered.AX5EVANSSenator Chris Evans—You are a sleaze with form.N26Abetz, Sen EricSenator ABETZ—I look forward to Senator Denman's unreserved apology for what was clearly a considered remark.10000PRESIDENTThe PRESIDENT—Senator Evans, I ask you to withdraw that.AX5EVANSSenator Chris Evans—You wish me to withdraw `sleaze', Madam President?10000PRESIDENTThe PRESIDENT—Yes.AX5EVANSSenator Chris Evans—I withdraw.182010001CLERK ASSISTANTThe Clerk—Petitions have been lodged for presentation as follows:1820728U4Lees Sen MegTo the Honourable the President and Members of the Senate in the Parliament assembled.The petition of the undersigned strongly opposes any attempts by the Australian government to mine uranium at the Jabiluka and Koongara sites in the World Heritage Listed Area of the Kakadu National Park or any other proposed or current operating site.Your petitioners ask that the Senate oppose any intentions by the Australian government to support the nuclear industry via any mining, enrichment and sale of uranium.Senator Lees8U4Senator Lees(from 72 citizens)1821251X4West Sen SueTo the Honourable the President and Members of the Senate assembled in Parliament:This petition of certain residents of the state of New South Wales notes with concern the impact of the policy of charging entry fees—often necessitating the sale of the family home—for people needing nursing home care. Furthermore, the petitioners note with concern the impact of the policy of charging residents of aged care facilities an extra daily fee which provides no additional benefit to the resident and is nothing more than a disguised tax.Your petitioners therefore request that the Senate act to ensure that nursing home care is equally available to all who need it and further that the family home is exempted from any asset test relating to payment for such care.And your petitioners, as in duty bound, will ever pray.Senator West1X4Senator West(from 25 citizens)18211221X4West Sen SueTo the Honourable the President and Members of the Senate assembled in Parliament:This petition of certain citizens of Australia draws to the attention of the Senate, decisions by the Howard Government affecting the price and availability of medicines.The decision to remove (delist) a number of drugs from the Pharmaceutical Benefits Scheme and also the decision to pressure people to switch to cheaper, older and less effective drugs, will disadvantage the less well off in our community who will not be able to afford the best most suitable drugs, the drugs their doctors have prescribed for them.Your petitioners therefore pray that the Senate recognises that these changes are unfair. We call on the Government to reverse these decisions immediately.Senator West1X4Senator West(from 122 citizens)Petitions received.Business18211821Motion (by Senator Ian Campbell)—by leave—agreed to: That the order of the Senate of 26 March 1998, relating to the hours of meeting and routine of business for today, be modified to provide that the sitting of the Senate be suspended from 6.30 p.m. till 7.30 p.m.Notices182118211821O'Chee, Sen BillSenator O'CHEEEU4QLDNP10—On behalf of the Standing Committee on Regulations and Ordinances, I give notice that, at the giving of notices on the next day of sitting, I shall withdraw business of the Senate notice of motion No. 2 standing in my name for seven sitting days after today for the disallowance of the Therapeutic Goods Regulations (Amendment), as contained in Statutory Rules 1997 No. 401. I seek leave to make a short statement.Leave granted.EU4O'Chee, Sen BillSenator O'CHEE—This notice is now redundant as the Senate disallowed these regulations on 31 March 1998.18211821Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I give notice that, on the next day of sitting, I shall move:That the following matters be referred to the Environment, Recreation, Communications and the Arts References Committee for inquiry and report by 30 June 1998:(1) The relationships between Federal, State and local governments and developers in the Hinchinbrook Channel.(2) The effect of developments on the environment of the Hinchinbrook Channel and surrounding environs.(3) Whether governments have met their obligations under the various Acts and agreements that deal with the Hinchinbrook area.(4) Alternatives to the existing regime.(5) What lessons have been learned and what can be done to prevent problems like this occurring in the future.18211821O'Chee, Sen BillSenator O'CHEEEU4QLDNP10—On behalf of the Standing Committee on Regulations and Ordinances, I give notice that, 15 sitting days after today, I shall move that the following delegated legislation be disallowed:The list read as follows—1. Australian Industrial Relations Commission Rules 1998 as contained in Statutory Rules 1998 No 1 and made under the Workplace Relations Act 1996 .2. Customs (Prohibited Exports) Regulations (Amendment) as contained in Statutory Rules 1997 No 381 and made under the Customs Act 1901 .3. Customs (Prohibited Imports) Regulations (Amendment) as contained in Statutory Rules 1997 No 386 and made under the Customs Act 1901 .4. Financial Management and Accountability Orders 1997 made under s.63 of the Financial Management and Accountability Act 1997 .5. Financial Management and Accountability Regulations as contained in Statutory Rules 1997 No 328 and made under the Financial Management and Accountability Act 1997 .6. Health Insurance Commission Regulations (Amendment) as contained in Statutory Rules 1997 No 332 and made under the Health Insurance Commission Act 1973 .7. Public Service Regulations (Amendment—Interim Reform) as contained in Statutory Rules 1998 No 23 and made under the Public Service Act 1922 .8. Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Regulations as contained in Statutory Rules 1997 No 371 and made under the Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 .9. Telecommunications (Arbitration) Regulations as contained in Statutory Rules 1997 No 350 and made under the Telecommunications Act 1997 .10. Veterans' Entitlements Regulations (Amendment) as contained in Statutory Rules 1997 No 372 and made under the Veterans' Entitlements Act 1986 .EU4O'Chee, Sen BillSenator O'CHEE—I seek leave to make a short statement about the committee's concerns with the legislation.Leave granted.EU4O'Chee, Sen BillSenator O'CHEE—The committee's concerns with these instruments include a wide range of deficiencies under all four of its terms of reference. I seek leave to incorporate in Hansard a short summary of the matters raised by the committee.Leave granted.The summary read as follows—Australian Industrial Relations Commission Rules 1998Statutory Rules 1998 No 1The Regulations amend the procedures and practices of the Commission arising from workplace relations amendment legislation.Rule 6 provides for the Commission to dispense with compliance with any of the requirements of the Rules. This appears to be an invalid subdelegation of legislative power in that the Commission is allowing itself to make its own Rules (different from those tabled as Statutory Rules 1998 No 1) at any time that it chooses to do so.Subrule 13(2) requires an appeal from a Registrar to be made within 21 days after the date of the decision or act appealed against. Since the time starts once the decision is made, the subrule may act harshly against someone who, for good reason, is unaware of the making of a particular decision. An appeal must also be lodged within 21 days of the Registrar's refusal or failure to make a decision or to do an act. It would be difficult to determine when the Registrar has simply failed (as distinct from refused) to make a decision or do an act, although the 21 days runs from that moment.Rule 79 refers to interim Rules of the Commission, which were issued as a Practice Note on 30 December 1996. The interim Rules appear to constitute a serious breach of parliamentary propriety in that they were, in effect, Rules of the Commission that were not made as Rules and were presumably not subject to parliamentary scrutiny.Customs (Prohibited Exports) Regulations (Amendment)Statutory Rules 1997 No 381Customs (Prohibited Imports) Regulations (Amendment)Statutory Rules 1997 No 386The Regulations in Statutory Rules 1997 No 381 prohibit the exportation of all material which has been refused classification by the Classification Board because of its portrayal of violence. These regulations provide for a system of censorship of books, magazine, films and computer games which might be better placed in primary legislation where it would be subject to full debate by the Parliament. Although the decision to deny export to a particular publication is generally subject to review by the Administrative Appeals Tribunal, subregulation 3(9) permits the Attorney-General to issue a conclusive certificate denying that right, if in his opinion it is in the public interest to do so. The Regulations in Statutory Rules 1997 No 386 amend the Principal Regulations in light of the passage of the Government's fuel substitution legislation. Paragraph 1 in the second column to new item 13 of Schedule 3 would grant to the Minister or an authorised person the apparently unfettered discretion to allow the importation of marked fuel that is not designated fuel.Financial Management and Accountability Orders 1997 made under s.63 of the Financial Management and Accountability Act 1997Financial Management and Accountability RegulationsStatutory Rules 1997 No 328The Orders and Regulations give effect to the Financial Management and Accountability Act 1997 .Suborder 6.2.1 appears to allow the Finance Chief Executive to issue determinations which may be legislative in character as they appear to provide for a set of general principles and not for the resolution of a particular issue. This suborder would thus provide for a subdelegation of legislative power which does not appear to be authorised by the enabling Act.Regulation 6 provides for the Chief Executive of an Agency to issue Instructions. Similarly, rr. 7 and 19 permit the Finance Minister to issue Commonwealth Procurement Guidelines and the Minister for Justice to issue Fraud Control Guidelines. A reference to the guidelines issued by the Minister for Justice is also found in suborder 2.2.1 of the Financial Management and Accountability Orders 1997. These provisions appear to authorise the delegation of a legislative function which is sanctioned by the enabling Act. That Act does not, however, require either the Instructions or the Guidelines to be tabled or to be subject to disallowance. The Committee understands that the Commonwealth Procurement Guidelines were previously subject to this requirement.Paragraph 22(b) extends the definition of authorised investment in the enabling Act to include a professionally managed money market trust, but only on the condition that the Minister is satisfied of certain specified matters. This discretion has considerable commercial implications but there does not appear to be a right of AAT review.Regulation 23 permits the disposal of property found on Commonwealth premises. Subregulation 23(4) requires the Commonwealth to pay to the prior owner the amount received on the sale of the property, and subregulation 23(5) extinguishes any rights held by any person in the property on its sale by the Commonwealth. While subregulation 23(5) may be regarded as acceptable in relation to a person who was the owner of goods or other property immediately before its sale, the provision would appear to affect adversely any person who held a right other than ownership in the property, such as a lessee or bailee. Such a person would appear to be deprived of those rights by subregulation 23(5), but would not have any claim to recompense for that loss under subregulation 23(4).Health Insurance Commission Regulations (Amendment)Statutory Rules 1997 No 332The Regulations make changes to the Principal Regulations consequent upon the enactment of the Hearing Services Administration Act 1997 and the Hearing Services and AHS Reform Act 1997 .New subregulation 3H(3) of the Principal Regulations permits the Health Insurance Commission to disclose to the Department of Health and Family Services a wide range of information about claims and payments relating to hearing services. Although this provision is authorised by the Health Insurance Commission Act 1973 , there is no indication whether the Privacy Commissioner was consulted.Public Service Regulations (Amendment—Interim Reform)Statutory Rules 1998 No 23The Regulations seek to improve the efficiency, effectiveness and ethics of the Australian Public Service. It may be appropriate for some of the content of these Regulations to be placed in the Public Service Bill 1997 rather than in delegated legislation.Regulation 12 provides merely that the Commissioner must report to the Minister on the state of the Service, and that the Minister is to present that report to the Parliament. There is, however, no provision specifying the time within which the Minister must present the report to Parliament after it has been received.The Appendix to the Explanatory Statement helpfully divides its explanation of the provisions in the Schedule to the Regulations into two parts, the second of which relates to the technical and consequential amendments made by the Schedule. This Part advises, for instance, that provisions relating to the Public Service Board are omitted some 11 years after the abolition of the Board. The entry for 42.1 advises that r.74B omits an obsolete reference to a repealed Act, which appears to be the Arbitration (Public Service) Act 1920-1934 . This Act also seems to have been repealed some time ago.Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection RegulationsStatutory Rules 1997 No 371The Regulations implement aspects of the Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 . Regulation 14 permits the Superannuation Commissioner to request any person, whether or not they have a connection with the superannuation funds with which these regulations are concerned, to provide information in connection with the operation of the enabling Act and the regulations. If a person is required to comply with such a request then there would appear to be no protection of privacy or against self-incrimination.Subregulation 15(2) raises various presumptions relating to the service of notices by the Commissioner, but there is no corresponding provision relating to the receipt of documents by the Commissioner.Regulation 19 and Schedule 5 specify the expenses which a witness may claim if he or she is required to attend a hearing under s.32 of the enabling Act. Schedule 5 provides that such expenses are to be the same as those specified in the High Court Rules. The effect of Schedule 5, when read with the High Court Rules, is that a person who is remunerated by salary, wages or fees may recover the full amount of that remuneration which is lost through attendance as a witness, whereas one who is remunerated in any other way—such as by commission, or out of the profits of a small business—may claim no more than $64.40 per day. This would appear to operate unfairly.Telecommunications (Arbitration) RegulationsStatutory Rules 1997 No 350The Regulations establish a framework of rules and procedures relating to a dispute before the Australian Competition and Consumer Commission (ACCC).Subregulation 8(3) gives to the ACCC the power subjectively to determine whether any matters are relevant, and then to take them into account. This contrasts with paragraphs 11(2)(b) and 20(1)(c) where the ACCC is either bound or permitted to take account of matters which are objectively relevant to the issue. The Explanatory Statement provides no explanation for this difference.Subregulation 9(1) requires the ACCC to provide the parties to a dispute with a draft determination, prior to making a formal determination under subregulation 9(2), of a dispute that has gone to arbitration. The regulation, however, does not provide for any minimum time between the delivery of the draft and the final determination..Paragraph 10(1)(d) and subregulation 10(2) give the ACCC two possible bases for terminating an arbitration. In light of the protection intended to be provided by subregulation 9(1), it would be appropriate to provide for the provision of a preliminary finding or draft conclusion for persons who may receive an adverse decision under these two provisions. Subregulation 17(1) permits the presiding member at an arbitration to summon witnesses, whether with or without documents, but makes no provision for such a witness to claim travelling expenses. As witnesses summoned before the Administrative Appeals Tribunal are entitled to be paid fees and allowances, a similar provision in relation to telecommunication arbitration would appear to be appropriate.Veterans' Entitlements Regulations (Amendment)Statutory Rules 1997 No 372The Regulations seek to simplify the administration of the payment of travelling expenses for veterans.New paragraph 9AF(1)(a) allows the Commission to question, and seek written evidence for, travel claims made by a veteran at any time within six months of the completion of the travel. This appears to be a long period in which to ask a veteran to keep detailed records of his or her travel expenses. It is also a long period within which the Commission may decide whether or not to audit a travel claim, and then raise queries about it.If the Commission has reconsidered one of its decisions, and in the course of that reconsideration has set aside the earlier finding and substituted a new conclusion, the latter part of new subregulation 9AI(2) requires the Commission to consider only the evidence that was before it when it made the first decision. This requirement appears to be at odds with the normal process of appeal, in which tribunals and courts generally take into account not only the evidence initially relied on but also any new evidence which has come to light.18241824Allison, Sen LynSenator ALLISON1M6VICAD00—I give notice that, on the next day of sitting, I shall move:That the Senate—(a) notes that: (i) the Minister for Resources and Energy (Senator Parer) on 2 April 1998 was still acting in the position of Minister for the Environment, (ii) on 1 April 1998, the Australian Democrats thought Senator Parer's being acting environment minister was an April Fools' Day joke and were surprised that he was still in the position on 2 April 1998, (iii) Senator Parer, as Minister for Resources and Energy, has been responsible for: (a) abolishing the Energy Research and Development Corporation, (b) scuttling the white paper on sustainable energy, (c) Australia's internationally embarrassing greenhouse stance, (d) relaxing Commonwealth controls on coal exports, (e) pushing the Jabiluka, Honeymoon and Beverley uranium mines, (f) expanding fisheries areas without environmental impact assessments, (g) getting rid of the ethanol fuel bounty, (h) refusing to believe that global warming is a problem, (i) using a scare campaign to tell Australians they would pay $7 000 per family if Australia met its international agreements on greenhouse gas emissions, (j) pushing the research from the Australian Bureau of Agricultural and Resource Economics, which was discredited internationally and used a steering committee which locked out conservationists, (k) setting up a round table to advise him on sustainable energy on which 10 of the 11 members were from the fossil fuel industry, and (l) the biggest and widest destruction ever of Australia's unique and precious forests, and (iv) Senator Parer has shown over and over again that he believes the Australian environment ought to be denuded, mined and poisoned and generally destroyed; and(b) informs the Government that jokes are supposed to be made only until midday on 1 April.18251825Ray, Sen RobertSenator ROBERT RAYUI4VICALP00—I give notice that, on the next day of sitting, I shall move:That the Senate notes that:(a) the Prime Minister's `Guide on the Key Elements of Ministerial Responsibility' states that `ministers are required to divest themselves of all shares and similar interests in any company or business involved in the area of their portfolio responsibilities. The transfer of interests to a family member or to a nominee or trust is not an acceptable form of divestment'; and(b) it is now 23 days since the Prime Minister (Mr Howard) defied his own guidelines. 18251825Carr, Sen KimSenator CARRAW5VICALP00—I give notice that, on the next day of sitting, I shall move:That the Senate—(a) notes: (i) that the Government has continued to fail to adequately respond to estimates questions put on notice in 1997, namely questions nos 274, 432, 300, 388, 389 and 406 from the Employment, Education and Training Legislation Committee, (ii) that, at the supplementary additional estimates hearings of the Employment, Education and Training Legislation Committee, 243 questions were placed on notice, of which two were referred to the Department of Social Security and one was answered on the day, (iii) that, of the remaining 240 questions, 86 had been answered as at 9.30 am on 2 April 1998, leaving 154 questions on notice remaining unanswered, and (iv) the failure of the Government to respond within the required 3 months' time period to the following reports of the Employment, Education and Training References Committee: (a) Childhood Matters: The report on the inquiry into early childhood education , which was presented in July 1996, (b) Beyond Cinderella: Towards a learning society , which was presented in April 1997, and (c) Not a level playground: The private and commercial funding of government schools , which was presented in June 1997; and(b) condemns the contemptuous attitude of the Minister for Employment Education, Training and Youth Affairs (Dr Kemp) in reflecting the Government's appalling attitude towards the Parliament and the committee.18251825Brown, Sen BobSenator BROWNQD4TASAG00—I give notice that, on the next day of sitting, I shall move:That the Senate expresses concern and sympathy for the Tibetan patriots who are on a hunger strike and facing death in India to draw international attention to the plight of their homeland. Business18261826Motion (by Senator Calvert, at the request of Senator Abetz) agreed to:That business of the Senate notice of motion No. 2, relating to the presentation of the report of the Legal and Constitutional Legislation Committee on the special benefit provisions relating to the newly arrived resident's waiting period, be postponed till a later hour.Committees182618261826Motion (by Senator Calvert, at the request of Senator Crane)—by leave—agreed to:That the time for the presentation of the report of the Rural and Regional Affairs and Transport Legislation Committee on the provisions of the Australian Capital Territory (Planning and Land Management) Amendment Bill be extended to 7 April 1998.Business18261826Motion (by Senator Brown) agreed to:That general business notice of motion No. 1066 standing in the name of Senator Brown for today, relating to the arrest of former members of the Indonesian People's Democratic Party, be postponed till 6 April 1998.1826Motion (by Senator Bartlett) agreed to:That general business notice of motion No. 1028 standing in the name of Senator Bartlett for today, relating to the practice of face branding of cattle, be postponed till 2 sitting days after today.Miscellaneous18261826Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—by leave—I move:That the provisions of paragraphs (5) to (7) of standing order 111 not apply to the Aboriginal and Torres Strait Islander Commission Amendment Bill 1998, allowing it to be considered during this period of sittings.I also table a statement of reasons justifying the need for this bill to be considered during this sittings and seek leave to have the statement, copies of which have already been circulated in the chamber, incorporated in Hansard.Leave granted.The document read as follows—The Bill includes a number of important measures proposed by ATSIC and supported by the Government to improve the ability of ATSIC to conduct its operations, including by;. allowing ATSIC to attach conditions to its consent to the disposal of an interest in ATSIC funded property;. allowing ATSIC to delegate its power to approve the disposal of residential property to Azide' staff;. removing doubt about whether ATSIC may delegate certain ancillary powers concerning grants, loans and guarantees to a Regional Council; and :'. providing that the: remedy included in the ATSIC Act for breaches of grant or loan conditions toes nest affect the availability to ATSIC of other remedies for such breaches.The Government considers that any unnecessary delay to the Bill would be detrimental to ATSIC and to the indigenous community generally, and consequently that it is an appropriate Bill to bit exempted from the Senate cut-off rule. This is particularly apt given that the relatively technical nature of the Bill would suggest that it is not controversial and would be an appropriate candidate for expedited passage through the Senate.Question resolved in the affirmative.Business18261826Motion (by Senator Ian Campbell) agreed to:That the following government business orders of the day be considered from 12.45 p.m. till not later than 2 p.m. this day:No. 3— Insurance Laws Amendment Bill 1997No. 4— Medicare Levy Amendment Bill (No. 2) 1997No. 5— Commonwealth Places (Mirror Taxes) Bill 1998Commonwealth Places Windfall Tax (Collection) Bill 1998Commonwealth Places Windfall Tax (Imposition) Bill 1998Commonwealth Places (Consequential Amendments) Bill 1998No. 6— National Residue Survey Administration Amendment Bill 1998National Residue Survey (Customs) Levy Bill 1998National Residue Survey (Excise) Levy Bill 1998No. 8— Indigenous Education (Supplementary Assistance) Amendment Bill 1997No. 9— Health Legislation Amendment Bill 1998 Aboriginal and Torres Strait Islander Commission Amendment Bill 1998No. 28— Therapeutic Goods Legislation Amendment Bill 19971827Motion (by Senator Ian Campbell)—by leave—agreed to:That general business and consideration of committee reports and government responses be not proceeded with today, to be replaced by consideration of government business.Committees182718271827Motion (by Senator Woodley) agreed to:That the Rural and Regional Affairs and Transport References Committee be authorised to hold a public meeting during the sitting of the Senate on 3 April 1998, from 9 a.m. to 4 p.m., to take evidence for the committee's inquiry into the incidence and management of Ovine Johnes disease in the Australian sheep flock.18271827Motion (by Senator Calvert, at the request of Senator Knowles)—by leave—agreed to:That the time for the presentation of the report of the Community Affairs Legislation Committee on the provisions of the Aged Care Amendment Bill 1998 be extended to 6 April 1998.Miscellaneous1827Motion (by Senator Brown) proposed:That the Senate permits press photographers access to the Senate during the debate on the Native Title Amendment Bill 1997 [No. 2], to photograph proceedings under the same conditions as normally apply when access is granted. Question put.09:54:00The Senate divided. (The President—Senator the Hon. Margaret Reid)31Allison, L. Bartlett, A. J. J.Bishop, M. Bolkus, N.Bourne, V. Brown, B.Campbell, G. Carr, K.Conroy, S. Crowley, R. A.Denman, K. J. Evans, C. V. *Faulkner, J. P. Forshaw, M. G.Gibbs, B. Hogg, J.Lees, M. H. Lundy, K.Mackay, S. Margetts, D.McKiernan, J. P. Murphy, S. M.Murray, A. O'Brien, K. W. K.Quirke, J. A. Reynolds, M.Schacht, C. C. Sherry, N.Stott Despoja, N. West, S. M.Woodley, J.31Abetz, E. Alston, R. K. R.Boswell, R. L. D. Calvert, P. H. *Campbell, I. G. Chapman, H. G. P.Colston, M. A. Coonan, H.Crane, W. Eggleston, A.Ferguson, A. B. Ferris, J.Gibson, B. F. Heffernan, W.Herron, J. Kemp, R.Lightfoot, P. R. Macdonald, I.Macdonald, S. MacGibbon, D. J.Minchin, N. H. O'Chee, W. G.Parer, W. R. Payne, M. A.Reid, M. E. Synon, K. M.Tambling, G. E. J. Tierney, J.Troeth, J. Vanstone, A. E.Watson, J. O. W.Cook, P. F. S. Knowles, S. C.Cooney, B. Hill, R. M.Collins, J. M. A. McGauran, J. J. J.Neal, B. J. Patterson, K. C. L.Ray, R. F. Newman, J. M.* denotes teller(Senator Brownhill did not vote, to compensate for the vacancy caused by the resignation of Senator Bob Collins.)Question so resolved in the negative.Question so resolved in the negative.Miscellaneous1828Motion (by Senator Allison)—as amended by leave—proposed:That there be laid on the table, by the Minister for the Environment (Senator Hill), by not later than 6.30 pm on 2 April 1998, the report of the review of the operation of the Endangered Species Protection Act 1992 , pursuant to section 168 of that Act. Question put.10:03:00The Senate divided. (The President—Senator the Hon. Margaret Reid)31Allison, L. Bartlett, A. J. J.Bishop, M. Bourne, V.Brown, B. Campbell, G.Collins, J. M. A. Conroy, S.Crowley, R. A. Denman, K. J.Evans, C. V. *Faulkner, J. P.Forshaw, M. G. Gibbs, B.Hogg, J. Lees, M. H.Lundy, K. Mackay, S.Margetts, D. McKiernan, J. P.Murphy, S. M. Murray, A.Neal, B. J. O'Brien, K. W. K.Quirke, J. A. Ray, R. F.Reynolds, M. Schacht, C. C.Stott Despoja, N. West, S. M.Woodley, J.32Abetz, E. Alston, R. K. R.Boswell, R. L. D. Calvert, P. H. *Campbell, I. G. Chapman, H. G. P.Colston, M. A. Coonan, H.Crane, W. Eggleston, A.Ellison, C. Ferguson, A. B.Ferris, J. Gibson, B. F.Heffernan, W. Herron, J.Kemp, R. Lightfoot, P. R.Macdonald, I. Macdonald, S.MacGibbon, D. J. Minchin, N. H.O'Chee, W. G. Parer, W. R.Payne, M. A.Reid, M. E.Synon, K. M. Tambling, G. E. J.Tierney, J. Troeth, J.Vanstone, A. E. Watson, J. O. W.Bolkus, N. Newman, J. M.Carr, K. Hill, R. M.Cook, P. F. S. Brownhill, D. G. C.Cooney, B. Knowles, S. C.Sherry, N. Patterson, K. C. L.* denotes teller(Senator McGauran did not vote, to compensate for the vacancy caused by the resignation of Senator Bob Collins.)Question so resolved in the negative.Question so resolved in the negative.Miscellaneous1828Motion (by Senator Stott Despoja) agreed to:That the Senate—(a) notes that 1 April 1998 marks the national day of action for public funding of higher education as endorsed by the National Tertiary Education Union (NTEU) and the National Union of Students (NUS);(b) commends to the Federal Government the common goals of the NTEU and the NUS to maintain an appropriately financed higher education sector which: (i) provides equitable access to university education for students of all backgrounds, (ii) ensures high quality teaching, research and management in a diverse range of institutions, and (iii) meets a diverse range of economic, social and cultural needs;(c) condemns the Government's funding cuts to university operating grants of 6 per cent over 5 years, which have seriously undermined these goals; and(d) supports the NTEU and NUS April Fools' Day national day of action.Bills1828r4491828Bill received from the House of Representatives.Motion (by Senator Ian Campbell) agreed to:That this bill may proceed without formalities and be now read a first time.Bill read a first time.182810:08:001828Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—I move:That this bill be now read a second time.I seek leave to have the second reading speech incorporated in Hansard .Leave granted.The speech read as follows—This bill amends the Privacy Act 1988 to apply it to personal information held by contractors in relation to services provided to the Commonwealth.A key objective of this Government is to provide the Australian people with better government. We are determined to ensure that public resources are used effectively and efficiently. To ensure the best possible use of public resources, service delivery methods must be continually improved.One method of improving performance is the introduction of market discipline into the delivery of appropriate Commonwealth services, through competitive tendering and contracting of services.Performance improvement must, however, be delivered with appropriate protection for the privacy of individuals. The Government is committed to ensuring that where its agencies contract for the delivery of services this does not lead to a loss of privacy protection.Since 1 January 1989, when it came into operation, the Privacy Act has required government agencies that hold information about individuals to deal with that information in a manner that protects the individual's privacy. This bill ensures that the existing protections afforded by the Privacy Act are not lost when services are delivered under contract.The bill extends the current obligations of government agencies to any person or body responsible for the provision of services under a contract with the Commonwealth or one of its agencies. Sub-contractors will also be covered. The bill uses the term `contracted service provider' to refer to such contractors and subcontractors.The services brought within the scope of the Act may be delivered directly to a Commonwealth agency. This ensures that privacy protection under the Act continues where, for example, an agency outsources information technology services under the IT Infrastructure Initiative.Importantly, the bill also extends coverage to cases where Commonwealth agencies contract for the provision of services to people other than the Commonwealth. For example, where a Commonwealth agency contracts with a company to provide job seeking assistance to unemployed individuals, that company will be covered by the Act. This means that those who have previously received services delivered directly by Commonwealth agencies can be assured that the protection of their personal information continues at the same high standard required by the Privacy Act if those services are provided by contracted service providers.The Information Privacy Principles (or IPPs) contained in the Privacy Act require that personal information be collected only for a lawful purpose, related to the functions or activities of the collector. Where information is collected from the person to whom the information relates, the collector must see that that person is generally aware of such things as the purpose for which the information is being collected, whether it is compulsory to provide the information and the usual disclosure practices in relation to that information.The IPPs require agencies, when collecting information, to see that it is relevant to the purpose of collection, up-to-date and complete. Agencies should only use information for a purpose to which it is relevant and, before using information, should take reasonable steps to check that it is accurate, up-to-date and complete for the purposes for which it is to be used. Subject to certain exceptions, notably for law enforcement and preservation of life, information may not be used for a purpose other than that for which it was collected, or disclosed to another person, except with the agreement of the individual concerned.The IPPs require agencies to store information records securely against loss or misuse. They are to provide information about the types of personal information they hold. Subject to the Freedom of Information Act 1982 exemptions, agencies are required to provide an individual with access to his or her personal information records and to make corrections for accuracy, relevance and completeness.The bill applies the IPPs directly to the acts and practices of contracted service providers, where they are dealing with personal information under or for the purposes of the Commonwealth contract, to the same extent that they would have applied to the acts and practices of the contracting agency.So the rights of individuals to know for what purpose information about them is being collected, and to be confident that it will be securely stored and not disclosed to others except in appropriate circumstances will continue to be given effect.To date, where agencies have contracted out the delivery of services, Government policy has been that privacy protection should be provided for in the contract. This has provided significant privacy protection. However, applying the Privacy Act directly to contracted service providers will ensure that there can be no change in privacy requirements as a result of contracting out.The bill extends the Privacy Commissioner's role of monitoring and auditing compliance with the IPPs to contracted service providers. This monitoring and auditing role has proved to be a very effective method of educating and providing guidance to public sector agencies about their obligations under the IPPs. This education and guidance will now be extended to contracted service providers. Moreover, by applying the IPPs directly to contracted service providers, the bill significantly improves the ability of an individual who feels their privacy has been interfered with to seek a remedy.A person will now be able to complain to the Privacy Commissioner about a breach of the IPPs by a contracted service provider. The Privacy Commissioner will be able to investigate such complaints, and to conciliate to reach a settlement where a breach has occurred. The Privacy Commissioner has an enviable record in this respect, and her office is highly skilled in assisting those involved in resolving complaints.In the rare case where a settlement cannot be agreed, the Privacy Commissioner will be able to make a determination. She may determine, for example, that a contracted service provider should apologise, change its practices, or pay compensation for damage resulting from its breach.There are some services which it would be inappropriate for these amendments to cover. For example, the Commonwealth has, for many years, provided funding to community and volunteer organisations to assist them in the delivery of services. Although many such funding programs are referred to as grants, increasingly organisations in receipt of such funding are required to enter into contracts, to ensure proper financial and other accountability.Funding is also provided for the delivery of some services that have traditionally been delivered by the private rather than the public sector. This bill is not intended to place new obligations on organisations delivering services traditionally delivered by the private sector.Rather, the bill is intended to ensure the continuation of existing protections.The bill therefore does not extend coverage to contractors providing `excluded funded services', which are listed in the proposed new Schedule 3 to the Act. Because programs change, and the time frames may not allow for legislative amendments, the bill allows for regulations to ensure that services are not inappropriately excluded by references in the Schedule. The regulations may also specify additional services that are to be excluded from coverage, so that the introduction of new funding programs is not delayed by the need to await legislative amendment of the Schedule.In addition to the direct responsibility of contracted service providers for their acts and practices, the bill contains provisions designed to ensure that Commonwealth agencies, and the Ministers responsible for them, remain accountable for the contracts they enter into. Outsourcing agencies will be informed of any complaints against their contractors, and the Privacy Commissioner will, for example, be able to recommend changes in contracting practices if appropriate.So Commonwealth agencies will, as an essential aspect of entering into contracts for the delivery of services, need to ensure that prospective contracted service providers are aware of and able to meet the obligations of the Act. Existing contractors should be operating in accordance with accepted privacy principles. The extension of the Act should therefore require them to make few, if any, changes in practices.Commonwealth agencies will be expected to provide assistance and support to contracted service providers developing appropriate systems and practices for the delivery of services under contract.In addition, the Privacy Commissioner and her office will be available to provide advice and assistance to contracted service providers in meeting their obligations under the Act. The Privacy Commissioner has played a valuable educational role in relation to the obligations of the Act for Commonwealth agencies, and the Government is confident that contracted service providers will likewise find her assistance to be of great benefit.There is no significant financial impact on government as a consequence of applying the Privacy Act to contracted service providers. The contracting agency will retain some responsibility for the acts and practices of the contracted service provider, but this is a cost which government would otherwise have if that function had not been contracted out. Similarly, any costs for contractors of complying with privacy obligations may be taken into account when negotiating the contract price. Many of these costs may already be taken into account in current contractual arrangements which include privacy requirements in accordance with current Government competitive tendering and contracting policy.The IPPs will apply to the acts and practices of contracted service providers from the commencement of the amendments. As the limitations upon use and disclosure of personal information are related to a person having been made aware, at the time of collection, of the purpose of collection, these IPPs will apply only to information collected by contracted service providers from commencement. This ensures that contracted service providers are not required to contact individuals to seek their consent to uses of information already collected by them. However, the IPPs relating to matters such as secure storage and ensuring personal information is relevant and accurate before it is used will apply regardless of when the contracted service provider obtained the information. The principles that people are entitled to have access to personal information held by agencies about them, and to have that information amended if it is inaccurate, are integral privacy principles. The existing mechanisms for implementing these principles are contained in the Freedom of Information Act 1982. The Government will therefore be introducing a bill to amend the Freedom of Information Act to extend it to apply to requests by individuals for access to information about themselves held by contracted service providers. This will be effected by deeming documents containing such personal information to be in the possession of the relevant Commonwealth agency for this purpose. Commonwealth agencies will therefore remain responsible for the proper application of the exceptions to access contained in the Freedom of Information Act.The bill contains a number of safety net provisions.The Government is mindful of concerns that the contracting out of services, particularly information technology services could, if not appropriately controlled, lead to personal information being transferred offshore. An individual whose privacy is breached overseas may have great difficulty in obtaining a remedy from a contracted service provider who is not present in Australia.The Government does not consider it appropriate for personal information to be processed overseas and has included provisions in its outsourcing contracts under the IT Infrastructure Initiative to require contractors to provide services under the contract in Australia. However, the Government also recognises the importance of ensuring that legislative privacy protection continues, should any personal information be handled overseas by a contracted service provider. Privacy protection is ensured by the bill's deeming anything done outside Australia by a contracted service provider in relation to personal information to have been done in Australia.The bill also goes further to protect individuals if a contracted service provider is not resident in Australia (for example, if the service provider closes down its Australian operations) when it breaches an individual's privacy rights. In that case, any breach by the service provider will be attributed to the contracted service provider resident in Australia, or the Commonwealth agency, responsible for the information. An affected individual will, in such a case, therefore be able to seek compensation or other remedies under the Act.In addition, the bill ensures that an individual whose privacy has been interfered with by a contractor will still be able to complain to the Privacy Commissioner, and to receive a remedy if appropriate, even if the contracted service provider ceases to exist, becomes bankrupt or insolvent Or is wound up. In these circumstances, the bill allows the relevant Commonwealth agency to be substituted for the contracted service provider and to be required to pay any compensation.The bill removes any uncertainty about how the provision of personal information to a contracted service provider should be treated under the IPPs. It clarifies that this is to be treated as a `use' of information, not a `disclosure'. Personal information can therefore only be provided to a contracted service provider for a purpose for which the information was collected, subject to the existing exceptions such as where the individual has consented to a different use.The use to which the contracted service provider can put the information is subject to these same limitations. The contracted service provider will thus, for example, not be able to mix the information with other information they may hold.The overall effect of this bill is to ensure that contracted service providers are bound to comply with the IPPs in the same way as Commonwealth agencies and that the Privacy Commissioner's role of providing guidance, conciliation and monitoring continues to be available when Commonwealth agencies outsource the delivery of services.This bill therefore is an important step forward in ensuring that privacy protection keeps pace with developments in service delivery designed to provide more effective and efficient use of public resources.I commend the bill to the Senate.Ordered that further consideration of the second reading speech of this bill be adjourned until the first day of the winter sittings, in accordance with standing order 111.Bills1831r455183110:09:001831Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I move:That the Native Title Amendment Bill 1997 [No. 2] be referred to the Legal and Constitutional References Committee for inquiry and report by the last day of sitting in September 1998 on the implications for the bill of the High Court's decision in the Kartinyeri and Gollan v the Commonwealth (1998) (`the Hindmarsh Island Bridge Case').I am well aware of the way in which the vote will go on this particular piece of legislation, but the Democrats feel that, at least in a brief debate this morning, we ought to consider the implications of the Hindmarsh Island Bridge High Court decision yesterday and at least put our concerns on the record following that decision. Let me give you a brief summary of the case as we understand it.We understand that two judges, Brennan and McHugh, gave no opinion on section 51(xxvi). They concluded that what the parliament enacts it has the power to repeal and as the bridge act merely repealed part of the operation of the heritage protection act the issue does not arise. So in two cases the judges did not rule on the issue which is the concern of this parliament, and that is whether or not parliament can pass laws which are detrimental to one race of people, namely, the indigenous people. So two judges did not rule on that at all, but on the other matter.Two judges, Gaudron and Kirby, concluded that section 51(xxvi) does not allow discrimination against Aboriginal people, although for different reasons. However, Gaudron decided that the heritage protection act did not become invalid as a result of the bridge act and therefore the bridge act was valid. Kirby disagreed and said that the bridge act must stand alone and therefore was invalid.Two judges, Gummow and Hayne, concluded that section 51(xxvi) could produce discriminatory laws so long as they were not a manifest abuse of the power. To be a law under the race power it must be necessary for the race concerned but that is a judgment for the parliament unless it is a manifest abuse. They reject the argument that the 1967 referendum authorised only beneficial laws and that the constitution should be read as subject to international law. But they do make the point that a law overriding common law rights needs to be clear and unambiguous. They did not elaborate on what constitutes a manifest abuse. Kirby, by contrast, provides a very detailed analysis of why the manifest abuse test is too weak.So it is quite clear that the case did not create a binding precedent on the interpretation of 51(xxvi), which all of us expected may have been the result of that High Court decision. Although I understand and sympathise with the very great disappointment to the indigenous women involved in that case, we need to understand that the judgment yesterday did not give us any clear indication in terms of the Wik Native Title Amendment Bill, which we are debating. So the Democrats believe that there ought to be the possibility of referring this legislation so that we can look again at the High Court judgment.I know that the Senate Legal and Constitutional Legislation Committee has already spent a lot of time on this. But, of course, it did not have before it, at all the hearings that were held—which I know Senator Bolkus was certainly involved in—the High Court judgment. For that reason the Democrats believe that we ought to give these few minutes this morning to consider yesterday's judgment. I understand that we will not succeed in a vote on this motion I am moving, but I do believe it is important that we at least give this consideration to it.I would like to also point out that, in the debate on the Hindmarsh Island legislation when it was before the parliament, the Labor Party voted against the legislation in the first instance but then allowed it through subsequently. I note that Senator Bolkus, in his speech on 12 May, said:I must admit that, for my part, I only support this legislation because it will finish up in the High Court and those issues that we are so keen to ensure are clarified will be clarified in a way that could probably pre-empt some of the planks of your 10-point plan in response to Wik.I know that was a noble sentiment you expressed, Senator Bolkus. Unfortunately, by voting for the Hindmarsh Island Bridge legislation when it came back to this chamber, you actually allowed that legislation to go ahead.What we got yesterday was not a clarification at all. I do not know where that leaves indigenous people. I am sure you were genuine in your hope, on 12 May, that the High Court would give us a clarification. It has not done that, therefore the Democrats believe that the only way to resolve this would be for the Legal and Constitutional Affairs Committee to address the issue—to read carefully the High Court decision of yesterday and to take into account all the discussion that was held previously—in terms of the implications for the Wik legislation before we proceed to debate that legislation any further.10:16:001833Bolkus, Sen NickSenator BOLKUSXE4SAALP00—The opposition does not support this initiative by Senator Woodley and we do not support it for a couple of reasons. First of all, what Senator Woodley is seeking the Senate committee to embark on is something that, in a sense, has already been done. We have already examined the constitutional issues to the extent that we could. That process was initiated just a few months ago by Senator Margetts and it was quite useful at the time but, at the end of the day, the view that was held was that the best assessment one could make as to the constitutional power was that one was uncertain as to the outcome in the court. At the same time there was a desirability, I think by all of us, to ensure that parliament would not act in a racially discriminatory way.It has already been done. The strong view of opinion was that any High Court focusing directly on the issue of race power and the beneficial or detrimental nature of it would come to the conclusion that a court would make a ruling either that the power could only be used beneficially or that it could be used in such a way as to provide a mechanism to ensure not just protection against manifest abuse but also protection to ensure that the legislation involved was a proportionate response to the particular issue facing the parliament.I think it is fair to say that the High Court has not really advanced the position from where we were just a few months ago here. We do not really think anything would be gained from another Senate inquiry, Senator Woodley. The best you could say about the High Court's decision yesterday is that it leaves the constitutional position as clear as mud, and any parliamentary Senate inquiry would not help to clarify those muddy waters, as defined by the High Court yesterday.Of course we have concerns. All Australians should be concerned at the fact that, over recent months, neither parliament nor the High Court has been prepared to rule a very clear and definite line against discriminatory legislation. This should be of concern to us all, particularly given the diverse and multicultural nature of our society and that so many of us come from different ethnic backgrounds. Also, as Australia is trying to develop its identity in a global social and economic market, the way we behave at home is going to be important in terms of how we are seen abroad and also how we see ourselves. We are a long way from achieving reconciliation with our indigenous people. To achieve reconciliation there needs to be a platform of non-discrimination before they can be treated as equal partners in the process. As I said, the High Court decision yesterday leaves the constitutional position as clear as mud and no Senate committee, we think, can clarify that.In terms of the constitutional position, it is fair to say that we should not focus on just one aspect of the constitutional problems this legislation might have. Yesterday morning there were at least five arms available to indigenous Australians wanting to contest this legislation. Firstly, they could contest it on the assertion that it did not satisfy the beneficial arm of the races power, or the proportionate or supervisory requirements set down by the High Court. Secondly, they could challenge it in a sense that it did not provide procedural fairness in compliance with the requirements to do so under the just terms provisions of the constitution. Thirdly, they could challenge it because, in many instances, there is acquisition of property retrospectively, contrary to the requirements to provide just terms under the constitution. Fourthly, in some respects there is acquisition of property for other than Commonwealth purposes and there are imperatives in the constitution that property acquired by the Commonwealth needs to be for Commonwealth purposes, not for the benefit of third parties. That is a strong argument that can be pursued. Finally, there is the argument raised by the Clerk of the Senate that the requirements to satisfy the double dissolution trigger have not been met.I am not saying that any one of those five arms is conclusive as against the legislation; what I am saying is that those five arms allow for indigenous Australians to pursue this matter again. Those five bases still remain after yesterday's decision. They were avail able yesterday morning and I think that most people would agree they were still available to appellants yesterday afternoon. They are available now.I do not want to talk much longer other than to stress those two points and to make the point that the obligation, in a sense, is not on this parliament. If we want fairness and if we want certainty then the only way to achieve that is to ensure that there is a genuine compromise on the issues. That compromise should ensure, for instance, that indigenous Australians can walk away realising and recognising that they have got something out of the process: respect in particular for their access to native title through a meaningful right to negotiate, and also fairness and certainty through an application of the Racial Discrimination Act amendment, which was passed by this parliament last time.Contrary to the false assertions that have been made about that RDA clause, it does provide a greater degree of certainty than there would be if it were absent and, secondly, it provides a benchmark for fairness for indigenous Australians. So, going back over those two points, the constitutional situation is murky but we do not think that going through a process we have already been through is going to clarify it any more.10:23:001834Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—What happened yesterday in the High Court was both very sad and very telling. In some ways it still, as has been pointed out, leaves the situation in relation to the race power in the constitution of Australia uncertain. The issue that is going to come on stronger and stronger and which must be addressed by this parliament and by the community of Australia is: when are we going to clarify that position in the constitution? I think that most people would agree that having that power in the constitution in that manner, in such an uncertain way—and `uncertainty' has probably been one of the most misused words in the vocabulary in recent years—is not helping the current situation.Unless you can have people arguing that the race power in our constitution can be used to harm a particular group of people, I think we should be moving as a nation, or as a collection of nations, to clarify that and make it absolutely beyond doubt that the race power in the constitution is there, is designed, and should be used, for the benefit of any particular race of people. I can just imagine the Australian government going out onto the international stage and saying, `We are arguing that we could clarify it the other way.' At the moment, that is almost what they are doing. They are saying, `We believe it is not just for the benefit but we believe our measures are beneficial anyway.' So, in reality, we see the awful spectre of this government potentially going to the High Court—when the inevitable challenges occur to the Native Title Amendment Bill [No. 2]—to argue in it that that power can be used to the detriment of Aboriginal people in Australia and, of course, the criticism that that move will attract in the international community will be immense, and it will be justified.I know that, during the inquiry that I managed to get up on the constitutionality of the Native Title Amendment Bill, many people referred to the Hindmarsh Island Bridge case. Some said that they thought it was potentially relevant and some people said it was less relevant. Many people believed that it would help in that the arguments would be clarified a little or it would help in the way that we saw the constitutional issues in relation to the Native Title Amendment Bill, and we ended up with an argument that went so far and no further during that inquiry—and a very useful and interesting inquiry it was, considering how few of the people who were asked to give evidence were actually supporting the government's position.Obviously, I believe that any ability that we have to further examine the bill would be useful. I also think, obviously, that any ability for the bill to actually go out for consultation with indigenous Australians would be terrific—essential, in my terms—but this has not happened in any real sense at all.The debate on the Hindmarsh Island Bridge Bill was, if you like, an echo of what we are seeing at the moment. Honourable senators will recall that a South Australian election was looming. We voted on this bill the first time and the second time it came back I felt strongly that the argument of the ALP—that the Racial Discrimination Act was the saving factor, that you could put through a rotten bill, whack a Racial Discrimination Act amendment on it and that would make it okay—was flawed.HX5WOODLEYSenator Woodley—It proved to be.DX5Margetts, Sen DeeSenator MARGETTS—And it proved to be, as Senator Woodley has just interjected. So the Greens (WA) thought long and hard and chose to vote against putting that amendment on the bill at that stage because we believed that it was the wrong thing to do and would give a signal to the community that putting a rotten bill together, a bill that damages Aboriginal people, and then sticking a Racial Discrimination Act amendment onto it was not the right thing to do. At that stage the bill was defeated, with the Labor Party voting against it.The bill was dead at that stage and that was a great step forward, we believed, for positive action for indigenous rights in Australia. But a little time later, as we got closer to the proposed South Australian election, the Leader of the Opposition, Mr Beazley, decided that he would make a public statement and, in fact, he called the bill back. He said, `Look, give it to us again. Go on, give it to us again and this time we will vote for it whether or not it has the Racial Discrimination Act amendment on it.' By that stage we thought it might be marginally better with the Racial Discrimination Act amendment, but the Labor Party have clearly decided that the election was much more important than any ethics or principled position in relation to indigenous Australians in South Australia and throughout Australia, as we clearly see now.What we are seeing in the Native Title Amendment Bill [No. 2] is an echo of what particular Racial Discrimination Act amendments do or do not do and what we can rely on them to do or not do, and what in fact can give any relief to people to think in relation to a rotten bill, `Is the bill substantially detrimental to Aboriginal people?' I gave a list of the massive removal of rights that have occurred so far as a result of the debate which Labor and the government do not want to revisit. We are having a debate on the margins of dispossession, as I mentioned yesterday.So here we are; we do need a dose of reality and supporting this reference would assist in providing this dose of reality. I know that the numbers in the Senate are such that this will not happen, but we all need a dose of reality.Senator Bolkus said that false assertions have been made about the Racial Discrimination Act amendment. Senator Bolkus made certain assertions during the debate on the Hindmarsh Island bill. I do not think any of us are in a position to make absolute assertions about what the High Court will or will not do in relation to a particular amendment.If he is saying that we are making false assertions, all I can say is, `We told you so and so did a lot of other people.' The same kind of confident assertions are being made right now in relation to what we believe is an inadequate Racial Discrimination Act amendment in the Native Title Amendment Bill [No. 2]. The same kinds of assertions are being made all over again by the same party who believe that they can stick something in the bill and pretend that they can make a thoroughly rotten bill appear to be okay. If there is no other reason for supporting this amendment, this is the reason to support it. Those people who are standing behind those false assertions should be exposed.10:32:001835Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I have problems with this particular proposition. I thank Senator Woodley for bringing it forward. It is important that he did bring it forward and it is important for the chamber to have the opportunity of discussing the decision. Even for that reason, I am grateful that he has put it forward. It must be remembered that Senator Woodley has been involved in these particular areas for longer than most of us.But a recitation of what the court decided in the judgments delivered yesterday would indicate to the chamber that support for the reference of the matter to the legal and constitutional committee would not get us very far. It would be interesting, but it would not get us very far.I was given a briefing on the judgment by legal advisers some hour after the judgment was delivered. I am referring to notes of that briefing. The fact is that the High Court held by a majority—that is, Brennan, Gaudron, McHugh, Gummow and Hayne, with Kirby dissenting—that the Hindmarsh Bridge legislation is valid. Brennan and McHugh held that the effect of the bridge act was to repeal the Heritage Protection Act in so far as it related to the Hindmarsh Island bridge.Since the subject matter of legislation which repeals another act is that of the act which is repealed, the repealing legislation is within power. Therefore, they said that it was not necessary to consider the extent of the races power. It is not unusual for judges at whatever level to determine matters without going to one of the key issues in which people are very interested, but they are to do a job and determine whether the legislation is valid or not.Gaudron agreed with the repeal argument made by Brennan and McHugh, but did consider the races power. She held that, although the races power is wide enough to authorise laws to the advantage or disadvantage of people of a particular race, it is difficult to perceive a current circumstance pertaining to Aborigines which could support a law operating to their disadvantage. She said that the issue is not whether the law was beneficial, but whether the law is reasonably capable of being viewed as appropriate. Given the serious disadvantage of the Aboriginal people, prima facie, the races power presently only authorises laws which operate to their benefit.Gummow and Hayne did not accept the repeal argument, but considered the races power was wide enough to authorise the bridge act. They rejected the view that the races power could only be exercised to the benefit of a race. They said, however,—and this is interesting—that legislation to infringe fundamental common law rights had to be clear and unambiguous, that the High Court had a supervisory role to ensure that legislation was within constitutional power and that the constitution was based on certain traditional assumptions, such as the rule of law. Mr Justice Kirby gave a detailed analysis of the extent of the races power. He held that the power could be exercised only for the benefit of a race, and he rejected the repeal argument.The end result is that the judgment gives no clear indication as to how the Wik legislation is likely to be dealt with by the High Court. I have noted some comments by the government, but the government should bear in mind that in fact the judgement did not give an indication as to how the Wik legislation would ultimately be dealt with by the High Court, if it goes to that extent.Two of the judges said in effect that, in respect of Aborigines, the races power could only be exercised for their benefit; two said that it could be exercised for both benefit and disadvantage. However, the High Court would closely examine any legislation. Two judges did not examine the issue of the races power. It should also be noted that three judges supported, and three judges opposed, the repeal argument. The government would have been relying on that argument to support the Native Title Amendment Bill 1997. That issue is still open. The comments by the government that I have seen I believe are not really warranted. If I were a betting man—well, I will not go into my betting habits—HX5WOODLEYSenator Woodley—Unless you've got any good tips.6H4Harradine, Sen BrianSenator HARRADINE—Even when I owned a racehorse, I did not have too many good tips. I am inclined to the view that has been expressed by Senator Bolkus: that, given those particular facts, it would not help us further with our understanding of the current legislation before us if we were to have a long reference before the Legal and Constitutional Committee.I do respect that committee and benefit from its deliberations. But also I do not think it is appropriate to delay the legislation, the Native Title Amendment Bill [No. 2]—and I assume that is what the mover of the motion is indicating—any further, because I think we do have an opportunity to settle the issue, to have an outcome of deliberations within the next few days which will be fair, just, reasonable and honourable—and with certainty, as far as we can possibly achieve certainty. We are the legislators; the courts are not.I think also that the government would do well to think about clause 7(1) relating to the RDA; it ought to understand that the Senate's position on that was not one to suggest that clause 7(1) should be used as a clause buster for every other clause in the legislation. That is not the Senate's position; it has been misunderstood. I do believe that, whatever it takes, the government should consider that situation and accept that clause 7(1) is not meant as a clause buster.If, with the position taken by the Senate, some sort of wording additional to that which is in 7(1) is needed, then so be it; I would be inclined to go along with that particular aspect. But let us at least have that provision there, because I think it is important not only symbolically but also for interpretive purposes to achieve some certainty. I thank the Senate.10:42:001837Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—The government will oppose this motion moved by Senator Woodley. It would have the effect of referring the Native Title Amendment Bill [No. 2] to the Senate References Committee on Legal and Constitutional Affairs and ensure that that committee not report back to the Senate until September 1998, therefore also having the effect of delaying the passage of the so-called Wik legislation or Native Title Amendment Bill until obviously extremely late in this year, if not into the year after.The government is keen to have this matter resolved. We would have liked to have seen the legislation passed in its original form prior to the adjournment for the summer recess at the end of last year. There are thousands, probably tens of thousands, of people across Australia who want to see these matters resolved; they want to see this legislation passed. Those tens of thousands of people come from all walks of life—they are pastoralists, miners and Aboriginal people from virtually all states of Australia.EU4O'CHEESenator O'Chee—Workers.H15Campbell, Sen IanSenator IAN CAMPBELL—`Workers', Senator O'Chee interjects. I think Senator Harradine has given a good rebuttal in relation to the details of the Hindmarsh Island bridge case that was handed down by the High Court yesterday. But the government believes that this legislation should be dealt with. We seek to continue the second reading debate on that bill this afternoon and move to the committee stage tomorrow, and to have the Senate deal with the legislation prior to the Easter adjournment of the Senate. This would have the effect of delaying it.I know very well that the vast majority of Australians do want to see this legislation dealt with—dealt with properly, dealt with thoroughly, but dealt with nonetheless. And the government has facilitated that debate. For those reasons, we would oppose the motion.Question resolved in the negative.(Quorum formed)Bills18370183710:47:001837Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—I table a supplementary explanatory memorandum which relates to the government amendments to be moved to this bill. The memorandum was circulated in the chamber on 10 March this year.The bill.10:47:001837Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—by leave—I move:No. 1—Schedule 1, item 1, page 3 (after line 9), before section 51AD, insert:51ACA Definitions (1) In this Part:applicable industry code, in relation to a corporation that is a participant in an industry, means: (a) the prescribed provisions of any mandatory industry code relating to the industry; and (b) the prescribed provisions of any voluntary industry code that binds the corporation.consumer, in relation to an industry, means a person to whom goods or services are or may be supplied by participants in the industry.industry code means a code regulating the conduct of participants in an industry towards other participants in the industry or towards consumers in the industry.mandatory industry code means an industry code that is declared by regulations under section 51AE to be mandatory.voluntary industry code means an industry code that is declared by regulations under section 51AE to be voluntary.(2) For the purposes of this Part, a voluntary industry code binds a person who has agreed, as prescribed, to be bound by the code and who has not subsequently ceased, as prescribed, to be bound by it.(3) To avoid doubt, it is declared that: (a) franchising is an industry for the purposes of this Part; and (b) franchisors and franchisees are participants in the industry of franchising, whether or not they are also participants in another industry.No. 2—Schedule 1, item 1, page 3 (line 13) to page 4 (line 3), omit subsections (2) and (3).No. 3—Schedule 2, item 2, page 6 (lines 11 to 18), omit subsections (1) and (2), substitute: (1) A corporation must not, in trade or commerce, in connection with: (a) the supply or possible supply of goods or services to a person (other than a listed public company); or (b) the acquisition or possible acquisition of goods or services from a person (other than a listed public company); engage in conduct that is, in all the circumstances, unconscionable. (2) A person must not, in trade or commerce, in connection with: (a) the supply or possible supply of goods or services to a corporation (other than a listed public company); or (b) the acquisition or possible acquisition of goods or services from a corporation (other than a listed public company); engage in conduct that is, in all the circumstances, unconscionable.No. 4—Schedule 2, item 2, page 7 (after line 34), after subsection (3), insert: (3A) Without in any way limiting the matters to which the Court may have regard for the purpose of determining whether a corporation or a person (the acquirer) has contravened subsection (1) or (2) in connection with the acquisition or possible acquisition of goods or services from a person or corporation (the small business supplier), the Court may have regard to: (a) the relative strengths of the bargaining positions of the acquirer and the small business supplier; and (b) whether, as a result of conduct engaged in by the acquirer, the small business supplier was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the acquirer; and (c) whether the small business supplier was able to understand any documents relating to the acquisition or possible acquisition of the goods or services; and (d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the small business supplier or a person acting on behalf of the small business supplier by the acquirer or a person acting on behalf of the acquirer in relation to the acquisition or possible acquisition of the goods or services; and (e) the amount for which, and the circumstances in which, the small business supplier could have supplied identical or equivalent goods or services to a person other than the acquirer; and (f) the extent to which the acquirer's conduct towards the small business supplier was consistent with the acquirer's conduct in similar transactions between the acquirer and other like small business suppliers; and (g) the requirements of any applicable industry code; and (h) the requirements of any other industry code, if the small business supplier acted on the reasonable belief that the acquirer would comply with that code; and (i) the extent to which the acquirer unreasonably failed to disclose to the small business supplier: (i) any intended conduct of the acquirer that might affect the interests of the small business supplier; and (ii) any risks to the small business supplier arising from the acquirer's intended conduct (being risks that the acquirer should have foreseen would not be apparent to the small business supplier); and (j) the extent to which the acquirer was willing to negotiate the terms and conditions of any contract for the acquisition of the goods and services with the small business supplier; and (k) the extent to which the acquirer and the small business supplier acted in good faith.No. 5—Schedule 2, item 2, page 7 (line 35) to page 8 (line 3), omit subsection (4), substitute: (4) A person is not to be taken for the purposes of this section to engage in unconscionable conduct in connection with: (a) the supply or possible supply of goods or services to another person; or (b) the acquisition or possible acquisition of goods or services from another person; by reason only that the first-mentioned person institutes legal proceedings in relation to that supply, possible supply, acquisition or possible acquisition or refers to arbitration a dispute or claim in relation to that supply, possible supply, acquisition or possible acquisition.No. 6—Schedule 2, item 2, page 8 (lines 5 to 8), omit "in connection with the supply or possible supply of goods or services to a person, or whether a person has contravened subsection (2) in connection with the supply or possible supply of goods or services to a corporation:", substitute "or whether a person has contravened subsection (2):".No. 7—Schedule 2, item 2, page 8 (after line 19), after subsection (6), insert: (6A) A reference in this section to the acquisition or possible acquisition of goods or services is a reference to the acquisition or possible acquisition of goods or services by a person whose acquisition or possible acquisition of the goods or services is or would be for the purpose of trade or commerce.No. 8—Schedule 2, item 2, page 8 (after line 23), after subsection (7), insert: (7A) A reference in this section to the acquisition or possible acquisition of goods or services does not include a reference to the acquisition or possible acquisition of goods or services at a price in excess of $1,000,000, or such higher amount as is prescribed.No. 9—Schedule 2, item 2, page 8 (lines 24 to 31), omit subsection (8), substitute: (8) For the purposes of subsections (7) and (7A): (a) subject to paragraphs (b), (c), (d) and (e), the price for: (i) the supply or possible supply of goods or services to a person; or (ii) the acquisition or possible acquisition of goods or services by a person; is taken to be the amount paid or payable by the person for the goods or services; and (b) paragraph 4B(2)(c) applies as if references in that paragraph to the purchase of goods or services by a person were references to: (i) the supply of goods or services to a person pursuant to a purchase;or (ii) the acquisition of goods or services by a person by way of purchase; as the case requires; and (c) paragraph 4B(2)(d) applies as if: (i) the reference in that paragraph to a person acquiring goods or services otherwise than by way of purchase included a reference to a person being supplied with goods or services otherwise than pursuant to a purchase; and (ii) a reference in that paragraph to acquisition included are reference to supply; and (d) paragraph 4B(2)(e) applies as if references in that paragraph to the acquisition of goods or services by a person, or to the acquisition of services by a person, included references to the supply of goods or services to a person, or the supply of services, to a person, as the case may be; and (e) the price for the supply or possible supply,or the acquisition or possible acquisition, of services comprising or including a loan or loan facility is taken to include the capital value of the loan or loan facility.No. 10—Schedule 2, item 2, page 9 (lines 2 and 3), omit "section 51AD", substitute "Part IVB".I would like to speak to the explanatory memorandum which was circulated on 10 March and which has just been tabled. The amendments insert a new section 51ACA in schedule 1 to the bill. The key addition is subsection 51ACA3, which declares that franchising is an industry. Views were divided in the business community as to whether franchising can be called an industry. The government was of the view that it did, but this amendment seeks to remove any doubt. It is quite explicit in saying that franchising is an industry and that franchisors and franchisees are participants in that industry.The other definitions in the new section 51ACA already appear in the bill at proposed new section 51AD in schedule 1. For convenience, those definitions have been relocated to the new section 51ACA proposed by amendment No. 1. The second point is that it is making it easy to understand, which is one of the philosophical and practical objectives of the government in assisting small business. Mr Chairman, are we dealing with government amendments 3 to 8 as well?10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Murphy)—On the running sheet we have 1 to 10.H15Campbell, Sen IanSenator IAN CAMPBELL—I will keep talking, then. This group of amendments numbering 3 to 8 inserts proposed new provisions in section 51AC in schedule 1 of the bill. The amendments add to the existing activity of supply of goods and services to a business consumer and the corresponding activity of acquisition from a small business. It includes supply of goods and services and it adds the concept of acquisition from a small business.The amendments recognise that a number of small businesses sell goods and services to other businesses. This can include the acquisition from small businesses of fresh fruit and produce for supermarket chains, manufactured items, such as furniture, and a variety of services. The amendments dealing with acquisition of goods and services are drafted in a form which corresponds to those already specified in the bill dealing with supply of goods and services to a small business. These are factors which a court may have regard to for the purposes of determining whether unconscionable conduct has occurred. The key amendment is No. 4.I now refer to amendments 9 and 10. Firstly, amendment No. 9 removes an anomaly in the existing $1 million threshold limit applicable to the price of a small business transaction. That limit is found at proposed new subsection 51AC(8) in schedule 2 to the bill. In certain loan transactions price is taken to mean the interest, fees and charges but does not include the capital value of the loan. In contrast, a property transaction will include the capital cost or value of the item. This amendment at proposed new paragraph 51AC8E will ensure that both forms of small business transactions are treated the same. The other provisions in this replacement of subsection 51AC8 of the bill are drafting requirements. The main purpose is to reword the current provision which applies at subsection 4B2 of the Trade Practices Act 1974 to the meaning of price.I now turn to government amendment No. 10. This amendment is a drafting refinement to continue the link between the proposed new remedy for unconscionable conduct of section 51AC with the definitions used in the proposed new part 1B industry codes in schedule 1. The amendment is consequential upon the modifications made by the bill by government amendment No. 1.10:52:001840Schacht, Sen ChrisSenator SCHACHT4J4SAALP00—The opposition supports government amendments Nos 1 to 8 and 10, but does not support amendment No. 9, which is the further amendment to the definition of the transaction. We have our own amendment in that area and, with the Democrat amendments, we believe it is too restrictive. The further amendment may actually make it even more restrictive by putting in the definition of `capital' in certain circumstances. The definition that the government has for `transaction' is, as I understand it, $1 million over five years. Am I correct in that?H15CAMPBELLSenator Ian Campbell—No. It is $1 million, but not over a time period.4J4Schacht, Sen ChrisSenator SCHACHT—Even with $1 million, we are advised—and I would like a response from the minister on this—that because of the turnover in, for example, petrol station proprietors, which is very large, this $1 million limit may cut them out. As the minister would know, one of the bedevilling areas of franchising operations is petrol stations. To put it bluntly, the petrol stations and the petrol companies have been brawling for almost as long as this parliament has been meeting—since petrol and cars were first put together.EU4O'CHEESenator O'Chee—Not just here either.4J4Schacht, Sen ChrisSenator SCHACHT—I know. Those of us who, as former ministers, have had the experience of trying to negotiate an oil code arrangement on a voluntary basis between the petrol companies and the petrol retailers—the franchisees—know the feeling of frustration it engenders. It was one of the most exasperating periods of my time with small business when agreement could not be reached—basically because there was no trust between either side. In the end, when we were in government, we said that, on the oil code side, we would not agree to abolish the franchise act and the sites act in the petroleum industry until there was an agreement that the Trade Practices Act had been strengthened to ensure that the voluntary code which would outline best practice arrangements between the companies and their franchisees was in place and operating properly. To try to get agreement in that area was extremely difficult. By the time we left office there had been no agreement, and I am not sure what stage the government is at on reaching agreement on a voluntary oil code between the petrol retailers and the companies.One thing is for certain: unless the petrol retailers, through their industry association, are satisfied that they are covered by this act, the brawl will continue and the intervention of government will be required. This is not an ideological argument, that we necessarily want to be there because we are interventionists from the opposition position; this is a practical application to ensure that the economic power of the three or four big petrol companies is well balanced against the interests of an individual franchisee. I have to put it on the record here that the operation of the petrol companies in the last two or three years in introducing multisite franchising did not help the process of engendering trust in getting an agreement under the oil code.So, first, I would like some explanation about the definition of the transaction arrangement, that petrol retailers are clearly able to be covered in this bill and do not accidentally fall out of its provisions. Secondly, by way of background that would be useful to us all, where is the government at in reaching agreement on the voluntary oil code—a code that, if signed on to voluntarily by the companies and the franchisees, can be used as a basis under this amended Fair Trading Act to give remedy to the franchisees? Finally, what is the government's position on repealing the sites act and the petroleum franchising act? I know that is a triple-barrelled question, but I think that in the discussion the opposition would like some understanding on that position. I have to say that I am pleased to see that the minister is here in the advisers' box as well, because these are complicated issues that are consistently changing in negotiations around the place.EU4O'CHEESenator O'Chee—He's a good fellow.4J4Schacht, Sen ChrisSenator SCHACHT—I think it is very useful having the minister here because I suspect that, day to day, he is dealing with some of these issues and we can get some advice direct about where we are at with those negotiations.NaN:00:001841Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—I think it is good to have such a qualified adviser in the advisers' box as well. Senator Schacht, you did ask a series of questions and, as I was taking advice on one, you asked another. So, to make it easier for my mind, which tends to try to deal with things one at a time, I will deal with the question as it relates to these 10 government amendments, many of which are just tidying up things and drafting refinements. Amendment No. 9, which you will be opposing, is a fairly crucial policy question where both you, on behalf of the opposition, and Senator Murray have amendments, and it does deal with this $1 million threshold.You asked whether it is for five years. By interjection, I said, no, it is not. It is not restricted to that; it is $1 million per transaction. The courts, I am advised, will have to make decisions about that. They will also have a clear direction from the government that if companies are seeking to gross up transactions to get around that threshold then courts will have to make a decision about that being an artificial arrangement.Furthermore, just on the policy question, the effect of the opposition amendment in relation to moving to the 20-person test, or the so-called ABS test, as opposed to the $1 million test—I am just talking about the core policy question, which I am sure we will debate a little later on—would be, as you would know, because you would have been lobbied on it, to potentially exclude thousands of small businesses from the benefit of this legislation. I know from people who have lobbied me, particularly the Property Council, they are very keen to have it restricted. Clearly the lobbying was not to benefit small businesses.So the coalition does believe this $1 million threshold will work a lot better in terms of the interest of small businesses. I have just been handed a note. If a transaction goes over the $1 million and then falls outside new section 51AC, which is the new remedy, the business will still have section 51AA available to it.11:01:001842Murray, Sen AndrewSenator MURRAY3M6WAAD00—I, too, acknowledge the presence of the Minister for Workplace Relations and Small Business (Mr Reith). The fact that a minister of the Crown from the other House is present is a sign of the importance that he and the government attaches to this bill. I think that is very satisfactory. I am not going to add much to what Senator Schacht has said. We, too, support items 1 to 8 and No. 10. We will oppose No. 9 for pretty much the same reasons as outlined by the opposition. We will deal with the reasons more fully when our own amendments come forward.11:02:001842Schacht, Sen ChrisSenator SCHACHT4J4SAALP00—In the amendment that we and the Democrats have moved about the definition in No. 9, we have put in an alternative definition—not to supplant your own, but as an additional definition—to guide the court. We have put that in using the ABS definition of `small business'. Even though we have not got to moving our amendments in this general discussion, what is the minister's response to that amendment putting in the ABS definition of `small business' as well as the $1 million so that the court can see they have some flexibility?No matter how you draw a definition and put an amount of money, you will always have an argument from the person who is $1 over whatever the figure is. If you make it $2 million or $500,000, there will always be somebody—as we always know—who will feel aggrieved that their situation cannot be dealt with because they have fallen on the wrong side of the definition of the amount of money by a few dollars and therefore cannot get remedy.The remedy you have mentioned under 51AA has to prove unconscionable conduct, as I understand it. We would be interested to hear the government's response to our amendment of adding in this further definition as an alternative for the court to look at. It may well give the court a chance to rule that, when someone accidentally falls under the line on a $1 million figure, they are able to get remedy under the `small business' definition of the ABS rule. You would probably say to me that even that definition of `small business' sometimes is in dispute. I would like to get a response from the minister on that particular point now, if he cares to, or we can wait until we get to our amendments on No. 9.11:04:001842Murray, Sen AndrewSenator MURRAY3M6WAAD00—If that answer is to be had, we have to refer to the fact that in our amendment we have given the ABS definition or the $1 million level, whichever is the higher. I appreciate the point that Senator Schacht is making. People will still argue about being slightly over and all that sort of thing. But, effectively, we have allowed whichever is the higher to be the determining item.11:05:001842Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—There are a number of answers. I will give you the medium length one. I do not want to be too short, because it is a very serious question. It needs to be understood at the outset that this package, as I think Senator Murray and Senator Schacht know better than most, is best defined as a balance. It has found a balance which the small business people of Australia are very supportive of. They want this package. They have, I think as recently as February, put out a statement; it is probably more recent than that. The Small Business Coalition, which I think Senator Murray would respect, are a very representative organisation, even though they have bingles on issues within the organisation from time to time. They certainly are not having some disagreement on this. They want this package and they want it in the form that it is in. They do not want it to be fiddled around with.If you went to the Small Business Coalition and said, `Do you want us to put in some extra definitions about what a small business is?' they would say, `No. Could you please get it through the Senate. If you can get it through before Easter, please get it through before Easter. We don't want any more delay. We don't want another eight or nine inquiries. We don't want to have an inquiry into the definition of a small business. We are happy with the $1 million definition.' The only people who have come to me who are not happy with the $1 million definition are my good and dear old friends who represent the top end of town in the property industry who own the big shopping centres. They want the definition which the original Labor amendment that is on the table was to propose.So small business want the $1 million threshold. As Senator Schacht says correctly, you will always have arguments at the margin when you have an arbitrary figure. That applies in just about every piece of legislation the Commonwealth or any other government ever passes. So you will always have those arguments at the margin. We have said that, in cases, the courts will obviously make decisions about transactions and particularly artificial schemes to get around this limit to fall outside the bounds of particularly proposed subsection 51AC(8), I think it is.So that is the answer in the overall scheme of things. The fact is small business want it. They are happy with the $1 million threshold. The only people who are not are the top end of the property industry, the big shopping centre owners.4J4SCHACHTSenator Schacht—What did they want? They wanted less, did they?H15Campbell, Sen IanSenator IAN CAMPBELL—No, they would like to narrow the definition of a small business so the protections apply to a smaller group of people. On our estimations, that could exclude up to two-thirds of retail traders on that definition. That is reality. If you want to exclude thousands of small businesses from the protections that these clauses bring in, you bring in the definition that, say, the Property Council are pushing. I know the question you are asking is whether we could have one or the other—4J4SCHACHTSenator Schacht—No. You say the Property Council want a more restricted definition. Does that mean they want the $1 million threshold in transaction reduced to $500,000 or they want other amendments elsewhere? Do the Property Council have a view about the $1 million figure?H15Campbell, Sen IanSenator IAN CAMPBELL—I had the benefit of a meeting with the Property Council, and they made it quite clear to me—and my very learned adviser has said that my recollection is correct—that they want the ABS definition, which is the 20 employees business, and they have convinced the Labor Party to move that amendment. I think you would know from your own experience, Senator Schacht, that is a much narrower definition and it will exclude a lot of people. That is one of the reasons the government is opposed to it.We think the $1 million test is fair. Small business want the test. There is no disagreement amongst the small business community. They are absolutely at one on this. They do not want this to be fiddled around with in the Senate. They would like to see this package proceed through the Senate this day. Practically speaking, as senators would understand, if we do put in amendments like this which the government argues are against the interests of small business the bill will have to go back to the House of Representatives and be listed, and the House of Representatives will have to come to a view about the amendments.Senator Schacht interjecting—H15Campbell, Sen IanSenator IAN CAMPBELL—The two people handling this bill are the Manager of Government Business in the Senate and the Leader of the House (Mr Reith), and we both have two other hats that we wear. I can assure you that from a practical point of view—this is not a threat in any way; it is a practical reality which I think you and Senator Murray would understand better than most—the Small Business Coalition and small business people across Australia have made their views known on this bill. They want this piece of legislation. They do not want any more inquiries or delays; they want it through.The practical reality of Thursday, 2 April 1998 in the Senate is that we have the opportunity today to pass this legislation. We will be moving on, once the committee stage of this bill is completed, to consider the balance of the second reading debate and the committee stage of the Wik legislation and the government does not expect, with one small exception, to be able to deal with any other business.As my adviser informs me, small business have waited over 20 years for this sort of reform. From my point of view as Manager of Government Business, if we do not get it through in this form today, we will be forcing on the small business people of Australia a further delay. That is not to say that we will not look at your amendments and debate them, but I say it against that background. Not only are the proposed amendments to the threshold test opposed by small business; those amendments will have the effect of delaying the legislation. Small business have been waiting for 20 years. They have waited year after year for this sort of protection. We are giving it to them, and we would like to see the legislation passed unamended in the Senate today.11:11:001844Murray, Sen AndrewSenator MURRAY3M6WAAD00—That was unnecessarily provocative. The first time the Trade Practices Amendment (Fair Trading) Bill 1997 came before the Senate was, I think, yesterday. This is the first time we have had the opportunity to debate this bill. It was not sent to a Senate committee. The Senate has not been obstructionist.For the record, the coalition came into power on 3 March 1996. Four months later, on 26 June 1996, the Minister for Small Business and Consumer Affairs, Geoff Prosser, issued terms of reference to the House of Representatives Standing Committee on Industry, Science and Technology to investigate fair trading issues. Thirteen months after the coalition came into power, on 26 May 1997, that House of Representatives committee tabled its report. Four months after that, which is 17 months after the coalition came into power, the government responded to the fair trading report by tabling its `New deal: fair deal'. In month 19, two months later, on 3 December 1997, the Trade Practices Amendment (Fair Trading) Bill 1997 was debated and passed in the House of Representatives. On 4 December 1997 the bill was introduced into the Senate but was not presented to the Senate for debate, and the Senate rose on 5 December 1997. Meanwhile, the coalition is spinning the line that Labor are holding it up. It was a disgrace. They did not hold it up one bit. They were cooperative in every respect on this bill. Twenty-four months after the coalition came to power, it is now early April and the bill comes before us.Please do not be rude to the Senate about the urgency of this bill when this is the second day the Senate has dealt with it and the government has had, on the account I have just given, 24 months. We will be cooperative with it, but please do not be provocative because we have not done anything to deserve that kind of remark.The second remark I want to make goes to the views of small business on this bill and the provisions within it. There are 890,000 small businesses. There are, as Minister Reith knows better than anyone, a myriad number of small business organisations and a number of organisations with small business members who have been captured by big business, in my opinion. I am not naming the Small Business Coalition as one of them, but the Small Business Coalition is but one large organisation amongst many. We have had representations from the 40 to 50 small business organisations that I have written and spoken to who have asked us to attend to this definition because it does not meet their particular needs.I believe we should debate the definition on the merits and not assume that out there 890,000 small businesses and 40 or 50 small business organisations all say that this is a great definition for small business, because they do not. My approach would be to pick up the substantive issues concerning the small business definition when the appropriate amendment comes forward and in the meantime deal with the government's amendments 1 to 10.I would suggest to the parliamentary secretary that he might like to look at the possibility of excising 9(e) from the amendments. We would see our way to passing amendments 1 to 10 without 9(e). We could then get on with debating further amendments.11:15:001845Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—I will just make a short response. I was not seeking to be provocative. I certainly would never seek to provoke Senator Murray. There are probably a couple of people on the other side who provoke me from time to time and I provoke them back. But since Senator Conroy is not here I will not go any further.I am pointing out to the Senate a pure practicality, which I am sure Senator Murray understands. We are not holding any threat over him. I think he understands well—and he makes that clear from his own contribution—that it would be very hard to find any proposal which would get the approval of every small business person in Australia. But this is an opportunity for the government and for the parliament to deliver something for them which can start up by 1 July. The government believes firmly that we do need the bill in its current form, otherwise you start unbalancing it, unpicking it, and creating uncertainty and putting at risk the potential for this to start up on 1 July.It is just a practicality of the Senate sitting schedule and the fact that we have a massive amount of stuff to do. We are very pleased with the sort of cooperation we have had. We are seeking more cooperation. If my remarks, which were not meant to be provocative, put that in jeopardy then I apologise to you, the Senate and particularly the small business people of Australia. I am here to try to get this through unamended.We do need government amendment No. 9. It is something that will improve the legislation and make the $1 million threshold limit clearer and make interpretation of it clearer. So we do seek your support for each one of those government amendments.11:17:001845Murray, Sen AndrewSenator MURRAY3M6WAAD00—Thank you for your gracious response. I did ask your opinion as to whether you would consider dropping 9(e), in which case we would be able to then support your package.11:18:001845Schacht, Sen ChrisSenator SCHACHT4J4SAALP00—I thought Senator Murray might talk a bit longer so I thought I would have another couple of minutes privately with the Minister for Workplace Relations and Small Business (Mr Reith) in the advisers box. What I wanted to raise is this definition. In view of what the government has said—that this definition of $1 million is approved by the range of small business organisations, et cetera—what I wanted to raise with the minister is that I have a letter from one of the small business groups, which is the Australian Petroleum Agents and Distributors Association, which was sent to me and to many others signed by Gerry Watts, the general manager, making it quite clear that they do not support the limit of $1 million. They do not want that limit. They think many of their members, for various reasons, would be over the wrong side of the $1 million. I have to agree that APADA is not a big small business organisation, but it is in the petroleum industry which is bedevilled over issues of franchising and so on.I will bring it to the attention of the minister that I have taken the trouble here in the last minute or so to contact the biggest small business organisation in Australia which genuinely represents small to medium sized business, the MTAA, and asked them their view about this definition. They have made it quite clear that for their members—and they represent 250,000, I am told—they do not want any limit of $1 million in here at all. They would seek the Senate to delete paragraph 7 of the original bill, which says:A reference in this section to the supply or possible supply of goods and services does not include a reference to the supply or possible supply of goods or services at a price in excess of $1,000,000, or such higher amount as is prescribed.The advice from the MTAA, just two minutes ago, is that they want that deleted because they believe that, even with that and the ABS definition—because the ABS definition includes part time; and that is an industry with lots of casual employees—of 20, including casual employees, many of the small businesses in the MTAA industry will fall out because they are too big for the $1 million and they will fall out because they have more than 20 employees.That was the direct advice I just had from the MTAA. I asked them whether I could raise this here on the floor of the Senate. So they are suggesting to the Senate that the definition of $1 million and even the ABS definition be excluded. They have actually said that they are rapidly preparing material to be circulated to all senators right now on this particular view.I do not like coming in here and raising this. That is why I tried to talk to the minister privately about just where we are at with a range of small business organisations. The MTAA is a major small business organisation. Within the small business forum I think it represents over 200,000 small businesses in one form or another.I must say that I do not believe we should write legislation according to the last lobby group that rings you or speaks to you, but in this case I would be nervous, to say the least, on behalf of the opposition, to move into this area if there is such a large small business organisation that believes this definition is far too limiting for their members. All that will mean is that within 12 to 18 months we will be back here having a blue, an argument or representations that the thing is too narrow. I know that the minister, certainly the opposition, would rather have this given a fair go for several years where there is not an immediate argument over demarcation or dispute over what that level is.So, again, I seek advice from the government as to what exactly have you got as advice from the small business groups in the community—as diverse as they are—that they are overwhelmingly willing to accept the $1 million. I accept the fact that the ABS definition might even, in some senses, be more restrictive, and I can see why the Property Council of Australia would favour that. That probably proves the point why the MTAA wants that knocked out as well. They think that the ABS definition would do them in but they also think that the $1 million limit would do them in. That is why Mike Delaney and his efficient organisation will now be rapidly sending faxes to everybody saying, `Drop the lot.' I would like to receive from the minister at the table the response to the range of small business views on this.If we deleted your subsequent amendment No. 9, which you have circulated, plus the original subsection 7, which contains the $1 million limit, what would be the consequence if there was no definition? I know the first thing is that some other big business will claim that they are being hard done by, et cetera, and so you will end up with Coles-Myer challenging Woolworths or vice versa, which none of us want. This is for small business. I have to say that the more I here of this debate, I think the $1 million is not a large amount of money these days, and that is certainly the argument of the MTAA. But I would be happy to get a response from you. Can the advisers say more about what the position would be if there was complete excision of those definitions?11:25:001846Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—I am very happy to give leave for one of my advisers to go and talk to you privately behind the screen. With respect to the MTAA, there is clearly an issue there. That issue affects a significant number of people, but probably of the order of 1,000-odd. I think we are talking mostly of the intermediaries in that business. Can I just say at the outset that the MTAA has welcomed the package as a whole.4J4SCHACHTSenator Schacht—We are not arguing that.H15Campbell, Sen IanSenator IAN CAMPBELL—They have made it very clear that they want the package. The Small Business Coalition, the SBC, said as recently as a month ago in a press release they put out after their meeting here in Can berra on 27 February, that they want the draft bill passed and they want the start date to be 1 July. Senator Murray has made the point that the Small Business Coalition does not represent everyone—but all the other organisations do as well.The MTAA has come out and supported the package. Marcus Kollington from the Service Station Association said, in relation to the oil code part of it, that:Service stations will finally be able to obtain fuel supplies on equal and competitive terms so that they can compete with new entrants into the market like Woolworths.He also said:Services stations would also have a much stronger code of practice to protect them because of the government's proposal to add a new section 51AC to the Trade Practices Act. The new act will also ensure that there is protection from unfair conduct or exploitation for dealers and would mean that all small businesses are entitled to proper disclosure of information before they enter into agreements with oil companies or big business.So this has clearly been raised with the MTAA, Senator Schacht, and I think you will be getting some private advice about that shortly. There is a group of people who, because they are intermediaries in the oil market, have a very high turnover and, as a matter of definition, have a small staff. So they are not going to be protected by this and they do have a concern there. But, under the negotiations going on in relation to the oil code—and that general process which may lead to arbitration—I understand and I am advised that those concerns can be dealt with through that process and they cannot be through this legislation, but that is an exception.That brings me to amendment No. 9. Senator Schacht asked what would happen if you just pulled out all together the clause in relation to the $1 million threshold. If this were done you would then open it up for big business to use this as a weapon against small business—and we are trying to go the other way. Senator Murray, the importance of paragraph (e) in amendment 9 is that it includes the capital amount within the threshold. It clarifies that the $1 million transac tion includes the capital amount and not just the loan, the interest and the fees.Without the 9(e) amendment it could be interpreted that the transaction would include only the fees, the interest and any other items related to a loan in relation to the provision of either goods or services and would apply only to the repayments and not the capital. That would mean that you would capture, potentially, much larger businesses because, clearly, for repayments and fees of $1 million these days—with the historically low interest rates that the coalition has been able to engineer through its exceptionally good fiscal economic management—you can obviously borrow an enormous amount of money with repayments of $1 million. At six or seven per cent interest rates, it would bring in an enormous amount of capital. Paragraph (e) has been put in amendment 9 to ensure that this legislation is a weapon for small business—that it is part of their armory and not yet another part of the armory in the already well-stocked weaponry of big business. This is to try and even up the balance and 9(e) is essential to achieving that.11:29:001847Murray, Sen AndrewSenator MURRAY3M6WAAD00—I am going to have to repeat all this when Senator Schacht comes back, because I do not think Senator Schacht has fully grasped the alternative amendment we have put forward, and it is relevant to this discussion. There are four aspects to the definitional process. The first is the proposition as to whether there should be a threshold. It is quite plain that the government have made the determination that there shall be a threshold, that small business shall be defined, and for what we think are good reasons, so we are likely to support the threshold argument. The second aspect relates to an ease of definition with which the community as a whole and the business community are content, and that is the definition which is the ABS definition. However, that is unnecessarily restrictive in this instance. The government have introduced a $1 million threshold, but the $1 million threshold, unless it is limited, may not cover not only service stations but all the hundreds of thousands of tenants who have made application to us as falling under neath that because over the 10-year span of a lease they could easily exceed $1 million.That leads us to the question of making sure that the $1 million provision of goods and services should be further defined as 12 months, in other words, you have to receive in 12 months $1 million worth of goods and services supplied by a particular supplier. That can be in the form of rent, it can be in the form of fuel. There are many businesses with high turnovers and low margins which are small businesses which easily will receive $1 million worth of beer in a year or $1 million worth of fuel in a year, et cetera. So we cannot conduct the definitional argument without paying attention to the propositions put forward as I have outlined. The amalgam of amendments we have put together, namely, the ABS definition or the $1 million, whichever is the higher, but the $1 million has to be within a year, is the appropriate definition.11:33:001848Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I would like to indicate that the Greens (WA) have listened so far to the argument and have given some consideration to what is being put up by the Democrats when we come to it later under their amendment No. 6 as an alternative definition in conjunction with their amendment No. 7, which specifies the period of 12 months. I think that does address a number of the concerns that Senator Schacht was talking about in relation to the government's definition. What we then have to deal with, if Senator Schacht is actually in the chamber to hear the arguments, is that hopefully there might be a possibility of support in the Senate for that change of definition, and then the concerns of the Motor Trade Association are taken into consideration. If they have maybe half a dozen employees, they could still access the provisions that are provided under this bill. That is obviously important.The issue of the loan is a little more problematic. It is a matter of whether or not that amendment 9(e) provides more access in total or whether the insertion of (e) cuts more people out. I think that is what we are debating at the moment, and that certainly has not been made clear by what the minister has been saying so far.11:35:001848Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—I would like to respond to Senator Margetts and the point raised by Senator Murray a bit earlier. One of the things about this $1 million threshold is that it not the size of the business, it is actually the size of the transaction. By seeking to define it with a period of time you may seek to help the group of people from the MTA, but you may, when you are doing that, exclude thousands of other small retailers in shopping centres. That is why they are so happy with this definition, because it comes down to transactions.One of the transactions might be the lease to get hold of their space in the shopping centre. That is why the shopping centre owners, the big property groups—who are probably going to kill me after I have said all this—want to try to narrow it. They would seek to try to narrow it in the way that you are describing in terms of putting a time limit on it, or they would seek to try to narrow it by putting a limit on the number of employees. They would love to do that because it makes it easy to exclude a lot of their tenants from the protections of the act, whereas the $1 million transaction test will ensure that more small businesses are included. I have said, in relation to the group of people whom the MTA have raised, that there is a process going on at the moment, and going to mediation is part of the process, the oil code and the franchise code, and we think that is the most appropriate way to do it. But, if you seek to alter this threshold in the legislation, you run the serious risk of losing the protection for potentially thousands of small business people, and it is a very real risk.Another point should be made: I am informed that the $1 million amount, as set in the legislative framework, can be altered by regulation. Once the legislation comes into effect we will, of course, be monitoring to see whether the $1 million threshold is appropriate and that it does work in practice. If, as a result of that monitoring, some alteration needs to be made it can be done by regulation. But that only reinforces the fact that it is important to keep the threshold clear.Senator Murray talks about the employee test. One of the problems with that—I have seen the amendments proposed by the Democrats and the opposition—is that you would have to seek to define how that test is applied. Does the definition refer to full-time, part-time or casual employees? What time in the financial year would you count the number of employees? You again get the definitional problem that Senator Schacht raised in his very first interjection in the debate: what if it is $1,000,001 or $999,999? You have the same problem—in fact much bigger problems—if you seek to add in some alternative tests. We believe that the $1 million transaction test is the best test. The Small Business Coalition and almost all of the other bodies that represent businesses in Australia support it and want this legislation in this form and do not want to tinker with the test as it is.But, as we have said, the $1 million threshold can be changed by regulation. We would seek to get that in and if the $1 million needs to be changed for some reason then we can do so by disallowable instrument and see how it goes.11:39:001849Schacht, Sen ChrisSenator SCHACHT4J4SAALP00—I appreciate the fact that I had a chance to talk to the minister's adviser, who happens to be the minister in the other place, privately and the information he provided, which included the fact that the $1 million figure is a disallowable instrument and can be adjusted as a disallowable instrument from time to time. That does give further flexibility. As I said to Minister Reith, whatever the cut-off figure is it will be under review and there will be plenty of people in the industry rapidly making their points of view known if this figure means that too many people are falling outside the definition and cannot get remedy. There will be political pressure for it to come back here and be adjusted. As it is by disallowable instrument it will be much easier to do than put an amendment through the parliament again. So that does assuage one of my partial fears; there is a greater flexibility about the $1 million.Senator Murray has again pointed out to me a very important point that the opposition gives weight to. He wants the $1 million to be limited to a 12-month period, which means that under the definition more small businesses would fall into the category of $1 million than would under a definition that is not time limited. With the transaction period going over several years, a motorcar salesman would probably run into tens of millions of dollars of transactions and therefore clearly fall outside the $1 million definition. That Democrat amendment does seem to have considerable merit.I agree with Senator Murray in that it is probably too late to move rapidly to the suggestion made by Mr Delaney a while ago that we have no limit at all and leave it open. We are too far gone to go down that track at the moment, and it can be changed by regulation. However, Senator Murray again makes the point in his amendment, which we are sympathetic to, that if you put the ABS definition in, whichever is the greater is an important point. Minister Reith did point out to me privately that they do not like the idea of having a range of definitions, but at least the court can decide. That is a reasonable process. I was a bit suspicious when we were advised that the Property Council of Australia was very keen on the ABS definition. I thought that this proves what a quagmire you are often in with small business—the interests of the Property Council are not necessarily the same as those of the small business community and retail tenancies in shopping centres, et cetera. So I accept that in some cases the ABS definition would, by itself, be more restrictive but by having the option of whichever is the greater overcomes that point.DX5MARGETTSSenator Margetts—The MTAA concerns are dealt with that way.4J4Schacht, Sen ChrisSenator SCHACHT—Yes. In particular, the 12-month limit on the transaction has some merit. The opposition does not want to delay the bill or play around, but one thing I do suggest to the minister is that maybe we could deal with other amendments and come back to this one at the end of the committee stage because there may be some position we can negotiate on as we get more information. I am not opening this up to have 100 small business organisations streaming down in here to lob pieces of paper on top of us; that would only make it more confusing.H15CAMPBELLSenator Ian Campbell—That is the next debate.4J4Schacht, Sen ChrisSenator SCHACHT—Yes. The opposition thinks that the Democrat amendment at the moment has considerable merit. I can certainly say that in the petroleum and motorcar industries, businesses that most of us would consider to be small businesses have transactions greater than $1 million, whichever way you try to add it up. Those industries have been bedevilled by franchising disputes. The minister can say, quite rightly, that the franchising code will cover a number of these and they have to get to an agreement. They have never been able to agree to a franchising code generally. In fact, the motor manufacturers have never even agreed to the view that their retailers are franchisees. That was my experience. Despite the extraordinary evidence that they were franchisees, they have always said that they were not. They went through a convoluted debate and discussion to prove, when I was minister, that their franchisees were not franchisees—because they did not want to sign onto a code.Those issues make me a little nervous about saying, `Let us leave it until the code. They will sign on to the code, the code will be covered generally because of the fair trading provisions here and elsewhere it will give greater strength to that code to be used in the court.' I am also cognisant that there is such suspicion in this industry between the franchisees and the manufacturers, between the petrol retailers and the petrol companies, that it is extremely difficult to get them to agree on anything—even to meet. That is why I think giving the definition here some more latitude, so that more of those retailers and franchisees in the motor industry, in its various aspects, could fall inside the definition by using Senator Murray's amendment, has some merit. I raise that to get a response. It might be an idea if we do leave this particular amendment until later in the committee stage so that there can be a bit more discussion.I have to say, Minister and your senior adviser, that we are not interested in having this hang around or in beating people to death over it. I accept that there are a range of arguments and that this is a grey area. We accept that there is going to have to be a cut-off point and a threshold test, but we want to make sure that it is a reasonable threshold test. So far, the Democrats's amendment seems to deal with most of our concerns.11:47:001850Murray, Sen AndrewSenator MURRAY3M6WAAD00—I would like to give a practical reason as to why we think the either-or approach should work. If you were a small business and you had to go to court to prove that you qualified under the threshold test, you can imagine how you would have to scramble through your papers to establish that you bought a million dollars worth of goods or services from somebody. If you rang up the brewery or if you rang up the oil company you might well get an evidentiary piece of paper; but if it was from some wholesaler it would be very difficult to accumulate the information. If you happened to have five employees, which you might in a liquor store, or 15 employees, which you might in a service station, it would be very easy to go along to the court and say, `Here are my wage records. I employ 15 part-time and full-time employees, so I fall under the ABS definition.'What you have to accept is that small businesses are not likely to rush off to the courts anyway—that is always a thing they try to avoid—but when they do have to they are often not as well organised or as well equipped as they might need to be. You need to make it possible for them to easily access the courts. That is why I have sought to give you the either-or definition with whichever is the higher, because accumulating the evidence that they fall under the $1 million goods and services cut-off might prove, evidentially, quite difficult to do.11:48:001850Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—It seems to me that we could advance by asking for everything except government amendment No. 9, then deal with government amendment No. 9 after we have reached the point in the procedure where we are actually dealing with Senator Murray's amendments Nos 6 and 7. Then we would know what we were polishing off, if you like.It seems clear from the debate in the chamber that everybody who has spoken has issued their notice of intent, if you like, that what they are trying to do is to include as many of the small businesses as possible. The earlier debate between Senator Schacht and Senator Ian Campbell was whether or not their definition was more inclusive. Of course, Senator Murray and I would argue that Senator Murray's amendment would deal with both of those and actually achieve what seems to be being asked for by both sides. I think we will serve our purpose better by doing it the way I have suggested. I move:That further consideration of amendment No. 9 be postponed.Question resolved in the affirmative.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Patterson)—My suggestion is that we deal with government amendments Nos 1 to 7 and 10, and extract No. 8 from that group. We will deal with No. 8 when we deal with the Democrat amendment to government amendment No. 8. The question is that amendments Nos 1 to 7 and 10 be agreed to.11:52:001851Schacht, Sen ChrisSenator SCHACHT4J4SAALP00—I just want to put on the record that the opposition is supporting these amendments. One reason we are particularly pleased to do so is that one deals with the definition of franchising as an industry. I think it is a significant step forward that, by legislation, that industry has got the recognition.Some years ago, there was a major inquiry by the ABS on the size of this industry and, to many people's surprise, the franchising industry was found to have a turnover of $40 billion or thereabouts, which is by no means a small industry employing several hundred thousand people in full- and part-time work. With, I think, over a 1,000 franchisors operating and growing, the growth in the industry was found to be around 17 per cent in that survey by the ABS.So the franchising industry—and its structure and operation—is an extraordinarily important part now of the Australian economy. It has not been given recognition in the past by the parliament, by governments and by political parties because it has always been seen as something a bit new that is not really in the mainstream of industry policy—commercial policy—in Australia. But there is no doubt that a properly run franchising arrangement is a very good way for new people to join, and become adept at being in small business. If they have a decent arrangement with a franchisor, it can provide the framework of how to run their business and give them guidance. Many people have been successful in small business by entering it through a franchise arrangement.Unfortunately, there have been lots of appalling cases in recent years where people have entered into franchising arrangements, firstly, without doing proper due diligence about what they were getting themselves into or, secondly, being misled quite deliberately by a franchisor. It was very unfortunate that in 1996 the then minister, Mr Prosser, allowed the voluntary franchising code in this country to collapse because, once it collapsed, there was no guidance at all left for potential franchisees to understand that they were dealing with a franchisor who had signed up to the then voluntary code. This was a retrograde step for the industry.Mr Prosser, as I said yesterday in another debate, made an unfortunate judgment, to say the least, that the issues of the franchising industry could be best dealt with by the franchisors' association taking charge of running the code by being able to represent both franchisors and franchisees—a bizarre suggestion. That is a bit like saying the employer and the union would both get together and sort out the best interests of everybody. We all know that the interests of employees and employers are not always going to be exactly the same, and the interests of franchisors and franchisees are not always going to be the same. Fortunately in the end for the industry, the demise of Mr Prosser meant that those suggestions have gone off the table—thank goodness they have—and I want to congratulate the government because its policy is in line with what ours has been for a number of years: that there will now be a recognition of the franchising industry in the legislation as an industry and that there will be an opportunity to develop a franchising code that will be backed by the legislation. This will be an enormous step forward.The franchising industry in Australia, therefore, will be given the confidence to continue to grow without horror stories appearing from time to time in the media—as has occurred in recent times—of some new franchisee being diddled, being done out of their money. Unfortunately, we have had cases where people, who have taken a redundancy package in their forties, have sought to buy a franchise to invest in, to run it as their own business, and have found that the rules and the operation of the particular franchise have led them to lose their money because they were without proper protection. There have been too many of those cases.The review that was done three or four years ago by the ABS found that about 20 per cent of all franchisors in Australia were in dispute with their franchisees, a figure that was far too high for the good running and good reputation of this industry. Therefore, this government's amendment should really be welcomed by the franchising industry. The opposition welcomes it. It provides a base for this industry to continue to grow even more strongly on the basis of encouraging, in particular and in many ways, the further development of small business in Australia.11:57:001852Murray, Sen AndrewSenator MURRAY3M6WAAD00—The Democrats support amendments Nos 1 to 7 and 10.Amendments Nos. 1 to 7 and 10 agreed to.Further consideration of amendment No. 8 postponed.11:58:001852Murray, Sen AndrewSenator MURRAY3M6WAAD00—by leave—I move:(1) Schedule 1, item 1, page 3 (line 27), omit "regulations", substitute "the Commission".(2) Schedule 1, item 1, page 3 (line 29), omit "regulations", substitute "the Commission".(3) Schedule 1, item 1, page 4 (lines 4 to 13), omit section 51AE, substitute:51AE Industry codes(1) The Commission may make a code for a particular industry for the purposes of this part.(2) The Commission must not make a code unless it is satisfied that: (a) interested persons in the industry have had an adequate opportunity to be consulted on the code and have had their submissions taken into account; and (b) the code represents a fair standard of conduct for the industry.(3) The Commission may accept a code proposed by the relevant industry bodies representing suppliers and business consumers if it is satisfied that the code meets the requirements of section (2).(4) The Commission may amend or revoke a code after providing for interested persons in the industry to have an adequate opportunity to be consulted on the amendment or revocation.(5) Codes made under this section are mandatory codes, unless the Commission determines that the public interest would best be served by the code being a voluntary code.(6) Where the Commission determines that a code is voluntary, the code must specify the method by which a corporation agrees to be bound by the code and the method by which it ceases to be so bound (by reference to provisions of the code or otherwise).(7) A code made by the Commission under subsection (1), and any amendment to a code, made under subsection (4), is a disallowable instrument.These three amendments refer to the codes of conduct changes. Codes of conduct set standards of acceptable commercial behaviour, which can then be taken into account by the courts in interpreting the act. The Democrats regard industry-specific codes of conduct as absolutely essential if the new unconscionable trading provisions of the Trade Practices Act are to work effectively. Without such standards, the legal protection in the new provisions of the Trade Practices Act may be read very narrowly by the courts and therefore afford little protection to small businesses.Experience with industry codes of conduct demonstrates the absolute necessity of such codes being mandatory on all participants in an industry and underpinned by legislation. Senator Schacht would know, from his period as a minister, that they tried voluntary codes and, in the case of the franchising council, it proved to be a disaster. I think the experiment was worthwhile but it failed.This became apparent in the events leading up to the collapse of the Franchising Code Council in January 1997. I remind those listening that the franchising industry is estimated to be worth something in the order of $42 billion. This was not a minor event in Australian commercial history.The franchising code failed because of the lack of mandatory codes of conduct.In its report of July 1997 the Reid committee on fair trading examined the events leading to the collapse of the Franchising Code Council and concluded that voluntary self-regulatory codes did not work. It was a unanimous decision from the members of the House of Representatives committee who were bipartisan, and in that case they were Liberal and Labor Party members. That committee called for national franchising legislation to regulate franchising. That is why Senator Schacht made his remarks. Further, it called for the ACCC to have the power to prescribe codes of conduct in other industries as well.The government has rejected these recommendations, instead reiterating its belief in voluntary self-regulation as the best way forward. It has, however, proposed that the minister can by regulation determine a code to be mandatory and hence underpinned by the Trade Practices Act.That might be alright if we had a minister who was warm to the proposition that most should be mandatory. However, in his `New deal: fair deal' statement—somewhat to our surprise—Minister Peter Reith said this would only occur if voluntary codes failed and there was continuing unfair conduct. Our view is that that is not good enough.While the government had agreed to make franchising and oil industry codes mandatory, the Democrats are concerned that leaving the decision in the hands of the minister, rather than the ACCC, will make it almost impossible for further codes, such as those on retail tenancies—and that is the critical one—or those on small business finance to be made mandatory. Unless codes are mandatory or able to be pushed towards agreement by the ACCC, standards of acceptable behaviour may never be developed in key industries.Voluntary codes tend to be extremely weak because they need the agreement of those most affected and, when interests are opposed, voluntarism just does not work. Without the movement towards mandatory codes of conduct, the unconscionable conduct provisions are unlikely to provide much assistance for small business because of the generality of the provisions.The changes we propose will allow the ACCC to impose codes of conduct on recalcitrant businesses, thereby giving small businesses the protection they not only need but have made the case for, and which the report in the House of Representatives agreed with. Our amendments propose not only to fulfil the aims of the government, but to strengthen them by requiring codes of conduct to be enforceable and mandatory.12:03:001853Schacht, Sen ChrisSenator SCHACHT4J4SAALP00—There is much of what Senator Murray has just said that the opposition cannot in any way disagree with. We certainly have the same view that voluntary codes do not work. I went through the agony of that for three years and they do not work. There only needs to be a couple of hiccups and the whole thing collapses.I went through the experience with the oil industry of trying to negotiate a voluntary code and for three months we could not even get both sides to agree to sit in the same room together. That was one of the most extraordinary performances by any industry that I have ever seen. The only reason they agreed to sit together in the end was a threat from the government that, if they did not agree to sit, we would take action on their behalf and they both might end up with an outcome that they would both hate. I am an absolute devotee of the view that voluntary codes do not work any more. If we want a decently run industry with proper and transparent rules, mandatory codes are the way to go.This is not an ideological issue or that the opposition believes that this is government intervention, et cetera, simply because we believe in government intervention. It is as a result of practical experience that we know that voluntary codes do not work. We tried the voluntary code route in the early to mid- nineties and it did not work. There was always someone willing to put a spanner in the works to stop the voluntary codes from working. There only had to be one person who said no, or who disagreed or was obstructionist for the whole thing to fall apart, despite endless meetings. Some of the disparate interests make it almost impossible to get a code together .In the end, the only way to get a code is to say to them, `You have got a period of time to draw it up, but in the end, if you don't, the government will do it and it will be mandatory.' It is much better if they draw the code up, then the government implements it and makes it mandatory after they have drawn it up. But in the end, if they do not agree, then the government has to do it.I want to say to Senator Murray that I have some concerns about this amendment. The reason why the opposition will not support it is this issue of the ACCC drawing up the codes rather than the minister. It is too early to tell whether the ACCC itself will be the best body to draw up and run the codes. It is a new body. It has only been going a couple of years. I have already had some experience in my other responsibilities and I think there are deficiencies in the ACCC. It may be because of lack of resources or it may be a lack of development of institutional skills, particularly in handling a range of codes.I do not know whether the ACCC will handle it any more quickly. Being a statutory authority, their very nature is that they will often go to the lowest common denominator when trying to reach agreement and we might end up with a code that is not actually worth that much. They may themselves be obstructed by the various interest groups.I have considerable qualms that the present ACCC is not well-resourced and does not have a developed institutional memory to handle this as well as being the gatekeeper on the legislation itself. I do not know whether there is some problem in law and whether, if they are drawing up the code but then they have to penalise somebody, there is a natural justice issue at stake here. I am not sure. That is probably not the case and I hope so, but one never knows. Some clever lawyer might find a way of saying that, if the ACCC has drawn up the code, they then cannot impose it or carry out penalties on it.I think the final issue is of much more importance, when we consider the present state of play of small business in Australia. It is: I believe that the minister has to take responsibility for drawing up the code and imposing it, using the resources of his or her department in consultation with the industry.H15CAMPBELLSenator Ian Campbell—That's what you said about Robert Hill and the Natural Heritage Trust.4J4Schacht, Sen ChrisSenator SCHACHT—Absolutely, I agree. I am glad you interjected. That is because in here we can chase Senator Hill down every day about what he has or has not done in allocating the money. At least in here every day and at estimates we get a chance to ask him questions such as, `Why did you make this allocation?' That is what I have always argued. I would much rather have the minister answering questions at the table in the parliament or at the estimates committee than deal with a statutory authority that has some so-called independence from the parliament, whether it is Telstra or anybody else. The longer I am here, the more I come to the view that it is better to have the minister responsible than to have a statutory authority responsible.In this case, if there is need for a mandatory code—and there will be—and the minister does not respond, we have a better chance here, politically, to put the heat on the minister to get it done and respond than through the ACCC or any other statutory authority. With a body such as that, the devices of obfuscation—being absent, not being seen in action, et cetera—are much greater than those of a minister. I have always had that view, and I have an even stronger view now.Finally, the mandatory code should be a disallowable instrument. With the ACCC—and Senator Murray might clarify this for me—will a mandatory code be a disallowable instrument? In view of the debate we are having in the small business community, I would much rather it be a disallowable instrument for which the minister is responsible. The parliament then can debate and disallow it, and tell the minister to come back and try again. That will make it much more open and transparent, and the minister will take the cheers or the jeers accordingly.That of course means that lots of interest groups in the community will be through the minister's door, demanding this or that in the code; and they will be through the door of the opposition of the day, the door of the Democrats or of anybody else. That is a better political process than trying to nail Alan Fels at an estimates hearing about when he is going to produce the code? After my experience with Mr Fels over the Australis issue of telecommunications, I am not confident that you will not get other than obfuscation, unless he himself or the commission believes in a particular code. Senator Murray, I have to say that there is a view around in the bureaucracy that, by and large, the leading government departments—Treasury, Finance, PM&C—are against mandatory codes. They believe that it is government intervention; they would rather not have them. If you leave it to the ACCC, responsible to the Treasurer and the Treasury Department and being involved in that portfolio, I know the pressure they will be under: do not go the mandatory way, leave it to be done by the free market, leave it for a voluntary code. That means that small business gets done over.That is the view held by Treasury, the Finance department and also their acolytes in PM&C. I can testify to that from my own experience as a minister for small business. That is the view of the free marketeers. We do not want to let them loose saying, `Let the free market help small business'—because it does not. The free market, without some rules and intervention through parliament, means that big business will always win.Therefore, I am very suspicious of leaving it that way. For whatever shortcomings there are—and it may be Senator Hill with a heritage fund—at least we get to ask him every day, `How come that money went somewhere?' If the minister for small business is in the parliament, we get to ask him, `How come you haven't done a mandatory code for the oil industry?' I think that is a very important principle that we in the opposition will argue, particularly with the state of small business in Australia today. The hand of government has to be involved in this, because I think that is the most transparent way to get the best outcome.12:12:001855Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—To say this I think is probably very unkind of me, but I will say it anyway: Senator Schacht, where were you in 1995 when we were dealing with the issue of competition policy and the concerns that parties like the Greens (WA) had in relation to the set-up of the ACCC? I happen to think Allan Fels is a decent human being. But I think with the way the ACCC was set up—yes, exactly—it was unaccountable, it was amorphous, it was poorly resourced and it was unstructured. We set it a task to do which, quite clearly, was going to be extremely difficult, if not impossible, to do with any kind of assurance that it would be able to undertake it with the best interests of the wider community in mind.So it is all very well, Senator Schacht, now admitting that the ACCC has some serious problems—yes, I have been talking to you for the last few minutes, Senator Schacht; however, you were missing in action. The ALP was in government in 1995 when everybody else was expressing their deep concerns about that amorphous mass, if you like, that the ACCC was being set up as and is now becoming. So it is nice that now it is being discovered what deep concerns many other people in the rest of the community have. It is still not too late, but I do wish that the ALP had been thinking more clearly before shoving it through onto the rest of the community in 1995.12:14:001855Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—The government will be opposing these amendments. I think Senator Schacht made the case for the government.4J4SCHACHTSenator Schacht—I am always trying to be helpful.H15Campbell, Sen IanSenator IAN CAMPBELL—Very helpful, Senator Schacht. But the points have been made well. I think Senator Murray did make some points that do demand a response—and I will seek to make it more succinctly than Senator Schacht did.The ACCC does already have a role in the making of these codes. I think it is important that people understand that the government—and Senator Schacht gave credit, which we thank him for, where it was due—is in the process of developing these codes for the oil industry and the franchise industry, as it will officially be known when this bill goes through. The oil code negotiations are being facilitated, as some honourable senators would know, by Andrew Rogers QC, and that process is under way. So we have them in the room, Senator Schacht. We hope that, when we get them out of the room, we will have a code and that that code will be a disallowable instrument.The code will come here, and Senator Murray, Senator Schacht and all of us will be able to have a look at it. But it will be a disallowable instrument—and the minister will be responsible for it, as you have said.Likewise, with the franchise code, the first draft is out there. I am informed that the second draft will be out next week for discussion. Ultimately, again, that will come through that process. We believe it will make this far more accountable. I join Senator Schacht in congratulating the minister and the government on achieving the significant steps down the process. The passage of this legislation will benefit that process.Amendments not agreed to.12:19:001856Schacht, Sen ChrisSenator SCHACHT4J4SAALP00—by leave—I move:(1) Schedule 2, page 6 (lines 2 and 3), omit the heading, substitute:Schedule 2—Amendments relating to unfair conduct(2) Schedule 2, page 6 (after line 5), before item 1, insert:1A Part IVA (heading) Repeal the heading to Part IVA, substitute:Part IVA—Unfair and unconscionable conduct(3) Schedule 2, item 1, page 6 (lines 6 and 7), omit the item.(4) Schedule 2, item 2, page 6 (line 8) to page 9 (line 5), omit the item, substitute: 2 Section 51AA Repeal the section, substitute:51AA Unfair conduct (1) A corporation shall not, in trade or commerce, engage in conduct that is, in all the circumstances, unfair. (2) Without in any way limiting the matters to which the Court may have regard for the purposes of determining whether a corporation has contravened subsection (1) the Court may have regard to: (a) the harshness of the result; (b) any influence or pressure exerted on or any tactic used against a person by the corporation or a person acting on behalf of the corporation; (c) whether or not a person has suffered from any disability; (d) whether or not there was a disparity in bargaining power between the parties; (e) whether or not, as a result of conduct engaged in by the corporation, a person was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the corporation; (f) whether or not the other person was able to understand any documents; (g) the amount for which, and the circumstances under which, a party could have acquired identical or equivalent goods or services from a person other than the corporation; (h) the extent to which the conduct of the corporation is consistent with its conduct towards other persons who have entered into transactions or commercial relationships with the corporation that are the same as, or substantially similar to, the transaction or the commercial relationship between the corporation and the other person; (i) the requirements of any code of practice applying to participants in the area of trade or commerce in which the corporation is involved and which has been declared by regulation under section 51AE to be a mandatory code; (j) the extent to which the corporation has made prior disclosure of any of its intentions affecting the interests of the other party and of the risks involved to that party; (k) in relation to a contract, the extent to which the corporation was prepared to negotiate with the other person in relation to the terms and conditions of the contract; and (l) the good faith of the parties. (3) A corporation shall not be taken for the purposes of this section to engage in unfair conduct in connection with the supply or possible supply of goods or services to a person by reason only that the corporation institutes legal proceedings in relation to that supply or possible supply or refers a dispute or claim in relation to that supply or possible supply to arbitration. (4) For the purposes of determining whether a corporation has contravened subsection (1): (a) the court shall not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and (b) the court may have regard to conduct engaged in, or circumstances existing, before the commencement of this section.(6) Schedule 2, item 3, page 9 (line 7), omit "51AC", substitute "51AA".In regard to the opposition amendments which have been circulated, we are moving in accordance with the Reid recommendation that the term `unfair' instead of `unconscionable' be used in the bill. This is directly in line with recommendation 6 of the Reid report.The whole of chapter 6 of the Reid report details in a very convincing way arguments as to why the term `unfair' has a wider application than the term `unconscionable'. We have accepted the Reid recommendation, which was a unanimous recommendation, a bipartisan recommendation, from Labor and Liberal, and I think the National Party was represented on the committee as well. The Reid report in paragraph 6.70 states:The word `unfair' has the strong advantage of being widely understood, being part of the everyday moral vocabulary of all Australians. Indeed, fairness is the social value central to the maintenance of social cohesion and the legitimacy of the social system. It has the added advantage of directly addressing the problem as it is usually articulated.Indeed, Mr Aiken of the Attorney-General's Department advised the Reid committee:To the extent that I do not think a court would singularly seize upon the words oppressive or unfair to set aside contracts which they personally do not agree with, then it is probably a fair comment that the courts would continue to act judicially.We believe this is an important amendment. In my own experience in trying to explain the phrase when I was small business minister under my own package, the debate about unconscionable conduct was not an easy one in the general community. Though `unconscionable conduct' has been in the existing Trade Practices Act in various forms since its inception in 1974, I think the word `unfair', as recommended by the Reid committee, is a more appropriate term. Therefore, we support and ask the Senate to support the Reid recommendation for the use of the term `unfair' instead of `unconscionable'.12:19:001857Murray, Sen AndrewSenator MURRAY3M6WAAD00—How do I say to Senator Schacht that we both fully agree with you and disagree with you?4J4SCHACHTSenator Schacht—That is just the usual part of being in small business I think, Senator Murray.3M6Murray, Sen AndrewSenator MURRAY—Yes. I will tell you first why we fully agree with you. We fully agree with you because your amendment reflects the intent and the content of the Reid fair trading report. We agree with you because your amendment reflects the promises which I heard your small business shadow minister make to numerous small business meetings at which I was present, that you would put up the fair conduct provisions, and that was generally well received. The small business meetings which I attended were very responsive to that from us. I, too, made the promise that we would do so. As you will see in our later amendments, I have done so.The government has chosen to disagree, and that is where we run into a problem. Earlier we were debating what small business feel about the definitional problem. Some are in support, some are against. I am afraid that not quite the same problem exists. But the same problem does exist to an extent with this definition because every small business is at least saying, `Let the government's amend ment in this respect get through on unconscionable conduct.' No-one is saying, `Do not do that,' but there are a number of organisations—as you and I know—who are saying, `But we would prefer the unfair conduct provisions.'The problem for me is that, whilst I personally and my party prefer the unfair conduct provisions, we are afraid that if we substitute one for the other when the government have explicitly rejected it, they will reject that decision in the lower house. We do not want to arrive at that situation. In my own amendment what I have done is to move the unfair conduct provisions but additional to the unconscionable provisions which may not be pleaded in the alternative. In other words, you have to choose one or the other. I do not intend now, unless called upon, to outline my arguments for that. I recognise, incidentally, some of the problems with that.Despite our strong support for the Reid fair trading report, despite our belief that the fair conduct recommendations of the Reid committee are better than the government's solution, because of the way in which small businesses are expressing their need for this to go through, I regret that I am unable to support your particular amendment. If I have explained why I both agree and disagree, I have done my best.4J4SCHACHTSenator Schacht—You mentioned you have a further amendment where you leave an option open for `unconscionable' or `unfair'. Can you tell me which amendment on the running sheet that is? I know we have not got to it yet.3M6Murray, Sen AndrewSenator MURRAY—Senator Schacht, it is probably best seen if you refer to the items (1) and (2) on sheet 885, immediately following that which we are discussing now. Just to explain what I have just said, I draw your attention to item (1)(10) on sheet 885, which says:(10) An application to the Court under this section cannot be made by a person if that person has already made an application under section 51AC—This is the government's area. What I am trying to do is get the best of both worlds.12:24:001858Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—I am sure that Senator Murray has listened to the argument, but I think I should place it on the record because it is a crucial part of the debate on the Trade Practices Amendment (Fair Trading) Bill 1997 . The government did look very closely at this issue. There is no doubt at all about where the Reid committee was leading on this and there is no doubt at all about the government wanting to achieve a better legal option for small businesses who are disadvantaged by unconscionable conduct and to give them a clear legal remedy in that case. We did look at it in the context of having received the Reid committee report and we sought a wide range of advice. We agreed and we recognised that, in principle, small business does suffer the same disadvantages as consumers.Those disadvantages can be defined as things like information asymmetry—where bigger businesses obviously have more access to information which they can use to their benefit and small businesses do not have access to that information or do not have time to access the information because it is not worth their while. One of them is information asymmetry—which I am sure is a meaningless term for most people in the world. It basically means that, because of their resources, because of their legal departments, because of all of the advice that they can buy because of their very size, big business can gather together information and, as the old cliche goes, information is power. Big businesses have more access to information by dint of their size.Small businesses suffer disadvantages in terms of access to expertise—I have already described that—and the cost of those sorts of things. The government recognises that. We also recognise the reality that consumers have had greater success in dealing with unconscionable conduct under section 51AB of the Trade Practices Act. We also recognise and we understand the argument that Senator Schacht made in relation to people's concept of what `unconscionable' is. It is a concept which I guess is harder for people in the street to come to grips with, whereas if you tell someone, in layman's terms, `That is unfair,' they understand it. However, the courts, who have dealt with these matters, have a clear understanding and the common law in relation to `unconscionable' as a legal concept is a lot clearer than that of `unfair'. So, as much as the Reid committee, I am sure, having heard evidence from people around Australia, would have opted for `unfair', we believe you actually deliver better legal certainty and better remedies for small business under the option that we have got. By obviously going down the `unconscionable' route, we have picked up all of the conventional criteria for establishing unconscionable conduct—I quote from the Department of the Parliament Library's Bills Digest—which include:. ignorance of material facts known to the other party. illiteracy or lack of education. poverty or need of any kind. age. infirmity of body or mind. drunkenness. lack of assistance or explanation where these are necessary. emotional dependence (e.g. a spouse who is pressured to sign a guarantee for a partner's business loan).Then we buttress those with a whole load of new guidelines; we boost it. Of course, they are included in 51AC(3) which says:(3) Without limiting in any way the matters to which the Court may have regard—And then it adds a whole load of other things. These do not have to be taken together; they can be taken individually or together. I will not go through them all because they cover two tightly typed pages, but they look at things like the relative strengths of the bargaining positions of the supplier and the business consumer. They look at whether, as a result of conduct engaged in by the supplier, the business consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the suppliers. I will pick some others out at random:(G) the requirements of any applicable industry code—Let us pick (I) for a lucky dip. It states:. . . the extent to which the supplier unreasonably failed to disclose to the business consumer:(i) any intended conduct of the supplier that might affect the interests of the business consumer; and(ii) any risks to the business consumer arising from the supplier's intended conduct (being risks that the supplier should have foreseen would not be apparent to the business consumer) . . . That gives a lot of support to the concept of unconscionable conduct, which is obviously clearly defined in the common law already. We believe that this does massively strengthen the hand of small business people in these things by, I guess, taking over the concept of the consumer under trade practices law and applying it to business. So we are classifying small businesses as consumers for the purpose of this law. We think the legislation achieves this. This is the reason we will be opposing the opposition amendments.Amendments not agreed to.12:31:001859Murray, Sen AndrewSenator MURRAY3M6WAAD00—by leave—I move:(1) Schedule 2, item 1, page 6 (lines 6 and 7), omit the item, substitute:1 Section 51AARepeal the section, substitute51AA Unfair conduct(1) A corporation must not, in trade or commerce, engage in conduct that is, in all the circumstances, unfair.(2) Without in any way limiting the matters to which the Court may have regard for the purposes of determining whether a corporation has contravened subsection (1), the Court may have regard to all or any of the following: (a) the harshness of the result; (b) any influence or pressure exerted on, or any tactic used against, a person by the corporation or a person acting on behalf of the corporation; (c) whether or not a person suffered from any disability; (d) whether or not there was a disparity in bargaining power between the parties; (e) whether or not, as a result of conduct engaged in by the corporation, a person was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the corporation; (f) whether or not the other person was able to understand any documents; (g) the amount for which, and the circumstances under which, a party could have acquired identical or equivalent goods or services from a person other than the corporation; (h) the extent to which the supplier was willing to negotiate the terms and conditions of any contract for supply of the goods or services with the business consumer; (i) the extent to which the conduct of the corporation is consistent with its conduct towards other persons who have entered into transactions or commercial relationships with the corporation that are the same as, or substantially similar to, the transaction or the commercial relationship between the corporation and the other person; (j) the requirements of any code of practice applying to participants in the area of trade or commerce in which the corporation is involved and which have been approved by the Australian Competition and Consumer Commission in accordance with section 51ABA; (k) the extent to which the corporation has made prior disclosure of any of its intentions affecting the interests of the other party and of the risks involved to that party; (l) in relation to a contract, the extent to which the corporation was prepared to negotiate with the other person in relation to the terms and conditions of the contract; and (m) the good faith of the parties.(3) A corporation is not to be taken for the purposes of this section to engage in unfair conduct in connection with the supply or possible supply of goods or services to a person by reason only that the corporation institutes legal proceedings in relation to that supply or possible supply or refers a dispute or claim in relation to that supply or possible supply to arbitration.(4) For the purposes of determining whether a corporation has contravened subsection (1): (a) the Court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and (b) the Court may have regard to conduct engaged in, or circumstances existing, before the commencement of this section.(5) A reference in this section to the supply or possible supply of goods or services is a reference to the supply or possible supply of goods or services to a person whose acquisition or possible acquisition of the goods or services is or would be for the purpose of trade or commerce.(6) The Court must not make an order in respect of a contravention of this section unless the parties to the proceedings have attended a conference with a mediator to seek to resolve the matter in dispute.(7) Subsection (6) does not apply if : (a) either party has already sought to use the dispute resolution procedures set out in the applicable industry code; or (b) either party has already unsuccessfully engaged in or sought mediation with the other party; or (c) further delay in resolving the matter would result in substantial damage to the business of the applicant or the respondent such that the matter should be resolved without delay.(8) The Court may, at the request of either party or of its own volition, terminate the mediation under subsection (6) and proceed to determine the matter.(9) For the purposes of assessing costs in relation to an action for a contravention of subsection (1), the Court may have regard to the good faith in which parties have participated in a conference under subsection (6) or prior to the application being made.(10) An application to the Court under this section cannot be made by a person if that person has already made an application under section 51AC in relation to the same contravention, whether or not that application has been finally determined or otherwise disposed of.(2) Page 9 (after line 7), at the end of the Bill, add:Schedule 3—Amendments relating to enforcement and remedies Trade Practices Act 19741 At the end of paragraph 76(1)(a)Add:", sections 51AA or 51AB of Part IVA, or Division 1 or Division 1A of Part V". 2 Subsection 76(3)Omit "two or more provisions of Part IV", substitute "two or more of the provisions referred to in paragraph (1)(a)".3 Subsection 82(1)After "Part IV", insert ", IVA".4 Subsection 87(1B)Omit "Part IVA or V", substitute "Part IV, IVA or V".These amendments really follow on and to some extent mirror the earlier amendments put by the opposition, but with one crucial difference: we do not strike out the government's provision; we attempt to add to it. The difficulty with any new legislation, such as that which the Reid committee was proposing, is determining how the courts will interpret it. Senator Ian Campbell has clearly indicated the government's view on that matter.When section 51AA was inserted into the Trade Practices Act in 1992, it was to outlaw unconscionable conduct in commercial transactions. But it never really worked, because the courts read the provisions very narrowly, modifying the long-established case law of unconscionability, which relies on some special disability of a contracting party in order to work. Indeed, there were even doubts expressed as to whether the unconscionability provisions were constitutional. We will not get into that one. For this reason, when the Democrats first proposed a replacement provision, we preferred to speak of a doctrine of economic duress. The then Labor government steered clear of unconscionability as well, outlawing harsh and oppressive conduct. But their proposal never made it into law.The Reid committee's decision to come down firmly on the side of small business and argue that conduct which is in all the circumstances unfair should be outlawed was pilloried by many big business groups and their legal firms. They argued that it would lead to legal and contractual uncertainty and was likely to increase the contractual costs for businesses dealing with small business and make big business more contractually aggressive towards small business. These concerns may be valid in certain respects. Only the introduction of fair conduct law could test such contentions. But the Reid committee was alert to these dangers and proposed a criteria to help set standards of fair or unfair conduct. Those were the very standards that the Labor Party put into their amendment and which we are putting into ours. They also proposed that industry specific codes of conduct be developed to further clarify what was fair.The government has returned, however, to the concept of unconscionability and deliberately supports picking up existing case law and the narrow readings of the courts. The minister's deliberate restriction of the effect of the change to the law means that small business may not get everything—or even anything—that it expects from these changes. What the minister has done is to go a step further by adopting the Reid committee's approach of giving legislative guidelines on unconscionable conduct. He has gone further by moving in the codes of conduct area. So that should assist quite considerably.But we remain concerned that, by setting the standard as `unconscionable conduct', we would end up with no real advance for small business and no enforceable standards. If Minister Reith has not provided a real improvement, big business is going to end up very happy and small business will have been deliberately deceived. Alternatively, if he has delivered an improvement, but only a modest one, it means that small business will be hammering on the doors of parliament yet again fairly soon.We believe that the Reid fair trading report's recommendation should be given a chance to be tested in the courts. We recognise that there is an argument that presenting two standards—one of unfair conduct and one of unconscionable conduct—could provide for some confusion and some difficulty in determining exactly which provisions should be pursued and what each is intended to mean. It is for that reason, amongst others, that we have recommended in our amendment—in fact the amendment mandates it; I am reading from paragraph 10 of amendment 1—that `an application to the court under this section cannot be made by a person if that person has already made an application under section 51AC in relation to the same contravention, whether or not that application has been finally determined or otherwise disposed of'.Someone who wants to take this matter to court must choose either unconscionable conduct or unfair conduct. They may not plead them in the alternative. We hope that that method would provide the ability to begin to build up some case law on unfair conduct and some background in this area. I accordingly commend my amendments 1 and 2 to the committee.12:37:001862Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—There is no doubt that what Senator Murray is seeking to do is extremely well intentioned, but it will run into the problem of creating legal uncertainty. We have gone to an enormous amount of trouble in relation to the existing common law and unconscionable conduct, which I think we have all agreed is a doctrine at law that has become well defined. Maybe it is not well defined enough. To the extent that it is not well defined enough, we have the amendments in 51AC(3). I have picked out at random some of the items there.I think, Senator Murray, it is fair to say that, with the exception of the harshness clause, which I am told is wrapped up in the legal doctrine which relates to unconscionable and is there anyway, all of your points under your proposed addition are equivalent to what we have under our buttressing under 51AC(3). So we think that it is unnecessary. We think the only outcome of it is that it can add to confusion. We are seeking to make sure that the law is certain and clear. Again, small business have obviously taken a very close interest in pulling this package together to get it to the stage where it is here, ready to go, ready to be up and running on 1 July in the way that the minister and the government have structured it.That is not to say that every small business group likes every part of it. Again, it is a balancing thing. I think all of us recognise that it is very hard to get agreement on these sorts of matters. Senator Schacht talked about the frustration that he as minister felt in trying to move the franchising thing forward, to move this forward. He blames the opposition of the time for some of his failures—in preparing for this bill, I have read some of the transcripts of what he has said. It is very hard to get this. We appreciate the support that was given at the time the minister announced the package, and we would like to see that support flowing all the way through here for the next two hours so we can get it out that door and out there into the real world to benefit small business.They accept and endorse the balance that we have struck. The government's view is that the concept of unfair is wrapped up in the unconscionable provisions, but it need not be put alongside it as an alternative. It can really, by definition, only add to the confusion. It can only add to uncertainty, whereas the provisions we have are quite clear, quite certain. People will not have to sit down with their lawyer and say, `Shall we pick this one out of here or pick that one out of there?' They will be able to move ahead with certainty. That is the reason the coalition will insist on seeing the provisions go forward as they are in the bill.Amendments not agreed to.12:41:001862Murray, Sen AndrewSenator MURRAY3M6WAAD00—I move:(4) Schedule 2, item 2, page 6 (after line 24), before paragraph (a), insert:(aa) the harshness of the result;We think this amendment is a critical addition. It appears as item (4) on schedule 848. It takes the most important element of the unfair conduct recommendations and asks the Senate to approve the addition to the government's criteria for establishing unconscionability that they must have regard to `the harshness of the result'. That is a very simple line—very much a Reid committee line. I commend it to the committee as improving and strengthening the government's provision.12:42:001862Schacht, Sen ChrisSenator SCHACHT4J4SAALP00—Just quickly, I ask Senator Murray which number it is down the side of page 2 of 848.3M6MURRAYSenator Murray—It is No. (4), page 2.4J4Schacht, Sen ChrisSenator SCHACHT—Sorry; I missed that. `The harshness of the result' means that the court must take into account when determining the outcome the harshness of the result of the unconscionable conduct by presumably big business against the small business. Am I summing it up correctly, even though my words might not have been 100 per cent legally right?12:43:001863Murray, Sen AndrewSenator MURRAY3M6WAAD00—If I may clarify for the committee, item (3) on page 6 of the government's amendments says `the court may have regard to:'. After `have regard to:' it would have:(aa) the harshness of the result:(a) the relative strengths of the bargaining positions—et cetera. It is that checklist of things the court must have regard to. It takes it directly from the Reid recommendations.12:43:001863Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—I think it may be helpful if the government puts down its view as to why we would oppose this amendment. Firstly, I am informed that the courts already roll those concepts—that is, unfairness, harshness and unconscionable—in together and they are often seen as equivalent. So it does not add anything to the basic legal concept of unconscionable, which I have already said on a couple of occasions is enhanced by the specific buttressing in 51AC(3).One of the problems, however, is that, once the courts have had a look at the things to determine whether there has been unconscionable conduct, they will ultimately determine what the result has been and they will then determine what the remedy is based on what the result has been—whether it has been harsh, whether it has cost the small business their business or cost them in terms of whatever they have lost. They may give a remedy in terms of an injunction.We believe the harshness of the result should be the outcome of the process. Quite the contrary, you should not even need to turn to harshness. There are all these other matters—and I will pick them out again because I think it is a very important point. I refer to pages 6 and 7 of the bill. The courts will look at the relative strengths of bargaining positions. They will look at whether the conduct engaged in by the supplier complied with conditions that were—10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Murphy)—Order! It being 12.45 p.m., I intend to report progress.Progress reported.Bills1863r4091863Debate resumed from 5 March, on motion by Senator Ian Campbell:That this bill be now read a second time.12:46:001863Forshaw, Sen MichaelSenator FORSHAW656NSWALP00—I indicate, on behalf of the opposition, that we will be supporting the Insurance Laws Amendment Bill 1997.Question resolved in the affirmative.Bill read a second time.1863The bill.12:46:001863Kemp, Sen RodSenator KEMPWW4VICLPAssistant Treasurer10—I move:(1) Schedule 2, item 5, page 40 (after line 33), after subsection (2), insert:(2A) The Commissioner or the inspector must not exercise the power conferred by subsection (1) to enter residential land or residential premises if the occupier of the land or premises has not consented to the entry.This amendment is designed to protect the rights and liberties of individuals by restricting the search and entry power contained in the investigation and enforcement provisions of the bill relating to the new security arrangements for Lloyds.I table the supplementary explanatory memorandum relating to the government amendment to be moved to the bill. This memorandum was circulated in the chamber on 31 March. This amendment has been discussed with the relevant parties in the Senate. My understanding is that we have agreement to it.Amendment agreed to.Bill, as amended, agreed to.Bill reported with amendment; report adopted.1864Bill (on motion by Senator Kemp) read a third time.Bills1864r3691864Debate resumed from 4 December 1997, on motion by Senator Ellison:That this bill be now read a second time.12:48:001864Forshaw, Sen MichaelSenator FORSHAW656NSWALP00—I indicate, on behalf of the opposition, that we do not oppose the Medicare Levy Amendment Bill (No. 2) 1997. The bill proposes to amend the Medicare Levy Act 1986 to increase the low income exemption and the shade out ranges that apply for the purposes of the Medicare levy. On that basis, we are happy to support the passage of the legislation.12:50:001864Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—I thank the honourable senator for his contribution to the debate and commend the bill to the Senate.Question resolved in the affirmative.Bill read a second time, and passed through its remaining stages without amendment or debate.Bills1864r440Billsr442Billsr443Billsr4381864Debate resumed from 23 March, on motion by Senator Ellison:That these bills be now read a second time.12:50:001864Forshaw, Sen MichaelSenator FORSHAW656NSWALP00—I am tempted to describe this as bulk-billing, but that is a very poor pun. The opposition will not oppose the legislation contained in the Commonwealth Places (Mirror Taxes) Bill , the Commonwealth Places Windfall Tax (Collection) Bill , the Commonwealth Places Windfall Tax (Imposition) Bill and the Commonwealth Places (Consequential Amendments) Bill . The bills seek to deal with specific issues raised in the High Court decision in 1996 in Alders International Pty Ltd v. the Commissioner of State Revenue in Victoria.That decision is well-known to honourable senators wherein the High Court ruled that certain stamp duties on leases covering Commonwealth places were constitutionally invalid. The opposition believes that the proposals contained in this legislation are a satisfactory approach to dealing with the issues there. On that basis, we do not oppose the bills.12:51:001864Cook, Sen PeterSenator COOKRF4WAALP00—I seek leave to have incorporated in Hansard my speech on the second reading of these bills.Leave granted.The speech read as follows—Mirror Taxes Legislation PackageThe 4 bills, the Commonwealth Places (Mirror Taxes) Bill 1998, the Commonwealth Places (Consequential Amendments) Bill 1998, the Commonwealth Places Windfall Tax (Imposition) Bill 1998, and the Commonwealth Places Windfall Tax (Collection) Bill 1998 seek to deal with the issues raised in the 1996 High Court decision in Allders International Pty Ltd v Commissioner of State Revenue (Victoria).This case held that a state stamp duty on a lease covering part of a Commonwealth place—ie Commonwealth land and/or building—was constitutionally invalid. The reasoning employed in the case means that it follows logically that other state taxes may also be invalid.Apparently the Commonwealth has been advised that, as well as the various types of stamp duty that are levied by the states, some of the other taxes raises at the state level such as payroll tax, financial institutions duty and debits taxes may also be constitutionally invalid. Clearly, this situation poses a threat to the revenue bases of the states. Unsurprisingly these other governments have accordingly requested the Commonwealth to enact this legislation.The threat to the states involves both future revenue streams, and the more significant issue of the compulsory refunding of all taxes previously collected concerning Commonwealth places.Accordingly, under this package of legislation the Commonwealth will impose "mirror" (ie identical) taxes on Commonwealth places to those that would prevail if the Commonwealth places were not owned by the Commonwealth.The revenue from these mirror taxes (payroll tax, stamp duties, financial institutions duties and debits taxes) will be on-passed to the relevant states. That is, even though the Commonwealth will be raising the revenue, there is a commitment that all of the revenue will be raised for the financial benefit of the statesThis is a fair and workable solution to the constitutional issues raised in the Allsop decision and will not be opposed by Labor.The second important point to recognise about the mirror taxes regime is the extent of the regime. At the moment the legislation (specifically schedule 1 of the Commonwealth Places (Mirror Taxes) Bill) applies to only those state taxes which are individually listed.Provision is also made to extend the scope of the mirror taxes regime by regulation should the need arise.This is achieved by the definition of "state taxing law" in clause 3 of the Commonwealth Places (Mirror Taxes) Bill including any tax which is prescribed in regulations to the bill. At present there are no such regulations. However, Labor supports this situation as it will mean that if any state does introduce such a tax in the future then its addition to this package of legislation will be able to be achieved quickly and efficiently, without the need for the passage of specific legislation.Of course, this regulation will be disallowable by either House and therefore this does not represent an unreasonable delegation of what is really a technical revenue issue.The third major issue covered by these bills is the question of windfall refunds. Where the courts hold that taxes are unconstitutionally imposed, then all of the collections of the tax must be refunded to the relevant taxpayers. This means that all of the stamp duty considered in Allsops case ever collected from taxpayers relating to Commonwealth places must be refunded to the registered taxpayers.The problems with refunds of this type are twofold.Firstly, the cost to the various state governments of making tax refunds will necessarily impact on the level of resources available to finance health, eduction, law and order and other essential services.We do not know what the potential scope of the refunds would be if this legislation is not passed, but I assume that the figure is in the tens of millions of dollars across all of the states.Secondly, the refunds will flow to the legal taxpayer. Normally businesses which pay taxes pass the economic effect of the tax on to their customers through their pricing structure.Accordingly, if those taxes were then refunded to the taxpayer that would represent a windfall to those businesses because they have already passed on the tax to consumers.So this legislation is fair, both for users of state services and to avoid an unfair windfall to be handed to some taxpayers.To protect the states from having to refund all past tax collections relating to Commonwealth places, a 100% windfall tax is imposed by the Commonwealth on all such refunds.This is achieved by the state deducting the windfall tax, at the rate of 100%, from the refund before it is paid. The taxpayer is notified in the refund notice that the windfall tax has been deducted. The refund tax is then remitted to the Commonwealth. The liability to make this payment to the Commonwealth creates a liability in the Commonwealth to pay an equal amount to the state.Although being a complex process this means that no windfall gains will accrue to taxpayers at the expense of the states.A similar windfall tax model was implemented to overcome the High Court decision in the Ha & Lim, and Walter Hammond cases last year which invalidated the business franchise fees collected by the states.Accordingly, for all of the reasons I have just detailed the Opposition will not be opposing this package of legislation.12:51:001865Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—I thank the opposition for their support and commend the bills to the Senate.Question resolved in the affirmative.Bills read a second time.1865Bills agreed to.Bills reported without amendment; report adopted. 186612:52:001866Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—I move:That the bills be now read a third time.In moving this third reading stage of the bills could I just reassure HG and Roy that the first bill in relation to mirror taxes does not impose an extra charge on mirrors.Question resolved in the affirmative.Bills read a third time.Bills1866r446Billsr447Billsr4481866Debate resumed from 31 March, on motion by Senator Troeth:That these bills be now read a second time.12:53:001866Forshaw, Sen MichaelSenator FORSHAW656NSWALP00—The purpose of these bills is to correct technical faults in the national residue survey legislation which make a liability to pay a national residue survey levy dependent on liability to pay another primary industry levy. The original intention was that the national residue survey levies be imposed at the same point in the process as other levies to reduce collection costs but not to make them reliant on the payment of another levy. So the legislation is of a technical nature correcting faults in the legislation. The legislation also consolidates the 22 levy imposition acts into two acts for ease of access and administration, one relating to customs duties, the other to excise duties. The opposition does not oppose the bills.12:54:001866Troeth, Sen JudithSenator TROETHGX5VICLP10—I thank honourable senators for their comments and commend the bill to the Senate.Question resolved in the affirmative.Bills read a second time, and passed through their remaining stages without amendment or debate.Bills1866r2481866Debate resumed from 28 August 1997, on motion by Senator Ian Campbell:That this bill be now read a second time.12:57:001866Carr, Sen KimSenator CARRAW5VICALP00—The Indigenous Education (Supplementary Assistance) Amendment Bill 1997 adjusts for cost supplementation a range of grants payable under schedule 2 of the Indigenous Education (Supplementary Assistance) Act. It also removes the requirement that at least 10 per cent of students in an educational institution be indigenous for the institution to be eligible for per capita payments under the supplementary recurrent assistance. Supplementary recurrent assistance is part of the Commonwealth's indigenous education strategic initiatives program—IESIP. IESIP has become outcome, rather than input, focused, a direction set by the previous government when it announced additional funding for this and other indigenous education programs in response to the 1994 review of Aboriginal education.The announcement by the Labor government in September 1995 also flagged the change to per capita recurrent funding, which was put in place last year. In doing so, however, the coalition restricted access to funding by requiring non-government schools, preschools and vocational education institutions to have indigenous students make up at least 10 per cent of their total enrolments and also have a minimum number of indigenous students enrolled. For schools and vocational educational institutions, the minimum requirement is 20 indigenous students, and for preschools it is set at five students.In his speech on the 1996 legislation, which introduced the current arrangement, Dr Kemp said:The per capita element of the Aboriginal education strategic initiative program will provide an entitle ment-based, equitable recurrent funding arrangement.Yet this program has not operated equitably. It will not be truly equitable until it does not discriminate between one indigenous student and another. With a year 12 retention rate of some 33 per cent and three times the rate of primary school literacy problems as other students, indigenous students face massive problems. Yet, under the government's original proposal in relation to this bill, some 1,100 indigenous students would still be denied access to IESIP recurrent assistance. These are students in non-systemic schools with fewer than 20 indigenous students enrolled.When this bill was debated in the House of Representatives, the opposition moved an amendment which would have removed the minimum enrolment requirement along with the 10 per cent rule. We questioned the reasons for the government's objection to allowing every indigenous student access to these funds. We also put forward ideas about how claimed administrative difficulties—the signing of around 260 extra agreements with the affected schools—could be addressed.I am pleased to say that the response from the government has met the concerns of the opposition and will mean that no indigenous students need miss out on the per capita funding. Legal advice confirms that the Indigenous Education (Supplementary Assistance) Act gives the Commonwealth the power to sign agreements with bodies representing groups of students whose individual enrolment of indigenous students is below the minimum specified in legislation or with a single school representing a group. National peak bodies representing the non-government schools sector have all expressed satisfaction with this outcome. Because of this, the opposition has been prepared to drop its amendments. We look forward to these funds helping indigenous young people benefit more from education.13:00:001867Ellison, Sen ChrisSenator ELLISON9X5WALPSchools, Vocational Education and Training10—I thank the opposition for its support on this matter and commend the bill to the Senate.Question resolved in the affirmative.Bill read a second time, and passed through its remaining stages without amendment or debate.Bills1867r3291867Debate resumed from 31 March, on motion by Senator Troeth:That this bill be now read a second time.13:02:001867Forshaw, Sen MichaelSenator FORSHAW656NSWALP00—The Health Legislation Amendment Bill 1998 seeks to make a number of amendments to a number of health related acts covering the following areas: firstly, approval of hedging contracts entered into by the Health Insurance Commission; secondly, the electronic payment of Medicare benefits; thirdly, enabling optometrists to charge fees above the scheduled fee; fourthly, the delivery of Medicare benefits in respect of services rendered outside Australia; fifthly, certain matters dealing with medical practitioners receiving payment for the provision of public hospital services; and, finally, the provision of pharmaceuticals by private hospitals and residential aged care services. The opposition does not oppose the bill.I wish to draw attention to one aspect which has been a matter of concern and which we note the legislation seeks to deal with. That is, instances have arisen where medical practitioners have offered inducements to public hospital patients for the purposes of queue jumping, and, in doing so, have sought payment for such situations. The amendment will provide a penalty to be levied on medical practitioners who engage in that practice. That is something that we are strongly supportive of as that practice undermines the principles of Medicare. The opposition does not oppose the passage of the bill.13:04:001867Ellison, Sen ChrisSenator ELLISON9X5WALPSchools, Vocational Education and Training10—I thank the opposition for its support and commend the bill to the Senate.Question resolved in the affirmative.Bill read a second time, and passed through its remaining stages without amendment or debate.Bills18681868Debate resumed from 1 April, on motion by Senator Parer:That this bill be now read a second time.13:06:001868Forshaw, Sen MichaelSenator FORSHAW656NSWALP00—As I understand this legislation is non-controversial, I indicate on behalf of the opposition—with some degree of hope—that we do not oppose the bill.13:06:001868Ellison, Sen ChrisSenator ELLISON9X5WALPSchools, Vocational Education and Training10—I thank the opposition for its support and commend the bill to the Senate.Question resolved in the affirmative.Bill read a second time, and passed through its remaining stages without amendment or debate.Bills1868s1371868Debate resumed from 9 March, on motion by Senator Newman:That this bill be now read a second time.13:07:001868Forshaw, Sen MichaelSenator FORSHAW656NSWALP00—In relation to the previous matter, I am sure my learned friend the Minister for Schools, Vocational Education and Training, Senator Ellison, can understand the problems that arise when a brief does not arrive on time. The opposition supports the passage of the Therapeutic Goods Amendment Bill 1997 . The legislation protects commercially sensitive information that is provided by pharmaceutical manufacturers to the Therapeutic Goods Administration. That information is provided as part of the process of evaluating and listing the particular products on the Australian Register of Therapeutic Goods, which in turn enables such goods to be put on sale in Australia.The data is automatically protected for five years, and that in turn brings Australia into line with the position applicable in other countries, particularly the United States, the European Union and New Zealand. There are other aspects to the legislation, which include an amendment to close a loophole which allowed people convicted of offences under the act to continue to manufacture through another corporation or entity. Also, the legislation allows for the regulation of importing and exporting of therapeutic goods under the Therapeutic Goods Act 1989 as well as other Customs legislation. The opposition supports the bill.13:09:001868Ellison, Sen ChrisSenator ELLISON9X5WALPSchools, Vocational Education and Training10—I thank the opposition for its support and commend the bill to the Senate.Question resolved in the affirmative.Bill read a second time, and passed through its remaining stages without amendment or debate.Sitting suspended from 1.10 p.m. to 2.00 p.m.Questions Without Notice186818681868Faulkner, Sen JohnSenator FAULKNER5K4NSWALP00—My question is directed to Senator Parer, Minister for Resources and Energy. Minister, does the government propose to adopt the recommendations of the Industry Commission's report on the coal industry; what advantages does the government expect to flow to the industry as a consequence; and what benefits will this bring to those who have invested in it?1868Parer, Sen WarwickSenator PARERKI4QLDLPResources and Energy10—The government, of course, only received the Industry Commission report yesterday. It will be carefully studying the report and looking at any ways it can provide assistance through its facilitation units to help achieve the necessary changes to the lift in productivity. The coal industry is our largest export industry. The Industry Commission has forecast that, with the proper increase of productivity and proper use of capital equipment, the export income could increase from today's figure of about $8.8 billion to around $12 billion by the year 2009.On a preliminary look at the Industry Commission report, there were mixed results. Some mines were doing well, particularly new mines and some of the older ones that had adapted to modern conditions to face competition from other countries. I think it is worth pointing out that, notwithstanding the recent fallout in Asia, it is still expected that the growth in demand for the industry will be substantial. Australia is the world's largest exporter of both steaming coal and coking coal. It is by no means the biggest producer. The biggest producer of coal is China at about 1.4 billion tonnes, followed by the United States at about 900 million or thereabouts and India at about 400-odd million tonnes.It is in the interests of the country, it is in the interests of the industry, it is in the interest of the companies and it is in the interest of the employees that they look very carefully at what is called restrictive work practices; I think the other term that is used is custom and habit, or words to that effect. There is no doubt that we do not have a monopoly on sales around the world. There are other countries which would like to compete with us. Growth has certainly been forecast, and it is important that we as a country not only maintain our leadership in the world as the major exporter, but also that we capture the vast majority of the growth that is forecast.1869Faulkner, Sen JohnSenator FAULKNER5K4NSWALP00—Madam President, I ask Senator Parer a supplementary question. Minister, as you have participated in a so-called employee share scheme, which has nothing to do with the real workers in the industry and everything to do with you and a few cronies on the board, will you now concede that productivity in the industry would go up if workers had the opportunity to invest 44c and collect $56,300? Or is that just a privilege that is reserved for part-time directors, especially those who are on a full-time parliamentary salary, generous superannuation and other entitlements?1869Parer, Sen WarwickSenator PARERKI4QLDLPResources and Energy10—Here we have Senator Faulkner going back regurgitating all the things that I explained in detail over the past few weeks. Madam President, let me tell you that Senator Faulkner will go to any depths to try to smear people. Yesterday he came in here and indicated that I had not put my name in a directorship of a particular company called Duffcombe. Let me just tell Senator Faulkner this, and I hesitate to do it because it is a personal matter. I was involved with that company. Do you know why? Because I had a sister who had a very nasty marriage breakdown, and I filled in that position. You came in here yesterday and said I should have disclosed that.5K4FAULKNER Senator Faulkner—When I came in here yesterday I asked you questions, and we will continue to ask you questions.KI4Senator PARER—Let me tell you this, Senator Faulkner, that company was deregistered in—5K4FAULKNER Senator Faulkner—We will continue to ask you questions.10000PRESIDENTThe PRESIDENT—Senator Faulkner!KI4Senator PARER—That company was deregistered in 1993.5K4FAULKNER Senator Faulkner—You can guarantee that—10000PRESIDENTThe PRESIDENT—Senator Faulkner!KI4Senator PARER—Why don't you, Senator Faulkner—Senator Faulkner interjecting—KI4Senator PARER—Why don't you, Senator Faulkner—Senator Faulkner interjecting—KI4Senator PARER—Why don't you apologise, Senator Faulkner?LD4ALSTONSenator Alston—I raise a point of order, Madam President. Surely it is the height of hypocrisy for Senator Faulkner to ask a question and then do his absolute best to ensure that not a word of the answer can be heard.10000PRESIDENTThe PRESIDENT—It is in breach of the standing orders, without doubt. Senator Parer, had you finished your answer?KI4Senator PARER—Yes, Madam President.18701870Patterson, Sen KaySenator PATTERSONLI4VICLP10—My question is to the Minister for Social Security, Senator Newman. Minister, the vast majority of frail older Australians wish to continue living in their own homes.Honourable senators interjecting—10000PRESIDENTThe PRESIDENT—Order! Senators on both sides will cease interjecting. Senator Patterson.LI4Senator PATTERSON—Minister, the vast majority of frail—Senator Schacht interjecting—10000PRESIDENTThe PRESIDENT—That includes you, Senator Schacht.LI4Senator PATTERSON—The vast majority of frail older Australians wish to continue living in their own homes. How will the $270 million package announced today by the Prime Minister help older Australians achieve this aim, and will you outline the increased support for carers of frail older Australians?1870Newman, Sen JocelynSenator NEWMANBE4TASLPSocial Security10—I thank Senator Patterson—Opposition senators interjecting—10000PRESIDENTThe PRESIDENT—Senators on my left will cease interjecting.BE4Senator NEWMAN—I do thank Senator Patterson for her very important question and I acknowledge the long advocacy and concern that she has had for older Australians. It is a pity that the Labor opposition are not even prepared to listen to the answer to the question.Opposition senators interjecting—BE4Senator NEWMAN—They are not interested in social policy reform, as the government is and as Senator Patterson is. Today's announcement by the Prime Minister is a very important one for older Australians: for those who want to stay in their home if they choose as well as for those who help to care for them. After all, the majority of Australians do want to stay in their home as they age. There is $270 million over the next four years to help older Australians to stay at home and improve the support for their carers, those who were rightly described by the Prime Minister today as the unsung heroes of our society.Senator Carr interjecting—10000PRESIDENTThe PRESIDENT—Order! Senator Carr, stop shouting.BE4Senator NEWMAN—I recognise that the Labor Party does not want anybody to hear this answer but I would think that listeners do. Community aged care packages are to be expanded by 3,900 at a cost of $92 million over the next four years, more than doubling the number of people assisted. Continence assistance—badly needed by many older Australians—is being increased. The Labor Party did nothing about it in government. That has been increased at a cost of $15 million to make it easier for older people to manage at home.Under the carer respite centres initiative, which was announced originally in 1996, the number of centres will be expanded in the coming year from 58 to 73 at a cost of $30 million. An extra $10 million will be spent on additional respite care places for people with dementia. We remember that in the 13 long years of Labor they walked away from people with dementia and their carers. There will be an extra $15 million over four years for accommodation services for about 8,000 people who are aged over 65 and who care for adult children with a profound disability—desperately needed. That has never been done before and many of these people have been carers for 40 years or more—most, but not all, are women.In my portfolio of social security, income support for carers is to be improved with eligibility for the new carers allowance to be expanded, providing assistance to an extra 14,000 carers at a cost of another $91 million over the next four years. Funding for aged care assessment teams is to be indexed to growth in the older population so as to enable people to access care appropriate to their needs and to reduce the waiting period of people to be assessed—a cost of $13.7 million. That is a significant package of great assistance to older Australians who want to stay in their homes. It will also help the people who care for them in their homes.This is the third tranche of measures to help carers and older people since this government came into office. In the first budget when we had such an enormous deficit we put in place some measures. In the last budget we put in another lot of measures, including raising the domiciliary nursing care benefit by something like 28 per cent. The carers allowance is going to come into effect on 1 July next year and it will combine the child disability allowance and the domiciliary nursing care benefit as well as widen eligibility. It will provide assistance to an extra 14,000 carers.The carer allowance will include new eligibility conditions to ensure that carers of people with high care needs and multiple disabilities and those caring for people needing constant supervision can access the payment. Under the current eligibility requirements for the domiciliary nursing care benefit these people may not qualify for payment. (Time expired)1871Patterson, Sen KaySenator PATTERSONLI4VICLP10—Madam President, I ask a supplementary question. Minister, you were outlining how the new carers allowance will improve the delivery of income. Would you continue with that?1871Newman, Sen JocelynSenator NEWMANBE4TASLPSocial Security10—I would be very happy to make it absolutely clear that the increase in the domiciliary nursing care benefit from $58.30 to $75.10 per fortnight takes place on 1 July this year. Many of these other measures will take place on 1 July next year. The new carer allowance will mean that carers looking after people with high support needs will be recognised and will be eligible for the allowance.The government has also been working on improving the administration of our social security system so that it is easier for carers to access the assistance they need. There will be a new method of assessing adult disabilities. It will be a fairer method and it will be more understandable. It has never been done before. It will be delivered through the Department of Social Security—a one-stop shop at Centrelink. The task of carers is difficult enough without unnecessary obstacles being put in their path to accessing the assistance they need.This government has had extensive consultations with carers associations and Senator Patterson has had consultations with the older community. (Time expired)Distinguished Visitors187110000PRESIDENTThe PRESIDENT—I draw the attention of honourable senators to the presence in the President's Gallery of Fiame Naomi Mataafa, the Minister for Education from Samoa. I welcome you to the chamber and wish you a pleasant and happy visit to this country.UNKNOWNHonourable senatorsHonourable senators—Hear, hear!Questions Without Notice187118711871Cook, Sen PeterSenator COOKRF4WAALP00—Madam President, my question is to Senator Kemp. Minister, are you aware that in the last budget the Treasurer announced a crackdown on the practice of private companies distributing profits effectively tax free by structuring them as loans to shareholders rather than as taxable dividends? Are you aware that the Treasurer described this scam as `a tax minimisation practice used by some high wealth individuals,' and estimated revenue loss through this rort at $110 million over three years, and that while most budget and tax measures operate from the date of announcement, the relevant provisions of the amendment bill currently in the House will not operate from the budget date but rather from the date of introduction in the House, some seven months later? Given the government's delay, isn't this just another example of this government's hypocritical treatment of the scams used by high wealth individuals at the expense of Australia's battlers?1871Kemp, Sen RodSenator KEMPWW4VICLPAssistant Treasurer10—I was hoping that Senator Cook would ask a question like this. This comes from a man who fought tooth and nail to protect one of the greatest tax rorts in our system—R&D syndicates. This is the man who convinced his own party room and colleagues not to fight this big scam and he continues still to support it. This is also the man who decided that the high wealth people, including himself, should not pay the superannuation surcharge. This is the man who wanted to protect high wealth people.UI4RAYSenator Robert Ray—Rubbish; absolute rubbish!WW4Senator KEMP—`Rubbish,' says Senator Ray. Don't you know how you voted, Senator Ray, on that bill? That is the second point I would make. The third point is that, after 13 years in office, in the election campaign the Keating government, of which Senator Cook was a minister, decided there were problems with high wealth people paying taxes—after 13 years.Honourable senators interjecting—WW4Senator KEMP—So let me make it quite clear that to get a question like this from Senator Cook is quite astonishing.Honourable senators interjecting—WW4Senator KEMP—Turning to the substance of the question, section 108, which the Labor Party did nothing about when it was in government—Honourable senators interjecting—WW4Senator KEMP—Which the Labor Party did absolutely nothing about when it was in government. Under the amendment section 108—Honourable senators interjecting—10000PRESIDENTThe PRESIDENT—Order! Senators on both sides are interjecting too frequently.WW4Senator KEMP—As I was saying, the government has brought in a measure—3L6CONROYSenator Conroy—Where's your trust paper?WW4Senator KEMP—Which I trust, Senator, you will be voting for—not like your usual habits on these measures. This is a measure which was brought in to tax companies that disguise loans from private companies. This was announced by the Treasurer and this measure is now in a bill before the other place. It will be coming to this chamber and I only hope, in contrast to other measures dealing with tax avoidance, we will receive the support of the Labor Party.1872Cook, Sen PeterSenator COOKRF4WAALP00—Madam President, I ask a supplementary question. I will not demean myself by answering the smear that has just been engaged in.LD4ALSTONSenator Alston—You do every day, why should you stop now?RF4Senator COOK—I ask the minister, are you aware of the allegations in the document lodged with the Queensland Supreme Court last week that this mechanism was put in place by the private company Queensland Coal Mine Management Pty Ltd between 1990 and 1993 to distribute notional dividends to directors and senior employees? Are you aware that Senator Warwick Parer was the chairman of QCMM board meetings when this disguise of dividends as loans to shareholders was put in place?Government senators interjecting—10000PRESIDENTThe PRESIDENT—Order! Senators on my right are making too much noise.RF4Senator COOK—In the light of the knowledge that this mechanism was so directly used by one of your colleagues, does the government still hold the view that this practice is, to quote the Treasurer, `a tax minimisation practice used by some high wealth individuals'?1872Kemp, Sen RodSenator KEMPWW4VICLPAssistant Treasurer10—Again, I remind the Senate that this was the Senator who fought tooth and nail to protect one of the biggest tax rorts, R&D syndicates. This was that particular senator. Senator, section 108 operated under your government. You chose not to change the law. You chose not to change the law in this particular area, this government has chosen to change the law. We make no apology for that. I make the point that it is extraordinary that Senator Cook, with his appalling record in the area of cracking down on tax avoidance, has the cheek to get up and ask this sort of question.18721872Gibson, Sen BrianSenator GIBSONBX5TASLP10—My question is to Senator Alston, the Minister representing the Minister for Workplace Relations and Small Business. Minister, has your attention been drawn to the statement in today's paper that the Leader of the Opposition, Mr Beazley, was `anything other than a willing, even zealous, privatiser'? Minister, are you aware of the evidence to support this claim and will you outline the advantages of the government's approach to privatisation?1873Alston, Sen RichardSenator ALSTONLD4VICLPCommunications, the Information Economy and the Arts10—Yes, I have read with a great deal of interest the article by Kenneth Davidson in today's Age . I am sure everyone who follows the media in this country would know that Kenneth Davidson has been a mouthpiece for Telstra for very many years. He has never said anything that appealed to me for as long as I can remember and he certainly does not go out of his way to criticise the Labor Party. What does he say? The headline reads:Is Beazley the great Telstra pretender?He says:Within weeks of the 1990 election, a letter from Hawke to Beazley setting out the plan to sell Qantas and Australian Airlines and introduce competition for Telecom (Telstra) was leaked to the press.Beazley was one of the ministers leading the privatisation charge at the special ALP conference in 1990 . . . And on it goes. He also says, very damningly:If Beazley is to have any credibility in the debate over privatising the remaining two-thirds of Telstra, he must either admit the privatisation and competition policies . . . were wrong, or he has to explain why full privatisation of Telstra is different to, say, full privatisation of the Commonwealth Bank.Of course, Mr Beazley has more form than Reggie and Ronnie Kray combined. The fact is that even Kenneth Davidson, who is absolutely opposed to any form of privatisation, ends up saying this:Yet if a Beazley Government hung on to Telstra and used it as a milch cow—as Keating did to the tune of $3 billion—. . . the country might be better off with full privatisation.What a damning indictment. Is it any wonder that that mistress of the little ironies, Cheryl Kernot, said back in 1995 in relation to Labor's privatisation plans:Listen, we are not buying these empty assurances.It is a very serious issue. Some of the research that I have seen suggests that some people regard Mr Beazley as a bit of a likeable buffoon. They are absolutely dead wrong because this is a totally unprincipled Labor Party led by someone who is a clone of the New South Wales Right school, the whatever-it-takes merchants. He is the bloke who got up in the parliament at 9.31 this morning to deny that he had a conversation with Mr Blount of Telstra in particular terms. He said:. . . I am alleged to have said to him that I favoured the privatisation of Telstra. I have never had a conversation suggesting that particular proposition on my part . . . He has been flushed out. He has been forced to try and come clean but he has not. These are weasel words. Kenneth Davidson does not believe it; his article makes that clear. I do not believe it and the Australian public will not believe it. If he says, `I have never favoured the privatisation of Telstra,' let him tell us precisely what was said in that conversation.As Kenneth Davidson makes very plain, Kim Beazley has privatised everything that moved. As Cheryl Kernot says,`I mean, the Labor Party is just similar to the Liberal Party. It's Kim Beazley as finance minister who has been involved with the sale of the Commonwealth Bank and with the sale of Qantas. It is not much of a choice.' Madam President, the only difference is that we are up front, we are transparent, we will tell you in advance. Labor, of course, will lie their heads off in opposition and say they will not privatise, but as soon as they get there they will take the money and the box.It is not good enough. I can understand why Kenneth Davidson is simply overwhelmed by and has had a gutful of this sickening hypocrisy. That is why, for the first time, he has spoken out in the way that he has. He reflects the views of hundreds of thousands of Australians who know what Labor's attitude to privatisation is. They are simply sick to death of the pretence that is going on. Kenneth Davidson is absolutely right and Mr Beazley will have to do a lot better than going into the House with a carefully crafted, narrow cast message which he thinks gets him off the hook. It does nothing of the sort. (Time expired)18731873Faulkner, Sen JohnSenator FAULKNER5K4NSWALP00—My question is directed to Senator Parer, the Minister for Resources and Energy. Minister, I refer to your blatant conflict of interest between your public duty as the minister for resources and your private interests in mining companies.LD4ALSTONSenator Alston—Madam President, I raise a point of order. He cannot ask a question that makes a bald statement that is clearly a damning reflection on an individual. If he wants to make the sleazy allegations that he thinks are going to get him into government, Madam President, as long as it is within standing orders he can do it, but he is not entitled to make assertions that are clearly out of order.5K4Senator FAULKNER—Madam President, on the point of order: come in Spinner, come in Senator Alston. Surely I am entitled to ask whatever question I like.10000PRESIDENTThe PRESIDENT—The standing orders do give some guidance in the way that questions may be asked. You may not reflect on senators and a number of other items, and you should not do so.4J4SCHACHTSenator Schacht—What are you standing up for, Richard?LD4ALSTONSenator Alston—I don't need to; I mean—10000PRESIDENTThe PRESIDENT—Senator Alston, you do not have the call. Senator Faulkner, you may not breach the standing orders in asking a question by imputing motives and other matters to senators, and you should frame your question accordingly.5K4Senator FAULKNER—Thank you, Madam President. Minister, can I ask: have you now actually transferred your interests to your children? Minister, how can you argue that this pseudo-divestment is not a breach of the Prime Minister's code of conduct, which very clearly states that transfer of interests to family members is not an acceptable form of divestment?1874Parer, Sen WarwickSenator PARERKI4QLDLPResources and Energy10—Madam President, I have provided a letter to the Prime Minister with full details, which have been tabled in this place. I would have to say to you I doubt whether any other person in public life has so had their private affairs—of not only myself, which I can accept, but also those of my family—put on the public record. Madam President, it is all on the table. Senator Faulkner knows it is on the table. I am not going to go over it again. Let me say, Madam President, that what I have done is exactly in accordance with the Prime Minister's guidelines and the head of Prime Minister and Cabinet has approved it.1874Faulkner, Sen JohnSenator FAULKNER5K4NSWALP00—I ask a supplementary question, Madam President. Minister, how can you say it is `all on the table' in light of information that you put to the Senate yesterday that your recently revised statement of pecuniary interests is still not comprehensive because you refer vaguely to `associated entities'? Those are your words: `associated entities'. Will you further amend, Minister, your Senate declaration to accurately reflect your interests prior to 22 March 1998?1874Parer, Sen WarwickSenator PARERKI4QLDLPResources and Energy10—I might say that I discussed this with the registrar and also made sure—just so that you, Senator Faulkner, could not get up here and sling a bit more mud—that this, before it was submitted—and hence the reason for the delay—was given to a major firm of accountants, who verified that the information put into it was absolutely correct.18741874Lees, Sen MegSenator LEES8U4SAAD00—My question is addressed to the Minister representing the Minister for Family Services. I want to explore part of the carers package that the Prime Minister announced today.Government senators interjecting—10000PRESIDENTThe PRESIDENT—Senators on my right, cease interjecting.8U4Senator LEES—I do not think that was necessary, Senator. I ask you to withdraw.10000PRESIDENTThe PRESIDENT—Senator, I did not hear what was said and who made the comment.8U4Senator LEES—Madam President, there are continuing offensive remarks whenever Democrats ask questions, and I ask that that one be withdrawn.10000PRESIDENTThe PRESIDENT—Senator Lees, my problem is I do not know to which senator you refer. I heard interjections but I do not know who made it or what.8U4Senator LEES—I left it to her conscience, Madam President, and I therefore shall proceed. Honourable senators interjecting—10000PRESIDENTThe PRESIDENT—Order!8U4Senator LEES—My question is directed to the minister representing the Minister for Family Services.Honourable senators interjecting—10000PRESIDENTThe PRESIDENT—Order! Senators on both sides—Honourable senators interjecting—10000PRESIDENTThe PRESIDENT—Senators on both sides need to maintain sufficient silence so that I can hear the question.8U4Senator LEES—This is a serious question. Isn't it the case, Minister, that the extra $15 million announced for ageing carers—that is, those over 65 who are looking after adult children with disabilities, many of them for more than 40 years—amounts to $9 per week per carer? Was the Prime Minister really serious when he presented this pittance as a great social bonus flowing from the $7 billion your government has taken out of community services over the last couple of years? Isn't this rather more heartbreaking than groundbreaking?1875Herron, Sen JohnSenator HERRONVW4QLDLPAboriginal and Torres Strait Islander Affairs10—I thank Senator Lees for the question because it is a very serious question. It is a very serious matter regarding the carers of people with disabilities and keeping people in their homes. The important aspect of it is that this government, for the first time ever, has done something about the problem. It was never done by the Labor Party in government; it was never addressed by them at all.The important aspect of it is that we are doing something about it because 93 per cent of elderly people are in their own homes. Despite all the bleatings that occur on the other side about nursing homes and nursing hostels, only seven per cent of the whole population actually go into nursing homes and hostels. The 93 per cent of older Australians who live at home will be assisted in some aspects where this is necessary. This government is committed to helping frail, older Australians achieve what they want most: quality care in their own homes.Madam President, I take it that Senator Lees is standing because she is going to say that I am not answering her question.8U4LEESSenator Lees—This is not the question.VW4Senator HERRON—The point of the matter is that I am answering the question. I want to put it in context so that she that gets an answer to the question. Some people have no choice but to enter residential care, and we are committed to ensuring that they receive the highest standards of care and accommodation.10000PRESIDENTThe PRESIDENT—There is a point of order. Senator Lees?8U4LEESSenator Lees—Point of—N26ABETZSenator Abetz—Are you going to apologise to Senator Crane?8U4LEESSenator Lees—Thank you, Senator Abetz.N26ABETZSenator Abetz—Are you going to apologise to Senator Crane?10000PRESIDENTThe PRESIDENT—Senator Abetz!8U4LEESSenator Lees—It is a point of order on relevance. I said very clearly that the part of the package was not the part on aged care packages but the section dealing with carers of people with severe disabilities in their home.10000PRESIDENTThe PRESIDENT—I draw your attention to the question, Senator Herron.VW4Senator HERRON—I did refer to that in the context that the total package in relation to aged care is $210 million over four years, so they have a choice. In relation to the disability carers and the introduction of that package, the significance, as I said, is that it is the first time a government has done something about it. I think even Senator Lees will accept that. They may not accept it on the other side but it is a fact. It is something that is being done for the first time in relation to people looking after disabled people in their homes. We have not only introduced it but we are providing funding for that.I have learnt, Senator Lees, not to accept statements that are made in questions in this chamber without verifying the facts. You can do creative accounting, as you well know, in relation to these matters. I will come back to you with a response from the minister and a breakdown of the figures so that we can assess whether what you have alleged in your question is correct. I will come back with a response from the minister when it is available.1876Lees, Sen MegSenator LEES8U4SAAD00—Madam President, I ask a supplementary question. Minister, I can assure you that we have checked and rechecked our figures because I did not believe it at first. It does not matter which calculator you use. I will not go through those now because I want to ask an additional question.LI4PATTERSONSenator Patterson—Why don't you have the good grace to get your facts straight?10000PRESIDENTThe PRESIDENT—Senator Patterson!LI4PATTERSONSenator Patterson—Well, she should get her facts right.10000PRESIDENTThe PRESIDENT—Senator Patterson!LI4PATTERSONSenator Patterson—She comes in here with this rubbish.10000PRESIDENTThe PRESIDENT—Senator Patterson!8U4Senator LEES—Thank you, Senator Patterson. Minister, is it not the case that this new funding—this amazing social bonus—represents less than one cent from every dollar that your government has hacked off Australia's health, education and social welfare budgets?1876Herron, Sen JohnSenator HERRONVW4QLDLPAboriginal and Torres Strait Islander Affairs10—Senator Lees has shown her ignorance because this is still being negotiated. She has trotted out figures that are not true, because it is still being negotiated. The Commonwealth will increase its spending on disability services considerably over the next five years. Its outlays will increase from $555 million in 1997-98 to $655 million—an 18 per cent increase—over the next five years. Part of the Commonwealth increase will be given to the states to assist them in meeting their specific responsibilities. This will increase from $316 million to $383 million over the next five years, an increase of 21 per cent.The Commonwealth will also increase its own direct spending on employment and related services from $238 million to $272 million, an increase of 14 per cent. So Senator Lees, I would check your facts. I will come back and if I have anything further to add from the minister, I will give it to you.18761876O'Brien, Sen KerrySenator O'BRIEN8O6TASALP00—My question is directed to the Minister representing the Minister for Primary Industries and Energy and the Minister for Customs and Consumer Affairs.Government senators interjecting—10000PRESIDENTThe PRESIDENT—Senator O'Brien, just a moment. Senators on my right, I need to hear the question.8O6Senator O'BRIEN—Is the minister aware that at a meeting of the south-east regional Liberal conference in South Australia in March, which was attended by six Liberal politicians, including Senator Ferris and the Minister for Defence, the following resolutions were passed:The convention calls for Mr John Anderson, Federal Minister for Primary Industries, to impose temporary import quota restrictions to assist those primary industries experiencing damage from volume imports as they adjust to free trade.This convention calls upon Mr Warren Truss, Minister for Customs and Consumer Affairs, to provide absolute and complete labelling laws, nationwide, that clearly identifies products which contain imported ingredients.Does the minister support these resolutions passed by this Liberal Party conference?Honourable senators interjecting—10000PRESIDENTThe PRESIDENT—Just a moment, Senator Parer.C16HEFFERNANSenator Heffernan—What about your Hobart conference? What about the power sell-off in New South Wales?10000PRESIDENTThe PRESIDENT—Senator Heffernan! Senator Parer.1876Parer, Sen WarwickSenator PARERKI4QLDLPResources and Energy10—I am unaware of the resolutions passed at the conference in South Australia to which Senator O'Brien refers.Honourable senators interjecting—10000PRESIDENTThe PRESIDENT—Order! There are far too many interjections and the chamber is behaving—VW4HERRONSenator Herron—Do you know what happened to the Labor conference in Queensland? 10000PRESIDENTThe PRESIDENT—Senator Herron!VW4HERRONSenator Herron—Do you know what happened in the Labor conference in Queensland?10000PRESIDENTThe PRESIDENT—Senator Herron, stop shouting across the chamber.KI4Senator PARER—I might say, it is a major function of Liberal Party conferences to look at various motions and pass them on to people in parliament. I have no information on the detail of that. I will look at it and if there is anything I have to add, I will come back and respond to you accordingly.1877O'Brien, Sen KerrySenator O'BRIEN8O6TASALP00—Madam President, I ask a supplementary question. Minister, perhaps you can answer this or perhaps you will need to take it to the minister and get a response later. In the light of significant levels of imported pig meat and the collapse in the prices being received by local growers for this product, which are now well below the cost of production, will the minister reconsider the level of assistance currently being provided to the pig industry to help it adjust to the impact of these imports? I can assure you that that is the position the industry takes.1877Parer, Sen WarwickSenator PARERKI4QLDLPResources and Energy10—It would have been good if you had asked that the first time. The $10 million development fund for Australia's pig meat industry will aim to boost competitiveness and prise open new high return markets for the pig industry. Terms of reference for the new pig industry and export development scheme were unveiled by Mr Anderson in talks with the Pork Council of Australia. The industry will work directly with the government in recommending funding priorities.Mr Anderson actually put a deadline at the end of this month—the end of March had been set for determining an initial blueprint. This would include developing an industry business plan to identify production, process, marketing and barriers to export market developments. It will identify strategies and activities to overcome the barriers most effectively and efficiently and it will be determining market development objectives and market access priorities.Minister Anderson said the committee would also be charged with evaluating additional sources of assistance from government agencies to supplement the $10 million allocated through the pig meat industry export development committee. Six-monthly reports and the implementation of projects and strategies will be required.18771877Colston, Sen MalcolmSenator COLSTONPF4QLDIND00—My question is to the Minister for Communications, the Information Economy and the Arts. Following a recent report by the Australian Communications Authority, is it reasonable to expect that members of the federal parliament would have significant concerns about the quality of service provided by Telstra? Does that report highlight unacceptable performance deficits in Telstra's service? Can the minister advise whether he is concerned about the contents of this report and, if so, whether he has made known his views to the highest level of Telstra in relation to the organisation's current quality of service? Further, I ask whether the minister considers that the responsibility for the apparent decline in service rests with the Chief Executive Officer of Telstra, its board, or both?1877Alston, Sen RichardSenator ALSTONLD4VICLPCommunications, the Information Economy and the Arts10—I think the recent report from the ACA does provide figures which are of concern to the government. That is why we made it plain the other day that we did not think it was acceptable that there should be lower levels of service than people in the bush are entitled to expect. That is, indeed, why we have introduced a new penalty regime: to ensure that it simply cannot continue at that level.For all those on this side who like to pretend that somehow everything flows from privatisation and nothing from the competition which Mr Beazley introduced back in 1991, or the privatisation that he was dead keen on at that same time, it is worth just remembering that the fact is that, in March 1973, the figures for agreed completion dates—4J4SCHACHTSenator Schacht—March when—1973?LD4Senator ALSTON—March 1993. The figures for rural areas on agreed completion dates for new services are the same now as they were then. Madam President, if you look at fault clearances, what you find is that, back in March 1993, the national figures were the same as they were in December 1996. In fact, when we came to government they were 66 per cent, they went up seven per cent to 73, and they have gone back down again to about that same level now. So the fact is that these figures have moved around a bit.The big difference between the approach we take and the approach that Labor take is that they did nothing about it. They simply ignored the bush. That is why they paid the supreme penalty.Opposition senators interjecting—LD4Senator ALSTON—The people in the bush realised you could not give a damn. That is why we acknowledged that this standard of service was not good enough prior to the election, by promising to introduce the customer service guarantee—and we did. We put the carriers on notice that we expected them to lift their game. We are now making it clear that there will be very draconian penalties attached if they do not.So I want to make it very clear to Senator Colston and all those over here that it is not good enough to have declining standards. And I was very pleased to see Telstra actually put out a press release, following these results, in which it said it plans to improve its customer service to at least the customer service guarantee levels. That is very encouraging news.AW5CARRSenator Carr—That's a good one; very big of them!LD4Senator ALSTON—If they did not have to waste their time listening to this performer over here, the dinosaur—the Jurassic Park expert, as Mr Brumby calls him—then they would be able to get on with the job a lot better. Telstra itself accepts that the customer service guarantee is perfectly achievable, that it is a standard that ought to be met—and they have undertaken to meet it. I find that very encouraging. But just remember that this quality of performance concern goes back a long way. In fact, Senator Heffernan pointed out to me the other day that it took him 15 years to get a new connection back in the 1980s. And I can well remember, back in the late 80s early 90s, being told that Telstra simply would not come out at weekends for fault connections because they did not want to have to pay all that overtime that the people who pay your salaries think is so important.It is also I think very significant that, in an interview the other day on ABC metropolitan radio in Brisbane, Linda Wattie from the Australian Telecommunications Users Group was asked about the new penalty regime, and she said, `It is certainly better than no check or balance that has been the case in the past.' In other words, she was saying that under Labor nothing was done about declining levels of quality of service.I simply assure Senator Colston that people are entitled to be concerned. They should also be encouraged that we are taking action to ensure that low levels of service cannot occur in the future. I have, indeed, taken the matter up at the highest level. I have spoken to Mr Blount, and I am very confident that we will have a new regime in place. (Time expired)18781878Murphy, Sen ShayneSenator MURPHYFX5TASALP00—My question is to the Minister representing the Minister for Customs and Consumer Affairs. I refer to the Anti-Dumping Authority's report No. 185, which was presented to the minister yesterday. Minister, can you tell the Senate whether the minister for customs will reject the ADA's finding that the amount of paper dumped by Belgium, France, the Netherlands, Switzerland and Taiwan is negligible because, according to the ADA, it constitutes only seven per cent of the total Australian import volume? Will the government instead commit to imposing anti-dumping duties upon the relevant companies, on the grounds that no level of dumping is acceptable when people's jobs are at stake?1878Parer, Sen WarwickSenator PARERKI4QLDLPResources and Energy10—What the senator is referring to, I think, is the anti-dumping action against the coated wood-free papers from the 14 countries. He will know, because he canvassed it very well in estimates—I might say, Senator Murphy—that the investigation itself is highly complex in terms of the nature of the industry concerned and the number of countries and companies involved; and that Customs worked closely with Australian industry to ensure that all relevant issues were addressed.The investigation was extended to a full 120 days prescribed by the legislation, due to the difficulty of undertaking verification visits—in Europe, because of the summer holidays there; and in Korea, because of national festivities. A large volume of information about exporters was not available to other interested parties until late in the investigation period.The case was there for a further 14 days to allow interested parties to comment on this information. This enabled Customs to consider these comments before reaching its preliminary finding. The results of the investigation by Customs itself were that they found there was sufficient ground for the publication of a dumping duty notice for goods exported from Austria, Belgium, Finland, France, Germany, Italy, Japan, the Republic of Korea, the Netherlands, Switzerland and Taiwan. There were not sufficient grounds for the publication of a dumping duty notice for certain goods exported from Finland, the Republic of South Africa and Sweden. Customs terminated the investigation in relation to certain exporters from Belgium, France, Germany, Indonesia and Italy, and securities were imposed on 13 companies from eight countries.The positive findings were then subject to review by the anti-dumping authority. It supported Customs' termination of investigations into exporters from Belgium, France, Germany, Indonesia and Italy. It also agreed with Customs' finding that the bagasse paper was not a like good but has initiated its own inquiry into whether coated paper weighing less than 90 grams and coated paper of A3 quality were like goods or not. As regards the recent one that came down yesterday, I will seek further information from the minister to see whether there is any further action that will be required.1879Murphy, Sen ShayneSenator MURPHYFX5TASALP00—Madam President, I ask a supplementary question. Minister, I thank you for the part answer that you gave, but you did not really address the question with regard to whether or not the government will reject the ADA findings and impose any duties. I guess that is part of the problem. I wonder whether or not the minister is going to tell the workers at the Wesley Vale paper mill in Tasmania that the loss of their jobs as a result of the so-called negligible amount of dumped paper is an acceptable price to pay for the government's failure to introduce legislation to improve the anti-dumping laws of this country. Isn't this just another example in the long list of the Prime Minister's non-core promises for which Australians again must pay?1879Parer, Sen WarwickSenator PARERKI4QLDLPResources and Energy10—Senator Murphy will be aware of the fact that the minister has changed the whole system of dumping.Honourable senators interjecting—10000PRESIDENTThe PRESIDENT—Order!KI4Senator PARER—He has announced that he has reviewed the system of dumping. There is a new anti-dumping regime which you would be aware of.FX5MURPHYSenator Murphy—When are you going to bring the legislation in?KI4Senator PARER—Ha! Well, Madam President—Honourable senators interjecting—10000PRESIDENTThe PRESIDENT—Order! There are far too many senators interjecting.KI4Senator PARER—I will see if I can—Honourable senators interjecting—10000PRESIDENTThe PRESIDENT—Order! Senator Parer, would you just resume your seat for a moment, please. The level of interjection is totally disorderly and unacceptable. Senator Parer.KI4Senator PARER—This was announced by the minister I think on about 14 March but there have been changes.UI4RAYSenator Robert Ray—You are a bit vague.KI4Senator PARER—I will get more detail from the minister.FX5MURPHYSenator Murphy—What you announced was that you were going to get some legislation together. When are you going to introduce it into the parliament?KI4Senator PARER—If that is what you are asking me, I will refer it to the minister. I guess that he will introduce it as soon as possible. But the way you people carry on in this place, it is very hard to get legislation through anyway.18801880Ferguson, Sen AlanSenator FERGUSONEP5SALP10—My question is directed to the Minister for Aboriginal and Torres Strait Islander Affairs, Senator Herron. It relates to the Labor Party's Hindmarsh Island Bridge fiasco which has to date cost Australian taxpayers in excess of $5 million. Minister, what are the implications of the High Court decision which makes a mockery of Labor's handling of the Hindmarsh Island Bridge issue? Further, Minister, what does this mean for those Aboriginal women who have always argued that there was never any secret women's business?1880Herron, Sen JohnSenator HERRONVW4QLDLPAboriginal and Torres Strait Islander Affairs10—I thank Senator Ferguson for the question. Senator Ferguson, of course, is a South Australian senator who is very knowledgeable in this matter.WW4KEMPSenator Kemp—A great senator.VW4Senator HERRON—He is a great senator who has taken a keen interest in this matter. Let me first comment on a group of Ngarrindjeri women who have been consistent and strong throughout the nine years of the Hindmarsh Island Bridge debacle. These women are senior elders of the Ngarrindjeri people. They include Dorothy Wilson, Bertha Gollan, Dulcie Wilson, Audrey Dix and Jenny Grace. These Ngarrindjeri women have consistently maintained that there was no secret women's business and therefore no reason to stop construction of the bridge. They have now been totally vindicated. They are unsung heroes. For their trouble, they have been vilified by sections of their community and by Senator Bolkus and others from the loony Left of the Labor Party. To a large extent their views have been ignored by many in the media who choose instead to listen only to a particular group of Ngarrindjeri people.Senator Bolkus, the former minister, Robert Tickner, and the present shadow minister, Daryl Melham, have now been ruled wrong over Hindmarsh Island not once but on four very expensive occasions. Over a nine-year period there have been three inquiries, a royal commission and a High Court challenge. Four of the five processes found the bridge should proceed, and I can confirm, Senator Ferguson, that over $5 million of taxpayers' money has been wasted by Labor in pursuit of this expensive ideological obsession. If they had one shred of decency, Senator Bolkus, Daryl Melham and Labor would offer Dorothy Wilson, Bertha Gollan, Audrey Dix, Jenny Grace and Dulcie Wilson a very public and humble apology.Let me now deal with Senator Bolkus. I know this will not come as a surprise to the senators beside me and behind me.XE4BOLKUSSenator Bolkus—Why don't you apologise to the stolen generation?VW4Senator HERRON—Senator Bolkus has been running around offering the media bad advice—10000PRESIDENTThe PRESIDENT—Order! Senator Herron, just a moment. Senator Bolkus, cease shouting.XE4BOLKUSSenator Bolkus—Madam President—10000PRESIDENTThe PRESIDENT—You have not been called upon to speak.LD4ALSTONSenator Alston—Sit down you sleazy little weasel.XE4BOLKUSSenator Bolkus—I raise a point of order, Madam President. I was asked a question. My response for the record was, `Why don't you apologise to the stolen generation?'It has to go on the record.10000PRESIDENTThe PRESIDENT—There is no point of order, sit down.UI4RAYSenator Robert Ray—Madam President, I raise a point of order. Can you ask Senator Alston to withdraw those absolutely despicable comments he just directed at Senator Bolkus?10000PRESIDENTThe PRESIDENT—Senator Alston?LD4ALSTONSenator Alston—I withdraw.VW4Senator HERRON—Senator Bolkus has been running around offering the media bad advice on the High Court decision. Despite desperate claims to the contrary by him, the High Court decision has clearly denied the opposition any basis for successfully arguing that the Native Title Amendment Bill is unconstitutional. Considering Senator Bolkus's pathetic judgment and legal advice of late, I am amazed that anybody in the media would listen to him. Just look at his judgment in releasing the confidential Federal Court Skase information—`Nick the Leak'—and the Dolly Dunn case, and his strong support for the failed High Court challenge to the Hindmarsh Island Bridge.Senator Bolkus, three strikes and you are out in this game. We have had three strikes from you. It is time you were relieved. Madam President, he is clearly not fit to be shadow Attorney-General. For those in the media who were absolutely suckered—even the Sydney Morning Herald and the ABC should have had the sense to treat whatever Senator Bolkus said with considerable scepticism. Three strikes, Senator Bolkus; time you were put on the backbench.I see that one of the newspapers today said that it was a terrible thing for the government—and Senator Bolkus obviously fed them that line—that this has occurred. I would explain to Senator Bolkus what the Hindmarsh Island judges determined. It was a simple decision, Senator Bolkus. I would refer anybody to the Hansard of 5 February 1997 when Senator Bolkus, in discussing it, said how very complicated and difficult it all was. The judgment was admirably reported in the Australian today. The report said:Most judges gave a simple reason when discussing it. The Hindmarsh bridge law amended another federal law about Aboriginal heritage. Everyone agreed the heritage law was valid under the race power. So if Parliament can validly pass a law under a constitutional power, it must be able to amend it.10000PRESIDENTThe PRESIDENT—Order! Senator Herron, there was a phrase referring to Senator Bolkus in your answer that I would ask you to withdraw.VW4Senator HERRON—Could you tell me what it was, Madam President? I can only withdraw something if I am aware.10000PRESIDENTThe PRESIDENT—You referred to `Nick the Leak'. I regard that as unacceptable and unparliamentary. I ask for it to be withdrawn.LD4ALSTONSenator Alston—He has been convicted by this parliament—unanimously, except for those who follow him—of leaking.10000PRESIDENTThe PRESIDENT—Senator Alston, resume your seat! Senator Herron, I ask you to withdraw that phrase.VW4Senator HERRON—I withdraw.18811881Carr, Sen KimSenator CARRAW5VICALP00—My question without notice is to Senator Ellison, Minister for Schools, Vocational Education and Training. Minister, is it the case that—Government senators interjecting—10000PRESIDENTThe PRESIDENT—Order! Senator Ellison needs to hear this.AW5Senator CARR—Minister, is it the case that your government has allocated $11.2 million this financial year to run media campaigns for vocational education and training and Employment National? Given the massive budget cuts to DEETYA and the thousands of jobs stripped from the Public Service, how can you justify the spending of millions of dollars on party political advertising? Why should Dr Kemp have a political advertising slush fund of $11.2 million in an election year? Isn't it the case that Dr Kemp has attempted to cover up his consultancy binge within DEETYA to conceal the fact that your government is using departmental consultancies for market research and other matters of a direct political nature? Is this why the department has given three conflicting answers to estimates on these matters?1881Ellison, Sen ChrisSenator ELLISON9X5WALPSchools, Vocational Education and Training10—Madam President, once again you can see that the opposition is really scraping the barrel for good questions today. I can tell you right now that Senator Carr would have us not let the people of Australia know about the new Jobs Network that we have introduced. The opposition would have us not let them know about the various services that we provide—jobs matching, jobs training, intensive assistance, enterprise. The fact is that they are upset that we have come up with a very good system to assist unemployed people to pursue jobs and find jobs, and they do want us to let the people of Australia know about it.It is only appropriate that the government let the people of Australia know that we have five services available: job matching, job search training, intensive assistance, the new enterprise incentive scheme that I mentioned, and new apprenticeships and traineeships. I suppose that they do not want us to let people in the community know that these programs are around. Labor did it. Labor did it when it was in government and, as a responsible government, we are letting people in Australia know about these programs. We have 1,400 sites, Senator Carr—more than previously existed—and we have to let the people of Australia know that these sites are there so that they can go to them.If you think that is wrong, you tell that to the unemployed people who want to know about these programs. You tell that to those people who want intensive training. You tell that to those people who want to know more about traineeships and apprenticeships. You tell that to those unemployed people who are interested in looking at setting up an enterprise to change their lives and to start up a new business. You tell them, `Look, we don't want you to know about this. We don't want the government to advertise what it's doing.' You tell them that and we will see what they say to you.This Jobs Network program is working extremely well. It is one of the largest tenders ever, and these private providers will provide more opportunities for people to find work. I would say to Senator Carr that he ought to look more at the lack of policy on their side. What are they going to do for the unemployed? I might just remind you that in seasonally adjusted and trend terms we now have 8.1 per cent unemployment—the lowest it has been for a long time.1882Carr, Sen KimSenator CARRAW5VICALP00—Madam President, I ask a supplementary question. Minister, will you confirm that Employment National will be spending $6.9 million on TV and other advertisements featuring mostly unemployed persons not eligible for government assistance? Can you also confirm that $3.6 million, of which $1.8 million will be spent between now and the end of the financial year, will be spent on promoting controversial vocational education and training programs? Why shouldn't the Liberal Party be paying for its own propaganda, or is this yet another attempt by Dr Kemp to promote himself within the government?1882Ellison, Sen ChrisSenator ELLISON9X5WALPSchools, Vocational Education and Training10—If Senator Carr thinks that providing vocational education to people in schools and providing more funds for new apprenticeships and traineeships is controversial, then I think he has missed the plot. What we are doing is letting people know—especially young people—what is available. On 1 May, we will have our new apprenticeship centres—a one-stop shop; streamlined approach—for young people to go in and find out what is available and employers will also be able to go in and find out what they can have by way of training programs, whether it be a part-time traineeship or a full-time apprenticeship. Those are the sorts of things that we are about—freeing up the training market and providing more opportunities for young people.18821882Murray, Sen AndrewSenator MURRAY3M6WAAD00—My question is to the Assistant Treasurer. Minister, the Prime Minister this week sought to assure us that his tax reform package was all about attacking tax avoidance but, Minister, haven't you as a government already ruled out addressing the use of company structures by categories such as personal service workers which have helped lead to over 59 per cent of private companies paying no tax? Minister, I, for one, do not believe that 59 per cent of Australian companies are in trouble. Do you? Haven't you already ruled out addressing family trusts which have an income of around $118 billion? Haven't you ruled out addressing negative gearing, which costs around $1 billion per year? Minister, if your government have ruled out the big three tax minimisation devices, what measures are left to make sure that better-off Australians pay their fair share of tax?1882Kemp, Sen RodSenator KEMPWW4VICLPAssistant Treasurer10—I thank Senator Murray for that question. Senator Murray, this government has moved in a very forceful manner to crack down on aggressive tax planning and tax avoidance. Indeed, for the information of senators, I will list some of the important measures that we have taken. Where aggressive tax planning schemes come to our attention and where we perceive major problems of tax avoidance, this government will always move to close down loopholes. You mentioned the recent survey. I think you quoted that some 58 per cent of companies pay no tax. I am informed that the number of non-taxable companies has varied between 56 per cent and 61 per cent over the last five years. The majority of non-taxable companies are private companies operating at a loss.But, in the same context, it is also worth bringing to the attention of the Senate—I think from the same statistical journal you were quoting from—the fact that the statistics that were released on 25 March showed that the amount of company net tax payable has continued to rise. I think some people may have got the impression from your question that in fact that was not the case. They show in 1995-96—these are the latest statistics which are available here—that something towards $16 billion of net tax is collected.I mentioned to you that this government has always moved to crack down on tax avoidance—this is in total contrast to the Labor Party—and to bring greater fairness and equity to the tax system. That is one of the reasons why we brought in the superannuation surcharge, which the Labor Party fought tooth and nail, to the great embarrassment of many of their supporters.RF4COOKSenator Cook—That's a new tax.WW4Senator KEMP—Let me list a few measures that have been taken. We abolished—and Senator Cook will know this, because he fought this tooth and nail—R&D syndicates.RF4COOKSenator Cook—Madam President, I raise a point of order. This is the third time today that this lie has been expressed by the minister.Government senators interjecting—10000PRESIDENTThe PRESIDENT—Order! Senators on my right!RF4COOKSenator Cook—Madam President, can you ask this minister to tell the truth about this issue? 10000PRESIDENTThe PRESIDENT—Order! There is no point of order. You may debate answers given in question time at a later time.N26ABETZSenator Abetz—Madam President, I raise a point of order. You required the minister for aboriginal affairs to withdraw the term `Nick the Leak', albeit that the Senate had censured Senator Bolkus for undertaking that activity. But during that point of order, Senator Cook made the deliberate reference to Senator Kemp lying. If we are going to apply the standing orders, I suggest that they be applied to Senator Cook as well and he ought to be asked to withdraw it.10000PRESIDENTThe PRESIDENT—Senator Cook, if your interjection implied that Senator Kemp was lying, it should be withdrawn.RF4COOKSenator Cook—To the extent it was—LD4ALSTONSenator Alston—Just withdraw.RF4COOKSenator Cook—Hang on. Madam President, Senator Kemp did not tell the truth—although I am not quite sure how I expressed that—when he referred to me and tax avoidance. He did not tell the truth.Honourable senators interjecting—10000PRESIDENTThe PRESIDENT—Senator Cook, you are debating the issue. I ask you to withdraw the imputation.RF4COOKSenator Cook—If standing orders require me to do that, I withdraw.7E4VANSTONESenator Vanstone—He repeated it.10000PRESIDENTThe PRESIDENT—He withdrew. Senator Kemp, have you finished answering the question? There is still more time available if you wish to continue.Honourable senators interjecting—WW4Senator KEMP—No, Madam President, I have not. I am well used to receiving abuse from Senator Cook. In contrast to previous occasions, that was comparatively mild.Honourable senators interjecting—10000PRESIDENTThe PRESIDENT—Order! There are far too many interjections.WW4Senator KEMP—Before there was that outburst and meltdown from Senator Cook, I was listing some of the measures we have taken. Dare I say it again: I mentioned the moves we took against R&D syndicates. But I am going to move on, having said that, Senator Cook. We took measures relating to foreign companies claiming Australian residence. We took measures relating to thin capitalisation. We of course took a number of other measures relating to the withholding tax provisions to further assist in preventing tax avoidance. This government makes no apology for the actions that we have taken in relation to tax avoidance.Honourable senators interjecting—10000PRESIDENTThe PRESIDENT—Order! Just a moment, Senator Kemp. There is far too much noise in the chamber.WW4Senator KEMP—In contrast to the previous government and the truly pathetic effort they made in these areas, this government has a very proud record. In conclusion, we have embarked—(Time expired)1884Murray, Sen AndrewSenator MURRAY3M6WAAD00—Madam President, I ask a supplementary question. Minister, whether public or private, I am not of the opinion that 59 per cent of Australian companies are in trouble, which would mean that a substantial portion of those companies are hiding tax. What measures will you take to address that problem?1884Kemp, Sen RodSenator KEMPWW4VICLPAssistant Treasurer10—I can give you some further information on that, Senator Murray.Opposition senators interjecting—10000PRESIDENTThe PRESIDENT—Order! Senators on my left will stop making so much noise.WW4Senator KEMP—Those opposite have never been interested in serious questions. Sixty per cent of non-taxable companies have a cost of sales greater—3M6MURRAYSenator Murray—Madam President, I raise a point of order. It goes to relevance. I would like to know how they are going to address that 59 per cent who do not pay tax.10000PRESIDENTThe PRESIDENT—I draw your attention to the question, Senator Kemp.WW4Senator KEMP—That was the fastest point of order I have experienced in this chamber. Not bad, Senator Murray. The ATO has established a high level steering committee and working party focusing on tax planning and is diverting resources into tackling schemes as they are identified. This govern ment has a proud record in this area and contrasts very starkly with the pathetic record of the previous government.LD4ALSTONSenator Alston—Madam President, I ask that further questions be placed on the Notice Paper .Questions Without Notice1884188415:08:001884Vanstone, Sen AmandaSenator VANSTONE7E4SALPMinister for Justice10—On 26 March Senator McKiernan asked me a supplementary question in my capacity of representing the Attorney. I undertook to seek some clarifying remarks from the Attorney and to provide them to the Senate. I seek leave to have those incorporated in Hansard .Leave granted.The remarks read as follows—Senator VANSTONE: On 26 March 1998 Senator McKiernan asked me a supplementary question, in my capacity as Minister representing the Attorney General, concerning comments made by the Attorney-General about the Dietrich decision and legal aid funding. I undertook to seek some clarifying remarks from the Attorney-General and to provide those to the Senate at a future date.The Attorney-General has provided the following further remarks in response to Senator McKiernan's supplementary question:What I have been saying is that it's in the hands of the judges and in the hands of the practitioners who practice in the courts, to curb the length and expense of trials.We have got to have a system that takes into account the practical realities that there is not unlimited public money available to fund trials.I believe there is a great potential for shorter and more cost effective trials through reforms in procedures which enable the identification of issues in genuine dispute, the dispensing with strict rules of evidence where appropriate, more disciplined trial management and the use of court presentation technology.However, experience seems to show that these innovations are only effective where there is the will on the part of lawyers and judges to use them to full advantage for a fair and efficient trial.The Dietrich case has enormous implications for the legal aid and criminal justice system. In an effort to address the problems caused by increas ingly long trials, a legislative response to the Dietrich decision is only one of a number of possible responses to be considered by SCAG.The challenge for the criminal justice system is to streamline its court proceedings and practices and restore public confidence in our legal system.188515:09:001885Parer, Sen WarwickSenator PARERKI4QLDLPResources and Energy10—In question time yesterday Senator Bartlett asked me a series of questions relating to the Howard government's Cape York Natural Heritage Trust plan. I have made inquiries and received the following information: before the last election the coalition promised to provide up to $40 million from the Natural Heritage Trust to protect the conservation values of Cape York. That commitment has been honoured in full. Up to $40 million is being provided through the Cape York Natural Heritage Trust plan for an integrated package of measures which will protect the region's environmental values and ensure the industries operating in Cape York do so in accordance with the principles of ecologically sustainable development.The plan follows the completion of the Cape York Peninsula land use strategy, CYPLUS, stage 2, which was initiated jointly by the Commonwealth and Queensland governments. The Cape York Natural Heritage Trust plan builds on CYPLUS stage 2 and is consistent with the majority of that report's recommendations in relation to conservation management. The Cape York Natural Heritage Trust plan is being supported by a cross-section of stakeholders on the Cape, and both governments are confident that the plan will be implemented in the spirit of cooperation by the stakeholders in the region.Senator Bartlett claimed that the government rejected the recommendations of CYPLUS to undertake an assessment of conservation values in the region. This is not the case. Strategy 6 of the plan, which is titled `Assessment of natural and cultural values', provided $250,000 for further assessment work. It is true, however, the government is not waiting for the results of that assessment before getting on with the job. Considerable assessment work was undertaken at the cost of several millions of dollars during CYPLUS stage 1. The government has, therefore, allocated the majority of funds to strategies which will protect the environmental values of the region.To allow for a higher level of community input and ownership of the process, the Commonwealth and Queensland governments have established a Cape York region advisory panel. That panel includes a cross-section of Cape York interests, including indigenous groups, pastoralists, miners, local government and conservationists. Both governments are aware of concerns that have been raised by indigenous groups and other stakeholders about indigenous representation on the panel. Senator Hill and his Queensland counterpart have been discussing some additions to the panel which will strengthen indigenous representation. I understand that a decision in this respect is expected shortly.I table a copy of the Cape York Natural Heritage Trust plan, which I suggest Senator Bartlett might like to read.188515:12:001885Parer, Sen WarwickSenator PARERKI4QLDLPResources and Energy10—Yesterday Senator Chris Evans asked me a question alleging discrepancy in Natural Heritage Trust figures for the electorate of Gwydir supplied by Senator Hill and announced by the member for Gwydir, Mr Anderson. Many projects cover regions which are not wholly contained within electorate boundaries. Environmental problems do not always fall within electorates, and we have put the resources where they are needed to deal with the environmental problems.Two lists of projects were provided to senators and members. The first lists projects which are clearly identified within electorates; the second lists regional and state projects funded under the Natural Heritage Trust program. It is up to individual MPs as to how they use this list.I would like to table the list of projects that the minister attached to his electorate announcement. It includes 37 projects with Commonwealth funding of some $780,000 specifically identified in Senator Hill's information as within the electorate of Gwydir. It also includes a further 21 projects with Commonwealth funding of approximately $700,000 which will deliver environmental gains within his electorate and others. Two of these regional projects were used in the announcement made by the minister as examples of natural heritage grants in his electorate—$135,000 for a flood plain management plan for the Namoi River from Carroll to Boggabri; and $110,000 for incentives for implementation of best practices in the Liverpool plains.I would like to point out that the minister's media release announcing the project contained two errors. Firstly, it said there were 55 projects, where there were actually 58. Secondly, it gave the total funding of $1,402,516, where the correct figure should have been $1,481,266.188615:14:001886O'Brien, Sen KerrySenator O'BRIEN8O6TASALP00—I move:That the Senate take note of the answer given by the Minister representing the Minister for Primary Industries and Energy (Senator Parer) to a question without notice asked by Senator O'Brien today, relating to the importation of pork.Senator Calvert interjecting—8O6O'Brien, Sen KerrySenator O'BRIEN—Thank you for that, Senator Calvert. I am glad to see that you are not interested in the pig industry's plight. There are a lot of pig farmers in Tasmania who will be shocked to hear that. The resolutions passed by the south-east regional Liberal conference in South Australia clearly illustrate how tough many people in the bush are finding it under this government.They are not resolutions from a particular farm group. They are not from the ALP. They are not from the Democrats. They are resolutions of the Liberal Party to its Canberra politicians. They are resolutions from rank and file members representing nearly 30 per cent of that state. Importantly, they are resolutions from Liberal Party members who grow grain and wool and run cattle. I understand that there are only two pork producers there. So the view expressed represents a broad population, not just a sectional interest. But don't just take my word for that. I want to quote from a letter which was written after that—EP5FERGUSONSenator Ferguson—It's a pity you weren't there.8O6O'Brien, Sen KerrySenator O'BRIEN—I suppose it was possible that you were there, Senator Ferguson. But I want to quote from a letter from someone else who was there. After that meeting, one participant wrote to me. It is not appropriate to identify that person; no doubt there would be some sort of purge after the event were I to do so. But that particular farmer wrote to me saying:There are many Australians, including politicians, who are ignorant of our plight.He was obviously a pig producer. He went on:Having the opportunity to listen and debate Mr Ian McLachlan at the south-east regional conference, with representatives from 30 per cent of regional South Australia, on Saturday last was an eye opener.I feel Ian McLachlan and our politicians have tunnel vision on free trade and have no interest or sympathy in any industry that cannot survive sudden exposure to free trade.They have strong support for aquaculture and the wine industry that are currently booming and have no interest in preserving the harmony, balance and diversification that many other industries offer to primary production.Frankly, he was dead right about the approach of this government to the bush. Given the terms of the resolution passed by that Liberal conference calling on the government to assist these industries, the majority of Liberals in regional South Australia agree with him—except, of course, Mr McLachlan. I wonder, Senator Ferris, how you voted on that matter.The government is taking the same approach to a number of intensive livestock industries and other industries that could be exposed to imports—for example, the apple and pear industry which AQIS is reviewing with a view to allowing imports from New Zealand and the chicken industry. There has been a massive debate about the introduction of cooked chicken meat recently, and that debate continues. As far as I am aware, the science on the question of introducing cooked chicken meat is far from resolved. Another example is the salmon industry, an industry from my state that has had to fight tooth and nail and which will have to continue to fight tooth and nail because now AQIS is considering opening up trade to New Zealand.They are all important activities in regional Australia. But I do not think they fit within this government's obsession with free trade at all costs. The costs of this obsession will be jobs in regional Australia. Of course, once the jobs in these industries go, so will the regional communities. That is a fear that I and this side of the chamber have. Now regional Australia is to be put under more pressure with the sale of all of Telstra. The key parts of Australia Post are also now going to be handed over to private interests. So regional Australia is under an extreme attack by this government.Both sides of this chamber, might I say, are committed to freeing up world trade. Of course we agree that our economic future depends on it. But it is only this side of the chamber, not the government, that is committed to ensuring that industries facing pressure of imports are able to adjust to the changing conditions and given a proper chance to do so and committed to fighting for jobs in regional Australia. The coalition is only interested in the big end of town.15:19:001887Ferguson, Sen AlanSenator FERGUSONEP5SALP10—I am not surprised that Senator O'Brien raised this issue. But I am surprised that anybody would ever consider writing to Senator O'Brien, being one of the pork producers, when you consider what their attitude was.8O6O'BRIENSenator O'Brien—Did they write to you? No!EP5Ferguson, Sen AlanSenator FERGUSON—I ask you, Senator O'Brien: who was it that signed those World Trade Organisation agreements?10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Senator Ferguson, address your remarks through the chair, please.EP5Ferguson, Sen AlanSenator FERGUSON—Madam Deputy President, I ask Senator O'Brien: who was actually responsible for signing these agree ments that we are currently working under? When Senator O'Brien says that this government is ignorant of the plight of the bush, he need not return his thoughts very far. He only needs to go back to the election in 1996. I ask, through you, Madam Deputy President, how many seats did the Labor Party actually win in the bush in 1996? That might give you an indication of what they think of your policies and of what you can do for the bush in Australia, Senator O'Brien. How many seats do you hold in rural and regional Australia, Senator O'Brien?5L6FERRISSenator Ferris—Is it one or two?EP5Ferguson, Sen AlanSenator FERGUSON—I think it is one; it may be two.ZS6QUIRKESenator Quirke—Three.EP5Ferguson, Sen AlanSenator FERGUSON—Three. That is for very good reason. Throughout the whole of the 13 years you were in government you did nothing but destroy rural and regional Australia. You referred to a meeting of the south-east regional convention of the Liberal Party in South Australia, which I was not at, Senator O'Brien, but naturally enough I received very good reports of what happened at that meeting.5K4FAULKNER Senator Faulkner—From Senator Ferris?EP5Ferguson, Sen AlanSenator FERGUSON—My colleague Senator Ferris was there. She was there because she knew that many of these issues would arise that day. One of the issues came from those two pork producers you talk of. I know of those two pork producers, because as well as writing to you, Senator O'Brien, I can promise you that they have written to both Senator Ferris and me.UI4RAYSenator Robert Ray—You didn't bring home the bacon, did you?EP5Ferguson, Sen AlanSenator FERGUSON—Senator Ray, the person who brought home the most bacon in this place was the former Prime Minister. He brought home a lot of bacon, and he did very well out of bringing home the bacon in his little piggery. I notice he has got out of it. Perhaps that is because he knew what the effects of his government signing World Trade Organisation agreements would be on his industry.But there are a number of critical issues that are affecting pork producers in Australia today. I speak with some experience, having been involved in the running of an intensive commercial piggery for over 25 years before coming into this place. The problems that are arising today have arisen over a long period when there has always been, as there always is in the production of primary products, cyclical price changes. It is not the first time that we have had an effect on prices from imported products.You know as well as I know that primary producers in Australia—and I know particularly in my own state of South Australia where we just happen to live in the driest state in the driest continent that is inhabited on earth—have to cope with these difficulties in a way that enables us to continue to be able to survive on the land. The pork producer has written to you, and to everybody else as well, because he wants to highlight the problem that currently exists because there is an influx of imported pork into Australia. I do not doubt, and I know from the friends that I have still in the industry, that it is having a very adverse impact on their industry.But what would you have us do? Would you have us renege on the agreements that we have made with the World Trade Organisation? Would you raise a tariff in order to stop this coming in? All you have done is complain and relate the information that these pork producers have given to you. You have not come up with one suggested solution. All you do is find the problems—no solutions. You know yourself that it is very difficult in respect of the agreements that we have signed. These are agreements which have enabled the primary produce sector to export to new markets goods and produce that we have never been able to export before—we can talk about navel oranges or we can talk about beef—all because of what I say is the good work when you were in government in making some progress at the GATT round of negotiations on behalf of the primary producers of Australia. So, what we are talking about here is one little hiccup—and there is a hiccup in relation to pork, and we all know that. We intend to do what we can by way of food labelling and other things which we have to bring into place.8O6O'BRIENSenator O'Brien—That was a priority in 1996!EP5Ferguson, Sen AlanSenator FERGUSON—Do not forget the $10 million export fund. On behalf of those who are involved in primary production, we know that these sorts of occasions arise throughout the whole of our lives as primary producers. We have overcome them in the past and we will overcome them in the future. (Time expired)15:24:001888Quirke, Sen JohnSenator QUIRKEZS6SAALP00—I want to thank the honourable senators who have spoken in this debate and who have cast quite a bit of light on this particular question. For someone such as myself who does not know very much about these things, I appreciate the advice that has been given by Senator Ferguson, in particular, who has had some years in this particular business.LI4PATTERSONSenator Patterson—Well why are you speaking on it if you don't know anything about it?UI4RAYSenator Robert Ray—It's never stopped you!ZS6Quirke, Sen JohnSenator QUIRKE—That is very right, Senator Ray. Senator Ferguson is a man who I respect and I think he has cast light on a number of issues. I am not talking about the piggery or pork production or anything like that. He has indicated that somebody has sent a letter to Senator O'Brien. I want to thank him for that because I was trying to find out where Senator O'Brien had found out about this stuff. As I understand it, a motion was passed at a Liberal Party convention by the South Australian division in the south-east. As I understand it, Senator O'Brien, it was a week last Saturday that this seemed to happen, and that you have had it leaked to you.EP5FERGUSONSenator Ferguson—Your information is pretty good, Quirkie.ZS6Quirke, Sen JohnSenator QUIRKE—Senator Ferguson has confirmed that it has come through. I just want to say that this is one of the few leaks that has not been drawn to my attention. I did not know about it until I came here today; normally, they come to me a bit sooner. I want to remonstrate with Senator O'Brien for not bringing the letter around and letting me have a look at it because I have got a good file on this stuff which I have had in South Australia for many years. In fact, at one stage, I remember one person suggesting that the South Australian Liberal Party division leaked at least as much as an average sized suburban toilet near a beach. In fact, the documents that have come through to the opposition, both here and in other places, particularly in South Australia, indicate that to be true.The other week we had a gag motion here where a number of us on this side were not allowed to defend Senator Bolkus who was wrongly accused and who in fact stood trial before a kangaroo court. When the defence was coming strong in his favour and the arguments were being won, a gag motion was rolled into this place which stopped us, amongst other things, from referring to the real leakers who occupy this particular place.Of course, one of the most famous incidents in recent times in this place—albeit before I got here—was the terrible travesty of justice that took place with poor old Senator Ferris. Indeed, what happened was a bunch of documents appeared in the middle of the night indicating to us a number of things about Senator Ferris and how she was not, and should not, be a senator in this place. As I understand it, the documents indicated a number of things which caused some distress for quite a while. I do not think there has been any argument that those documents came from members of the South Australian division of the Liberal Party.5F4CALVERTSenator Calvert—Madam Deputy President, I raise a point of order. I thought we were taking note of an answer regarding the dumping of pork. I want to know what Senator Ferris may or may not have done has got to do with the motion we are supposed to be taking note of.10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—The debate is normally fairly free ranging. I am sure that Senator Quirke will bring it back to the letter that Senator O'Brien received and other issues relating to the answer that was given by Senator Parer.ZS6Quirke, Sen JohnSenator QUIRKE—In fact, the particular incident I was talking about is highly relevant, because what we find in this place is that we get a plethora of material that comes in to us on a whole range of issues—the piggery is just the last of those particular issues. In fact, in the case of poor old Senator Ferris, I just want to say that—5L6FERRISSenator Ferris—Leave out the `old'! I might be poor; I'm not old.ZS6Quirke, Sen JohnSenator QUIRKE—That is true; I will leave out the old. I want to say that, in particular, one of the most impressive articles that came out at that time was a denial by Senator Vanstone—who I will come back to in a moment—that she had been the one who in fact had dobbed in Senator Ferris. An article in the Advertiser of 30 May 1996, was headed, `I'm no dobber, says Vanstone'. In terms of the piggery, I want to tell the Senate that I am sure that the letter that came to Senator O'Brien did not come from Senator Vanstone.UI4RAYSenator Robert Ray—Oh, good!ZS6Quirke, Sen JohnSenator QUIRKE—I am certain that is the case. It did not have the Gianni Versace wrappers that that stuff normally comes with. I also note a notice of motion given on 22 September last year by Senator Ray which indicated that Senator Vanstone would, in that instance, have had a conflict of interest because, as I understand it, she has moved into the pork business.UI4RAYSenator Robert Ray—Sirenuw Proprietary Limited.ZS6Quirke, Sen JohnSenator QUIRKE—In fact, she has invested in Sirenuw Proprietary Limited as a trustee of a pig trust. So I think it is very unlikely that Senator Vanstone was the source of this particular letter. However, I just want to say, in finishing, that I would have liked to have given my speech last week when I had at least another 40 articles to go through. (Time expired)15:29:001889Crane, Sen WinstonSenator CRANEUW4WALP10—I am delighted to join in this debate. At last we are actually dealing with a serious policy issue. Can I say, Senator Quirke, as you leave, that it is a pity you did not know something about the subject you were dealing with. I will give a little bit of gratuitous advice to the good senator, Senator O'Brien, who brought this issue before us from former Senator Peter Walsh, whom I happened to know a long time before I came into parliament because he was a fellow farmer. He said to me when I came here, `If you don't know the answer, don't ask the question.' That is a little tip to you on this, because the issue you raised here today, as Senator Ferguson pointed out, is a direct result of the World Trade Organisation agreements, the rules that were put in place by you, the previous government. As Senator Ferguson said, we gave you credit for it. The then Senator McMullan, former Senator Collins and others played a crucial part.It was also relevant that this issue should be raised in the Senate when the Cairns Group is meeting here at this particular time. At the time of the formation of the Cairns Group, when I was a delegate from Western Australia to the NFF, I was involved very closely, working with the former minister, Mr Kerin, in putting the Cairns Group together. There are some very important things that you ignore in terms of the question and the proposition you put here today, and that is for years and years Australia sought to have agriculture brought under the GATT rules and to have some rules put around agriculture. What has occurred in the pig industry is as a result of those rules. More importantly, you yourself raised the chicken industry, and the salmon industry—you put them on the table. The salmon industry in Tasmania, Senator O'Brien's state, is far more protected today by the fact that those rules are there. It is worth noting in terms of this particular debate that the decision that was made not to allow uncooked salmon into Tasmania was as a result of a proper scientific process that was gone through under those rules and got the result which you were hoping for and Senator Calvert was hoping for on that. Because it is New Zealand now with an application, they are again going through the same set of rules.Let me take you to the chicken meat inquiry which former Senator Collins was on with me and others. I was the chair of that committee when we went through that. As a result of those rules, it was on scientific grounds that we were able to say that the cooked chicken meat regime would not work. It was thrown out on those grounds. You are absolutely right that there is further scientific work going on into the whole process, but that is how it should be. That is the best way for Australia as a trading nation to deal with these particular issues. I think it is very important when we have a serious debate like this that we acknowledge that. Up till now—and I hope it continues—there has been a bipartisan approach between the Labor Party and us on developing world trade for Australia and on imports. That is also very important to remember. I get very disappointed when I hear people try to make political points out of something as important as this where we have had a bipartisan approach. That approach is continuing, I hope, and it is very important that Senator O'Brien does recognise that particular aspect of this matter. Or is the Labor Party changing? Would they prefer to go back to the bad old days of non-tariff barriers? I do not think they would.8O6O'BRIENSenator O'Brien—That is not what I said.UW4Crane, Sen WinstonSenator CRANE—I acknowledge the interjection. I do not believe you would, but that is the proposition you are putting before us in the tenor of your question.We do not have a lot of time, but I do have the statement on the new anti-dumping measures in my hand, and I will table this document at the end of my contribution. It spells out very precisely what we are doing in that particular area. I would also acknowledge here that former Senator Button made the first interim step. We are making another step which is very important in terms of developing this whole aspect of the matter. Just to run through it, one of the little things is that we are doing away with the ADA and we are going to have one authority. One of the problems we had in dumping in this country is that we had two authorities dealing with anti-dumping. That is a very important reform in dumping and countervailing actions in this country. We see that the time is reduced to 155 days, which is another important reform. (Time expired)15:35:001890Ray, Sen RobertSenator ROBERT RAYUI4VICALP00—I suppose I should make a declaration of culinary interest before I proceed with my contribution to this debate. I must thank Senator Crane for his thoughtful contribution. It was one of the better ones that he has put down in the chamber. But he did not really answer Senator O'Brien's basic point, which is what is the minister doing about this—not just what the philosophy and the general approach is but how pro-active is this minister. I think you asked us, Senator Crane, to be consistent; having been in government and having adopted a set of policies, to be consistent when we are in opposition. That is a good point. But I can remember the blatant opportunism that we went through from 1993 to 1996 on these sorts of issues. I was subjected at estimates committee to an attack from one of your colleagues because the ADF may have—just may have—bought some imported pig products.UW4CRANESenator Crane—Never by me.UI4Ray, Sen RobertSenator ROBERT RAY—Never by you, not at all, because you have actually put your finger right on it, haven't you, Senator Crane? You are in here as a loyal member of the government putting a logical, coherent argument—I have not always accused you of that but I can today. And we have heard from the eminent South Australian Senator Ferguson again making a constructive contribution to this debate. And I suspect that Senator Calvert might get up in a moment and make an equally valuable contribution. What have they all got in common: a pre-eminent Tasmanian Liberal, an absolutely great South Australian Liberal and a senator who holds a position in Western Australia that his colleagues are trying to take off him and he is staying here—well done, Senator Crane. What is the missing element in the Senate? It is called the National Party. Where are they? This is a big issue: where are they all? Where is Senator Brownhill, the parliamentary secretary? Is he coming in to defend his minister? Is he coming in to represent the rural interests? No, he is absent without leave.5F4CALVERTSenator Calvert—No, he has got leave.UI4Ray, Sen RobertSenator ROBERT RAY—He has leave. I am sorry; he is absent with leave. He must be the only one away; nobody else could have been given leave.5F4CALVERTSenator Calvert—Senator McGauran has leave as well.UI4Ray, Sen RobertSenator ROBERT RAY—McGauran has leave as well, has he? Two down. Okay, where is Senator O'Chee? That's right; he is chasing up pre-selection in Queensland and preparing for a happy event that I wish him well in. So he is not available. It is down to Senator Sandy Macdonald or Senator Tambling from the Northern Territory to come in here and defend because we know who will not be in here to speak on pig meat matters. Who would that be, Senator O'Brien?8O6O'BRIENSenator O'Brien—Senator Boswell.UI4Ray, Sen RobertSenator ROBERT RAY—Senator Boswell. Give the man a kewpie doll. Where is Senator Boswell when this important matter is up? Why isn't he in here putting the National Party point of view? After all, in those few years before they won government Senator Boswell made a lot of big statements on imported chicken meat and salmon. Certainly imported pig meat was one of his big issues. He only left the estimates committee when I accused him of pork barrelling—then he actually left. But the fact is that time and time again they have raised those issues and now the National Party has gone missing in action.I again give credit to the Liberal Party of Australia for putting up eminent speakers on this particular debate who have articulated government policy and asked us to be consistent on this side of the chamber. I think Senator O'Brien would join me in giving them credit for those contributions. But the fact is: the National Party always used to say that they represented the rural producer. No longer. The moment they changed their name from the Country Party to the National Party they lost their soul and they no longer properly represent the rural areas. Only the Liberal Party and the Labor Party care about rural issues and are concerned about rural electorates. The National Party just use them as rotten boroughs and when critical issues come up in this chamber they refuse to front.15:39:001891Calvert, Sen PaulSenator CALVERT5F4TASLP10—Thank you, Senator Ray, for the invitation to say a few words on this. It is a pleasant change to come in here today and talk about something substantive and it just happens to be pigs. The last week or so all we have heard in this place is a heap of swill. It has been coming from that side of politics in relation to poor old Senator Parer, who has been under attack for the last couple of weeks for no reason whatsoever. I just presumed that today was going to be another repeat performance of that because that is all we seem to hear from the Labor Party. We do not hear the good news about what is happening out there in the country. The people out there who are listening today—and God help them if they are—expect better from their politicians than what they have been hearing in the last couple of weeks. At least today we have got onto an issue that is of some interest, particularly to those people in the bush. It is not an easy issue.As to the accusations against my colleagues in the National Party: the only reason Senator Brownhill is not here today is that he happens to be in Cairns representing the government at a very important conference regarding trade issues. He is there today and he will be there again tomorrow. Senator McGauran is representing Australia at a very important conference in Namibia. Senator Boswell is attending to very important matters in his office at the moment, I believe. Senator Sandy Macdonald is having discussions with the Taiwanese.Senator McGauran raised in this place on more than one occasion his concerns about importation of bacon from Canada. I can recall quite some time ago, when we were in opposition, that he complained about the fact that on a Qantas flight he was fed Canadian bacon. Our trade policies cut both ways. We cannot go out there and tell our trading partners that they cannot export to us and then expect them to receive our imports. The government has a good record on dealing with these matters. As a Tasmanian, I recall Senator Sherry, when he was the parliamentary secretary for agriculture and primary industries, coming down here and saying, `We are going to bring in this risk analysis on salmon.' End of story. I was there that day with Robin Gray—the Premier at the time—and I can remember the outrage from the industry. The fight started on that day. It has not been a political fight; it has been based on science. As Senator Crane said, it is based on science. Our policies are based on science. It is the only credible way you can fight these issues in the World Trade Organisation. To be fair to our trading partners we have to do it that way. That is exactly the same thing as what Senator Ferguson said about pork—we have to have credibility. Australia under this particular government, led by John Anderson and Tim Fischer, has credibility on trade issues, which is more than we can say about some of the things that happened in the past.It is amazing that pork should come up today. It is very interesting that we have not heard from those opposite anything about the real things that concern people in Australia. As was said earlier, we should be able to range far and wide in this answers to questions segment. I would like to draw the Senate's attention to the fantastic ABS job vacancy figures. We are talking about jobs—here we have private sector vacancies at 25 per cent higher than they were a year ago. They are at levels higher than we have seen in this country for many, many years. And what do we hear from the opposition over there? They come in here and start talking about pork. Let us face it, the major concern for the people out there is jobs for themselves and their families. What do we hear from this lot over here? Not one word about it.H15CAMPBELLSenator Ian Campbell—More people bringing home the bacon.5F4Calvert, Sen PaulSenator CALVERT—We are bringing home the bacon on jobs. I remember Mr Keating talking about bringing home the bacon. This government is bringing home the bacon on jobs. The best job vacancy figures in 25 years are out today. And that follows on the interest rate cuts yesterday—down to 7.2 per cent; the lowest they have been since 1970. They are the sorts of things that the people of Australia want to hear about. They are not really interested in the swill that has been going on here in the last few weeks. (Time expired)10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Order! The time for the debate has expired.15:44:001892Crane, Sen WinstonSenator CRANEUW4WALP10—In my contribution I offered to table these documents to do with the anti-dumping. Senator O'Brien nodded yes but I did not actually do it. So I seek leave to table these documents in regard to anti-dumping.15:45:001893O'Brien, Sen KerrySenator O'BRIEN8O6TASALP00—Madam Deputy President, I understand that the documents are described in a certain way. If they are the documents as advised then we will not object, subject to seeing them.Question resolved in the affirmative.Committees1893189318931893Calvert, Sen PaulSenator CALVERT5F4TASLP10—On behalf of Senator Abetz I present the report of the Senate Legal and Constitutional Legislation Committee on the Operation of the Special Benefit Provisions Relating to the Newly Arrived Residents Waiting Period, together with submissions and the Hansard record of proceedings.Ordered that the report be printed.5F4Calvert, Sen PaulSenator CALVERT—I seek leave to move a motion relating to the report.Leave granted.5F4Calvert, Sen PaulSenator CALVERT—I move:That the Senate take note of the report.5F4Calvert, Sen PaulSenator CALVERT—I seek leave to continue my remarks later.Leave granted; debate adjourned.189318931893Calvert, Sen PaulSenator CALVERT5F4TASLP10—On behalf of Senator Abetz I present the 11th report of the parliamentary Joint Committee on the Native Title and Aboriginal and Torres Strait Islander Land Fund on the Need for Amendments to the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, together with submissions and transcripts of evidence.Ordered that the report be printed.5F4Calvert, Sen PaulSenator CALVERT—I seek leave to move a motion relating to the report.Leave granted.5F4Calvert, Sen PaulSenator CALVERT—I move: That the Senate take note of the report.5F4Calvert, Sen PaulSenator CALVERT—In moving this motion I wish to advise that the report was only finalised and sent to the printer late last night. Limited copies of the report's recommendations are available now and printed copies of the report are expected to become available after dinner tonight.15:47:001893Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I have only just received the short summary of the recommendations associated with this report on the need for amendments to the Aboriginal and Torres Strait Islander Heritage Protection Act 1994. Checking back with my office, in fact it was the Greens (WA) who moved the motion during the debate on the Hindmarsh Island bill. It is ironic that the findings of this report—and it looks like there is a very substantial report involved—were tabled after the Hindmarsh Island High Court decision. It is also interesting that the original motion that was passed that the report of the committee be adopted actually asked that the committee report on or before the last day of sitting of 1997. Here we are, on 2 April 1998, and the report of the committee has finally been presented.It is also ironic that, on this day, we are likely to get the government's own amendment bill to the heritage act. Honourable senators will remember that, during the debate on the Hindmarsh Island bill, I brought up the issue of Justice Evatt's report. The recommendations on the whole issue of culturally appropriate ways of dealing with heritage issues, which approach the issue of fairness, could have dealt with some of the issues that had been so difficult for the Ngarindjerri women fighting their case. Guess what? It was too difficult for the government. It was going to take too long and they would have had to consult with the states.We have a bill, apparently now about to reach the Senate, and they have already dealt with another issue that they wanted to degrade. They wanted to reduce the rights under the heritage act, just like that. But, when we have a detailed study which indicates that there is a need—in many people's opinion, an urgent need—to change the heritage laws to enable people to fairly give evidence and to fairly present culturally sensitive material, it is too difficult. We get it several months late, after the Hindmarsh Island Bridge legal judgment has been brought down.It is obviously going to take me a while to look through the recommendations of this very long report. I believe it is extremely important. It speaks volumes for this government that this is the way they have done things. They have taken this amount of time on this issue, yet when they wanted to change things in the other direction it was able to be done just like that. It is just one of those other areas where the basic human rights of indigenous Australians are being eroded. We have had `buckets of extinguishment' and now we have their cultural values, by way of heritage protection for indigenous Australians, being threatened. Given that I asked to speak, I seek leave to continue my remarks later.Leave granted; debate adjourned.Miscellaneous1894189415:51:001894O'Brien, Sen KerrySenator O'BRIEN8O6TASALP00—Senator Crane, in taking note, asked for leave to table certain documents. Having seen the documents I can indicate that we are happy to grant leave.Committees18941894189410000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—The President has received a letter from the Leader of the Government in the Senate seeking a variation to the membership of the Economics References Committee.Motion (by Senator Ian Campbell)—by leave—agreed to:That Senator MacGibbon be discharged from the Economics References Committee. Bills1894Messages received from the House of Representatives agreeing to the amendments made by the Senate to the following bills: Social Security Legislation Amendment (Youth Allowance) Bill 1997 Productivity Commission Bill 1996 Taxation Laws Amendment Bill (No. 5) 1997 Bills189401894Consideration resumed.10000CHAIRMANThe CHAIRMAN—Order! The committee is considering the Trade Practices Amendment (Fair Trading) Bill 1997 (No. 2) and Democrats amendment No. 4 on sheet 848 moved by Senator Murray.15:53:001894Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—While Senator Schacht is coming to the chamber, I will conclude the remarks I was making just prior to 12.45 p.m., which related to the Democrats amendment. As I recall, I was just concluding my remarks on the point that `harshness of the result' was not only unnecessary but also a little contradictory in that, ultimately, the court will have to decide, based on all of the tests—including the common law tests that exist at the moment plus the new test we are putting in—what the result is. In many respects, having to judge the harshness, or even having to have any regard to the harshness, is against the interests of small business when you are trying to find it.You do not necessarily have to rely on the outcome being harsh; you really just need to meet some of those tests to prove that the outcome was unconscionable. The result of the unconscionable conduct could well be unfair, unjust or harsh. That would then lead the court to make a decision in relation to the remedy, be it an injunction or be it some remedy in terms of undoing a transaction—I presume they have the opportunity to do that—or be it the giving of a monetary award.15:55:001895Schacht, Sen ChrisSenator SCHACHT4J4SAALP00—Minister, are you saying that you believe that the `harshness of the result' in the amendment moved by the Democrats is covered anyway in the rest of the section of the bill which describes the issues the court has to take into account? I refer you to page 6 of the bill going into page 7. You say that if the Democrats amendment is not included, the determination of the issue of the `harshness of the result'—and that is the result of the unconscionable conduct, the oppressive conduct of which the small business is complaining—is covered in the definitions in 51AC(3)(a) down to 51AC(3)(k). Is that your argument?15:56:001895Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—No. I put an outline before lunch and I was just putting the last bit of it as you walked in. In my outline before lunch I said that my advice and understanding is that the concept of `unconscionable', as it has developed in the common law, includes the concept of `harsh' and `unfair', so it is already there. Also, once you look at all the other tests on pages 6 and 7 under 51AC(3) you have regard to all of these things.As for the result, some people would argue—and I would support the argument—that to have to have regard to the harshness of the outcome is unnecessary—in other words, the outcome does not need to be harsh; it could be lots of these other things. There may well be a harsh outcome and, if that is the case, the court will have a look at the outcome. The importance of the court's looking at the result is the remedy which it brings to bear, which may be an injunction, an unwinding of the transaction or a monetary award.15:57:001895Schacht, Sen ChrisSenator SCHACHT4J4SAALP00—This is one of the grey areas in this amendment. I would always bend towards an amendment that I thought strengthened the opportunities for small business to get a remedy and I think that is the intent of Senator Murray's amendment. However, I think the proof of the pudding is going to be in its eating with whatever the parliament puts into this legislation, particularly under proposed section 51AC—unconscionable conduct in business transactions. On balance, I would take the government's view at the moment, although I have to say that I have no doubt we are still going into new territory and that over a period of time it may well be necessary to revisit this clause.The one thing I do like about `harshness of the result' is that it is a term that I think the community generally would understand as a definition. `Harshness' is a word that a lot of people would understand more clearly than `unconscionable' in general language, but this is a legal document that we are dealing with. I take the parliamentary secretary's point that there is a lot of law already established about the meaning of `unconscionable' whereas there is not about `harshness of the result'. On that balance, therefore, we will stay with the government's position although, Senator Murray, emotionally I have some attachment to what is raised.15:59:001895Murray, Sen AndrewSenator MURRAY3M6WAAD00—I accept the decision of the committee. For the record, that phrase is plucked from recommendation 6.1 of the fair trading report. Many of those recommendations have been reshaped and wound into your own section, Parliamentary Secretary. One obvious example is their 2L which referred to the good faith of the parties. You have included that and so on. It was a specific intention to carry over one that was left out. I accept your reasons and understand them, but I do think if ever this section is revisited that we should have a look at some of the case law and see whether the harshness of the result was not, in fact, attended to.Amendment not agreed to.16:01:001895Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—Madam Chair, I am grateful that you have given me the call but in fact it will not be necessary for me to move my amendment. On the running sheet it is noted:NB GWA (1) above similar but not identical to Democrats (5) [sheet 848] below.In fact, Democrats amendment No. 5 incorporates all the points that are mentioned in Greens (WA) No. 1 so I will be supporting the Democrats amendment because it adds extra to the amendments that we were putting forward. The reason I would be doing this is that whilst we have the government dealing on retail tenancy and industry codes, the government has absolutely failed to deal in a similar way with a fundamental issue and that is the issue of the difficulties small business has in accessing justice. Again, the fair trading report specifically highlights this point of view and notes the example of a small business taking on Lend Lease. The small business would run out of money before any action got to court. No-one would want to get involved politically and the small business owner would be left broke and in even further despair.The provision of a legal action to address unconscionable conduct is next to useless in its current form. Yes, on paper the government can say, `There is a golden path of redress which we have built for you,' but is this a real remedy if small business cannot afford to commence an action? Small business owners generally do not have wads of money to throw into expensive litigation and top quality lawyers, and also do not have the time to be involved with inevitably drawn-out processes. Furthermore, isn't it ironic that with lots of drawn-out court cases in this country the only one we ask for extinguishment on is native title, but that is beside the point. They also do not have the time to be involved in inevitably drawn-out processes.Furthermore, we are dealing with commercial relationships. Often there is much greater advantage to both sides to come out of any dispute resolution process with the business relationship intact. The very nature of the adversarial system results in winners and losers. The alternative dispute resolution procedures provide a much wider scope for creating a mutually satisfying resolution. ADR procedures give proposed section 51AC some true teeth. ADR procedures give small business real access to justice, not just some pie in the sky promise of a remedy. Consequently, I urge the committee to support the ADR measures that are incorporated within the Democrats' amendments which I am sure Senator Murray will now be moving.16:04:001896Murray, Sen AndrewSenator MURRAY3M6WAAD00—I move:(5) Schedule 2, item 2, page 8 (after line 3), after subsection (4), insert:(4A) The Court must not make an order in respect of a contravention of this section unless the parties to the proceedings have attended a conference with a mediator to discuss the matter to which the proceedings relate.(4B) Subsection (4A) does not apply if : (a) either party has already sought to use the dispute resolution procedures set out in the applicable industry code; or (b) either party has already unsuccessfully engaged in or sought mediation with the other party; or (c) further delay in resolving the matter would result in substantial damage to the business of the applicant or the respondent such that the matter should be resolved without delay.(4C) The Court may, at the request of either party or of its own volition, terminate the mediation under subsection (4A) and proceed to determine the matter.(4D) For the purposes of assessing costs in relation to an action for a contravention of subsection (1), the Court may have regard to the good faith in which parties have participated in a conference under subsection (4A) or prior to the application being made.I thank Senator Margetts for her giving way on Democrats amendment No. 5 and I note for the record that I think we should regard this amendment as jointly moved by the Greens and us since it is the same. I cannot add much more to what Senator Margetts has said except that this sort of attempt to get away from the cost of litigation and the difficulties of litigation needs to be encouraged by the parliament as often as possible. I have sat as a tenant's representative on the Commercial Tribunal of Western Australia. I understand some of the methods and the needs that go with dispute resolution and how things should be resolved.It is vital, I think, when you have unequal parties in a contest, where a small franchisee is dealing with a large franchisor, a small tenant is dealing with a multinational or at least a national landlord, or where a small customer is dealing with a multinational supplier, that in those unequal battles there is some attempt to resolve them before really big money comes to bear in the litigious area.So we think this is actually a very helpful contribution to small business in lessening costs, in lessening aggravation, in lessening the fear of taking on the very big in these matters. I am glad that Senator Margetts of the Greens (WA) had the same thoughts and I appreciate the opportunity, therefore, to have moved amendment 5 on sheet 848.16:06:001897Schacht, Sen ChrisSenator SCHACHT4J4SAALP00—Senator Margetts, you are withdrawing your amendment in view of supporting Senator Murray's amendment. Is that correct?DX5MARGETTSSenator Margetts—My amendment is incorporated into his amendment.4J4Schacht, Sen ChrisSenator SCHACHT—Into his amendment, okay. Could I just ask a couple of questions to either Senator Murray or to the parliamentary secretary. Do we know whether the Reid report made similar recommendations about this mediation process?H15CAMPBELLSenator Ian Campbell—We actually picked it up in the franchising debate. We will check.H15Schacht, Sen ChrisSenator SCHACHT—Thank you. Secondly, I take it that the point of Senator Murray's and Senator Margetts's concern is that, if there are lengthy legal proceedings, et cetera, small business does not have the resources to fight the big end of town. Back in 1995, we reached agreement with the ACCC and announced that we would provide resources to the small business unit or office of the Trade Practices Commission, as it then was, now the ACCC. That enabled the TPC itself, if it thought a case good enough, to take that case on against the big end of town. I want to know whether that provision is still there and resources available so that, where a case is appropriate, the ACCC can do that.DX5MARGETTSSenator Margetts—Is that more of a test case?4J4Schacht, Sen ChrisSenator SCHACHT—No, not a test case. It is just a matter of the ACCC from time to time taking a case because small business cannot afford to. As I am advised, once the ACCC has established a test case, if it is a good test case and the ACCC wins it, they then get the precedent established. The big end of town may then well drop off trying to hold people out, knowing that the precedent has been established. I wonder whether the parliamentary secretary can give us any information in that area?I would raise one final issue. From my own involvement years ago on the cost of justice inquiry, I was very strongly in favour of alternate dispute resolution procedures in an attempt to get the cost of justice down—and this is a relevant area here. But one thing I do not want to do, in one sense, is implement a delaying process whereby, if it is a tenancy matter, the landlord can start going through a mediation process and use it to delay an outcome.After sitting through estimates hearings on these dreaded CoT cases for Telstra, even though there has been a mediation process now in place for several years, where Telstra—or, for that matter, either side—wants to, it can still delay endlessly and keep on going around and around, if it thinks it might lose the mediation. I am not sure that I want to vote for something whereby the mediation process can be used as a delaying device rather than for there to be a quick outcome, a decision from the court saying, `This is it.'16:10:001897Murray, Sen AndrewSenator MURRAY3M6WAAD00—I will just answer one specific question, and then the parliamentary secretary, I am sure, will follow up. Senator Schacht asked me whether the Reid report made any recommendations on dispute resolution. I have quickly flicked through, and I have found three instances—and there may be more. One was recommendation 3.3 on franchising, where it states:The legislation should provide for adequate disclosure documentation, the establishment of appropriate independent code administration bodies, and dispute resolution procedures funded through compulsory registration fees.That is one area where they have picked it up. Recommendation 5.1, talking about small business finance, states:The Committee recommends that small businesses be included in any client protection/dispute resolution programs established by the Treasurer . . . The third one I can find just with a quick flick through, and I think this might be the most relevant. It is in section 7, which is headed `Recommendations on access to justice and education'. Under 7.2 it states:The Committee recommends the Attorney-General explore with the States and Territories low cost options for improving small businesses accesses to legal tribunals for commercial disputes.There is one other, but that is all I can find for the moment. As I have said, there may be others.4J4SCHACHTSenator Schacht—The main one is 7.2, is it?3M6Murray, Sen AndrewSenator MURRAY—It is in 7.1. It states in 7.1(a):. . . to provide for mandatory pre-trial mediation of actions under the new Section 51AA, prohibiting unfair conduct in commercial transactions . . . So the Reid report specifically recommended that this happen. We believe the government has not done that. I do not recall, in the explanatory memorandum, the government explaining why it has not done it. And I think it is a significant omission. That is 7.1, page xxviii.16:13:001898Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—I would like to make a few comments. The government opposes the amendment. We have looked very closely at these recommendations and at alternative dispute resolution. I do not know whether honourable senators would have a copy of it, but I will certainly make it available to them; in fact, I will table page 5 of the exposure draft of the franchising code of practice from September 1997. This goes into dispute resolution, particularly in relation to franchising, and the government has encouraged the inclusion of alternative dispute resolution.4J4SCHACHTSenator Schacht—But that does not cover retail tenancies, does it?H15Campbell, Sen IanSenator IAN CAMPBELL—No, it does not. Retail tenancies obviously have to be dealt with at the state level. The Commonwealth has undertaken to encourage cheaper access or more reasonable access to justice by way of alternative dispute resolution mecha nisms at the state level—not only in terms of retail tenancies but also other small business disputes.Senator Schacht, to answer your specific question in relation to empowering the ACCC to take action in relation to misuse of market power, I draw your attention to the minister's speech in the other place, where he specifically says that the government will seek to achieve these objectives through a legislative amendment of the Trade Practices Act in four areas. He refers specifically to, and undertakes to bring in, a new provision which will allow the Australian Competition and Consumer Commission to take representative actions against misuse of market power.4J4SCHACHTSenator Schacht—It's a separate bill.H15Campbell, Sen IanSenator IAN CAMPBELL—It is, yes. That is under discussion. I think you would recognise from your own involvement that it is not a simple matter but it is being done. I am informed that it is in train.The dispute resolution mechanism is included in the franchising code of practice and I presume will be subject to whatever happens in the oil code. There would be dispute resolution mechanisms in that code and future codes. It does go down the line of what Senator Margetts and Senator Murray have been urging. I do not know whether it is necessary to read it all out. I will summarise it as quickly as I can so as not to delay the Senate's considerations. I know it is an important matter. It is a matter the government has given a lot of time to considering. Page 5 states:If a dispute arises between the parties then the parties must agree to undertake the following steps:(a) the complainant shall raise the matter with the other party setting out the background and issue in dispute and the outcome desired;(b) if the dispute is not resolved in accordance with clause (a), the parties shall make every effort to resolve the dispute fairly. In doing so each party agrees to use his/her/its best efforts to (1) clearly communicate the background leading to causing the dispute . . . They are the provisions that I guess an alternate dispute resolution should contain in mediation processes. At the encouragement of the government, that is in the franchising code of practice and will be in future codes. We believe that is the appropriate place to have it. As I have said, we have made a commitment to involving the ACCC in taking representative actions.Furthermore, we see a downside along the lines of what Senator Schacht has referred to, and that is adding another layer to this regulation. You can see that if you create alternative dispute resolution mechanisms there is an upside in terms of cost of justice but there can also be a downside in terms of justice delayed. If you give anyone access to something like this, big businesses will probably use it as a form of delay and the delay can often take place and send the small business out of business.The whole reason for strengthening the provisions in the Trade Practices Act—a historic increase in the powers under the Trade Practices Act specifically for small business—is to ensure that the legal remedy is just sitting there, that it is quite clear, that the tests are clear, so that people can access the Trade Practices Act quickly and the Federal Court can make a decision as quickly as possible. We believe we have the balance right here in making alternate dispute resolution mechanisms available where they are appropriate, committing to having the ACCC involved and, most importantly, ensuring that remedies to small business before the courts under this amended Trade Practices Act will be clear and readily available to small business.We think we have the balance right. As I have said—and I will try not to repeat myself too much—small business and their representatives are very supportive of the package going forward as it is without amendment. They do want access to these provisions and they want them by 1 July. Passage in its current form would be helpful. The government is developing an alternative dispute resolution awareness package for small business, and that will be made very widely available on the Internet and in paper format for those businesses who do not have access to the Internet. I presume, if I were in charge of this, I would be making sure that that paper would bring together things that are available for both the states and the Commonwealth. It was such a good idea that we have already adopted it.16:19:001899Schacht, Sen ChrisSenator SCHACHT4J4SAALP00—I thank the parliamentary secretary and Senator Murray for those comments and those questions I raised. On the previous amendment I thought there was a grey discussion and, on balance, I lent towards the government. Again, this is another grey area of discussion, but on the balance I lean towards Senator Murray's amendment. I believe the principles of alternate dispute resolution are very useful to enshrine.I turn to the general issue of having mandatory code arrangements. We have a commitment that there will be a franchising code but we do not have a commitment for other codes. That leads me to believe that in the retail area we do not know what the subsequent vote will be on some amendments in that area. That is the one where the most disputes keep occurring, as I can recollect and have seen from the evidence. I believe the Reid committee, on balance, has got this right: that there should be encouragement that there be alternate dispute resolution methods.I would hope that the court would not be so blind that if they could see that a major landlord was delaying the dispute resolution processes to a level that was denying justice or a reasonably quick remedy they would not intervene again and take over the case. I think that is clear in the amendment. I do agree, Minister, if this amendment does not get up, that what you have already put forward is a significant improvement. I also raise a general question. We are coming into this area where I think many of us agree that we are not quite sure in black-and-white terms of the outcome.It would be useful by the end of this debate in committee if the government could give us some understanding that within a year or so there would be a genuine review of the operation of this to give all the parties in the community a chance to come forward with their view about it. I agree that I cannot be 100 per cent confident that the proposals I am putting on behalf of the opposition will work out the way we hope they will, just as I do not think the government can. All we know is that we have made considerable progress with this bill. On balance, I lean towards Senator Murray's proposition. Question put: That the amendment (Senator Murray's ) be agreed to.16:26:00The committee divided. (The Chairman—Senator S. M. West)33Allison, L. Bartlett, A. J. J.Bishop, M. Bolkus, N.Bourne, V. Brown, B.Campbell, G. Carr, K.Collins, J. M. A. Conroy, S.Cook, P. F. S. Crowley, R. A.Denman, K. J.* Faulkner, J. P.Forshaw, M. G. Hogg, J.Lees, M. H. Lundy, K.Mackay, S. Margetts, D.McKiernan, J. P. Murphy, S. M.Murray, A. Neal, B. J.O'Brien, K. W. K. Quirke, J. A.Ray, R. F. Reynolds, M.Schacht, C. C. Sherry, N.Stott Despoja, N. West, S. M.Woodley, J.33Abetz, E. Alston, R. K. R.Boswell, R. L. D. Calvert, P. H.Campbell, I. G. Colston, M. A.Coonan, H. Crane, W.Eggleston, A. Ellison, C.Ferguson, A. B. Ferris, J.Gibson, B. F. Heffernan, W.Herron, J. Kemp, R.Lightfoot, P. R. Macdonald, I.Macdonald, S. MacGibbon, D. J.Minchin, N. H. Newman, J. M.O'Chee, W. G.* Parer, W. R.Patterson, K. C. L. Payne, M. A.Reid, M. E. Synon, K. M.Tambling, G. E. J. Tierney, J.Troeth, J. Vanstone, A. E.Watson, J. O. W.Cooney, B. Brownhill, D. G. C.Evans, C. V. McGauran, J. J. J.Gibbs, B. Knowles, S. C.* denotes teller(Senator Hill did not vote, to compensate for the vacancy caused by the resignation of Senator Bob Collins.)Question so resolved in the negative.16:30:001900Murray, Sen AndrewSenator MURRAY3M6WAAD00—Both opposition amendment No. 5 and Democrat amendment No. 6 on that sheet deal with definition. It might be better if we move on ahead of that.16:30:001900Schacht, Sen ChrisSenator SCHACHT4J4SAALP00—I certainly agree with Senator Murray on that. This is the issue that deferred clause 9 about the $1 million cut-off in the definition. We agreed to defer that until the end of the committee stage. So I think we should move on.10000CHAIRMANThe CHAIRMAN—We therefore move on to Democrat amendment No. 8.16:31:001900Murray, Sen AndrewSenator MURRAY3M6WAAD00—I move:(8) Schedule 2, item 2, page 9 (after line 5), at the end of section 51AC, add:(12) Subsections (7) and (8) cease to have effect at the end of 5 years after the commencement of this section.Although this does deal with the definition, we may deal with it now because this is a sunset clause. I should really refer to it as the MTAA clause. This says that at the end of five years proposed sections 7 and 8 in the bill, which are on page 8 of the bill, would fall away. In other words, the threshold would no longer exist and any business would be subject to these unconscionable conduct provisions.I think Senator Schacht's suggestion of a review is an excellent idea. It would obviously be open to the government of the day before the end of that five years to say, `We still wish to keep a threshold,' or, `Our review has thrown up some other things,' and to knock this over. But it has the effect, we hope, of concentrating the government's mind on the fact that after a number of years this unfair, unconscionable conduct provision will not just apply to those who fall within the definition.16:32:001900Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—I would just like to indicate that the Greens (WA) will be supporting Democrat amendment No. 8. I hope that has given the parliamentary secretary enough time to respond.16:32:001901Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—That is very nice of you, Senator Margetts, as usual. The government indicated in this morning's debate that this $1 million is available to be changed by regulation. I know that all parties—members of the Reid committee report; people like Senator Murray, Senator Margetts and Senator Schacht; and all the rest of us who take a close interest in small business matters—will keep a very close eye on how this works.We can change it by regulation. I am sure this matter will be reviewed far more regularly than the five years that the sunset clause envisages. I, on behalf of the government, in the Senate today have made it quite clear that we will be keeping a close watch on this. If the $1 million threshold for some reason is not effective, it will be altered. It will be altered by regulation and it will be able to be discussed in this chamber because it will be a disallowable instrument.16:33:001901Schacht, Sen ChrisSenator SCHACHT4J4SAALP00—I am often attracted to sunset clauses, mainly because they keep people on their toes. Whether it is in the bureaucracy or it is in the parliament, when you suddenly have the guillotine about to drop on you, you then get cracking on finding out what you are going to do. So there is an advantage with sunset clauses. On balance, though, I think in this act a sunset clause is probably not necessary, particularly in view of the fact that we now have clarified that the cut-off point of $1 million is a disallowable instrument and can be changed without legislation. I agree with the parliamentary secretary that this bill will continue to have the closest of scrutiny in its operation in the next few years—not the least by Mr Delaney and the MTAA, being one of the most effective small business organisations in Australia.The opposition will not support the amendment, although I do agree with some of the remarks made by Senator Murray. The parliamentary secretary has made some general remarks and of course the operation of this act will be under close scrutiny. It would be useful, if possible, before we ended this debate, if the parliamentary secretary could get from the minister an undertaking that maybe in two years time or in 2½ years time there will be a review by an appropriate parliamentary committee equivalent to the Reid committee, or a Senate committee or an independent committee separate from the parliament. I do not think it does any harm to the government's position or to our position to say that that will take place.The great advantage is that, if you, Parliamentary Secretary, indicate now that in 2½ years time there will be a transparent review of the operation of the act as carried here by the parliament this week, it means you can say to all those groups out there who have an interest, or an axe to grind or whatever, `Prepare your submission. In a couple of years time when we get some runs on the board or some wickets knocked over, whatever way you want to look at it, there is going to be a review and that is where you will put your view in an open, transparent process,' rather than having it come in dribs and drabs every couple of months when someone or some organisation that feels aggrieved makes representations.I am not suggesting this as an ambush or anything like that. I do not even request that you put it in the legislation—that there will be a review by a certain date; I think that is unnecessary. I can say on behalf of the opposition that, although this has not been to our shadow ministry in this form, we would be very supportive of the idea that, say, in two to 2½ years time there would be an independent review of the act on these provisions and that the Michael Delaneys of the world and others would have a chance to put it there in that review. I am sure that could be a way forward, on this particular amendment anyway. On the balance, the opposition will not support it. But we would be very supportive of a statement from the minister that there be some sort of a review process in about two to 2½ years.16:37:001901Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—The government has discussed this issue. Clearly, the implementation of the new act will be a matter that is, we have all agreed, closely followed by a range of organisations and parliamentarians. The government is envisaging a review. It would certainly need to be independent, but it could be by an independent expert, an expert panel or even a parliamentary committee. If we do not do it a parliamentary committee would do it anyway, I would hope.We were looking at a time frame. We thought that two years was probably a bit short; 2½ to three years is the sort of time frame we are looking at. The government is doing that and, in so far as I can make a representation on behalf of the minister, it is fair to say that that would occur in about that three-year time frame.Amendment not agreed to.16:38:001902Murray, Sen AndrewSenator MURRAY3M6WAAD00—I move:(9) Schedule 2, item 2, page 9 (after line 5), at the end of section 51AC, add:Note: The meaning of unconscionable is intended to be wider than in its common law usage and should be interpreted by reference to section 51AC as a whole.Item 9 is the addition of a note. I am somewhat attracted to notes. Over the last number of years our legislation has adopted this practice of adding notes to amplify or clarify the intention of the legislation. We as legislators are all aware of the limitations of notes, but notes never take from the intent of legislation; they always add to it.Senators would be aware, from the remarks made particularly by Senator Schacht and me earlier in the debate, of the fears we have that unconscionable conduct may continue to be narrowly defined by the judiciary. The government have been at pains to itemise their checklist of items under 51AC of those matters which they believe should be considered by the courts in reviewing unconscionable conduct in business transactions, but we want to be sure that the judiciary are aware of the intent of the legislature to ensure that `unconscionable' is not narrowly defined or narrowly viewed and that it must be viewed in reference to that section as a whole and not with regard to any particular clause within it.Accordingly, we have put in a note which we hope conveys that intention to the judiciary. The note would simply state what hopefully would be obvious but might not be to the judiciary:The meaning of unconscionable is intended to be wider than in its common law usage and should be interpreted by reference to section 51AC as a whole.We think that is relatively unexceptional and would hope that the government would support it.16:41:001902Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—During my second reading debate contribution I did mention that one of the concerns of the Greens (WA) was that there was a very narrow definition of unconscionable behaviour under the act and that we were in favour of supporting a broadening of the definition to make that fairer and access to remedy easier for small business. Therefore, I will be supporting this method of drawing to the attention of the judiciary the desire of the parliament for them to read that element more broadly.16:42:001902Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—The government believes that that would add a lot of uncertainty and impreciseness. To say that it is broader than the common law definition I guess is a statement of the fact that we are broadening it. We are broadening it to the extent that we are spending the best part of two pages of the bill buttressing the definition with what things can contribute to it.My reading of it and my memory of studying this is that it is not just to be one of these things; it has to be a number of things. So it can be taken as a whole or as a part. We are adding that the court could have regard to one of 10 different matters, including relative strengths of the bargaining positions; the result of the conduct engaged in by the supplier; the business consumer being required to comply with conditions that were not reasonably necessary for the protection of legitimate interests of the supplier; whether the business consumer was able to understand any documents; whether any undue influence or pressure was exerted; the amount for which and the circumstances under which the business consumer could have acquired identical or equivalent goods; the extent to which the supplier's conduct towards the business consumer was consistent with the supplier's conduct in similar transactions between the supplier and other business consumers; the requirements of an applicable industry code—so it brings in all of those codes, both mandatary and voluntary—and it goes on and on.So it significantly broadens the tests for unconscionable conduct, but it ensures that they are all relevant. The defect of the Australian Democrat amendment is that it broadens it out to infinity.16:44:001903Schacht, Sen ChrisSenator SCHACHT4J4SAALP00—Section 51AC? The note says `interpreted by reference to section 51AC'. You have 51AC as a new section which you have put in. The Democrat amendment says that the definition of `unconscionable' is to be covered by the definition of what we have here in 51AC. So the court, in looking at the operation if someone is taking an action under unconscionable conduct, will say that the meaning of `unconscionable conduct' is covered in all of 51AC.Is there a definition of `unconscionable' somewhere else in the Trade Practices Act? There is not. An adviser is shaking his head saying no. I accept his help. As I understand it, `unconscionable' is not defined in the Trade Practices Act. It is common law usage, which is the phrase Senator Murray has used.Therefore, I do not think it is unreasonable to say that you have a common law definition of common usage. One might even say that that is a wider definition. But by being such a wide definition it is actually implemented in a very restrictive way. What we have here is confining it to the areas of our concern, of activity in business transactions as they affect small business.It seems to me that there is something quite reasonable about this definition going in. I would point out that the heading of 51AC just says `Unconscionable conduct in business transactions'. The court then has to go off to common law usage—I presume by prece dent—to find out what the term `unconscionable' in the heading of 51AC means. I presume there is no definition at the front of the act of `unconscionable' at all, is there?H15CAMPBELLSenator Ian Campbell—No.4J4Schacht, Sen ChrisSenator SCHACHT—Therefore, the opposition is attracted to the amendment the Democrats have forwarded. I know there will be hundreds of QCs and lawyers jumping up and down about what this means and saying that this may be too radical. I accept what you say—that what could happen has all been listed. How can this meaning of `unconscionable', which says it is restricted to 51AC, make it more difficult for the court?16:47:001903Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—If you read the note carefully, as we have done, it says that the meaning of `unconscionable conduct' is intended to be wider than its common law usage and that it should be interpreted by reference to section 51AC. The court is already required by the law, if it gets passed into law, to have regard to those matters that I have been picking out like a lucky dip.3M6MURRAYSenator Murray—No, it says it `may have regard' to those.H15Campbell, Sen IanSenator IAN CAMPBELL—Yes, it may have regard to those things. It draws attention to all of those things; it may have regard to those things. What the amendment that is before us says is that you basically take the common law meaning of `unconscionable' which we are saying is in the common law. We have not sought, by definition, to make it narrower or wider. It is part of the common law. We have said that the court may have regard to all of these other matters. What the amendment is saying is that the meaning of unconscionable is intended to be wider than its common law usage.4J4SCHACHTSenator Schacht—But only with reference to 51AC.H15Campbell, Sen IanSenator IAN CAMPBELL—No, it says `and should be interpreted by reference to section 51AC as a whole'.4J4SCHACHTSenator Schacht—Yes. That is the definition. H15Campbell, Sen IanSenator IAN CAMPBELL—You could argue, if you are a small businessman, if you had to look at 51AC as a whole, that you are actually narrowing the potential for it. What we are trying to do is to give the court guidance in relation to the unconscionable conduct and to say, as it says at the beginning of 51AC(3):Without in any way limiting the matters to which the Court may have regard for the purpose of determining whether a corporation or a person . . . has contravened sections (1) or (2)—which are above it—. . . the Court may have regard to . . . So it is giving it very clear guidance. But we contend that putting in a note such as this would be an absolute lawyer's breakfast. They would love this. They are just basically saying that you can make—4J4SCHACHTSenator Schacht—They have not done too badly out of `unconscionable conduct' already!H15Campbell, Sen IanSenator IAN CAMPBELL—I know. That is right. They have done well from this parliament in the last few years with native title and this. It really is creating a feast. It is just saying that `unconscionable' can be as wide as you want and you can have reference to 51AC.What you are trying to do with this is to say to small businesses, `This is your new remedy. This is something for you to pick up to take the unconscionable conduct to court. It is going to be a lot clearer and more assessable than it was in the past.' We have tried to ensure that there is a very clear guide there, that it is easily understandable and that it is in very plain English so that even bush lawyers like me can understand. What this would do would be to make it nebulous. We do not want this to be nebulous; we want it to be quite clear. The government is very strongly opposed to this amendment.16:51:001904Murray, Sen AndrewSenator MURRAY3M6WAAD00—That is exactly the point. We know that headings have no force at law, and we know that you cannot instruct the judiciary—that is why the words used there are `may have regard to'. We also know that any case brought to court may indeed only focus on part of 51AC—it may be brought with reference to part or parts. It is unlikely that all or most cases will be brought with reference to the entire list of possibilities. That being so, there is the fear amongst some small business organisations that what the government has produced is a Clayton's bill. In other words, because it is focused on unconscionability, the real need of small business to have unfair conduct in business transactions reduced—and significantly reduced—will not result. I am prepared to give the government the benefit of the doubt. I do not believe that it is a Clayton's bill. But there is the danger and the thought that, because of the way in which the judiciary has previously dealt with unconscionability in law, they will continue to have a very narrow definition and that they will not significantly advance the cause which this bill is meant to serve.That being so, it is intended for the court to have regard to the fact that unconscionability must be regarded in a broader sense than in its current case law form. As a guidance to the court, the way in which they should look at it in a broader sense is to interpret it by reference to section 51AC as a whole. In other words, unconscionability should not be related to just a paragraph or a section out of 51AC. We think that is helpful in enlarging the possibilities within section 51AC. The parliamentary secretary is quite right: it does serve to increase the opportunities afforded to small business under section 51AC. I do not think it is a major increase, but it certainly will make it more possible for them to get a better outcome under this section, and it is for that reason that I have moved the amendment.16:54:001904Schacht, Sen ChrisSenator SCHACHT4J4SAALP00—I want to draw the attention of the parliamentary secretary and the committee to paragraph 64 on page 159 of the Reid report. It states:In relation to these concepts—these concepts of unconscionable conduct—Toohey J in Louth v Diprose 1992 had this to say: `Although the concept of unconscionability has been expressed in fairly wide terms, the courts are exercising equitable jurisdiction according to recognised principles. They are not armed with a general power to set aside bargains simply, because in the eyes of the judges, they appear to be unfair, harsh or unconscionable.'What I am concerned about—and I think this is why Senator Murray's amendment is attractive—is that, because there is this general common law usage definition, the judges—and I am not criticising the judges—are actually taking a conservative view about the use of the phrase `unconscionable conduct', and I think the quote I have just read out makes that point.By taking up the Democrats' amendment, I think we will be making it clearer what we mean by unconscionable conduct. Judges will be guided by section 51AC and they will, therefore, be able to take decisions on matters not just because they appear to be unfair, harsh or unconscionable, but because this is covered in section 51AC. I think that is going to give a better remedy to small business.After quickly glancing through this section of the Reid report, I commend the members of the committee on their work on the description and usage of unconscionable conduct. It is as good as any I have seen, and I think it makes the point of why the Democrat amendment has something to commend it here in this debate. Question put: That the amendment (Senator Murray's ) be agreed to.17:00:00The committee divided. (The Temporary Chairman—Senator J.P. McKiernan)32Allison, L. Bartlett, A. J. J.Bishop, M. Bolkus, N.Bourne, V. Brown, B.Campbell, G. Carr, K.Collins, J. M. A. Conroy, S.Cook, P. F. S. Crowley, R. A.Denman, K. J.* Faulkner, J. P.Forshaw, M. G. Gibbs, B.Hogg, J. Lundy, K.Mackay, S. Margetts, D.Murphy, S. M. Murray, A.Neal, B. J. O'Brien, K. W. K.Quirke, J. A. Ray, R. F.Reynolds, M. Schacht, C. C.Sherry, N. Stott Despoja, N.West, S. M. Woodley, J.33Abetz, E. Alston, R. K. R.Boswell, R. L. D. Calvert, P. H.Campbell, I. G. Chapman, H. G. P.Colston, M. A. Coonan, H.Crane, W. Eggleston, A.Ellison, C. Ferguson, A. B.Ferris, J. Gibson, B. F.Heffernan, W. Herron, J.Kemp, R. Lightfoot, P. R.Macdonald, I. Macdonald, S.MacGibbon, D. J. Minchin, N. H.Newman, J. M. O'Chee, W. G.*Parer, W. R. Patterson, K. C. L.Payne, M. A.Reid, M. E.Synon, K. M. Tambling, G. E. J.Troeth, J. Vanstone, A. E.Watson, J. O. W.Cooney, B. Brownhill, D. G. C.Evans, C. V. McGauran, J. J. J.Lees, M. H. Knowles, S. C.McKiernan, J. P. Tierney, J.* denotes teller(Senator Hill did not vote, to compensate for the vacancy caused by the resignation of Senator Bob Collins.)Question so resolved in the negative.17:04:001905Schacht, Sen ChrisSenator SCHACHT4J4SAALP00—I move:(7) Page 9 (after line 7), at the at the end of the bill, add:Schedule 3—Amendments relating to a Uniform Retail Tenancy Code Trade Practices Act 19741 Paragraph 80(1)(a): Repeal the paragraph, substitute: (a) a contravention of a provision of Part IV, IVA, V or XIAA.2 After subsection 80(1) Insert: (1AB) An application for an injunction on the grounds of: (a) a person's actual, attempted or proposed contravention of Part XIAA, or (b) a person's actual, or proposed involvement in a contravention of Part XIAA; may only be made by (c) the Minister, or (d) the Commission, or (e) a lessor or a lessee (in respect of a retail shop lease or a service station lease to which the lessor or the lessee is a party). (1AC) An application for an injunction in respect of actual, attempted or proposed contravention of Part XIAA, or in respect of a person's actual or proposed involvement in such a contravention must not be made unless a Retail Lease Tribunal has certified, as provided for in section 148, that reasonable steps have been taken to resolve the matter in dispute but that the matter has not been resolved.3 Subsection 82(1) After "Part IV or V" insert: "or, subject to subsection (4), Part XIAA".4 After subsection 82(1) Insert: (1A) A person who suffers loss or damage by conduct by another person that was done in contravention of Part XIAA must not take action to recover the amount of the loss or damage unless a Retail Lease Tribunal has certified, as provided for in section 148, that reasonable steps have been taken to resolve the matter in dispute but that the matter has not been resolved.5 Section 83 Omit "or V", substitute ", V or XIAA".6 Subsection 84(1) Omit "or V", substitute ", V or XIAA".7 Subsection 84(3) Omit "or V", substitute ", V or IVAA".8 Subsection 86(2) Omit "or Division 1 of 1A of Part V", substitute ", Division 1 or 1A of Part V, or Part XIAA".9 Paragraph 86A(1)(a) Omit "or Division 1 of 1A of Part V", substitute ", Division 1 or 1A of Part V, or Part XIAA".10 Paragraph 86A(4)(a) Omit "or Division 1 of 1A of Part V", substitute ", Division 1 or 1A of Part V, or Part XIAA".11 Paragraph 86A(5)(a) Omit "or Division 1 of 1A of Part V", substitute ", Division 1 or 1A of Part V, or Part XIAA". 12 Subsection 87(1) Omit "or V", substitute ", V or XIAA".13 Subsection 87(1A) Omit "or V", substitute ", V or XIAA".14 Subsection 87(1C) Omit "or V", substitute ", V or XIAA".15 Subsection 87(1D) After "IVA" insert "or XIAA".16 After Part XI Insert:Part XIAA—Uniform Retail Tenancy CodeDivision 1—Preliminary130 Objects of Part The principal objects of this Part are: (a) to provide fairness and equity throughout Australia in respect of retail shop leases and service station leases; and (b) to ensure that as far as practicable certain specified conditions apply throughout Australia in respect of retail shop leases and service station leases.131 Saving of other laws and remedies (1) This Part is not intended to exclude or limit the concurrent operation of any law in force in a State or Territory. (2) This Part is not to be taken to limit, restrict or otherwise affect any right or remedy a person would have had if this Part had not been enacted.132 Interpretation In this Part, unless the contrary intention appears: disclosure statement means a statement, in written form, prepared by or on behalf of an existing lessee, setting out details relating to a retail shop lease or service station lease to which the lessee is a party, including: (a) details of the financial position of the business associated with the lease, including details of creditors and debtors at the time the disclosure statement is prepared; (b) details of rent payable by the lessee and any related factors; (c) any existing or anticipated obligations or commitments associated with the lease in respect of finishes, fixtures, fittings, equipment or services for which the lessee is responsible; (d) details of any commitments or responsibilities of the lessee in respect of outgoings; (e) details of conditions under which the lessor could withhold agreement to the assignment of the lease; and (f) such other details as are prescribed by the regulations. lessee means a person who has the right to occupy a retail shop or service station under a retail shop lease or a service station lease, and includes a sub lessee and a lessee's or sublessee's heirs, executors, administrators and assigns. lessor means a person who grants or proposes to grant a right to occupy a retail shop or a service station under a retail shop lease or a service station lease, as the case requires, and includes a sublessor and a lessor's or a sublessor's heirs, executors, administrators and assigns. market rent of a retail shop or service station at any time is the rent that, having regard to the terms and conditions of the lease and such other matters as are relevant to the assessment of the rent, would be reasonably expected to be paid for the shop if it were unoccupied and offered for renting for the use or uses to which the shop may be put in accordance with the lease. outgoings means a lessor's outgoings in respect of land, buildings or areas on which a retail shop or service station is located, on any of the following: (a) the expenses of operating, repairing or maintaining the building; and (b) rates, taxes, levies, premiums or charges payable by the lessor because the lessor is the owner or occupier of any building or the land on which it is erected; and (c) the expenses of promotion, advertisement or marketing payable by the lessor; and (d) such other matters as are prescribed by the regulations. retail shop means premises that: (a) are used wholly or mainly for the carrying on of one or more of the business specified in Schedule 2; or (b) are used for the carrying on of any business (whether or not a business specified in Schedule 2) in a retail shopping centre. retail shop lease means an agreement under which a person grants or agrees to grant to another person for value a right of occupation of premises for the use of the premises as a retail shop: (a) whether or not the right is a right of exclusive occupation; and (b) whether the agreement is express or implied; and (c) whether the agreement is oral, in writing, or partly oral and partly in writing. retail shopping centre means a group of premises with the following attributes: (a) at least 5 of the premises are used wholly or predominantly for the carrying on of one or more of the businesses specified in Schedule 2; and (b) the premises are all owned by the same person or corporation or have (or would, if leased) the same lessor or the same head lessor; and (c) the premises are located in the one building or in 2 or more buildings that are either adjoining or separated only by common areas or other areas owned by the owner of the retail shops; and (d) the group of premises is promoted as, or generally regarded as, constituting a shopping centre, shopping mall, shopping court or shopping arcade. service station means premises used mainly for the sale to the public of petrol and other products or services in connection with the use of motor vehicles. service station lease means an agreement under which a person grants or agrees to grant to another person for value a right of occupation of premises for the use of the premises as a service station: (a) whether or not the right is a right of exclusive occupation; and (b) whether the agreement is express or implied; and (c) whether the agreement is oral, in writing, or partly oral and partly in writing. small business means a business in which fewer than 20 persons are employed. tenancy mix , in relation to a retail shopping centre, means the number and proportion of different shops operating in, or proposed by the lessor to operate in, the shopping centre.Division 2—Uniform retail tenancy code133 Retail shop leases and service station leases not to be contrary to uniform retail tenancy code (1) A corporation must not enter into a retail shop lease or a service station lease with a person or with another corporation if any provision of the retail shop lease is contrary to the uniform retail tenancy code provided for in this Division. (2) A person must not enter into a retail shop lease or a service station lease with a corporation if any provision of the retail shop lease is contrary to the uniform retail tenancy code provided for in this Division. (3) This section does not apply to any of the following leases: (a) leases for a term of less than 6 months; (b) leases entered into before the commencement of this section; (c) leases in respect of retail shops not operating as small businesses; and (d) any other lease of a kind prescribed by the regulations as exempt from this section.134 Minimum term of retail shop and service station leases (1) The term for which a retail shop lease or a service station lease is entered into must not be less than 5 years. (2) Any further term or terms provided for by agreement or option for the acquisition by the lessee of a further term as an extension or renewal of the lease is not to be counted for the purposes of subsection (1). (3) If a lease is entered into in contravention of this section, the validity of the lease is not thereby affected but the term of the lease is extended by such period as may be necessary to prevent the lease contravening this section. (4) This section does not apply to a lease if a lawyer acting for the prospective lessee issues a certificate in writing that he or she has, explained the effect of subsections (1), (2) and (3) to the prospective lessee and explained that the giving of the certificate will result in this section not applying to the lease.135 Lease renewals (1) When a retail shop lease or a service station lease expires the lessee (the existing lessee ) must be given the opportunity to renew the lease for a period of at least 5 years. (2) Where a lease which has been renewed for a period of at least 5 years expires, the lessee (the existing lessee ) must be given the opportunity to renew the lease a second time for a period of at least 5 years. (3) For the purposes of subsections (1) and (2) an existing lessee must be given notice in writing by the lessor of the opportunity to renew a lease or a renewed lease at least one year before the lease or the renewed lease is due to expire, unless the lessee and the lessor agree in writing that a shorter period of notice may be given. (4) A lessee who receives a notice under subsection (3) must inform the lessor, in writing, within 3 months of receiving the notice whether the lessee wishes to renew the lease or the renewed lease, unless the lessee and the lessor agree in writing that a shorter period may be allowed. (5) A lessor must not approach, directly or indirectly, any other person (a prospective lessee ) with a view to offering the prospective lessee the opportunity to become a party to a lease in respect of the premises or retail shop or service station to which the existing lessee has a right to renew under subsection (1) or (2) until: (a) the existing lessee has indicated that he or she does not wish to renew the lease; or (b) the period allowed by or under subsection (4) has expired. (6) If a lease is renewed in contravention of this section, the validity of the renewed lease is not thereby affected, but the term of the renewed lease is extended by such period as may be necessary to prevent the renewed lease contravening this section. (7) This section does not apply to a renewed lease if a lawyer acting for the lessee issues a certificate in writing that he or she has explained the effect of subsections (1), (2), (3), (4), (5) and (6) to the lessee and explained that the giving of the certificate will result in this section not applying to the renewed lease.136 Lease assignment (1) An existing lessee must not agree to assign a retail shop lease or a service station lease to another person (the prospective new lessee ) unless the lessee provides a disclosure statement concerning the lease to the prospective new lessee. (2) If the lessee, the prospective new lessee and the lessor agree, the prospective new lessee may be given a new lease instead of an existing lease being assigned to the prospective new lessee.137 Standard set of lease provisions (1) As soon as practicable after the commencement of this section, the Minister must consult with such persons as the Minister considers appropriate in order to assist in the formulation of a set of standard retail shop and service station lease provisions which will: (a) reflect the requirements of this Division; and (b) be as easily understood by lessees and lessors as possible. (2) As soon as possible after the consultations required by subsection (1) have been completed, the Minister must approve a set of standard retail shop and service station lease provisions which the Minister considers will meet the requirements of paragraphs (1)(a) and (b). (3) The Minister must take reasonable steps to ensure that copies of any provisions approved under subsection (2) are available to lessees and prospective lessees and lessors and prospective lessors.138 Pre-contract disclosure (1) Before a person or a corporation (the prospective lessee ) is invited to enter into or offered the opportunity of entering into a retail shop lease or a service station lease, the lessor must make available to the prospective lessee: (a) a copy of the proposed lease (in written form, but not necessarily including particulars of the lessee, the rent or the term of the lease); and (b) details of the means by which it is proposed that rent for the lease would be calculated; and (c) details of any finishes, fixtures, fittings, equipment or services proposed to be provided by or made the responsibility of the lessee; and (d) details of any finishes, fixtures, fittings, equipment or services proposed to be provided by or made the responsibility of the lessor; and (e) details of any specific requirements proposed by the lessor in respect of: (i) hours of trading; and (ii) access outside of trading hours; and (f) the date on which the area or facility proposed to be made available by the lessor will be available for occupation by the prospective lessee; and (g) details of any existing or proposed requirements of the lessor in respect of the maintenance, renewal or possible alteration of the area or facility covered by the proposed lease; and (h) details of any existing or proposed outgoings by the lessor for which the lessee may be charged, including out goings in respect of promotion, advertising and marketing; and (i) details of the conditions under which the lessor could withhold agreement to the assignment of the lease; and (j) details of the ways in which the lessee will be compensated for the direct or indirect costs of any compulsory fitout, refurbishment, relocation or disturbance affecting the lessee which may occur during the term of the lease; and (k) such other details as are prescribed by the regulations. (2) In addition to meeting the requirements of subsection (1), in respect of a lease in a retail shopping centre, the lessor must make available to a prospective lessee details of: (a) the existing tenancy mix of the shopping centre; and (b) the way in which lessee will be compensated for any loss or damage suffered by the lessee as a result of a change in the tenancy mix of the shopping centre where the change is made by, on behalf of or at in request of the lessor.139 Market rent review (1) A review of the market rent of a retail shop or a service station may only be made in connection with the proposed renewal or extension of a lease. (2) A market rent review may only be made by an independent valuer agreed between the lessee and the lessor. (3) An independent valuer undertaking a market rent review may have regard to rent concessions and other benefits that are generally or frequently offered to prospective lessees of unoccupied retail shops or service stations. (4) An independent valuer undertaking a market rent review may not have regard to the value of goodwill created by the lessee's occupation and the value of the lessee's fixtures and fittings on the retail shop or service station. (5) If, having received advice from an independent valuer, the lessor and the lessee do not agree as to what the actual amount of the rent is to be, the amount of the rent is to be determined by valuation carried out by a person appointed by agreement between the parties to the lease or, failing agreement, appointed by the person for the time being holding or acting in the office of President of the Australian Institute of Valuers and Land Economists. (6) For the purposes of subsection (5) a valuation is to be a speaking valuation (that is, the valuer must give detailed reasons for his or her determination and must specify the matters to which he or she has had regard in making the determination). (7) In respect of a market rent review of a retail shop lease in a retail shopping centre, the lessor must make available to a valuer appointed under subsection (2) or (5) details of rents received and concessions or rebates allowed or made in respect of each retail shop in the centre. (8) A valuer provided with information under subsection (7) by a lessor must not divulge or communicate information about rents paid by other lessees to any other person other than with the agreement of the lessor. Penalty: 200 penalty units (9) The lessor and the lessee must share equally the costs of the valuation or valuations obtained under this section. (10) If the lessor and the lessee agree in writing in respect of rent to be payable on renewal or extension of a lease, the procedures set out in subsections (1) to (9) do not need to be followed.140 Disturbance to trading (1) The retail shop lease for a retail shop located in a retail shopping centre must contain details of the way in which the lessee will be compensated for any disturbance to trading caused by redevelopment, refurbishment or alterations carried out at the direction of or on behalf of the lessor. (2) Where the lessor and the lessee agree in writing, the requirements of subsection (1) need not be met in respect of a retail shop lease in a retail shopping centre.141 Retail tenancy mix (1) The retail shop lease for a retail shop located in a retail shopping centre must contain details of the way in which the lessee will be compensated for any loss or damage suffered by the lessee as a result of a change in the tenancy mix of the shopping centre. (2) Where the lessor and the lessee agree in writing, the requirements of subsection (1) need not be met in respect of a retail shop lease in a retail shopping centre.142 Merchants' associations to be consulted Where a merchants' association exists in respect of a retail shopping centre, the lessor must take reasonable steps to confer with the association on: (a) any possible changes to the tenancy mix and any other matter affecting the operation, or future operation, of the shopping centre and the retail shops operating in it; and (b) expenditure proposed to be made on outgoings in respect of the retail shopping centre.143 Statements of outgoings (1) As soon as practicable after the conclusion of each 3 month period, a lessor must provide to a lessee a detailed statement, in writing, of any expenditure on outgoings during that period in respect of which the lessee has been or will be charged or asked to contribute. (2) As soon as practicable after the at the end of each financial year, a lessor must provide a detailed statement, in writing, of expenditure on outgoings during that year in respect of which the lessee has been or will be charged or asked to contribute (3) A statement provided under subsection (2) must be prepared by a registered company auditor (within the meaning of the Corporations Law) and be in accordance with accounting standards (within the meaning of the Corporations Law).144 Dispute resolution provisions in leases In order to ensure that, to the maximum extent possible, disputes arising in respect of retail shop and service station leases are resolved in a manner which is fair, just, economical, informal and quick, a retail shop lease or a service station lease must contain dispute resolution provisions designed to achieve those objectives.Division 3—Enforcement 145 Retail Lease Tribunals to be established (1) As soon as practicable after the commencement of this section, the Minister must consult with State and Territory Ministers with a view to reaching agreement on the establishment of Retail Lease Tribunals in each State and Territory. (2) The objective of a Retail Lease Tribunal is to ensure that, to the maximum extent possible, disputes arising in respect of the compliance of retail shop and service station leases with the requirements of Division 2 are resolved in a manner which is fair, just, economical, informal and quick. 146 Application to Retail Lease Tribunal (1) A lessee or a lessor may bring a matter concerning a retail shop lease or a service station lease to which the lessee or the lessor is a party before a Retail Lease Tribunal. (2) A matter cannot be brought before a Retail Lease Tribunal under this section unless it concerns the compliance of a retail shop lease or a service station lease, or the compliance, directly or indirectly, of the actions of a party to such a lease, with the requirements of Division 2. (3) A lessee or a lessor bringing a matter before a Retail Lease Tribunal under this section must do so in writing and must set out the particulars in which the person considers that there is or has been a breach of the requirements of Division 2. (4) An application under this section must be made within 3 months after the date on which the cause of the complaint occurred. (5) The regulations may prescribe: (a) matters to be covered in applications under this section; and (b) the form in which applications may be made.147 Consideration of matters by Retail Lease Tribunal (1) When a Retail Lease Tribunal receives an application under section 146 from a party to a lease it must make a copy of the application available to the other party to the lease and to such other persons as it considers appropriate. (2) When a Retail Lease Tribunal has given each party to a lease a reasonable opportunity to consider the matter, it must take steps, by mediation or conciliation, to help the parties to the lease to resolve the dispute. (3) In considering applications under this Division, a Retail Lease Tribunal must consider the provisions of the retail shop lease or the service station lease which is the subject of the application, or the actions the subject of the application, with regard to the requirements of the uniform retail tenancy code set out in Division 2. (4) A Retail Lease Tribunal may, in seeking to resolve a dispute by mediation or conciliation, issue to the parties to the dispute, proposals in writing, for the resolution of the dispute. (5) The regulations may prescribe details of the way in which Retail Lease Tribunals must operate.148 Action where recourse to Retail Lease Tribunal has not resolved dispute (1) Where a person has brought a matter concerning a retail shop lease or a service station lease before a Retail Lease Tribunal but the matter has not been resolved, the person may, subject to subsection (2), take action under section 80 or 82. (2) Where a Retail Lease Tribunal has considered and taken steps to resolve a dispute concerning a retail lease or a service station lease but the dispute has not been resolved, the Retail Lease Tribunal may, if so satisfied, certify that reasonable steps have been taken to resolve the dispute but that the matter has not been resolved.17 At the end of the Act Add:Schedule 2—Retail shop businessesAntique shopsArt galleriesArt supplies shopsArts and crafts shopsBarbecue equipment shopsBarbersBeauty therapistsBeauty shopsBeach wear shopsBeer, wine and spirit shops (except where goods are for consumption on the premises)Bicycle shopsBicycle accessories shopsBiscuit shopsBookshopsBoot and shoe repairersBridal wear sales and hire shopsBuilding supplies shopsBuilding machines and equipment shopsButcher shopsCake shopsCamping equipment shopsCards shopsCarpet shopsCigarette shopsClock shopsCoins and coin collections shopsConfectionery shopsConvenience food shopsCookie shopsCopper fitting shopsCosmetics shops Costumes and formal wear hire shopsCurtain shopsDelicatessen shopsDepartment storesDinnerware shopsDisposals shopsDrapery shopsDuty free shopsElectrical appliance shopsElectronic equipment and supplies shopsEngraversEquestrian wear shopsEquipment hire shopsFast food shopsFast-photo processorsFloor covering shopsFlorist shopsFlower shopsFruit and vegetable shopsFruit juice shopsFurniture shopsGames and hobbies shopsGeneral storesGift shopsGift-wrapping shopsGrocery shopsGreengrocer shopsHaberdashery shopsHairdressersHardware shopsHealth food shopsHearing aid shopsHot bread shopsHot water system shopsHousehold appliance shopsHousehold fixtures and fittings shopsIce cream shopsInterior decoration shopsJewellery shopsKey cutting shopsKitchenware shopsLeather goods shopsLighting shopsLinen shopsLingerie shopsLottery agenciesManchester shopsMartial arts supplies shopsMixed business shopsMotor vehicle and motor cycle accessories shops (excluding tyre shops and batteries shops)Music shopsNewsagency shopsNick-knack shopsNut bar shops OptometristsOrgan shopsPaint and paper shopsPastry shopsPet shopsPharmacy shopsPhotographic equipment and supplies shopsPicture frames shopsPlumbing supplies shopsPool and spa shopsPoultry shops (whether fresh or frozen poultry or both fresh and frozen poultry )Precious stones shopsPrints and posters shopsRestaurants, cafeterias, coffee lounges and other eating placesRock shopsRubber stamp supply shopsSeafood shopsSecond-hand goods shopsShoe shopsShops selling or engaged in providing any 1 or more of the following goods or services in relation to men and boys: accessories, caps, clothing, clothing alterations, sunshadesShops selling or engaged in providing any 1 or more of the following goods or services in relation to women, girls and infants: accessories, baby wear, bags, caps, clothing, clothing alterations, sunshadesShops selling any 1 or more of the following goods: cassettes, musical instruments, prerecorded tapes, recordsSilverware shopsSleepware shopsSmallgoods shopsSnack barsSoft drink shopsSoft furnishing shopsSouvenir shopsSporting goods shopsStamps and stamp collection shops (whether for purchase or sale or both)Stationery shopsSupermarketsSurfboard shopsSurfing accessories shopsTakeaway food shopsTelevision, video equipment and other household appliances hire shopsTobacconists shopsToy shopsUmbrella shopsUnderwear shops Variety storesVideo tape and prerecorded music librariesVitamin shopsWall decoration shopsWatch shopsWriting materials shopsAnd any other business prescribed by the regulations.We believe this is the most important amendment that has been moved, or equally the most important one. I certainly believe that the threshold issue is important, and what we just voted on I think is reasonably important. What we are doing is putting a retail tenancy code into the legislation. This is in accord with the Reid recommendations, and that was the unanimous decision.We all know that across Australia the most consistent complaint that small business raises is the relationship they have with their landlord in commercial tenancies. They have endless complaints, many of which have been exposed in television programs, about the way small businesses have been treated by their landlord and the way some of them have been gazumped, to use that phrase, have suddenly had massive increases in their rent or have been told to leave. If they do not want to accept an increase in rent, they find that they will be forced out of their location. After they have made a major investment in fitting out their shop, et cetera, this is something they just cannot walk away from.So in every way the economic power between the landlord and the retail small business is certainly unequal. That is why every state parliament, every state government, as well as the federal government, has been bedevilled by arguments over retail tendencies. It has been going on now for decades, and it has got worse rather than better with the development of mega shopping centres where small business knows most of the customers will be. The whole promotion of those major shopping centres makes this an even more important issue.We believe that there ought to be a national retail tenancy code with teeth in the Trade Practices Act. Some might say this is an unnecessary centralisation or too much power to the Commonwealth parliament or to the Trade Practices Act; let each state have their own retail tenancy code legislation. I would have thought that by now, when you are dealing with national landlords, major companies that are operating at the national level, across all states, developing major shopping centres, it is time to have a national code. I think reasonable people in the legal profession and in business would say, `It will save us a lot more time if we know there is one set of rules which we all deal with, rather than having to negotiate under different codes and practices in different states.'We believe that this is not an unnecessary centralisation of power to the Commonwealth. We believe that this is a very practical approach which puts into operation a set of rules that everybody knows and if there are breaches remedy can be obtained under the Trade Practices Act from the ACCC, we hope, cleanly and quickly. This is the way we believe commercial law in Australia should generally be operating.We have heard complaints from big and small business about the unnecessary costs and delay involved when you have systems that vary from state to state. At the moment retail tenancies are almost the equivalent of last century's different railway gauges which bedevilled our transport system for 100 years—with each state developing a different railway system that did not match when it got to the border. Modern commercial retail activity is now overwhelmingly promoted as a national industry with national advertising and a national approach even given the variation in the size of our states. These major companies, whether they are direct investors or involved through the big insurance and life companies which are investing in shopping centres across Australia, are overwhelmingly run on not just a state basis. Therefore, this amendment we are moving is more than reasonable and is a practical approach.I will not go through the amendment in detail but the disclosure statement is dealt with in the code. There are decent simple rules of disclosure so that the retail tenant knows what they are getting under the contract. There are no hidden or obscure clauses that later can be interpreted by the landlord in any way they like against the interest of the retailer. All of that is outlined very clearly in our proposal. Nobody can argue with these definitions that will be in the interpretation of the code.We believe that this is an opportunity for the national parliament under the powers of the Trade Practices Act to establish once and for all a national code. It may not be perfect; we can review it. There will be further arguments for adjustment from year to year as market conditions and certain practices change in the community. But people will know that in the future, rather than having to get six state and two territory governments to change they only need get one code changed at the national level and it will apply everywhere. We believe that this is a very sensible economic and micro-economic reform—if I dare use the phrase—that will reduce costs for both retailers and landlords. We commend the amendment to the Senate.17:11:001914Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—I advise senators that the standing orders of the Senate require that no divisions be taken after 6 p.m. on Thursdays. That means that it is impossible for this piece of legislation to be passed after that. I would appreciate being able to move it along. I think we can do that; we have debated most things. It is standing order No. 57.4J4SCHACHTSenator Schacht—I would have thought we'd complete this before 6 p.m.H15Campbell, Sen IanSenator IAN CAMPBELL—I think so too. Very few people are aware of the WA provision, as we call it, in the standing orders which allows WA senators to get home on a Thursday night. It has been in effect for about 12 months.The coalition will strongly oppose this. Firstly, we believe that because of the Australian constitution we can only possibly rely on the corporations power here and because many of the major shopping centre owners are not corporations under the Commonwealth law you simply cannot achieve it. I am familiar with some advice that was provided to the Motor Traders Association by Blake Dawson Waldron that involves a scheme to put special taxation on organisations that do not incorporate and thereby bring these organisations under the reach of the corporations power. We would be interested to know whether the Australian Labor Party supports the Blake Dawson Waldron proposal—under Denis Rose's hand, I think. I would be interested to know whether the Democrats propose forcing property companies to incorporate by using a tax to coerce them to do that. That is the only way you could possibly seek to give this proposal any teeth.The Australian Labor Party as late as 22 April 1997 when Senator Schacht went on Mr Price's program on 3AW and said—4J4SCHACHTSenator Schacht—In 1997?H15Campbell, Sen IanSenator IAN CAMPBELL—Yes, 1997. When Mr Price, who had obviously been campaigning on these issues, raised the business about the retail tenancy act—he actually said residential tenancy act but I think he meant retail—you said:In . . . both. For the tenancy . . . under the Constitution retail tenancies themselves are a matter for the state, so there's a matter of getting good legislation at the state level.Obviously the Reid report convinced you that that was not correct. More lately your leader, Mr Beazley, at a meeting on 31 August 1997 in Perth on the same issue said:You have problems of the day to day experience of tenants that goes beyond the general propositions that are covered by Unconscionable Conduct. You need a good State Act to be able to deal with that.And he referred the people at the meeting to my friend Doug Shave. So the Labor Party supported that up until a few months ago.There is no doubt about the unconstitutionality of it and, in the meantime, under the `New Deal—Fair Deal' legislation, the Commonwealth government undertook to use all of its efforts to ensure that we achieved higher standards of retail tenancy legislation in the states. As recently as 5 December 1997, all state ministers responsible in this area, including the Hon. Sandra Nori MP from the New South Wales government, signed on in these terms. The draft communique from the special meeting of Commonwealth, state and territory ministers and parliamentary secretaries responsible for retail tenancy matters, which I will table, reads:The Ministers and Parliamentary Secretaries endorsed the objective of establishing consistent legislative or regulatory minimum retail tenancy standards across Australian jurisdictions. Ministers and Parliamentary Secretaries supported achievement of this objective through State and Territory legislation or regulation. The Ministers and Parliamentary Secretaries reaffirmed that proposed or existing State and Territory-based legislation or regulation is best placed to deal most effectively with retail tenancy issues.You would probably say, `Well, they would say that.' But it is historic and I think Senator Schacht would recognise that to get a ministerial council, or whatever this particular council seek to call themselves, to say absolutely without equivocation that they will sign on to establishing `consistent legislative or regulatory minimum retail tenancy standards across Australian jurisdictions' is quite historic. They have not done that before. The states have been developing their own legislation.4J4SCHACHTSenator Schacht—It has taken them about 15 years to get it done, of course; they dragged their feet. I've been through this on other things too.H15Campbell, Sen IanSenator IAN CAMPBELL—I have had that experience as well on the Corporations Law but the reality is that you can get these things into place.The Commonwealth has the will there, as do the states. It is a matter of political imperative for the states. It is a hot issue out there for the states as much as it is for any of us. Hardly a week goes by that Ray Martin does not have a show on some tenant being done over by a landlord. The Commonwealth is going to drive this process. The bottom line is that you do not have the constitutional power at the federal level. The Labor Party recognised that up until a few weeks ago. We will be opposing this amendment.17:17:001915Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—This is one of those issues that is made clear to you in my electorate—in fact in the whole of Western Australia. Close to my electorate there is a food hall and I have had people from the food hall leaping out at me, if you like, knowing that this debate on the Trade Practices Act was coming up. They were very keen that something be done to stop the current abuse of power by land lords—and, in this particular case, by an absentee landlord. You can see there are various parts of Western Australia where there are obviously gaps, and the gaps last for a long time. That is probably because the people involved are not treating their tenants very well. They have lost good tenants because they have asked for too much or they tried to treat them unfairly. So I think it is needed.I would be supporting the opposition's amendment. I would like to think that if it is not supported by the Senate's majority we will see something happen, and happen soon. The reality is that we know small business is a major employer and we know that companies or corporations are involved. Whether they are overseas absentee landlords or large shopping centres which have tenants within their arcades, surely it would be useful to them to have some sort of uniform code that gave them some sort of `certainty'. Whichever way it goes—as I said I will be supporting this amendment—if this does not get up in the Senate, everybody will be watching to see some resolution at a state level fairly soon.17:19:001915Murray, Sen AndrewSenator MURRAY3M6WAAD00—I have an intense interest in this area and have had for a long time, both in my pre-political life and since. I have actually written a booklet—49 pages worth—on leases, landlords and tenants which deals with this very issue. We know the government's argument about lack of constitutionality. That argument was considered by the Reid fair trading report. There is still some question over it—I accept that—and it needs to be tested. But I am also concerned when all the ministers around the various states get together and agree on a minimum code. That is what we are frightened of. We are frightened that it is legislation that is going to end up as the lowest common denominator. What we are after, on behalf of tenants, is a maximum code because the law, generally speaking, is deficient in every state and does not deliver yet, in any state, the sort of regime that would balance the scales between landlords and tenants.I would say to you as follows, Senator Schacht. I am not convinced, as you are not, that you have everything in your legislation that you should have or that it is great legislation. It probably needs a lot more work. Having watched what has happened in divisions so far today, I would suggest that if we vote to call a division on this one it is likely to go down again, because even relatively simple propositions have been dealt with in that fashion. If that is the mood of the Senate, I do not want to see what you have suggested die.What I want to suggest—and I am not sure how it would work—is that, with the motion that the report of the committee be adopted, your amendments be referred to the Economics Legislation Committee for inquiry and report. I am not seeking a repetition of the fair trading report's approach, because you have actually put down details whereas they, at great length, made recommendations, although they were nevertheless generalised. I believe that the government's case that it is not constitutional needs to be tested, and tested well. I believe that the content of your amendments needs to be tested, and tested well, and needs to be compared against the propositions of the state ministers who are putting up something accordingly.So, with great qualification—I am not going to put myself wholeheartedly behind everything you have put in there because, frankly, I do not do so—I support you out of principle, not in terms of detail. But I would suggest to you that it is likely to go down. I would recommend to you, if you are willing to do so, that we put up a reference of the matter to the Economics Legislation Committee.17:23:001916Schacht, Sen ChrisSenator SCHACHT4J4SAALP00—I accept the fact that until recently I—when I was minister for small business and went to interminable meetings where there were very upset small business retailers who were complaining about their rents, et cetera, and I remember a famous one in Newcastle which was extremely vigorous—was having to say to people, `This is a state matter; unfortunately, we don't have a remedy for you.' That was the case at that time.We are now saying that, yes, it is true; we have had advice from Mr Rose that there is a way to use the corporations power to have this mandatory code in place. Someone will say, `Mr Rose has got it wrong'—with two lawyers there will be three opinions; we all know that view that is around. However, he does put forward a substantial case to say in principle it can work. That is why in June last year the shadow ministry took the principled position of endorsing all the Reid recommendations—including this one about the mandatory code, the uniform retail tenancy code—and subsequently did further work taken from Mr Rose's opinion. So I do not think there is anything inconsistent with what I have said previously prior to this work being done.I also have to say, Senator Murray, that you are right. Unfortunately, the numbers are probably not quite with us on this if you go through our track record in the committee stage so far. I am certainly not opposed at all to the idea that there be a resolution in the report of the committee that my amendment, if it is defeated, be referred to the Economics Legislation Committee for further consideration.All I can say, as a final point, is that I know the minister is speaking more in hope than in reality about a ministerial council meeting representing the six states and two territories. They have a consistent track record of there usually being, unfortunately, one state or one territory that will not buy complementary legislation. In my own area as minister responsible for standards, we could not get them to agree to introduce legislation over 10 years to tell the time correctly in Australia. You would have thought that was absolutely uncontroversial—but no. In the end, even this new government has had to accept doing legislation under the constitution to take it back from the states so that we could tell the time. Therefore, I am not convinced that a council will actually get us through rapidly enough and, as a result, the complaint from the small business area of retailing will continue and the demand will grow for the principled position that there be a national, uniform retail tenancy code. I commend the amendment to the Senate. Question put: That the amendment (Senator Schacht's ) be agreed to.17:30:00The committee divided. (The Chairman—Senator S. M. West)31Allison, L. Bartlett, A. J. J.Bishop, M. Bolkus, N.Bourne, V. Brown, B.Campbell, G. Carr, K.Collins, J. M. A. Conroy, S.*Cook, P. F. S. Crowley, R. A.Denman, K. J. Evans, C. V.Gibbs, B. Hogg, J.Lundy, K. Mackay, S.Margetts, D. McKiernan, J. P.Murphy, S. M. Murray, A.O'Brien, K. W. K. Quirke, J. A.Ray, R. F. Reynolds, M.Schacht, C. C. Sherry, N.Stott Despoja, N. West, S. M.Woodley, J.32Abetz, E. Boswell, R. L. D.Calvert, P. H. Campbell, I. G.Chapman, H. G. P. Colston, M. A.Coonan, H. Crane, W.Eggleston, A. Ellison, C.Ferguson, A. B. Ferris, J.Gibson, B. F. Heffernan, W.*Herron, J. Kemp, R.Lightfoot, P. R. Macdonald, I.Macdonald, S. MacGibbon, D. J.Minchin, N. H. Newman, J. M.O'Chee, W. G. Parer, W. R.Patterson, K. C. L. Payne, M. A.Reid, M. E. Synon, K. M.Tambling, G. E. J. Troeth, J.Vanstone, A. E. Watson, J. O. W.Cooney, B. Hill, R. M.Faulkner, J. P. McGauran, J. J. J.Forshaw, M. G. Tierney, J.Lees, M. H. Brownhill, D. G. C.Neal, B. J. Alston, R. K. R.* denotes teller(Senator Knowles did not vote, to compensate for the vacancy caused by the resignation of Senator Bob Collins.)Question so resolved in the negative.H15CAMPBELLSenator Ian Campbell—I indicated during the previous debate that I would table the draft communique of the meeting of ministers and parliamentary secretaries in relation to retail tenancy matters and I now do so.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Ferguson)—We will now return to government amendment No. 8 which the Democrats want to amend.17:34:001917Murray, Sen AndrewSenator MURRAY3M6WAAD00—I move:(1) Omit proposed subsection 51AC(7A), substitute:(7A) A reference in this section to acquisition or possible acquisition of goods or services does not include a reference to the acquisition or possible acquisition of goods or services: (a) by a person or corporation employing more than 20 people; or (b) in the case of a person or corporation engaged in the manufacture of any goods—by a person or corporation employing more than 100 people; or (c) at a price in excess of $1,000,000, or such higher amount as is prescribed; whichever represents the highest threshold in relation to the particular case.This amendment says two things: that the threshold shall be what I shall refer to in shorthand as the ABS definition of small business, or the $1 million government cut-off point, whichever represents the higher threshold in each case. This has been debated at length and we clearly understand the issues. Therefore, I do not intend to comment—unless there are further questions.17:35:001917Margetts, Sen DeeSenator MARGETTSDX5WAG(WA)00—The Greens (WA) will be supporting this amendment.17:36:001917Schacht, Sen ChrisSenator SCHACHT4J4SAALP00—The opposition has an amendment but we will be withdrawing it in favour of the Democrats' amendment. Since we started this debate one thing has been clarified that does ameliorate some of our concerns and that is the threshold figure of $1 million can be changed by disallowable instrument subject to further debate and community consultation. That does give flexibility regarding some of our concerns about not having to introduce legislation. I have no doubt, knowing the small business community, that if they think this threshold of $1 million has kept too many people out of getting remedy under the act, there will be great pressure to rapidly change that figure and that definition.We are attracted to the further Democrats' amendment in particular in that the $1 million is over a 12-month period and not an endless period. Senator Murray has already explained that. We believe this amendment makes it easier for more small businesses to get remedy under that definition. It is a very reasonable amendment.The government has already indicated that none of these amendments will be acceptable and, on the track record of the votes so far in the Senate, I suspect the government has probably got the numbers for its view. However, as the parliamentary secretary has generally indicated, there will be a review in 2½ to three years time. I have no doubt this will be one of the major areas, other than retail tenancies, that will demand further change. The opposition will be voting for the Democrats' amendment. Question put: That the amendment (Senator Murray's ) be agreed to.17:41:00The committee divided. (The Chairman—Senator S. M. West)31Allison, L. Bartlett, A. J. J.Bishop, M. Bourne, V.Brown, B. Campbell, G.Carr, K. Collins, J. M. A.Conroy, S.* Crowley, R. A.Denman, K. J. Evans, C. V.Forshaw, M. G. Gibbs, B.Hogg, J. Lundy, K.Mackay, S. Margetts, D.McKiernan, J. P. Murphy, S. M.Murray, A. Neal, B. J.O'Brien, K. W. K. Quirke, J. A.Ray, R. F. Reynolds, M.Schacht, C. C. Sherry, N.Stott Despoja, N. West, S. M.Woodley, J.32Abetz, E. Boswell, R. L. D.Calvert, P. H. Campbell, I. G.Chapman, H. G. P. Colston, M. A.Coonan, H. Crane, W.Eggleston, A. Ellison, C.Ferguson, A. B. Ferris, J.Gibson, B. F. Heffernan, W.*Herron, J. Kemp, R.Lightfoot, P. R. Macdonald, I.Macdonald, S. MacGibbon, D. J.Minchin, N. H. Newman, J. M.O'Chee, W. G. Parer, W. R.Patterson, K. C. L. Payne, M. A.Reid, M. E. Synon, K. M.Tambling, G. E. J. Troeth, J.Vanstone, A. E. Watson, J. O. W.Bolkus, N. Alston, R. K. R.Cook, P. F. S. Tierney, J.Cooney, B. Hill, R. M.Faulkner, J. P. McGauran, J. J. J.Lees, M. H. Brownhill, D. G. C.* denotes teller(Senator Knowles did not vote, to compensate for the vacancy caused by the resignation of Senator Bob Collins.)Question so resolved in the negative.10000CHAIRMANThe CHAIRMAN—The question is that government amendment No. 8 be agreed to.Question resolved in the affirmative.10000CHAIRMANThe CHAIRMAN—The question now is that postponed government amendment No. 9 be agreed to.Question resolved in the affirmative.3M6MURRAYSenator Murray—Madam Chair, I would like recorded on the voices the Democrats's opposition to government amendment No. 9.4J4SCHACHTSenator Schacht—The opposition will not call a division on this for the sake of time, but we ask that our opposition to government amendment No. 9 be recorded.Bill, as amended, agreed to.Bill reported with amendments.1918Motion (by Senator Ian Campbell) proposed:That the report from the committee be adopted.17:45:001918Murray, Sen AndrewSenator MURRAY3M6WAAD00—I move:At the end of the motion add ", and the amendments moved by Senator Schacht relating to a uniform retail tenancy code be referred to the Economics Legislation Committee for inquiry and report by 31 July 1998".17:46:001919Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—The government—and I think probably also the opposition; however I will not speak on behalf of the opposition—has a policy that, if people seek to make reference to a committee, it go through a process. That is, basically, that it gets brought up at our party room and senators have discussions about whether they want it or not.I would oppose the motion being dealt with as it is here. I think Senator Murray's motivations are entirely laudable, and the concept of looking at retail tenancy legislation is something that is appropriate in the current climate—bearing in mind that I have made the point that the Commonwealth regards this as entirely a matter for the states, and will continue to do that. But the coalition, before making any decision on a reference to a committee, would like the opportunity and the courtesy to be able to take it to our party room.If Senator Murray would like to progress this matter next week, I think I can undertake to ensure that the coalition would consider this at its normal meetings at the beginning of next week; it could be dealt with very early. But it would be a courtesy for our colleagues to be able to consider it in that way.17:47:001919Schacht, Sen ChrisSenator SCHACHT4J4SAALP00—It is true, Senator Campbell, that the processes of the opposition and our caucus are that these measures go for discussion and decision. However, as it is our resolution and our amendment moved and supported by our caucus, I imagine there would be unanimous support for Senator Murray's resolution. If it were carried here today, we would accept it. If it is not carried here, we certainly would be willing to support, after discussion with Senator Murray, an appropriate resolution before the Senate adjourns next week.17:45:001919Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—by leave—Could I ask that Senator Murray consider withdrawing the amendment because it is impossible for the coalition to reach a position. Most of my colleagues would not be aware of the contents of Senator Schacht's amendment to this bill. I read it this morning so I am aware of it and I understand the issue. But no other coalition senator—other than Senator Coonan, who has taken a close interest in the debate—is aware of the provisions of that amendment. To ask senators who are not even aware of it to vote on it now would be undesirable. I would ask that Senator Murray give consideration to withdrawing it and bringing it on as early as next Tuesday when we will be prepared to vote on it as long as we can consider it at our Monday night meeting.17:49:001919Murray, Sen AndrewSenator MURRAY3M6WAAD00—Judging by what has happened to us previously with votes, I suspect that we would lose anyway. So I withdraw my amendment.10000ACTING DEPUTY PRESIDENTThe ACTING DEPUTY PRESIDENT (Senator Ferguson)—You will need leave to withdraw, Senator Murray.3M6Murray, Sen AndrewSenator MURRAY—I seek leave to withdraw my amendment.Leave granted.Amendment withdrawn.10000ACTING DEPUTY PRESIDENTThe ACTING DEPUTY PRESIDENT—The question is that the motion for the adoption of the report be agreed to.Question resolved in the affirmative.1919Motion (by Ian Campbell) agreed to:That the bill be read a third time.Bills19191919Message received from the House of Representatives acquainting the Senate with a resolution relating to the reference of the Aboriginal and Torres Strait Islander Heritage Protection Bill 1998 to the Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund for consideration and an advisory report by 22 May 1998.Personal Explanations192017:51:001920Macdonald, Sen IanSenator IAN MACDONALDYW4QLDLP10—I seek leave to make a personal statement.Leave granted.YW4Macdonald, Sen IanSenator IAN MACDONALD—I make this statement on behalf of Senator Parer, Senator MacGibbon, Senator Herron, me and all of my colleagues. It was drawn to my attention today following a newspaper article that on Monday, 30 March Hansard records that a motion moved by Senator Brenda Gibbs from Queensland was agreed to by the Senate. It is recorded under the heading `Electricity blackouts' and it speaks about that subject. Part of that motion condemns the Queensland government in one instance and the Queensland Deputy Premier and Treasurer in another instance.The motion was dealt with as a formal motion by agreement amongst the whips and was passed on the voices with the coalition voting against the motion on the voices. Unfortunately, Hansard does not record that there was opposition to the motion. I simply wish to place on record that, whilst that motion was agreed to by the majority of senators, it was certainly not agreed to by the coalition senators.Bills1920r4551920Debate resumed from 1 April, on motion by Senator Ian Campbell:That this bill be now read a second time.upon which Senator Bolkus had moved by way of amendment:At the end of the motion, add:"but the Senate notes that:(a) The High Court of Australia in its 1992 Mabo decision, found that a system of native title to land emerging from the traditions, laws and customs of indigenous Australians pre-existed the legal system that has been implemented in the time since European settlement, and further found that native title has survived despite later grants of interests in some places, and is merged within our common law;(b) the Native Title Act 1993 was the first attempt to manage native title claims emerging from the High Court finding, and was inevitably destined to be amended in the light of practical experience and further Court decisions;(c) in taking office in 1996, the Government accepted the responsibility of integrating the concept, expression and exercise of native title into the social and legal framework of this nation, a responsibility that was initially taken up in 1993 by the Keating Labor government;(d) the Wik decision of the High Court in 1996 was an inevitable and desirable part of a process whereby an emerging body of case law gave better definition to a legal concept, and deserved a prudent and measured legislative response from the Government;(e) the response of the Coalition in government mirrored its response when in opposition in 1993, in that it chose a divisive, negative and politically opportunistic approach to an issue of historic importance;(f) the Government, in seeking to amend the 1993 Act, has been driven by a desire to appease sectional interests opposed to the concept of native title, rather than any aim of finding a workable model acceptable to all stakeholders;(g) the Prime Minister's self-styled "Compact with the miners and pastoralists" is a betrayal of the compact with the Australian people that is intrinsic to his office;(h) in rejecting the compromise offered by the amended bill passed by the Senate in December 1997, the Government added further dimensions of uncertainty and social division to a process that, to be successful, has always demanded government with insight, leadership and a sense of justice and equity;(i) the Government promoted needless uncertainty and potential economic loss in rejecting the validation provisions passed by the Senate in December 1997;(j) an ever increasing number of unsustainable multiple, overlapping and ambit native title claims continue to mount up on the Register of the National Native Title Tribunal as a result of the Government's failure to accept the workable threshold test contained in the 1997 Bill. (k) Australia's standing in the international community continues to be compromised by the Government's approach to native title that will see the erosion of the few rights our indigenous peoples have had recognised since European settlement, in a relationship otherwise blighted by their dispossession, the destruction of their cultures and social dislocation;(l) genuine reconciliation with our indigenous peoples will be impossible without fair and decent dealing with native title;(m) the bill before the Senate is fundamentally unsound unless substantial amendments are made, including: (i) amendments to ensure fair and constitutional validation, including provisions in respect of notice provisions and compensation on just terms; (ii) the enhancement of provisions which, whilst giving validation where necessary and certainty of tenure to all parties, preserve the character of the amended Native Title Act as a special measure for the benefit of indigenous Australians; (iii) the amendment of a multitude of provisions which detract from a fair and just balance of the rights and interests of all stakeholders and which compromise the amended Act's capacity to withstand constitutional and legal challenge; (iv) the reinstatement of an effective right to negotiate where there is dealing in land or waters with exclusive or coexisting native title; (v) a clear and unambiguous provision to subject processes under, or authorised by, this Bill to the provisions of the Racial Discrimination Act 1975 ; (vi) the removal of those provisions that seek to impair or restrict indigenous peoples' rights beyond, or in spite of, the common law;(vii) the removal of gratuitous real or de facto extinguishment of native title;(viii) the removal of legalistic constraints on the operation of tribunals or courts which have the effect of denying indigenous people a fair chance to pursue native title claims; (ix) the removal of restraints on indigenous people registering native title claims that could be successfully pursued in common law; (x) the removal of provisions that would remove processes under the Act from Commonwealth oversight and place them for management and determination in a multitude of State-controlled bodies; and (xi) the removal of unreasonable impediments to indigenous people having access to their traditional lands; and(n) in the event of the failure of this Government to proceed with such amendments, a future government will be confronted with an even more complex and demanding task in forming and enacting legislation to address the resulting legal chaos, social division, and economic loss.17:52:001921Reynolds, Sen MargaretSenator REYNOLDSXI4QLDALP00—This is the first opportunity that I have had to speak in this place on the Native Title Amendment Bill 1997 [No. 2] . I was on a parliamentary delegation to the United Nations at the end of last year and, although I have spoken on the issues relating to this particular bill, I have not had the opportunity to put a viewpoint in this place. I must say that one would have thought, being as distant as I was in New York, the implications of the debate would not have reached me at the United Nations.But I have to tell senators that there is concern within the United Nations about some of the perceived changes in attitudes in relation to human rights generally, and in relation to racism and indigenous issues specifically. I want to spell these out before going into the detail of my presentation. Firstly, I think it is known that, over the previous five or six years or so, Australia had taken a high profile in initiating indigenous debate in the international community. There is concern that we seem to be adopting a different position and leaving it to other countries. Secondly, rather than speaking out on racism, we are leaving it to other countries.I am certainly not accusing the government of adopting a different approach in terms of voting against some of these resolutions, but we are not being up front in taking a leadership role on either racism or indigenous issues. Given our background, given the sensitivity of these issues in this country, given the fact that we do have a certain legacy to live down, given the history of the White Australia Policy and the history of indigenous and non-indigenous relations, I am really pleased to see Senator Herron is in the chamber. I appeal to Senator Herron to have us take a much more proactive role in the international community as soon as possible.It is complex legislation and I propose to revisit the debate essentially from an historic, moral and practical perspective. Essentially, I would say that the Australian people are entitled to ask why they need to recognise what they perceive to be special land rights for indigenous people. It is a legitimate question for those who have not been part of the debate, who have been given a very warped view of history in their schooling. It is understandable that they do not understand the issue. That question, as well as `How has this need evolved?' and `What will it mean to the average taxpayers?'—those are the three questions that an average Australian is likely to ask.Firstly, the term `native title' must be demystified. It is a term that has been widely abused, discredited and misunderstood since the High Court first recognised indigenous land rights in the Mabo case. Since that time, too many political and industry leaders have deliberately created a fear of Aboriginal association with the land. Why? Talkback radio hosts and other sections of the media have fuelled this widespread alarm about both the Mabo and the Wik cases. In particular, the High Court itself has been undermined by critics accusing it of `mischief' and `adventurism'—although, presumably, after yesterday's decision, there will be more muted comment about the High Court itself. But, in answering the question, `Why is native title a fact of life in Australia today?' we must emphasise the reality that the High Court did not invent native title. The High Court did not give anything new or extra to Aboriginal and Torres Strait Islander peoples; the court merely accepted the historic evidence and the international legal precedents that have been inherited because Aboriginal property rights pre-exist European settlement of this country.In considering how this situation has developed in the specific Wik claim, which of course has very largely prompted this legislation, we need to go back to the experience of Aborigines who were first in direct conflict with pastoralists attempting to establish Australia's cattle industry, who then became integral to its success. I would urge anyone who is concerned about pastoralists' rights to read Dawn May's book Aboriginal Labour and the Cattle Industry. It is the first book that I know of to genuinely recognise the major contribution of indigenous people to the success of the cattle industry. In the conclusion to her book, she says:Given that the cattle industry was not economically viable in the nineteenth century, it was heavily reliant on traditional skills of Aboriginal people to minimise costs. Aboriginal people provided labour in an area where white workers were reluctant to venture. The seasonal nature of the work suited Aboriginal workers as it allowed them to leave the station to pursue traditional activities. The link with the land ensured their return to stations located on tribal ground. Because it was their own country, they had an intricate and detailed understanding of the area.The cattle industry, the pastoralists, are indebted to Aboriginal people for the work they did from early contact to the late 1950s.The book continues:After 1919 the situation changed markedly, moving into a new phase . . . the Queensland government took a more active role in regulating Aboriginal employment in the cattle industry. In a liberal democratic society such as we have in Australia, the rights of the individual are seen as more important than the rights of the state. This did not extend to Aboriginal people. Although the state was theoretically committed to their protection, the interests of the cattle industry were always paramount. Aboriginal wages were set below the award to assure the industry of cheap labour, and removal orders directed labour to areas where it was most needed. Removal orders became a major instrument for breaking Aboriginal people's nexus with their land.It goes on to say that protectors could use these orders to relocate people who were seen as surplus to the needs of the cattle industry at that time. At this point I want to table a photograph of this time in the cattle industry in North Queensland around Wik country. It is a photograph that I discovered in the Brisbane airport during the term of the Keating government. It was displayed by the FAC as an historic photograph, but I am sure, when honourable senators see it, that they will be shocked by it. It is called `Children pulling plough, Weipa 1930'. I seek leave to table that photograph and to distribute copies of it.Leave granted.XI4Reynolds, Sen MargaretSenator REYNOLDS—I thank the Senate. I make this point not to lay blame at the feet of the pastoralists or the church—it was probably, as far as we can tell, on a church mission—or to try, as some would say, to make anyone feel guilty. I simply table this photograph as a very realistic depiction of the inheritance of the Aboriginal people of that region who claimed their rights in the Wik case. It is worth emphasising that the occurrence of children pulling a plough—in the photograph there are about 29 children pulling a plough in Weipa in 1930—was against all Australia's commitments to protect children, to protect indigenous people; yet it happened. It is symbolic of what we are discussing in this debate. We have to understand the history and experience of indigenous people.More than 150 years ago, when pastoralists were moving into Queensland to take up land that was not theirs—it still is not theirs; they rent it—administrators naively thought that Aborigines and the cattle industry could coexist. Over all those years, that was the expectation; yet here we are in 1998 still trying to find ways where Aborigines and the pastoralists can coexist. Today, even after the High Court has ruled this way, many people—not just in the pastoral industry, but also other Australians—resist fairness and equity in a negotiated settlement.I know a little bit about the need for negotiation. In 1993 I wrote to the then Queensland Premier, Premier Goss. I thought senators would be interested to hear that in 1993 I, as the government representative on the Council for Aboriginal Reconciliation, wrote to the Premier and suggested that he host, without prejudice, discussions between Comalco and the Wik people, as I believed this would be a positive step in resolving the uncertainty surrounding future mining leases at Weipa. However, I acknowledged fully the concern of the Premier to facilitate appropriate development which offered economic growth and employment opportunities. I said:I believe, nevertheless, the Wik People are entitled to:(a) a full apology for forced expulsion from mission land—the action of a National Party Government which failed in its duty of care—a breach of fiduciary duty—despite strenuous efforts of the Presbyterian church management acting on their behalf.(b) discussions about reasonable compensation for that action to reflect a 1993 response to a total breach of State Government standards as being responsible for the welfare of Aboriginal people at that time.(c) negotiations about the future relationship between the State Government, Comalco and the Wik people to ensure recognition of indigenous rights and an appropriate package of training, jobs and infrastructure.I also pointed out that there had already been, even in 1993, a number of successfully negotiated agreements between Aboriginal communities and sections of the mining industry in other parts of Australia which illustrated that it was possible to reconcile Aboriginal interests with development. I did not have very much success in persuading the then Premier to initiate negotiations. Instead, the legal option was pursued. The legal option was pursued with a vigour and a cost to Queensland's taxpayers.Soon after that first letter, seven Queensland federal members of parliament wrote again to the Queensland Premier. On that occasion we made the same points and we requested that negotiation be the way to go rather than going through the courts. Negotiation was not seen as the appropriate way to deal with the Wik people's absolutely legitimate claim. We all know what happened. The Queensland Labor government refused to negotiate and went to the court. Guess what? Out came the High Court and said that coexistence and negotiation would be a good idea, as we would all assume.So back I went in 1997 to a different Premier. On that occasion I was critical, as I had been of the previous Premier. I said that I was concerned by his comments about restructuring the High Court which suggested that he was unwilling to accept the umpire's decision, even when that decision was based on legal precedent that had been established in the United States, Canada and New Zea land for many decades. I reminded him that I had previously written seeking negotiation and acceptance of coexistence. I paid tribute to the Prime Minister, who negotiated in the native title debate in 1993.On 19 February 1997 I also acknowledged the work that at that time John Howard was doing in initiating those first negotiations. It is just a pity that he has not continued to negotiate with indigenous people. I also acknowledged the work of the Tasmanian Liberal government in initiating a major dialogue between its cabinet and the local indigenous community. I also even acknowledged Premier Kennett—which, as senators would understand, is most unlike me—because he was also working with Aboriginal leaders to develop a state-wide agreement on native title. But still Queensland was lagging behind in refusing to negotiate.A few months later, in May, I wrote again to the Queensland Premier, and still the Queensland Premier was grandstanding in his criticism of the High Court, in his alarmist statements about backyards being taken over. On 6 May I wrote to express my concern about his government's challenge to the High Court decision in the Wik case and the breakdown of the reconciliation process in Queensland. I was concerned at the proposed changes to the Natural Resources Act which would have allowed some 3,000 leaseholders to convert to freehold status on interest-free terms. I called on him to reveal these details:1. The names of individuals holding pastoral leases and the extent of their tenure;2. The names of companies holding pastoral leases and the extent of their tenure;3. The amount of land held by lease and the amount paid per hectare per year;4. The number of leases held by individuals not holding Australian citizenship;5. The number of leases held by foreign-based companies.I did get a reply to that letter, but I did not get the detail. The Premier said that, if I wished to pay for that work to be done, I could take appropriate action.I think the experience that I have outlined indicates that, as long as people—be they Queensland premiers, industry leaders or decision makers in this place—continue to reject the concept of basic decency in accepting equally negotiated outcomes with indigenous people, miners and pastoralists having equal say and equal power, we will not resolve the indigenous land rights issue in this country. We may see a piece of legislation go through this parliament, but we will also see challenges. We will continue to have uncertainty.For all the complexity and all the detail and all the hard work that many people may well have put into this, until there is an acceptance of the legitimacy of indigenous rights we will not have an acceptable outcome. Until we have an acceptable outcome, an outcome that many people around this country are calling for, we will be accused of racism and denying indigenous people justice. That will be extremely damaging to Australia's name.That brings me back to the point where I started: Australia's reputation in the United Nations has been a very proud one, but we are losing it. People are asking, `What is happening down there?' I have described it as being a little like asking about someone's relative who is very ill—you are concerned but you do not want to be intrusive. I am afraid in this case the sick relative is the Australian government's attitude. (Time expired)18:13:001924Bourne, Sen VickiSenator BOURNETW4NSWAD00—First of all, I would like to acknowledge the traditional owners of the land on which Parliament House stands: the Ngunnawal people. It is easy for all of us to forget that there are traditional owners of all of Australia, including the cities—and that includes Canberra and Parliament House, where we are now. I would also like to acknowledge the presence—I do not know whether they are in the gallery at the moment but they have been throughout this debate and will continue to be—of the Wik people from Cape York Peninsula.The last time the Senate debated the Native Title Amendment Bill I was unfortunately unable to speak on the second reading. I had that flu that was going around, and it was very distressing for me to be sitting at home listening to the radio, yelling at various people from my lounge room. Fortunately I am back here now, and I will try not to yell at various people but it is very difficult not to. Although I cannot say I am pleased that the bill is back before us, I am pleased that I can now make some small contribution to the second reading debate in the defence of the rights of indigenous Australians.This evening I would like to concentrate on some international dimensions of the native title debate. Successive Australian governments have agreed to bind Australia to a number of international human rights standards. The universal acceptance of a set of basic guidelines about human rights behaviour is to be applauded, and of course I do applaud that. But it is a real pity that this bill appears to infringe a number of international human rights instruments to which Australia is a party. In particular, the bill appears to the Australian Democrats to contravene article 27 of one of the most basic human rights instruments—the International Covenant on Civil and Political Rights—as well as contravene the International Convention on the Elimination of All Forms of Racial Discrimination.To understand how this is so, we need to go back to 1993 and to the events during the drafting of the Native Title Act. At that time, the indigenous negotiators agreed that the act could be deemed to be a `special measure' for the purposes of racial non-discrimination law. A `special measure' is something which advances a disadvantaged racial group's human rights even though it contains elements that can be deemed to be racially discriminatory. The indigenous negotiators agreed to those aspects of the act which discriminated against native title holders as a trade-off against the provisions which improved on the common law rights of native title holders—and I refer there, of course, to the land fund, to the non-extinguishment principle and to the absolute basic right to negotiate.This bill that we are now debating has had no such agreement from indigenous people, but we have seen the federal government seek to rely on this in its attempts to push that legislation through. The Convention on the Elimination of All Forms of Racial Discrimination obliges Australia to outlaw racial discrimination and to provide for equality before the law in the enjoyment of human rights. That includes property rights. That convention also requires us to apply special measures only when they secure the advancement of a racial group towards the equal rights of others. In the Democrats' view, this bill fails that test.It is really quite astounding that Senator Minchin has described this bill as beneficial to indigenous Australians. It most certainly does not advance their rights—including their property rights—as defined under that convention. Obviously, then, the government cannot possibly be relying on the `special measures' test because it just does not apply to this bill.In fact, this bill discriminates against indigenous people in a number of ways. The most crucial is that it supports the rights of non-indigenous people over the rights of indigenous people. It takes a great deal away while giving very little back. You need look no further than the amendments to the right to negotiate, to the sunset clause, to the validation of intermediate acts and to the suppression of rights associated with primary production activities, water, fishing and reserves.In essence, we have private property rights of indigenous people being removed for the benefit of other private leaseholders—be they pastoralists, miners or developers. Removing those rights would be bad enough if they were being removed in the public interest. But they are not being removed in the public interest; they are being removed for private interests. The removal of the right to negotiate over mining on pastoral leases would benefit private interests at the expense of native title holders. The compulsory acquisition provisions in the bill are designed to benefit other leaseholders to the detriment of native titled holders. Allowing diversification of land uses, up to the definition under the Income Tax Assessment Act, is designed solely to benefit those other than native title holders.The second major area where the bill discriminates is its failure to provide the same protection to native title holders' property rights as is afforded to others. If we were considering what automatic rights should be afforded to pastoralists, to miners or to developers when native title holders wanted to take some action on the land over which they held rights, those rights would no doubt include some form of consent. However, if we consider the provisions of this bill relating to validation of intermediate acts, to private water and fishing rights and confirmation of past extinguishment, those rights do not apply to native title holders. When it comes to indigenous people under this bill, no such consent is required.The sunset clause under this bill is not only discriminatory but also immoral. It is immoral to impose it on one group's property rights and not on others. In short, this bill treats native title as an inferior property right to all other property rights under Australian law—and that should never be the case.Discrimination also occurs if there is a failure to provide equality by way of appropriately different treatment of the unique aspects of Aboriginal culture—and we see that in the ICCPR. Let me stress that this is not `special' treatment, as the government seems to think it is; rather it is appropriately different treatment. It is quite appropriate to be different in this case. It is a reality that Aboriginal culture is not white culture. We have to accept that. This bill discriminates because it does not accept that fact.In the right to negotiate provisions, it fails to recognise the Aboriginal sense of obligation to land, whether it is in relation to its use, to its protection or to its management. The Australian Democrats not only believe the bill is discriminatory and will be seen as such under international standards but also believe many aspects of it are immoral.It is morally wrong to: remove the property rights of one sector of society on the basis of race; impose a time limit on some people's property rights but not on others; use unfair tests that people have to pass to exercise their own property rights; render people's property rights useless by removing their ability to negotiate about the use of their land; and validate unlawful acts without either permission or compensation to those who have been disadvantaged by those illegal acts. All this is on the basis of race alone.At the international level, United Nations committees—the Human Rights Committee and the Committee on the Elimination of Racial Discrimination—apply the relevant standards. They do this partly by considering complaints from individuals or groups who report breaches. While we know the findings of these committees are non-binding, such a finding against Australia, based on this bill becoming law, could only be extremely negative for Australia. Our standing in the international community, as we have just heard from Senator Reynolds—and she is absolutely right—in the field of human rights is already at the lowest point that I can remember. Such a finding from a United Nations committee can only diminish our standing even further.After the furore and fallout that has arisen in our region over recent times, it is hardly in our national interests to continue either the perception or the reality that Australia is prepared to discriminate against one race over another. We cannot afford as a nation to fail to develop a better understanding between indigenous and non-indigenous Australia. Mick Dodson, the former Social Justice Commissioner, and a great Australian, wrote in the Melbourne Age last year:Coexistence is about sharing our history and our stories, as well as our land and contributing to a shared vision of our nation.This bill not only does not achieve that but takes us in the opposite direction. The opportunity we have as a nation to foster an understanding of Aboriginal culture is an opportunity that presents itself to any nation not just once in a decade or even 50 years. Let us not squander it.The doctrine of terra nullius upon which our law was founded provided us with the excuse to attempt a decimation of a culture. That was many years ago. It must never be attempted again—either implicitly or explicitly. The failure to build our future on respect and on tolerance will contribute to a reality that sees Australia unable to disentangle ourselves from the racism which has disfigured our past. The discriminatory aspects of this bill must not be enacted if we are to disentangle ourselves from that past. I sincerely hope that the Senate accepts that view over the coming days.18:23:001927Evans, Sen ChrisSenator CHRIS EVANSAX5WAALP00—It is with some surprise that I rise to speak at this stage in the Native Title Amendment Bill 1997 [No. 2] debate. It seems that the Democrats, who are listed before me to speak, have not arrived. But I was intending to speak this evening because this is, of course, a very important debate.I find myself debating native title in this chamber for the third time. I was fortunate to have been recently elected when we first passed the Native Title Act in 1993, and I participated when we first dealt with this bill last year.HX5WOODLEYSenator Woodley—And made a very find contribution.AX5Evans, Sen ChrisSenator CHRIS EVANS—Thank you, Senator Woodley. I find it difficult to know what to say this evening because we have debated this bill before. Unfortunately for Australia, we are debating it again. But I think there is also a sense of anticlimax this time, because there was a lot of emotion and a lot of energy when we first debated this bill. Obviously there is not quite the same atmosphere this time as people await to see the outcome of the final, often backroom, negotiations. That is unfortunate because this is still a most important issue dealing with very important principles for this country. It is vital important that the nation focus on this debate because, in my view, how we treat our Aboriginal people and how we respond to the challenges thrown down by the Wik High Court decision are fundamental to the future of the country. It is imperative that this parliament provide leadership and deal with this issue in a constructive way—in a way which builds on the reconciliation process and in a way that finally recognises the legitimate rights of the first indigenous Australians.I will not be party to any decision in this parliament which seeks to further restrict those Aboriginal people's rights. It is very important that this parliament takes a principled stand. The common law rights recognised by the High Court must be respected by the parliament. In my view, there is no other option open to us. If we do not do this we will only condemn ourselves to division, to further legal challenges and to international ridicule, as has been pointed out by earlier speakers. More importantly, that sort of decision will eat away at the wholeness of the nation, it will eat away at the fabric of the nation, because we cannot have a situation where we fail to recognise the common law rights of Aboriginal people. We will not be able to survive and prosper as a nation unless we come to terms with their rights.I am very proud of the position that the ALP has continued to take in this debate because I think it is a position of principle; it is a position of persistence in advocating the proper recognition of Aboriginal people's common law rights to native title. I am very proud of our leader, Mr Beazley, of Gareth Evans, of Daryl Melham and of Nick Bolkus, in particular, for the role they have played in ensuring that the Labor Party has adopted and maintained a highly principled position—one which has resisted the political pressures to concede ground in advocating Aboriginal people's native title rights. As I say, this is one of my proudest moments in the Labor Party, and I am pleased to argue and advocate our position.It is common to claim that this debate has been a divisive one—that is has divided people, particularly in the bush. To a certain extent, that is true. The tensions caused by the debate and the expectations raised, quite falsely I think, by some conservative members of parliament, have been divisive, and have caused people to be concerned and fearful. But there are also a range of very positive things that have come out of this debate as more people have been educated about Aboriginal culture and Aboriginal relationship to country. For the first time, I think many of us recognise the importance to these people of that culture and country, and the importance to Australia of our recognising and paying due heed to that culture and Aboriginal relationship to land. While there have been some negative aspects of the debate, there have also been highly positive aspects. I think it has resulted in the education of a large number of Australians about the value and importance of Aboriginal culture, the pride it generates among Aboriginal people and the value of Aboriginal people to Australia.While we have been forced to confront some of the more divisive issues, I think we have also been forced to confront the European treatment of Aboriginal people, our failure to respect their culture and our failure to allow them to practise their culture and enjoy their relationship to land. I think that, as a result of large numbers of Australians having to deal with those experiences and with that reality, that in the long run it will be a very positive thing for Australian society. I just wanted to make that point—that there are also many good things coming out of this debate which will be for the good of Australia in the longer term.I want to make a number of points that I think are worth repeating. When this legislation was last before the Senate I made a speech in the second reading debate which set out my views on this issue. I do not want to repeat all of what I said as I am conscious that, in a sense, the debate has moved on. But there are a number of important issues that I think have to be highlighted, and one of those is the way so many Australians of non-Aboriginal descent have mobilised in support of Aboriginal people. I want to congratulate them; I take pride in their activities and in their commitment to and support of Aboriginal people. I think many good people have developed an awareness and have mobilised in a display of solidarity which is highly laudable. I have drawn great strength from their activities.Sitting suspended from 6.30 p.m. to 7.30 p.m.Documents1928192819:30:001928Alston, Sen RichardSenator ALSTONLD4VICLPCommunications, the Information Economy and the Arts10—I seek leave to make a statement in response to an order of the Senate on 31 March in relation to the tabling of certain documents. I understand notice has been given to all parties.AX5EVANSSenator Chris Evans—I raise a point of order. We are in a period of the Senate's timetable where there is agreement that no quorums and divisions will take place. I was not aware that the minister intended to do this. I wonder, procedurally, how we will go if anything arises out of his report. I am a bit perplexed by the suggestion that we do it now rather than during the normal sitting time of the Senate.LD4Alston, Sen RichardSenator ALSTON—I suppose it is slightly complicated by the current arrangements, but the order of the Senate required me to table a document by no later than 2 April, therefore, close of business today. It seemed to me that in those circumstances I had to respond today. I am happy to respond in the morning, to allow the matter to be debated tomorrow morning, or whenever it is convenient. I do not mind. If the Senate wants me to make the statement tomorrow, I will make it tomorrow.Leave granted.LD4Alston, Sen RichardSenator ALSTON—I am indebted to the Senate. Senator Bourne's motion seeking the tabling in the Senate of the report provided to the government by Arthur Andersen Corporate Finance on the ABC's digitisation strategy was the subject of an order of the Senate on 31 March. I do not propose to table the document, on the basis that it is subject to public interest immunity. It is a confidential report obtained by the government for the purpose of consideration of issues which are currently being considered in the budget. It forms an attachment to a cabinet submission and has been lodged with the cabinet office. Cabinet's consideration of the budget has not been completed. It is not reasonable or appropriate to expect the government to make public a document forming part of cabinet deliberations. The Commonwealth has consistently opposed release of material relating to cabinet considerations in the parliament and in the courts. These considerations are particularly important where those deliberations relate to matters to be considered in the context of the federal budget.I note that the Australian Labor Party, when in government, also accepted the need for confidentiality of cabinet documents. Although I am always extremely loath ever to rely on anything that Senator Bolkus says, on this occasion I will, but only on the basis that it forms part of a tabled statement from the then Attorney-General, Mr Lavarch. In response to an order of the Senate in relation to documents relating to payment of legal costs for Carmen Lawrence in her legal challenge to the WA royal commission into the Penny Easton affair on 29 June 1995, the statement read in part:Some of the documents caught by this motion I have not tabled on the basis that they are subject to legal professional privilege or public interest immunity or both. The documents which are caught by the motion which I have not tabled include:requests by the Attorney-General for advice from his Department;the advice provided by his Department;documents, including this advice, and advice from the Department of Finance, which formed the basis of Cabinet ministerial and consideration of these matters . . . . . . . . . . . . These documents clearly fall within the accepted boundaries of legal professional privilege and public interest immunity. The Senate has traditionally recognised such claims.Further, on 13 November 1995 in response to an order of the Senate relating to the appointment of the acting director of the National Gallery of Australia, then Senator McMullan said:One document, a letter from the Minister for Communications and the Arts to the Prime Minister . . . has not been tabled. The government considers that the public interest would not be served by having the document produced to the parliament. It deals with the consideration by cabinet of a relevant matter. It is a well-established convention that deliberations by cabinet are confidential, and no useful purpose would be served in this instance by a departure from that convention.19:35:001929Bourne, Sen VickiSenator BOURNETW4NSWAD00—by leave—At the time the Senate asked for the document to be tabled I had not heard many of the things that the Minister for Communications, the Information Economy and the Arts (Senator Alston) just said. I must say that the document was not half as interesting to me before that statement as it is now. Before that statement we had heard a few comments from Mr Errol Simper and we had read a couple of comments in newspapers and elsewhere probably related to that article. Who knew whether they were true. Now, of course, I am assuming that everything I have read is true. The document is absolutely fascinating. It has a great deal in it that all of us who have the ABC's best interests at heart really want to read, and it is in no way laudatory of the government. Perhaps I am wrong, but the only way to prove that to me now is to come up with the document, to table it and to demonstrate that that is not the case. Until I see the document that is what I am going to assume is in it.It was interesting that the minister said that the document had been—I was writing the words as he said them and I may not have them quite right—`attached to a submission to cabinet and lodged with the cabinet office'. It is fascinating that you can attach something to a submission to cabinet and lodge it with the cabinet office and therefore you never have to show it to anybody again as long as you live. You could do that with anything, could you not? The mind boggles. It is just wonderful. Think of the things you could hide that way. It is just extraordinary.As far as I knew, this was an independent study—by an independent and very well-respected organisation—of the ABC's digitisation strategy. What can be secret about that? If it is purely because of a budget strategy, about whether or not the government is going to fund the ABC—which I now doubt, having heard all this—to digitise its entire production and transmission network, it is obvious that when I bring up this motion again, as I will, after the budget, the minister will be more than happy to table it immediately. I tell the minister now that that is what I am going to do. I look forward to seeing it and to being proven wrong. Concerning all my suspicions about this document, I look forward to seeing it and to being proven wrong about what I now think about document.Bills1929r4551929Debate resumed.19:38:001929Evans, Sen ChrisSenator CHRIS EVANSAX5WAALP00—Unfortunately, I do not think this is going to be one of my best contributions, given interruptions and the haste with which I was called originally. But I do wish to continue some remarks I started before the dinner break, because it is important to make a few points in this debate, although, as I said earlier, I think we covered much of the ground the first time around—the first time the parliament dealt with this bill.I did want to make some further observations. First, I want to try to dispel the myth that somehow this bill is going to fix up the problems that people perceive with native title—that there is going to be some quick fix put in place by the parliament by which those people who are concerned about native title are going to be satisfied and the problem as they see it is going to go away. Of course, that is not going to happen, and those who have created that expectation will have a lot to answer for when they go back to those communities. For 200 years Aboriginal people have been striving for recognition of their rights to the land in this country. Having finally received some recognition, they are not going to give up that recognition lightly and they are not going to walk away from asserting those rights.For the government to pretend that they can introduce a sunset clause in this bill and create the impression that in six years time all of this will be resolved because the people will have filed a claim and had it dealt with and somehow native title will be fixed is, firstly, a legal nonsense. But it also fails to have any appreciation of the way common law rights of Aboriginal people to native title are likely to develop in this country. We have seen the experience of the development of native title law in other countries, which has taken anywhere between 50 and 100 years. Our very brief experience with our own native title leads me to believe that it will be a long time before the issues surrounding native title are resolved in this country.That is not to say that the parliament should not act; that is not to say that parliament should not put in place procedures and regulations and laws to help create a structure for the resolution of native title claims and the fair and just recognition of the rights to land of Aboriginals and other stakeholders. But for people to somehow think that this is the end of the process, that what happens in the Senate in the next few days is the end of the process, is quite wrong and extremely misleading. We are at but one stage in a developmental process, and it is a very early stage.I think the government has made a serious error in not inviting the involvement of Aboriginal people at the early stages of the development of their legislation. The Aboriginal people have a right to be consulted, just as the pastoralists and the miners and other people have been consulted. In my view, without the consensus agreement of all those stakeholders and a broader Australian community consensus, we will not get any constructive development on native title. We cannot legislate in favour of part of the Australian population over the interests of another group of the Australian population. That will not resolve native title issues in this country. We must attempt to legislate for all stakeholders and for all Australians. I think the government has missed that opportunity by choosing to legislate on behalf of what they think are their constituent groups.I suspect that this process will be repeated sometime down the track, that we will have to debate native title issues again at some future stage, because we have not built a national consensus about the resolution of native title issues and we have not included the Aboriginal people in genuine discussion about their legitimate aspirations. We will at some stage have to do that if we are to make real progress in resolving a whole host of issues that relate to the development of native title in this country. I do want to put down that warning. To think, whether the government's legislation is carried or not, that somehow we are resolving native title issues by this process is a complete fallacy.I also want to mention my own state of Western Australia briefly, because we have had the most serious difficulties in Western Australia in terms of overlapping claims, particularly in the Kalgoorlie region, with its high level of mining and exploration activity and what has turned out to be a whole raft of competing claims by Aboriginal groups and individuals to native title in that area. Because of the history of Aboriginal settlement in the area and the mining activity, we have a very confused and difficult picture. I think it is fair to say that the Kalgoorlie goldfields region represents the most difficult case in terms of trying to resolve issues associated with native title.I do want to say that I think there have been some serious errors made by the mining industry, usually the smaller miners, by attempting to buy progress in these areas. There has been a lot of concentration on the fact that so many Aboriginal groups and individuals have sought to lodge claims and make financial settlements with mining companies to allow exploration, but I think it is also the case that a whole range of mining companies have sought to buy favour and buy progress with their claims in a way which has made a rod for their own backs. I think the large mining companies will certainly tell you that.From our point of view, it does not do us any good to be too critical of those Aboriginal groups or individuals who have sought to take advantage of the situation. The way the system has developed, I think there is fault on both sides, and the behaviour of some of the mining companies has been highly cynical. I think they have now realised that they made a rod for their own backs. The behaviour has become so cynical that in Western Australian recently we saw a mining company—headed by the brother of the Premier, as it turns out—which actually paid for the lodgment of a native title claim over a piece of land on which they had mining exploration permits. That is the level of cynical and, some would say, corrupt behaviour that has developed.We will have to deal with that, but I think it is fair to say that this legislation goes no great way towards resolving those issues; those claims are lodged and those developments have taken place. Without some general agreement on the principles to be applied or without some serious negotiations and face-to-face discussions on the ground this legislation, whatever its form, will not fix those problems. People have to start dealing with that reality because the legislation is not the panacea for those real practical difficulties that exist on the ground.I wish to make another point: the right to negotiate is one of the most important aspects of this bill because it is about recognising Aboriginal people as having rights and giving them power. The government seeks in this legislation to reduce that power. I find that very interesting because Senator Herron and others have always argued that the future for Aboriginal people lies in them having independence rather than welfare dependency. That is quite right. But that independence must be built on them having rights and power, and one of the very things that give them rights and power, the Native Title Act, this government seeks to water down. It is because Aboriginal people have been asserting their rights and power in their relationship with mining companies and pastoralists that the government has sought to try to reduce that power. The government must deal with the problem. They cannot have it both ways. Empowering Aboriginal people is a good thing. That is what the Native Title Act in part did and their attempt to water it down does them no credit.I want to make a point on behalf of Senator Cooney. Senator Cooney, unfortunately, will not be with us for this debate. He is on a delegation. As senators would know, he has taken a very keen interest in the issue and he played a big part in the debate the first time. Senator Cooney, who is a very accomplished parliamentarian, wanted to make the point that despite the great dispute about the history of relationships between Aboriginal people and non-Aboriginal people we have accepted since 1993 the preamble to the Native Title Act, and that includes a clause which says:(b) to ensure that Aboriginal peoples and Torres Strait Islanders receive their full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture fully entitle them to aspire.Senator Cooney makes the point that these very laudable objectives contained in the preamble to the Native Title Act have been supported by this parliament and that the government, in seeking to amend this legisla tion, continues to support that preamble by having it remain within the act. Senator Cooney wants me to bring to the attention of the parliament the fact that the government is maintaining that preamble but in his view the government's amendments run contrary to those laudable intentions contained in the preamble. He thinks it would not sit at all well for this parliament, which endorses the preamble, to endorse the government's amendments as well. He sees them as being contradictory and he believes that the amendments passed by the Senate the last time are a much better match for the laudable sentiments that we all profess to share. I do want to put that on the record for Senator Cooney, who is most concerned that he was not able to be part of this debate. I am sure the debate will be poorer for his absence but he remains absolutely committed to the protection of native title and will, I am sure, follow the debate with interest and seek reports on his return.It is very important that this parliament do all that it can to protect and enhance the rights of Aboriginal people to native title in this country. This is a defining moment in the development of this country and it is essential that this parliament provide the leadership on this issue. Without that leadership Australia will be a much poorer nation.19:49:001932Allison, Sen LynSenator ALLISON1M6VICAD00—There are two main issues that I want to address this evening in this debate on the Native Title Amendment Bill 1997 [No. 2] and they are, firstly, local government and the role which it can play in bringing communities together and providing leadership and education and, secondly, conservation and the way in which the Native Title Amendment Bill has the potential to remove a very vital level of protection for our natural environment.I have been enormously encouraged by the work of local government in this country since the Wik decision. A publication entitled Working with native title was put out by the Australian Local Government Association last year and was followed up by a number of seminars and workshops in local governments right across Australia.After I attended the ALGA's national conference late last year I reported to the Senate the groundbreaking resolutions that were passed at that conference, almost all of them unanimous, which reflected the desire by local government to lead their communities into reconciliation through understanding. In my view, local government much more than other levels of government understands the importance of united communities. They know, because they are in touch with those communities, that issues of the significance of native title must be handled with care and sensitivity and in the local context.The ALGA was here in Canberra yesterday and it asked for a role in the all-important task of raising awareness and providing a vehicle for education. It is most unfortunate that local government is very rarely brought to the table or asked for its collective view. In this I would urge the federal government to take up the offer of the ALGA to run a national community based public education campaign with opportunities for constructive mediation and negotiated outcomes.I bet you that if we surveyed a slice of Australian society right now to find out how much people understood about native title and the 10-point plan, you would find that there is a very high level of confusion. I say confusion advisedly because this government has, in my view, done its utmost to mislead people about what native title is actually about.Sir Rupert Hamer, respected former Liberal premier of Victoria, this week drew attention to this state of confusion in his letter to the Age. He pointed out that Senator Minchin had been saying that his bill respected native title in line with the Wik decision and provided for claims to be made on about 79 per cent of Australia's land area, including over pastoral leases. On the other hand, Dr Patrick Wolfe says, and I think correctly, that the effect of the bill will be to convert pastoral leases into freehold property.It is clear that the government cannot deny that its legislation allows the compulsory acquisition of native title rights and allows state governments to reissue leases as a different form of tenure. Aboriginal property rights are removed without their permission by removing their right to negotiate. It is, in fact, privatisation of public land. And if there was still any doubt in anyone's mind, we should refer to the statement of the Prime Minister (Mr Howard) last year that `primary production', referred to in the legislation:. . . goes far beyond pastoral activities that are currently sanctioned under pastoral leases.He said:. . . those activities will be able to be carried on without any let or hindrance from either native title claimants or indeed any other section of the Australian community.Senator Minchin confirmed this in a letter that he sent to one of his constituents recently. He said:It is true that the amendments will permit the Commonwealth, a State or Territory to acquire native title to allow a leaseholder to undertake activities for which a form of exclusive tenure is necessary (for example, to undertake horticulture or other high intensity agriculture). This may include an upgrade of a lease to freehold.Of course, once horticulture or other high intensity agriculture is permitted, native title can no longer coexist. The rights of the farmer then prevail.Sir Rupert Hamer concluded his letter by saying that, unless the Senate reaches agreement about the objectives of the bill and the extent to which they are achieved:. . . any election called on this issue will not relate to the merits of the bill, it will rest upon uncertainty and prejudice.Primary production has a wide definition and it includes just about any commercial land or water use. We must remember that much pastoral lease country has already been damaged by overgrazing, erosion, species extinctions and land clearing. The rate of mammal extinctions in Australian rangelands is already the highest in the world. Primary production has indeed a very wide definition and will allow uses that have not previously been allowed on pastoral leases.It is this threat which prompted the National Biodiversity Council to speak out last week and to say that the 10-point plan posed a significant threat to Australia's biodiversity. These 17 eminent scientists, advisers to government, are concerned about the changes to land use in the upgrade of pastoral leases. They said:Australia's record of land management since European occupation has been appalling, with many extinctions and removal of a large percentage of many different pre-1750 habitat types. Less than 8% of the natural habitat remaining is protected in reserves. In many places, loss of species and simplification of ecosystems has resulted in decreased opportunities for future generations of Australians.Biodiversity conservation must consist of careful management of unreserved land; that is, land used for grazing, agriculture, mining and human settlement. The Council believes that it is imperative that controls like those imposed on the use of leasehold land remain and, indeed, they should be strengthened in accordance with our improving understanding of how best to manage land sustainably.The NBC calls on the Government to honour its commitments to the International Convention on the Conservation of Biological Diversity by not pursuing proposed changes which may permit the opening up of new and potentially inappropriate land uses across much of Australia. It is our opinion that opening up leasehold land to full primary production and facilitating land uses which are equivalent to those on freehold land will seriously diminish our ability to protect the biodiversity Australians are so fortunate to have inherited.Dr Tim Flannery, author of The Future Eaters , joined these scientists and urged the government to carefully consider the implications for Australia's biodiversity.This upgrading, as we know, also opens the way for irrigation and will greatly limit the ability of governments to manage river courses and water resources. A case in point that I would like to mention here is the Fitzroy Dam and the associated irrigation project in the Kimberleys. A feasibility study, as I understand it, is now under way for the construction of dams on the Fitzroy River—this is the largest river in the Kimberleys—to allow the conversion of pastoral leasehold land to a quarter of a million hectares of irrigated agriculture, mostly presumably cotton. This could use 2,500 gigalitres of water annually.With this legislation there would be nothing to prevent this scheme going ahead, despite the environmental damage which it would cause, which would include salinity, pesticide pollution, threats to species of fish and birds, and loss of environmental flows. Such a scheme would also wipe out native title and, with it, the culture of Aboriginal communities in the region. The traditional owners would have no say over such a scheme.Our national parks and state forests are also under threat. Approximately 23 per cent of Australia is reserve. The amendments allow reserve land to be used for non-reserve purposes where it would cause `no greater impact' than a use consistent with reserve purposes, and that will be done again without reference to native title holders. The states can develop management plans or put in, for instance, camping facilities without any requirement to negotiate with native title holders. Negotiation, under those circumstances, is not discussion about money; it is simply an agreement about how these places are managed.Uluru and Kakadu are two of Australia's best known reserves. I recall the great resistance and the enormous fuss that was created some years ago by the Northern Territory government when Uluru was handed over to Aboriginal people and then managed under negotiated leases by the Territory. Uluru has been conserved for its natural beauty, for its biodiversity and, above all, for its deep spiritual and cultural importance to Aboriginal people. I know that non-indigenous people who go to Uluru often come away with a much greater understanding of the importance of that place and of Aboriginal culture. They recognise the deep spiritual meaning that is attributed to that place.With the involvement of indigenous people, there ought to be more opportunities for reserves of this kind. Cape York and the Kimberleys are two which come to mind. The 10-point plan, however, even refers to mining in national parks, which is currently illegal in most states, and allows mining to proceed on reserves without negotiation with native title holders. The states are even able to convert vacant crown land to a reserve just to facilitate mining projects.The government says that its 10-point plan will remove the racial discrimination inherent in indigenous people having the right to negotiate with miners and not pastoralists. I think this really is the essence of what is driving this legislation. The Howard 10-point plan is not about giving pastoralists certainty; it is about giving miners certainty, certainty that they can ride roughshod over native title and over the environment. My colleague Senator Woodley said yesterday that thousands of hectares of Aboriginal land have already been taken by mining companies since the 1950s, and he referred to the lengths to which mining companies have gone to stop native title.The right to negotiate is fundamentally important to indigenous Australians. It is not the right of veto, as the government well knows, but it is the right to negotiate. Senator Chris Evans pointed out a moment ago the importance of this right to negotiate and the difficulties being encountered in Western Australia but, as he says, this bill will go no way to solving that problem and I do not need to expand on the sort of damage which is done to the environment by mining companies in this country. Overall, I believe that the threat to the environment from mining or from agriculture is not well understood out there in the community. The debate, quite rightly, has centred on what this will do to indigenous Australians and it comes back, I think, to that question of accurate information and awareness.I want to return to the question of the ALGA, too. The ALGA says that the overwhelming feedback from local communities is that they are seeking accurate and dispassionate information to assist in developing their understanding of native title: what the bill does, what range of options are available for responding to native title claims and how they can respond within a broader reconciliation context. They say that local communities are trying to find non-adversarial ways of handling indigenous issues, including native title.Local area agreements, of course, have been very successfully handled and have kept the matter well and truly out of the courts. I would have thought that this would be the way forward and something that the government should be encouraging. I must say that it is my experience, too, that communities are very willing and very keen to do what they can to further reconciliation. I am now receiving invitations to join local communities in reconciliation ceremonies, and just this weekend my local council, the City of Port Phillip, has its annual community day and the theme is reconciliation and unity.If this legislation has done nothing else, it has generated a groundswell of support for indigenous Australians which will not easily be quashed. If the government's 10-point plan gets through pretty much intact, millions of Australians will be deeply hurt and angry that we have taken such a huge step backwards in our very slow progress towards land rights and cultural recognition of and reconciliation with our indigenous people.The Democrats have argued before that any watering down of native title is also a watering down of environment protection. Conservation of culturally significant places for Aboriginal people is almost always critically important to the environment as well. But just as indigenous people believe they belong to the land—a notion which is at odds with our own concepts of ownership—we must recognise that we will never be reconciled collectively with this country until we embrace the rights of Aboriginal people to relate to the land in the way which is appropriate for them. After 210 years, the best we have been able to come up with is native title. Let us not destroy that small effort, that small sharing of the wealth that this country represents for all Australians.20:05:001935Brown, Sen BobSenator BROWNQD4TASAG00—I begin my comments on the Native Title Amendment Bill 1997 [No. 2] by honouring the Ngunnawal people, on whose land this great parliament is built and on whose land this capital city of Australia has been placed. I want to honour also the indigenous people throughout this country, who enrich our lives and to whom we owe so much, particularly in identifying as Australians whether we are in this country or whether we are elsewhere, and to whom we have returned no such great honour, identification or pleasure in life.At the outset, I wish to foreshadow an amendment that I will move on behalf of Senator Margetts that we:Omit all words after "That", substitute:"in view of:(a) the insufficient consultation and negotiation with Aboriginal and Torres Strait Islander people regarding changes to the Native Title Act 1993 and the entire issue of indigenous land justice; and(b) concern that passage of the Native Title Amendment Bill in any form will further diminish Aboriginal and Torres Strait Islander native title rights and will greatly impede the process of reconciliation and healing between indigenous and non-indigenous people; and(c) the fact that there are many unresolved issues with regard to indigenous sovereignty and unfulfilled promises with regard to the implementation of a treaty process with the indigenous people of this continent;the bill be withdrawn until a comprehensive process of negotiation and agreement with the many indigenous communities of this continent has taken place".What is the plight of the indigenous people of this continent, this country of Australia? It is one of dispossession, and it is an ongoing history. Although it was left out of the history books for nearly two centuries, in the late 1990s every mature Australian has to accommodate to the fact of an invasion which was followed by many thousands of killings, great disruption, torture, pain, and destruction of the oldest continuing culture—and the peoples of that culture—that is known on the face of the planet.In more recent decades, which have encompassed certainly the early part of my lifetime, that dispossession has continued with the saga of the stolen children, for whom the leader of this country has yet to find a place in his heart to apologise, as a starting point for trying to make amends where no true amends can be made. I am afraid that, if we take an historic view of it, the process which is unfolding in this parliament right now is a continuing process of dispossession. It is a process of taking rights, taking land, taking association with the land from the indigenous people of this country. Instead of this process now being stealth in stealing, it is legalised stealing that this legislation is about—the stealing of rights, the taking of rights, where ethics would forbid such action.One of the problems with the process is the immediacy of the political situation. Time and again we hear in this place and outside that, above all, we must find a resolution here—and I read that as `we must cave in to the iniquitous 10-point plan even further so that we avoid a race based election, so that we avoid a double dissolution at all costs. But how can we be asked to erode more of the rights of the indigenous people of this country, none of whom are allowed a voice in this place, so that we avoid an uncomfortable election, if needs be, but institute a race based country—a country where the indigenous people are second-class citizens by the law that we pass through this place; a country where their rights to the land and their rights to their culture are further eroded by our action?So do we avoid the public debate, do we avoid an election based on this issue—as is threatened by the government, and as worries Senator Harradine and so many other people so much—by a process of instituting, against the rights and wishes of the indigenous people, the very thing that election is supposed to threaten? Instead of it being through an election process, it becomes a process that disadvantages the indigenous people and embarrasses those of us who believe in a fair go in this country for decades, if not centuries, to come. Avoid the immediate problem: take it off the ledger, and let the indigenous people bear the penalty of that forever more.I for one do not think that way. I for one as a Green believe that, in everything we do in this place, we have to look future generations in the eye and say, `We thought of you; you were as important as we were. The only difference between you and us is that you can't vote now, whereas we can.' I do not think we will ever mature as a nation, unless we take on board not just some of the culture of the indigenous people but their philosophy as well, and take into account those future generations in everything we do. If we cannot say, `We thought of you and, after deliberation, we were sure we were acting in your interests,' then we should not be going down that path.Yet this parliament is going down that path of taking away from future generations of indigenous people in this country their rights to the land, their rights to their culture therefore; and taking away from all Australians the right to know that at last we came to terms with our history and, through a process no less than a treaty, gave what we could of what was left rightfully back to the indigenous people of this country.Senator Harradine said last night that this is an occasion which will not come again—`If we don't get it right, I cannot foresee a future time when we will get it right.' How wrong he is—because we are not getting it right here, and it is going to continue to trouble us, and we are going to have to get it right further down the line. History is going to judge this moment in this parliament very strongly and very negatively indeed.When you look at the movement towards a world declaration on the rights of indigenous people, which has now been in train through the United Nations for more than a decade, let us see how we measure up—and I will mention just some of the draft articles of this draft declaration on the rights of the 300 million indigenous people around this world. Article No. 7 is on cultural integrity. It says:Indigenous peoples shall be free from cultural genocide.Governments shall prevent:(a) actions which take away their distinct cultures and identities;(b) the taking of their land and resources;(c) their removal from their land;(d) measures of assimilation;(e) propaganda against them.This is the world's move towards an accommodation with indigenous people, one which Australia should be leading—but how far short of this are we? Article 26 on ownership states:Indigenous peoples have the right to own and control the use of their land, waters and other resources.Indigenous laws and customs shall be recognised.Item 27 on restitution states:Indigenous peoples have the right to return of land and resources taken without their consent.Where this is not possible, they shall receive just compensation in the form of land and resources.Item 28 on the environment states:Indigenous peoples shall receive assistance in order to restore and protect the environment of their land and resources.Army activities shall not take place on the land of indigenous people without their consent.Hazardous material shall not be stored or disposed of on the land of indigenous people.Tell that to the indigenous people of South Australia or the Northern Territory. It further states:Governments shall take measures to assist indigenous peoples whose health has been affected by such material.Article 30 on resource development states:Indigenous peoples have the right to determine strategies for the development of their land and resources.Governments must obtain the consent of indigenous peoples before giving approval to activities affecting their land and resources, particularly the development of mineral, water and other resources.Just compensation must be paid for such activities.To put a bush term on it, we do not come within a country mile of the way the rest of the world is thinking. We certainly do not come within a bull's roar of those stipulations on the proper treatment of indigenous people around the world, including those here in Australia.In February I had the great privilege to visit the Kimberley for the first time. That was at the invitation of the Bunuba people. For a week I took part in a canoe expedition of 15 people, half of whom were the local Bunuba people, down the Fitzroy River for some 300 kilometres. I will not take a great deal of time to describe the magnificence of that country, its gorges, waterfalls, woodlands, eagles, salt water crocodiles, fish, insects, kingfishers and brolgas—the magnificent interrelationship which we were privileged to have between the Bunuba people and their land; the coming to three galleries of indigenous art, some of it thousands of years old along the gorge country of this great river, some of it not described in contemporary descriptions of such storehouses of indigenous treasure in Australia.Towards the end of that trip it was pointed out where it is proposed to build a dam up to 100 metres high in the final gorge which will flood back many kilometres an area bigger than that of the Ord River scheme. Then I was told how a 300 kilometre canal is proposed from that dam or at least from the so-called Geikie Gorge below that dam to the plains near Broome. Then I was told how up to 250,000 hectares of those plains will be converted for cotton crops, with the whole panoply of environmental threats that that presents.Sadly, I had to tell the Bunuba people that they will not determine such things under this legislation, though it be leasehold land which affects them in many parts of that scheme, because those rights have already been given away. Their rights to negotiate on dams are not entertained in this debate by either the government or the opposition because they have been given away. Their rights to negotiate on that 300 kilometre canal are not entertained in this debate because they have already been given away by the government, the opposition and Senator Harradine. Their rights to negotiate on cotton crops spreading across leasehold lands are no longer there because they are not being entertained in this debate. They have been given away by the government, the opposition and Senator Harradine.The same applies to quarries, and the same applies to woodchip operations and farm stay tourism and fences, roads, offshore fisheries, oil derricks and wharves, and on and on it goes. The deceit of this debate is such that in shorthand now when the press refers to the right to negotiate it is not said at the end `on mining' because that is all that is left—holes in the ground. Everything else has been conceded already by the power entities in this parliament. Yet Senator Harradine says that on this occasion the signs are that we might end up with a piece of legislation from this chamber with which all stakeholders can live. What on earth does he mean? How can the indigenous people live with an outcome which deprives them of the right to have a say in their land forevermore?How can those of us who do not want to see a divided country in the future say that we are close to an agreement, that the signs are there for an agreement? No, they are not. The signs are there for a get together by the major players in this parliament to sell out the Aboriginal interests in this country. It is written on the wall. It is going to be written down in history as another one of the episodes of stealing the rights and interests of the original Australians. But this time it is the parliament that is doing the stealing.How can we feel anything but shame at being part of that process? How can we say that the important thing is that we get an agreement? Didn't they once say that the important thing was that the children get a white style upbringing? Didn't they once say that the important thing was that farmers be protected or that squatters be protected from raids by indigenous people? Isn't this just another set of excuses for justifying the unjustifiable?We are so far from coming up with a fair, just, honourable, reasonable and certain outcome, as Senator Harradine put it, that there is no way that such an outcome will come of this process in the next few days in this place—no way at all. Even at this eleventh hour I would appeal to the Labor Party, the Liberal Party, the National Party, Senator Harradine and Senator Colston to examine again the conscience of this nation if it takes again from the indigenous people and, worst of all, if parliament gives the stamp of approval.We can excuse ourselves by saying, `Well, we avoided this as a topic in the next election,' but we have to live with the fact that it is something that will not go away. There will be turmoil for this country in the future—as we have seen elsewhere in the world—if we do not get this right. We are charged with getting it right, and we Greens will fight to the last to try to get a right outcome, which means also a just outcome. But, as I said, we are a bull's roar from that at the moment.At the front of the United Nations Draft Declaration on the Rights of Indigenous Peoples, there is a quote from Mathew Coone Come, Grand Chief of the Grand Council of the Crees, whom I have been very privileged to meet on a couple of occasions in the United States. He has written that:The Draft Declaration . . . began as a cry from the indigenous peoples for justice, and it is drafted to confirm that the international standards which apply to all peoples of the world apply to indigenous peoples.I hope that something of that cry from the heart, which the indigenous people of this country must have towards this historic occasion, will turn around some of the hard hearts that have turned their backs on indigenous rights during the passage of this legislation so far in this parliament. (Time expired)20:25:001938Faulkner, Sen JohnSenator FAULKNER5K4NSWALP00—It is important that the Senate gets this issue right because the Howard government to date has shown both a complete unwillingness and a total incapacity to do so.The approach of the Prime Minister to native title has been insensitive, narrow minded and mean spirited. He has consistently refused to listen to those who have a different view from him. Right from the start, the government set this bill up to become a double dissolution trigger. The bill was to be the vehicle to deliver a poll-driven and socially divisive race election and with that agenda as the basis of their approach the government has thwarted our attempts to work constructively on this issue and negotiate in good faith. They have not been willing to compromise at all.On the other hand, I think it is also important to remind the Senate that, far from being obstructionist, the Labor opposition has bent over backwards to work with the government and with all stakeholders to try to come up with a workable solution. We did not block this legislation last year. We passed the bill even though more than 80 per cent of our amendments were defeated. We felt that what we did achieve with our successful amendments was a more acceptable piece of legislation that at least had some chance of survival in the High Court. We validated titles that were potentially invalid. We were successful in making the legislation subject to the Racial Discrimination Act and we were successful in retaining the right to negotiate. We still contend that the bill, as amended and passed by the Senate, is one that should be acceptable to the government. It took into account the needs of all stakeholders.Even at this late stage, we believe that, if the government starts to show some good faith, it is still possible that a bill can pass with broad support from the Senate, and then the ugly threat of a divisive, race-based double dissolution election can be averted. We do not want to fight an election that promotes division within the community and where the government will try to exploit community fears and prejudice. However, we believe that this legislation, unamended, is unconscionable and should not be passed by the Senate.There really is no better indication of the government's motives on native title than John Howard's own advertising campaign which was exposed by the Labor Party during recent Senate estimates committee hearings. John Howard's own office was responsible for devising two newspaper advertisements on native title and having them exhaustively focus group tested. One of those was inspired by John Howard's infamous performance on the ABC's 7.30 Report where he held up a map of Australia, 78 per cent of which was stained brown, declaring that the brown represented the area of land that may be subject to native title claim. The other advertisement was based on a photograph of a corrugated iron humpy entitled `The Australian dream'.The Prime Minister's office asked the Office of Indigenous Affairs to provide the text and directed the Department of Prime Minister and Cabinet to book $600,000 worth of newspaper advertising space. These ads were to appear, of all things, over the Australia Day weekend. The only conclusion one can draw is that the Liberals considered that the Australia Day weekend was the most appropriate time to launch such damaging and divisive advertising. I think this exercise provides a very instructive insight into what you could expect during a John Howard orchestrated double dissolution election campaign on native title.But beyond John Howard's election agenda, beyond the next election, more than anything, unless it is amended this legislation will deliver uncertainty to all stakeholders. There will be ongoing uncertainty of title, uncertainty of rights, uncertainty of laws and uncertainty over business and livelihoods. Yesterday's High Court decision on the Hindmarsh Island Bridge Act is proof of that. All the double dissolutions in the world will not save unconstitutional legislation. Yesterday's High Court decision, properly analysed, must send a warning signal to the government. The risk with the legislation before the parliament today is that, if the government does not accept reasonable amendments to its bill, we will see years of endless litigation and we will see years of social division.A prudent approach would see the government back down from its brinkmanship. It would see the government work with us now to achieve a workable and acceptable solution to all parties. For the Labor Party, especially after yesterday's High Court decision, it is critical that an amended bill be subject to the Racial Discrimination Act. For the Labor Party, the right to negotiate must be retained. Of course the other risk is that, if John Howard's legislation passes unamended, it will be decimated by the High Court and we will have to start all over again. The bitter irony of such an ordeal will be that the next government, of whatever political persuasion, will inevitably have to revisit and embrace our amendments to make the legislation workable.This debate does have international significance. It has ramifications for Australia's standing in the international community. We will not stand by and see Australia's reputation at risk of being sullied on race issues. We will not be silent as Australia risks losing its high standing as an advocate for racial tolerance and indigenous rights. We will not be silent if the Howard government's policies see us become an international pariah on these issues.But this bill not only affects our international standing. Most importantly, it will deter mine the way that Australia treats its indigenous people. This bill may on the face of it be a bill about land management and a new layer of land title which the High Court recognised in the Mabo decision. But at the heart of this bill is a moral issue. Do we turn our backs on our indigenous people? Do we insult them by allowing this bill to go through unamended? Do we wind the clock back prior to 1967 in our treatment of Aboriginal and Torres Strait Islander people and say, `For a brief few years you had native title. But now we'll give you bucket loads of extinguishment'? I just want to say this: the opposition in the Senate refuses to allow Australia to go down this path without putting up amendments and without supporting other amendments which will take the discrimination out of John Howard's divisive bill.20:37:001940Bartlett, Sen AndrewSenator BARTLETTDT6QLDAD00—I believe it is important at the start of this speech in particular to acknowledge that this debate on the Native Title Amendment Bill 1997 [No. 2] is taking place on the traditional land of the Ngunnawal people. I also wish to recognise the many other indigenous people who have tried to make their message heard in relation to this issue over what seems like a very long period, including those present now in the gallery and others who have been in this house over the past few weeks, the past few months and indeed the past few years. As my Australian Democrat colleague Senator John Woodley said yesterday, we all need to recognise that the decisions we make on this piece of legislation will directly affect these people—potentially in an extremely significant way.Senator Brian Harradine indicated in his second reading debate contribution the first time we debated this bill that we as a parliament and as the Senate, as the chamber of review—the house that most accurately reflects the views of the Australian population—have an opportunity to respond to the High Court decisions on native title in a positive way or a negative way, in a constructive way or a purely political way. As he said:We can see this as an opportunity to contribute to reconciliation and restoration of trust— or we can play politics and fail once again, as we have so many times in the past.It is my not overly uplifting view that we have failed once again. I think no-one on any side of this debate could possibly suggest that this legislation and in particular the debate that has surrounded it have contributed to reconciliation and restoration of trust. This legislation is flawed and, in the Democrats' view, the amended version passed by the Senate at the end of last year was also flawed, if in a slightly less significant way.The political approach to this issue, in my view, again highlights the defects in the adversarial two-party system of Australian politics. I think the Labor Party, in some respects, seem to have treated native title as a problem rather than a marvellous opportunity. Mr Beazley, the Leader of the Opposition, at the Labor Party's recent Hobart conference, spoke about his grand solution to this native title issue. His solution was to get all stakeholders in a room and basically make them all talk it through and not let them out until, to use his words, `this problem is solved'.In my view and I believe the Democrats' view, that whole aspect of continually looking at native title as a problem, as a bad thing, as some difficult thing, as a risk to investment, as something that is a real pain that we just have to try to get rid of or deal with and forget about is why the parliament has failed to address this issue adequately. It is not a problem. Look at the situations that people in countries in Europe—in Ireland, for example—face. They stem back many centuries and are so difficult to resolve. Often times societies do not get the opportunity to be able to grasp a specific moment to really address those centuries-old problems—the legacy of history that is impossible to escape from unless it is acknowledged and addressed. Here in Australia we have had this marvellous opportunity—due to the High Court rather than any wisdom of us unfortunate politicians—to be able to address and respond to this problem and to some extent deal with it. I feel, unfortunately, we are going to stuff it up again.At the end of the day I think everybody wants certainty, to use the magic word. They want to know at least in some respect what the future holds in what always seems like an uncertain and unpredictable world. Clearly and undeniably, this bill, either in its current form or even in, in the Democrats' view, the amended form as it was passed last time around—we will see what we end up with at the end of this second go—will not provide certainty. That is the con which is being sold to the Australian people. If I can quote an article by Margo Kingston in today's Sydney Morning Herald dealing with the High Court decision from yesterday:. . . the government has proclaimed, eyeball to eyeball, that its bill provides constitutional certainty. After yesterday's Hindmarsh decision, all that is certain is that the question is unresolved.This will not provide certainty, this will not address the issue and this will be yet another missed opportunity to take a positive step forward.How can Minister Minchin continue to proclaim that his legislation is beneficial to indigenous people, as he insists on doing, when the Prime Minister (Mr Howard) says that it swings the pendulum away from Aborigines? `Away from' does not sound too beneficial to me.As the Democrats continue to point out, a double dissolution election on this issue would be a socially divisive gamble—not to mention the $60 million cost involved. To pass a piece of legislation, the process of which may or may not meet the constitutional provisions for a double dissolution trigger, and the content of which may or may not survive the High Court challenge, does not sound too certain to me.I find it very sad that we have not been able to address this issue positively, that indigenous people seem to have been put last once again. The stances of the major parties seem to have been driven as much by political advantage as by proper policy considerations. I mentioned in my speech on the original bill—I think in November last year—the shadow of Queensland state politics which has been cast over this legislation and this issue, and the stance of the various parties in relation to it. I think that is even more relevant this time around, with the Queensland election even more closely looming. In the same way that Labor's position on the Hindmarsh Island bill was clearly heavily influenced by state political factors in the lead-up to the South Australian election, the pending Queensland election is also obviously heavily influencing Labor's stance on this bill.It is clear that the Labor Party in Queensland and Mr Beattie, the state opposition leader, in particular are very nervous about the impact of the native title issue on the their electoral chances. As Senator Woodley mentioned in his speech yesterday, Mr Beattie seems to think that he has a commitment from the federal ALP to allow mining leases to be automatically renewed without going through the processes of the right to negotiate.The Democrats will be standing a large number of candidates in the upcoming state election in a large number of seats across the board, including many marginal seats. I wish to state clearly to the Labor Party that I personally will be watching very closely to see not only their performance on this bill in this chamber—which, as I stated last year, and I am happy to repeat now, has not been particularly inspiring to date on some issues—but also what concrete commitments the state ALP will make on native title issues prior to the pending state election. There can be no doubt that the preferences of Democrat voters will be pivotal in deciding the outcome of the number of seats in Queensland. I think the ALP cannot simply expect to rely on being slightly less worse than the coalition.Of course, to be fair, I must acknowledge that the Queensland National Party's performance on this issue has been nothing short of disgraceful—deliberate fear, distortion and misinformation from day one. I know I am still naive—and in some ways I hope to retain a bit of naivety for as long as I can—but I still found the extent of misinformation, of distortion, of deliberate deception that has surrounded this issue very depressing and very distressing. That goes back to my concern and disappointment that I expressed at the start of my contribution this evening that we have missed this opportunity and failed to grasp the perfect chance that the High Court delivered to us to take a real step forward.It is a tragedy that Queensland and Australia will have to suffer the long-term impacts of such dishonest actions, which extend beyond political parties to many other organisations in the community, which have clearly been conducted solely for a perceived political gain. I can only hope that that gain does not eventuate so that the perpetrators of that deception will not be inclined to do it again.On a positive note, as we are talking about native title, I spoke in my original speech last year—the first time around on this issue—about a few of the many positive and constructive outcomes which are a direct result of native title. It is not just a feel good thing. It is not just the feeling, `This is an historic opportunity. Let's get together and hold hands and say how united we are.' It delivers concrete opportunities, concrete possibilities. These have already occurred as a direct result of the High Court opening up this issue and making us recognise the reality of native title, which parliament, over so many years, continued to turn a blind eye to.I listed a number of these in my speech during the first passage of this bill through the Senate. I will not go through all those again. But I would like to mention a couple that relate specifically to Queensland. One that I spoke of in my original speech relates to the agreements that have been reached with the Quandamooka Land Council in south-east Queensland and the Redland Shire Council, which is adjoining to my home city of Brisbane.Another is the negotiations in the Cape York heads of agreement, which were the result of longstanding and very detailed negotiations between a wide range of people in the local communities in far north Queensland—the various indigenous communities from that very large, very diverse, very rich and very wonderful region of Queensland. The pastoralists, environmentalists and indigenous community are among the people that are involved in the ongoing future of the Cape York region—a perfect example of local people, local communities getting together to work out things for themselves about how they might like to progress forward. That is the sort of thing I would have thought the coalition would have approved of. But, unfortunately, specifically in relation to the Cape York heads of agreement and more broadly in terms of native title, they have seen fit to undermine, destroy and ignore.In relation to the agreement closer to where I live in the bottom corner of Queensland, with the Quandamooka Land Council and the Redland Shire Council, I think it is important to recount again, in an abbreviated form, what that agreement was about. Each area has its own specific and unique characteristics. This sort of thing is an example of what can be done elsewhere. But the big thing about it, and why native title is so important to this sort of agreement, is that it is not just a symbolic thing, it is an example of how indigenous people, wherever they are from and whatever their history, that have any connection with this area are able to be recognised as having a legitimate place.Given some of the negative aspects of Australian history, clearly the original inhabitants of this land were not recognised as having any role at all, to put it mildly. There were some very negative, appalling things that were perpetuated in specific examples. But even in the most mellow description of the approach we have taken, one could say that the role of the original inhabitants was not considered to be relevant to how we progressed ourselves as a nation and to how we moved in to the future.Native title and the recognition of it serve to demonstrate to all sectors of the Australian community that the original inhabitants also had a place. They weren't out there getting rights and special privileges. They were just being given a place; they were just being given recognition. To reduce or remove that recognition in a wide range of circumstances, as this bill seeks to do, is very unfortunate—to be mild again and to try to choose non-inflammatory language.The Quandamooka Land Council, in their agreement with the Redland Shire Council, which to date, or at least as far as I am aware of, has related specifically to North Stradbroke Island—although, they have traditional connections to a broader part of that region, including Moreton Bay and other islands in that region—has been a really positive example of the opportunity native title presents to bring people together; to explore and to walk forward together in to the future; to accept each other's rights, which relates to the wonderful High Court's phrase of `coexistence'; to accept each other's interests; custodial obligations over the area; traditional and current local government obligations; and to ensure that the special environment of this region—in this case, North Stradbroke Island and the surrounding area of Moreton Bay—is preserved for present and future generations. It is not just being locked up for the local Aboriginal people to say, `This is ours. Bugger off. You can't have it. We're going to jump all over it and poke our tongues out at you.' It is a collective, cooperative and inclusive agreement that seeks to work together to move forward.Native title is central to that sort of agreement in that area and in so many other parts of the country because it recognises coexistence—it recognises the role, the history and the future of indigenous people. We have to acknowledge our history—that does not mean wallowing in guilt; it just means acknowledging it. Remember that in the same way we are now looking back at the actions and the mistakes, as well as the achievements, of the past, so too will Australians of the future look back on what we have done, what we are doing today and what we will do over the next few days in this chamber. I fear that, when they look back at our actions and the opportunities we had and the opportunity I believe we are about to squander in addressing this issue, the judgment of the Australians of the future will not be very kind or positive.I will be symbolic for a moment. I think I made a similar analogy to the following in my last speech, but I will do it again—what the hell. There are a lot of empty seats around us tonight. The seats are not so empty behind me—which is nice to see. The people are bearing witness to us this evening as to what we are saying about this and will look upon us as we deal with what we are about here and now. We can think of the empty seats all around us as representing the many people who will come after us and who will bear witness not just to what is happening then but to what has happened before. Think of how they will look upon what we have done and, I suspect, reflect on how we could have done it rather better. Perhaps that might give us at least a little bit of pause to think about a long-term approach rather than the immediate perceived political advantages—imagined or otherwise—that each of us may be able to extract out of this in the little political maelstrom that we exist in from day to day; to try to take a longer-term view from the past and to the future and perhaps keep a broader perspective.This afternoon I was involved in a student youth leadership program that is organised each year. I do not wish to bring that into this debate to politicise it. I think one of the good things about it is that it is multi-partisan and non-political. One of the big things about it is that it talks about leadership and the role of people looking beyond short-term advantage to the broader community issues that need to be involved. I simply ask all senators to at least consider all the inspiration and ideals that are present there as well as the immediate political context that we are so often focused on.That concludes my contribution. Before I finish, I inform the Senate that because of the extended sittings tomorrow and this evening, Senator Lees, the Democrats leader, has had to go to Brisbane for engagements tonight and tomorrow. As well as making my contribution, I seek leave to incorporate in Hansard the speech that she would have given during the second reading debate but for the change in sitting arrangements.Leave granted.The speech read as follows—I rise to speak on the Native Title Amendment Bill and I open my remarks by acknowledging the, Ngunnawal people, the traditional owners of the land upon which parliament sits.I would also like to acknowledge the Kaurna people of the Adelaide region on whose land I live. And on behalf of my Democrat colleagues, I thank the five clans of the Wik people who danced so powerfully on Tuesday in the forecourt of Parliament House. Madam President (deputy?) I am proud to stand in this place as the Leader of the Australian Democrats, a party, which has never wavered on Wik.From the passage of the first land rights legislation and the-first judicial recognition of native title under Mabo, through to the defining judgements in the Wik case, the Democrats have always supported the rights to land of indigenous people.We will continue to do so and we will not be swayed!Much has been made of the need to compromise on this legislation.But some of us seem to have forgotten that the High Court has already compromised.After the acknowledgment that Aboriginal people were here when the first white settlers came,• it was determined that Aboriginal people have NO CLAIM over freehold title. That is, no claim over any of that land regardless of any previous wrongdoing or ownership rights. The Aboriginal people accepted this as long as they had the right to negotiate. . . • Land over which there is no title—unalienated Crown land—may be claimed if an ongoing association or attachment can be shown.• Land under lease, must be shared—with the pastoral lease prevailing.These determinations Can be seen as nothing other than a compromise for the original inhabitants of this continent.This compromise—along with further compromises—was enshrined in law with the Mabo Legislation.Now we are back here being threatened by a Government saying that if it doesn't get its way as far as the removal of even more rights from the original inhabitants of Australia, then it will call an election. The Government threatens that it will go to a double dissolution in the hope that it will be able to pass the entire 10 point plan at a joint sitting.Well, I think we have compromised enough. This government got 8/10 last time we saw this bill. 80%. Is that enough? What more do they want.This is a defining moment in Australian history.At this point in our history we have the chance to right some wrongs, to demonstrate to ourselves and to the rest of the world that we, the Australian people, still adhere to the notions of justice, equality and a fair go. That we will not ask our Aboriginal people to give up even more rights.The decisions which we will take in this place over the next few days will mark out the kind of society we take with us into the 21st century. My earnest hope, and that of my colleagues, is that as the elected representatives of the Australian people we shall emerge from this debate with a decision which truly reflects the fundamental decency of the Australian people.Backyards, 79% of Australia "under threat", jobs, exports, balance of trade,—the dire invocations have gone on and on. . . ..They say the land will be locked up, it will be rendered useless, it will be wasted.Yet the proponents of these arguments know them to be false.They know these things are not true and it is to their eternal shame that they continue to peddle these lies. And lies are what they are. Backyards are not going to be taken, the economy hasn't ground to a halt and the sky hasn't fallen in—nor will it.I am delighted to be able to say that hundreds of thousands of Australians, from all walks of life, and from all points on the political compass, have taken the trouble to inform themselves about the issues surrounding Native Title.This knowledge and understanding has been sought—not out of fear and loathing—but out of a genuine desire to get to the truth, and a desire to see that justice is done to all parties.I am delighted to observe that the indefensible scare-mongering that has gone on, has fallen, very significantly, on deaf ears.This issue, and the rights of Australia's indigenous people, addresses and flows from the three pillars upon which Australian society is built the pillars of legality, morality and spirituality.Let's take the pillar of law.The High Court has ruled in favour of indigenous native title rights- not once but twice. The Law Reform Commission has come out against the Government's Native Title Amendments. Countless eminent legal figures (including the former Liberal Minister for Aboriginal Affairs) have spoken out against the Native Title Amendment bill.The law is, fundamentally, about rights and obligations.Wik is about rights. It is about the right to have ceremonies, the right to gather food, the right to a continuity of relationship with the land and the right to negotiate with others as to the management of that land.Wik is about obligation. It is about the obligation we all have, as Australians, to ensure that the smaller, least powerful and most disadvantaged groups in our society are treated equally, and according to the principles as laid down in our law. And it is about the obligation to acknowledge the special rights Indigenous people have as the first Australians.And in this context it is important to stress again, Wik is not about taking land from pastoralists. It doesn't seem to matter how often this is pointed out to this Government and others by successive court decisions and by eminent legal counsel. Wik clearly says that pastoral rights prevail over native title rights. I shall say it again. The Wik judgement says that pastoral rights are to prevail over native title rights.All of my Democrat colleagues in this place have visited indigenous communities and have met with indigenous people.We have rigorously examined the consequences of the Wik judgement. And we have found nothing to be afraid of Nothing. We accept the obligation we have convey this to the Australian people and we shall continue to do so.We know that millions of Australians are listening and that they understand.Let me now discuss this issue in the context of morality.I am confident that there is not Senator in this place who would—or could—accuse Australia's churches and church leaders of self-interest or duplicity in this issue.Many of our church leaders and churches have come out in strong support of Australia's indigenous people. Why? Because it is, fundamentally, an issue of morality—of what has been done and what ought to be done.Of right and wrong. Of justice and equality. Of fair play. Of decency.You will have noted that I have resisted what is an almost overwhelming temptation to attack the government on its quite disgraceful behaviour over this issue.I believe that there is far too much at stake here to waste time reiterating- what more and more Australians already know—and that is that this Government's behaviour has been and continues to be shameful.Enough of that.I now draw the attention of Senators to the role of spirituality in Australian society. We move towards the religious feast of Easter. There would be no one in this place who would, at least publicly, dare to cast aspersions on those Australians who take Easter to be an important spiritual event on the calendar.But somehow, for some people, it is considered fair enough to sneer and cast aspersions on indigenous people when they try to explain to the rest of us that their interaction with their country is a spiritual event. An indigenous person from Western Australia said,"If you were in a darkened room and there were people talking about the land, you Would be able to pick the indigenous person straight away, because that person would talk about the subject, the land as if it were a relative.I guess the single most important relationship we have with the land, and the way we understood it, is the interconnectedness of everything. Animals, plants, us, spirituality, everything is all interconnected and our management of it boils down to this. one cannot survive without the land. People who destroy the country, destroy themselves.Let us remember that law, custom and culture are tied to country.If the Government extinguishes native title, it will entrench the problems that have evolved following the displacement of Indigenous people from their land. Health, housing, education, all these things will come after appropriately acknowledging that fundamental connection to country that is so intrinsically important to Indigenous people.What sort of society would legislate against someone else's spirituality that very element of existence which distinguishes humanity from the rest of the life forms we share this planet with?I hope and pray—not the Australian society that we want to take into the 21St centuryHow will history view us?If we don't know where we've come from, we can't know where we are going.I've looked at where we're going- and the stark choice we as a nation face at this moment in history.Let's look at where we've come from. And let us not flinch when we do.Historian Rosalind Kidd discovered this quote in a Brisbane newspaper published in 1880."This, in plain language, is how we deal with Aborigines: on occupying new territory the Aboriginal inhabitants are treated exactly the same way as the wild beasts and birds the settlers may find there. . . Murder and counter-murder, outrage repaid by violence, theft by robbery, so the dreary tale continues, till at last the blacks, starved, cowed and broken hearted, their numbers thinned, their courage overcome, submit to their fate and disease and liquor finish the work which we pay our native police to begin."Of course we must also acknowledge the tens of thousands of Indigenous Australians who were stolen from their families, their culture and their communities and the irreparable damage that has done.At this moment in Australia's history we must learn from history, not deny it—certainly not dismiss distasteful and unpalatable historical episodes as just `the black armband view of history".As a nation, we now have the opportunity to remedy many wrongs in our country's past. If we refuse to acknowledge the reality of history, if we refuse to apologise and refuse to work actively together towards reconciliation, we do no more than wind back the clock.This Senate has an historic opportunity to ensure Native Title rights remanI am aware, as are we all, that the ALP is currently the target of concerted lobbying activities by big business. I urge the ALP to stay strong in the face of this pressure.Equally, I urge Senator Harradine NOT to compromise away the essential rights we have left. To stand again with the Australian Democrats—and the majority of the Australian people who are aware of what is at stake here over the next few days.We must oppose the worst of the Native Title Amendments. The worst of the 10 points.The Australian Democrats have said time and time again that certain parts of the Native Title Amendment Bill are wrong. They were wrong when they were introduced the first timeThe Democrats still say these amendments are wrong and for a second time we will support Australia's indigenous people in their fight for fair access to their land.Should the government push this issue to the point of a race-based election, I state here and now that the Democrats are prepared to fight an election on this issue.It is a matter of principle.Why?Because we know that the Australian people are fundamentally decent and fair-minded and we are confident that the Australian people do not want any Government to discriminate against Australia's indigenous people.On behalf of the Australian Democrats—from all of our state and territory divisions and members I assure Aboriginal people that we will not abandon you.We will not stand idly by while your property rights are watered down watered down and washed away.We know you were the first Australians, that your land and your communities were stolen from you and voting against the more pernicious parts of this legislation is the very least we can do.Debate (on motion by Senator Troeth) adjourned. Adjournment1946Motion (by Senator Troeth) proposed:That the Senate do now adjourn.194620:57:001946Lundy, Sen KateSenator LUNDY7G6ACTALP00—I rise this evening to talk about an issue that has occupied a significant proportion of my time throughout my period here in the Senate. It is one that relates to information technology. Certainly this government's total disregard on this issue is something that has become an actual symbol of their lack of leadership for the Australian people. I note with interest the contributions of Senator Tierney over the last couple of adjournment debates in trying to put on the public record some credentials that this government has in respect of IT policy.This evening I would like to put the perspective that Labor holds in respect of this government's credentials on IT policy. It is quite a shameful one. The government has, in fact, squandered the opportunities that have presented themselves to this country. Over the last two years, we have seen this government continually on the back foot when it comes to seeking out and taking hold of the opportunities that are presented to us.There is so much ground to traverse in this contribution that it may in fact take me beyond the time I have to speak in this adjournment debate, but I would like to start the story with what I see is a significant plank in this government's deficient approach to IT policy. It relates to the identification of Australia's advantages in this area. What are our strengths? What can we hang our advancement on?One thing that has become very clear over the last two years is the role of government procurement in relation to information technology policy. We know that the largest IT contracts in this country belong to the Commonwealth government. As of the budget statements of last year, we know that this government handed these contracts as a gift to private corporations. The significance of this should not be underestimated. The policies, the procedures and the practices which this government put in place to implement this procedure have not only deprived Australian industry of the opportunity to participate in these contracts but in fact reshaped the opportunities that present themselves.I refer back to Labor's period in office when the Office of Government Information Technology was established. The basis upon which this office was established was quite sound. It was about trying to harness the efficiencies across a whole of government regime with respect to information technologies and it was about looking at a coordinated approach. We have heard many times in this chamber references by government members to a particular report called Clients first saying that somehow the government's outsourcing agenda was driven by the Labor initiated report Clients first. I am here this evening to draw the distinction between what Labor's vision was for government IT and what this government has done to completely thwart the principles and processes that were put in place.Clients first identified the potential for efficiencies to be gained. It identified outsourcing as a mechanism for doing that, but it did so on the basis that a benchmark had to be established and the actual precise merits of establishing what efficiencies were needed to be put in place. It was quite a dry formula and I think one that could have been improved. But in handing over the power to this government and the change of political party in control of this country we have seen a complete shift in the approach to the IT outsourcing of government. No longer is it an issue of trying to achieve efficiencies. It is now an issue of complete restructuring of our Australian IT industry.Through the IT outsourcing process, this government is attempting to harness leverage that will completely disarm and disenfranchise the Australian IT sector. The mechanism for doing this is using vertically integrated and laterally connected cluster contracts, the first of which is cluster 3 which is now being let to a multinational corporation called CSC. It is interesting to note that the savings advocated as the initial justification for this project for this financial year are completely unrealised given the contract has only just been let and we are now only a short month or two away from the budget.The processes initiated by this have changed the future for our Australian information technology industry. No longer can Australian companies hold up the badge of honour that comes with holding a government contract as a credential to improve their export markets. Under cluster 3, they are perpetually relegated to the subservient position of subcontractor. This denies the sector the opportunity to do business in the way that they set themselves up to do it. The complete domination of the Australian IT sector by these large players is not something that only the Labor Party is concerned about: we know the sector is angry. Their words, their pleas and their messages to the government are being completely ignored.In this regard it is an interesting process to start analysing what this government's motivation is for what seems on the surface to be a completely unreasonable policy. Why would a government compromise part of our private sector which has the potential for the fastest growth, the most new job opportunities of any sector in the country? We know this because of global trends. We know the information technology sector is one that is growing and has the most potential to grow. So what could possibly motivate this government to deny this sector that opportunity in Australia? I look to a couple of indicators, but the most outstanding is one of laziness. When you have a government that has no creativity, no scope to look beyond what the simple, lazy policy solutions are, you find a government that has the most clout, the most power and can provide the simplest solution.We see this government wooing multinational corporations. We see them inviting them to cabinet. We see CEO after CEO of major multinational corporations spending time with the Prime Minister and telling him what he can do for them. The Prime Minister is not telling these corporations what they need to do if they want to get a bite of the Commonwealth government's IT outsourcing cherry. We see these corporations dictating to this government what they demand if this country wants the privilege of their presence here. This is what distinguishes Australia from the rest of the world. What we have is a situation where there are lucrative opportunities in the area of IT outsourcing, but these lucrative opportunities should be there to help foster and grow our own uniquely innovative sector.One of the important issues is definition. I for one know that there is a complex blend of multinational corporations that employ local people and that distinction becomes quite clouded. But, in the first instance, the Prime Minister must be looking towards the strength of this country and providing our own businesses with opportunities; not excluding them. (Time expired)194821:07:001948O'Chee, Sen BillSenator O'CHEEEU4QLDNP10—I rise tonight to outline to the Senate a tale of shame and sham which has destroyed the lives and hopes of some 250 meatworkers in Grafton, plus the aspirations of hundreds of small businesses in the Clarence Valley who are owed money by a group of companies which have been put under administration. While these companies say they do not have the money to pay the meatworkers and the unsecured creditors, this very group of companies is involved in a joint property development in Melbourne with Delfin corporation which is expected to net this group in excess of $100 million. In spite of this, this group felt so overburdened by debt that they found it necessary to put the two companies that operate the meatworks in Grafton into administration last year, saying that they could no longer afford to pay their unsecured creditors. At the outset, I think it might help the Senate if I seek leave to incorporate in Hansard a document entitled `Timeline of the R.J. Gilbertson Group'.Leave granted.The document read as follows—Timeline of R.J. Gilbertson Group27th April, 1992 Deed of Cross Guarantee created.10th June, 1997 Deed of Cross Guarantee created. 26th June, 1997 Deed of Revocation of Class Order lodged in respect of Deed of Cross Guarantee dated 27th April, 1992 as amended.31 st July, 1997 Gilbertson's Pastoral Company Pty Ltd and Caroline Springs Nominees Pty Ltd create charges in favour of ANZ Banking Group Limited. (These companies had been released from cross guarantees on 26th June, 1997). 10th September, 1997 Marwen Properties creates charge in favour of Suncorp-Metway Limited.3rd October, 1997 Deed of Revocation of Class Order lodged in respect of Deed of Cross Guarantee created on 10th June, 1997.7th October, 1997 S.L. Horne and G.J. Kelly appointed Administrators of R.J. Gilbertson (Queensland) Pty Ltd and Giltech Pty Ltd.13th October, 1997 R.J. Gilbertson (Holdings) Pty Ltd creates charge in favour of Sumikin Bussan International (Australia) Pty Ltd21st October, 1997 Administrator's report to creditors: "I do not consider it is in the interests of any classes of creditors for the company to be put into liquidation."30th October, 1997 creditors vote for Deed of Arrangement.12th December, 1997 meatworks closes.22nd January, 1998 Administrators write to creditors advising that at least $6 million will need to be received for anything to be available to unsecured creditors.February, 1998 Ian Causley pushes ASC and Clarke & Company to follow up possible preferences and Deeds of Revocation following information provided by union.25th March, 1998 Bill O'Chee advised by Clarke & Company that an offer of a further guarantee is on table.25th March, 1998 George Gilbertson writes to Clarke & Company offering further guarantees.30th March, 1998 Clarke & Company write to Ian Causley enclosing letter of 25th March, 1997 from George Gilbertson.EU4O'Chee, Sen BillSenator O'CHEE—I seek leave also to table a document which is a letter dated 25 March 1998 addressed to Mr Sterling Horne by Mr George Gilbertson, as well as Australian Securities company searches in relation to the companies Caroline Springs Nominees Pty Ltd, Marwen Investments Pty Ltd and Gilbertson's Pastoral Company Pty Ltd.Leave granted.EU4O'Chee, Sen BillSenator O'CHEE—I thank the Senate. The basic thrust of what happened is this. The companies in the Gilbertson group were subject to what is called a class order. That meant that the companies could consolidate all of their accounts. To make sure that creditors were not left out of pocket, there was also a deed of cross-guarantee so that each company in the group guaranteed the debts of each of the other companies in the group. There were in fact two deeds of cross-guarantee. The first one was entered into on 27 April 1992 and was amended from time to time. A second deed of cross-guarantee, which was not identical to the first, was entered into on 10 June 1997. On 26 June 1997 the first deed of cross-guarantee was revoked by a deed of revocation of class order. It subsequently transpired that on 3 October 1997 the second deed of cross-guarantee was revoked.Why are these dates important? These dates are important for the following reason. Administrators were appointed to the companies which operate the Grafton Meatworks just four days after the revocation of the second deed of cross-guarantee. So what had happened, of course, was that the cross-guarantees were pulled away, so the rest of the group could sail happily off with the money and two companies, R.J. Gilbertson (Queensland) Pty Ltd and Giltech Pty Ltd, which had incurred all the liabilities in Grafton, were left there unable to pay the creditors. In other words, it was a sham transaction intended for one reason, and that reason was simply to profit the rest of the group at the expense of the workers and the unsecured creditors of Grafton.The dates are very important because it took a substantial period of time, as it always does, for the deed of revocation which was lodged on 3 October to actually be registered at the Australian Securities Commission. So that when the administrators, Mr S.L. Horne and Mr G.J. Kelly of Clarke and Company in Melbourne, were appointed they did a search, and of course it did not reveal the fact that these guarantees had been pulled out, because the guarantees had only been pulled out three days beforehand. But the shameful thing is this: the directors knew, and the directors did not tell.So, on 21 October last year, not knowing any better, the administrators wrote a report to creditors which said:I do not consider it is in the interests of any classes of creditors for the company to be put into liquidation.Of course, that was not correct, and I will outline to the Senate why that was not correct. That was not correct because, if those companies had been put into liquidation at the meeting which occurred on 30 October last year, both deeds of revocation would have been invalid. A deed of revocation is invalid if within the subsequent six months the companies in question are put into liquidation. But, by putting the companies into administration and a deed of arrangement and not into liquidation, the effect has been that the creditors may not be able to set aside those deeds of revocation. So the creditors in Grafton are left short-changed and the rest of the company is left with all of the assets.But it is worse than that. As a result of efforts by the honourable member for Page in the other place, Mr Ian Causley, pressure was placed on the Australian Securities Commission and Clarke and Company to follow up about these deeds of revocation. Pressure was placed on the administrators to see that the right thing was done. So the administrators did follow it up and the Australian Securities Commission did follow it up, and full credit to the Australian Securities Commission on that matter.On 25 March this year, which was just Wednesday of last week, I was informed by a representative of Clarke and Company that a new offer of a guarantee had been put on the table. Indeed, that very day Mr George Gilbertson wrote a letter to Clarke and Company, which I have tabled. I read to honourable senators a seminal portion of that letter. It says:Caroline Springs Nominees Pty Ltd, Melt Nominees Pty Ltd and Caroline Springs Pty Ltd cannot be included in this indemnity, as those companies are not wholly owned subsidiaries and their only function is to act in a nominee capacity on behalf of all land-holders in respect to the Caroline Springs project.It is true that Caroline Springs Nominees Pty Ltd is not a wholly-owned subsidiary but the Gilbertson group owns 472 of the 670 ordinary shares on issue by that company—so they control it. And that company has the land, I understand, just west of Melbourne—Senator Carr might be more familiar with it—which will be the subject of the Caroline Springs joint venture with Delfin corporation, which the Australian Securities Commission advised me today is likely to net in excess of $115 million to the Gilbertson group of companies. Yet this is the same group of companies that says that they do not have enough money to pay the workers and the small businesses of Grafton.It is also interesting that the list of companies offered as guarantors in the letter of 25 March does not include Dromana Meat Company Pty Ltd and Greenham Abattoirs. This is interesting because both of those companies were parties to the deed of revocation dated 26 June 1997—in other words, they would normally, if these companies had been put into liquidation, have had to cough up for the debts of the companies which are insolvent. But they have been excluded, just like Caroline Springs Nominees Pty Ltd.Dromana Meat Company is an interesting story. Honourable senators might like to know about this one. Dromana Meat Company was the company which the Gilbertson family tried to put into voluntary liquidation in 1992. Indeed, the company was actually dissolved in 1993. There is only one little problem: in 1994 a Judith Vagg approached the court and succeeded in getting an order for the company's dissolution to be declared void. I have not had the opportunity to contact Judith Vagg or her lawyer, but I put everybody on notice of the fact that I will be contacting her lawyer tomorrow because I believe that she is a creditor who has not been paid out and who has, in fact, been hidden in the process of the liquidation. But certainly the Gilbertson group has a habit of playing loose and fast with insolvency administrations. And here we find another example.And while the workers and the small businesses of Grafton struggle, where are the Gilbertson family? In Melbourne, in Camberwell, in Hawthorn and the leafy suburbs enjoying the fact that these companies, if they have their way, will net them all the benefits, and the losses will be left with the unsecured creditors in Grafton.AW5CARRSenator Carr—So are you supporting the AMIEU?EU4O'Chee, Sen BillSenator O'CHEE—I am actually supporting the AMIEU because we are working together to ensure that justice is done and mark my words, justice will be done.195021:18:001950Calvert, Sen PaulSenator CALVERT5F4TASLP10—I wish to make a couple of comments about a particular publication called the Tasmanian Master Builder , which I have in my possession and which I intend to table later. It is the edition for March 1998. It draws attention to the parlous state of the building industry in Tasmania. In 1996-97 we had 119 building apprenticeship commencements. Going back to the early days of 1987-88, we had 308; in 1995-96, 135; and in 1996-97, only 12 months ago, we had 119 building apprenticeship commencements. I am sorry to say that for 1997-98 the total number of building apprenticeship commencements in Tasmania is 49. We are doing it tough in some areas of the economy in Tasmania. Some other areas are doing quite well.I have been supporting a particular project that has been put forward as a federation project. It was first proposed by the Tasmanian Building and Construction Training Board as a training project to improve the situation of building apprenticeships in Tasmania. If this project were to attain federal funding of some $14 million over four years it would provide the opportunity for something like 200 traineeships or apprenticeships and an additional 300 construction jobs. We have the situation in Tasmania at the moment where these construction workers and building apprentices are leaving the state because of the lack of work. It needs a circuit breaker at the moment. There are a lot of projects on the drawing board but not too many of them are coming to fruition at the moment. So federal intervention with a Federation Fund grant would certainly go a long way to alleviating the problem.This particular project has the support of Senator Harradine, Senator Brown, myself, Senator Gibson, Senator Abetz, Senator Mackay, Senator O'Brien, Senator Sherry, Duncan Kerr, Dick Adams and Harry Quick. Warwick Smith wants to support it but he has a few doubts about its viability. Some of my colleagues are undecided and a couple of others have yet to reply. This project has the support of the union movement, most of the Labor Party and most of the Liberal Party. It is a very important project. It is something that is sorely needed in my state to alleviate the decline in building apprenticeships.Just today I was pleased to have the chairman of the AFL proposal, Mr Dick Watson, here to talk to some of the representatives on the Federation Fund board to put the case to them and show them how serious we are about this and what this may do for Tasmania.There has been a lot of misinformation about this project. The fact of the matter is that we are the only state in Australia that does not have a stadium with lights or an international type facility for international sporting teams—cricket teams or football teams—or international artists, which every other state has. It would be most appropriate to have a stadium dedicated in the year 2000 to the federation of our wonderful country there in the capital city of Hobart.This particular project has brought out the best in parochial interest in Tasmania, as these sorts of things normally do. There are some people who would like to see it built at Oatlands or Burnie or Launceston. But when I left Tasmania last Sunday Hobart was still the capital city and I would think that a facility like this should be in the capital city. It would be something that the state would look at with great pride in the years to come.There is no doubt that a stadium like this would attract Australian Rules Football teams to play roster games there. This particular project is based on some of the clubs playing there. North Melbourne and Hawthorne have already indicated that they would like to play some of their roster games there. In fact, two practice matches there in January, when there were other events on in Tasmania, attracted crowds of 15,000 and 12,000 people respectively. That was to practice games. I think that indicates the great following that Australian Rules Football has in Tasmania. Having said that, we have also produced many fine players. I fear that unless we have a facility to allow AFL teams to play in Tasmania then the AFL will lose an area that has been very productive in the past in producing footballers of the ilk of Baldock, Hudson and the like, who have enhanced the Australian Rules Football game in Australia.I seek leave to table this particular special edition of the Tasmanian Master Builder, which points out the advantages of a construction project that has been highlighted—the super stadium project. The project would improve facilities for agriculture and for cricket, football and other sports in Tasmania, provided it got small help from the federal government. I hope that in the considerations that are coming up in the next month or so the AFL project, which has the support of the state government, does gain the recognition and support that is needed to help the apprenticeships and building workers that are needed so urgently in Tasmania.Leave granted.21:25:001951Senate adjourned at 9.25 p.m.Documents19511951The following documents were tabled by the Clerk:Aboriginal and Torres Strait Islander Commission Act—Aboriginal and Torres Strait Islander Boundaries and Electoral Systems Review Panel—Final boundary recommendations.Australian Bureau of Statistics Act—Proposal No. 5 of 1998.Christmas Island Act—List of applied Western Australian Acts for the period 13 September 1997 to 20 March 1998.Cocos (Keeling) Islands Act—List of applied Western Australian Acts for the period 13 September 1997 to 20 March 1998.Customs Act—Approved application form—Business plan outline.Export Control Act—Regulations—Statutory Rules 1998 No. 54 Migration Act—Regulations—Statutory Rules 1998 No. 53.Remuneration Tribunal Act—Determinations Nos 8-11 of 1998.Sales Tax Determination STD 98/3.Superannuation Act 1990—Deed to establish an occupational superannuation scheme for Commonwealth employees and certain other persons, pursuant to section 5—Twelfth amending deed, dated 25 March 1998.1952The following documents were tabled pursuant to the order of the Senate of 30 May 1996:Indexed lists of departmental and agency files for the period 1 July to 31 December 1997—Centrelink.Department of Social Security.Answers to Questions on Notice1953The following answers to questions were circulated:1953(Question No. 1098)10981953Margetts, Sen DeeSenator MargettsDX5WAG(WA)00 asked the Minister representing the Minister for Defence, upon notice, on 12 March 1998:Can details be provided of the exact number of Australian Defence Force personnel who have been assigned to the Gulf area since February 1998, together with a breakdown of the numbers of personnel from each unit, the place where they are usually based when in Australia and the activities that they will undertake whilst they are in the Gulf region.1953Newman, Sen JocelynSenator NewmanBE4TASLPSocial Security10—The Minister for Defence has provided the following answer to the honourable senator's question:Up to 24 March 1998, a total of 247 ADF personnel had been assigned to the Gulf area. Many of those personnel, particularly RAAF aircrew transited into and out of the Gulf during transport operations.On 24 March 1998, 167 assigned ADF personnel were in the Gulf area, comprising mainly Special Forces, Air Force personnel, operational support staff and Liaison Officers. Although there will be some routine variations, the numbers in the area are not expected to change significantly.A breakdown of ADF personnel in the Gulf area and their tasks is provided in the attached table.UnitLocation in AustraliaPersonnel Deployed to GulfActivities in GulfNo 33 SquadronRAAF Richmond, NSW82Air Transport/Air Refuelling303 Air Base WingRAAF Richmond, NSW1Operations Support321 Air Base WingDarwin1Medical SupportNo 3 RAAF HospitalRAAF Richmond, NSW1Medical SupportHeadquarters No 84 WingRAAF Richmond, NSW8Operations SupportHeadquarters No 86 WingRAAF Richmond, NSW3Operations SupportAircraft Research and Development UnitRAAF Edinburgh, SA2Operations SupportAir Transportable Telecommunications UnitRAAF Richmond, NSW4Communications SupportHeadquarters Airfield Defence WingRAAF Amberley, QLD2Ground Defence SupportHeadquarters Air Lift GroupRAAF Richmond, NSW1Operations SupportRAAF Staff CollegeRAAF Fairbairn, ACT1Movement CoordinationRAAF Telecommunications and Support Unit GlenbrookRAAF Glenbrook, NSW5Operations and Logistic Support152 Signals SquadronSwanbourne, WA3SASR CommunicationsArmy Technology and Engineering AgencyMelbourne1Technical Support to SASR (Civilian)School of InfantrySingleton, NSW1Technical Support to SASRDirectorate of Maintenance Engineering (Army)Melbourne1Technical Support to SASRSpecial Air Services RegimentSwanbourne, WA92Training and operations as approved by Australian GovtHeadquarters Special OperationsSydney2Liaison Officer, Kuwait (1) Operations Staff (1)Australian Defence Force Warfare CentreRAAF Williamtown, NSW2Australian Embassy Staff Kuwait (1) Legal Services (1) RAAF WilliamsRAAF Williams, VIC1Australian Embassy Staff RiyadhHeadquarters Australian TheatreHQAST, NSW1Intelligence SupportNo 37 SquadronRAAF Richmond, NSW19Air TransportNo 34 SquadronRAAF Fairbairn, ACT4Air TransportNo 1 Financial Services Unit BrisbaneBrisbane1Financial ServicesNo 126 Signals SquadronSimpson Barracks, VIC4CommunicationsDefence Public RelationsCanberra1Public RelationsJoint Movement Coordination CentreSydney1Movements OfficerHeadquarters Tactical Fighter GroupRAAF Williamtown, NSW1Command Australian Service ContingentRAAF Support Unit, WaggaRAAF Wagga, NSW1ChaplainTotal247