1999-10-133914SENATE952501999-10-13The PRESIDENT(Senator the Hon. Margaret Reid) took the chair at 9.30 a.m., and read prayers.Business95259525Motion (by Senator Patterson) agreed to:That the provisions of paragraphs (5) to (7) of standing order 111 not apply to the Fisheries Legislation Amendment Bill (No. 1) 1999, allowing it to be considered during this period of sittings.Censure Motion9525952509:31:009525Bartlett, Sen AndrewSenator BARTLETTDT6QLDAD00—by leave—I move:(1) That the Senate: (a) censures the Minister for Family and Community Services (Senator Newman) for her contempt of the Senate in failing to comply with an order made on 30 September 1999, that a document, namely the welfare reform discussion paper originally prepared for her Press Club speech on 29 September 1999, and now being provided to the Minister's newly-established reference group on welfare reform, be tabled by 3 pm on 12 October 1999; and (b) resolves that: (i) the Minister purge the contempt in which she has held the Senate by tabling the document on or before 3 pm on 18 October 1999, (ii) if the document is not tabled by this time, the question on any motion moved by the Minister for: (a) the introduction of any bill, (b) the consideration of any stage of any bill, or (c) in committee of the whole, any amendment or any request for amendment to any bill, not be put until the Minister has undertaken to lay the document on the table, and (iii) the Minister not be heard on any other matter relating to her activities as a minister. (2) That this resolution remain in force until either the document is tabled or until the last sitting day of 1999, whichever is earlier.(3) That, as the first item of business on the Monday of each sitting week, the Minister be required to make a statement to the Senate outlining whether she is intending to comply with the order and, if not, outlining her reasons, and a motion may be moved without notice to take note of the Minister's statement.This matter, as senators would be aware, relates to the failure of the Minister for Family and Community Services, Senator Newman, to comply with an order of the Senate and table a discussion paper on welfare reform which was highlighted a number of times in the press prior to the minister's Press Club speech on 29 September as containing the government's blueprint for where they saw the future of welfare policy in this country. As senators would be aware, the minister changed her mind about providing the discussion paper at that time, allegedly under pressure from the Prime Minister. Instead, she proceeded with a speech which was a bit of a vision thing rather than an outline of concrete proposals. The only concrete proposal contained within it was to set up a reference group to develop a green paper for the government for consideration by cabinet, to see the light of day somewhere around the middle of next year.The Senate supported the motion that I moved for that discussion paper to be tabled in this chamber and to be made public. From my point of view, and without speaking for the rationale of all other senators, I believed it was important that, if we were to have a public debate on the future of welfare policy in this country—something that the Democrats certainly believe is important—we should do it from a fully informed position and should have a clear idea of what the government's thinking is. Obviously a discussion paper doesn't require the government to be locked into the proposals contained within it, but it gives clearer parameters for the public and the Senate to consider the future directions in which welfare policy may go in this country.The minister has chosen not to table the paper. Her rationale in her statement yesterday was basically that she was still developing it and would provide it to the Senate when she provided it to the reference group at some time down the track. The minister may indicate in her contribution today as to when that may be. From the point of view of the Democrats that isn't adequate, for two reasons. The broader reasons I will go to in some detail. Firstly, there is the need to respect the powers and responsibility of the Senate when a return to order is made for a particular document to be tabled. It is a measure that the Senate uses from time to time to enable public scrutiny of documents that the Senate believes it is appropriate to be made public. It is not something that is done lightly and it is not something that should be ignored by ministers, except for extremely good reasons.The second component in some ways gives me greater concern. The motion before the chamber today talks about the minister failing to comply with the return to order and proposals to censure the minister for that contempt of the Senate's return to order. The minister's statement yesterday gave an indication that she was still completing the paper, was still working on the paper, and therefore couldn't table it because it was not finished yet. That was the first time that I have ever heard an indication that somehow or other this paper was a work in progress rather than a finished document. The minister, I am sure, will elaborate on this in further detail. Certainly prior to the minister's Press Club speech at the end of September there was a widespread expectation that a discussion paper would be provided. She chose not to do that at the time, which is her choice and, one would suspect, a political choice. It was her choice not to proceed with it.Certainly there was a widespread indication that the discussion paper had been finished and was ready to be provided then. It wasn't so much a matter of, `We cannot provide it at the Press Club because it is not finished', but `We have chosen not to go down that path and will now give it to the reference group instead.' To now suggest that it is a work in progress is a disconcerting suggestion—if that is what is being suggested by the minister as one of the reasons why it can't be tabled. If a paper is finally provided to the Senate one would have to suspect that the original discussion paper is being rewritten and that what we may end up getting is not what the original return to order relates to but some other modified, sanitised version.I hope the minister does not go down that path, firstly, because it would mean providing the Senate with a document that is not what is actually the subject of the return to order and, secondly, it would fail to end the speculation that the government has a hidden agenda. Obviously it is up to the government to decide their own strategy—I am sure they are not interested in gratuitous advice from me—but I think it would be far better to have the full discussion paper on the table so that the government and the minister would not be subject to scare campaigns about what may or may not be in the discussion paper and about what the hidden agenda may or may not be. We could see what the agenda was and the government could justify it and debate it in a full and robust way, in the same way as all of us have to justify and debate our positions on all policy, including welfare policy, in a robust way. I certainly encourage the government to go down that path.Moving away from the issue of welfare policy to the specific motion before the chamber to censure the minister and require her to table the document by 3 p.m. on 18 October and then going through some suggested actions if that is not done, to some extent it is worth going over the history of returns to order in this chamber—what the practice has been and what the views of the Senate have been. Obviously, each time a minister chooses not to comply with a return to order, it is a matter for the Senate to decide whether it accepts the reasons put forward by the minister. That is part of what this motion is about loosely. From my point of view and the Democrats' point of view, we do not accept the reasons put forward by the minister.It is worth emphasising that it is not particularly common for ministers not to comply with returns to order. According to statistics in the latest edition of Odgers Senate Practice—always a good read, which I recommend all senators have a look at—in the last term of the previous government 53 returns to order were made and only four were not complied with. In the first term of the current government, from 1996 to 1998, 48 returns to order were made and only five were not complied with. Usually refusal to comply has been based on some variation of the argument that to produce the document would not be in the public interest. The most popular reasons put forward have been matters such as commercial-in-confidence, excessive and inappropriate use of departmental resources where a large number of documents have been requested—that is obviously not the case in this particular circumstance—that somehow the documents are sub judice or relate to legal professional privilege or they are a matter of cabinet confidentiality. Clearly, on all the evidence to date, none of those factors apply to this document. As I stated previously, the rationale put forward by the minister as to why it is not appropriate to table it seems to me to be incredibly flimsy.In the past when returns to order have not been complied with the Senate has considered what action to take. Occasionally it has accepted the reasons put forward by the relevant minister or the government, if they were along the lines of the reasons I just outlined. Sometimes the Senate has not chosen to accept the reasons put forward by the minister. Without going through a full history of the Senate's responses to such circumstances, it is worth highlighting a few cases to put it in context. I see in the press this morning that a spokesperson for the minister has labelled this censure motion a stunt. I certainly do not see it as a stunt. I see it as an important matter of emphasising the rights of the Senate in the parliament for appropriate scrutiny of the executive in terms of what the executive is considering doing. It has a long history stretching right back to the origins of the Senate at the start of this century. It is an important power of the Senate which is not exercised lightly. When ministers choose not to comply with it, it is something that should be viewed seriously and the reasons given considered in great detail.To give a few examples of previous occasions when ministers have chosen not to comply with a return to order, back in 1982 there was a refusal by the government to produce documents connected with tax avoidance and evasion on the ground that to do so would be harmful to the administration of justice. That matter had not been resolved by the time the 1983 election came along and the government changed. In 1991, the Senate agreed to an order requiring the government to table a tape recording of conversations between a minister and representative conservation groups. The leader of the government subsequently tabled a letter stating that the government would not table the tape recording but attached an extract from a transcript of the recording. On that particular occasion, the Senate censured the government for its refusal to table that tape.In 1992, the government refused to produce documents in response to an order for the production of a note on a Treasury file and indicated that producing it might damage Australia's relationships with other countries. I do not think that is something that applies in this case. In 1993, the then Leader of the Government in the Senate, Senator Gareth Evans, was ordered to produce a letter by a minister relating to woodchip export licences. Senator Evans declined to produce that on the grounds of confidentiality and the Senate chose to censure him at that time for this refusal. I would suggest again that cabinet confidentiality and commercial confidentiality are much more serious reasons for not tabling something than the one that has been put forward by the minister to date.The Senate has constantly indicated its displeasure with failures to comply with returns to order except on serious grounds and a number of times has censured ministers for their failure to comply. This year, as senators would probably recall, the current Leader of the Government in the Senate, Senator Hill, was censured for not responding properly to an order for documents relating to the Jabiluka uranium mine, where the minister tabled some documents and listed others which were withheld on stated grounds but subsequently stated that he had only produced key documents rather than all documents. Again, the Senate deemed that that was not a satisfactory response and censured the minister.So it is not just a matter of some stunt; it is a matter of ensuring that the Senate highlights the importance of returns to order. In a sense, it moves beyond what I believe is an important policy issue of welfare reform. I would hope to see us discussing that issue in detail rather than matters such as this, ideally, but it moves beyond that to the issue of the duties, responsibilities and powers of the Senate, as against the executive of the day, and the requirement of the executive to respect the role and the powers of the parliament.The second component of the motion, beyond the censure and requiring the minister to table the document by 3 p.m. on 18 October, is to introduce some measures if the minister continues to fail to respect the order of the Senate. From the Democrats' point of view, this is, I believe, an important component. The measures that are contained in paragraph (b) of the motion, which basically seek to prevent a motion put by the minister from being voted on until the document has been tabled, are shamelessly plagiarised from a contingent notice of motion put forward by the then opposition—I think by Senator Ian Campbell—in 1994 at a time when the then Minister for Trade, Senator McMullan, refused to table documents relating to Casselden Place and the rental rates there. He gave a contingent notice of motion which would have had an identical effect to part of what is contained in the motion before us today, which was to prevent that minister being able to have any item of business voted on. I have gone to that as precedent, if you like. Whilst the coalition at that time gave a contingent notice of motion that it might move to prevent a motion by the minister being voted on, it never actually acted on that contingent notice of motion. What I seek to do with this motion is to put that in place, rather than leave the sword dangling—to actually wield the sword, in a gentle and non-violent way, of course—by ensuring that there is some follow-on action by the Senate if the minister fails to comply with the continuing order of the Senate.I think this is particularly important because one of the unfortunate components of censure motions over time has been—whilst I personally believe they are important and I know the Democrats have always considered them seriously before we have decided to vote for them and have not always voted in favour of censure motions that have been put forward—that they have been portrayed, basically, as a slap on the wrist. That has certainly been suggested to me by the media that have spoken to me about this in the last 24 hours. I do not see it as a slap on the wrist: I see it as an important statement by the Senate, but I do acknowledge that unless there is some follow-up action it does not have any practical effect. What this motion also seeks to do is to ensure that there is some practical effect in relation to the censure motion and the minister's ongoing failure to comply with the return to order.Senators would be aware that in recent times the New South Wales upper house has exercised its powers fairly strongly in relation to a minister that refused to table documents. In fact, on a number of occasions it has chosen to eject the Treasurer of the government of New South Wales from the chamber because of his refusal to comply. So in that sense I would see the proposal put forward in my motion as being rather more mild than what the state parliament in New South Wales has chosen to do. It appears clear to me that the Senate has the power to do this. As the New South Wales upper house has shown, it is important, when ministers refuse to comply with directions of a chamber, to follow through with some form of action to ensure that it is not just perceived as some slap on the wrist or indeed some badge of honour for a minister to be censured. What I have attempted to do in the second part of the motion is to ensure that there is follow-on action—that if the Senate believes that it is a serious issue that the minister has chosen not to comply with a return to order that we express that, not just by passing a motion of censure but by coupling it with concrete action which has some impact on the minister.I have noted comments in the newspaper today by the opposition spokesperson in this area, Mr Wayne Swan, from the lower house indicating that, whilst the Labor Party may have some uncertainty about components of what is being proposed in the second part of the motion, they are not going to go soft on the minister: they are keen to ensure that she does not get off lightly, if you like, for this particular contempt of the Senate. I hope that the opposition, the Labor Party, in the Senate will follow through on the words of their spokesperson, Mr Swan, and ensure that there is some teeth to this censure motion. If they have some concerns about the specifics of what is being proposed, I am sure they will express those, but hopefully they will put forward some other alternatives which will at least have some impact in terms of ensuring that it is not just a motion without any practical effect but that it does have some follow-on impact as a way of ensuring that the displeasure of the Senate is clearly indicated.Whilst there has been a long history of returns to order and a much shorter history, although not a totally uncommon history, of ministers refusing to comply with them, there have been censure motions that have been passed. As far as I am aware, there have not been other components coupled with those motions which have had practical effect. I believe it is time that the Senate moved to that stage on these issues. It seems fairly pointless passing returns to order and requiring ministers to table various documents unless we follow through with some sort of action in the event of a minister failing to comply without adequate reason. In this case, on the evidence available to date, I do not believe the minister has given an adequate reason, by any stretch of the imagination, and that is why I believe the motion is important. (Time expired)09:52:009529Faulkner, Sen JohnSenator FAULKNER5K4NSWALP00—Senator Newman's three-year record as Minister for Social Security and then as Minister for Family and Community Services is a very sorry record indeed. The implementation of Centrelink has been a shambolic mess. Last week's Ombudsman's report underlines that. The Ombudsman found that Centrelink often failed to give clients enough information about their entitlements and then was prevented by law from backdating payments when mistakes were made. He correctly recommended social security laws be changed to allow Centrelink to backdate payments for up to 12 months when people had not received the amounts to which they were entitled. But this is years too late. The previous Ombudsman, Ms Philippa Smith, had similar criticisms in earlier reports. Senator Newman should have been managing all of this a lot better, a lot sooner and a lot earlier than she was.But ministerial mismanagement of Centrelink is just a very small part of the picture with Senator Newman. Senator Newman is the minister who in the first term of the Howard government allowed the destruction of the Commonwealth dental scheme, cuts to child care, the introduction of fees for home and community care programs such as Meals on Wheels—in fact, cuts to almost a billion dollars of welfare assistance.She, along with other ministers in the government, has slashed funds to those in the community who are dissenting voices, particularly in the community sector, including only last week the Girl Guides—of all people—because they had the hide to criticise the GST during the Senate committee process. There was the defunding of the Pensioners and Superannuants Federation, the Australian Youth Policy and Action Coalition, AYPAC, and National Shelter. All these decisions symbolise this minister's fear of criticism and the proactive approach this minister has to smothering dissent in her portfolio area.On 1 October, Senator Newman removed funding from more community groups—groups which represent the interests of Australian women and their families. Groups caught up in the reprisals here were the Women's Electoral Lobby, which copped a $50,000 cut. The National Women's Justice Coalition, the National Women's Media Centre and the Women's Action Alliance all copped a $25,000 cut. That is the sort of thing that Senator Newman has been on about, as senators know.10000PRESIDENTThe PRESIDENT—Senator Faulkner, I hesitate to interrupt, but I draw your attention to the motion. I accept preamble, but I draw your attention to the motion.5K4Faulkner, Sen JohnSenator FAULKNER—I do not appreciate the intervention, Madam President. I am making the point that what is concerning—5F4CALVERTSenator Calvert—How about a bit of respect for the Chair?5K4Faulkner, Sen JohnSenator FAULKNER—This is perfectly proper for a censure motion, in my view. These are the same groups that have raised concerns over the past 12 months about the harsh impacts of the GST and have challenged the direction of government policy for women. I am making the point that this is typical of Senator Newman; this is typical of this minister. To make things worse, Senator Newman now refuses to make public her blueprint—her earth-shattering position paper—for national welfare reform, the blueprint on which her address to the National Press Club was supposed to be based. It is a pattern. She does it all the time.For example, the Canberra Times of 29 August received the good oil from Senator Newman's minders. Her position paper was `to focus on the mutual obligations that recipients have for payments'. It was going to outline Senator Newman's policy to arrest the increase in the number of disability pensioners. On 8 September, a media advisory was posted in the gallery which touted the forthcoming speech. It stated that it would launch `an agenda setting discussion paper on welfare'. The speech was to be given on 21 September. But Senator Newman came unstuck. Somewhere between 8 and 10 September the Prime Minister, John Howard, and his gatekeepers read the speech and discussion paper and they went ballistic. A correction was posted in the gallery. It read:Due to unforeseen circumstances, the seminal address, The Future of Welfare in the 21st Century by Minister for Family and Community Services, Senator Jocelyn Newman, will be delivered at the National Press Club on Wednesday, 29 September rather than Tuesday, 21 September.The launch of the discussion paper was canned by John Howard and the government. The speech was delayed. There was a hasty rewrite of the speech; all the ugly bits were taken out and we were left with a blancmange. I read the AAP report on 27 September. It was hilarious. It read:The Federal Government today went into damage control over reports that it was preparing to slash its welfare program targeting sole parents and disabled pensioners . . . Measures reportedly being considered include forcing single parents to look for work when their children turn 12, extending work for the dole to over-35s and drastically tightening Disability Support Pension rules. But Mr Howard, anxious to underpin his family-friendly credentials, promised the speech would not contain specific measures regarding individual income support . . . Senator Newman appeared to backtrack, playing down the significance of the speech as opposition senators claimed she had been rolled by the prime minister amid fears of a voter backlash.That is the truth of the matter. On 29 September, Senator Newman promised a blueprint. The blueprint became a meandering speech which outlined the social problems that everyone knows all post-industrial globalised economies face. She announced the formation of a reference group, announced the Chair, Mr McClure, announced a green paper and finally announced a timetable. This reference group was now tasked to set the agenda, not Senator Newman. What a humiliating backdown from Senator Newman.Back in Senator Newman's office, there abandoned on the desk is the discussion paper—the much publicised discussion paper—with the i's dotted and the t's crossed. The press gallery and welfare groups were all salivating for the detail of this discussion paper, but what did we get? The last refuge of a cornered minister—nothing. There is a proposed green paper and a timetable. She did not even have the terms of reference organised, it was such a fiasco.In the pitiful excuse we heard from Senator Newman in the Senate yesterday for the non-production of this `agenda setting' discussion paper, she said that she regretted she was not in a position to give any discussion paper. She said it was still being developed as the government submission to the reference group and it will be completed shortly. In other words, she now claims she is writing the discussion paper that was advertised. That is apparently going to be part of this hastily organised green paper exercise. No-one would believe that.The first question that begs an answer in this place is: if it was ready to be unveiled at the Press Club, how come you are still writing it? Staff were priming us all for the great vision for Australian welfare in the new millennium. Now the vision is being revised and revisited. What we got from Senator Newman again yesterday in the Senate was a smokescreen—a weak explanation, a deliberate mislead and a cover-up. We know that a humiliating gag was applied to Senator Newman by the Prime Minister, Mr Howard, just before her so-called seminal speech. What was the reason? The proposal was so politically unpalatable that even the Prime Minister could not cop it and it required more careful management.I think everyone understands that this is the way this government does business. We have come to expect this from the government. It is part and parcel of the way the Howard government operates: gagging everyone, silencing the critics, a lack of provision of information to the public, and the devious ways in which accountability and scrutiny in this parliament and in the public arena are ignored. I was pleased about that editorial earlier in the week in the Australian, which pointed out, quite rightly:. . . political opportunism perpetuates a damaging cycle of mistrust of politicians by the public. This mistrust is a cancer to our democracy.The lack of accountability, the smothering of voices, the cover-ups, the defunding of potential critics of the government and the secrecy over policy measures are the modus operandi of Senator Newman and the Howard government.We are going to stand up on this issue, as we have. We are going to ensure that we actually get answers to questions like why the Girl Guides have been defunded and why the Women's Electoral Lobby have been defunded. Why can't Senator Newman come clean over this seminal blueprint after delivering such a hollow speech that was laced with a couple of general observations and had a few motherhood statements thrown in for good measure, culminating in a timetable? What a performance from this minister. It was a speech that ended up announcing a task force that had not been properly constructed and was without terms of reference. But, importantly, the promised blueprint—the promised discussion paper—was not provided or produced and is now being covered up deliberately by the government. Why can't this minister tell us what she plans for the poor and the needy in our community? What does she have to hide? What is the government hiding in this document that they will not produce?Madam President, you have a situation where I think many in the community are entitled to be wary and worried about the contents of this discussion paper that the minister has gone to such extraordinary lengths to cover up. There is no doubt that Senator Newman deserves censure for failing to come clean on this issue. The Howard government needs desperately to clean up its act on accountability issues from the bottom up.I know the Democrats put forward a proposal, but they have not been in government. They are wanting to punish Senator Newman now by applying a gag. I can understand the frustration that the Democrats feel. I heard Senator Murray on Monday night's PM program saying that the difficulty with accountability is whether you can enforce it or not. He said:Now we've tried before to enforce accountability and until Labor are prepared to actually make ministers not be heard, in fact until they're prepared to enforce the Senate's powers, there's a limit to how far the Senate can in fact push accountability.You really do understand that no Australian Democrat senator has been a minister and no Australian Democrat has formed a government. You see, gagging a minister like Senator Newman and ensuring that she is not heard in this place is a John Howard technique. That is a Liberal Party technique. Why are the Australian Democrats hell-bent on gagging a minister? If she is gagged and if she is not heard, she has a holiday from accountability. We are not going to be part of that. It means she cannot take legislation through the chamber and she cannot answer questions. It means that she can go off and plot and plan with her bureaucrats and her reference group without explaining herself at all. It is not on.This is probably one of the worst ministers in a bad government. Everyone knows Senator Newman's performance here in question time. Everyone has seen her at Senate estimates. This is a minister who can just sit at the table and completely depend on bureaucrats to answer questions, who cannot answer a question in Senate question time and who is simply incapable of responding to serious questions asked of her about public policy in the forums of the Australian parliament. We are not going to gag her. We do not want to be any part of that.I do not think the Democrats understand this issue. It was the Democrats who, behind closed doors, let the environment bill go through and did their GST deals. That all went through the Senate under a guillotine. The deal included arrangements for greenhouse, book compensation moneys and so forth. That was all done behind closed doors with John Howard. That might be the way the Democrats do business, but we are not going to have any part of that. The Democrats claim to be champions of accountability—I do not think that is the case—but they have to look seriously at a proposition which proposes a gag of Senator Newman, because a gag of Senator Newman means that she will evade scrutiny and will not be accountable to the parliament.Such a proposal as moved by Senator Bartlett will not provide accountability; it will provide the reverse. Senator Newman would avoid questioning, avoid making parliamentary and ministerial statements and so on and so forth. Avoiding parliamentary scrutiny is not the way to provide a sanction for this minister's failure to comply with an order of the Senate. The Democrats really need now to start grappling with the real outcomes of some of these ideas. Gagging, we know, is a Howard government technique; Senator Newman is a past master of it. We need to ensure that parliament is more accountable, not less accountable. Senator Newman needs to provide her policy paper to the parliament. She is required to do so. Of course, Senator Hill and Senator Alston ought to front up with the 16 Federation Fund projects while they are at it. Perhaps Mr Costello could outline the business tax compliance measures, and perhaps he could reveal the revenue modelling for his business tax proposals as well. I hope that the Democrats would support all those outcomes as well as this.We support the censure—it is deserved—but we oppose the gag. I invite Senator Bartlett and the Australian Democrats to discuss with Labor and other non-government senators some constructive sanctions that will widen accountability to the parliament. I have some suggestions, and I am happy to discuss them with the Democrats, but I do not want to let Senator Newman off the hook. Since Senator Newman became a minister she has consistently had a flawed approach to her ministerial responsibilities. Everyone knows that. Of course, she should not ignore such an order of the parliament. She deserves to be censured, and sanctions are warranted—not gagging.Let us have a look at some sanctions that might really hurt Senator Newman and the government. Why don't we look at a sanction which extends question time until a certain number of non-government questions have been asked and answered each day? Why don't we prevent government ministers and government senators from debate on motions to take note of answers to questions in question time? Why don't we prevent the government from moving extensions to the days and hours of sittings and changing the routine of business in the Senate until Senator Newman complies with this order? They are real sanctions, and the Australian Democrats should give them some serious consideration and talk to other senators and the opposition in the chamber about them. They are more constructive penalties and sanctions. They will cause the government real discomfort. They can be put in place until Senator Newman fronts up as she should with the original document she has so desperately attempted to cover up since her brave announcement of September this year.To that effect, in relation to Senator Bartlett's motion, I move:Omit subparagraphs (1)(b)(ii) and (iii) and paragraphs (2) and (3).This amendment deletes that part of Senator Bartlett's motion in relation to sanctions. That is something we should revisit after we see whether Senator Newman is willing to purge her contempt of the Senate. If the amendment is not passed, Labor cannot support such a censure motion, even though this minister deserves to be roundly censured for what she has done. Let us amend the motion and talk about appropriate sanctions. Let us not put a gag on the minister, a gag on accountability and a gag on parliamentary scrutiny, but let us condemn this minister as she so roundly deserves. (Time expired)10:12:009533Brown, Sen BobSenator BROWNQD4TASAG00—Firstly, I want to congratulate Senator Faulkner on that speech, because I think it covered the ground very well, in particular the failure of this minister to perform in one of the most important portfolios that a national government has. The minister had flagged at her Press Club speech that she was going to bring out a blueprint of her thinking for social justice in Australia as we go into the next century. Added to the billion dollars per annum taken away from the needy in this country, she was going to outline a list of punishments for single parents, the unemployed and disabled people in this country.Government senator interjecting—QD4Brown, Sen BobSenator BROWN—It is not a lie, Senator. You will have your opportunity in a moment. The fact that the minister has refused to follow through with the blueprint that she said she was going to produce herself shows the size of the cover-up in which she is involved. The active agent in the cover-up was not the minister herself; she is gung-ho about these very right wing moves that she wanted to make in her administration of this portfolio. The Prime Minister intervened, as Senator Faulkner has said. Even he could not stomach what the minister was planning. The minders knew that this would cause widespread revulsion amongst the Australian electorate in general. So a speech that Senator Newman was to make had to be sanitised, the process was Kennettised and the doors to information were closed down. It is entirely reasonable, under the circumstances in which the minister has flouted her responsibility to the Senate and therefore to the Australian public to produce this document, that she be censured.However, the process that the Democrats have brought forward is, as Senator Faulkner has cogently explained, not the right one. It is not helpful in a democracy which depends on information to censure a minister by requiring her to give less information—by truncating her responsibilities to give further information to the Senate. You might remember, Madam President, the last time these words, that a member of this Senate `not be heard', were used. I remember former Senator O'Chee getting to his feet when I came into the Senate one day without my coat on. He asked that I not be heard until I went out and put my coat on. Here we have the Democrats following that up with the addled view that the minister not be heard until she produces information that she suppressed in the past, in other words, that she should suppress further information. It is not clear thinking and it is the wrong way to go. We are trying to get information out of this minister, not a complete close-down on her responsibility to be giving information to the Senate. There are alternative sanctions. They ought to apply to the government. It is the Prime Minister's responsibility that this minister is not performing in that she has clamped down on the important document that the Senate and the Australian people deserve to see. I would therefore support a future move by the opposition or the Democrats along the lines outlined by Senator Faulkner.Let me say this to the Democrats, however. This is a very important matter which has gained national publicity overnight and today, but we have Senator Bartlett on his own in the Senate and a complete absence of the Leader or Deputy Leader of the Democrats, who ought to be prosecuting this very important matter in here right now. If you are going to pursue a matter as important as this, it is important that the whole party is here to prosecute the case. Senator Bartlett, I feel sorry for you that you are left totally aban doned, with none of the other Democrats here to support you and, in particular, the leader missing altogether. I do not know where the leader is—maybe out negotiating the next round of compromise with the Prime Minister or with other members of the government.One is left to believe that the sincerity is not there, that this is a quid pro quo for the concessions that the Democrats are making in taxation and other matters to the very agenda that we want to see Senator Newman called to order on. After all, Madam President, the Democrats did put through the GST legislation, which hits many of the entities that Senator Newman wants to hit again. The Democrats did put through the environment legislation with its extraordinarily damaging flow-ons for the Australian environment, not least the forests of this country. The Democrats did negotiate with the government for the wind-back of century-old and honoured industrial relations provisions to protect people in this country from right-wing moves to disempower workers.10000PRESIDENTThe PRESIDENT—Senator Brown, I would draw your attention to the substance of the motion. I realise that there may be some latitude in preamble, but I do draw your attention to the motion.QD4Brown, Sen BobSenator BROWN—I join with Senator Faulkner in saying that I do not appreciate that intervention. I will take note of what you had to say, Madam President, but if you were listening to the line of my argument—10000PRESIDENTThe PRESIDENT—I am listening, Senator.QD4Brown, Sen BobSenator BROWN—I am pleased to note that, and you will let me finish, Madam President.WW4KEMPSenator Kemp—Madam President, I raise a point of order. There have now been two particular occasions when Senator Brown has been exceedingly discourteous to the chair and shown a degree of contempt which I have not seen in this chamber before. I urge you to bring the senator to order.10000PRESIDENTThe PRESIDENT—I certainly have noticed that. I draw Senator Brown's attention to the motion and to his conduct and invite him to continue.QD4Brown, Sen BobSenator BROWN—Madam President, the senator who has just spoken was not here when Senator Faulkner responded to you in exactly the same fashion and the government made no comment at all. You will also notice that senators have to be able to defend themselves, particularly in my position, and not be cowed by the government and not be deprived of any right to speak or develop an argument if it is proper to do so.Let me get back to the substance of my argument, to which you are committed to listening, Madam President. It is that on the one hand the Democrats are moving to have the minister prevented from getting information to the Senate through this motion. On the other hand they are dealing with the government behind closed doors in ways which facilitate the very philosophy that this minister puts forward. That is a very important component of this argument. It concerns me greatly that that process is taking place in tandem with this motion today to have the minister's responsibilities to inform the Senate further wound back. Madam President, I think you will agree that that is a legitimate component of this argument.That said, I will be supporting the censure of the minister. The minister deserves to be censured. It is totally improper, in a democracy which depends on information going to the electorate, that a paper which the minister herself flagged she was going to release at a Press Club function and therefore to the Australian populace was then suppressed—suppressed, no doubt, by a prime ministerial review which said, `This is going to be bad news for the government. The Australian public is not going to wear it.' Therefore, the motion for censure is valid. However, the provisions that flow on from the move of the Democrats to have the minister excused from giving further information to the Senate are not valid. I do not think they were well thought out and they do need to be reviewed. The alternative put forward by the Labor Party is a much better way to go.10:22:009534Newman, Sen JocelynSenator NEWMANBE4TASLPFamily and Community Services; Minister Assisting the Prime Minister for the Status of Women10—I am aston ished actually at the contributions that I have just heard from Senators Brown and Faulkner: they have not contributed anything to the debate on what is an important issue. The hot air that has been generated here this morning is actually evidence of why I was so strong in my speech to the National Press Club for a mature consideration of the issues that I addressed.I do acknowledge that Senator Bartlett did accept my invitation to go to the Press Club and did sit through what was a very serious speech and, I would say quite properly, a seminal speech: it did reveal my thinking on these issues. For senators who did not go there to claim that there is some kind of hidden agenda or cover-up simply means that they have not done their homework and that it is a political stunt on their part. Can I just read out to senators the final two passages of my speech. I draw these to your attention because they refer to the salient points in the censure debate. This is what I said to the Press Club:I particularly want to say to the members of the media here today, that they have an important role in ensuring the debate that our community must have, does not become a sterile exercise characterised by cheap political point scoring and sensational headlines. The job before us is an important one. It goes to the very essence of the way in which we structure our society, the way in which we face the future and the confidence with which we meet the challenges that lie ahead.I say also to the many stakeholders in this debate that they must avoid the temptation to adopt a narrow self-interested approach to the debate. It is by working together that the community can develop a sustainable welfare system that provides an effective safety net for those in need, but does not encourage a dependence mentality which is debilitating for the individual, their families and for the community.That is what this is all about. That is on the record, in great detail for half an hour to the National Press Club. The people of Australia heard that and I am just astonished that anybody could think that they could sustain a claim that there has been some kind of cover-up or hidden agenda.I note that Senator Bartlett was at the Press Club. He did hear my speech and he would have been clearly aware of those comments. They were in no way sanitised; it was an important and significant speech. But Senator Bartlett's censure motion falls directly into the trap which I highlighted in my speech—that is, turning the much needed community debate on reform of our welfare system into a political exercise. That is a pity because I do believe that at heart Senator Bartlett does have concerns about policy. His effort to go and listen to this, and to the question time that followed, was something that I would also have expected and hoped—on such an important national issue—to have seen from senators on the other side of the chamber, apart from Senator Bartlett.But Senator Bartlett's censure motion does not serve or enhance his role in representing the interests of the Democrats or those of the wider community, and I am disappointed in him, I must say. I would have expected better from the social security spokesperson from the Australian Democrats. I have usually found him interested in the issues and in talking through matters of reform. I would have expected it from Senator Faulkner, I would have expected it from Senator Brown but I would not have expected it from Senator Bartlett, and I am disappointed.I made it clear in my statement to the Senate yesterday that I am not in a position to give any discussion paper to the Senate at this time. But I did not refuse to provide the Senate with the paper, and anybody who likes to can look at Hansard and see that. I said that I will comply when I provide the completed paper to the reference group shortly. There is no disrespect to the Senate. I told Senator Bartlett, in answer to his question in the Senate two weeks ago, that it was an internal working document and therefore not for tabling. I stand by that; that is consistent.The discussion paper is still being developed as the government's submission to the reference group, and it will be completed shortly. Is the Senate not able to wait a short time, as the reference group will be waiting, for it to be completed? As soon as it is completed, I shall give it to the reference group and I am happy to give it to the Senate at the same time. I want to make it absolutely clear that the government is not attempting to hide anything. Both the discussion paper—once it has been provided to the reference group—and the final green paper will be public documents. Now what is hidden in that? The public has been invited to make submissions to the reference group—there is the involvement of the community in that—and the final green paper, when it is produced, will also of course be a matter for discussion in the community.I announced in my speech on 29 September at the Press Club that further social policy reform would be the next major reform priority of the Howard government. That speech was an agenda setting speech. There is no hidden agenda, as anybody who likes to go and read it will see. And I welcome the Prime Minister's support for making social policy the next major reform priority of the government, quite contrary to some of the slurs that have been produced in the chamber today about the Prime Minister and his involvement.Also at that same time I announced that a high level reference group would guide the development of a comprehensive green paper—which would be taken to cabinet soon thereafter, but they are public documents—and they will be involving the public. I have said that Mr Patrick McClure from Mission Australia will chair the reference group. His deputy chair will be Mr Wayne Jackson, the Deputy Secretary to my department, who is very well respected for his policy expertise and strong interest. Other members of the reference group will be announced very shortly.I said the reference group was going to consider the broader application of mutual obligation; demographic changes; sustainability of the current system; and incentives for people to train, work and participate in the wider community. I would have thought that most of those would have been things that would have been encompassed by the principles which Senator Bartlett put out in his most recent press release on the subject. But I made it clear yesterday in the Senate that the reference group will draw on community input. It will provide me with a preliminary draft paper early next year, with the final paper to be provided by 30 June. That is a proper and measured process which involves the community. It will obviously involve the parliament and members of the parliament but, very importantly, it will involve the public.In answer to a question from the press at the Press Club, I pointed out that this is a discussion which has been held for some time in the wider community—over the barbecues and in the lounge rooms—in Australia. People from all walks of life have views about our welfare system. They are concerned at the growing long-term welfare dependency of our people and what it does to them and their children. I would have thought that those contributors today who just simply contributed hot air on what is actually a very serious and important matter should be ashamed of themselves. What does the public think about Senators Faulkner and Brown, who are not even prepared to give this matter the serious attention that it deserves?I believe no nation can afford to leave unchecked the waste—the economic and social isolation—that is the consequence of welfare dependency. It is this commitment to social and economic participation and the need to best utilise our national resources which leads us to continued welfare reform. Let us get it clear: the social welfare system is not just about government payments; it has to be about all the players in our society working in partnership to develop a social coalition. The Prime Minister has shown great leadership in the need for a social coalition. But it is not just government payments; modernising our welfare system to go into the next century is an important part of our wider reform process. It is integral to a globalised economy and a cohesive society. It should be complementing other policies that promote a skilled, adaptable and productive work force. Appropriately designed, the welfare system is part of the solution, not just residual support for those out of work or in need.I set out in my speech at the Press Club the six key principles outlining the approach that reform to the welfare system must take, and I will mention them briefly: maintaining equity, simplicity, transparency and sustaina bility; establishing better incentives for people receiving social security payments, so that work, education and training are rewarded; creating greater opportunities for people to increase self-reliance and capacity-building, rather than merely providing a passive safety net; expecting people on income support to help themselves and contribute to society through increased social and economic participation in a framework of mutual obligation; providing choices and support for individuals and families with more tailored assistance that focuses on prevention and early intervention; and, at the same time, maintaining the government's disciplined approach to fiscal policy. They are proper principles on which reform must be based. They are principles which I think the Australian community believe we should be discussing in reforming our system.Do not forget that this is not something which is done in isolation from the rest of the world. It fascinated me when I was in London just recently meeting with ministers of the Blair government—QD4BROWNSenator Brown—Madam President, I raise a point of order. Your advice to both Senator Faulkner and me was to speak to the motion, which is about the suppression of a document and the consequences of that. I ask you to consider an even-handed approach to the minister's current contribution.10000PRESIDENTThe PRESIDENT—I am, Senator; I am listening very carefully.BE4Newman, Sen JocelynSenator NEWMAN—Madam President, I did not intend to take up the time of the Senate for too long. I was actually about to sum up by saying that this is not just an issue for Australia. The Blair government in Britain, the governments of New Zealand and the United States and the OECD have all turned their attention to the waste of human lives that is brought about by welfare dependency and the need for action to do something about it.My seminal speech to the National Press Club set out the problems facing Australia's welfare system and the need for reform. A mature society will not play games on such an important issue. I fear that we have senators here today who are only playing games. We need to work together and talk to each other to find better ways to provide support to those needing help. Long-term welfare dependency is not a kindness; it is simply a way of throwing money at a problem, thereby producing an even greater problem for future generations. I believe Australia can do better than that. I call on the Senate to join with the government in doing better.I utterly reject that I am in contempt of the Senate. I told the Senate yesterday that I will provide the paper shortly, when it is completed and it goes to the reference group. In no way can that justify a censure motion. In my view, this motion devalues the use of censure motions, and it is a shame for the Senate to so devalue one of its own procedures.10:34:009537Evans, Sen ChrisSenator CHRIS EVANSAX5WAALP00—It is interesting that the Minister for Family and Community Services offered no real defence for her failure to table the discussion paper in compliance with the order of the Senate. I think the key issue here is that yesterday the minister relied on the defence that the paper `is still being developed'. Quite frankly, Minister, we do not believe you. It is not at all consistent with anything you have said for the last three weeks. You walked in yesterday with a new defence—your last line of defence—which was that the paper is still being developed. Until then we had not heard that line of defence. There had been a series of defences offered previously, but that was not one of them. But that was the one you used yesterday. You have shifted and turned as this embarrassing episode has put you under a lot of pressure—internally within the government—as the debate rages inside the government about the future of welfare policy.But the key issue here, Madam President, is that we do not believe the minister. It may well be that the discussion paper is being rewritten as we speak. I suspect it is, because clearly the Prime Minister did not like the tone or the direction of the original paper. But what the Senate is debating today is a censure of the minister for her failure to comply with the order that she release the discussion paper that she was preparing to release on 29 September—the paper that she told us she was going to release; the paper that her media advisers hyped up all around the Press Gallery, telling journalists that she was going to release it on 29 September. That is the paper we want to see, not the reworked, sanitised version she is working on now to present to a committee for which she still has not been able to get a membership together. What we want is the original paper. That is what the Senate asked for. The minister has failed to offer any reasonable defence for not providing that to us, because there is no defence. There is just severe embarrassment on her part that the Prime Minister does not want that paper released. The Prime Minister does not want that to be at the core of the debate. But we think the Australian people and the Australian parliament have a right to see it. The minister keeps describing it as `seminal'. If it is seminal, let us see it. Let us all have the ability to debate it.I think it is important that we go through the arguments as to why we do not believe the minister, because that is at the core of this: we do not believe Senator Newman. In the days leading up to the Wednesday 29 September speech, the press was full of discussion about the speech. There was to be released an agenda setting discussion paper. It was hyped up in all the national papers that this was going to be a major speech with a major, agenda setting seminal discussion paper. Every leading newspaper in the country carried the story, describing it as an agenda setting paper. How did they all get it so wrong? How did the Sydney Morning Herald, the Age, the Australian and the Daily Telegraph all get it so wrong? It is an answer that the minister has failed to give us.What we do know is that sometime over the weekend leading up to that Press Club speech there was furore inside the government. The Prime Minister intervened and there was a serious dispute inside the government as to the direction of social welfare policy and/or the timing of the release of the discussion paper. That was what was reported in the Weekend Australian but, even following that intervention, the minister was obviously fighting on. Her press people were still up in the gallery selling the story, saying that the minister had not been nobbled and that reports of her being pulled into line by the Prime Minister were wrong. She was still going to release this agenda setting paper. I quote from an article by Aban Contractor in the Canberra Times of 30 September—I think it is important that I read this into the record. The article states:A spokesman for Senator Newman said the decision to pull the paper had been made within the past two weeks, but he told the Canberra Times on Monday that copies would be available on the morning of the Minister's speech. Mr Howard had not vetoed publication, he said.We have the minister first of all saying that there was not a paper and that it had not been vetoed, but we have her own spokesman quoted in the paper, outlining her fightback against the Prime Minister's intervention. The article goes on to say:"It's not necessarily been pulled," the spokesman said. "It's been referred to the discussion group and it will be an important part of the group's resources."So here he was—the minister's spokesperson—describing the paper, describing its purpose, describing its role, fighting back against the Prime Minister's intervention, saying that it would be still available, that the minister was going to win this battle with the Prime Minister and that it would be still available. Now the minister says it is still being developed; it has not been written. Was the spokesman lying? Has he been sacked? Or was the minister misleading the parliament today? We do not believe the minister because it is not consistent with anything said by her or her office in the weeks leading up to this debate. Every leading paper in the country, apparently, got it wrong because they misinterpreted what the minister and her office were saying to them.On Wednesday, 29 September, Senator Bartlett asked the minister to table the discussion paper, and her reply was this:No, I will not. It is an internal working document which will inform the work of the reference group.There is no mention of it not being completed, no mention that it was still being written. She refused to table it because it was an internal working document. There was no question about it not being completed—just the mere assertion that in her view it was an internal working document that we should not see. That was her view and that was fine. We disagreed with her view, but her view was that this paper, which she had been going to release on Wednesday, 29 September, was an internal working document now and she would not release it to us.When she was asked about it on the same day at the Press Club she said, `I am sending it to the committee.' Again, no mention that it was not completed. She only mentioned that she would be sending it to the committee. It was to form the basis of their considerations. On Friday, 1 October in the Financial Review there was a discussion which indicated that the minister wanted a comprehensive debate—not, she was quoted as saying, `just a five-minute flash of paper'. So her defence on that day in the Financial Review was just that she did not want the paper to be the sole focus of the debate. That was her reason for not releasing it on Friday the 1st.The minister has shifted and turned throughout this episode, trying to find a way through. But what is clear is that the minister is not telling us the truth about this paper in her latest defence. There was a paper, it was to be released, she presold it to the press, but it was withdrawn at the last minute. The parliament has asked for it to be made available to it, and she now says there is no such paper or it is still in a stage of development. That is not true and it is misleading the Senate to claim that it is true.On 30 September, the Senate adopted Senator Bartlett's motion. Thirteen days later, the minister wanders into Senate question time and, at 3 o'clock right on the knocker, Senator Lightfoot, of all people, gets up to provide the dorothy dixer for her to explain why she has failed to table the paper. Right on the knocker of the deadline of the order of the Senate, the dorothy dixer was asked. Her answer to Senator Lightfoot was, `It is still being developed.' In 13 days we had not heard this excuse. In 13 days this defence had not been offered, but, for the first time in 13 days—and longer if you add the three or four days of hyping up the document to the press prior to the Press Club luncheon speech—the minister offered that defence. It was her excuse for not tabling the paper. It took her 13 days to come up with that excuse. Quite frankly, I think she should have done better because for 13 days work it was a pretty poor effort. It reminded me of a naughty schoolgirl trying to explain her excuses for failing to do her homework. It is like saying `The dog ate it' or `It fell in the fire'. That is the best she could do in terms of defending the fact that the Prime Minister stopped her from releasing it, and she does not want to release it now.I just do not think it is good enough for the minister to try to rely on that defence. She has no reason for not releasing it other than that it will be politically damaging, she thinks, to the government. That is not a reasonable excuse. The paper was hyped up by her and her staff. They sold the importance of it. She created fear and uncertainty in the community by alluding to the sorts of changes in welfare policy that would be contained in it. But, having created that, she now seeks to blame Senator Bartlett or Mr Wayne Swan for the fear, uncertainty and concern about that debate. She created the debate and she created the fear and uncertainty by hyping up, in pre-publicity of the speech and the paper, what it contained. She mentioned that there would be an attack on sole parents' entitlements. She mentioned that there would be an extension of mutual obligation to disability support pensioners.These people are worried because the minister's own office and the minister herself started this debate about their entitlements. They have a right to know now what she intends. They do not intend to be fobbed off by some suggestion that she will rework the paper and send it off to a committee. They have a right to know and the parliament has a right to know. This is a debate that she created. This is a debate that she intended starting, and it is no good trying to blame the Democrats or the Labor Party now that the debate has been commenced. We have a right to know what was considered so seminal. We have a right to know what was considered so important by the minister right up until the day of her speech.Up until that time, she was describing her discussion paper as `seminal', as `significant', and as an `important agenda-setting paper'. She then went on to describe her speech as a `blasted good speech'. Admittedly, Senator Newman was the author of all those superlatives about her speech and the paper. I have not seen one other commentator describe them in such glowing terms, because there was nothing in the speech. By the time the Prime Minister got to her, there was nothing in the speech except the announcement of the establishment of a committee. She could not tell us what the terms of references were for that committee. She could not tell us who was to be on the committee, although Mr McClure got rung up the night before and agreed to chair it. This was a last minute fix-up to try to hide the fact that the discussion paper had been pulled. There is no question about that.For the minister to try to continue to hype up her contribution at the Press Club, given that it was largely content free, is a nonsense. The content was in the discussion paper—she knows it; we know it—the completed discussion paper that was to be tabled and presented at the Press Club on that day. That paper is in existence. It was ready to go. The minister said it was ready to go. Her media adviser said it was ready to go. They talked it up all through the press gallery and all through the Australian community—this paper was going to be seminal. Now she says, `Oh, we're still working on it. It's not completed. You can have it when it's finished.' I do not believe you, Minister. It was going to be finished for Wednesday, 29 September. It was not presented, for reasons best known to the government. But we have a right to see it. The people who will be affected by the changes you propose have a right to see it. It is no good saying to us now, `Oh, well, we're still working on it. You can have it some time down the track when I find enough people to serve on the committee and when I sort out the process.' That is not an answer to the order of the Senate that says we want to get a copy of the discussion paper you were going to release then, not the reworked, rehashed, sanitised version. We want a copy of the paper that you said was to be so seminal, that you said was to be so important and that you said was to be an agenda-setting paper. That is the one we want to see.If there are now two papers, as I suspect there are, we are not interested in the second one. We will see that when you send it off to the committee. I think we are quite happy to wait for that one, Senator Bartlett. What we do want to see is the one that was to be released on Wednesday, 29 September. When the minister comes in here, as I say, like a naughty schoolgirl who has not done her homework and the best excuse she can give is, `We're still working on it,' we do not believe her. The Senate should not believe her and the Australian public should not believe her, because it is not consistent with anything she has said for the last two weeks. She dreams up this weak excuse 13 days later and comes in here and patronises Senator Bartlett and says, `I expected better of you, Senator Bartlett.' You should get used to it, Senator Bartlett—I have been patronised by her a lot. You are joining a very large club.The point is that the Senate made an order for that discussion paper to be tabled, and the minister has failed to comply with that order. The Senate has a right, an obligation and a duty to censure the minister for failing to comply with that. She has offered no good excuse as to why it should not be presented to the Senate. Her excuse was absolutely pathetic. To pretend that it is still being worked on when she had so hyped it up, so sold it to the Australian media and the Australian public that it would be released on Wednesday, 29 September and two weeks later come in and say `We're still working on it' is just incredulous. It is just not the truth. There may well be work going on on that paper now, but we do not want to see the sanitised, revised version. We want to see the original version that was to be presented on Wednesday, 29 September. The Australian community and those who rely on social security support in this country have a right to see that paper.The minister now says that she wants a proper debate. I agree with her. We ought to have a proper debate, and the starting point for that debate is the government's discussion paper. If the minister wants a rational, con sidered, intelligent debate I am happy to join in, but let us see the paper.WW4KEMPSenator Kemp—That would be the first time.AX5Evans, Sen ChrisSenator CHRIS EVANS—Senator Kemp, you may say that it is for the first time. But I think that is unfair of you and not like you.WW4KEMPSenator Kemp—Oh, that's a bit patronising!AX5Evans, Sen ChrisSenator CHRIS EVANS—Well, it is the day for it. I think it is important that we see the paper. It is important that we have a rational, considered debate. But it is not fair to come in here and sell the direction of the policy paper, sell the importance of the paper and talk about how important it is going to be to the government's agenda and then say, `We're not going to release it to the public.' The Senate quite rightly ordered that it be released. The Senate, I think, has to stand on its obligations to the Australian community and insist that the paper be released now. As I have said, and I want to make the point very clearly, we are not interested in what the minister is reworking now and what might go to the committee. We are interested in the discussion paper that she said would be released on Wednesday, 29 September. That is the one the order applied to and that is the one we want to see. I urge the Senate to support the censure motion.10:50:009541Hill, Sen RobertSenator HILLBH4SALPEnvironment and Heritage10—I have witnessed some feeble censure motions in this place, but I regret to say that this one creates a new bottom line. What are we censuring this minister for?Opposition senators interjecting—10000PRESIDENTThe PRESIDENT—Order! A censure motion is a serious matter. The minister should be heard.BH4Hill, Sen RobertSenator HILL—Madam President, I take your comment because, of course, a censure motion should be a serious matter. It should be taken in serious circumstances, and this one obviously is not. The devaluation of the currency of censure motions is the reason that so few take them seriously any longer. I think that is a matter for regret.ZW4SHERRYSenator Sherry—You started the devaluation.BH4Hill, Sen RobertSenator HILL—Picking up the interjection of Senator Sherry, it did not start with us. In actual fact, we were careful in relation to censure motions. We moved them rarely and we only moved them in relation to serious matters. What apparently is being called for here, and it was emphasised by Senator Chris Evans's contribution, are really the internal documents of Senator Newman in her responsibility as the Minister for Family and Community Services. Senator Newman is contributing to the development of policy which she will presumably, ultimately, take to cabinet and seek to have it endorsed and, if so, implemented through legislation or administration.This is an ongoing responsibility and process of government. Ministers are doing this every day, and all honourable senators are aware of this. To come in here and to attempt to censure the minister for failing to put on the table those internal workings is extraordinary and, as far as I know, unprecedented. We understood that what was being sought was an open and transparent process with this public reference group.Let me recall the history of this matter. Senator Newman recently made a very important speech on social security reform at the press club. It builds upon her record as an innovative and reformist minister. She went further and said that, in the development of a new range of reforms, she wished to have a public process. She said that she would set up a reference group which would consult with the public on future reforms, and she would assist that reference group by providing it with a discussion paper. It is a process of achieving legislative and administrative reform that should be commended. She said that that discussion paper can be made a public document when it has been delivered to the reference group, so that everybody knows what the government has in mind in relation to the work of the reference group—again, something that I would have thought should be applauded.The motion that was moved originally by Senator Bartlett said that that discussion group should be made public. We accept that; that is fine. It should be made public, and Senator Newman has said that as soon as the discussion paper is delivered to the reference group, it will be tabled in this place and will therefore be on the public record. So what is she being censured for? Having indicated that she will make public the document that will be delivered to the reference group, Senator Bartlett stood up yesterday and said, `That's not good enough. What I was really talking about in my motion of demand'—the motion that was passed in this place—`are preceding documents.'Madam President, that is not what Senator Bartlett had in his motion at all. His motion, which was carried by the Senate, asked:That the Senate(a) notes that the Minister for Family and Community Services (Senator Newman) will be providing a discussion paper to her newly-established reference group developing a green paper on welfare reform;(b) supports the notion of an open, public and wide-ranging community debate on the future of Australia's welfare system;—I am pleased the Democrats support that—and(c) requires that the discussion paper mentioned in (a)—that is, the discussion paper that she will be presenting to the reference group—be laid on the table . . . which is exactly what she has said she will do. But that is not good enough for Senator Bartlett. He said that his first clause really referred to preceding documents that are not going to be given to the discussion group—working documents in the development of the discussion paper. Senator Bartlett said that these are the papers that the motion really referred to—or should have referred to—and, because they are not being tabled, she should now be censured. There is no basis for a censure in those circumstances. She is going to comply with the order that the Senate made, but she cannot comply with it within the time frame because the document that is to be presented to the reference committee has still not been finalised. How could one sensibly and rationally censure a minister in those circumstances? That is why I say that, regrettably, this censure motion achieves a new low and further devalues the currency. If we are concerned that censure motions are not taken seriously by the community now, this will not help.There are two points. Firstly, the motion was incorrectly drawn. If Senator Bartlett wanted the Senate to adopt a motion requiring working documents, he should have said so in his motion. Secondly, because Senator Bartlett was seeking internal documents—and as Senator Bartlett knows, it has been a long- standing practice that governments do not normally put on the table working documents; otherwise, the whole process of government would grind to a halt if every minute that Senator Kemp worked on had to be then tabled—they would not be tabled in any event. For those reasons, this censure certainly should not succeed today and, if it does, it will not be taken seriously by the community.In conclusion, I want to say a few things. Firstly, it is a privilege and a pleasure to work with Senator Newman. She has been an excellent Minister for Family and Community Services. She not only has been sensitive to her constituency but she has also has accepted the responsibility to ensure that public money is wisely spent. If you look through the reforms that she has been able to implement so far, you will see both trains of thought. Public money is targeted to where it is most needed.Senator Jacinta Collins interjecting—BH4Hill, Sen RobertSenator HILL—Yes, Senator, we do not apologise for that; we have always said that the best form of welfare is a job. We have an entirely different approach from the Australian Labor Party to these matters. Where money has not been wisely spent, and where it has been abused, Senator Newman has come down hard, and that angers the ALP as well. But it is something that is applauded by the community at large. As I said, it has been a privilege and a pleasure to work alongside such a successful minister. Long may she continue in her role, doing the good work that she is doing.The second point I want to make is that being able to stand on a good record is not enough for Senator Newman. She wants to move the agenda on to do even better for the future. For that, I commend her as well. In many ways, it is her determination to keep proceeding down a path that the community strongly supports and that the Labor Party condemns in here today. She has been a reformist minister. She would make no apology for that, and I appreciate it. She is prepared to continue down the reform path and I commend her for that.Thirdly, I commend her willingness to engage in open and transparent process, to set up this reference group and to bring the community into the debate. These issues are complex and it is much better if the community can understand and be incorporated in the process. Her willingness to engage the community is something I applaud. Her willingness, therefore, to put this discussion paper on the public record as it is delivered to the reference group and therefore to facilitate the Senate as well as the community at large is something that the Senate should be acknowledging with appreciation, not condemning her for. I note that the other side are giggling.Senator Jacinta Collins interjecting—BH4Hill, Sen RobertSenator HILL—That demonstrates that the other side does not take this matter seriously. That is what we regret—the devaluation of censure motions. They are not taken seriously by the Labor Party. They have therefore lost their serious aspect as far as the community is concerned. I do not think that is in the Senate's interest in the long term.This is a minister who deserves to be applauded, not condemned. This is a censure motion that deserves to be thrown out, and I trust that it will be today. Even if it is carried, I regret to say that nobody will take it seriously because it has failed in the terms of the motion and it has failed in terms of seeking to meddle in the internal business of government. It is inconsistent with the willingness of the minister to put the discussion paper on the public record at the appropriate time. I urge senators to dismiss this motion.11:01:009543Bartlett, Sen AndrewSenator BARTLETTDT6QLDAD00—in reply—In closing the debate on this motion, what has sunk to a new low in this debate is not the worthwhileness of the censure motion but the feebleness of the arguments put forward by the government in relation to why they are not complying with the return to order. It is something I find breathtaking. The whole concept that the minister has always been keen to be open and willing and desirous of having a public debate on this seems like a very recent invention.Senator Hill tried to point out some alleged inconsistency in relation to this motion and the original return to order. The only reason there is any possibility of even being able to try to make that argument is that it wasn't until yesterday that somehow or other we now have two discussion papers around the place—the original discussion paper which has now been transformed into a `working document' and the discussion paper that is still being prepared. The suggestion that there was never any finalised discussion paper that was going to be released at the Press Club beggars belief. It is a new low in terms of excuses put forward by a minister and by a government as to why they refuse to comply with an order of the Senate.It wasn't until yesterday that any suggestion had been put forward by the minister that there wasn't a complete discussion paper that was already in her possession. To now suggest that there was never any discussion paper, that it was always a work in progress, a working document, that it is inappropriate for the Senate to try to access is a highly dubious argument, to put it politely. The minister and the government are now suggesting that they have a work in progress and they will willingly and gladly table that when it is finished. I am glad the minister is now deciding that she is willing to table that. I would remind the Senate that, when I initially asked the minister during question time to table the discussion paper rather than just provide it in private to the reference group, she refused. At that time she said: `I am going to give it to the reference group, I am not going to table it and I am not going to make it public; bad luck.'So I guess if there is one positive aspect of this debate and of the original return to order it is that it has obviously at least changed the minister's mind about the appropriateness of making the document that she provides to the reference group a public document. Unfortunately, what we are now seeing is that that document will not be the discussion paper that she had prepared originally for the Press Club. She is rewriting it. One would find it difficult to do anything other than to assume that she is sanitising it in the process.Let me quote from a couple of press reports today in relation to the existence of this discussion paper. As, I think, Senator Evans highlighted, Senator Newman's staff were strongly beating up throughout the press gallery in the lead-up to her Press Club speech the existence of the discussion paper, how groundbreaking it was going to be and when it was going to be provided. I refer to Kate Hannon's piece in today's Hobart Mercury, stating that Senator Newman had originally promised to release the 20-page discussion paper on ideas for welfare reform during a National Press Club speech. Only last night a spokesperson for the minister said that the minister had never claimed a discussion paper would be ready for release in time for the Press Club. I have yet to find a journalist who wasn't aware that it had been claimed quite frequently and with great pride that the discussion paper was going to be released. How everybody seemed to be of the view that it was a 20-page discussion paper, if it was a non-existent work in progress set of working documents, is beyond me. I quote from Aban Contractor's piece in the Canberra Times today:A spokesperson for Senator Newman said two weeks ago that the paper had already been referred to the committee—that is the reference group, I presume—and would form an important part of its resources.So let us, for starters, highlight the hollowness of the government's claim that there is no complete discussion paper and it is a work in progress which is inappropriate for the government to table.The Democrats certainly do take this censure motion and all censure motions seriously. Senator Hill was the subject of a censure by the Senate earlier this year. I do not think he took that one terribly seriously. That is more an indication of an overall attitude of the government than any degradation of the seriousness that the Senate puts on these issues. Senator Faulkner, when he was in government, had been the subject of a censure motion, I think an unsuccessful one. It is interesting in that context to put that in line with the ALP's response to the second component of my motion to try to put some sort of ongoing sanction on the minister.One would think, if the ALP were serious about censure motions, they would back measures to have constructive sanctions. One has to wonder about the seriousness of the ALP's approach to the motion when they themselves are not willing to back it up with any teeth. Nonetheless, the Democrats will reluctantly accept the ALP's amendments to ensure that at least a censure motion is passed. I am happy to talk to the ALP or to any other senator about measures other than those put forward but I am surprised today that they have not actually put any suggestions forward as amendments.I am reminded again of the statement on this issue by Labor's shadow spokesperson, Mr Wayne Swan, who is quoted in the West Australian today saying that he did have some problems with proposals I was putting forward but that `We agree on the objective. We are prepared to be very tough on her.' We have not seen any evidence of that here today unfortunately. It looks like a fairly weak response in the case of the Labor Party. I am pleased they are supporting the censure motion, but I do not see any evidence at all of any tough action in relation to following that through with concrete sanctions.It was suggested and there were arguments put forward about why what amounts to a gag on the minister was inappropriate. I remind the Senate, as I said in my initial contribution, that in large part what is contained in here is actually a straight steal from what was put forward in the Senate in 1994 as a proposed course of action in relation to a minister who was in contempt of the Senate. It is a precedent which was already there, on which we are willing to build.I also point again to the actions of the New South Wales upper house, which not only gagged a minister but repeatedly threw him out altogether, which is obviously a much more serious action. I suggest again that is an established precedent and one of the few precedents in Australian parliaments for concrete sanctions against a minister who is in contempt of a house of parliament. It is in that spirit of trying to build on such precedents as exist that we put forward what is contained in the second part of this motion. Nonetheless, we are willing to consider other proposals, even though, unfortunately, none were put forward today. So the opportunity to implement them as part of this censure motion is lost.Again, I would have to wonder whether or not Labor are keen not to get measures adopted by the Senate which set the precedent of concrete action against ministers who refuse to comply with orders of the Senate, obviously thinking about a time when they may be in government in the future and subject to such sanctions themselves. The Labor Party are obviously happy to frustrate and destabilise the entire government. They want to create a hostile Senate for the Howard government, but the Democrats are keen to ensure that the Senate does perform its role in an ongoing sense which will enable us to consider legislation. We would look at any proposals in that context. I find it difficult to believe that Labor is serious about the issue of following through a censure motion with concrete sanctions. Otherwise, they would have had amendments available, but I am quite happy to be proven wrong on that and am willing to consider concrete proposals that are put forward.I was going to say that I should respond briefly to some of the comments by Senator Brown, but in some respects I probably should not bother. Perhaps I need to answer them. Probably only Senator Brown could somehow turn a censure motion on the social security minister into an attack on the Democrats's position on an environment bill. I guess that is par for the course in relation to his ongoing attempts to continue to provide misinformation about the Democrats' action on the environment bill. Somehow or other, it seems to concern Senator Brown that the Democrats talk to the government, to the opposition and to other members of parliament. I suggest to him that it is actually not too bad an idea when you are in the parliament to talk to other parliamentarians if you want to get things through, but I guess he can go about things the way he chooses.It is worth correcting the record in relation to his ongoing misinformation about the environment legislation. Rather than revisit that debate, perhaps I will just point him to a piece in today's Courier-Mail highlighting views of the Local Government Association of Queensland that there has been a massive expansion of federal government powers in relation to environment legislation as a result of the amendments that the Democrats put forward. Now over 90 per cent of Queensland could theoretically fall within the federal government's jurisdiction for planning approval. I would also draw his attention to a speech by Mr Hugh Morgan—not renowned as a tree hugger—about the new piece of environment legislation and complaining about the fact that it has now put environment issues centre stage. I suggest he have a read of that speech, which is available on the Internet under the Business Council of Australia web site and complains about the fact that biodiversity conservation and ecological integrity have now become fundamental in decision making—a good outcome from the Democrats' point of view; obviously a bad outcome from Hugh Morgan's point of view and apparently from Senator Brown's point of view as well.We also had the new concept in Senate debate that somehow or other, unless I have my entire parliamentary party present in the chamber with me, the party is not serious about the measure that is put forward. I suppose it is easy for Senator Brown to have his entire party here with him each time he speaks, given that he is the only one here. It is not surprising that he often does not have other senators in the chamber supporting him when he follows that sort of logic, which is not to say that I am not happy to have my colleagues here when I am speaking. I am sure Senator Lees and Senator Stott Despoja would do a far better job than I would at putting forward arguments, which is why they are leader and deputy. Nonetheless, I am pleased that they have sufficient confidence in me to actually put forward a motion on my own without having to sit here and keep an eye on me. It is a curious new benchmark that is being suggested in relation to motions put forward in this place. Perhaps when Senator Brown has an approach where you do not talk to anybody else while you are in this place, then maybe he does not have anything else to do with his time while he is here.There were many comments in the debate about the adequacy or otherwise of Senator Newman's performance as Minister for Family and Community Services and in the social security area. I will not comment on those at the moment. I think that we have plenty of opportunities to debate such issues. As with many ministers, I could provide lots of criticism and also some compliments about varying actions of the minister. But what we are debating today is not the performance of the minister across her whole portfolio: we are debating the principal issue of a return to order which has not been complied with by the minister and the right of the Senate and the powers of the Senate to require a minister or a government to table particular documents. It is about that fundamental issue of the powers of the parliament as against the executive. It is that issue where the minister has completely failed to comply with the return to order. As I said at the start, she has put forward one of the more feeble excuses I have heard yet as to why she has not chosen to do that.If this was just a bunch of working documents in progress, I could understand some of the comments that Senator Hill put forward. But clearly it was, and is, a concrete and specifically detailed discussion paper and it is completely appropriate for the Senate to seek to have it tabled, particularly in the context of the statements that the minister and her colleagues have made about the need for a public, open, ongoing and widespread comprehensive debate about welfare policy in this country. The difficulty of doing that, when the fundamental component of the government's plans is not made public, is pretty self- evident. It is no surprise that there are claims about hidden agendas of the government, secret agendas and concerns about harsh measures that may be contained in it, if it is not made public.Again, I would urge the minister to reconsider her approach to this. She is concerned about beat-ups and scare campaigns being waged about what the government may or may not propose in this area. It is a sensitive area, but it is an important one. You are much more likely to be able to prevent scare campaigns and beat-ups if you have everything out in the open rather than refuse to table a document that we all know exists, which is a comprehensive document and obviously contains some concrete proposals or suggestions for the future of welfare reform in this country. It is much more appropriate to have that out in the open. You would prevent claims of scare campaigns and hidden agendas if you ceased to hide it. That is the concern that the Democrats have in this debate. We believe it is one that needs to be had but, unfortunately, we cannot have a comprehensive debate without the minister being open about what is being proposed.Once again, I come back to the fundamental issue of this now newly redefined discussion paper which has suddenly been transformed into a `work in progress' and suggest that, if it is to be tabled at some later date—obviously I have no objection to it being tabled—with a suggestion that that is the document which the Senate is seeking to be tabled, not only would we have concerns about contempt of the Senate in relation to not complying with a return to order but also we would be looking seriously at a misleading of the Senate if a sanitised document is tabled and tried to be presented as the original discussion paper. That is a concern that I would have. Again, I hope that the minister does not go down that path.In conclusion, the censure motion is an important one. It is one that the Democrats take seriously, even if the government does not. From its response to previous censure motions, it is not something which it takes seriously, unfortunately. That is why I sought to add on to it specific concrete sanctions to highlight to the government how seriously we do take this issue. It is unfortunate that they will not be agreed to by the Senate and that no other concrete proposals are being put forward in their place. There is precedent now in Australian parliaments, via the New South Wales upper house, for actions such as those to be taken, and I hope that the Senate will consider alternative constructive sanctions—in the words of Senator Faulkner—and not continue the precedent of not following through with any concrete sanctions linked to censure motions.I would have a concern that Labor does not want to set a precedent in that regard for when it ends up back in government, but I am quite willing, and indeed hopeful, that it will prove me wrong in that regard. Nonetheless, I will have to accept the Labor Party amendment, reluctantly, to ensure that at least the initial basic censure motion does get through. Once again, I call on the minister to reconsider the issue and to comply with the other part of the motion which will remain, and which will be passed, which is for her to table the original discussion paper which we all know exists and which we all know was a finalised discussion paper at the time indicated in the motion.Amendment agreed to. Question put: That the motion (Senator Bartlett's )—as amended—be agreed to.11:25:00The Senate divided. (The President—Senator the Hon. Margaret Reid)34Allison, L. Bartlett, A. J. J.Bishop, T. M. Bolkus, N.Bourne, V. Brown, B.Campbell, G. Carr, K.Collins, J. M. A. Conroy, S.Cook, P. F. S. Cooney, B.Crossin, P. M. Denman, K. J. *Evans, C. V. Faulkner, J. P.Forshaw, M. G. Gibbs, B.Greig, B. A. Hutchins, S. P.Lees, M. H. Ludwig, J. W.Lundy, K. Mackay, S.McLucas, J. E. Murphy, S. M.Murray, A. O'Brien, K. W. K.Quirke, J. A. Ridgeway, A. D.Sherry, N. Stott Despoja, N.West, S. M. Woodley, J.29Abetz, E. Boswell, R. L. D.Brownhill, D. G. C. Calvert, P. H. *Campbell, I. G. Chapman, H. G. P.Coonan, H. Eggleston, A.Ellison, C. Ferris, J.Gibson, B. F. Heffernan, W.Herron, J. Hill, R. M.Kemp, R. Knowles, S. C.Lightfoot, P. R. Macdonald, I.Mason, B. J. Newman, J. M.Parer, W. R. Patterson, K. C. L.Payne, M. A.Reid, M. E.Tambling, G. E. J. Tchen, T.Tierney, J. Troeth, J.Watson, J. O. W.Crowley, R. A. Ferguson, A. B.Hogg, J. Crane, W.McKiernan, J. P. Vanstone, A. E.Ray, R. F. Minchin, N. H.Schacht, C. C. Alston, R. K. R.* denotes tellerQuestion so resolved in the affirmative.Bills9547r6709547Consideration resumed from 12 October.The bill.11:28:009547Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—I table a supplementary explanatory memorandum relating to the government amendments to be moved to the bill. The supplementary explanatory memorandum was circulated in the Senate on 28 September 1999. The first item on the running sheet is a range of government amendments. I seek leave to move the amendments together.Leave granted.H15Campbell, Sen IanSenator IAN CAMPBELL—I move:(4) Schedule 1, item 1, page 65 (line 3), omit "a payment", substitute "the making of, or an agreement to make, a payment".(5) Schedule 1, item 5, page 111 (after line 15), at the end of section 602, add: (2) Subsection (1) has effect subject to the other provisions of this Chapter.(6) Schedule 1, item 5, page 130 (lines 30 and 31) and page 131 (lines 1 to 3), omit paragraph 615(a), substitute: (a) the company must appoint a nominee for foreign holders of the company's securities who is approved by ASIC; and(7) Schedule 1, item 5, page 135 (lines 16 to 20), omit paragraph (3)(a), substitute: (a) the bidder must appoint a nominee for foreign holders of the target's securities who is approved by ASIC; and(8) Schedule 1, item 5, page 137 (lines 15 to 31), omit subsection (4), substitute:All bids—minimum consideration if bidder purchased securities in the 4 months before the bid (4) The consideration offered for securities in the bid class under a takeover bid must equal or exceed the maximum consideration that the bidder or an associate provided, or agreed to provide, for a security in the bid class under any purchase or agreement during the 4 months before the date of the bid.(9) Schedule 1, item 5, page 138 (line 1), after "consideration", insert "offered or".(10) Schedule 1, item 5, page 138 (line 3), after "consideration", insert "offered or".(11) Schedule 1, item 5, page 138 (line 5), after "consideration", insert "offered or".(12) Schedule 1, item 5, page 138 (line 7), after "consideration", insert "offered or".(13) Schedule 1, item 5, page 138 (line 11), after "relevant", insert "offer,".(14) Schedule 1, item 5, page 140 (lines 10 to 28), omit subsections (2) and (3).(15) Schedule 1, item 5, page 198 (lines 3 to 12), omit subsection (2), substitute: (2) The Panel may only declare circumstances to be unacceptable circumstances if it appears to the Panel that the circumstances: (a) are unacceptable having regard to the effect of the circumstances on: (i) the control, or potential control, of the company or another company; or (ii) the acquisition, or proposed acquisition, by a person of a substantial interest in the company or another company; or (b) are unacceptable because they constitute, or give rise to, a contravention of a provision of this Chapter or of Chapter 6A, 6B or 6C. The Panel may only make a declaration under this subsection, or only decline to make a declaration under this subsection, if it considers that doing so is not against the public interest after taking into account any policy considerations that the Panel considers relevant.(16) Schedule 1, item 5, page 198 (lines 14 and 15), omit paragraph (3)(a), substitute: (a) must have regard to: (i) the purposes of this Chapter set out in section 602; and (ii) the other provisions of this Chapter; and (iii) the rules made under section 658C; and (iv) the matters specified in regulations made for the purposes of paragraph 195(3)(c) of the Australian Securities and Investments Commission Act 1989 .(17) Schedule 1, item 5, page 198 (line 17), omit "602(c)", substitute "602(1)(c)".(18) Schedule 1, item 5, page 198 (line 22), after "acquisition" insert "or proposed acquisition".(19) Schedule 1, item 5, page 202 (after line 8), after section 657E, insert:657EA Internal Panel reviews (1) The following may apply under this section for review by the Panel of a decision of the Panel made on an application under section 657C: (a) a party to the proceedings in which the decision was made; or (b) ASIC. For these purposes, decision has the same meaning as in the Administrative Appeals Tribunal Act 1975 . (2) If the decision is not: (a) a decision to make a declaration under section 657A; or (b) a decision to make an order under section 657D or 657E; the person may apply for review only with the consent of the President of the Panel. (3) The regulations may provide for the time limits within which an application may be made for review of a decision. Note: Regulations made under the Australian Securities and Investments Commission Act 1989 deal with the constitution of the Panel for the purposes of conducting a review under this section and the procedures to be followed in conducting the review. (4) After conducting a review under this section, the Panel may: (a) vary the decision reviewed; or (b) set aside the decision reviewed; or (c) set aside the decision reviewed and substitute a new decision. In conducting the review, the Panel has the same power to make a declaration under section 657A, or an order under section 657D or 657E, as it has when it is considering an application under section 657C.657EB References by Courts (1) A Court hearing proceedings in relation to a decision of the Panel made on an application under section 657C may refer the decision to the Panel for review. Note: Regulations made under the Australian Securities and Investments Commission Act 1989 deal with the constitution of the Panel for the purposes of conducting a review under this section and the procedures to be followed in conducting the review. (2) After conducting a review under this section, the Panel may: (a) vary the decision reviewed; or (b) set aside the decision reviewed; or (c) set aside the decision reviewed and substitute a new decision. In conducting the review, the Panel has the same powers to make a declaration under section 657A, or an order under section 657D or 657E, as it has when it is considering an application under section 657C.(20) Schedule 1, item 5, page 202 (lines 12 to 21), omit section 657G, substitute:657G Orders by the Court where contravention or proposed contravention of Panel order (1) If a person contravenes, or proposes to engage in conduct that would contravene, an order made by the Panel under section 657D or 657E, the Court may make any orders it considers appropriate to secure compliance with the Panel's order, including: (a) 1 or more remedial orders; and (b) an order directing a person to do, or to refrain from doing, a specified act. Note: Section 9 defines remedial order . (2) An application for an order under this section may only be made by: (a) ASIC; or (b) the President of the Panel; or (c) a person to whom the Panel's order relates; or (d) a person who was a party to the proceedings in which the Panel's order was made.(21) Schedule 1, item 5, page 202 (after line 28), after paragraph 657H(1)(c), insert: (ca) review under section 657EA of a decision of the Panel; or(22) Schedule 1, item 5, page 204 (after line 7), after section 658B, insert:658C Panel's power to make rules (1) The President of the Panel may, after consultation with members of the Panel, make rules, not inconsistent with the Law or the Regulations, to clarify or supplement the operation of the provisions of this Chapter. (2) In making rules under this section, the President of the Panel must consider the purposes of this Chapter set out in section 602. (3) A rule under this section must be in writing and the President of the Panel must: (a) publish notice of it in the Gazette ; and (b) give the Minister, and ASIC, a copy of the rule as soon as practicable after it is published in the Gazette . (4) Within 28 days after receiving the copy, the Minister may disallow the whole or a specified part of the rule. (5) If a person contravenes a rule made under this section, the Court may give directions for compliance with the rule to: (a) that person; or (b) if that person is a body corporate—the directors of the body corporate. The Court must give the person against whom the order is sought, and any person aggrieved by the contravention, an opportunity to be heard before giving directions under this subsection. (6) The Court may give a direction under subsection (5) only on application by: (a) ASIC; or (b) the President of the Panel; or (c) a person aggrieved by the contravention.658D Inconsistency between Panel and ASIC exemptions or modificationsIf there is an inconsistency between a rule made under section 658C and an exemption or modification given by ASIC under section 655A, the rule made under section 658C prevails to the extent of the inconsistency.(23) Schedule 1, item 5, page 204 (after line 11), after section 659A, insert:659AA Object of sections 659B and 659CThe object of sections 659B and 659C is to make the Panel the main forum for resolving disputes about a takeover bid until the bid period has ended.(24) Schedule 1, item 5, page 210 (lines 12 to 14), omit paragraph (a), substitute: (a) prepare a notice in the prescribed form that: (i) informs the holders of the securities that the bidder is entitled to acquire their securities under that subsection; and (ii) informs the holders about the compulsory acquisition procedure under this Part, including: (a) their right under section 661D to obtain the names and addresses of everyone else the bidder has given the notice to; and (b) their right under section 661E to apply to the Court for an order that the securities not be compulsorily acquired; and(25) Schedule 1, item 5, page 219 (after line 5), at the end of section 663C, add: (3) If the Court makes a determination under paragraph (2)(b) in relation to the terms of sale for a holder's securities of a particular class, the determination applies to all holders of securities in that class who have applications to the Court pending for a determination under that paragraph in relation to the terms of sale of their securities.(26) Schedule 1, item 5, page 221 (after line 24), after section 664A, insert:664AA Time limit on exercising compulsory acquisition powerThe 90% holder in relation to a class of securities of a company may compulsorily acquire securities in that class under section 664A only if the holder lodges the compulsory acquisition notice for the acquisition with ASIC under paragraph 664C(2)(a) within whichever of the following periods ends last: (a) the period of 12 months after the commencement of this section; or (b) the period of 6 months after the 90% holder becomes the 90% holder in relation to that class.(27) Schedule 1, item 5, page 227 (after line 25), after subparagraph (i), insert: (ia) sets out the information that was included in the compulsory acquisition notice given in relation to securities in the main class under paragraphs 664C(1)(d) and (e); and(28) Schedule 1, item 5, page 229 (after line 21), at the end of section 665C, add: (3) If the Court makes a determination under paragraph (2)(b) in relation to the terms of sale for a holder's convertible securities of a particular class, the determination applies to all holders of convertible securities in that class who have applications to the Court pending for a determination under that paragraph in relation to the terms of sale of their convertible securities.(29) Schedule 1, item 5, page 266 (line 4), omit "Note", substitute "Note 1".(30) Schedule 1, item 5, page 266 (after line 4), at the end of subsection (8), add: Note 2: Paragraph (c)—A dealer has obligations under Division 3 of Part 7.4 when making recommendations about securities and ASIC has power under section 826 to revoke a dealer's licence if the dealer contravenes paragraph 708(8)(c).(31) Schedule 1, item 5, page 268 (after line 26), at the end of section 708, add: (20) An offer of a body's securities for issue does not need disclosure to investors under this Part if the body is an exempt public authority of a State or Territory. Note: Debentures, stock or bonds issued by a government are not securities for the purposes of this Chapter (see subsection 92(3)).(32) Schedule 1, item 5, page 283, table item 6 (column 2), omit "or quotation".(33) Schedule 1, item 5, page 290 (lines 20 to 33), omit subsection (3), substitute:Issue or transfer void if quotation condition not fulfilled (3) If a disclosure document for an offer of securities states or implies that the securities are to be quoted on a stock market of a securities exchange (whether in Australia or elsewhere) and: (a) an application for the admission of the securities to quotation is not made within 7 days after the date of the disclosure document; or (b) the securities are not admitted to quotation within 3 months after the date of the disclosure document; then: (c) an issue or transfer of securities in response to an application made under the disclosure document is void; and (d) the person offering the securities must return the money received by the person from the applicants as soon as practicable.(34) Schedule 1, item 5, page 292 (lines 14 and 15), omit subparagraph (b)(ii), substitute: (ii) 1 month to withdraw their application and be repaid; or(35) Schedule 1, item 5, page 292 (lines 19 and 20), omit subparagraph (c)(ii), substitute: (ii) 1 month to withdraw their application and be repaid; or(36) Schedule 1, item 5, page 294 (lines 9 and 10), omit subparagraph (b)(ii), substitute: (ii) 1 month to withdraw their application and be repaid; or(37) Schedule 1, item 5, page 294 (lines 13 and 14), omit subparagraph (c)(ii), substitute: (ii) 1 month to withdraw their application and be repaid; or(38) Schedule 1, item 8, page 334 (after line 4), at the end of section 1481, add: (5) On commencement, each of the provisions required by section 260FB is taken to be included in a trust deed that: (a) is required by section 260FA; and (b) is in effect immediately before commencement; and (c) would not otherwise include that provision.(40) Schedule 3, page 355 (after line 7), after item 22, insert:22A Section 9 (definition of securities law )After "6", insert ", 6A, 6B, 6C, 6D".(43) Schedule 3, page 379 (after line 15), after item 165, insert: 165A Paragraph 601CE(c)Omit "242(2)", substitute "205B(3)".(44) Schedule 3, item 180, page 382, item relating to section 200B, omit the item.(45) Schedule 3, item 180, page 383, item relating to subsection 81(3), omit the item.(47) Schedule 3, page 403 (after line 4), after item 266, insert:266A Section 9 (at the end of the definition of chargeable matter )Add: (i) the making of an application under that Law to the Panel; (j) the doing of any act by the Panel in dealing with an application under that Law to the Panel.(48) Schedule 3, item 267, page 403 (lines 5 to 7), omit, substitute:267 Section 9 (definition of class )Repeal the definition, substitute: class has: (a) in relation to futures contracts—a meaning affected by subsection 72(3); and (b) in relation to shares or interests in a managed investment scheme—a meaning affected by section 57; and (c) when used in relation to securities for the purposes of Chapter 6, 6A or 6C—a meaning affected by subsection 605(2).(49) Schedule 3, item 308, page 411 (line 21), after "9 ", insert "(definition of voting share ) ".(50) Schedule 3, item 308, page 411 (line 22), omit "Insert:", substitute "Repeal the definition, substitute:".(51) Schedule 3, item 371, page 420, item relating to subsections 623(1), (2) and (3), omit the item, substitute:Subsection 623(1) Penalty: 25 penalty units or imprisonment for 6 months, or both.(52) Schedule 4, item 15, page 428 (lines 6 and 7), omit the definition of Panel proceedings , substitute: Panel proceedings means proceedings before the Panel on: (a) an application made to the Panel under the Corporations Law; or (b) a reference of a decision to the Panel for review under the Corporations Law. (53) Schedule 4, page 429 (after line 8), after item 24, insert:24A After subsection 184(4)Insert: (4A) The regulations may make provision in relation to the constitution of the Panel for the purposes of conducting a review under section 657EA or 657EB of the Corporations Law.(54) Schedule 4, item 39, page 430 (line 20), omit "at an inquiry", substitute "in Panel proceedings".(55) Schedule 4, item 42, page 431 (lines 5 and 6), omit the item, substitute:42 Section 194Repeal the section, substitute:194 Legal representation in proceedings before the PanelA party to Panel proceedings may be legally represented in the proceedings only with the leave of the Panel.(56) Schedule 5, item 11, page 447 (line 19), omit "company", substitute "authority".(57) Schedule 5, item 12, page 454 (lines 8 and 9), omit "or that Act as applying as a law of this jurisdiction".(58) Schedule 5, item 14, page 462 (lines 1 and 2), omit subsection (1A), substitute: (1A) Chapters 6, 6A, 6B, 6C and 6D of the Corporations Law of the Capital Territory: (a) bind the Crown in right of the Commonwealth; and (b) do not bind the Crown in right of any State, of the Capital Territory, of the Northern Territory or of Norfolk Island.(59) Schedule 5, page 462 (after line 7), after item 15, insert:15A Section 30After "Chapter" (wherever occurring), insert "6D,".Note: The heading to section 30 is altered by inserting "6D ," after "Chapter ".(60) Schedule 6, page 465 (before line 13), before item 3, insert:2B Before paragraph 66A(6)(c)Insert: (a) the Cullen Bay Marina Management Corporation;(61) Schedule 7, page 469 (after line 10), after item 11, insert: 11A Section 123Repeal the section, substitute:123 Members to disclose certain interests to Minister (1) A member must, in accordance with this section, disclose to the Minister: (a) any direct or indirect pecuniary interest that the member has or acquires in: (i) a body corporate carrying on business in Australia; or (ii) a business in Australia; and (b) any direct or indirect pecuniary interest that the member has or acquires in interests (including securities, futures contracts or other financial products) regulated by the Commission; and (c) any agreement, understanding or expectation that the member will: (i) resume a previous business relationship (whether or not that relationship existed immediately before the member's appointment); or (ii) enter into a new business relationship; when the member ceases to be a member; and (d) any severance arrangement or ongoing financial arrangement that takes account of an agreement, understanding or expectation that must be disclosed under paragraph (c). (2) For the purpose of paragraph (1)(b), interests are regulated by the Commission if the Commission has a function or power in relation to any aspect of the acquisition, holding, disposal or provision of the interests, or of interests of that kind. (3) In disclosing an indirect pecuniary interest in securities, futures contracts or other financial products, the member must identify the particular securities, futures contracts or products. (4) Paragraphs (1)(c) and (d) apply to agreements or understandings entered into, or expectations arising, before or after the member's appointment. (5) Paragraph (1)(c) does not require a member to disclose an expectation to enter into a new business relationship unless the member can identify the other party, or one or more other parties, to the relationship. Disclosure is required whether or not the field of business or legal nature of the relationship has been determined. (6) A disclosure under this section must be made in writing.11B Paragraph 124(1)(b)Omit "or other interest", substitute "interest, or a direct or indirect interest of any other kind,".(62) Schedule 7, page 469 (after line 10), after item 11B, insert:11C Paragraph 127(1D)(c)Repeal the paragraph.11D Subsection 135(4)Repeal the subsection, substitute: (4) This section and subsection 18(3) of the Commonwealth Authorities and Companies Act 1997 have effect subject to a provision that a national scheme law of this or any other jurisdiction makes about money or property that vests in the Commission under such a law.(63) Schedule 7, page 469 (after line 10), after item 11D, insert:11E At the end of subsection 138(1)Add:; and (d) describe the performance indicators used by the Commission and the Commission's performance against those indicators.(64) Schedule 7, page 469 (after line 10), after item 11E, insert:11F After subsection 243D(5)Insert: (5A) If a cash dealer communicates to the Director, under subsection (1), information about the cash dealer's suspicion in relation to a transaction to which the cash dealer is a party, the cash dealer must not, unless required to do so under the ASC Law, the Corporations Law or an Act of the Commonwealth, disclose to anyone else: (a) that the cash dealer has formed the suspicion; or (b) that information has been communicated to the Director; or (c) any other information from which the person to whom the information is disclosed could reasonably be expected to infer that: (i) the suspicion had been formed; or (ii) the first-mentioned information had been communicated. (5B) If a cash dealer gives further information pursuant to a request under subsection (4), the cash dealer must not, unless required to do so under the ASC Law or an Act of the Commonwealth, disclose to anyone else: (a) that the information has been given; or (b) any other information from which the person to whom the information is disclosed could reasonably be expected to infer that the first-mentioned information had been given. (5C) A cash dealer who contravenes subsection (5A) or (5B) is guilty of an offence punishable, upon conviction, by: (a) a fine or not more than 120 penalty units or imprisonment for not more than 2 years, or both, if the cash dealer is a natural person; or (b) a fine of not more than 600 penalty units if the cash dealer is a body corporate. (5D) Neither subsection (5A) nor subsection (5B) prohibits a cash dealer from communicating or disclosing a fact or information referred to in either of those subsections: (a) to the Australian Stock Exchange Limited; or (b) to the Commission; or (c) to a body corporate approved under section 769 of the Corporations Law as a stock exchange; or (d) to a body corporate approved under section 770 of the Corporations Law as an approved securities organisation; or (e) in accordance with conditions imposed by the Minister when approving under section 770A of the Corporations Law a stock market for electronic trading of interests in a registered scheme; or (f) in accordance with conditions imposed by the Minister when declaring a specified stock market to be an exempt stock market under section 771 of the Corporations Law; or (g) to a body corporate approved under section 779B of the Corporations Law as a securities clearing house; or (h) to a body corporate approved under section 1126 of the Corporations Law as a futures exchange; or (i) in accordance with conditions imposed by the Minister when declaring a specified futures market to be an exempt futures market under section 1127 of the Corporations Law; or (j) to a body corporate approved under section 1131 of the Corporations Law as a clearing house for a futures exchange; or (k) to a body corporate approved under section 1132 of the Corporations Law as a futures association. (5E) Neither subsection (5A) nor subsection (5B) prohibits a cash dealer from communicating or disclosing to any court any information, or matter, referred to in that subsection, but this subsection does not affect the operation of subsection (5F). (5F) In any legal proceeding (other than a prosecution for an offence against subsection 29(1) or 30(1) of the Financial Transaction Reports Act 1988 (which relate to false and misleading information or incomplete information) as applied by subsection (7) of this section): (a) none of the following is admissible in evidence: (i) a report prepared (whether before or after the commencement of this subsection) under subsection (1); (ii) a copy of such a report; (iii) a document purporting to set out information contained in such a report; (iv) a document given under subsection (4); and (b) evidence is not admissible as to: (i) whether or not a report was prepared under subsection (1); or (ii) whether or not a copy of a report prepared under that subsection, or a document purporting to set out information contained in such a report, was given to, or received by, the Director, or (iii) whether or not particular information was contained in a report prepared under that subsection; or (iv) whether or not particular information was given under subsection (4). (5G) In subsection (5F): information includes the formation or existence of a suspicion referred to in subsection (1).(65) Schedule 8, page 470 (after line 8), after item 2, insert: 2A Subsection 243V(2)Omit "(1)(d)", substitute "(1)(e)".(66) Schedule 8, page 470 (after line 8), after item 2A, insert:2B Paragraph 309(3)(b)Omit "(d), (e) or (f)", substitute "(b), (c) or (d)".(67) Schedule 8, page 470 (after line 8), after item 2B, insert:2C At the end of section 314Add: (3) If the accounting standards made for the purposes of paragraph (2)(a) require a discussion and analysis to be included in a concise financial report: (a) the auditor must report on whether the discussion and analysis complies with the requirements that the accounting standards lay down for the discussion and analysis; and (b) the auditor does not otherwise need to audit the statements made in the discussion and analysis.2D Paragraph 334(4)(b)After "ending", insert ", or starting,".(68) Schedule 8, page 470 (after line 17), after item 5, insert:5A Paragraph 601CE(c)Omit "242(3)", substitute "242(2)".5B Paragraph 1085(1)(c)Omit "constitution", substitute "constitution (if any) and any replaceable rules that apply to the company".(69) Page 472 (after line 13), at the end of the Bill, add:Schedule 10—Amendments consequential on amendment of the Commonwealth Authorities and Companies Act 1997Aboriginal and Torres Strait Islander Commission Act 19891 Paragraph 40(7)(e) Omit "21", substitute "27F or 27J".2 Paragraph 44(5)(a)Omit "21", substitute "27J".3 Subsection 44(13)Omit "21", substitute "27J".4 Paragraph 143S(6)(e)Omit "21", substitute "27F or 27J".5 Paragraph 144E(5)(a)Omit "21", substitute "27J". 6 Subsection 144E(14)Omit "21", substitute "27J".7 Paragraph 165(2)(c)Omit "21", substitute "27F or 27J".8 Paragraph 167(3)(a)Omit "21", substitute "27J".9 Subsection 167(11)Omit "21", substitute "27J".10 Paragraph 192H(2)(e)Omit "21", substitute "27F or 27J".11 Paragraph 192J(3)(a)Omit "21", substitute "27J".Note: The heading to subsection 192J(3) is altered by omitting "21 " and substituting "27J ".Agricultural and Veterinary Chemicals (Administration) Act 199212 Paragraph 24(2)(b)Omit "21", insert "27F or 27J".Australia Council Act 197513 Subparagraph 14(2)(a)(ii)Omit "21", substitute "27F or 27J".14 Subsection 15(6)Omit "section 21", substitute "sections 27F to 27L".15 Paragraph 19F(2)(e)Omit "21", substitute "27F or 27J".16 Subsection 27(2)Omit "21", substitute "27F or 27J".Australia New Zealand Food Authority Act 199117 Paragraph 52(2)(b)Omit "21", insert "27F or 27J".Australian Broadcasting Corporation Act 198318 Subsection 17(1A)Omit "21", substitute "27F".19 Subparagraph 18(2)(a)(ii)Omit "21", substitute "27F or 27J".Australian Communications Authority Act 199720 Section 30Omit "section 21", substitute "sections 27F to 27L".21 Section 30Omit "which deals with disclosure of interests", substitute "which deal with disclosure of interests, restrictions on voting and access to records".22 Paragraph 37(4)(d)Omit "21", substitute "27F or 27J". Australian Film Commission Act 197523 Subparagraph 23(2)(a)(ii)Omit "21", substitute "27F or 27J".Australian Film, Television and Radio School Act 197324 Paragraph 18(c)Omit "21", substitute "27F or 27J".25 Paragraph 29(1)(c)Omit "21", substitute "27F or 27J".Australian Heritage Commission Act 197526 Paragraph 18(2)(c)Omit "21", substitute "27F or 27J".27 Section 19Omit "section 21", substitute "sections 27F to 27L".Note: The heading to section 19 is altered by omitting "section 21 " and substituting "sections27F to 27L ".28 Paragraph 21(3)(a)Omit "section 21", substitute "sections 27F to 27L".Australian Horticultural Corporation Act 198729 Paragraph 24(2)(b)Omit "21", substitute "27F or 27J".30 Subsection 73(5)Omit "Section 21", substitute "Sections 27F to 27L".31 Subsection 73(5)Omit "applies", substitute "apply".32 Subsection 115ZB(5)Omit "Section 21", substitute "Sections 27F to 27L".33 Subsection 115ZB(5)Omit "applies", substitute "apply".Australian Institute of Aboriginal and Torres Strait Islander Studies Act 198934 Paragraph 21(2)(b)Omit "21", substitute "27F or 27J".Australian Institute of Health and Welfare Act 198735 Paragraph 13(2)(b)Omit "21", substitute "27F or 27J".36 Subsection 14(3)Omit "Section 21", substitute "Sections 27F and 27J".37 Subsection 14(3)Omit "does", substitute "do". Australian Institute of Marine Science Act 197238 Paragraph 16(c)Omit "21", substitute "27F or 27J".39 Paragraph 28(d)Omit "21", substitute "27F or 27J".Australian Law Reform Commission Act 199640 Paragraph 17(2)(b)Omit "21", substitute "27F or 27J".Australian Maritime Safety Authority Act 199041 Paragraph 21(2)(d)Omit "21", substitute "27F or 27J".Australian National Maritime Museum Act 199042 Paragraph 21(2)(c)Omit "21", substitute "27F or 27J".43 Subsection 23(6)Omit "subsection 21(3)", substitute "section 27J".44 Paragraph 36(2)(e)Omit "21", substitute "27F or 27J".Australian National University Act 199145 Paragraph 15(1)(e)Omit "21", substitute "27F or 27J".Australian Nuclear Science and Technology Organisation Act 198746 Paragraph 14(2)(c) Omit "21", substitute "27F or 27J".47 Subsection 16(6)Omit "subsection 21(3)", substitute "section 27J".48 Paragraph 21C(2)(d)Omit "21", substitute "27F or 27J".Australian Postal Corporation Act 198949 Subsection 67(2)Omit "21", substitute "27J".50 Section 71Omit "Section 21", substitute "Sections 27F and 27J".51 Section 71Omit "does", substitute "do".52 Paragraph 79(2)(b)Omit "21", substitute "27F or 27J".Australian Prudential Regulation Authority Act 199853 Paragraph 31(2)(e)Omit "21", substitute "27F or 27J".54 Paragraph 40(1)(e)Omit "21", substitute "27F or 27J". Australian Securities and Investments Commission Act 198955 Subsection 124(7)Omit "Section 21", substitute "Sections 27F to 27L".Australian Sports Commission Act 198956 Paragraph 19(2)(b)Omit "21", substitute "27F or 27J".57 Subsection 22(7)Omit "Section 21", substitute "Sections 27F to 27L".58 Subsection 22(7) Omit "applies", substitute "apply".Australian Tourist Commission Act 198759 Paragraph 21(2)(b)Omit "21", substitute "27F or 27J".60 Subsection 23(8)Omit "21" substitute "27J".Australian Trade Commission Act 198561 Paragraph 20(2)(d)Omit "21", substitute "27F or 27J".Australian War Memorial Act 198062 Paragraph 14(2)(c)Omit "21", substitute "27F or 27J".Australian Wine and Brandy Corporation Act 198063 Paragraph 20(4)(b)Omit "21", substitute "27F or 27J".64 Subsection 21(4)Omit "section 21", substitute "sections 27F and 27J".Australian Wool Research and Promotion Organisation Act 199365 Subsection 30(3)Omit "section 21", substitute "sections 27F and 27J".66 Paragraph 33(2)(c)Omit "21", substitute "27F or 27J".67 Paragraph 42(4)(c)Omit "21", substitute "27F or 27J".Broadcasting Services Act 199268 Paragraph 9(3)(e) of Schedule 3Omit "21", substitute "27F or 27J".Civil Aviation Act 198869 Paragraph 42(2)(d)Omit "21", substitute "27F or 27J". Coal Mining Industry (Long Service Leave Funding) Act 199270 Paragraph 28(2)(c)Omit "21", substitute "27F or 27J".Dairy Produce Act 198671 Section 35Omit "section 21", substitute "sections 27F and 27J".72 Paragraph 38(3)(c)Omit "21", substitute "27F or 27J".73 Subsection 46(2)Omit "Section 21", substitute "Sections 27F to 27L".74 Subsection 46(2)Omit "applies", substitute "apply".75 Paragraph 47(4)(d)Omit "21", substitute "27F or 27J".Defence Housing Authority Act 198776 Subsection 20(4)Omit "section 21", substitute "sections 27F and 27J".77 Paragraph 21(2)(b)Omit "21", substitute "27F or 27J".78 Subsection 26(6)Omit "Section 21", substitute "Sections 27F to 27L".79 Subsection 26(6)Omit "applies", substitute "apply".Employment Services Act 199480 Paragraph 87(2)(e) Omit "21", substitute "27F or 27J".81 Paragraph 89(3)(a)Omit "21", substitute "27F or 27J".Export Finance and Insurance Corporation Act 199182 Paragraph 42(3)(c)Omit "21", substitute "27F or 27J".Family Law Act 197583 Paragraph 114J(2)(d)Omit "21", substitute "27F or 27J".Fisheries Administration Act 199184 Paragraph 21(2)(b)Omit "21", substitute "27F or 27J".Great Barrier Reef Marine Park Act 197585 Paragraph 16(2)(e)Omit "21", substitute "27F or 27J". Health Insurance Commission Act 197386 Paragraph 17(2)(b)Omit "21", substitute "27F or 27J".87 Paragraph 26(2)(b)Omit "21", substitute "27F or 27J".Hearing Services Act 199188 Paragraph 31(2)(b)Omit "21", substitute "27F or 27J".89 Paragraph 46(2)(b)Omit "21", substitute "27F or 27J".Horticultural Research and Development Corporation Act 198790 Paragraph 23(2)(b) Omit "21", substitute "27F or 27J".91 Subsection 54(5)Omit "Section 21", substitute "Sections 27F to 27L".92 Subsection 54(5)Omit "applies", substitute "apply".Maritime College Act 197893 Paragraph 17(2)(b)Omit "21", substitute "27F or 27J".National Gallery Act 197594 Paragraph 17(2)(c)Omit "21", substitute "27F or 27J".95 Paragraph 29(2)(aa)Omit "21", substitute "27F or 27J".National Health Act 195396 Section 82BAOmit "21", substitute "27F to 27L".97 Subsection 82ZRAA(2)Omit "Section 21", substitute "Sections 27F to 27L".98 Subsection 82ZRAA(2)Omit "does", substitute "do".National Library Act 196099 Paragraph 15(1)(e)Omit "21", substitute "27F or 27J".100 Paragraph 17E(1)(aa)Omit "21", substitute "27F or 27J".National Measurement Act 1960101 Paragraph 18AC(2)(c)Omit "21", substitute "27F or 27J".National Museum of Australia Act 1980102 Paragraph 17(2)(c)Omit "21", substitute "27F or 27J". 103 Paragraph 27(2)(e)Omit "21", substitute "27F or 27J".National Occupational Health and Safety Commission Act 1985104 Paragraph 14(3)(b)Omit "21", substitute "27F or 27J".105 Subsection 14(6)Omit "21", substitute "27F or 27J".National Parks and Wildlife Conservation Act 1975106 Subsection 15A(2)Omit "Section 21", substitute "Sections 27F to 27L".107 Subsection 15A(2)Omit "does", substitute "do".Pig Industry Act 1986108 Paragraph 14(2)(b)Omit "21", substitute "27F or 27J".109 Subsection 15(1)Omit "section 21", substitute "sections 27F and 27J".Primary Industries and Energy Research and Development Act 1989110 Paragraph 73(1)(c)Omit "21", substitute "27F or 27J".111 Subsection 100(2)Omit "Section 21", substitute "Sections 27F to 27L".112 Subsection 100(2)Omit "applies", substitute "apply".113 Paragraph 138(1)(g)Omit "21", substitute "27F or 27J".Reserve Bank Act 1959114 Paragraph 18(1)(e)Omit "21", substitute "27F or 27J".Safety, Rehabilitation and Compensation Act 1988115 Subsection 90(1)Omit "section 21", substitute "sections 27F to 27L".Science and Industry Research Act 1949116 Paragraph 10E(2)(b)Omit "21", substitute "27F or 27J".117 Paragraph 22(2)(c)Omit "21", substitute "27F or 27J". Snowy Mountains Hydro-electric Power Act 1949118 Subsection 26(1)Omit "section 21", substitute "sections 27F to 27L".Special Broadcasting Service Act 1991119 Subparagraph 27(2)(c)(ii)Omit "21", substitute "27F or 27J".120 Paragraph 37(2)(d)Omit "21", substitute "27F or 27J".121 Subsection 40(2)Omit "subsection 21(3)", substitute "section 27J".Wheat Marketing Act 1989122 Paragraph 8(2)(b)Omit "21", substitute "27F or 27J".(70) Page 472 (after line 13), at the end of the Bill, add:Schedule 11—Amendment of the Corporations Law to deal with ASC Law and ASC Regulations referencesPart 1—ASC Law references1 Amendment of the Corporations LawThe specified provisions of the Corporations Law listed in this Part of this Schedule are amended by omitting "ASC Law" (wherever occurring) and substituting "ASIC Law".2 Section 23 Section 9 (definition of Commission delegate )4 Section 9 (paragraph (b) of the definition of law )5 Section 9 (paragraph (b) of the definition of scheme property )6 Section 9 (definition of scheme property ) (note 2)7 Subparagraphs 88A(1)(a)(i) and (ii)8 Paragraph 246AA(1)(b)9 Paragraph 461(1)(h)10 Subsection 464(1)11 Subsection 553(2)12 Subparagraph 583(c)(iii)13 Paragraph 589(2)(a)14 Paragraph 601(b)15 Subsection 1271(2)16 Subsection 1317R(8)17 Paragraph 1323(1)(a)18 Paragraph 1438(2)(a) Part 2—ASC Regulations references19 Amendment of the Corporations Law The specified provisions of the Corporations Law listed in this Part of this Schedule are amended by omitting "ASC Regulations" (wherever occurring) and substituting "ASIC Regulations".20 Section 9 (paragraph (b) of the definition of law )(71) Page 472 (after line 13), at the end of the Bill, add:Schedule 12—Amendment of other Acts to deal with ASC Law and ASC Regulation referencesPart 1—ASC Law references1 Amendment of ActsThe specified provisions of the Acts listed in this Part of this Schedule are amended by omitting "ASC Law" (wherever occurring) and substituting "ASIC Law".Note: The heading to section 40A of the Acts Interpretation Act 1901 is altered by omitting "ASC Law " and substituting "ASIC Law ".Acts Interpretation Act 19012 Section 40AAdministrative Appeals Tribunal Act 19753 Paragraph 27A(2)(e)Australian Securities and Investments Commission Act 19894 Subsection 1B(1)5 Subsections 1C(2) and (3)6 Subsections 1D(1), (2) and (4)7 Paragraphs 1E(a) and (b)8 Subsection 5(1) (paragraph (b) of the definition of examination )9 Section 6A10 Subsections 6E(1), (2) and (3)11 Paragraph 88(1A)(b)12 Paragraph 243A(a)13 Subsections 243D(5A) and (5B)14 Subsection 251(3)Corporations Act 198915 Subsection 4(1) (paragraph (b) of the definition of applicable provision )16 Subsection 4(1) (definition of ASC Law and ASC Regulations )17 Subsection 4(1) (definition of Commonwealth law )18 Paragraph 9(1A)(c)19 Paragraph 37(b) 20 Section 38 (paragraph (c) of the definition of corresponding law )21 Subparagraph 50(2)(a)(ii)22 Subparagraph 63(2)(a)(ii)23 Paragraph 75(c)Evidence Act 199524 Subsection 8(3)Financial Transaction Reports Act 198825 Subsection 3(1) (paragraph (b) of the definition of FTR information )Part 2—ASC Regulations references26 Amendment of ActsThe specified provisions of the Acts listed in this Part of this Schedule are amended by omitting "ASC Regulations" (wherever occurring) and substituting "ASIC Regulations".Note: The heading to section 251 of the Australian Securities and Investments Commission Act 1989 is amended by omitting "ASC " and substituting "ASIC ".Acts Interpretation Act 190127 Section 40AAustralian Securities and Investments Commission Act 198928 Subsection 1B(2)29 Subsection 1C(3)30 Subsections 1D(2) and (4)31 Paragraphs 1E(a) and (b)32 Subsection 5(1) (definition of regulations )Corporations Act 198933 Section 4 (paragraph (b) of the definition of applicable provisions )34 Section 4 (definition of ASC Law and ASC Regulations )35 Paragraph 9(1A)(c)36 Section 38 (paragraph (c) of the definition of corresponding law )37 Subparagraph 50(2)(a)(iii)38 Subparagraph 63(2)(a)(iii)39 Subsection 80(1) (definition of national scheme regulations of the Capital Territory )I make the comment that the amendments arise from the report and recommendations of the joint statutory committee. I think it is fair to say that the government has picked up the great bulk of the recommendations of the committee.11:30:009559Conroy, Sen StephenSenator CONROY3L6VICALP00—I would seek to have amendments 26 to 28 separated so that they can be dealt with a little later when we deal with the majority of amendments to do with compulsory acquisition. It is just a question of either having the debate twice or having it once, if that is acceptable to the government.Motion (by Senator Ian Campbell) agreed to:That further consideration of amendments Nos 26, 27 and 28 be postponed.11:30:009560Murray, Sen AndrewSenator MURRAY3M6WAAD00—Just for clarification, I would like to determine exactly what we are dealing with at the moment. As I understand it, it is government amendments Nos 4 to 38, excluding Nos 26 to 28, together with amendments Nos 40, 43 to 45 and 47 to 71.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Sherry)—That is correct.3M6Murray, Sen AndrewSenator MURRAY—If the opposition do not wish to speak first on these, I have a few remarks that I would just like to address to these amendments as a whole. The Australian Democrats support these amendments. In the process of developing them, I omitted yesterday to thank my adviser Lee Jones who has assisted me greatly in this process. He has interacted with the government on their amendments and, as I have said already, we do support them.These amendments are largely of a technical or corrective nature, but I do note that a number of them give effect to policy changes which the minister has made in response to the report of the Joint Committee on Corporations and Securities. I would make the point that this is how governments should behave. There is no point in having a joint committee which considers these matters on an objective and independent basis if the government do not respond positively to them where they can see their way to doing so. I thank the government for dealing positively with that report.In dealing with a few of those amendments briefly, amendment No. 8 responds to a recommendation contained in my own supplementary report. That recommendation was that, regardless of the type of consideration being offered for shares in a takeover situation, the minimum consideration on offer must at least equal the maximum paid during the four months before the date of the bid. The existing provision only imposed that requirement where one of the forms of consideration offered was cash. If cash was not being offered, the requirement did not apply. I am glad the government saw fit to accept that recommendation.Amendment No. 19 establishes an internal revenue mechanism for decisions made by the Corporations and Securities Panel. The Democrats were concerned that, in its present form, the legislation had provided no redress whatsoever for a person aggrieved by a decision made by the panel. We are happy to see the provision for internal review of panel decisions, which will hopefully balance the need for an appeal mechanism against the desire to avoid lengthy court appeals during the takeover process.In making those remarks, I should say in passing that the committee noted, in its interaction with the UK takeover panel by telephone conference, that that takeover panel had been free of court appeals and court processes because its own process of dealing with takeovers is so well accepted in the market. I hope that the new takeover panel will indeed have that same atmosphere and culture surrounding it.Amendment No. 20, which we are also considering at this time, picks up another recommendation in our supplementary report to the joint committee's inquiry, namely, allowing an extended range of persons to obtain enforcement of the orders by the Corporations and Securities Panel rather than just ASIC. Orders of the panel will now be able to be enforced by any person to whom the order relates, any party to the proceedings or the president of the panel. It was the Australian Institute of Company Directors that expressed concern with the original limitation. It was suggested that limiting applications for enforcement to ASIC alone was consistent with the objective of curbing the litigious nature of takeover activity.As I said in my supplementary report, I am of the view that allowing enforcement applications by persons other than ASIC will: firstly, not result in any substantial increase in litigation given that there must first be an order on foot and a contravention of that order before an application can be made; and, secondly, relieve ASIC of the need to become involved in litigation which is essentially between private citizens. Once again I thank the government for including that in their own amendments. That is all I have to say on those government amendments and I repeat that we support them.11:35:009561Conroy, Sen StephenSenator CONROY3L6VICALP00—I want to indicate briefly that the opposition support the amendments. The Corporate Law Economic Reform Program Bill 1998 and these amendments seek to revamp the takeover panel based on the UK model. While we are supportive of the principle that a body can act in arbitration to settle takeover disputes as an alternative to the courts, we have some doubts about our ability to emulate the success of the UK's panel.Australia has a somewhat different business culture to that of Britain, based on evidence provided to the Joint Committee on Corporations and Securities. British corporations are less adversarial and less inclined to pursue litigation compared to their Australian counterparts. It is because of these concerns that the opposition support the government's amendments to their own bill on the takeover panel. We hope that these changes will boost the relevance and authority of the takeover panel in considering debates arising during the takeover process.I would, however, like to draw one interesting parallel. The government seem dead keen to have some sort of independent arbitrator outside of the courts when it comes to a battle between their corporate mates. But when it comes to industrial relations we have a situation where they want the courts involved. They want to take away the powers of the independent umpire. It seems to me that they are setting a double standard here. They are setting a standard which says it is all right for our corporate mates to have a chat and go through this independent process with lots of powers and no constant litigation or extra costs, but if you are a worker or a union you are going to lose under this government's ideological war. You are going to lose protections and rights, and you are going to have the capacity to arbitrate taken away.I find it interesting that there is such a staggering double standard. I am hoping that in later debates this can again be highlighted: there is one rule for the bosses and the companies, but if you are a worker or a union then you are going to have to be open to the influence of lawyers, courts and all sorts of actions to try to break and destroy you. I hope the Senate and the senators in this chamber are conscious of this double standard when it comes, in a few months time, to dealing with a number of issues revolving around the so-called second wave or third wave or fourth wave or whatever we are up to by the time it finally gets here. It is important to emphasise that double standard.11:38:009561Murray, Sen AndrewSenator MURRAY3M6WAAD00—Mr Temporary Chairman Sherry, I must apologise to you and my colleagues because I was not alert enough to the fact that I wanted one item in the government amendments being put to be considered later. The item concerned is government amendment No. 14. I ask the Senate whether that amendment can be considered after Democrat amendment No. 2 on sheet 1592, so I move:That further consideration of amendment No. 14 be postponed.Question resolved in the affirmative.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Sherry)—The question now is that the government amendments be agreed to.Question resolved in the affirmative.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—We now go to schedule 3. The question is that schedule 3, items 13, 89, 123 and 193 stand as printed.11:40:009561Murray, Sen AndrewSenator MURRAY3M6WAAD00—The Australian Democrats support this. It is consequential to the previous group of government amendments and relates to commencement. We do not feel any further comment is necessary.Question resolved in the negative.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Do you want to move on to (26), (27) and (28)? Could you indicate when you would like to deal with them?11:40:009562Conroy, Sen StephenSenator CONROY3L6VICALP00—After our amendment No. 18.Amendments (by Senator Ian Campbell)—by leave—agreed to:(1) Clause 2, page 2 (lines 4 to 9), omit subclauses 2(2) and (3), substitute: (2) The following provisions commence on a day or days to be fixed by Proclamation: (a) section 3; (b) the items in Schedules 1 to 7 (other than item 12 of Schedule 7); (c) the items in Schedules 10, 11 and 12. (3) If any of the following provisions does not commence under subsection (2) within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period: (a) section 3; (b) an item in Schedules 1 to 7 (other than item 12 of Schedule 7); (c) an item in Schedule 10. (3A) If an item in Schedule 11 or 12 does not commence under subsection (2) within the period of 12 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.(2) Clause 2, page 2 (lines 13 and 14), omit subclause 2(5), substitute: (5) The items in Schedule 8 (other than item 2A) are taken to have commenced immediately after the Managed Investments Act 1998 .(5A) Item 2A of Schedule 8 is taken to have commenced immediately after section 27 of the Corporate Law Reform Act 1992 .(3) Clause 3, page 2 (line 24), omit "6 and 8", substitute "6, 8 and 11".11:42:009562Conroy, Sen StephenSenator CONROY3L6VICALP00—I move:(1) Schedule 1, item 1, page 4 (lines 2 to 25), omit subsections (2) and (3).This amendment is to do with directors' duties and the business judgment rule. The opposition has considered the issue of the business judgment rule or safe harbour very carefully. We have weighed the arguments for and against. We believe our decision to oppose it is the correct one. The government has argued that the common law has not provided the necessary degree of certainty with regard to the duties of directors, which has hampered them from doing their jobs effectively. Thus it argues that legislation is required to correct this and to encourage risk taking by directors. The opposition disagrees.The common law has provided adequate consideration of directors' rights and has, in the main, restricted itself from second guessing directors' decisions. There already exists a so-called business judgment doctrine as a result of the case of Harlowe's Nominees Pty Ltd v. Woodside 1968. A statutory business judgment rule is therefore unnecessary. It is also unnecessary because there has been scarce litigation regarding directors' decisions. Even when directors are brought to court they are rarely penalised or found at fault. The case of Vrisakis v. Australian Securities Commission 1995 underlines this point. For those unfamiliar with this case, the court found that it could not convict Vrisakis, a non-executive director, for statutory breach of care and diligence. The court agreed that, as he was in the situation of salvaging a sinking company, he needed to consider more risky proposals, otherwise the company would have definitely failed. Where is the concern?The government assumes that the business judgment rule will be sufficient to encourage directors to take risky decisions that could prove profitable. This is ridiculous. Market mechanisms exist which give directors incentives to perform. If directors fail to perform, it will be reflected in the company's performance and in its stock prices. If the directors also own stocks in their company or are involved in schemes which tie their remuneration to the company's performance, then I have no doubt that those directors are doing all they can to improve the performance of their companies.Directors have blamed the AWA Ltd v. Daniels 1992 and the Daniels v. Anderson 1995 cases for the uncertainty, but these cases in fact clarified directors' duties. What is made clear is that, so long as directors actively participated in the company's affairs and based their decisions on an informed basis, they would not be penalised even if the company ultimately failed. The standards may have been raised, but these are appropriate to ensure directors take their fiduciary role of managing other people's assets seriously. Directors should not be excused if they fail in their duties, which usually means economic loss for other Australians. This is what the government's business judgment rule would do: it would effectively remove directors' exposure to negligence. Why should directors be treated differently from other professionals?The government's proposed business judgment rule was inspired by a similar law in the US state of Delaware. It is quite interesting to note, however, that the business judgment rule did little to protect directors from litigation and thus did little to provide certainty or clarity. The case of Smith v. Gorkom of 1985, considered in the Delaware Supreme Court, found the directors wanting in their decision making process. This was in spite of the existence of a business judgment rule. The key issues that weighed against the directors in this case were that they were not fully informed and had not applied independent judgment when making their decision. Also, the court found that their decision was not made in good faith due to haste and lack of prudence in making the decision. The big question now is whether the Smith v. Gorkom case would receive the same judgment and lead to a similar outcome under the proposed new regime of the government. For that matter, is the government's codification in step with the judgment in the Daniels v. Anderson case? That is, does the government accept that directors need to `take reasonable steps to place themselves in a position to guide and monitor the management of the company'? Moreover, do you agree that directors cannot use ignorance and a failure to inquire in making their decision as a protection against liability for negligence?I expect the government's response to be negative in all instances. The government has drafted a bill that would ensure negligent directors are not held accountable. Why propose a safe harbour when directors get away with enough as it is? The Burns Philp episode shows that, no matter how bad you are as a director, you will not face any sort of sanction. As ASIC's chairman acknowledged, `incompetency is not a crime'. ASIC's assessment of the Burns Philp fiasco found that there was a lack of mix of independent and non-independent members on the board. Also, while outside expertise was sought in certain valuations, not all the relevant information was passed on to the valuer and the directors themselves did not apply independent judgment in considering the expert's valuations. I believe that it was important that certain Burns Philp directors should have faced some form of legal sanction but, as the chairman of ASIC concluded, as I have already said, incompetence is not a crime. ASIC should have at least moved to disqualify or ban these directors from holding office in the future. Alternatively, it could have pursued a civil lawsuit on behalf of aggrieved shareholders. Unfortunately, ASIC is loath to pursue civil litigation.The class action being taken by GIO shareholders on botched advice from the GIO board about the merits of the AMP takeover bid should be another textbook case on why companies need to apply good corporate governance practices and on why directors need to be aware of fiduciary duties. In this instance, it is alleged that directors failed to take account of or failed to reveal to the market the significant risk of massive losses in one of their divisions. I welcome the class action in principle—admittedly for its shock element—because it is important for directors to understand their critical role not only in helping run the company but also in their fiduciary responsibility as representatives of shareholders of the company.The board's responsibility, as well as the expert's opinion, becomes particularly critical for companies with a dominant proportion of so-called mum and dad shareholders. They tend not to have access to their own experts nor access to independent information. I would hate to be right on the dangers that might be realised from the government's proposal, because it would mean that the hard-earned savings of Australians could be lost. No matter what sanction you put in place after such a catastrophe, when the money is gone it is gone. The government will not compensate those who would have lost their money. It is also unlikely that the company or its directors would be able to find the money when the company is bankrupt.This is an issue which, despite the submissions, many people have got reservations on. I would like to read to you a quote from such a prominent individual as Alan Kohler, not someone who is notably a Labor Party supporter.3M6MURRAYSenator Murray—He is a closet supporter.3L6Conroy, Sen StephenSenator CONROY—We wish. He states:The business judgment rule is basically a legislative reversal of the decision by the New South Wales Court of Appeal in AWA when it overturned an earlier decision by Justice Andrew Rogers in 1995. Rogers had effectively written a business judgment rule into the common law by letting directors off the hook over the shenanigans that went on in AWA's foreign exchange transactions, but the Court of Appeal threw it out and put the directors squarely back in the frame.What we have here today is an attempt which is not, as is being described in the press release in nice, friendly language, just about making sure that directors are not constrained. Have a look at the words in the legislation: this is overturning the Court of Appeal and returning to Justice Andrew Rogers's position, which was clearly one that was tossed out on appeal. What we are doing is returning to that. That is what Alan Kohler said.I would like to make mention of another of Alan Kohler's articles where he talks about what has actually been going on here. He describes it as follows:Meanwhile, the company directors' lobby has got the business judgment rule for which it has been agitating for so long. It was felt by them, and agreed by Peter Costello, that the law should give directors a safe harbour from personal liability in the event of breaches of care and diligence if they made an `honest, informed and rational business judgment'—in other words, the old `it was a good idea at the time' defence.This is not the Labor Party; this is a commentator who has credibility on these issues because he has studied case law and he has studied the issues. He has made those points.I have always struggled to come to terms with the claims that were made before the companies and securities commission when we were told how constrained business had been by this lack of judgment rule. That is not evidenced in the economy at the moment: we have profits booming and the sharemarket increasing. We unfortunately have unemployment going up but all of the conditions are seeing corporate profitability at record highs, yet we are being told that company directors are burdened, weighed down. So you have a situation where, if you examine the rhetoric and what is really happening, you actually see that what is being proposed is a subterfuge to introduce the streaker's defence: it was a good idea at the time. By changing the emphasis and by putting the words in this way in this legislation, it will be nearly impossible to find a director incompetent and to deal with it.You have a situation at the moment in GIO where there has been significant allegations of poor management by the board. A court will decide this—as I have said—but, Senator Murray, you have to ask yourself this: if you pass this legislation, will you be helping those GIO shareholders in their class action against their board? Many commentators—and I could read you the comments of three, four or five others in this clippings set—have indicated that in actual fact this is shifting the balance of power between shareholders and company directors. I would put to senators here today that, if you pass this rule, in the future another GIO situation could arise and the capacity of shareholders who have been severely disadvantaged by the conduct of their board will be such that they will not be able to get restitution.That is the key test for voting for or against this particular piece of legislation: will you be assisting shareholders—the true owners of a company—and not directors? The directors are appointed and are not the owners in most cases. The directors are there with the responsibility to maximise shareholder value, and in some cases we have directors behaving otherwise, as was proven in the eighties with the Skases and the Bonds. Would you be able to convict Christopher Skase or Alan Bond if you go ahead and vote for these proposals? Would you be able to convict the GIO board? I put to you that you would struggle much harder and that the test would be much harder if you were to vote for this proposal.Senator Murray, despite your comments yesterday about me always being on report, I have played contact sport and I have, can I say to you, never ever received a red card and never ever been put on report. I have had the odd yellow card but I have not actually ever been put on report in any circumstances and, despite the wish of some senators on the other side, I intend to keep it that way. But I am surprised at the Democrats' willingness to vote for this. I believe that, if you examine case law and the consequences that are likely to flow from this, you will actually see that you have worked against the interests of shareholders and that this is not something that you should be proud of simply because one group—and it is a very powerful group, the Australian Institute of Company Directors is a very powerful organisation—has lobbied extensively. It has pushed for this for years, as has been noted. This is not a radical new proposal; it has been around for 10 or 15 years.H15CAMPBELLSenator Ian Campbell—We call it the Cooney proposal.3L6Conroy, Sen StephenSenator CONROY—Senator Cooney can speak for himself.H15CAMPBELLSenator Ian Campbell—He has.3L6Conroy, Sen StephenSenator CONROY—He does not need you to speak for him, Senator Campbell. I believe that, in the future, when the first of the court cases is lost because of the streaker's defence, those who voted for this will hang their heads in shame as shareholders will have lost their money and will have no chance of restitution.11:57:009565Murray, Sen AndrewSenator MURRAY3M6WAAD00—The usefulness of having Senator Conroy speak is that you always do have something to react to. That is very useful. But the Labor Party is quite right in isolating this as an area which is deserving of proper debate on the record in this committee of the whole. If you look at the 469 pages of legislation, the nine schedules that we have here and the number of amendments which will enlarge it, you will see this is one of the areas in which there is indeed some controversy. The effect of Senator Conroy's amendment is to abolish the business judgment rule, and we should go through what all that means and how that has been developed as a thought.Before I do so, I should indicate that the Australian Institute of Company Directors have indeed supported this and have indeed lobbied about it. But to imply that the Democrats were influenced by either their size or their lobbying would be mistaken; we have been influenced by their case. I would point out to you that they are on the record in writing as being very much not our friends. Their miserable and wrongheaded remarks about the Senate's and the Democrats' roles in both Corporations Law and taxation matters have been well noted by us. Frankly, if I were on their board of management, I would want to know why up to this date they have been so remarkably incompetent in interacting with political parties like ours.Of course, in making those remarks, I refer to the leadership of the AICD, not company directors at large. I am, quite frankly, unimpressed by their view of the political process and the role of the Senate and of its various functioning parties. But that does not mean to say that I will not accord with their view when I think they have a legitimate case, and that is the role of political parties in this place—that is, to assess issues on their merits.To return to the business judgment rule, the business judgment rule is a statutory formulation of the position at common law. The courts are loath to review the merits of a decision on a matter of business judgment. In a general sense, the business judgment rule will require the courts to review directors' behaviour in a much more precise manner, and that is one of its virtues. I noted that the shadow minister outlined some American case history. He quite correctly indicated that, where the business judgment rule exists there, more litigation has resulted, which I think may in fact be a useful consequence of this—in other words, the greater precision of the law may in fact encourage a better focus.But we should not escape from the view that the intention is that the proposed provi sion will result in the Corporations Law not only setting out the duty of care and diligence of directors but also providing an explicit safe harbour for directors. If it is the view that every director and every business person has to be regarded with suspicion, obviously none of us in this place will accept that—certainly none of the people I know who are familiar with this. If it is the view that you will always find directors who behave appallingly, yes I agree with that. But now directors will know with some certainty that if—and it is an `if'—they fulfil the requirements of the new section 180 they will effectively be shielded from liability for any unclear breach, if you like, of their duty of care and diligence.I understand that the Labor Party take the view that the business judgment rule will act as some sort of licence for delinquent directors to act in an even more irresponsible manner. I would like to briefly paraphrase the provisions of the new rule and let members of the Senate make up their own minds as to whether they agree that will be the case. The starting point is that a director must exercise his or her powers and discharge his or her duties with the degree of care and diligence that a reasonable person would if that person was a director of a corporation in the corporations circumstances and occupied the same office and held the same responsibilities within the corporation. That is the primary obligation in relation to directors acting with care and diligence. They have to act with the degree of care and diligence that a reasonable person in their circumstances would. How else would you deal with such a matter? The courts have always struggled with it because you cannot expect directors to go to the extremes of responsibility in every circumstance.The business judgment rule says that if you comply with the four criteria that are set out in the rule you will be taken to have acted reasonably. Let us bear in mind that the criteria laid down have a framework and history in common law judgments. What are those criteria? Firstly, you must make the judgment in good faith and for a proper purpose. Secondly, you must not have a material personal interest in the subject matter of the decision—that deals with the conflict of interest area. Thirdly, you must inform yourself about the subject matter of the judgment to the extent that you reasonably believe to be appropriate. Finally, you must rationally believe that the judgment is in the best interest of the corporation.Notwithstanding the comments of Senator Conroy earlier, the business judgment rule does not give directors a free rein—and you did not use these words, but I will paraphrase them in this way—to act like idiots and squander the resources of companies to the detriment of shareholders. It is the view of the Democrats that it is a subjective judgment as to whether you believe that the obligation of care and diligence, combined with the criteria contained in the business judgment rule, is a satisfactory level of obligation on company directors. The Australian Democrats take the view that the rule strikes an appropriate balance between demanding a reasonable standard of diligence from directors for the protection of shareholders and not imposing such a high standard as to make directors averse to taking any decision which may involve even a hint of risk.Senator Conroy quoted the words, I think it was, of Alan Cameron, the head of ASIC, who said that incompetency is not a crime. I laughed when Senator Conroy said that because I just wondered about the 76 of us. There would be a few in here who might now and again be guilty of that themselves. And, frankly, it is not a crime. I have long believed—and people who are attuned to debate in this area of the law would know of my strong feelings on this—that in fact the real problem with directors as a class is the nature of their election and how they get to be appointed to their boards. We have heard evidence in the Joint Committee on Corporations and Securities about the astonishing difference in the standards of information and presentation even under existing company law in existing company constitutions as to how directors are presented to their shareholders to be elected. Frankly, it is often a gerrymandered and manipulated system.If we are going to improve the performance of boards, we really have to as a community of legislators attend to that election issue and fix it up. I have strong feelings on that, as I am sure others in the Senate do. We have to make it more democratic. It is what I call a campaign for the democratisation of companies, that will have the result of making directors more responsible to their shareholders.The second leg of enforcing accountability and greater competency on boards is a campaign to get rid of the concept of the unitary board. You cannot allow the unitary board system to continue in this country as long as unitary boards themselves manage issues in which they have clear conflicts of interest. How can boards determine their own remuneration, including share options? By giving people share options you deprive other shareholders of value which might accord to them. I do not have any problem with share options, but I do have a problem with people voting their own share options and their own remuneration—which, as we know with certain directors in this country, has resulted in them getting tens of millions of dollars worth of benefits. That is a clear conflict of interest and it arises because it is a unitary board. If you had a binary board structure, as I have previously proposed to the Senate, you could address that issue.The other area of concern is the appointment of auditors, valuers, independent experts and so on. The board has a conflict of interest in doing that because they want a certain outcome. There are related party transactions and numerous other areas which I have dwelt on before, and I raise these issues because I think, when we are discussing the issue of directors' standards, Senator Conroy is quite right: this is what this is about and this is why it is controversial. We also have to pay attention to the bigger picture.Returning to the amendment before us and to the provisions of the bill, the Democrats have come to the view that this provision, as put in the bill, will actually tighten up and improve accountability in this area, whilst giving appropriate protection for people who must take risks and who must be allowed to exercise a degree of responsible judgment to pursue the interests of their companies. We will oppose your amendment—we will find out later whether our judgment is wrong. I do not think the Labor Party is at all wrong to bring up the issue and to seek to expose it and pursue it in the manner they have. I do not disagree with that view. We have, however, taken a different view, and we will support the government on this matter.12:10:009567Conroy, Sen StephenSenator CONROY3L6VICALP00—Before I respond to some of Senator Murray's comments, I draw to the committee's attention that this has been considered in the other chamber and the minister, Mr Hockey, made the following point:The fundamental purpose of the business judgment rule is to protect the authority of directors in the exercise of their duties, not to insulate the directors from liability.Yet what this bill actually does is insulate. It does allow a protection—an increased protection from what has been there previously. He goes on to say:Whilst it is correct that the courts rarely review bona fide business decisions . . . So the minister is accepting that the courts have not sought to overstep their mark in this area. I contrast that with a contribution by Senator Campbell of last night. As is sometimes his way, he likes to wax lyrical and exaggerate a situation. He suggests the exact opposite of what the minister has suggested. He said:One of the problems with directors, clearly identified by both shareholders and directors, is that they become incredibly risk averse because of court decisions and litigation that try to second guess directors' decisions years, and potentially decades or more, after those decisions have been taken.I can only describe Senator Campbell's contribution of last night as an utter furphy and an utter scare campaign designed to influence members of the Senate in our deliberations on this. I repeat: Mr Hockey, the minister, accepts that `Whilst it is correct that the courts rarely review bona fide business decisions'. And that is the case here. Why are we making this change? On the one hand we have the minister, who quite responsibly supports the propositions that I have put forward—that courts have very rarely second guessed and have acted prudently and sensib ly in this area. But in his contribution, which I can only describe as inflammatory and scaremongering, he seeks to suggest that in actual fact the courts are running around the whole time second guessing business decisions. This is clearly nothing more than an attempt to influence Senator Brown or perhaps Senator Harradine or perhaps even Senator Murray and the Democrats. I would urge you to ignore the inflammatory suggestions but to go to the heart of what he also said, which was:The fundamental purpose of the business judgment rule is to protect the authority of directors in the exercise of their duties, not to insulate the directors from liability.That is what they say they are about; that is what the press release is about. But the bill does not do that. The bill does the opposite to what the press release says. The stated intention is not what happens in the actual words of the legislation. Senator Murray, I am sure you were not suggesting—and I am happy for you to clarify this—that we take a suspicious view of directors. This is untrue.3M6MURRAYSenator Murray—No, I am not.3L6Conroy, Sen StephenSenator CONROY—I accept that. I was sure you would not reflect on the intent and purpose of the debate, because I would be disappointed if you believed that I and members of the Labor Party took the point of view that the starting point is suspicion of directors. I do not think that is the case. What we want to do is not, as you perhaps suggested, to encourage reckless behaviour or to suggest that this will encourage reckless behaviour. What we want to do is make directors accountable for their behaviour. It is not about saying, `This will lead to further reckless behaviour' although many people suggest it will. What I am arguing is the question of accountability. I am arguing that we must be prepared to make the managers of other people's assets and money accountable to the people they are managing it on behalf of.You raised the point that incompetence is not a crime. Incompetence should not be rewarded. The point I made in the Burns Philp case is that, to this day, the directors who perpetrated the collapse in shareholder value in Burns Philp have not been brought to account. They can quite easily take up positions on other boards, running other companies and managing other people's money. I have strongly put to ASIC that I believe they failed when they did not seek to at least ban the directors, even if it were for just a year, from holding office. While incompetence may not be a crime, it should not be rewarded. The Burns Philp case is the most dramatic recent case. There are others—National Mutual, which no longer exists, had a shareholder value of $6 billion. Within a five- to seven-year period, the shareholder value was reduced to $1 billion. No-one has ever made the directors accountable for that sort of collapse. If you were a BHP shareholder right now, you would want to be asking questions in relation to what has happened to the share price of BHP. Maybe Robert Holmes a Court was right. Maybe what happened in the 1980s, when the Melbourne club got together—and the Melbourne club includes some people whom I have spoken about many times here—to fend off and to protect BHP, and the shareholders were manipulated in the way they were, has come home to roost. They are now starting to close down divisions and sell-off divisions, et cetera.So this is not about wanting to encourage reckless behaviour. And even though the government are proposing this legislation, I do not believe they are seeking to encourage reckless behaviour. I simply make the point that it has been stated as a concern that it could encourage reckless behaviour. This is about the accountability of management to owner and not, as some seem to think, that the directors are the owners. They are not. They are in trust to the owners to manage the funds. I am disappointed if the imputation you are making is that what we are seeking to do is to make directors less accountable. What we are seeking to do is to make directors accountable.12:17:009568Brown, Sen BobSenator BROWNQD4TASAG00—I have a specific question to ask of the government, and of the people who are contributing to this debate, in relation to a particular interest of mine—that is, the matter of donations to political parties. I would like to know whether the legislation, as brought to the Senate by the government, is going to increase the obligation of directors making a decision to make a payment to a political party to ensure that it is in the interests of the shareholders. Basic commonsense is that corporations, business entities, do not make donations to political parties without the expectation of a quid pro quo. In fact, it would be against the overall requirements of directors that they act always in the interests of the shareholders if they were to make such a donation without expecting that it was to enhance the return to the shareholders; in other words, without expecting to effect a political influence that was in the interests of the shareholders.We know that tens of millions of dollars from the corporate sector go into the electoral coffers of political parties in the run-up to every election. It seems to me that we have to face the question: is this money simply a loss to the shareholders? In other words, it is a loss from their returns at the end of the year. Or, alternatively, is it influencing the body politic to get a result? We suspend debate on that sort of matter because there are clear implications for the functioning of a democracy and the so-called independence of political parties in making decisions in the interests of the wider community.I think there is clearly an argument that a director who is involved in a donation to a political party where there is not an ostensible or clear return to the shareholders from that donation is not acting in the interests of either the corporation involved or those shareholders and is therefore committing an act against their interests. My belief is that not only should such donations be publicly accountable, as they are, but that the shareholders ought to be consulted and that the directors, when they are making donations to political parties, ought to explain to shareholders in clear and precise terms what the return is going to be—that is, why it is to the benefit of those shareholders and that corporate entity.So the question I pose as far as these provisions are concerned is: will they, or do they, place a requirement on directors that when it comes to political donations there be consultation with the shareholders or, indeed, that there be any clear exposition from the directors involved that this is going to be in the interests of the company they represent?12:21:009569Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—The answer to the honourable senator's question is that the provisions being debated here today make no change whatsoever to directors' responsibilities in relation to that matter.12:21:009569Conroy, Sen StephenSenator CONROY3L6VICALP00—I want to again emphasise, particularly to the Democrats but also to the government, that both sides of politics have been party to an enormous increase in the number of shareholders in ordinary Australia. Both sides agree that that is a good thing. There are Telstra shareholders, AMP shareholders, Qantas shareholders and Commonwealth Bank shareholders.Arising out of the AWA and Daniels case, directors are considered fiduciaries as they hold and control other people's money and they are therefore in a position of trust; they do not owe any fiduciary duty to an individual shareholder but rather to the general body of corporates in the form of a company. The courts' directions reflect community concerns that higher standards of vigilance and honesty are required in dealing with other people's money. Kirby P., in Darvall v. North Sydney Brick and Tile Co. Limited (1989), is a classic example of that.Commercial judges require higher standards because the community expects this from directors, especially executive directors, when dealing with significant matters. They should bring an informed and independent judgment to bear on the various matters that come before them. The key here is that the independent judgment is not reflected in the business judgment rule. This is the nub of the issue. When the government say they are codifying—that they are just seeking to clarify—they are removing from case law the critical question of independent judgment, and that is why the Labor Party is so concerned about this issue. The role of directors is to manage other people's money; it is not to manage their own. They are given a trust. Whether the government's press release is right or whether the government's legislation is right, the key test is the test of independent judgment, and it is not in the business judgment rule.12:24:009570Brown, Sen BobSenator BROWNQD4TASAG00—In response to my earlier submission about political donations being made on behalf of corporations by directors, Senator Campbell said on behalf of the government that this legislation will not alter the responsibility of directors in relation to that matter. I ask Senator Campbell: as legislation stands, what are the responsibilities of directors in relation to that matter?12:25:009570Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—As I said in my earlier answer, it is not the subject of this law. Companies' responsibilities in relation to political donations are the subject of a number of other laws that have been passed by this parliament.12:25:009570Brown, Sen BobSenator BROWNQD4TASAG00—That is not so. What we are dealing with is the director or other officer of a corporation making a business judgment—and that of course involves the finances of any corporation—in good faith, that they do not have a personal material interest, and so on. Quite clearly, if a corporation is handing across $1 million to a political party, that is a major business decision. I ask Senator Campbell to address himself to these provisions. Is he saying that they will not affect the decision of a director of a corporation, when that director does make a donation on behalf of the corporation which can involve millions of dollars? Of course it does.Yes, there are other pieces of legislation dealing with political donations, but that is not the point I am making. The point I am making is that the decision on those donations is made by directors, and it has to be in the interests of the shareholders. I ask the minister: in this specific matter, what obligations will there be on directors, if these provisions are to be satisfactory, to ensure that when donations are made to political parties they are in the best interests of the shareholders? I would think it would require consultation with the shareholders. Is there provision here for such consultation? If not, why not? Can the minister say how any director acting in the interests of a corporation could make a political donation without weighing up the pros and cons of the effect of that political donation and the bearing it will have on the fortunes of the corporation and therefore the shareholders' interests?12:27:009570Conroy, Sen StephenSenator CONROY3L6VICALP00—I am wondering whether Senator Campbell is going to respond.H15CAMPBELLSenator Ian Campbell—I've already answered the question.3L6Conroy, Sen StephenSenator CONROY—You've had your answer, Senator Brown; I didn't notice it, but you have had it! I want to make one final contribution, tongue in cheek. I note an article written last year. Senator Campbell, you might have seen it. I think it was by Ivor Rees, who was very complimentary about you. He said:If Costello's reforms get up this year—he does say `this year' so I suspect you have possibly missed out, because it was written last year—they will change the way business is done in this country. If that happens, Costello should buy a case of Grange for Senator Ian Campbell, Costello's understudy, and lawyer turned company director Kath Walter, both of whom have spent the past six months selling the reforms to the business community.I am just seeking a declaration here.H15CAMPBELLSenator Ian Campbell—I declare it!3L6Conroy, Sen StephenSenator CONROY—He continues:If this comes off, Campbell and Walter will have made Costello look like a real quiet achiever.I was just interested if you have a bottle or two of Grange on this being completed today.3M6MURRAYSenator Murray—If the minister responds, I want to know whether Senator Conroy and I will be invited.12:29:009570Brown, Sen BobSenator BROWNQD4TASAG00—Senator Campbell, who has carriage of this legislation for the government, remained silent when I made my earlier request for information.H15CAMPBELLSenator Ian Campbell—Bob, I'll send you a bottle.QD4Brown, Sen BobSenator BROWN—Please don't! I put it to Senator Campbell that what I am talking about here is very germane to this government legislation. Section 181, which requires directors to show good faith and outline civil obligations, says:(1) A director or other officer of a corporation must exercise their powers and discharge their duties:(a) in good faith in what they believe to be in the best interests of the corporation; and(b) for a proper purpose.Can the minister say whether making political donations is a proper purpose? If so, why? If not, why not? Is there some other section which deals with the making of donations of shareholders' money—because that is what it is—without reference to the shareholders, to political parties?12:30:009571Conroy, Sen StephenSenator CONROY3L6VICALP00—I am interested in and intrigued by Senator Brown's questions. I was hoping for a lengthier answer. I am sure Senator Brown has noticed that there are some proposals on the table at the moment to make trade unions more accountable for how they make political donations. I have always been open-minded about it, as many are, in terms of accountability to their membership. I am surprised that Senator Campbell does not want to respond in any greater detail to Senator Brown. The government try to pretend that they have a balance in their current proposals between donations from a union and a peak employer group, as if they are the same. I would have thought the more direct comparison is a company and a trade union, not a peak employer group.I am not familiar with many peak employer groups that make direct donations—perhaps in kind by doing some intellectual work for them, and they need a lot of that. Perhaps that happens. But to try and fudge the question as blatantly as the government has regarding a trade union making donations but not deal with the question of corporate donations is a valid concern. I am disappointed that Senator Campbell is not prepared to enter into discussion with you on that, Senator Brown. I support you in your pursuit of this issue because the hypocrisy and double standard that I have already alluded to earlier today in relation to the takeover panel and independent umpires when it suits the government for its mates but not in the industrial system is again evident in what it is seeking to do and in regard to the points that you are making today.12:32:009571Murray, Sen AndrewSenator MURRAY3M6WAAD00—On the point which Senator Brown has raised, I indicate for the record that the Australian Democrats in the Joint Committee on Electoral Matters, in its report on the 1996 election, recommended that if disclosure by companies and by unions were to be increased that should be common to all organisations, whether trusts, partnerships, unions or corporations in terms of political donations. The point is made that if you make donations on behalf of others, whether they be members of a union, a trust or a partnership or owners of a company, you should do so on the basis of a policy and on the basis of approval. That is essentially the point: those who own or participate in or belong to organisations, companies, trusts or partnerships should have a say in making sure that the policy is worth their approval.Senator Brown, if you have an interest in this matter, you should go back over some of the debates and the 1996 report. There is a tax bill that will be dealing with political donations, and all disclosure provisions are covered in the Electoral Act. I am not sure that this necessarily is the right act to deal with it. But we have previously indicated that far better policies need to prevail in all organisations, unions or otherwise, and that the question of disclosure and improvement in disclosure levels should be dealt with through the 1918 Commonwealth Electoral Act—I cannot find the right terminology for that act, but you know the one I am referring to—rather than through general devices such as the Corporations Law. On the tax law side it relates to the size and nature of donations. But disclosure should be specifically dealt with. Senator Brown, I sit on the electoral matters committee but I am not sure: did you make a submission to the electoral matters committee on this issue?QD4BROWNSenator Brown—I will be making a submission to the parliament very shortly on it.3M6Murray, Sen AndrewSenator MURRAY—No. What I am suggesting is that the report for 1998 hasn't yet been written. I suggest to Senator Brown, if he has an interest in this area, that because the report on the 1998 election is not yet written, in my view there is still time for him to make suggestions to that committee, which suggestions I am sure it would appreciate receiving. I hope that contribution is helpful.12:35:009572Brown, Sen BobSenator BROWNQD4TASAG00—I thank Senator Murray for that. That is a constructive contribution. I will be making my submission to the parliament, but it is awesome that the government goes silent on this matter. I will tell you why. It is indefensible that corporations are making donations of hundreds of thousands, and over the years millions and tens of millions, of dollars to the big political parties with no reference at all to the shareholders. You do not have to be a mathematician to work out that that money which goes to the political parties does not go to the profit line and therefore is taken from the interests of the shareholders, unless you can show a greater interest accruing to the shareholders through the political influence which the donation system levies. In my view, that system is corrupt. It therefore needs to be brought to order.The government has flagged legislation which will make unions and peak employer groups—presumably like the National Association of Forest Industries, the Australian Mining Industry Council, and so on—accountable to their membership when they make political donations. But these are not the big political donors. The big political donors are the corporations themselves. So we have double standards where the government is saying, `We want to shelter the corporations, which make millions of dollars of donations into our coffers, from having to explain themselves to shareholders.' The point I make is that this legislation is a proper place to be debating this matter. I will move amendments when the government legislation comes into this place to make unions accountable and to ensure that corporations are accountable and that there are no further donations made to any political party without the matter having been referred to shareholders.WH4McGAURANSenator McGauran—Beforehand?QD4Brown, Sen BobSenator BROWN—Beforehand, you are right. You do not make the reference afterwards; you make the reference beforehand. That would be responsible use of shareholders' money. It would then become incumbent on the directors to explain what they were going to get out of putting X million dollars into the coffers of the Liberal Party, the National Party, the Labor Party or the Democrats, whatever it might be.3M6MURRAYSenator Murray—Or the Greens.QD4Brown, Sen BobSenator BROWN—There has not been such a donation.3M6MURRAYSenator Murray—Yes, there has. Look at the Greens (WA).QD4Brown, Sen BobSenator BROWN—Senator, you will have your opportunity in a moment. The big players here, as you know, are the hundreds of thousands of dollars going to the big political parties. The Greens (WA) have at least insisted that the matter go on the record at the time, very different from the practice of the other political parties, including the Democrats.3M6MURRAYSenator Murray—I object to that. That is a misrepresentation and is typical of your style.QD4Brown, Sen BobSenator BROWN—Well, Senator, you can get up and respond next. I am not going to be deterred from this matter and I will move amendments to that legislation when the government brings it into this place.H15CAMPBELLSenator Ian Campbell—Why don't you move amendments to this legislation?3M6MURRAYSenator Murray—Where are your amendments? You are grandstanding.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Murphy)—Order! Senator Murray and Senator Campbell. Senator Brown, continue, please.QD4Brown, Sen BobSenator BROWN—Thank you. The other senators are welcome to make their contribution to this very important matter. I am glad I have raised it because the government has flagged legislation, as I said, specifically to tackle other entities than corporations and it will become a major debate then. I foreshadow the fact that my office is doing quite a bit of work about the donation system. I think it is in the public interest that there be analysis of that.3M6MURRAYSenator Murray—It is about time you caught up.QD4Brown, Sen BobSenator BROWN—Senator, I am sure the Democrats will be supporting the amendments when, on behalf of the Greens, I bring them into this place further down the line.I am very concerned about the whole political donations system. I believe that pure democracy is not helped by it at all. I believe it helps the interests of those who are already wealthy against the interests of those who are neither wealthy nor have power. I believe that that in itself is leading to the increased gap between the haves and the have-nots in our nation. We need to face up to it—those who want to defend the system as it is or those of us who feel we can do better to support changes to increase accountability. I believe ultimately we should move away from a donation system to political parties because donations are made with the clear intention of levying political effect and I do not think we should be able to buy political favour. Parliaments exist to debate the public interest and I do not think the public interest is helped by the donation system.12:40:009573Murray, Sen AndrewSenator MURRAY3M6WAAD00—The Senate knows that I do not normally raise my voice in this chamber. It is unusual for me to get annoyed, but frankly this contribution by Senator Brown is opportunist and probably affected by the fact that we are being broadcast. Senator Brown has made some very legitimate points and has a legitimate point of view which deserves to be pursued, but in the process he has to add to it a kind of slimy innuendo, a kind of creeping nastiness which, frankly, is very irritating when I know that countless senators in this place, especially in my own party, have fought this issue of accountability for many years and have done a great deal of work on it. I think the legitimate interest he has taken and the issue he raises deserve to be debated and pursued. He is probably quite right; the Democrats may well be supporting that intention because we have a long history of greater exposure of donations. I just find it appalling that you cannot make legitimate points without politicisation and nastiness attached to them.The point we make is that greater accountability is required from companies in making political donations, as it is required from unions, clubs, trusts and partnerships. That is a very good point to make. But do not in the process smear the Democrats in passing. I am sure the other parties will defend themselves.12:43:009573Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—I want to respond briefly to Senator Brown's intervention in the debate. Of course, all senators are welcome to debate any issue that comes before us. In this debate, we are debating a policy and a piece of legislation that has effectively been in the public domain since January 1997. It has been widely consulted. When I had charge of the portfolio, I gave all senators information about that process—discussion papers, policy papers and draft legislation which was put out in April 1998.Had Senator Brown taken the same interest as Senator Conroy or Senator Murray, or other people interested in this, at any time in the last 18 months, he could have proposed amendments, if he felt so strongly about changing directors' duties in relation to political donations. He chose not to do that. He has not done the work, and that shows. The sad thing is that he has come in here today to derail the debate that has otherwise been constructive and well informed. I suggest to Senator Brown, if he wants to make a constructive contribution, that he does his homework.Progress reported.Matters of Public Interest9573957312:45:009573Eggleston, Sen AlanSenator EGGLESTON4L6WALP10—Since the beginning of civilisation, there have been storytellers and today, as chair of the Senate legislation committee which deals with the arts, I would like to pay a tribute to Morris West, who died at his desk in Sydney last Saturday evening. Morris West was perhaps Australia's most successful storyteller. He wrote 26 books and three plays, selling over 60 million copies worldwide, which were translated into 27 languages. Several of his works were turned into films, including The Devil's Advocate and The Shoes of the Fisherman .Morris West was educated at Christian Brothers College in St Kilda and Melbourne University. He joined Christian Brothers in 1933 as a schoolteacher and left after 12 years before taking vows to become a priest. Morris West served in World War II and, following this, he was press secretary to Billy Hughes for a short time in the parliament before working in radio and then moving to Italy, where he further developed his writing skills.West acquired a great wealth of knowledge and perspective from his variety of experiences, focusing largely on social issues of a moral and religious nature. The Catholic Church remained a powerful factor in Morris West's life and was almost always an important part of the focus of his books, in which he very often portrayed the political intrigue of the inner circles of the Catholic Church. Novelist and critic Laurie Clancy said that West was lucid on issues affecting the Vatican and the papacy's involvement in political affairs.Many of West's novels anticipated contemporary political events such as The Ambassador in 1965, which dealt with the conflict in Vietnam, The Tower of Babel, which was a story of the politics of the Middle East and was published immediately after the Six-Day War, and The Salamander, which dealt with the renewal of Italian fascism in the early 1970s. More recently in Eminence, published in 1998, West predicted that Cardinal Carlo Martini of Milan will be the next pope. We will have to see whether or not that prediction proves to be correct.Morris West will be remembered for his religious beliefs and strong views, which influenced many Australians, and, in his own words, as `a man who always carried his country with him'. He was always an Australian and took an Australian point of view about the world around him. He was passionate about self-expression and the pursuit of what individuals believed in. His analysis of world events and social change captured his readers. West's themes encompassed political advice in the context of power, accountability and leadership, and he encouraged public debate on issues of democracy, leadership and the like. In recording West's passing, the Age last Monday quoted Edmund Campion, who wrote:In his fiction West had been particularly interested in people's power over each other and the tendency of power to corrupt; in both church and state he stood for the rights of the individual voice of conscience . . . He was a committed believer and wanted to assert the rights of a member of the household to speak to the household. And what he spoke of was a profound normal belief in Christian religion, a belief in sacraments, in mass, in prayers and the Bible.The article continued:Campion suggested that the prescience of some of his fiction could have originated with his wide circle of contacts. His apartment in Rome was famous for the people you might meet there. There would be politicians, cardinals, newspaper commentators, diplomats, US business people and film people. It must point to the fact that he was very engaged with life—tuned into what was happening in the world.Morris West was the recipient of a number of accolades and awards, including the James Tait Black Memorial Prize in 1960; the Royal Society of Literature Heinemann Award, also in 1960; the Dag Hammarskjold Prize in 1978; and the Universe Literary Prize in 1981. He was awarded an AM in 1985 and was elevated to an AO in 1996 for his services to literature.For me personally, Morris West was the herald of Christmas. This was because his books almost always appeared just before Christmas and, knowing how much I enjoyed the political intrigue and conflicts between idealism and pragmatism which his plots embodied, I was always given a Morris West book for Christmas by my family. Morris West brought his ideas to the masses, not only through his literary works but in speeches, lectures, presentations and work shops to businessmen, universities and literary groups. He assisted in founding the Australian Society of Authors—a writers watchdog organisation—and acted in various roles on the executive of that organisation.This week the Prime Minister referred to Morris West as the `foremost Australian novelist of his time'. There is no doubt that Morris West was a great Australian who will be warmly remembered in the hearts of many around the world and, I am sure, respected by future generations who come to read his works. Although Morris West the man is no longer with us, the tales of Morris West the storyteller will live on long into the future. So on behalf of the Senate Environment, Communications, Information Technology and the Arts Legislation Committee, I would like to offer condolences to the West family and commend Morris West for his great contribution to the discourse on ideas and issues of the latter part of the 20th century.957512:52:009575Forshaw, Sen MichaelSenator FORSHAW656NSWALP00—Before I begin my remarks today on the issue I want to discuss, I endorse the comments made by Senator Eggleston. As has been recognised, it is unfortunate that Morris West's contribution to Australian literature and indeed to literature generally has not been as well recognised as it should be, particularly in his own country. I am sure that that will be corrected in the future. My recollections from my university studies are that it was very rare that Morris West ever managed to get into the academic lists of study, despite his undoubted literary skills. In terms of what I want to speak about today, it is also relevant to note, as Senator Eggleston did, that one of the great characteristics of Morris West was his keen intellect and his ability to argue a case. He was very much a person who was prepared to argue his case intelligently with reason and passion.That leads me to what I wanted to address today—the issue of the republic. It is unfortunate that as the polling day on 6 November approaches we are seeing from some of those involved in the no case a resort to outrageous scaremongering, downright lies and misinformation in their attempt to prevent the referendum from succeeding. I will detail that in a moment.Almost 100 years ago, Australia took its first steps to become an independent nation. At that time, the British Empire was still in existence. Indeed, yesterday was the 100th anniversary of the commitment of Australian troops to the Boer War in Southern Africa, a war at that time being fought by the Empire against the Afrikaners. Today the British Empire has long since ceased to exist. The United Kingdom is now firmly politically and economically entrenched within the European Union. Its armed forces no longer maintain bases to keep the peace east of Suez and its navy no longer patrols the seas. Its focus is clearly upon Europe and really not at all upon this region of the world.On 6 November we have an opportunity to complete the process towards true independence. We have an opportunity to finally have our own head of state rather than the head of state of another country—a head of state who lives 20,000 kilometres away in Buckingham Palace. When Australia was in the process of moving to independence—ultimately achieved in 1901—there were those who opposed it. There were those who predicted dire consequences for the colony as it then was. The same is true today. However, I venture to say that whereas rational argument was put forward in those days what we are seeing today is, as I said earlier, downright scaremongering and deliberate lies, distortions and misinformation. As polling day approaches, the predictions of doom and destruction—of the end of the Australian political and social way of life as we know it—have become even more bizarre and more outrageous. It seems that no lie and no fanciful prediction is too outrageous to make if it will help to defeat the referendum. Deliberate scaremongering rather than reasoned debate has become the monarchists' main strategy as polling day approaches.I want to refute some of those false and misleading arguments advanced by those associated with the no case. Firstly, let me deal with that discredited argument, put for ward by Kerry Jones initially and still being argued by people such as Sir David Smith—that the Queen is not really our head of state; that the Governor-General is our head of state. As we know, that is simply not true. Many on the monarchists' side understand that but there are those such as Sir David Smith who are still advancing it. One wonders why. Why do they resort to such lies and such misinformation to support their case? I ask the question: who does Sir David Smith believe invested him with his knighthood? Who was responsible for his knighthood? It was our head of state, the Queen. Who is opening the Olympic Games? It should be our head of state, the Queen, according to Olympic tradition. But because she is the Queen of England, the Olympic committee for the first time has approved someone other than a head of state—a Prime Minister—to open the Olympic Games. Special arrangements have had to be made for Australia because of this ridiculous situation we have whereby our head of state is not an Australian.I interpose here to note that the Prime Minister, avowed monarchist as he is, does not mind taking the job on, accepting the glory and accepting the opportunity to appear on the world stage by opening the Olympics. It is clear that he can be flexible with respect to our constitutional arrangements when it suits him. For instance, he has put forward his own preamble which, following negotiations with the Democrats, is now to go forward to the people on the same day in the referendum. We are supporting that change in the preamble. Albeit a second-best effort, it does represent a modernising of the preamble attached to the Constitution. It is bringing Australia up to date by recognising such things as a prior relationship between the Aboriginals and this continent. The Prime Minister is prepared to modernise the Constitution in that respect, but he is not prepared to do what is fundamentally important and necessary: that is, to allow an Australian to become our head of state.Another argument being advanced is that a constitutional monarchy is better than a republic. I noted an article in the paper today by Sir James Hardy who stated this:As you can imagine, as a `knight of the realm', I will be voting for the status quo.The word president scares me. Save for the USA, France and the recent President Mandela of South Africa, most republics of the world, whether in central and South America, Asia, Africa or eastern Europe, appear to be pretty unhappy regimes.Monarchies on the other hand, for example, Japan, Thailand, Belgium, Holland and the Nordic countries, seem far more settled.This argument is advanced by people on the monarchists' side that constitutional monarchies are good, republics are bad. That again is scaremongering and it is a distortion of history. Indeed, many republics have come about because of the problems of monarchies. Despotic, dynastic, aristocratic rulers in many countries have been replaced by republican regimes or governments. Some have worked, some have not. The great democracies of the world—for instance the United States and France—demonstrate that republics can work. Equally there have been others that have not. Such a simplistic argument is not only wrong, it also demeans the entire debate because it ignores the many influences that impact upon systems of government.This argument has reached its most extreme form in the views expressed by some members of the government who refer to the Weimar Republic in Germany and how that was supposed to have led to the rise of Hitler. They suggest that moving to an Australian head of state will somehow bring doom and destruction and a dictator in as president. Such a view is insulting to the intelligence of the Australian people. It suggests that we cannot cope with change, even though we have done so consistently throughout the last 100 years. It demonstrates the paucity of the monarchists' case.It also ignores particularly the history of England itself. The history of the British monarchy, even in this century, has not been without great controversy. There are those, for instance, such as Geoffrey Blainey, the noted historian, and Bronwyn Bishop, a government minister, who claim that having the Queen of England is a guarantee of stability. If that is the case, I invite them to look, for instance, at the constitutional history of England. They only have to go back, as I have pointed out before, to 1936 and what happened then when the King of England, Edward VIII, became king upon the death of his father and was ultimately forced to abdicate his office. He was never crowned. Why? Because he wanted to marry a divorced American woman, Wallis Simpson, and the British parliament, the political leaders of the day and even the Church of England said to Edward VIII, `You cannot. You will have to choose between the throne and marriage to a divorced woman.' Ultimately he was forced to abdicate. That crisis went on for an entire year in England. Whilst it may now be distant in the memories of people—certainly I was not alive then—you only have to read the history to find out that the monarchy in England came very close to collapse at that time.There are two points to note—firstly, England itself, the home of the constitutional monarchy and the Westminster system, has not been free of its own constitutional upheaval. Secondly, and I think more importantly, at that time Australia had to sit by and watch from the sideline while others in another country debated and argued about who would be the head of state of England and therefore the head of state of Australia. It is not scaremongering to suggest that this situation might actually arise in the not too distant future if Charles III becomes the King of England.It is also important to note some features of the position of the monarch in England. Geoffrey Blainey recently said:. . . under the present system the Prime Minister of Australia cannot dismiss the head of state. In short, the Prime Minister cannot dismiss the Queen.Well, that is true in Australia. But, interestingly, it is not true in England. In England, the monarch is not above the rule or the law of parliament. Again, the history of England shows that. One can go back to Magna Carta, but more particularly to the Act of Settlement of 1701, which sets out and confines the role of the monarch and the rules of succession of the English monarch. As the noted philosopher Walter Bagehot said in 1867, even the Queen is not above the laws of parliament. He stated:The Queen cannot exercise the power of veto over bills put forward by the parliament. She must sign her own death warrant if the two houses unanimously send it up to her.Why do I resort to this historical argument? Because it demonstrates that in England the Queen has a different status compared to the situation in Australia; that is, the parliament itself can ultimately, if it so decides, abolish the monarchy. So anyone who suggests that somehow the existence of a constitutional monarchy is the guarantee of continuous stable government in this country is really distorting constitutional law and historical fact.I go back to Sir James Hardy's comments earlier about the supposed stability of monarchies around the world. Even if one accepts, as I do, that countries such as Belgium, Denmark, Japan today and a number of others that have monarchies, or indeed constitutional monarchies, are stable countries, there is one interesting feature about all of those monarchies. Each one of those countries, except for the countries inside the British Commonwealth, have their own head of state. The King and Queen of Belgium are Belgians. The monarch of Denmark is a Dane. In Australia, the head of state is not an Australian. It is Queen Elizabeth II, an Englishwoman. I find it ironic that, as was proved recently by the High Court, Australians need to be Australian citizens and renounce citizenship to another country to be members of this parliament and ultimately become Prime Minister. The Queen and members of the royal family can never aspire to that, because they are not Australian citizens. Ironically, while an Australian can become a member of parliament, can become prime minister or can hold public office in this country as an Australian citizen, that same person cannot currently become our head of state. That is the change we need on 6 November.957713:07:009577Stott Despoja, Sen NatashaSenator STOTT DESPOJA3I6SAAD00—I commend Senator Forshaw on his speech. As a member of the yes committee, I have been absolutely astounded by some of the scaremongering and the inappropriate tactics that have been used and have emanated from the no campaign. Indeed, yesterday I attended a Property Council of Australia function, a debate involving the heads of the yes and no committees, and I was astounded to hear Kerry Jones's retort to Malcolm Turnbull when he said that our head of state was a foreigner and lived overseas. She suggested that Sir William Deane might be offended to be described as a foreigner. This persistence that our head of state is somehow located in Australia, is an Australian and living in the Governor-General's quarters is quite extraordinary. Similarly, I wish to correct a statement that was made in public yesterday by Ms Jones. She suggested that eminent lawyer George Winterton had critiqued the model and suggested it had flaws—that is true—and that he would not be voting for this model. That is untrue. I think it is completely outrageous that that was put on record at such a prominent function in Sydney yesterday.Today I wish to refer to two matters. The first is the issue of genetic privacy. Actually, before that I will put on record the second matter. I would like to draw the Senate's attention to two misrepresentations in this place by Senator Richard Alston on 30 September 1999. Both these misrepresentations were made during the minister's speech to the notice of motion moved jointly by myself and Senator Bishop regarding the Internet censorship legislation. The first misrepresentation relates to the following statement made during that debate by the minister. He said:The only people who raised it—That is, Internet censorship legislation—-with me on that visit were Yahoo who thought it was a good idea.In fact, Yahoo made statements contradicting this when the minister first suggested that they supported the government's Internet censorship legislation.The following quote from Mr Tony Faure, the general manager of Yahoo Australia, was carried by the Australian Personal Computer News Wire on 7 June 1999. I quote:Yahoo Vice-President Heather Killen spoke to the minister. (However), as a matter of interest, neither she or the company endorsed it or not endorsed it.Another quote from the same man, Tony Faure, confirmed this. He said:Let me tell anyone who might be under the impression that we endorse the bill that we certainly do not.The second misrepresentation relates to the position of Lotus and its CEO, Jeff Papows. The minister quoted Mr Papows as having endorsed content regulation. The minister made the following statement to the Senate:His—Meaning Jeff Papows'-answer was,`Industry has no issue with online content regulation. The industry endorses content regulation.'Well, Mr Acting Deputy President, this has been contradicted by Mr Bryan Simmons, Lotus Vice-President of Worldwide Corporate Communications, who has said that the company did not:`in any way regulate the distribution methods used by our customers based on the content of the material, or suggest or dictate these to governments.'Bryan Simmons went on to add the following:Jeff's comments were meant only to communicate deference to the government's sphere of sovereignty, not support any government's particular policies.I think these are serious matters that need a response as a matter of urgency from the minister. It has been widely debated online and of course in various Internet industry circles, the fact that the minister has repeatedly now not only contradicted or misrepresented statements made by company officials, but that he has done so at least on one occasion in this place and most recently, of course, in the debate that we had on that joint notice of motion.The second matter I wish to refer to today is essentially to update the Senate on the ongoing debate about genetic privacy and non-discrimination. Last year I introduced the Genetic Privacy and Non-Discrimination Bill. This was introduced, if you like, as a primer for debate about the introduction of genetic technology into our community. To date this technology has been introduced without the kind of community debate that every new technology should get. Of course, the bill was quite rightly referred to the Senate Legal and Constitutional Legislation Committee and a report was tabled on 30 March this year.I believe the report was a significant outcome, certainly for the debate but legislatively, because it showed the diversity of views in the broader community and the breadth of application of this new technology to our lives. Perhaps even better, the government has acknowledged the need to examine genetic discrimination as a new form of discrimination in Australia. The Attorney-General has also instructed the Privacy Commissioner to undertake a review of health information practices and the government has initiated the links with other states and territories to discuss genetic privacy. These are welcome developments. However, the decision by this government to adopt a self-regulatory approach to privacy generally through the so-called light touch regulation and the limited scope of the Privacy Commissioner's health information review, which will not consider all genetic information, leaves us with some stark choices in Australia. The government's generic privacy approach is really directed to personal information privacy and protects only the privacy of the information. My proposal instead attaches privacy and due process to the genetic sample collected from the individual and makes sure its privacy is intimately linked with consent, with authorisation, ownership and genetic counselling. Perhaps the most concerning aspect of the government's approach is that because not all genetic information is health information, there is a great likelihood that different self-regulating sectors will develop inconsistent privacy codes. For example, an insurance company collecting non-health genetic information might apply a different standard from an employer and a different standard again from a bank and a hospital or a local doctor.Under the government's proposal there is a very great chance different standards will apply and that is ironic, because that was the reason given by this government initially for not introducing a privacy regime.Of course, the other claim we saw in submissions to the committee was that legislation was not necessary. I certainly presented a range of examples in the report to the committee on behalf of the Democrats, including a United States survey of access to stored heel prick screening blood samples by third parties which showed a willingness to release the cards to insurance companies, employers and law enforcement agencies, quite often just because they were asked for the information.This concern was confirmed in a submission which dealt with the same issue in Australia, where heel prick samples were taken and stored. The processes followed by that institution holding the cards were not satisfactory and highlighted the need for regulation so that we can all be sure that our genetic information is safe.A recent survey of quality assurance in genetic testing laboratories just adds to the weight of evidence that we need effective regulation. This survey was conducted by Margaret McGovern and others from the Mount Sinai School of Medicine in New York and the Centre for Disease Control and Prevention in Atlanta. They surveyed laboratories conducting genetic tests to determine what tests were being done and the standards which were being applied. Their findings are reported in the Journal of the American Medical Association. They were quite a major surprise and strongly reinforced how urgently we need to review genetic technology to make sure we are getting only benefits from this technology.The survey found that the number of genetic tests were increasing at a rate of approximately 30 per cent per year over 1994, 1995 and 1996. Some 70 per cent offered genetic counselling through a counsellor employed by the laboratory, or through an affiliation of the laboratory, which left 30 per cent with no access to genetic counselling. In 45 per cent of the laboratories, some form of informed consent was required and 69 per cent had a written confidentiality policy. Sadly, this means that more than half the laboratories did not require some form of informed consent and approximately 30 per cent had no written privacy policy.Perhaps the most chilling finding was that only six per cent of laboratories which required the informed consent of the already low number would reject a sample if it did not have the informed consent. Clearly, a preference was shown for people who were not involved in signing away or being involved in a privacy regime.The authors concluded these findings showed a variable set of policies for counselling, privacy and informed consent. They also said that the low levels of informed consent were troubling because of the potential for pre-symptomatic and predisposition testing and that this posed `a substantial risk to patients in terms of genetic discrimination'.I accept that these figures are from the United States and of course that the Australian experience is likely to be different because of our different health systems and the way our health systems operate. Despite this, this report is concerning and it confirms that we need to have similar studies in Australia. Without these studies, we should apply the precautionary principle and we should be adopting regulatory measures which will make sure that the basics of genetic technology are satisfied. This includes, at the minimum, an informed consent, privacy and counselling. These are issues that are being dealt with in the Genetic Privacy and Non-Discrimination Bill that we have tabled and merely touched on or outside the scope of the government's self-regulatory approach.I also note the release by the National Health and Medical Research Council of its latest draft guidelines under section 95 of the Privacy Act for privacy in research. This is a welcome review. However, we need to recognise that these guidelines have limited application under the Privacy Act and under the law and that the Privacy Act itself has quite a limited operation. Effectively the Privacy Act and these guidelines only apply to Commonwealth agencies and any researchers using information for research provided by the Commonwealth. The NHMRC claims these guidelines provide a framework for all research—that is certainly true—but they do not provide enforceable laws for most research institutions in Australia, where there is effectively no regulation.Quoting the press release from the NHMRC from 17 August this year, when these guidelines were first released, it sums up my views entirely and confirms the need for legislation which deals comprehensively with genetic privacy and non-discrimination. The press release reads:Privacy is a basic human right. Australians expect their rights to be recognised and protected.I agree whole-heartedly. I look forward to seeing effective legislation to guarantee that recognition and protection.958013:20:009580Woodley, Sen JohnSenator WOODLEYHX5QLDAD00—I rise today in this debate to make reference to a very important report which was prepared by the Joint Select Committee on the Retailing Sector. The title of the report is Fair Market or Market Failure? . I particularly want to underline some of the comments made by my Democrat colleague Senator Andrew Murray in his minority report as part of the major report. I want to put within the context of the comments of Senator Murray some disturbing trends in fresh fruit and vegetable marketing in Brisbane, particularly the wholesale markets at Rocklea. I refer to the decline in the amount of fruit and vegies going through that market and in some ways a crisis in the wholesale market in those central markets in Brisbane.What I want to do is show that the things that Senator Murray says in his minority report to the major report in fact reinforce claims that were made to me by wholesalers at those markets. I have not yet been able to completely verify those claims, but I think they are so serious that in fact they ought to be reported here and they should be taken very seriously indeed.A couple of weeks ago I visited the Brisbane markets at the request of Mark Griffiths and a number of other wholesalers who met with me for a couple of hours. They raised serious questions about market distortions in both the wholesale as well as the retail market for fresh fruit and vegetables in Queensland.But let me return for a moment to the joint committee report, Fair Market or Market Failure?. In that report Senator Murray made some comments, particularly under the heading `A Viable Independent Retail Sector', and I quote some of his remarks:In designing competition policy we have to determine a set of values and principles which should guide our laws and behaviour. First amongst these should be the recognition that monopolies or oligopolies inherently contain within them a capacity for the abuse of market power, and should usually be resisted where they emerge, or monitored where they already exist. Therefore a situation such as we have in the Australian supermarket industry, where an oligopoly is present, has to be acted upon.Secondly, we must acknowledge that a viable and thriving independent sector in the retail industry is desirable of itself and that it has an economic and social value that should not be lost.In retailing, this independent sector is most at threat in Australia in the supermarket sector, where the critical mass essential to its survival is under threat. However, the trend is also emerging in non-supermarket retail sectors, and that problem needs to be addressed to prevent such crises emerging there too.Certainly I would underline what Senator Murray said in that minority report in relation to the Brisbane fruit and vegetable market.Senator Murray made a recommendation that the Australian Competition and Consumer Commission be required to include in its considerations this particular aspect, and that is to ensure the preservation of a viable independent sector in retailing.The people that I spoke to at the Brisbane markets made some very serious claims about that threat, a threat not only to the retail sector in the marketing of fruit and vegetables, but also in the wholesale sector. Their experience confirms that the area of retailing is in fact under serious threat. In the evidence given to me, the following claims were made: first, that fruit and vegetable prices have always been determined by supply and demand. Secondly, penetration of the market by the major supermarkets has distorted market processes and depressed returns to growers.Supermarket dominance has the following effects: first, the distortion of prices—the depression of prices by not participating on a daily basis in the marketplace on many selected lines, hence giving poor returns to farmers and then farmers are lost to the industry. Secondly, the dislocation of the central business districts in many small to medium country towns. Thirdly, gluts are not resolved by naturally occurring market forces and if they are ever cleared it is because of direct buying with selected growers. These claims need to be verified, but they are serious and they should be tested further.Senator Murray also commented on the issue of predatory pricing and trading hours. Again I would like to quote from the report that he made. He said this about predatory pricing:The Committee received significant evidence as to the difficulty in bringing a successful action under section 46, (which deals with misusing market power) for predatory pricing.That is section 46 of the Trade Practices Act. Senator Murray continued:Witnesses consistently complained of the difficulty in proving predatory pricing. . . I would like to reiterate the comments of Professor Allan Fels, Chairman of the ACCC, on the merits of the reversed onus of proof test. Professor Fels said:`There may be scope for some further strengthening of section 46 in terms of that kind of thing; that, if the effect can be shown, then there is a reverse onus of proof on purpose. That would essentially keep it to purpose. There is a problem at the moment with the test in that the Commission or private litigants have to embark upon a cops and robbers type search for purpose in particular cases. They are just not going to succeed in that, even though one has a fair idea that the purpose is anti-competitive. So there is a case for reversing the onus without departing from the underlying notion that, in the end, it would be a purpose test.'It is interesting that Senator Murray, again in his minority report, recommended along the lines suggested by Professor Fels that the Trade Practices Act should be revisited and section 46 should indeed be strengthened so that a reverse onus of proof test should be possible.On the issue of trading hours, Senator Murray also had comments to make and I must say that many of the comments of Senator Murray were supported by the major report, but were not put in as strong terms as those of Senator Murray. He says:The Committee received a substantial amount of evidence in relation to the deregulation of trading hours. This issue has played a major role in making the independent sector vulnerable and less viable. The theme was that small independent retailers are being pushed out of the grocery retailing market as the majors extend their trading hours and the public gravitate towards the majors and away from small independents.What is more, the Majors have been leaders in the lobbying campaign for deregulated trading hours, expressed at its most extreme by the push for twenty-four hour seven day trading.There is also a considerable social impact to the extent that owner/operators of independent grocers are forced to maintain longer hours just to keep up with the major retailers.. . . . . . . . . State governments need to keep a much greater account of the social and economic impacts of deregulated trading hours than has previously occurred.In his report Senator Murray commends the Western Australian state government as having been able to regulate the market much more to the satisfaction of all and certainly to the enhancement of competition in that state.With regard to the Brisbane markets, evidence was given that the effects of predatory pricing and longer trading hours have in fact been detrimental. The wholesalers told me in a number of bits of evidence that they gave me that these are very serious issues. They claimed that the supermarkets were deliberate in the actions they had taken. The wholesalers at the markets said that deregulation of trading hours, where small and family owned businesses cannot stay open because of the expense, seems to be a deliberate strategy by the major supermarkets.On predatory pricing, I was told that prices change from store to store to suit the competition they face. That is, in a shopping centre where there is not an individually owned fruit shop or butcher et cetera, the prices will be high, but where there are small competitors, then Coles and Woolworths will in fact take on those small retailers but, interestingly enough, they do not take on each other. The claim was made to me that this is evidence of collusion.So these are issues that I think underline the importance of the Fair Market or Market Failure? report. It is about time we heard the government's response to that report, because it is a very urgent matter indeed.Claims were also made to me by wholesalers at the Brisbane markets that the bypassing of the central market in Brisbane by the major supermarket chains is also detrimental to fair trading as it is to the farmers who become the victims, very often, in a kind of a war between farmers and the major supermarkets. The evidence given to me, if I could just quote from this document, is that bypassing central markets, by dealing directly with farmers for fruit and vegetables, in a lot of cases means that growers send less desirable size produce and then have it rejected. This practice gives false prices and generally holds market prices down.They go on to say that the practice of orchestrating gluts in the market means two things: supermarkets make an exorbitant profit when they are able to manipulate the market in this way. Also, they do not help to reduce oversupply by keeping market price low; rather, the index they use for growers is based on market averages and then they manipulate those averages.These are some of the issues that were presented to me in underlining the importance of the report which was made by the joint committee. The claim also was made that there is a lot of vertical integration going on. Growers have been encouraged to expand and absorb smaller farms and the claim was that this is because it is much easier to manipulate the fewer and fewer growers and make them produce to the specifications of the supermarket, but always at the growers' expense. The claim was that there is a feeling of helplessness, both on the part of wholesalers and of farmers, as the supermarkets become more and more dominant. The wholesalers felt they were getting little help from government and that the supermarkets dominate all who come under their influence, including landlords and suppliers, et cetera.I want to underline—I notice I am running out of time and I will perhaps need to return to this—that I tried to get some confirmation of what has been happening. I approached Trevor Brewer from Market Information Systems, which operates out of the Brisbane markets, and I will seek from him more of the statistical evidence to show one way or the other what is happening, but as yet I have not been able to get that evidence.I urge the government to respond to the joint committee report, Fair Market or Market Failure?, as soon as possible and I commend my colleague Andrew Murray on the excellence of the minority report that he tabled as part of the major study.958313:34:009583Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—I want to make some remarks today about the role of the Senate under the proposed change to a republic, which will be voted on by our fellow citizens on 6 November. It is not a matter that has been discussed in the media. I have tried to alert the media to the significant change to the role of the Senate which is involved in the republican model that is to be put to the people, but as Professor Flint was reported as saying in this morning's press, it is very difficult to have any argument in relation to the referendum put that supports the no case in most of Australia's major metropolitan daily newspapers. That is very unfortunate, but for those of us who feel strongly that the model that is proposed is a seriously flawed one, at best it means that we have to continue to put our case where we can.In relation to the wiping out of the role of the Senate in this republican model, there is no better place to discuss that impact of the flawed republican model than here in one of the greatest political and democratic institutions ever put on this earth—a great Australian institution, a great part of Australia's very own Australian-designed and democratically voted upon institutions, put in place by our great founding fathers. That institution, the Senate, represents the states. In its design by our founding fathers and in its years of operation ever since and coming up to its centenary, it has been able to ensure a different plurality, a different representation of the Australian people's democratic rights. It has significant powers to overturn decisions of governments, to overturn decisions of the House of Representatives, and to do so on a basis that represents the states of Australia with equal numbers—a very powerful institution with significant powers.Yet when we come to the republican model, we find that senators will indeed have a right to vote on a nomination to be made by the Prime Minister and seconded by the Leader of the Opposition in the other place. We will have the privilege of walking across to the other chamber and casting our votes—not really a vote in the way most people would expect. Most would expect that a democratic vote in relation to electing a President would perhaps be a choice of candidates, as in most other elections in the free world, but this is effectively a rubber-stamp of a decision that has been made by two politicians—specifically the Prime Minister and, through the seconding of the motion, the Leader of the Opposition. So, in fact, it is a decision of two politicians, who for their own political power rely on as little as 50 per cent plus one of the votes in either their caucus or party room for their own power.Let us consider what will happen when it comes to the very important issue of the role of head of state under the proposed new constitution—and that is what it will be; you cannot say it is the existing constitution because it will have 69 changes to it. It will be a new constitution, with very little resemblance to the old one. It will be a new Australian political system. Under that proposal the dismissal provisions provide something unique in the free world—that the Prime Minister can sack the President in writing and effectively in secret. The only constraint on a Prime Minister dismissing the President or head of state is a political constraint.To home in on that point we need to understand that the new head of state will derive his or her power from that vote I referred to earlier—from a vote of two-thirds of the politicians sitting at any one time in the Australian parliament; that is, the two houses, the House of Representatives and the Senate. That is how the president derives his or her power. That power is limited by the fact that the person has as their most important role—forgetting all the other roles that are performed by either the Governor-General now or the President as would occur if the case gets up in November—that of umpire in any political or constitutional crisis in Australia. The head of state will be an independent umpire who can seek to resolve a political or constitutional crisis, ensure that Australia's government and democratic institutions move on and that the best interests of the people prevail.In that case, you have a president who, having to make a crucial decision at a time of crisis within our political or constitutional systems, has hanging over his or her head the threat of dismissal. If we want to use the umpire analogy on a field of play, the umpire who is contemplating raising the whistle to his or her mouth would have the threat hanging over his or her head that he or she would be sacked or dismissed unilaterally before he or she has a chance to blow air through that whistle.Therein lies one of the significant problems of the republican model. The only constraint on the Prime Minister from dismissing that President before he or she blows the whistle is the threat to the Prime Minister. Can the Prime Minister get a motion moved by the House of Representatives. This is the nub of the issue that I want to raise here today—it is not the Australian Parliament, it is the House of Representatives, because the Senate has no say in this dismissal. It is a point that has not been featured in any article that I have been able to find in any major metropolitan newspaper. For probably only the second time in nearly 100 years where a major decision needs to be taken by the Australian Parliament, the Senate is rubbed out unilaterally. The Senate has no say. Senators elected by the millions of Australians who democratically go along and vote every three years have no say in this crucial decision.So what the Prime Minister needs to do is contemplate whether he can get a majority in his party room to support that decision. So he needs 50 per cent plus one in his party room—or her party room when we have a female prime minister, which I am sure will occur at some stage, I hope during my lifetime. I hope it is a Liberal too, Senator Coonan. He or she will need to know that he or she has 50 per cent plus one in their party room because that is how prime ministers have their jobs. As Mr Hawke and Mr Keating and previous prime ministers know, if they do not have 50 per cent plus one in their party room, they are not the prime minister.So the only political constraint on a prime minister exercising his power to unilaterally—and, effectively, secretly in the first instance—dismiss the president, the umpire, is in fact that constraint. I say to you that that is the only time—with one exception and that exception is a very weak one which I will go into later—when the Australian Parliament has been asked to make a decision, but only the House of Representatives actually does it. I say that that is an overturning of the whole foundation of Australia's federation. I put it to the Senate—and it is probably now a gratuitous argument, because we are a great federation and we are a great federation because our founding fathers gave us such a fantastic constitution and such powerful institutions as the Senate—that had the founding fathers proposed or had proposed to them that our head of state be elected by two-thirds of the politicians, but dismissed by potentially 23 per cent of the parliament—which is all that the Prime Minister requires—and that the Senate would have no say in that dismissal, then the founding fathers would not have had their constitution and the federation supported by the Australian people. There is no way in the world that the people of Western Australia, Tasmania, South Australia or Queensland would have voted as they did nearly 100 years ago to form a federation if the Senate, which was so crucial to bringing the smaller, outlying, less populous states into the federation in the first place, would not have had a say in the dismissal.I said earlier that there has been only one other example that I can find—and I am happy for the yes case to find another example—where that applies in the Australian constitution or our history. That relates to referendums themselves. Section 128 of the Constitution provides that if one house of the parliament passes a bill for an act for a referendum, it is passed twice within a statutory time—I think it is a three-month period in between—and the other house fails to pass it, then the Governor-General can refer those matters to the people at a referendum.So, hypothetically, if the House of Representatives were to pass some referendum proposals twice, the Senate rejected them, and the House of Representatives passed them again three months later, the government of the day could put to the Governor-General that those matters be put, as happened in 1974. The result, of course, was that those proposals went down. I think that probably reflects what has happened in Australian constitutional history and the history of referendums—that unless there is broad bipartisan support, referendums do not usually get up.Section 128 says that one house of parliament can pass a referendum proposal twice, when the other place does not. Why is the Senate being taken out of that process? Although it is quite explicit in section 128 that one house can pass a measure twice and have it put to the people, when that was sought to be practised in 1914 when the Senate twice passed two proposals with the statutory required time in between, the then Governor-General, Sir Ronald Munro Ferguson, on the advice of his ministers, refused to put the proposal to the people.One would suspect that if the Senate made a proposal, just as the House of Representatives did in 1974, and the other place did not support it, it probably would not have got up anyway. But the practice in Australia now is that the House of Representatives can pass measures twice and have them put to the people and historically the Senate cannot. That is the only other case we can find where the Senate is not part of the powers of the Australian Parliament.So here we have a fundamental change to Australia's system of government. The reality is that a head of state will have his or her power base formed by a vote—not a selective ballot; no more than one name will be put forward. We will not have any choice in that; the name of the candidate will emerge through a process that I have said is less transparent than that which applies in the former Union of Soviet Socialist Republics and less transparent than that which applies in the People's Republic of China. The secret central committee makes the nominations, is sworn to secrecy—in fact, it is required by this parliament to conduct those discussions in secret—and provides those nominations to the Prime Minister in secret. The Prime Minister can reject that nomination.So we have a secretive process where the people will not know who the candidate is until that name appears in a joint sitting of the two houses of parliament and then, as senators, we will have a chance to vote on that. That all sounds nice—we have a quasi-democratic process there; almost as democratic as that of the People's Republic of China! I suggest to you, Mr Deputy President, that if you suggested to the people of East Timor that they adopt that same process for the election of their first president they would laugh you out of any international forum.When it comes to dismissal, at the crucial time when the future head of state needs to make a vital decision about the future of Australia's democracy, resolving conflicts, then the Senate is unilaterally taken out of the decision. All the Prime Minister of the time needs is the support, not of two-thirds of the Parliament, but of 23 per cent of the parliament. On any objective assessment of democratic principles, it cannot be right that the President could be made to go on a decision of 23 per cent of the parliament, when 77 per cent actually support that President. Sitting suspended from 1.50 p.m. to 2 p.m. Ministerial Arrangements958514:00:009585Hill, Sen RobertSenator HILLBH4SALPEnvironment and Heritage10—by leave—I wish to inform the Senate that Senator Vanstone will not be with us today for family reasons. In her place, Senator Ellison will take questions relating to the justice and customs portfolio, the Attorney-General's portfolio and the immigration and multicultural affairs portfolio.Questions Without Notice958695869586Lundy, Sen KateSenator LUNDY7G6ACTALP00—My question is to Senator Alston, Minister for Communications, Information Technology and the Arts. Can the minister confirm that the report jointly sponsored by the Department of Communications, Information Technology and the Arts entitled The IT engine room—SMEs in Australia's IT&T Industry documents the overwhelming view of Australian information technology small to medium enterprises as:There will be few winners and many losers as a result of government outsourcing policies.Doesn't the report also state that the current IT outsourcing program is:. . . perceived to be inconsistent with the interests of IT&T SMEs?Given that all of the federal IT outsourcing contracts have been awarded to large multinational corporations, what action has the government taken to ensure these large contracts become accessible to Australian IT companies?9586Alston, Sen RichardSenator ALSTONLD4VICLPCommunications, Information Technology and the Arts10—The IT program has been very successful indeed in terms of delivering better value for money for the Commonwealth government. The approach that has been taken has certainly ensured that there has been a very transparent process. There have been obligations imposed to ensure that SMEs are given a fair slice of the action. We can understand the view that some might argue that we should make arrangements to ensure that SMEs get the entire bulk of the work on offer but, at the end of the day, the Commonwealth interest is not what seems to be Senator Lundy's interest—to resurrect the old protection debate—but rather to get better value for money. If SMEs are able to share in the work on offer and are able to be fully considered—and my understanding is that they are—then I think that will be the best outcome for Australia.You are never going to satisfy everyone and clearly a lot more players would be interested. But I am aware of some significant Australian companies who would be regarded as SMEs who are actually doing very well out of it. I think what you will find is that those who do have the capacity to deliver on the ground rather than simply wishing that they did will be the ones that are beneficiaries from the on-sell from the prime contractors.9586Lundy, Sen KateSenator LUNDY7G6ACTALP00—Madam President, I ask a supplementary question. How does the minister justify the blind continuation of the federal government's IT outsourcing program given the negative impact expressed by many Australian IT&T businesses? Isn't this just another example of a government program completely contradicting this government's endless rhetoric about fostering the growth of innovative IT businesses?9586Alston, Sen RichardSenator ALSTONLD4VICLPCommunications, Information Technology and the Arts10—Madam President, this seems to be all that we get from a taxpayer funded trip of three weeks around Silicon Valley. All you can do is come back and try and resurrect the line that Senator Lundy has been assiduously pursuing to cultivate local support in the ACT region. That has nothing to do with serious government policy. The sooner that Senator Lundy asks for a bit of help on policy, the better off we will all be. You cannot have it both ways. You will find, if you look at what is happening around the world, that governments of all persuasions are going down the path of ensuring that you have efficient operations, that you get best value for taxpayers' dollars and, at the same time, that you make every opportunity available to local suppliers. But we do not, in this day and age, insist on locals getting priority irrespective of merit. I know it is the trade union approach and I know the riding instructions you get, but that is not our approach. We think that the best outcome for taxpayers is actually lower cost burdens—in other words, the capacity to reduce taxes, not increase them. (Time expired)Distinguished Visitors95869586The PRESIDENTThe PRESIDENT10000PON/A10—Order! I draw the attention of honourable senators to the presence in the chamber of a parliamentary delegation from Mexico led by Senator Jorge Calderon-Salazar. On behalf of senators, I welcome the delegation to the chamber and trust that your visit to this country will be both enjoyable and informative. UNKNOWNHonourable senatorsHonourable senators—Hear, hear!Questions Without Notice958795879587Eggleston, Sen AlanSenator EGGLESTON4L6WALP10—Madam President, my question is to the Minister representing the Minister for Employment, Workplace Relations and Small Business, Senator Alston. Will the minister inform the Senate of the failures of the Working Nation program? In contrast, what is the government doing to help the unemployed, in particular those living in rural and regional Australia, to find real jobs? Is the minister aware of any alternative policy proposals? What would be the impact if these were implemented?9587Alston, Sen RichardSenator ALSTONLD4VICLPCommunications, Information Technology and the Arts10—I am delighted to receive a real question, particularly when it comes from Senator Eggleston because it does go to the heart of serious policy making in this country: are you interested in getting people back into real work positions, or are you interested in simply pandering to those who might be the very narrow beneficiaries of some of the failed initiatives of the past? Our new Job Network program now involves the provision of four times as many sites as the old CES program. The Work for the Dole pilot program shows that 32 per cent of participants who left the scheme have gone on to unsubsidised employment within three months. That is a pretty fantastic outcome. A Morgan and Banks survey found that nearly 60 per cent of employers would be more likely to employ someone who has been on a Work for the Dole project than someone unemployed without this experience.What is the alternative? The alternative is the failed approach that has been adopted by our predecessors—the old Working Nation program. When poor old Mrs Kernot, who has been absolutely exhausted, we know, and does not have time to leave the electorate these days, was asked last month what she had been doing, she said, `I've certainly been working. I have had lots of meetings with the TWU.' That would be a job strategy endorsed by her successor in title, Mr Ferguson, because that is the main game as far as he is concerned. He is particularly impressed by Working Nation because it benefits the trade unions—`$1.7 million provided to fund training liaison officers.' We know that is a euphemism for making sure that the lads at the Trades Hall get a bit of an extra handout courtesy of the taxpayers.We have a sensible approach to trying to solve the problems of the unemployed. Those who want to revert to Working Nation ought to accept that it did not deliver the goods. Even Mr Ferguson has said, `It is true that, out of a lot of our training programs, people did not get a job at the end of it.' What a devastating self-indictment. Why would you even contemplate going back on this path? The answer is, of course, that they do not have any policy solutions. That is the tragedy of it. The only glimmer of hope is that Mr McMullan is reported today as saying that Labor might need to start taking some hard policy decisions early in the near term rather than later. This is a revolutionary doctrine! He describes this as a break with tradition.I do not know who established the tradition; it is basically a failed strategy. The strategy was: `They threw us out in 1996; we'll spend three years doing nothing, keep our heads down, hope no-one notices, and we might slide back in on the unpopularity of the government.' It failed. It did not deliver the goods, but, unfortunately, Mr Beazley has not noticed. Mr Beazley is out there saying, for example, that in March this year he was going to have a vision launch where he promised not simply to put down a set of thoughts but to put those thoughts into material policy. Then he said, `If you like, we will come up with a skeleton of a substantial series of initiatives.' Then, of course, we had a pathways speech on employment that had a rider on the contents page saying, `The options canvassed here have no formal status.' Then he said he would launch a more detailed policy discussion paper in September. Now we know that he cannot ride a horse and chew gum, because that has been put off until after the referendum.It is simply not good enough. Having a burnt out Rhodes Scholar with all the intellectual policy vigour of Yogi Bear is not going to get you anywhere in the lead-up to the next election. You will have to face up to the fact that Mr McMullan is dead right. The punters do expect a bit of policy alternative. They do not want you to simply go back to the old handout to the trade union mentality that characterised your approach. They want serious programs and mutual obligations. Look at what is going on with your soul brothers over in the UK and you will see the way ahead. (Time expired)95889588Evans, Sen ChrisSenator CHRIS EVANSAX5WAALP00—My question is directed to Senator Herron in his capacity representing the Minister for Health and Aged Care. Why didn't the health department require all the parties to negotiations to make a declaration of pecuniary interest and sign undertakings of confidentiality when the process began in February 1998 for negotiation of Medicare rebates for MRI scans?9588Herron, Sen JohnSenator HERRONVW4QLDLPAboriginal and Torres Strait Islander Affairs10—This issue has been pursued by the Labor Party for many months in the other chamber. It is related to the magnetic resonance imaging services. It is interesting that the Labor Party, for the 13 years they were in government, did nothing about magnetic resonance imaging, to the extent—RF4COOKSenator Cook—That's not true!VW4Senator HERRON—Senator Cook is correct. Madam President, I accept that interjection.RF4COOKSenator Cook—That is an outright lie!10000PRESIDENTThe PRESIDENT—Order! Senator Cook, you should not be shouting in that fashion across the chamber. There is an appropriate time to take up matters that you might want to debate, and it is not appropriate for you to just sit there and shout.VW4Senator HERRON—Madam President, Senator Cook's interjection was correct and I accept it.RF4COOKSenator Cook—Tell the truth! When are you lot ever going to be honest?10000PRESIDENTThe PRESIDENT—Order! Senator Cook, I warn you about the provisions of standing order 203.VW4Senator HERRON—I said he was right, and he is abusing me. If this is not an abusive process, I do not know what is. I have twice said that you were correct, Senator Cook—if you would only listen to the answer. This is classic opposition. They never listen to the answers. They are not interested in the answers. I was wrong; they did do a little about magnetic resonance imaging. In the whole 13 years that they were in power, they allowed in 18 magnetic resonance imaging machines. So Senator Cook was absolutely correct. They allowed 18 magnetic resonance imaging machines into the teaching hospitals.AX5EVANSSenator Chris Evans—Madam President, I raise a point of order on relevance. This is a serious question about a matter which has been referred to the DPP, as I understand, for prosecution. I think the opposition deserves a serious answer to a serious public policy question, not a rave about what the minister knows about radiology procedures.10000PRESIDENTThe PRESIDENT—I draw the minister's attention to the question, but I also suggest, Minister, that you perhaps ignore interjections if they occur. I think that was a distraction.VW4Senator HERRON—The question I would ask is this: at how many meetings that the health minister arranged when the Labor Party was in power did they request everybody attending that meeting to give a statutory declaration that they may or may not have a pecuniary interest in whatever discussion was going to occur? That is really what this question is about: did we ask anybody to put in a statutory declaration that they may or may not have had a pecuniary interest in the discussion that was occurring? The answer to the question should be self-evident to even Senator Evans.Since we have been in power we have introduced 91 magnetic resonance imaging machines. They are now available to the general public so that people have the choice of whether they go to a private magnetic resonance imaging institution or to a public hospital. In the development of this process I understand that the department had a total of seven meetings with the College of Radiologists between 10 February and 23 April 1998 to negotiate the proposal for the expansion of funding for MRI services in Australia. That agreement provides for the introduction of medical benefits for MRI and the cooperative management of the diagnostic imaging services table in line with agreed budget guidelines.So they can go fishing on the other side as much as they like; everything was above board. There has been a case referred, that is true—AX5EVANSSenator Chris Evans—Was it all above board or not?VW4Senator HERRON—Of course it was above board. We followed the same procedures as the Labor Party followed when they were in power. We do not ask people to produce affidavits at every meeting that they attend saying whether they have got a pecuniary interest one way or the other. It is an absurdity to even suggest it. But what would you expect from the Labor Party? Where are their policies? Is it their policy to have anybody who goes to a meeting sign an affidavit to declare whether they may or may not have a pecuniary interest? The depths they are in at the moment one can understand, because they have got no policies. They are attacking freedom of choice. They are trying to destroy the health system and trying to destroy Medicare, which we are supporting. It is obvious that they have got no answer themselves. We will proceed with the development of that policy and that agreement to make more magnetic resonance imaging machines available to the Australian public.9589Evans, Sen ChrisSenator CHRIS EVANSAX5WAALP00—Madam President, I ask a supplementary question. I am sorry that the minister does not think this is a serious issue. Given that the health department knew it had been negotiating with practising radiologists, what arrangements were made to preserve confidentiality for sensitive budget information and to ensure that any pecuniary interests were disclosed?9589Herron, Sen JohnSenator HERRONVW4QLDLPAboriginal and Torres Strait Islander Affairs10—One assumes that when one has a meeting about radiology services one talks to radiologists. The Labor Party would not even think of that. That is mind-boggling. That is what occurred. There were meetings with the College of Radiologists and all of the people present had some connection one way or another with the provision of the services. That is how it works. We go and ask the people who are providing services what is the best way for this to be introduced, and this is what occurred.95899589Parer, Sen WarwickSenator PARERKI4QLDLP10—My question without notice is directed to the Minister for Industry, Science and Resources, Senator Minchin. How have the government's innovation policies helped develop a vibrant venture capital industry, and how will the government's reforms to business taxation give venture capital a further boost?9589Minchin, Sen NickSenator MINCHINJX4SALPIndustry, Science and Resources10—I thank Senator Parer for that question about a very important issue for Australia. Our support for venture capital in Australia is turning out to be a real success story. The Australian Venture Capital Journal and PricewaterhouseCoopers recently conducted a survey on this which found that new investments in Australian and New Zealand venture capital projects went up 76 per cent to a record $681 million in 1998-99, with the number of projects also a record. The record number of deals for 1998-99 was driven by a doubling, a 100 per cent increase, in activity in the seed, start-up and early expansion categories.Mr Victor Bivell, the publisher of this journal, said that the government's Innovation Investment Fund and Pooled Development Fund programs must take credit for the increased levels of activity in early stage investments. While I do give credit to the previous government for the Pooled Development Fund Program that we are continuing, we initiated the Innovation Investment Fund, and it is clear that these programs are providing a real stimulus to venture capital. In fact, one-third of the hundred early stage investments in the June quarter alone were due to these programs. The Venture Capital Association executive director, Andrew Green, said that the volume of money coming into the market needs to grow and that the government's Ralph reforms would facilitate this. Of course, our business tax reforms will help in a number of ways. At the moment we have got only about 12 per cent of our funds coming in from international sources compared to 57 per cent coming into the UK, for example. So our decision to exempt eligible investments by foreign pension funds from capital gains tax really is good news for the Australian venture capital industry and for the growth of the Australian economy.The other major boosts for Australian innovation in the Ralph reforms are the halving of the capital gains tax rate and the cut in the corporate tax rate to 30 per cent. These reforms, taken as a package—it is important to recognise them as a package—will give us a much more internationally competitive business tax regime. As I have said before, this has been most significantly recognised by the Institute of Engineers, which said in response to our Ralph reforms that business tax reforms will result in a rush of foreign money into high technology, more local R&D, more jobs for engineers, a halt to the brain drain and a healthier, more certain climate for domestic investment in start-up companies. I am glad that the opposition agrees with us. I am glad that the opposition recognises the benefits of these reforms. Mr McMullan, my shadow, said in response to the Ralph report release:Labor supports the government's proposal to provide a CGT exemption to investments in venture capital projects in Australia by overseas pension funds.I am very glad that not all policy development in the Labor Party has been put off until after the referendum. It is nice to know that the Labor Party have at least one policy in this area and that they will support our package in this most important area. I do hope that they will deliver on that. I do hope that Mr 30 per cent, the Leader of the Opposition, will in fact deal himself back into relevance in Australian public debate and support this package. It is a package that delivers a much better tax system, more investment, more venture capital and ultimately something we should all be concerned about, more jobs.95909590Evans, Sen ChrisSenator CHRIS EVANSAX5WAALP00—I have a further question to Senator Herron in his capacity representing the Minister for Health and Aged Care. Can the minister advise the Senate of the outcome of the investigations undertaken by the Health Insurance Commission into the 31 suspect MRI contracts allegedly entered into by radiologists prior to the May 1998 budget? How many cases has the Health Insurance Commission now referred to the Director of Public Prosecutions? Consistent with the commitment given to me at the estimates committee, will the minister now table the report by the HIC about its investigation?9590Herron, Sen JohnSenator HERRONVW4QLDLPAboriginal and Torres Strait Islander Affairs10—As I said previously, the major improvement that we on this side of the House made was increasing the number of magnetic resonance imaging machines that are available to the public. Under the arrangements, Medicare benefits are now available for MRI services. I mentioned previously that there are 92 eligible MRI sites registered with the Health Insurance Commission and of these 84 are accessing Medicare funding. The Health Insurance Commission is proceeding with investigations relating to provider eligibility. I think it would be incorrect to divulge anything in relation to that investigation while it is in progress. The Labor Party may operate that way, but that investigation is proceeding.Of course the magnetic resonance imaging service providers must meet certain requirements in order to be eligible for Medicare benefit payments. These include that providers must be specialists in diagnostic radiology, participating in the Royal Australian and New Zealand College of Radiologists quality and accreditation program, services must be performed under the professional supervision of an eligible MRI provider, and services must be performed on eligible equipment. The cut-off time for machine eligibility was announced by the government on budget night 1998. Where providers ordered equipment prior to budget night, they are required to provide supporting documentation as part of a statutory declaration. Statutory declarations in relation to equipment on order needed to be provided to the Health Insurance Commission by 11 October this year.The Health Insurance Commission has been conducting investigations into contracts purported to be signed before the budget as part of its ongoing monitoring role. As I also mentioned previously, one case has been referred to the Director of Public Prosecu tions. Other cases of suspected backdating are being pursued with a view to referral to the Director of Public Prosecutions or the disallowing of benefit claims. Compulsory powers of investigation have been approved under part 2D of the Health Insurance Commission Act 1973 and additional resources have been allocated to these investigations, which have proved to be more complex than anticipated and have increased in number, leading to a later completion date of November this year.There have been concerns expressed in relation to the length of time that these investigations are taking, and I take it that that is what Senator Evans is referring to. The minister is confident that the investigations are being properly conducted, and he would emphasise the importance of allowing this process to be completed in a thorough fashion to prevent any need to revisit the investigations in the future. He noted that it has been claimed that 14 new MRI units were purchased by companies associated with members of the executive of the Royal Australian and New Zealand College of Radiologists and its MRI task force. The Health Insurance Commission has advised him that it does not currently have information that substantiates those claims. I repeat that the Health Insurance Commission has advised the minister that it does not currently have information that substantiates those claims.9591Evans, Sen ChrisSenator CHRIS EVANSAX5WAALP00—Madam President, I ask a supplementary question. I thank the minister for answering the question. What I would like to know, though, is this: is he now saying to the Senate that the report of the HIC will be completed in November? I took that to be what he was saying. If so, can he explain why it was promised in July and now has been delayed till November? Would he also give the Senate the same assurance that I received at the estimates committees that once that report is completed it will be made available to the Senate?9591Herron, Sen JohnSenator HERRONVW4QLDLPAboriginal and Torres Strait Islander Affairs10—My interpretation was as Senator Evans said—that the date of the investigations has been extended as additional resources have been allocated to those investigations, because they have proved to be more complex than anticipated and have increased in number. So Senator Evans's interpretation I agree with, from my understanding of that report from the minister. It is understood that it is more important—as I mentioned previously and which he did not listen to—that they should be conducted properly and therefore that meant additional resources. In relation to the provision of the documentation, I will refer that to the minister and get back to Senator Evans with an answer.95919591Lees, Sen MegSenator LEES8U4SAAD00—My question is to the Assistant Treasurer, Senator Kemp. The minister has said previously that the government has accepted the Ralph report figures as its own. Can he then explain why there is a big difference between the government's and the Ralph report's estimates on revenue to be gained from tax avoidance measures? The Ralph report estimates that changes to loss duplication, value shifting and lease assignments, as well as the deferred second stages, will raise $610 million in 2000-01, rising to $900 million by 2004-05, yet the Treasurer's press release of 29 September claims these measures will raise $860 million in 2000-01, rising to $1,660 million by 2004-05. In light of his earlier statement that the government has accepted the Ralph report numbers as its own, can the minister explain this massive discrepancy in figures?9591Kemp, Sen RodSenator KEMPWW4VICLPAssistant Treasurer10—I thank Senator Lees for that question. The government has used the costing methodology prepared by the Review of Business Taxation, more commonly known as the Ralph report. The announced integrity measures and the anti-avoidance measures you refer to relate to the tightening of the thirteenth-month rule for advance expenditure, preventing loss duplication and value shifting, addressing the taxation of lease assignments and reforming excess deduction rules for mining operations. The key differences in the government's and Ralph's costings are in respect of the first two measures listed above. The tightening of the prepayment rules has been brought forward to take effect from the date of announcement rather than from 1 July 2000, and the revenue estimates for loss duplication and value shifting measures differ because of the government's decision to delay the implementation of the entity regime to reduce the compliance burden on industry. So one of those measures was brought forward and the other measure was delayed.The integrity and anti-avoidance measures and the deferred package are preventing the alienation of personal services income and deferring deductibility of losses from non-commercial activities. These two measures are assumed to be on the same timetable as in Ralph for the purpose of outlining the fiscal impact of the new business tax system.9592Lees, Sen MegSenator LEES8U4SAAD00—Madam President, I ask the minister a supplementary question. Is he sure that what is just an adjustment in the timing of some of these measures will make up for a discrepancy that in one year—by the time we get to 2004-05—is over $670 million between Ralph's and the government's estimates? Surely this is a very big risk to take, and the funding hole still exists despite some changes in timing.9592Kemp, Sen RodSenator KEMPWW4VICLPAssistant Treasurer10—The advice I have given the Senate was the advice which I in turn obtained from Treasury and I have no reason to doubt that advice. As I indicated in my remarks, one of the measures was brought forward and another of the measures was delayed. There will always of course be the debate about the revenue estimates but, as I said, we believe they are the best available and of course they are based on the figures which have been prepared in the Ralph report.95929592Mackay, Sen SueSenator MACKAY9L6TASALP00—My question is to Senator Newman, Minister Assisting the Prime Minister for the Status of Women. Can the minister explain why she backflipped yesterday on her earlier decision to slash the OSW grant to the National Council for Single Mothers and their Children? Is it because the minister was so embarrassed by her junior minister's revelation that the government had just found an extra $50,000 for the Lone Fathers Association—exactly the same amount that was taken off the single mothers? Now that the minister has admitted her error in defunding this group, when will she reinstate the funding for the remaining nine groups, including Girl Guides Australia, the Women's Electoral Lobby and the Older Women's Network, or must these groups now wait for another slip-up by Larry Anthony before their needs can be met?9592Newman, Sen JocelynSenator NEWMANBE4TASLPFamily and Community Services; Minister Assisting the Prime Minister for the Status of Women10—Quite clearly, the senator was not paying any attention at all yesterday when I answered in great detail the questions she has just asked. Contrary to some reports in the media—despite my press release which set it out very clearly—my department is funding the National Council of Single Mothers and their Children. The Department of Family and Community Services is the line department that should be funding an organisation like that. Since 1996 the government has been talking about and had a policy on trying to see that NGOs who are relevant to particular line departments are funded wherever possible by that department because they build up a community of interest. It is beneficial to the NGO and it is also beneficial to the public servants who are working in that area to have regular feedback and contact with NGOs in that area. It is very logical. If there is any suggestion that there is something suspicious about the National Council of Single Mothers and their Children being funded by my department, which is dealing with family policy all the time, I would like Labor to try to explain why.There are other organisations that have been funded by line departments. Last year some $350,000 was funded from other portfolios in support of women's organisations. I mentioned some yesterday and I will mention some now. Australian Women in Agriculture got $50,000, the Nursing Mothers Association got $50,000 and the Women's Emergency Services Network, WESNET—who are working so hard in the area of domestic violence—got $80,000. The shame is that Labor never looked at the funding needs of women's NGOs. Labor gave them block grants occasionally. They were always for 12 months. They could drop off the edge of the planet at the end of 12 months and Labor did not care. Labor did nothing to encourage them to become stronger and more effective in their advocacy of the issues for women.AX5EVANSSenator Chris Evans—Are you still vetting their press releases?5K4FAULKNER Senator Faulkner—What have you got against the girl guides?BE4Senator NEWMAN—Once again I am being given that same shouting down as I try to tell the people what the facts are. As distinct from the line departments that are quite appropriately funding other organisations, in the Office of the Status of Women we set up two funding rounds this year after a long consultation period with women's NGOs. One which has just been announced gives, for the first time ever, three years certainty of funding to women's organisation so that they can set up a national secretariat, employ staff, start working on projects and policy advice to the whole of government and so that they can represent Australian women across the board.If the opposition does not believe that the National Council of Women of Australia—a very large, long respected organisation—and the Australian Federation of Business and Professional Women and the YWCA are appropriately funded for a triennium, which has never happened to women's organisations before, they should say it. Which of those organisations does the opposition believe should not be treated like that?9L6MACKAYSenator Mackay—We want the rest of them funded as well.BE4Senator NEWMAN—Senator Mackay is yapping away in the back, Madam President. She is trying to drown out the facts. There is a second round of funding, which I mentioned yesterday, for which a number of organisations have been applying for specific purposes. That will be announced shortly.GB6COLLINSSenator Jacinta Collins—When?BE4Senator NEWMAN—Very shortly.10000PRESIDENTThe PRESIDENT—Order! It is not appropriate to sit in the opposition benches and keep shouting out questions.BE4Senator NEWMAN—Madam President, the only reason they are being announced—3L6CONROYSenator Conroy—Stop trying to protect her. 10000PRESIDENTThe PRESIDENT—Senator Conroy, you are out of order.(Time expired)9593Mackay, Sen SueSenator MACKAY9L6TASALP00—Madam President, I ask a supplementary question. I would appreciate a response to our question, which was: when will the announcement be made? Further, is the minister aware of Pru Goward's comments on the 7.30 Report last night that the funding could be given only to a limited number of groups `because we wanted to professionalise the women's movement'? Does the minister endorse this utterly patronising remark? Can she explain precisely how slashing the funding from virtually all national women's organisations will have the effect of so-called professionalising the women's movement?9593Newman, Sen JocelynSenator NEWMANBE4TASLPFamily and Community Services; Minister Assisting the Prime Minister for the Status of Women10—Madam President, I wish I had more than one minute to answer that question. As I was trying to say when the time was called against me, the only reason that there is a second round of funding—which will be announced very shortly—is that the women's organisations themselves asked for more time. You would understand that often NGOs have difficulty in meeting some deadlines and they can ask for an extended time, and we agreed to that. They will be announced very shortly. We heard an awful lot from the ALP yesterday about girl guides. Girl guides received funding of $50,000 last year. They were not funded at all by the previous government.9L6MACKAYSenator Mackay—Madam President, I raise a point of order which goes to relevance. The question was: does the minister agree with the comments of Pru Goward on the 7.30 Report last night? I would appreciate it if she got to that quickly.BE4Senator NEWMAN—I addressed that issue at the very beginning of my answer about national secretariats being effective. OSW has worked with these organisations to help them prepare to be as effective as they have. The Women's Action Alliance, who were here in Canberra yesterday, received funding of $25,000 in 1997-98 and in 1998-99. They received a total of just over $8,000 for the 13 years of the last government. (Time expired)95949594Harradine, Sen BrianSenator HARRADINE6H4TASIND00—My question is to Senator Alston, representing the Minister for Employment, Workplace Relations and Small Business. Does the government support pregnancy testing for women prior to employment as part of its response to a survey by the International Labour Organisation in respect of maternity protection at work? Who authorised the response by the government to the survey, and what are the reasons for responding to the survey in this way?9594Alston, Sen RichardSenator ALSTONLD4VICLPCommunications, Information Technology and the Arts10—Can I make it clear that the government did not oppose a prohibition on pre-employment pregnancy testing at the ILO—GB6COLLINSSenator Jacinta Collins—They did so.LD4Senator ALSTON—Oh, boy! I've got something to wave too.10000PRESIDENTThe PRESIDENT—Senator Alston, ignore the interjections.LD4Senator ALSTON—I will, Madam President.Senator Hill interjecting—LD4Senator ALSTON—Yes, it just shows you. I gather the source of the report was someone who attended the ILO conference in Geneva at the expense of the ACTU, so maybe that is where the confusion arises, Senator Collins. Get your information from outside the ACTU. You might have a better idea.An earlier departmental response to the ILO questionnaire clearly opposed pregnancy testing, which is discriminatory. However, the response did reflect a minor legal concern that there may be instances where general medical test results on prospective employees may be misleading without the knowledge that the person was pregnant. Pregnancy tests conducted and used in the process of interpreting such general tests would not be discriminatory. The government is unequivocally of the view, and made it clear during the first discussion of this matter at the ILO conference in Geneva in June this year, that it supported a prohibition on pregnancy testing for prospective employees.The government is strongly supportive of the rights of women in employment to have children and raise families free from fear of discrimination. Australia has put in place strong legal protections to protect women against discrimination on the basis of pregnancy. Discrimination on the basis of pregnancy or potential pregnancy in applying for employment is prohibited in Australian legislation at the federal level, via the Sex Discrimination Act 1984. It is also prohibited under state based legislation. To ensure these protections are adequate, the government commissioned the pregnancy discrimination inquiry, which was the first of its kind in Australia. This highlights the importance the government places on ensuring the fair treatment of women in the workplace.Senator Harradine asked me what the reasons were for responding to the survey in a particular way, and I can tell him that the caveat attached to the answer to the question was:. . . that a provision of this nature should prohibit discrimination on the basis of the manner in which the test is required or how the result of the test is used, rather than hinge on the mere fact of the test being conducted. Many workplaces require potential employees to have a medical examination prior to being permanently appointed. That medical examination may include a pregnancy test to enable accurate interpretation of the test results.GB6COLLINSSenator Jacinta Collins—What fool framed this response?LD4Senator ALSTON—You are not listening.GB6COLLINSSenator Jacinta Collins—It is right here.LD4Senator ALSTON—Well get your information from outside. I am telling you what is in the answer, so if you have got the answer we are in heated agreement.GB6COLLINSSenator Jacinta Collins—It is here and it is the coalition's response.LD4Senator ALSTON—It might be there. Very good for you. I am delighted you have got a copy of it. It continues:Where the test is taken with the employee's informed consent and done for bona fide purposes, it would be unnecessary to penalise the employer, as no harm has been done to the employee in these circumstances.GB6COLLINSSenator Jacinta Collins—Oh, yeah, right!LD4ALSTONSenator Alston—Suddenly the penny has dropped, has it? Australia did not press the caveat from the questionnaire and supported a prohibition on pregnancy testing at the first discussion on the topic at the ILO conference in Geneva in June this year. All I can suggest is that those who have beaten this up ought to get their information from the source.9595Harradine, Sen BrianSenator HARRADINE6H4TASIND00—Madam President, I ask a supplementary question. The response has confused me. I understood the minister to say, in short, that the government is not opposing pregnancy testing asked for by the employer, provided the prospective employee agrees. Yet the pressure that is on women in this day and age—with high unemployment—to get a job is such that they are virtually forced to agree in order to get the job. I think we should have that clarified, Minister, so that we can all see what the response of the government was and what is now the view and the true position of the government. Could we have the documentation?9595Alston, Sen RichardSenator ALSTONLD4VICLPCommunications, Information Technology and the Arts10—Let me be quite clear. The caveat—in other words, the additional comment attached to the answer to the survey questionnaire—did make the point that I elaborated. But at the end of the day Australia did not press that caveat and supported a prohibition on pregnancy testing at the first discussion on the topic at the ILO conference, so the government did not oppose a prohibition on pre-employment pregnancy testing at the ILO. Prior to any of those decisions being taken, there were surveys circulated and our answer spelled out the circumstances that I described earlier. In other words, it may well be argued that in order to properly interpret a general health test, you need to know whether someone is pregnant. But when it came to the specific issue of whether we would support a prohibition, we did not oppose that prohibition.95959595Crossin, Sen TrishSenator CROSSIN7Y6NTALP00—My question is to Senator Newman, the Minister Assisting the Prime Minister on the Status of Women. Minister, isn't it a fact that all of the community women's organisations defunded by the Howard government have spoken out against the GST over the past 12 months? Isn't the defunding of these community groups this government's payback for community opposition to its tax package? Is the minister aware of the statement by the WEL spokesperson, on the 7.30 Report last night, who said they had been `critical, highly critical, of this government's policies in a range of areas that directly impact on the quality of women's lives. The government now wants us to be quiet, and that's what they're attempting to do by defunding us'? Doesn't this make a mockery of the Prime Minister's social coalition, especially when the government will go to any length to muzzle all disagreement to give the illusion of support for the government's policies?9595Newman, Sen JocelynSenator NEWMANBE4TASLPFamily and Community Services; Minister Assisting the Prime Minister for the Status of Women10—I draw the Senate's attention to the two organisations that got either little or no funding from Labor while they were in government—the guides and the Women's Action Alliance would not have too much to say thank you for to the previous government, yet they have had assistance from this government. If we are going to talk about WEL, let us be honest—we are not talking about all women's organisations; we are talking about the organisation that fronts for the ALP, and I say that very advisedly.AX5EVANSSenator Chris Evans—They've got a bit to say about you, too.BE4Senator NEWMAN—I have only four minutes and I wanted to make sure I put it all down, Senator. In 1972 I was a founding member of WEL. In 1975 I left WEL—LD4ALSTONSenator Alston—When it became unWEL?BE4Senator NEWMAN—Yes, they became very unwell. I was first of all a member in Sydney. But later, in 1975, in Launceston they called an emergency meeting to decide whether they were going to join the fight to get Gough Whitlam back into government—they were maintaining the rage. The alternative was: would they maintain their feminist principles and work—Opposition senators interjecting—10000PRESIDENTThe PRESIDENT—Order! Labor senators will cease shouting. You are absolutely disorderly. There is an appropriate time to pursue and debate the matter later if you wish. BE4Senator NEWMAN—Madam President, they do not like to hear it. This is history. People who go back as far as I do know it. WEL decided to walk away from their feminist principle of getting women into parliament, and their history shows they have not done anything about that or about maintaining women's issues on the national agenda. They have been very slow.Honourable senators interjecting—10000PRESIDENTThe PRESIDENT—The behaviour of senators is absolutely out of order. It is interfering with question time, making it impossible for other people to listen. It is totally disorderly.BE4Senator NEWMAN—I go back a long way in working for women and women's refuges in very practical ways.9L6MACKAYSenator Mackay—You are a disgrace as a minister.10000PRESIDENTThe PRESIDENT—Senator Mackay, I draw your attention to standing order No. 203—persistent and wilful interjections are disorderly and may be reported to the Senate.BE4Senator NEWMAN—I was a founding member of two women's refuges in the 1970s, when it was not quite as crash hot an issue to be associated with them as it is these days. It was regarded as something only lesbians would have any interest in, Senator Faulkner—you may be interested. I was a strong public advocate for the need for women's refuges.5K4FAULKNER Senator Faulkner—Madam President, I raise a point of order. I don't know what that comment was about—10000PRESIDENTThe PRESIDENT—That's not a point of order, Senator.5K4FAULKNER Senator Faulkner—Madam President, with respect, I think this minister is absolutely out of control. I was sitting here trying to listen to an extraordinarily garbled answer. I do not know what she is talking about or why she is directing comments like that across the chair to me. You know that is out of order. I do not know what she is responding to or why she is saying such things. It is obviously very insulting to many people in the community. You really ought to draw this minister's attention to the proper forms of the House and to the question that has been asked of her. She ought to be directed to respond sensibly and seriously to a question that has been asked of her. She should do so through you and she should be drawn to order by you if she subverts the standing orders of this place in the way she has just been doing.10000PRESIDENTThe PRESIDENT—There is no point of order.BE4Senator NEWMAN—I simply made the point that it is okay to be an advocate when everybody else is endorsing it, but when people are very suspicious of some new change in the community, like women's refuges in 1974 and 1975, then it takes a bit of guts to get out and advocate for women. I would like to conclude my answer by saying that the first funding round, which has been completed and announced, was totally at arm's length from me. It was done by a selection panel, which made recommendations to me and I accepted those recommendations. Women's organisations have not in fact been defunded. There are women's organisations still waiting to hear whether or not they have been funded.9596Crossin, Sen TrishSenator CROSSIN7Y6NTALP00—Madam President, I ask a supplementary question. Along with the muzzling of groups by withdrawing all their funding, hasn't the Howard government also been gagging any critical feedback from women by cutting 30 community groups from the upcoming women's round table consultations? Can the minister confirm Pru Goward's statement last night that this was aimed at creating `a more intimate format'? How does this narrowing of consultation fit with the minister's 1996 statement that she wanted to `listen to the views of small organisations out of the Sydney-Melbourne-Canberra axis'? Is there anything this government will not do, any length of hypocrisy it will not go to, to squeeze out all independent community comment on the disastrous effects of its policies on women?9596Newman, Sen JocelynSenator NEWMANBE4TASLPFamily and Community Services; Minister Assisting the Prime Minister for the Status of Women10—Once again, one minute will not do the job. The women's roundtable was established for a two-day session by me so that women's organisations could get a better chance of having an ex change of views with government and be more valuable to them. That was at their request because the programs we inherited from Carmen Lawrence did not give women's organisations an opportunity to have their own agendas raised with the government. So that is the first thing. The second thing is that the women's organisations have come to the government again and said that they would like more time to raise issues because the number of organisations that would be there meant that there was very constrained time for discussion. We looked to see what we could do to make sure that it was a more meaningful and valuable experience for women's NGOs; therefore, we have reduced the number of women from about 50 to about 40. I think the ALP is running up a blind alley on that, too. In addition, I have a group of colleagues who work with me in each state and territory to consult with women in roundtable discussions. We have a multitude of mechanisms for consulting with women. (Time expired)95979597Ferris, Sen JeannieSenator FERRIS5L6SALP10—My question is to the Minister for Regional Services, Territories and Local Government, Senator Ian Macdonald. Will the minister please inform the Senate of the very important ways in which the Howard government has assisted regional communities since 1996. How will these initiatives assist regional Australia in dealing with change?9597Macdonald, Sen IanSenator IAN MACDONALDYW4QLDLPRegional Services, Territories and Local Government10—This question demonstrates Senator Ferris's continuing interest in regional Australia—an interest which, regrettably, is not shared by the opposition spokesman in this chamber on regional matters. Senator Ferris was in the South Australian pastoral districts just yesterday consulting with people in the bush, listening to their problems and advising them of the initiatives of the government. Change is upon us in the late industrial age as we move into the early information technology age. That change is inevitable. Many in rural and regional Australia have embraced that change and have done very well. The government is helping with that change. Perhaps the best we can do for rural and regional Austral ia is to get rid of that tyranny of distance that has held regional Australia back for so long. We have done that with Senator Alston's initiative in the telecommunications area. With telecommunications you can kill that distance that has held Australia back.The GST has been a tremendous thing for rural and regional Australia. It is a policy that the National Farmers Federation demanded for many years.Opposition senators interjecting—10000PRESIDENTThe PRESIDENT—Order! The level of noise and the extent to which senators are breaching the standing orders is unacceptable. I ask them to take note of the standing orders and behave accordingly.YW4Senator IAN MACDONALD—The National Farmers Federation embraced the GST because it meant $4.5 billion annually off our costs of exports. It meant that every farmer in Australia would save about $7,500 in the removal of costs. No matter what the Labor Party ever says, promises or does in regional Australia, never will it hide the fact that it opposed the tax reform package. It opposed the cuts in costs to people in rural and regional Australia. Part of that initiative by the Howard government has been the reduction in transport costs. The new Labor shadow spokesman on regional matters, Mr Martin Ferguson, lives 10 kilometres from the centre of Melbourne. He would not understand the importance of transport and transport costs to people who live in regional and rural Australia. Mr Ferguson cannot be expected to understand that. The reduction in fuel costs, some 23c a litre on transport vehicles, means real and big savings for those of us who live in the bush.Perhaps the best thing we have done to help regional Australians cope with the change is to get the big picture right. Our management has reduced interest rates away from Mr Beazley's black hole of the $10 billion deficit. We have reduced interest rates very substantially and given businesses in rural and regional Australia the opportunity to get ahead. Ten years ago under Mr Beazley local governments were paying almost 15 per cent for their loans. They are now paying six to seven per cent on indicative rates—a saving of around eight per cent. If you cast that across the average debt of local government, that is a saving each year of some $800,000 to each council.All the Labor Party and Mr Ferguson can do—as he did in the parliament yesterday—is to criticise our initiatives in cutting down the cost of transport to rural and regional Australia. He does not have a policy. Mrs Kernot said she had been working on it for ages and that she had handed a lot over to Mr Ferguson. I call upon Mr Ferguson to release some of that policy. Do what Mr McMullan said he had asked him to do yesterday: release some policies. Let us see what you have for rural and regional Australia. Let us see what you have that might match what the government has done for the people in that area. Do what Mr McMullan said: get your policies out so we can see what you have got. (Time expired)9598Ferris, Sen JeannieSenator FERRIS5L6SALP10—Madam President, I ask a supplementary question. Could Senator Macdonald explain the way in which the Rural Plan works for regional Australia. This was one of the very important issues raised at the meeting yesterday.9598Macdonald, Sen IanSenator IAN MACDONALDYW4QLDLPRegional Services, Territories and Local Government10—I thank Senator Ferris. Senator Ferris was in the pastoral districts to explain to the pastoralists—to the country people there—about this initiative of the government, Rural Plan, whereby the government will provide a community with some money to work out a strategy. Senator Ferris is asking the question because she is trying to help the Labor Party, who occasionally would get out into the bush. We hope Mr Ferguson, unlike Mrs Kernot, might get out there and tell them about Rural Plan, which is a tremendous initiative. It builds on all our other rural initiatives—the $1½ billion that Senator Hill has put into the rural environment and the $70 million rural transaction centre initiative, the first of which the Prime Minister will be opening at the end of this month. Those are the sorts of initiatives which you should know about. Regrettably, no-one on the Labor side seems to know about it. They do not promote it, but they are great initiatives for the bush. Senator Ferris, I do thank you for alerting the people in your area to Rural Plan and the good things that it can do for the South Australian pastoral community.95989598Conroy, Sen StephenSenator CONROY3L6VICALP00—My question is to Senator Minchin, the Minister for Industry, Science and Resources. Does the minister recall telling the Senate yesterday that `expenditure on research and development under this government is actually higher than it was ever under any full year under the Labor government'? Isn't it the case that, according to the minister's own science and technology budget statement, while this government's spending on R&D for 1999-2000 is $638.6 million, spending by the previous Labor government on R&D was higher in three previous full years—that is, $713.1 million in 1992-93, $852.1 million in 1993-94, and $888.6 million in 1994-95?Honourable senators interjecting—10000PRESIDENTThe PRESIDENT—Order! Senator Conroy, I have not heard the last part of your question because of senators shouting across the chamber.3L6Senator CONROY—When will the minister correct this blatant mislead, which was obviously made in a desperate attempt to defend this government's appalling record on R&D?9598Minchin, Sen NickSenator MINCHINJX4SALPIndustry, Science and Resources10—It does appear that Senator Conroy did not actually think about the question he asked yesterday before he asked it when he was handed it. His question yesterday clearly was about the level of business expenditure on R&D in Australia; it was not about the level of government support for R&D. I answered that question. If he had wanted me to answer another question he should have asked it. I answered that question. I said in my answer, quite correctly:Expenditure on R&D under this government is actually higher than it ever was in any full year under the Labor government.My claim is absolutely correct. I am prepared to table this very good table of expenditure on R&D by business enterprises from 1968-69 to 1997-98, which clearly establishes the accuracy of the statement I made yesterday.9599Conroy, Sen StephenSenator CONROY3L6VICALP00—Madam President, I ask a supplementary question. Does the minister also recall saying to the Senate in relation to business expenditure on R&D that `R&D is at what are otherwise record levels'? Is it not the case that the most recent ABS statistics on business expenditure on R&D showed that while BERD was at $4,043.8 million in 1997-98, this was down on the levels achieved in the two previous years, namely 1995-96, of $4,343 million; and 1996-97, of $4,200 million? Will the minister now correct this mislead, or is he determined not to let the facts stand in the way of this desperate story?9599Minchin, Sen NickSenator MINCHINJX4SALPIndustry, Science and Resources10—Once again, the ALP too readily glosses over exactly what ministers like me actually say. He is claiming that I was wrong to say that R&D is at what are otherwise record levels. I chose my words carefully. I said `otherwise' record levels. What Mr McMullan failed to point out in his press release was that I referred to the peak years immediately preceding it. This table again makes my point. The last two years under us have been the second and third best years ever for business R&D in Australia. Yes, we did come off a record high in 1995-96 when we were both in government but, as I say, the figures were artificially inflated by that being the peak of the rorting of the R&D syndication mechanism, which you had already announced you were going to do something about. So again, my statements were absolutely correct.BH4HILLSenator Hill—Madam President, I ask that further questions be placed on the Notice Paper .Miscellaneous95999599959915:03:009599Mackay, Sen SueSenator MACKAY9L6TASALP00—I move:That the Senate take note of the answers given by the Minister for Family and Community Service (Senator Newman), to questions without notice asked by Senators Mackay and Crossin today, relating to funding of women's organisations and the answer given by the Minister for Communications, Information Technology and the Arts (Senator Alston) to a question without notice asked by Senator Harradine relating to pre-employment pregnancy test requirements.Finally today the cat was let out of the bag in relation to why women's organisations that were defunded were defunded. This minister said it herself. She alleges that WEL is a front for the Labor Party. She said it. The cat is out of the bag. I wonder how many women there are on the other side of the chamber who are members of WEL.WH4McGAURANSenator McGauran—Who would want to be?9L6Mackay, Sen SueSenator MACKAY—It gets worse and worse. I wonder how many women on the other side of the chamber are members of WEL. I wonder how many women senators in the coalition are utterly mortified and embarrassed by the performance of this minister in relation to this incident regarding the funding of women's organisations. There are a number of women on the other side of the chamber who have a good attitude in relation to issues that affect women. I have had conversations with them. When this minister got up yesterday and talked about the sisterhood—I am assuming that she meant women on this side—I looked at the faces of the women on the other side of the chamber and they were embarrassed. They were absolutely mortified.Similarly, when Senator Newman talked about `those feminists on the other side of the chamber' there were a number of women on the other side of the chamber who were also really embarrassed. I know for a fact that there are a number of women in the coalition who are embarrassed about the performance of this minister and the government in relation to women. Senator Coonan took the extraordinary action—correctly so—of cautioning the Prime Minister prior to the last election, saying: `If you do this, if you go down this track in relation to women, you will lose votes.' Senator Coonan was absolutely correct because the gender gap for the first time in Australian history went Labor's way in relation to women. Why is that? It is because of the policies of this government.To add insult to injury, we had outrageous statements by Ms Pru Goward last night on the 7.30 Report. She said that the basic thrust in relation to the defunding of women's organisations was to professionalise the women's movement. That is utterly patronising. I wonder how the Girl Guides feel about that. I wonder how the Catholic Women's League feel about that. I wonder how the Older Women's Network feel about that. I wonder how they feel about being described as unprofessional, about the fact that they have been defunded because Ms Pru Goward and the minister decided that they wanted to professionalise the women's movement. They were absolutely outrageous comments which the minister should be completely embarrassed about. I am pleased Senator Patterson finds it so amusing because it is not funny to the women out there in the Catholic Women's League, in the Older Women's Network and in the Girl Guides that have not been funded because they are not regarded by this government as professional enough to be consulted in relation to women's policy. Those statements were outrageous.Yesterday we had a situation where the minister was embarrassed because there were a number of stories in the media in relation to the issue of defunding women's groups. This is the very same minister who was asked last sitting week by me and by a number of other senators as to whether this was likely, whether it was going to be the case. In fact, she was asked the day before the announcement was made about the defunding of women's organisations. What was her normal disdainful and patronising response to those questions? `I'm not going to deign that with an answer.' That is what she said. The very next day, she put out a press release confirming what we were alleging about the defunding of women's groups. She had no intention of answering that question.Then we had some interest from the media. All of a sudden, $50,000 worth of discretionary funding was found out of her own department. That is fine; good. What we want is to get all of those women's organisations refunded, even the ones that this government regards as Labor Party fronts, like WEL. It was interesting today to hear the meandering through Senator Newman's past as to her experience with WEL in relation to their decision whether or not they would support the Whitlam government at that point. That was the reason why WEL did not receive the funding. I wonder what the Catholic Women's League have done to Senator Newman. I wonder what the Older Women's Network have done to Senator Newman. I wonder what the Girl Guides have done to Senator Newman. This minister is an absolute disgrace. She cannot even front when the Office of the Status of Women are at estimates. She ought to be deprived of this portfolio. (Time expired)15:10:009600Patterson, Sen KaySenator PATTERSONLI4VICLP10—One of the things that Labor is best at is myths and misrepresentation. From what Senator Mackay has just said, you would think that there is no money left for a second round of funding. What has happened is that $300,000 has been given out in the first round to three organisations and, as Senator Newman said in answer to a question, on a triennium basis for the first time women's organisations have been funded for three years in order for them to make plans and organise themselves ahead, and there is $200,000 still to be allocated to organisations in the second round.I have to admit a vested interest as a member of the Girl Guides Association of Australia. Only last Saturday, I completed a term on the council of the Victorian Girl Guides Association. Whenever I have been approached by anybody in guiding as to whether they should have government funding I have said, `No, I don't think we should ever apply for government funding.' One of the reasons I have always said that is that from my time in guiding, from the age of 10, we were always trained and brought up to work for what we had. That is why guiding and scouting has `Cents for service', what was called in the olden days `Willing shilling', in order to be able to fund ourselves. So my preference is not for our association to have funding. There are others in my organisation who may disagree with that.In general, we have managed, and we managed under Labor with no funding whatsoever out of OSW for general grant funding which the Guides got last year. Having expressed my personal preference, I want to say that it is misleading for Labor to say that we are going to defund organisations, when $200,000 remain. It is also misleading to say that Senator Newman magically found some $50,000 for the National Council for Single Mothers, when in fact she has diligently asked every minister to look at ways and means in which their portfolios can fund women's organisations out of mainstream budget lines.We have seen that happen out of the Office of Disability—$50,000 for sport for women with disabilities. We have seen funding for rural women through the Department of Agriculture, Fisheries and Forestry. As Senator Newman said, organisations then have direct contact with the principal departments, so they are meeting with officers and bureaucrats who are working on policy and developing the government's responses, and have first-hand access, so that rural women feed into the Department of Agriculture, Fisheries and Forestry and women with disabilities have direct contact with the Office of Disability. So Senator Newman actually practised what she was preaching by funding the National Council for Single Mothers out of the Department of Family and Community Services. That is the approach she has been taking.7Y6CROSSINSenator Crossin—She finally gave money to the custodial parents rather than to the non-custodial parents.LI4Patterson, Sen KaySenator PATTERSON—You will have your time soon, Senator Crossin. Regarding the women's roundtable, people were shouting on the other side about reducing the number, but when Carmen Lawrence was minister for women's affairs she would float into the women's roundtable, give her introductory speech, and then float out again. They never saw Carmen Lawrence. She would float in and float out.5L6FERRISSenator Ferris—She could not remember to come back.LI4Patterson, Sen KaySenator PATTERSON—She forgot to come back; that is right, Senator Ferris. They said that when Senator Newman came she stayed for the whole roundtable and they were very impressed. What Senator Newman has also done is appoint one member or senator for each state to go around and talk to women, to be a conduit back to her. The Labor Party did not have this. Senator Ferris has had 10 roundtables in her state. We meet with Senator Newman in her office on a regular basis. She questions us about what women are saying in our states. We meet on a regular basis in her office. Do not tell us she is not getting information. She is using us to tell her what women are saying in those roundtables. To have the Labor Party saying that there has been a decrease in consultation is outrageous. (Time expired)15:15:009601Bishop, Sen MarkSenator MARK BISHOP2L6WAALP00—I should at the outset declare an interest, still being an officer of the largest women's organisation in Australia—the SDA. I wish to concentrate on answers by Senator Newman and Senator Alston concerning pregnancy testing in the workplace and defunding of various women's groups and organisations around Australia. Those questions and answers go to the bona fides of the government in this area of women's interests, women's advancement and the need for professionalism, as stated by the minister. The respective answers highlight the ineptitude of the government. When the current government came to power, it made much ado about a new approach, a new focus, about being more inclusive, more consultative. All of those individuals on the outer, or previously excluded, were to be consulted and made part of the new team. The issues covered in the question by Senator Harradine and other senators to Senator Newman put the lie to that proposition.The issues covered by the questions go to the heart and soul of equal opportunity in Australia. In 20 years in public life I can recall being involved in many campaigns on behalf of female workers and women generally. There were campaigns for equal pay in the seventies, maternity leave by award coverage, superannuation and financial security for low paid private sector workers, sexual harassment-free workplaces and, finally, the right to choose to return to work after the birth of a child and the right to child care and equity based assistance from government. There was nothing remarkable—just incremental change, gradual improvement, affecting half of the population, giving them the right and the ability to choose to work for reward. Critical to the decision has been consideration of policy matters relating to child care, maternity leave and employment access.For almost the last 15 or 20 years it has been settled law in Australia that discrimination against individuals on a range of grounds is illegal. Nearly every award contains a provision to outlaw discrimination on grounds of age, gender, sexuality, ethnic origin and religious belief. Yet the government, Minister Alston and Minister Newman, on behalf of the Office of the Status of Women, say nothing. They offer no defence and make no explanation as to why the Australian government try to hurt pregnant women in international forums.Nearly all women in Australia at some time in their life want to have a family. Most women and families need income support in the years of childbirth and child-rearing. Many women and families need, or want, the mother to return to paid employment. Yet here we have Minister Alston apparently acquiescing in the decision of Minister Reith in international forums saying that the position of the Australian government is that female workers should undergo pregnancy testing as a pre-employment condition. Minister Alston apparently believes that half the population of Australia, in their child-bearing years, should be pregnancy tested to obtain the right to work.If the government have made a simple mistake, the sensible thing to do would be to fess up, to outline the facts and to move on to issues of concern. But they have not done that. They have tried to cover up their delegation to the ILO conference and their voting behaviour and pattern. We hear no explanation; we hear no apology. The conclusion is blindingly obvious. The government—these ministers—cannot bring themselves to tell the entire story, to tell the truth. They pay lip-service to ideas and principles of equal opportunity for female workers. The real position, as disclosed on the other side of the world, is to line up with nine or 10 minor countries out of a total of 180 and give the quiet nod to discrimination practices that have been illegal in Australia for 15 or 20 years. This is a shameful and backward position. Now is the time for the respective ministers to unequivocally clear the record and put the position straight.Minister Alston, Minister Newman and Minister Reith, in the other place, should state the position of the Australian government as one of support for pregnant workers, opposed to any form of discrimination against female workers, and particularly opposed to pre-employment pregnancy checks for female workers. We have not had that clear statement from Minister Alston today. He tried to get around it by saying that the Australian delegation changed its position—had a number of positions. (Time expired)15:20:009602Ferris, Sen JeannieSenator FERRIS5L6SALP10—What a diatribe! What a diatribe from the party of myths and legends—not a single policy anywhere from the party of myths and legends! We heard some myths earlier in question time today and some incredible screaming from Senator Mackay as she tried to perpetuate the myth that in some way the coalition had defunded women's organisations. What a myth.7Y6CROSSINSenator Crossin—You have.5L6Ferris, Sen JeannieSenator FERRIS—Senator Crossin, you know better. We have maintained a minimum of $500,000 annually most years, including this one. In fact, this year the level of funding has been higher than that. Prior to the announcement of the funding for the major organisations, $125,000 had already been provided from OSW for operational activities by women's organisations for the first quarter of this financial year, and very soon a further round of project grants of up $25,000 each for women's organisations to undertake projects to advance the status of women and to strengthen their organisations will be made. This will bring the total funding for women's organisations' activities this year to well over $500,000.Our strategy to assist organisations which provide services to women includes not only the OSW funding but also a recognition that many of the issues of concern to women cut across portfolios held by other ministers. We encourage women's organisations to work with those ministers' offices. Last year, in working with other ministers' offices in this way, we actually awarded an extra $350,000 to organisations from other Commonwealth areas. I would have thought that was a record of which we could be very proud.In her contribution this afternoon, Senator Patterson referred to a number of female senators from around Australia who represent the minister in various ways in their home state. I am very proud to say that I am one of those senators. I frequently have had the opportunity to meet with women from a wide range of areas of interest—women in the home, women in the work force, multicultural women, indigenous women and women who have particular needs for children in care and young people in care.5K4FAULKNER Senator Faulkner—I bet they gave you a hard time.5L6Ferris, Sen JeannieSenator FERRIS—I have had 10 of these roundtables around the state and I will tell you what they gave me a hard time about, as Senator Faulkner has just commented. It was the fact that never before had they had the opportunity to be listened to by a federal senator.5K4FAULKNER Senator Faulkner—I bet they never want to do it again.5L6Ferris, Sen JeannieSenator FERRIS—Never before had they been invited to meet with a female federal senator, because nobody in my state had previously shown any interest at all.5K4FAULKNER Senator Faulkner—First and last time.5L6Ferris, Sen JeannieSenator FERRIS—Senator Faulkner, I have met several times with many of the women and they cannot wait to come back and meet again, because on each occasion the contributions that they have made in those meetings with me have been taken up with the relevant ministers, and they have been followed through to the extent that I have had many letters thanking me for the issues that have been resolved in this way.In particular, I would like to mention the indigenous women's roundtables. I have had one in Port Adelaide and one in Port Augusta. I have spoken about them before in this place. They have been very successful. They have raised issues with me about indigenous family violence. Those issues have been taken up with Minister Herron and I am very glad to say that they have now been taken up as policy. Senator Crossin, as you well know, I have taken up those issues from your Northern Territory during the parliamentary break.7Y6CROSSINSenator Crossin—Who represents the Northern Territory in your little meetings with Senator Herron?5L6Ferris, Sen JeannieSenator FERRIS—Those comments that were made there were also passed on to Senator Herron and were incorporated in policy positions.I come from an age—as you do, Madam Deputy President—when it was very difficult to fight for women's issues. On many occasions we had difficulty in the work force because there were not many women. When I started work, I was one girl with 80 men. I was an 18-year-old in an organisation where women were not normally employed. It was not easy. We have not forgotten those fights and we never will. On this side of the chamber we represent women as strongly and effectively as they ever have been represented. (Time expired)15:25:009603Collins, Sen JacintaSenator JACINTA COLLINSGB6VICALP00—I am relieved that in today's question time session taking note of answers we have allowed scope to deal with Senator Harradine's question in relation to the pregnancy issue. Following Senator Ferris's comments, the facts of the matter still have not come out. Like Senator Harradine, I was fairly dissatisfied with the response from Senator Alston and I was going to be asking Senator Newman pretty much the same question. Given Senator Newman's response to other questions in question time today, I doubt that I would have had a satisfactory answer from her. Even though we have taken note of this issue today, neither Senator Patterson nor Senator Ferris has dealt with this issue. Perhaps it is embarrassment. Perhaps the next government speaker might throw some more light onto it. I see Senator Ferris leaving the chamber. The facts of the matter are these. How on earth did that survey question ever get filed on behalf of the Australian government? As Senator Alston has already admitted, the government then retreated from that situation, but how on earth did it every happen in the first place? Senator Alston is right. The answer we gave to that survey is inconsistent with Australian law. But that still does not answer the question: how on earth did it ever happen in the first place?Let me go to the precise question. I do not need a lesson from Senator Alston on ILO practice, procedure or correct government documentation to the ILO. I have the relevant documentation here. The question that was asked and completed by the Australian government was:When a woman is applying for employment, should employers be prohibited from requiring a test for pregnancy or a certificate of such a test, . . . Should an employer be prohibited? The answer quite clearly was no—full stop. Then we go on to a comment—not a caveat. This is not a caveat on the answer of no. This is simply a comment. The comment can basically be described as, `We can justify allowing this to happen on the basis that it is not the act itself but only if discrimination occurs that is the problem.' But as Senator Harradine already pointed out in question time today, if a woman wants a job she is going to comply. If a woman wants the job and this is a condition established by the employer, then the woman is going to comply.Let me highlight another inadequacy with the government's response. The government talks about the problem of medical tests. If a general medical test is required for employment, then pregnancy may impact on that test. As I said to a journalist during this debate, the answer to that situation is quite simple. It is very simple. If you need to know if a woman is pregnant to justify some other test, then it can be a confidential matter between the doctor and the woman. It does not have to be a test that the employer is aware of. Any adequate practitioner can keep such information confidential to themselves. It does not have to go to the employer.Again, the Australian government was sorely embarrassed in this situation. It was embarrassed to join only these countries: Argentina, Bahrain, Guyana, Indonesia, Jamaica, Papua New Guinea and Zimbabwe. I hope women on the other side are embarrassed by this performance. Our representatives at the ILO did eventually back away from this position, thank God. But how on earth did we get into this embarrassing position in the first place? Was there no woman present on the delegation? Maybe that is one highlight of why it might have occurred. Certainly, I know it would not have occurred from representation by our government in the past. I know many adequate women officers within the Department of Employment, Workplace Relations and Small Business who would never have allowed this situation to arise in relation to a survey.The only government response that I have seen so far is from Tony Abbott, Minister for Employment Services, saying the contrary to today's media reports. The media reports were accurate. We have not had from the government to date an accurate response as to how on earth it put itself in this position in an international forum and embarrassed all Australian women—because that is what it did. Its treatment of the funding of women's organisations is just further embarrassment. It is not professionalising the women's movement, as Pru Goward said last night. It is actually highlighting what it is really about: representing only the right woman. (Time expired)15:30:009604Tchen, Sen TsebinSenator TCHEN86YVicLP10—Firstly, may I do what Senator Bishop did and declare my interest in these women's issues. It is not a personal interest, unlike Senator Bishop. I am not sure which organisations Senator Bishop mentioned that he is a member of, but I am adviser to Melbourne's Asian Women's Association, which is an association that by declaration does not receive government funding. It is, like many Asian associations, a community association which depends on its own effort.I am somewhat at a disadvantage in that I was under the impression that when we take notice of answers, we take notice of one particular answer. But when Senator Bishop suddenly got up and started carrying on about how women's rights have developed—quite properly—and how women had gained rights in this country, I must admit that I spent something like four minutes trying to pick up how it would differ from the alleged defunding of women's organisations.5K4FAULKNER Senator Faulkner—It's a good speech. You should read it in Hansard .86YTchen, Sen TsebinSenator TCHEN—Unfortunately, Senator Faulkner, Hansard does not work that fast. However, I assume that there are actually two motions to take notice of.10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Senator Tchen, there is only one motion to take notice of, and it is to take notice of answers given by Senator Newman in response to a number of opposition questions, and also the answer given by Senator Alston to Senator Harradine's question. That is the motion.86YTchen, Sen TsebinSenator TCHEN—Thank you, Madam Deputy President. I am in debt to you for your direction. In that case, can I first refer to Senator Newman's answers. It occurs to me that, obviously, senators on the other side did not listen to the answers given by the minister. Much has been made of certain organisations being supposedly defunded, but there are two things that the minister said which are fundamental to the whole issue. Firstly, she said that it is this government's policy that funding should be carried out by line departments. In other words, departments like the Office of the Status of Women should assist women's groups to start activities and encourage them to carry out activities which will improve the position of women in society, as an initial step, and, once the groups have established their direction of interest, funding should be gained from departments, and other sources, which are more directly involved in those areas. For example, as the minister said, last year $350,000 additional funding was obtained by women's organisations from other sources. In fact, it is one of the areas in which the Office of the Status of Women actually assists organisations to obtain funding.The second thing that the minister said which seemed to escape the attention of the senators on the other side is that there is a second round of funding to come, consisting of something like $250,000, which is half of the funding that the Office of the Status of Women usually allocates. So it is totally premature for the senators on the other side to get upset about a report on organisations which are supposedly missing out. I will make two points about Senator Bishop's and Senator Collins's comments. Their tirades seem to make two fundamentally flawed assumptions. The question which is being asked should be regarded on a medical ground because every employer has the responsibility to know the wellbeing of their employees. If you assume that automatically all employers are antiwomen, yes, you have a concern. (Time expired)10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Order! The time for the debate has expired.15:36:009605Harradine, Sen BrianSenator HARRADINE6H4TASIND00—I seek leave to make a comment for 30 seconds on that matter.Leave granted.6H4Harradine, Sen BrianSenator HARRADINE—I thank the Senate. All I wanted to say has already been said—and said much better than I would have said it—by Senators Collins and Bishop. All I want to do now is to suggest to the government that they have a very good look at this. I know it is difficult for a minister representing another minister—in this case Senator Alston, representing Mr Reith—to be fully over the brief, but I do believe that what is in the brief is a diversion and does not respond to the very substantial questions that I raised. I would hope the government might see its way to make perfectly clear to all and sundry what its true position is on this particular matter and why what took place did in fact take place.Question resolved in the affirmative.960510001CLERK ASSISTANTThe Clerk—A petition has been lodged for presentation as follows:9605176H4Harradine Sen BrianTo the Honourable the President and members of the Senate in Parliament assembled. The humble Petition of the Citizens of Australia, respectfully showeth:That we(1) Affirm the importance of quality education for all the children of this Commonwealth of Australia irrespective of their religion, nationality or sex,(2) Support the rights of parents to have freedom of choice of the school for their child;(3) Support the right of all non-government schools to maintain their distinctive moral values and foundational ethos;(4) Support the freedom of choice in staffing of all Churches and religious organisations.(5) Support freedom of religion and the right of all Churches and religious organisations to maintain their distinctive foundational ethos.Your petitioners therefore humbly pray that the Senate oppose any attempts to introduce legislation that would jeopardise these freedoms and rights and which would force Schools, Churches and religious institutions to compromise their distinctive moral values and foundational ethos.And your petitioners, as in duty bound, will ever pray.Senator Harradine6H4Senator Harradine(from 17 citizens)Petition received.Notices96069606Senator Woodley to move, on the next day of sitting:That there be laid on the table by the Minister representing the Minister for Transport and Regional Services (Senator Macdonald), no later than 4 pm on 20 October 1999, the Bureau of Safety Investigation's draft report into the Class G airspace trial.Senator Greig to move, on the next day of sitting:(1) That the Anti-Genocide Bill 1999 be referred to the Legal and Constitutional References Committee for inquiry and report by 30 June 2000, together with the following matters: The adequacy of Australia's implementation of the Convention for the Prevention and Punishment of the Crime of Genocide and other relevant international obligations, with particular reference to: (a) the formulation of an appropriate definition of genocide; (b) the status of the convention under Australian law, particularly with reference to the decision of the High Court in Minister of State forImmigration and Ethnic Affairs v Ah Hin Teoh ; (c) laws in other jurisdictions that have implemented the convention; (d) the appropriateness or otherwise of the retrospective application of the provisions of the bill; (e) the implications of the Federal Court decision on 1 September 1999 in Nulyarimma v Thompson ; (f) the extraterritorial application of Australian law, particularly as it may relate to East Timor; and (g) the relationship between Australian and international criminal law enforcement mechanisms for bringing perpetrators of genocide to justice.(2) That the committee, in its report, include suggested draft amendments to the bill.Senator Jacinta Collins to move, on the next day of sitting:That the time for the presentation of the report of the Employment, Workplace Relations, Small Business and Education References Committee on the effectiveness of education and training programs for indigenous Australians be extended to 9 December 1999.15:37:009606Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—I give notice that, on the next day of sitting, I shall move:That the provisions of paragraphs (5) to (7) of standing order 111 not apply to the Family and Community Services Legislation Amendment (1999 Budget and Other Measures) Bill 1999, 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 sitting and seek leave to have the statement incorporated in Hansard .Leave granted.The statement read as follows— STATEMENT OF REASONS FOR INTRODUCTION AND PASSAGE IN THE 1999 SPRING SITTINGSFAMILY AND COMMUNITY SERVICES LEGISLATION AMENDMENT (1999 BUDGET AND OTHER MEASURES) BILLThe Bill provides for the implementation of the following measures announced in the 1999 Budget;. simplification of the isolated and secondary student boarder concession,. extension of the definition of `independent employment' for the purposes of the youth allowance Family Actual Means Test:. implementation of decisions relating to data matching;. expansion of eligibility for Student Financial Supplement Loans; and. introduction of new income support arrangements for separated parents sharing care of a child.As some of the initiatives are to commence on 1 January 2000, it is essential that the enabling legislation be planned in the 1999 Spring Sittings.(Circulated by authority of the Minister for Family and Community Services)Committees96079607960715:38:009607Calvert, Sen PaulSenator CALVERT5F4TASLP10—I present the 17th report of 1999 of the Selection of Bills Committee.Ordered that the report be adopted.5F4Calvert, Sen PaulSenator CALVERT—I seek leave to have the report incorporated in Hansard .Leave granted.The report read as follows—SELECTION OF BILLS COMMITTEEREPORT NO. 17 OF 19991. The Committee met on 12 October 1999.2. The committee resolved to recommend-(a) That the following bills be referred to committees:Bill titleStage at which referredLegislation committeeReporting dateA New Tax System (Tax Administration) Bill 1999 (see appendix 1 for a statement of reasons for referral)immediatelyEconomics29 November 1999Social Security Amendment (Disposal of Assets) Bill 1999 (see appendix 2 for a statement of reasons for referral)immediatelyCommunity Affairs22 November 1999Superannuation Legislation Amendment Bill (No. 4) 1999 (see appendix 3 for a statement of reasons for referral)immediatelySelect Committee on Superannuation and Financial Services25 November 1999Taxation Laws Amendment Bill (No. 8) 1999 (see appendix 4 for a statement of reasons for referral)immediatelyEconomics29 November 1999(b) That the following bills not be referred to committees:. Australian Tourist Commission Amendment Bill 1999. Authorised Non-operating Holding Companies Supervisory Levy Determination Validation . Bill 1999. Border Protection Legislation Amendment Bill 1999 . Convention on Climate Change (Implementation) Bill 1999. Equal Opportunity for Women in the Workplace Amendment Bill 1999. Export Finance and Insurance Corporation Amendment Bill 1999. Financial Sector Reform (Amendments and Transitional Provisions) Bill (No. 2) 1999 . General Insurance Supervisory Levy Determination Validation Bill 1999. International Tax Agreements Amendment Bill 1999. Life Insurance Supervisory Levy Determination Validation Bill 1999. National Residue Survey Levies Regulations (Validation and Commencement of Amendments) Bill 1999. Retirement Savings Account Providers Supervisory Levy Determination Validation Bill 1999. Superannuation Supervisory Levy Determination Validation Bill 1999The Committee recommends accordingly.The Committee deferred consideration of the following bills to the next meeting:(deferred from meeting of 29 June 1999). Customs (Tariff Concession System Validations) Bill 1999(deferred from meeting of 10 August 1999). A New Tax System (Pay As You Go) Bill 1999(deferred from meeting of 21 September 1999). Taxation Laws Amendment Bill (No. 9) 1999(deferred from meeting of 28 September 1999). Choice of Superannuation Funds (Consumer Protection) Bill 1999. Diesel and Alternative Fuels Grants Scheme (Administration and Compliance) Bill 1999(deferred from meeting of 12 October 1999). A New Tax System (Indirect Tax and Consequential Amendments) Bill 1999. Australian Federal Police Legislation Amendment Bill 1999. Crimes at Sea Bill 1999. Electoral Amendment (Optional Preferential Voting) Bill 1999.(Paul Calvert)Chair13 October 1999Proposal to refer a bill to a committeeName of bill: A New Tax System (Tax Administration) Bill 1999Reasons for referral/principal issues for consideration:To examine the implications and potential impacts of proposed changes on non-profit organisations, with particular reference to Schedules 7 & 8 of the Bill dealing with the endorsement deductible gift recipients and entities exempt from income tax. Possible submission or evidence from:ACOSSProf Myles McGregor-Lowndes (QUT)Non-profit, community and church organisationsAustralian Taxation OfficeCommittee to which bill is to be referred: Economics Legislation Committee or Community Affairs Legislation CommitteePossible hearing date(s):Possible reporting date: 6 December 1999(signed) (Sgd) Vicki BourneWhip/Selection of Bills Committee memberProposal to refer a bill to a committeeName of bill Social Security Amendment (Disposal of Assets) Bill 1999Reasons for referral/principal issues for consideration: To determine the impact of the proposed new gifting threshold on the ability of pensions to assist fairly members—particularly in times of crisis.Principle issues:(1) Extent to which current rules may be being abused by financial planning industry(2) Examine the effectiveness of proposed changegiven other methods to maximise pensioner benefits(3) To recommend alternative measures to prevent the system from being abused.Possible submissions or evidence from:- Welfare Rights- Australian Pensioners and Superannuants Fed-National Seniors AssociationCommittee to which bill is to be referred: Community Affairs Legislation CommitteePossible hearing date(s): 22/10/99Possible reporting date: 29/10/99Proposal to refer a bill to a committeeName of bill Superannuation Legislation Amendment Bill No. 4Reasons for referral/principal issues for consideration:Examination of evidence in support, or otherwise, for the need to change investment rules applying to superannuant.Possible submissions or evidence from: ASFA, IFSA, Small Superannuant Funds Association, ASCPA's Institute of Chartered Accountants Committee to which bill is to be referred: Senate Select Ctee on Superannuation and Financial ServicesPossible hearing date(s) : Between 25/10/99 and 18/11/99Possible reporting date: 9.12.99(Signed) Kerry O'BrienWhip/Selection of Bills Committee memberProposal to refer a bill to a committeeName of bill: Taxation Laws Amendment Bill (No. 8) 1999Reasons for referral/principal issues for consideration:Potential impact on non-profit organisations of the measures in Schedule 5 of the Bill implementing the Government's response to the report on philanthropy in Australia by the Business and Community Partnership Working Group on Tax Reform. Particular reference to the adequacy and effectiveness of the proposed changes on increasing gifts and donations to non-profit organisations, including enabling greater opportunities for land conservation.Possible submission or evidence from:Australian Council of Social ServiceProf Myles McGregor-Lowndes (QUT)Non-profit, community and church organisationsAustralian Taxation OfficeWorld Wide Funding for NatureTrust for Nature (Victoria)Committee to which bill is to be referred: Economics Legislation Committee or Community Affairs Legislation CommitteePossible hearing date(s):Possible reporting date: 6 December 1999(Signed) Vicki BourneWhip/Selection of Bills Committee MemberLeave of Absence9609Motion (by Senator O'Brien)—by leave—agreed to:That leave of absence be granted for Senator Crowley for the period 11 to 14 October 1999 inclusive, and Senators Hogg and McKiernan for the period 11 to 19 October 1999 inclusive, on account of absence overseas on parliamentary business.Motion (by Senator Calvert)—by leave—agreed to:That leave of absence be granted for Senator Crane for the period 11 to 14 October 1999 on account of ill health.Notices96099609Items of business were postponed as follows:General business notice of motion no. 340 standing in the name of Senator Allison for today, relating to proposing an order for production of Commonwealth-State agreements, postponed till 18 October 1999.Committees960996099609Motion (by Senator Greig)—as amended, by leave—agreed to:That the following matter be referred to the Procedure Committee for inquiry and report by 30 November 1999:That paragraph 6 of the resolution of the Senate relating to senators' interests be amended as follows:Omit the paragraph, substitute:6 Interpretation(1) For the purposes of paragraphs 1 to 5 of this resolution `spouse' includes partner.(2) `Partner' means a person who is living with another person as the partner of that other person on a bona fide domestic basis although not legally married to that other person and includes opposite- and same-sex couples.Miscellaneous9609Motion (by Senator Brown) agreed to:That the Senate opposes any management plan, bilateral agreement or other instrument under the Environment Protection and Biodiversity Conservation Act which:(a) divests the Commonwealth of decision-making power; or(b) obliges the Commonwealth to pay compensation for protecting the environment, over and above existing entitlements; or(c) fails to protect ecosystems or environmental amenity. Bills9610s2319610Motion (by Senator Jacinta Collins) agreed to:That the following bill be introduced: a bill for an act to amend the Workplace Relations Act 1996 to ensure that leave for participation in service and training as a member of the Australian Defence Force Reserves is one of the matters which may be taken into account by the Australian Industrial Relations Commission for conciliation and arbitration.Motion (by Senator Jacinta Collins) agreed to:That this bill may proceed without formalities and be now read a first time.Bill read a first time.961015:42:009610Collins, Sen JacintaSenator JACINTA COLLINSGB6VICALP00—I table the explanatory memorandum and 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—The Workplace Relations Amendment (Australian Defence Force Service and Training) Bill 1999 gives back to the Australian Industrial Relations Commission the power to include leave for Reservists to participate in the activities necessary to be a member of the Australian Defence Force Reserves.The fact that it is necessary for the Labor Party to move such a provision should be a matter of some embarrassment for this Government and the Minister for Workplace Relations, if embarrassment is ever possible, because it is required as the result of the Howard Government's 1996 amendments to the Workplace Relations Act.That legislation excluded Defence Force Leave from the 20 allowable Award matters that the Industrial Commission were able to deal with. It stands as one of the most foolhardy examples of the Government's zealous pursuit of their industrial relations agenda. There is some stiff competition, however. Senators may recall that in the same fell swoop the Government took away the Commission's power to make Awards on such extreme things as: occupational health and safety matters; meal break facilities; amenities for people in lunch rooms; the fact that there should be first aid kits provided in workplaces; or sexual harassment matters.It is an indication of this government's obsession about industrial relations that it has been willing to sacrifice good defence policy on the altar of its flat earth industrial relations obsessions. It has been a pursuit of its divisive and ideologically driven industrial relations agenda at whatever cost. And the agenda continues, with the Government's 2nd wave of industrial intervention, currently before a Senate committee inquiry.If there is one thing worse than bad policy, which this clearly is, it is refusing to accept that a mistake has been made, and refusing to rectify that mistake. And this Government can be under no illusions that they made a boo-boo. Since the 1996 amendments, they have received and continually ignored advice that a mistake was made, and it needs to be rectified.The Defence Reserve Support Committee is an important structure within the defence establishment that assists in resolving difficulties between Reservists and their private employers. It is chaired by Sir James Killen, who is well known to many here. The minutes of its meeting in November last year reveal this:Sir James informed the Conference he had written to the previous government querying the omission of Reserve leave from the 20 allowable items in the Workplace Relations Act 1996, and discussed the response to his query. He stated that he was unhappy with the response and he intends to pursue the matter.You have to remember—Sir James Killen was a Liberal Government Minister for defence and this Government won't even listen to his advice.When this Bill was recently presented in the other place, by the Hon Kim Beazley, Mr Beazley made the point that this issue should have been put to rest some years ago, when the Minister for Aged Care, the Hon Bronwyn Bishop was the Minister for Defence Science and Personnel. She ignored the advice of Major General Luttrell, the then Assistant Chief of Defence Force Reserves who said to Minister Bishop:As Reserve members constitute approximately 40 per cent of the ADF work force, their continued availability for training, as currently provided for in awards, agreements and company personnel policies, is essential to the Australian Defence Force capability.Luttrel went on:If not identified as a matter for inclusion in awards, Reserve training leave may not be picked up within either the Certified Agreement, Australian Workplace Agreements or other State Agreements which will increasingly supplant existing awards.Although not one of the safety net employment conditions identified in the Bill, Reserve availability for training is critical to maintaining defence capability and ward coverage of this issue is an important component of ensuring availability. The Bill should therefore include provisions which would permit awards to continue to cover Defence Force leave provisions.In February of 1998 Minister Bishop wrote to the Armed Force Federation saying:I am well aware of the threat to reserve training as a possible outcome of the Workplace Relations Act.She should have been, because the matter had been raised with her in the Parliament and with her senior minister a year earlier. So what has the Government done about that in the two years since this matter was first raised and the nearly three years now since its legislation created this problem? The simple fact is it has done nothing.Labor have recognised that there is a problem, and have been willing to do something about it.We have raised questions on notice and questions without notice, and received empty promises or no answer at all. My colleagues have introduced Private Members Bills in the other place. The Hon. Arch Bevis MP, Shadow Minister for Industrial Relations, introduced the Workplace Relations Amendment (Defence Purposes Leave) Bill 1999 on 21 June this year—but the Government didn't bring it on for debate.As I mentioned, the Hon. Kim Beazley MP introduced this bill into the House of Representatives, as I am now doing here today. I hope, in the current climate, the Government will now allow debate on this issue and allow this bill to proceed. This bill will provide job security for those men and women who wish to undertake duty as an Australian Defence Force Reservist, and allow them to undertake the training they need to prepare them for the dangerous circumstances they may find themselves in. This will provide relief and respite to those Australians already serving in INTERFET.As Mr Beazley said yesterday, `Now is critical. It is not going to be possible to sustain this deployment for any length of time without recourse to reserves.'Debate (on motion by Senator Calvert) adjourned.Miscellaneous9611Motion (by Senator Allison)—as amended, by leave—agreed to:That the Senate—(a) notes: (i) reports that the United States (US) Senate in the week beginning 10 September 1999 may consider ratification of the Comprehensive Nuclear Test Ban Treaty relating to nuclear weapons, (ii) the need for the treaty for non-proliferation and disarmament objectives, and (iii) the significant support the treaty enjoys in the Australian and international communities; and(b) urges the Senate to make urgent representations to inform the US Senate of the Australian Senate's hope that the US will ratify the Comprehensive Nuclear Test Ban Treaty in the interests of international peace and security.Miscellaneous9611Motion (by Senator Stott Despoja) agreed to:That the Senate—(a) notes that the commercial branch of the University of Melbourne, Melbourne University Private, conducts a strategic studies course for military officers, which includes members of the Indonesian military as students;(b) supports student protests held in the week beginning 3 October 1999 against these links between the University of Melbourne and the Indonesian military;(c) notes, with concern, the reduced accountability of private tertiary education institutions established to serve a profit, rather than a public education, motive; and(d) urges the Government to investigate more stringent regulation of private tertiary institutions in light of this incident.Miscellaneous9611Motion (by Senator Stott Despoja) agreed to:That the Senate—(a) notes that: (i) the University of Melbourne Law Faculty has announced it will commence teaching the Melbourne Juris Doctor in January 2000, a full-time, 2-year law degree, (ii) this new degree is being marketed as an `upmarket' course for graduates and will cost participating students $72 000, and (iii) according to promotional material for the course, it will provide a `top learning environment' in `its own dedicated teaching facilities', with `the best teachers the field can offer; access to leaders in law, business and government; unparalleled opportunities for networking', available to only 48 students;(b) expresses its deep concern that: (i) Higher Education Contribution Scheme-liable students enrolled in law, paying an average $22 728 for their law degrees, will not have access to these teaching, networking and study facilities, and (ii) this course represents the continuation of a trend, sanctioned by this Government, restricting access to high-quality further education to those with a capacity to pay, and denying education opportunities to students and potential students unable to afford such exorbitant fees; and(c) calls on the Government to abandon its support for upfront fee-liable courses, which restrict education to the rich and further disadvantage students and graduates from low socio-economic backgrounds from pursuing higher education.Bills9612s2309612Motion (by Senator Greig) agreed to:That the following bill be introduced: a bill for an act to give effect to the Convention on the Prevention and Punishment of the Crime of Genocide, and for related purposes.Motion (by Senator Greig) agreed to:That this bill may proceed without formalities and be now read a first time.Bill read a first time.961215:45:009612Greig, Sen BrianSenator GREIG86XWAAD00—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—In 1949 this Parliament commenced some business that fifty years later remains unfinished. That business was no less that the prohibition and punishment of the heinous crime of genocide.In 1949, no doubt after some of the horrors of the Nazi Holocaust had become known, Australia ratified the Convention for the Prevention and Punishment of the Crime of Genocide . It was a good and necessary thing to do, however fifty years down the track—the prevention and punishment of the crime of genocide remains unfinished business by the Commonwealth Parliament.At the time of the introduction of the Bill, then member for Macquarie and LaborPrime Minister Ben Chifley had the following to say:The purpose of this Bill is to seek the approval of the Parliament for Australian ratification of the International Convention on the prevention and punishment of the Crime of Genocide. Genocide, which means the wholesale or partial destruction of religious, racial or national groups has long shocked the conscience of mankind.During the debate on the same Bill, the Leader of the Opposition and founder of the Liberal Party of Australia—Mr Menzies had this to say:Every member of this Parliament must view with equal horror the practice of mass killing and of persecution of people to the death, for the reasons of race or religion or for other reasons of the kind referred to in the convention. Of course the crime of genocide was not peculiar to Germany; I am not without my suspicions, nor are honourable members, that it is still going on in some parts of the civilized world, and for all I know may be going on in countries, one or more which are signatories to this convention.Mr Menzies went on to say:Persecution of the kind against which the convention is directed must never be tolerated . . . and I am perfectly certain that it will never be tolerated here.However the last thing I should dream of doing would be to speak or vote in such a way as to cast any doubt on the proposition that in Australia we abominate the crime of genocide. No body has ever doubted it. If it needs our subscription to a convention to advertise our feelings to the world, then let us subscribe to it.Honourable Senators, it falls upon each generation to assert the basic minimum standards of humanity and upon every politician to uphold those standards. It is therefore out of a solemn sense of duty that I, as a representative of my generation, present this Bill for consideration by the Australian Senate.Fifty years is a long time to have unfinished business and I would be pleased to be able stand here today and echo the words of Sir Robert Menzies and say that: Persecution of the kind against which the convention is directed must never be tolerated . . . and I am perfectly certain that it will never be tolerated here.However as recently as September this year, the Federal Court of Australia in the case of Nulyarimma v Thompson (1/9/99 Federal Court) confirmed that there was indeed no offence of genocide known in Australian law. While the details of this case are certain to be debated for many years to come—the one resounding message is clear—at this present time, genocide is not unlawful in Australia.As this Bill is tabled in the Senate, news is emerging from our closest neighbours in East Timor of atrocities, war crimes and evidence of genocide. Indeed, before the United Nations last month, the Foreign Minister Mr Downer said:In the face of acts of genocide or of human rights abuses on a horrendous scale (in East Timor) the nations of the world must act.The Australian Democrats continue to endorse this Government's peace-keeping role in East Timor. However, as a nation we must, I believe, be active as well as reactive in the face of genocide. We must lead by example. This Bill provides that example.Some people have suggested that it is unnecessary to legislate against the crime of genocide in Australia. They argue that the existing criminal laws at State and Territory level are sufficient protection against arbitrary and systemic persecution and murder. The Australian Democrats disagree. In those terms the convention clearly distinguishes the offence of genocide as a crime that is directed at a particular group. It is the membership of a group which distinguishes this crime.It was the fact of being targeted on the grounds of religion, ethnicity, political affiliation, sexual orientation, gender or disability which previously has qualified people as targets for genocide and for no other reason.I would like to turn now to what is meant by genocideThis convention defines genocide as follows:Article II, stipulates that any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, and includes the:(a) killing members of a group(b) causing serious bodily or mental harm to members of the group(c) deliberately inflicting on the group conditions of life calculated to bring about it's physical destruction in whole or in part (d) imposing measures intended to prevent births within the group(e) forcibly transferring children of the group to another groupArticle III clarifies that not only is genocide a crime, so to is "conspiracy to commit genocide", "direct and public incitement to commit genocide", "attempt to commit genocide" and "complicity in genocide".Honourable Senators—Genocide is as much a political crime as it is a crime against humanity. It is a crime which rests in the abuse of power by those who have power, against those who do not. As a political crime, it is as appropriate that in this Senate, in this Parliament and in this country that we as this generation of political leaders, stand side by side with the sentiments of Ben Chifley and Robert Menzies expressed fifty years ago.The Bill to ratify Convention passed through this Parliament with multipartisan support in 1949. Indeed chief amongst its supporters was the father of the present Leader of the Opposition, Mr Beazley. At the time, Mr Kim Beazley senior said:Every person in Australia with red blood in his veins and a spirit of humanity in his heart should applaud the Minister for External Affairs (Dr Evatt) for supporting a Bill of this kind so soon after his return to Australia and for seeking the approval of the Australian Parliament to such a magnificent statement of this country's intentions to do all in its power to prevent the commission of the acts that are referred to in this convention.I signal here my intention to approach the Leader of the Opposition to seek his and his party's support to complete the work that his father helped start in 1949. I will also be writing to my Senate colleagues, the Prime Minister and members of the House of Representatives to seek their support. I look forward to their co-operation on this issue.It is my intention that this Bill now be referred to the Senate's Legal and Constitutional References Committee for inquiry and report to the Senate mid next year. Accordingly, I will be giving a notice of motion today. The reference of this Bill to the Senate's Legal and Constitutional References Committee will give members of the community the opportunity to comment upon the Bill and make suggestions for its improvement. I welcome this process and input, sincerely believing that the wider input of the Australian community is necessary to raise awareness of the issues surrounding genocide and to make this Bill Australia's best statement against this crime.Comparative jurisdictions have implemented their obligations under the convention. The UK has implemented under its Genocide Act 1969 , and section 318 of the Canadian Criminal Code has implemented the convention to a more limited extent. The United States of America implemented legislation in 1988. Since then, there have been numerous calls for Australia to follow suit, most notably in the Review of Commonwealth Criminal Law 1991, which stated:". . . .the Australian Government decided in 1949 to limit Australian legislation to approve ratification. Whether there should be further Australian implementation or clarifying legislation was left in abeyance until the attitude of other contracting parties and action taken by other contracting parties as regards their domestic legislation was known. The position of Australian law as regards to this convention, in the opinion of the review committee is clearly unsatisfactory."In closing I wish to dedicate this Bill and the ensuing Senate Committee inquiry that will follow to all those who have suffered the horrors of genocide. To the Jewish community, the Armenians, the Rawandans, Tibetans, Cambodians, Kosovars, East Timorese, non-Han ethnic Chinese, peoples of the former Yugoslavia, Aboriginal and Torres Strait Islanders, to people with disabilities, the gay and lesbian community and the many others who have suffered genocide, this Bill is introduced into the Senate in their memory and through the determination I have to see Australia lead by example in this regard.Debate (on motion by Senator Calvert) adjourned.Notices9614961415:46:009614Murray, Sen AndrewSenator MURRAY3M6WAAD00—Madam Deputy President, I appreciate the courtesy you have shown me in this matter. I wish to give notice that, on the next day sitting, I shall move—10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—Is leave granted for Senator Murray to give a notice of motion?5K4FAULKNER Senator Faulkner—Madam Deputy President, I rise on a point of order which relates to the change to the sessional orders. As you will be aware, senators now have the capacity to either hand these motions in to the clerk or have them read before the chamber. I understand that senators in the chamber are happy to give leave on this occasion, and I certainly never stand in the way of the chamber moving along to deal with these sorts of matters as quickly and expeditiously as possible. But I do make the point that, with the changes to our sessional orders or orders of continuing effect—I am not quite clear, but I think it is standing order 76—there is a capacity for us not to have to do this. That is one of the intentions. However, in this case I understand that it is an important issue, and I think it would be generous of the Senate to give leave to Senator Murray and to Senator Cook, who wants to do the same thing. I have no objection. I just draw that to your attention, Madam Deputy President, because the Procedure Committee looked at some changes to try to ensure that we did not need to have this procedure. On this occasion, having made that minor point, I have no problem with leave being granted, and I am sure other senators in the chamber would be just as generous.3M6Murray, Sen AndrewSenator MURRAY—The Leader of the Opposition is quite right to point that out to me. I wish to state that I do not intend to read the entire notice of motion. I just intend to signal the heading and, with the permission of the Senate, hand it over to the clerk in the normal way. If that is satisfactory, that is what I will do. I give notice that, on the next day of sitting, I shall move:(1) That the following matters be referred to the Economics References Committee for inquiry and report by 3 November 1999:(a) the economic theories, assumptions, calculations, projections, estimates and modelling which underpin the Government's proposals for business taxation reform, contained in the Treasurer's press release no. 58 of 21 September 1999 and in subsequent announcements;(b) whether the package is revenue neutral and, if not, how it could be made revenue neutral;(c) whether there are any uncertainties in the assumptions, costings or implementation of the measures which threaten revenue neutrality, including: (i) the realisation assumptions concerning capital gains tax, (ii) the potential for income to be converted to capital gains in order to minimise overall tax paid, and (iii) the timing or the collection and bring forward of revenue;(d) the effects of the package on future federal budget revenues, expenditures and surpluses, including a critical assessment of the economic and other assumptions underpinning the projections, and an assessment of the effects on other Commonwealth programs of implementing these business tax proposals;(e) the estimated levels of revenue to be generated or forgone due to the proposed changes in business tax and capital gains tax and the basis for those estimates;(f) options for reducing tax avoidance and minimisation;(g) the further effective reduction in the research and development tax concession arising from the package; and(h) such other technical funding matters as the committee considers fall within the scope of this inquiry.(2) That the committee hold up to three public hearings in Canberra.15:49:009615Cook, Sen PeterSenator COOKRF4WAALP00—I seek leave to move a notice of motion in the same terms that Senator Murray did.Leave granted.RF4Cook, Sen PeterSenator COOK—I pay homage and due respect to the Leader of the Opposition in the Senate, take on board the remarks he made and notice the old managers' club swinging into action behind him. I will follow the same course as Senator Murray and read part of the notice of motion for the Hansard record but hand up to the Clerk the full details of this lengthy document. I give notice that, on the next day of sitting, I shall move:(1) That the following matters be referred to the Finance and Public Administration References Committee for inquiry and report by 7 December 1999:(a) the economic theories, assumptions, calculations, projections, estimates and modelling which underpin the Government's proposals for business taxation reform, contained in the Treasurer's press release no. 58 of 21 September 1999 and in subsequent announcements;(b) whether the package is revenue neutral and, if not, how it could be made revenue neutral;(c) whether there are any uncertainties in the assumptions, costings or implementation of the measures which threaten revenue neutrality, including: (i) the realisation assumptions concerning capital gains tax, (ii) the potential for income to be converted to capital gains in order to minimise overall tax paid, and (iii) the timing or the collection and bring forward of revenue;(d) the effects of the package on future federal budget revenues, expenditures and surpluses, including a critical assessment of the economic and other assumptions underpinning the projections, and an assessment of the effects on other Commonwealth programs of implementing these business tax proposals;(e) the estimated levels of revenue to be generated or foregone due to the proposed changes in business tax and capital gains tax and the basis for those estimates;(f) options for reducing tax avoidance and minimisation;(g) the extent and likely impact of further effective reduction in the research and development tax concession; and(h) such other technical and funding matters as the committee considers fall within the scope of this inquiry.(2) That the committee hold public hearings on such dates as are notified by the committee chair.10000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—I should make the point that, as these are both references to standing Senate committees, you did not actually need leave to move the notices of motion. You are capable of doing that at any stage.Committees96159615961515:51:009615Calvert, Sen PaulSenator CALVERT5F4TASLP10—On behalf of the very hardworking parliamentary Joint Statutory Committee on Public Works, I present the 10th report of 1999, entitled CSIRO Clayton (Eastern Precinct) development works, Victoria and I seek leave to move a motion in relation to the report.Leave granted.5F4Calvert, Sen PaulSenator CALVERT—I move:That the Senate take note of the report.I seek leave to incorporate my tabling statement in Hansard .Leave granted.The statement read as follows—Madam President, the report which I have just tabled concerns the proposed construction of facilities at the CSIRO's Clayton site in Melbourne.Research complexes at the Clayton site now house the largest concentration of CSIRO scientific expertise in Victoria. The site is the centre of CSIRO research into minerals, forest products, molecular and polymer science, manufacturing science and technology and mathematical and information science.The proposal examined by the Committee will enable the consolidation of CSIRO's the Divisions of Manufacturing Science and Technology, Mathematics, Information Science, Information Technology Services and Petroleum Resources at Clayton.This consolidation will enable CSIRO to vacate sites at Preston and Syndal, freeing up these sites for sale.It will also relocate staff and resources from leased premises.The extent of the proposal will provide nearly 7,000 square metres gross floor area of new building accommodation, together with another 7,000 square metres of refurbishment in an existing laboratory complex. The scope of the proposed works will provide laboratories, offices, process and technical bays, research support facilities and staff amenities.It will provide modern scientific research facilities for over 370 staff.When referred to the Committee, the estimated cost of the project was $28 million.The Committee has recommended that the project should proceed.In arriving at this recommendation, the Committee has concluded that since 1961, substantial investments have been made by the Commonwealth in the construction of major CSIRO research laboratory complexes at Clayton.A number of elements of research Divisions, in particular Manufacturing Science and Technology and Petroleum Resources remain at other centres within the Melbourne metropolitan area in properties owned or leased by CSIRO.Capacity remains at the Clayton site for further collocation and rationalisation of research activities.This rationalisation would result in reduced overheads and realise proceeds from property sales for investment in new and upgraded research facilities at Clayton.It would also facilitate interaction between research groups and between Divisions, cooperative research centres and staff and post-graduate students from Monash University which is located adjacent to the Clayton site.In property terms, sites at Preston and Syndal and leased premises at Carlton and Clayton could be vacated and staff relocated to Clayton.On this basis, the Committee concluded that a need therefore exists to provide additional research facilities at the Clayton site for more than 370 CSIRO staff.The Committee has also concluded that the scope of the proposed development includes refurbished and new accommodation at a standard commensurate with modern research requirements and on a scale consistent with the number of staff to be employed.The scope of the project can also be justified as making adaptive reuse of refurbished buildings with new construction reflecting contemporary generic research facilities already provided at other sites.There is capacity for expansion.Two matters need to be addressed by the CSIRO. First, the Committee has recommended that the need for stainless steel downpipes proposed for the refurbished David Rivett Building should be reviewed.Secondly, the Committee has recommended that the CSIRO should develop a master plan for the further development of the site which will avoid costly removal of existing facilities and infrastructure.I commend the report to the Senate.Question resolved in the affirmative.9616961615:52:009616O'Brien, Sen KerrySenator O'BRIEN8O6TASALP00—On behalf of Senator Cooney, I present the 16th report of 1999 of the Senate Standing Committee for the Scrutiny of Bills. I also lay on the table Scrutiny of Bills Alert Digest No. 16 of 1999, dated 13 October 1999.Ordered that the report be printed.9616961615:52:009616Ferris, Sen JeannieSenator FERRIS5L6SALP10—I present the 15th report of the Joint Statutory Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, entitled Interim report for the s.206(d) inquiry: proceedings of conference on 12 March 1999 .Ordered that the report be printed.5L6Ferris, Sen JeannieSenator FERRIS—I move:That the Senate take note of the report.As chair of that committee, I am very happy to table today the committee's 15th annual report. This is an interim report which looks at the background to the very significant inquiry into section 206(d) of the Native Title Act. This report covers the proceedings of a conference which was held on 15 March this year to give background to the inquiry.The inquiry covers a range of issues including, very importantly, the effectiveness of the National Native Title Tribunal, the operation of the Torres Strait Islander Land Fund and the Indigenous Land Corporation, the extent of the extinguishment or impairment of native title rights and interests as a result of the operation of the act and the effect of the operation of the act on land management.The committee is consulting widely across the Australian community about the act, and the proceedings that are tabled today signify the start of this inquiry. The conference was most successful. It was well attended, with a range of participants from the Kimberley Land Council, the Aboriginal Legal Rights Movement, a number of government departments, ATSIC, the Minerals Council of Australia, the National Farmers Federation, the Native Title Tribunal and of course the Indigenous Land Corporation.The contribution of all those participants was of great assistance in identifying issues of concern to the inquiry. We have already conducted a number of public hearings in this regard. In Western Australia we have been to Broome, Kununurra, Kalgoorlie and Perth. We have been up in the regional areas of Queensland, including Mount Isa. In coming months the committee will also be conducting public hearings in South Australia and in the Torres Strait as part of this inquiry.This report contains information which is of great importance. In addition to being informative on past developments, the 15th report also foreshadows some of the major issues that will be the focus of the committee's consideration in the course of the section 206(d) inquiry. For example, chapters 2 and 8 summarise the history and function of two important institutional bodies: the Native Title Tribunal and the Indigenous Land Corporation. In chapter 2, which looks at the effectiveness of the Native Title Tribunal, the report notes that the assessment of the tribunal's effectiveness must focus on the core function of the tribunal, which is now mediation.In chapter 7 the report provides an overview of the issues for land management which were brought about by the recognition of native title at common law within Australia. Included in this chapter is a useful summary of the future act regime of the Native Title Act, both in its original form and also after amendment, and of the provisions which deal with the indigenous land use agreements which were added in the amendments of 1998 and are now proving to be very successful in resolving issues involving native title.The committee is carefully considering the effectiveness of the indigenous land use provisions of the act in resolving issues related to future acts. This section 206(d) inquiry is the most important and wide ranging to be conducted by the committee. It is essentially an inquiry into the effectiveness and consequences of the major features of the Native Title Act and the impact of the act on land ownership and the management of it from both an indigenous and non-indigenous perspective.The information contained in the 15th report is an important starting point for the committee's current inquiry. It will also be useful and informative for any person who is interested in this area of law and in the committee's current inquiry. I commend the 15th report to the Senate.Debate (on motion by Senator O'Brien) adjourned.961710000DEPUTY PRESIDENTThe DEPUTY PRESIDENT—The President has received letters from party leaders seeking variations to the membership of certain committees.Motion (by Senator Ian Campbell)—by leave—agreed to:That senators be discharged from and appointed to committees as follows:Economics References Committee—Participating member: Senator Schacht for the committee's inquiry into the provisions of the Fair Prices and Better Access for All (Petroleum) Bill 1999 and the practice of multi-site franchising by oil companiesRural and Regional Affairs and Transport References Committee—Substitute member: Senator Parer to replace Senator Crane for the committee's inquiry into the development of the Brisbane Airport Corporation's Master Plan for the future construction of a western parallel runway.Bills9618r717A message received from the House of Representatives acquainting the Senate that it had agreed to the amendments requested by the Senate to the bill and that it had also made further amendments to the bill in which it desired the concurrence of the Senate.Ordered that consideration of the message in committee of the whole be made an order of the day for the next day of sitting.Bills9618r9119618Bill 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.961815:59:009618Campbell, 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—The government recognises Australia's dependence on transport due to the vast size of our continent. In light of this, prior to the 1998 election, the government promised to substantially reduce the cost of our major transport fuels. Such reform would inturn reduce transport costs and consumer prices, especially in regional, rural and remote areas.The recently enacted Diesel and Alternative Fuels Grants Scheme Act 1999 delivered this commitment. From 1 July 2000, certain on road transport will be eligible for a grant under the scheme.When the act was introduced by the minister for Transport and Regional Services, he foreshadowed that a further bill would be introduced to put in place the necessary administrative arrangements, including the compliance mechanisms, needed to support the act. The Minister also stated that the government would be seeking passage of this further bill prior to Christmas, to enable industry to developrecord-keeping arrangements and plan with confidence for the introduction of the grants scheme on 1 July 2000.The introduction of this bill meets that commitment.The bill provides that most provisions in the act will commence on Royal Assent. This will ensure that instruments and determinations may be made and registration mechanisms can be established before the Diesel and Alternative Fuels Grant Scheme takes effect on 1 July 2000. This will avoid any undue delay in claimants receiving their entitlements.The amendments which are introduced by this bill also:provide guidance to claimants as to what records should be kept in order to substantiate their claims;clarify entitlements to the Diesel and Alternative Fuels Grant Scheme by prescribing formulae so that claimants will understand their entitlements;note that grants paid under the Diesel and Alternative Fuels Grants Scheme are assessable income under the Income Tax Assessment Act 1997, consistent with the treatment of rebates under the existing Diesel Fuel Rebate Scheme;enables the Commissioner of Taxation to issue a determination, after consultations with industry, to provide guidance to claimants as to what operation of a vehicle constitutes a journey for the purposes of the scheme; and ensures that the Commissioner of Taxation has adequate powers to administer the Diesel and Alternative Fuels Grant Scheme.The government has made a commitment that it would put in place enforcement measures to police the scheme. In accordance with that undertaking the bill provides adequate penalties and safeguards to protect public funds and to prevent abuse of this scheme.Where businesses also claim the diesel fuel rebate, the bill contains provisions to enable advances to be made under the grants scheme in the same way as they are made under the diesel fuel rebate scheme. This will assist in minimising the compliance costs of such claimants.Full details of the measures in the bill are contained in the explanatory memorandum. I commend the bill.Ordered that further consideration of the second reading of this bill be adjourned till the first day of the summer sittings in 1999, in accordance with standing order 111.Bills9619r815Billsr8189619Messages received from the House of Representatives acquainting the Senate that the House has disagreed to the amendments made by the Senate.Ordered that the messages be considered in the committee of the whole forthwith.Motion (by Senator Minchin) proposed:That the committee does not insist on its amendments to the ACIS Administration Bill 1999 disagreed to by the House of Representatives.16:03:009619Conroy, Sen StephenSenator CONROY3L6VICALP00—As the shadow minister advised the House of Representatives this morning, Labor will act today to save the $2 billion Automotive Competitiveness and Investment Scheme. We said yesterday that we were committed to facilitating the ACIS Administration Bill 1999 and today we will deliver on that commitment. We are doing this because Senator Minchin has managed to get himself caught on a hook from which he cannot get off. We will get Senator Minchin off the hook. He should have but we will.Senator Minchin is on this hook because of his own failure to act on this bill. He has known for five months that he had a problem—that we were proposing a review of ACIS before it was to cease. We moved these amendments five months ago in the House of Representatives, but Senator Minchin did nothing. He had no discussions with us until the very last minute. I do not think he had any discussions with the Democrats at all. He should not pretend, as he has been doing, that we had come up with some last minute opposition to this bill. He knows that is not true. He had five months to consider, discuss and negotiate about the timing of the proposed review. He knows that we have not opposed any other aspect of the package. Why should we? It was through our efforts from opposition that the government even agreed to it in the first place.Unfortunately, Senator Minchin has spent the last five months trying to save the Queen. He should have been spending it trying to save the car industry. Senator Minchin reacted only when the ACIS bill got to the Senate—far too late. So it was Senator Minchin, not us, who put doubt on the future of the ACIS package by not dealing with sensible amendments and sitting on his hands for five months. What was our amendment? We debated it yesterday. We want to have a review of ACIS before it ends—hardly revolutionary stuff. In fact, by any objective measure, this is eminently sensible. Instead, we will now be left with the absurd position where there will be a review of a scheme after the scheme has already ended—talk about putting the cart before the horse! It is a bit like debating Charles's suitability as the future King of Australia after we have become a republic. I can see how Senator Minchin would be emotionally, if not intellectually, committed to that debate. I cannot see why he should apply such nonsense to such an important industry as the car industry. It is this absurd outcome which shows that Senator Minchin has been prepared to jeopardise and play politics with this important scheme. I want to make it perfectly clear that Labor would still like ACIS to be reviewed before its completion date of 2005. The only way this will now happen is by the election of a Labor government.16:06:009620Ridgeway, Sen AdenSenator RIDGEWAY8G6NSWAD00—On behalf of the Australian Democrats, our position is that we will not be insisting on the amendments and hence we will not oppose the motion relating to the bills that have been returned from the House of Representatives.16:06:009620Minchin, Sen NickSenator MINCHINJX4SALPIndustry, Science and Resources10—I will resist the temptation to indulge in the childish politics to which Senator Conroy seeks to have this debate reduced by bringing in nefarious and other subjects. I want to be as gracious as I possibly can and thank the Labor Party and the Democrats for recognising the importance to the car industry of the ACIS Administration Bill 1999 proceeding forthwith on the basis announced by the government over 2½ years ago. This is a package which is terrific news for the car industry. It does set it up for the 21st century. I am extremely confident that, once it is law, we will have a highly successful, productive, export oriented, automobile industry in this country with a great future.Question resolved in the affirmative.Motion (by Senator Minchin) agreed to:That the committee does not insist on its amendments to the Customs Tariff Amendment (ACIS Implementation) Bill 1999 disagreed to by the House of Representatives.Resolution reported; report adopted.Bills9620r6709620Consideration resumed.10000CHAIRMANThe CHAIRMAN—The committee is considering the Corporate Law Economic Reform Program Bill 1998 and amendment No. 1 on sheet 1414 moved by Senator Conroy. The question is that that amendment be agreed to.16:09:009620Conroy, Sen StephenSenator CONROY3L6VICALP00—I guess I can only make one final plea to the Democrats on this issue. Yesterday, in an answer to a dorothy dixer from his own backbench, Mr Costello said:. . . 32 per cent of Australians directly own shares. In the sale of the first tranche of Telstra, 560,000 Australians purchased shares . . . something like 75 per cent of Telstra employees took up shares.He went on to say that 31 per cent of Australians now own shares. This is the sort of revolution that began under the Labor government and has continued under the coalition government. These are the sorts of mum and dad shareholders that the Labor Party is trying to protect today.As I have already mentioned, we have a proposition before us that waters down protections for shareholders. Shareholders, not directors, are actually the owners of companies. Directors are the employees of the shareholders. Business Judgment Rule 2C says that directors have to inform themselves about the subject matter of the judgment to the extent that they reasonably believe to be appropriate. The key there is `inform themselves.' `Inform themselves' is not the same as what has been through the court system. Judges have ruled on these matters, and these are their words: `They should bring an informed and independent judgment to bear on the various matters that come to the board for decision.' That is Rogers in AWA Limited v. Daniels. So the courts have said independent judgment is critical to competent and responsible management. And this bill, as it stands before us today, clearly states:A director or other officer of a corporation who makes a business judgment is taken to meet the requirements of subsection (1), and their equivalent duties at common law and in equity, in respect of the judgment if they:. . . . . . . . .(c) inform themselves about the subject matter of the judgment to the extent they reasonably believe to be appropriate;This is not the same as the government's touted press releases on this issue and the statements from the parliamentary secretary. The whole thrust, they told us, was `We want to codify what is in the law now'. What is in the law now, protecting hundreds of thousands of ordinary Australians and their shareholdings, are judgments like the AWA v. Daniels case in 1992 which say that a director should bring an informed and independent judgment to bear. That is not what is written in this legislation. It is not possible to argue that the words `inform themselves about the subject matter of the judgment to the extent they reasonably believe to be appropriate' is the same as `bring an informed and independent judgment to bear'. These are clearly different legal concepts.This parliament would be letting down the hundreds of thousands of Australians that the Treasurer touted as recently as yesterday, and it would be watering down the protections that they have and their ability to seek accountability from the people they employ to manage their funds. I implore the Democrats to reconsider their position on this, because it is clear that the words in this bill are not the same as the codifications and the principles that the courts of this country have been establishing for the last 30 years.As I said, this is really just a last plea to the Democrats to reconsider. They will not be proud in the future when ordinary Australians lose their life savings, their shares and their shareholder value. I urge the Democrats: reconsider on this issue. It is very important to the future of hundreds of thousands of ordinary, battling Australians—mums and dads—that they are able to call to account their employees and their directors if they see the need to.16:14:009621Murray, Sen AndrewSenator MURRAY3M6WAAD00—While Senator Conroy was talking I was reminded of the managed investments bill debate, when I and the Democrats thought that dire things would happen if a particular amendment of ours was not accepted—which have not happened yet, thankfully—and Labor disagreed with us. We had to wear it. At the heart of your proposition is your belief that things will get worse as a result of this and that fairly dire consequences will result. Our judgment is that it does not make it worse, although we do understand your argument and whence it comes. So I regret that, despite an informed plea from you, Senator Conroy, we will continue with our position of supporting the government on this issue.16:15:009621Conroy, Sen StephenSenator CONROY3L6VICALP00—I will just briefly respond that I appreciate the points Senator Murray makes and simply say to him that, as he would probably remember, the MIB debate was quite lengthy and that I gave a speech that was probably more supportive of Senator Murray's position than the one we finally adopted. But I say to Senator Murray that a number of the things, a lot of the issues, he raised and that I also raised in that debate are coming to pass. People are worse off because that bill was passed. I know that Senator Murray will be looking forward to the review where we will be able to test a number of the assertions that were put to the committee in the MIA, or the MIB as it now is. When that review comes up, it will show that the people involved in these investments are actually worse off because we passed that bill. Many of them have had amendments to their structures that have actually been slipped through on this bill and that are to their detriment.There were promised fee savings—and I am sure Senator Murray knows this. But, not only are fees not going down; a broad range of managed investment fees are going up. And I see you nodding, Senator Murray. Both you and I have been talking to the same people. It has been public. It has been in newspapers that not only have there been excessive increases when there should have been decreases but also the structures of managed investments have been changed, and parts of constitutions or the equivalents of constitutions have been changed in some quite outrageous ways. I think that the issues Senator Murray raised, and I raised to a lesser degree in my contributions in that debate, are coming to pass. So I would urge, Senator Murray, that you and I were probably right last time, and I think that in a couple of years you will have to concede that we were right this time.10000CHAIRMANThe CHAIRMAN—The question is that opposition amendment No. 1 on sheet 1414 be agreed to. Question put.16:22:00The committee divided. (The Chairman—Senator S. M. West)24Bishop, T. M. Bolkus, N.Brown, B. Campbell, G.Carr, K. Collins, J. M. A.Conroy, S. Cook, P. F. S.Cooney, B. Crossin, P. M.Denman, K. J.* Evans, C. V.Forshaw, M. G. Gibbs, B.Harradine, B. Hutchins, S. P.Ludwig, J. W. Mackay, S.McLucas, J. E. Murphy, S. M.O'Brien, K. W. K. Quirke, J. A.Sherry, N. West, S. M.37Abetz, E. Allison, L.Alston, R. K. R. Bartlett, A. J. J.Bourne, V. Brownhill, D. G. C.Calvert, P. H. Campbell, I. G.Chapman, H. G. P. Eggleston, A.Ellison, C. Ferris, J.Gibson, B. F. Greig, B. A.Herron, J. Hill, R. M.Kemp, R. Knowles, S. C.Lightfoot, P. R. Macdonald, I.Mason, B. J. McGauran, J. J. J.*Minchin, N. H. Murray, A.Newman, J. M. Parer, W. R.Patterson, K. C. L. Payne, M. A.Reid, M. E. Ridgeway, A. D.Stott Despoja, N. Tambling, G. E. J.Tchen, T. Tierney, J.Troeth, J. Watson, J. O. W.Woodley, J.Crowley, R. A. Ferguson, A. B.Faulkner, J. P. Heffernan, W.Hogg, J. Crane, W.Lundy, K. Boswell, R. L. D.McKiernan, J. P. Vanstone, A. E.Ray, R. F. Coonan, H.Schacht, C. C. Lees, M. H.* denotes tellerQuestion so resolved in the negative.16:25:009622Conroy, Sen StephenSenator CONROY3L6VICALP00—by leave—I move:(2) Schedule 1, item 1, page 4 (line 27) to page 5 (line 4), omit subsection (1), substitute:Good faith—directors and other officers (1) A director or other officer of a corporation must exercise their powers and discharge their duties: (a) in good faith in the best interests of the corporation; and (b) with due regard to, and active consideration of, all relevant issues and information; and (c) for a proper purpose. Note 1: This subsection is a civil penalty provision (see section 1317E). Note 2: Section 187 deals with the situation of directors of wholly-owned subsidiaries.(38) Schedule 5, item 11, page 436 (line 28) to page 437 (line 3), omit subsection (1), substitute:Good faith—officers (1) An officer of a Commonwealth authority must exercise his or her powers and discharge his or her duties: (a) in good faith in the best interests of the Commonwealth; and (b) with due regard to, and active consideration of, all relevant issues and information; and (c) for a proper purpose. Note 1: This subsection is a civil penalty provision (see Schedule 2). Note 2: Section 187 of the Corporations Law deals with the position of directors of wholly-owned subsidiaries of Commonwealth authorities.These amendments relate to the provisions that define the concept of good faith as it pertains to directors' duties. The opposition's amendments in this regard are minor but ultimately important. The opposition's first amendment in this area ensures that good faith under civil obligation reflects the full responsibilities of directors as laid down by the courts and corrects the subjective test of the provision which requires directors to exercise their powers and discharge their duties in what they believe to be in the company's interests.In addition, as the courts have acknowledged that good faith must be accompanied by appropriate informed judgments, we wish this view to be reflected in the legislation. The government has maintained that its efforts on defining directors' duties are purely to codify common law, so why not stick to the definition as clearly set out by the courts? Good faith not based on informed judgment injects new doubt as to the meaning of the term. Good faith not based on informed judgment will be taken by directors to be a new lower benchmark in their responsibilities. Moreover, it will send a message to the courts that this is the preferred definition. Like the business judgment rule, the good faith civil obligation provision does not encourage directors to be actively involved in guiding and monitoring the management of a company.The government is setting a lower standard for directors in the governance of companies. This is totally inappropriate because it would encourage directors to be less prudent in their decision making. If the government is sincere about clearly reflecting common law in statute, then it should support our amendment in this regard.16:28:009623Murray, Sen AndrewSenator MURRAY3M6WAAD00—Senator Conroy's presentation was shorter than I expected. Given the rather lengthy and quite strong discussion he and I had, I must say that Senator Conroy knows well how to argue his corner both privately and publicly. Once again these amendments have been delivered with the right intention in mind, but we have some reservations. These two amendments relate to the obligation of good faith which is cast on directors and specifically the obligation which, if reached, will give rise to civil rather than criminal liability. The effect of the amendments is to add a requirement into the good faith obligation that directors must exercise their powers with due regard to—and this is the important area—and active consideration of all relevant issues and information.At first glance that sounds very reasonable; however, we have problems for two reasons. Firstly, the obligation of good faith is about acting in the best interests of a corporation and acting for a proper purpose. The obligation of good faith is not about diligence or consideration of all issues. In other words, it is about an attitude not about performance. It is my view that the substance of the amendment which the Labor Party has moved would be better dealt with as an amendment to obligation to act with care and diligence rather than duty of good faith, because active consideration of issues is a matter of diligence rather than good faith.Secondly, we would be concerned that the active consideration of all relevant issues requirement would open up a Pandora's box in terms of interpretation. If you imagine a judge who is a stickler for black letter law, he or she might interpret this very widely indeed. He would ask himself or she would ask herself: what precisely does `active consideration of all relevant issues' mean? Does `active consideration of all issues' mean that a full due diligence exercise needs to be conducted of the type that is conducted prior to the issue of prospectuses, with all the consequent costs attached to that? To what length does a director have to go to inform himself or herself of all the relevant issues? There is no reference to information which is reasonably within reach and to reasonable judgment in these matters.The interpretation of the expression `the active consideration of all relevant issues' opens the door to a very wide interpretation as to what an average director would have to do to satisfy that obligation. As I have remarked, we believe that the duty of care and diligence combined with the business judgment rule impose an appropriate duty on directors. In fact, part of the business judgment rule requires directors to inform themselves about the subject matter of the judgment. Any reasonable judiciary would regard that as a proper informing process—in other words, one having due regard to the appropriate information. Because of that and because these particular sections have been widely discussed and reviewed, we think that on balance, despite the good intention of the shadow minister, we cannot support these amendments.16:32:009623Conroy, Sen StephenSenator CONROY3L6VICALP00—I just want to respond again to Senator Murray. I appreciate that he believes we are acting with the right motives. I am again, however, disappointed that he fears the words `informed judgment'. As I indicated in my last contribution, independent judgment is at the heart of a string of court cases in which judges have said that it is not good enough to just say, `I acted in good faith,' and to not make an informed judgment or seek to get information. There is a legal understanding of informed judgment—there is an agreed set of principles about informed judgment which courts have ruled on for 30 years.I am not looking to second-guess what the courts have done previously and the courts have not sought to second-guess business decisions. To argue that informed judgment is something that directors, average or otherwise, should be afraid of is a cop-out. Directors are not the owners. Directors are there to provide the management skills—that is why they are employed. When they do not have those skills and they choose not to make an informed judgment, it is not good enough to say that that is constraining them, that they should be able to avoid scrutiny and that they can avoid liability. Again, I would urge the Democrats to reconsider their position on this. Good faith that is not based on informed judgment is an entirely new, lower benchmark for the courts to be told to apply. I do not understand why the government believes that it wants uninformed judgments to be able to pass through under the guise of good faith. I would be interested in a small contribution from Senator Ian Campbell on this matter.16:35:009624Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—I am happy to contribute; it is a very important matter. The government's views have been grossly misrepresented. Good faith under common law does ensure that directors have to inform themselves, but what the Labor amendments seek to do is significantly increase the requirement under the current law. All we are doing, I think it is fair to say, is maintaining the existing requirements to act in good faith in a law that stayed in place for the 13 years of the Labor government through a whole range of corporate law reviews undertaken by a series of committees, including one chaired by Senator Barney Cooney and another chaired by Mr Michael Lavarch, former chair of the House of Representatives committee. I remind the Senate that the committee excellently chaired by Senator Cooney and the committee that reported in November 1991 and that was excellently chaired by Michael Lavarch, who supported Senator Cooney's recommendations in relation to the business judgment rule and directors' duties, without reservation supported the business judgment rule—which the Labor Party today have just voted against—and did not seek in any way to change the definition of good faith in the Corporations Law.As Senator Murray has very accurately said, this would significantly increase the requirements on directors in terms of consideration of all relevant issues and information—it would be a significant increase in what directors would have to do. As Senator Murray quite properly said, it would mean that a prudent director, in order to protect his or her own legal position, would have to undertake due diligence in relation to every matter of relevance to the company. It is an inane proposal.16:37:009624Conroy, Sen StephenSenator CONROY3L6VICALP00—I have conferred with other senators in the chamber. I would now like to move a further amendment to section 181, line 30, `Good faith—civil obligations', in the following terms. No. (1)(a) currently reads `in good faith in what they believe to be in the best interests of the corporation'. I will be moving an amendment to delete the words `in what they believe to be', so the sentence will read `in good faith in the best interests of the corporation'. This is, I believe, an important amendment. Again, it only sounds like a few words, but it actually takes this test and turns it from a subjective test into an objective test, which I believe is a substantial improvement. I welcome the Democrats' support for this and I thank them for it.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Knowles)—Senator Conroy, I am sorry to interrupt you, but may we deal with your amendments that are actually before the chair first and then deal next with the subsequent amendment to which you are referring.3L6Conroy, Sen StephenSenator CONROY—We are just writing it up now.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—By that stage, we will then have your amendment in writing. So the question before the chair at the moment is that opposition amendments Nos 2 and 38 moved by Senator Conroy be agreed to.16:39:009625Brown, Sen BobSenator BROWNQD4TASAG00—I support the opposition amendments. I note that there is concern from the government and the Democrats that the test that a director or officer of a corporation must exercise their powers and discharge their duties with due regard to an act of consideration of all relevant issues and information is too tough a test. There is a further amendment coming down the line. I have not heard that the opposition has withdrawn this particular component in response to—10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Senator Brown, the opposition has not withdrawn either amendment.QD4Brown, Sen BobSenator BROWN—Yes, that is my understanding, too.16:39:009625Conroy, Sen StephenSenator CONROY3L6VICALP00—If I can clarify it for Senator Brown's information, we will continue with our existing amendment. When that is defeated, as the Democrats have indicated it will be, we will then move this further amendment which goes some way towards satisfying some of our concerns.16:40:009625Brown, Sen BobSenator BROWNQD4TASAG00—That is as I understood it, too. I thank Senator Conroy for that. I think it is very important that the chamber does support the Labor amendment in full. Why should directors and chief executive officers, some of whom these days are getting $3 million, $4 million or $5 million a year, not have due regard to and take active consideration of all the relevant issues and information when they make decisions on behalf of their corporations? Of course they should. There are harder tests than that for many a public servant. If it is good enough for the public sector, then it is good enough for the private sector.This morning I raised the matter of political donations. Under current rules, I think the good faith of directors is not required to be exercised on behalf of the company, at least in a way which is stated on the balance sheet when it comes to making political donations. These are made frequently. They add up to tens of millions of dollars. They are made to political parties without any written commitment but with the expectation that there will be some advantage to the corporation for having made that donation. I believe this matter should be referred to shareholders, and the chief executive officers involved should have to point out what exactly it is that they expect to get in return. As I said this morning, I believe the system is corrupting.The provision here—the government provision which is supported by the Democrats—that a director or other officer of a corporation must exercise their powers and discharge their duties in good faith in what they believe to be in the best interests of the corporation I believe allows anything to go. In a court of law a director or chief executive officer has to establish that she or he believed it to be in the best interests of the corporation. That is a free run. We need a much tighter provision. We need much more clarification in the corporate law for the directors and officers involved. Good faith of itself is a direction, but it is not as specific. The Labor amendment is actually very minor, but it does tighten up what is meant by `good faith' or what is required of a director or other officer acting in good faith. I support it.I note that Senator Conroy has flagged a further amendment if this one fails, and that is to remove the loophole allowing directors and senior corporate officers to say, `Well, we acted in good faith because we thought we were acting in the interests of the corporation.' Could you imagine any director or CEO going to a court and saying, `I thought I was acting against the interests of the corporation'? Of course they are not going to. You cannot get into the mind of such a person to establish the truth or otherwise; you have to accept their word. So this provision as it stands allows anything that goes. All the director or CEO has to be able to say is, `Oh, when I did it, of course I thought it was in the best interests of the corporation. Of course I thought giving myself a package of $1 million per annum was in the interests of the corporation because it would raise my work output. Of course I thought that giving a donation to this or that political party was in the interests of the corporation because it would help the political party that we favour get into power.' These things need a much stronger test than that.As I said this morning on the second matter, political donations, when the government brings in more relevant legislation, flagged for later this year, I will be moving that the views of shareholders have to be canvassed before corporate donations are made. I will be interested to hear whether the government thinks that isn't a matter of good faith towards shareholders in this country. Of course it is, but the government will say that it believes it is not necessary to make such a provision. They will use the very loophole that is in this legislation now to get off the hook in defending the huge political donations made to political parties from the corporate sector in the interests of currying favour, but against the interests of shareholders in the main. So I support the Labor amendment.16:45:009626Conroy, Sen StephenSenator CONROY3L6VICALP00—I thank Senator Brown for a very clear description of what the government had been seeking to achieve. I thank him for setting that out. I suspect I see some legal training in there somewhere. I do not have any, which is readily apparent. The Labor Party will proceed, as I said earlier, with our original amendment. We believe that our original amendment covers all the sorts of issues that Senator Brown has just so clearly outlined. We still hope that the Democrats could see their way to supporting this, although we accept that it appears that the numbers are against us on this one. As I have foreshadowed, we have an amendment, which I believe is agreed to now by all parties. So I would not want to delay the chamber any further on this.Amendments negatived.16:47:009626Conroy, Sen StephenSenator CONROY3L6VICALP00—I move:Schedule 1, item 1, page 4, (line 30), omit `in what they believe to be'.I thank all senators for their support on this. I think that is what has been indicated by the government. It is a small but important change again which takes a subjective test and makes it an objective test. This is an important change in a court because, as Senator Brown so clearly indicated, what director would ever stand up and say: `I didn't think it was in the interests of the company'? Given that that now appears to be supported by all parties, I will not waste any more time in the chamber on it.Amendment agreed to.16:48:009626Conroy, Sen StephenSenator CONROY3L6VICALP00—by leave—I move opposition amendments Nos 3, 4 and 39:(3) Schedule 1, item 1, page 6 (lines 8 to 16), omit subsection (1), substitute:Good faith—directors and other officers (1) A director or other officer of a corporation commits an offence if they: (a) are intentionally reckless; or (b) are intentionally dishonest; and fail to exercise their powers and discharge their duties: (c) in good faith in the best interests of the corporation; or (d) for a proper purpose. Note: Section 187 deals with the situation of directors of wholly-owned subsidiaries.(4) Schedule 1, item 1, page 9 (lines 23 and 24), omit subparagraph (b)(ii), substitute: (ii) after making an independent assessment of the information or advice, having regard to the director's knowledge of the corporation and the complexity of the structure and operations of the corporation; and(39) Schedule 5, item 11, page 438 (lines 10 to 20), omit subsection (1), substitute:Good faith—officers (1) An officer of a Commonwealth authority commits an offence if he or she: (a) is intentionally reckless; or (b) is intentionally dishonest; and fails to exercise his or her powers and discharge his or her duties: (c) in good faith in what he or she believes to be in the best interests of the Commonwealth authority; or (d) for a proper purpose. Note: Section 187 of the Corporations Law deals with the position of directors of wholly-owned subsidiaries of Commonwealth authorities. Penalty: Imprisonment for 5 years.The opposition's amendments to the `good faith' criminal obligation are designed to ensure that the proposed law would clearly distinguish what is intentionally dishonest and intentionally reckless. Also, we are putting forward an amendment that would ensure that the defence based on reliance of expert advice would apply only if the director applied independent judgments. These amendments are consistent with the decisions of the courts. They are well established and accepted judgments. These amendments ensure that the government's attempt at codification of the common law will indeed bring clarity, as opposed to uncertainty and complexity. It is with a great deal of hope that the opposition's amendments will have the desired impact and will avert a wave of mismanagement that might sweep across Australia's corporate landscape.To put it in simple terms, the government is proposing for directors to be able to say: `I received advice from my lawyer, I received advice from my accountant and they told me to do this, so I did it.' I believe it to be a complete and utter cop-out on behalf of the government to allow such a defence to be put up in court and for it to be successful. I am still amazed that the government even put this forward. I believe the Democrats, and possibly Senator Brown, may be supporting these amendments. So I look forward to the government's contribution to explain its position and, hopefully, the contribution of the minor parties.16:50:009627Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—I thought it would be good to put the government's position on the record first because the Democrats might want to comment on the two sides of the argument. The government is opposed to these provisions, particularly the wording of the amendment in relation to recklessness. The amendment moved by the opposition seeks to put into the provisions relating to good faith the words `intentionally reckless' or `intentionally dishonest'. Any plain English reading of this would effectively render it nonsensical and, therefore, unworkable. It is by definition impossible to be intentionally reckless. Our legal advice is that the effect of making this change would be to lower the burden of proof, lower the requirements, on a director. Because of its nonsensicality and therefore unworkability it would be virtually impossible to make out a case and achieve a guilty verdict.The burden of proof is for the prosecution to prove that a director has been intentionally reckless before they can be found guilty. As I have said, this is actually a watering down of the current standard of good faith. So we are strongly opposed to this. We think that it is a significant reduction in the balance between shareholders' rights and directors' duties. It is a significant watering down of the directors' duties under these provisions.In relation to (4), the reliance on information provision, this amendment is unnecessary and could defeat the whole purpose of the main provision, which is to allow directors to rely on experts where it is reasonable to do so. Clearly a court could not find it acceptable for a director to blindly rely on expert advice where the circumstances may indicate that the advice is unreliable.The government is very strongly opposed to these provisions. We think that in the very important balancing act in the incredible array of discussions that have taken place, not only in the last two years but also—and I do not say this at all flippantly—in all of the discussions on directors' duties, the common law development of directors' duties and the development of the black letter law that has occurred through those committees, such as the Cooney committee in 1989 and the Lavarch committee in 1991, you are always trying to find a way to ensure that both the common law and the black letter law in the statute impose very important obligations upon directors who do have that fiduciary responsibility. The government's advice to the Senate is that this wording would significantly reduce a director's obligations under the law because it is nonsensical and unworkable.16:54:009628Murray, Sen AndrewSenator MURRAY3M6WAAD00—Before I come to a view on this matter, I would like to ask the minister two questions arising from the remarks he has made. Parliamentary secretary, I am not sure whether you would remember a famous daredevil American called Evel Knievel. Evel Knievel was likely a corporation in his own right because he earned a great deal of money doing extraordinary stunts. I would suggest to you that any person would have regarded what Evel Knievel did as intentionally reckless. I do not know how else you would describe somebody who went whizzing over ravines and canyons all in the interests of earning money for his corporation. The reason I raise such an example is that, as I was sitting here, it was the only example which jumped to mind of the potential for somebody to be legally defined as intentionally reckless. I would have some difficulty in imagining a judge could not view the actions of somebody like Evel Knievel as reckless and intentionally so. He did it to raise money. I do see that there is a link in those words, but he was not dishonest in doing that.Quite frankly, if I had money invested in the Evel Knievel corporation, I would want him to limit the extent of his intentional recklessness so that, if he was going to jump over buses, he should jump over 50 buses, not 100.WH4McGAURANSenator McGauran—But being reckless was his business; that's the difference.3M6Murray, Sen AndrewSenator MURRAY—Well, we are dealing here with Corporations Law, which is why I have introduced it. What I am trying to do is to give you an example of a situation where I could conceive that lawyers would be capable of defining `intentional recklessness'.The second question I have related to your remarks is that in the Labor Party's amendment they use the words `intentionally reckless'. In amendment (3)(1) they say:A director or other officer of a corporation commits an offence if they:(a) are intentionally reckless; or(b) are intentionally dishonest. I would have thought, if you have problems with the word `intentionally' attached to `reckless', you would have the same problems attached to `dishonest'. So I would like to know whether that is a problem for you as well because I cannot conceive of anybody being dishonest unintentionally. Surely you have to have an intention to be dishonest. The problem may in fact be Labor's addition of the word `intentionally'. My question to you is: would you accept the Labor amendments if the word `intentionally' were dropped from both the reckless and the dishonest subclauses? While I can see that somebody could be intentionally reckless, I suspect it would be a tautology to believe they could be anything other than intentionally dishonest. To be dishonest is an intention. I hope that fairly lengthy exposition is clear to you. I would like your response to those remarks.16:58:009628Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—I am happy to respond because I think it is important. The Evel Knievel example makes the point that a lot of people could try to copy Mr Knievel and would simply just be reckless—they may be slightly intentionally reckless. At the moment, a director just has to be reckless and gets himself off the hook if he is not intentionally reckless. So we are significantly reducing the standard of behaviour that is required of directors. To answer the question, I think the word `intentionally' is nowhere near as problematic when it is attached to the word `dishonest'. It does not change things so much.The government is opposed to fiddling with the wording here because there is a balance that has been sought in all of these changes with the business judgment rule and the statutory derivative action. There are a series of balances and, when you slightly tamper with words that relate to duties of directors, you can collapse a set of dominoes that could end up in a serious undermining of the law. I am informed by my legal eagle experts that the word `reckless' is something that has had a legal definition that has been built up in case law over 100 years. To then attach the word `intentionally' to it would necessarily significantly change that body of law in relation to good faith and directors.The key point is that to be reckless is the test at the moment. To then say to the court that it must also prove that a person has been intentionally reckless makes it a lot easier for a director to get off the hook. He or she could say, `I admit to the court that I was reckless. I was totally reckless. I flew the company motorbike over the Grand Canyon. That was totally reckless. But I did not intend to do it. I was actually trying to drive along the road. I took the wrong turn and I went over the Grand Canyon. It was not my intention to be reckless.' A director says, `Yes, I was reckless; I didn't intend to be', and he is off the hook. That is the point I seek to make. That is why the government regards this as a serious undermining of the duties that the law puts on directors at the moment.17:02:009629Ludwig, Sen JoeSenator LUDWIG84NQldALP00—Perhaps I am a little more perplexed now. As I understood the parliamentary secretary's earlier submission, he was saying that it was a nonsensical provision when you put the two together. Then after Senator Murray's additions his position appears to have changed. He is now arguing that it would be a watering down, or at least a different reflection upon it, or someone might then get off. The parliamentary secretary then mentioned that he had it on some authority that it was a nonsensical provision—in other words, that you cannot put `intentionally reckless' together in the same phrase. I wonder what authority he was relying on when he made that statement.As I understand it, a person can be intentionally reckless. I am open to persuasion in that respect, but some of the case law that I can recall in the law of negligence was where a person—I cannot remember the name of the case—might drive a car without a steering wheel and choose to use a pair of pliers to do the steering. In using the pair of pliers to do the steering, one would regard that the person intended to steer the vehicle and continue on their way. But it was reckless: there was an intention to be reckless in respect of that matter. That is as I understand the situation. The amendment does not necessarily water it down. I would be pleased to receive a response to the issue that I raised about what the parliamentary secretary was relying on when he said that this was a nonsensical provision.17:04:009629Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—The nonsensicality of it is that the person driving the car would be judged, under the existing provisions in this law, to be reckless. If you are trying to impose a standard on a director, it is nonsensical if you have to prove that he had some intention to do it. Why would you want to do that? Why would you want to reduce the standard of duty of care and the standard of good faith on a director? Senator Ludwig and I agree that getting into a corporate vehicle—taking the analogy—and driving with a pair of pliers would be reckless, unless they were a damned good pair of pliers and were not going to slip, and he had a pretty steady head. Any judge in the land would say that was reckless. So why, if you are seeking—as everyone seems to be around this chamber—to make sure that directors act in good faith and have a duty of care, would you then say to a court that needs to impose that duty of care on those directors, `We are going to lift the bar. You actually have to prove that he had an intention'? Why do that?17:05:009629Conroy, Sen StephenSenator CONROY3L6VICALP00—Unfortunately, I am not a lawyer—or fortunately, depending on your perspective. There are a number of discussions taking place around the chamber to clarify the legal points. I am not sure whether Senator Campbell is a lawyer by training. No; he is shaking his head.H15CAMPBELLSenator Ian Campbell—I just hire them when I need them.3L6Conroy, Sen StephenSenator CONROY—Fair enough. We are concerned that, on this issue, you may be under a misapprehension in the way you have described this as a `watering down'. We are not sure that that is the case in terms of legal text and legal position. It may be useful to move on while some discussions place. I yield to Senator Murray on that, if he has a view.17:06:009630Murray, Sen AndrewSenator MURRAY3M6WAAD00—Through the chair: Parliamentary Secretary, I think you make some good points. Whilst I think there is a case for people being intentionally reckless—using my example—nevertheless, I do not think it adds anything and may take away, as you have outlined, from the ability to pin a director for offences. The Labor Party amendment would be improved if it just said `(a) are reckless' rather than `(a) are intentionally reckless'. I do not think we lose anything with that. With regard to paragraph (b) of the Labor Party's amendment, I believe that putting `intentionally' next to `dishonest' does not make any sense because you are either dishonest or you are not. So I would drop `intentionally' there too. As your advisers know, we have previously indicated to the Labor Party that we have sympathy with its amendment because we believe it captures all the elements of the government's amendment but has an improved layout.There are many phrases in both amendments which are exactly similar to phrases in the bill, but the differences are in the presentation of the government's first sentence. The Labor amendment isolates those items and presents them sequentially. That is a matter of style, but we felt it gave greater impact. The Labor amendment then proceeds to include the rest of your intention. So unless the government has a strong and vigorous opposition to it, we would suggest that the Labor amendment—with the deletion of the words `intentionally'—improves both the layout and presentation of the government's clause in the bill without losing any of the strength of it. I would suggest the very valid point Senator Campbell has made about the word `intentionally' should be accepted by the Labor Party, and the word should be deleted.17:08:009630Conroy, Sen StephenSenator CONROY3L6VICALP00—I should indicate that, following the discussions, we would happily accept an amendment from Senator Murray that removed the word `intentionally' from our amendments in both those lines. If Senator Murray wanted to move that way following a discussion, we would happily accept that amendment.17:08:009630Murray, Sen AndrewSenator MURRAY3M6WAAD00—I think I should therefore move an amendment to the Labor Party amendment and see if the Senate would accept it.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Ferguson)—We will get it in writing. I understand that you want to remove the word `intentionally' wherever it is mentioned in schedule 3.3M6Murray, Sen AndrewSenator MURRAY—Yes. Let me be specific for Hansard .10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Sorry; in amendment (3) and amendment (39).3M6Murray, Sen AndrewSenator MURRAY—Yes. It is on sheet 1414. It is amendments (3) and (39). In amendment (3), the word `intentionally' appears in (1)(a) and (1)(b) and should be removed. In amendment (39), it also appears in (1)(a) and (1)(b) and should be removed. I therefore move an amendment to the Labor amendment:Omit "intentionally reckless", substitute "reckless" (wherever occurring).17:09:009630Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—Could I indicate the government's position? It is important. The government would support taking the word `intentionally' out where it appears before the word `reckless'. We do not support taking it out in relation to `dishonest'. Our advice is that `intentionally dishonest' has an important legal meaning, as does `reckless'. It is not the word `intentionally' that we are worried about. We think people with intentions are good people. But we believe that the standard remains high if you remove the word `intentionally' from before `reckless' and you leave it there before `dishonest'.I hope I will not need to speak again if I say this: the government regards this tinkering as incredibly dangerous. We are opposed to the provision even as amended. We continue to have serious reservations about it but we will not seek to divide on it. In other words, as long as we leave the second `intentionally' in there, we agree that what is happening is a significant improvement; yet we still regard it as a dangerous change. But we will not divide on the issue and we would be less unhappy to see the word `intentionally' in the first instance removed.17:11:009631Murray, Sen AndrewSenator MURRAY3M6WAAD00—I want to make it clear that this is not tinkering on the run. As the advisers and the minister know, these matters have been discussed at length prior to this. The Labor Party's amendment was circulated to the government. Obviously, other senators have the option to decide whether to support them or not. But this is not on the run. I am aware that the Labor Party's amendment has long been known to both the government and ourselves.17:11:009631Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—I want to make the point that, to the extent that this has been around, the government has always made its strong opposition known. It has not been considered by any expert committee, such as CASAC. No outside organisations have been consulted, contrary to what has happened with all changes to directors' duties that have been made in the Corporations Law in at least the last 15 years. Making changes in this way is potentially very dangerous. But the Senate has a democratic right to do this. The government will have to make a decision when we see the shape of the final bill. But I am just making it very clear that we will not divide on this. We think that the amendment that is going to be made is an improvement, yet we still have significant reservations about it. I would be very happy to see it put to a vote and move to the next issue.17:12:009631Murray, Sen AndrewSenator MURRAY3M6WAAD00—I will just make one last point. If your viewpoint is valid, it is up to the government to have discussions with the ALP. You have the opportunity within the House of Representatives to look at this matter further, and I am sure they would be willing to do that.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Can I clarify one thing I need to know? Are you now moving that you remove the word `intentionally' from (1)(a) where it relates to `reckless' but not where it relates to `dishonest'?3M6Murray, Sen AndrewSenator MURRAY—Yes, that is my amendment.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—So in opposition amendments (3) and (39), in (1)(a) the word `intentionally' is removed where it appears before `reckless' but it stays where it appears before `dishonest'.17:13:009631Ludwig, Sen JoeSenator LUDWIG84NQldALP00—I do not want to take too much of Senator Campbell's time on this point. We need to move along. The Labor Party has come to a considered position in putting the words `intentionally dishonest' in the amendments that have been proposed. I was curious about your reversal of that originally. As I understand it, you can in fact be intentionally dishonest and you can be dishonest without intent. That has always been my understanding of it. But the matters you raised were effectively that you could not be that. I am curious as to why you have now reversed your position in respect of that. On what basis have you done so?17:14:009631Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—If it seems to anyone that I have reversed my position, I did not mean to. My position always was that I was concerned about the word in relation to `reckless'. That has always been my advice. But if it seemed to anyone that I had mentioned both `intentionally dishonest' and `intentionally reckless', then I apologise for the lack of clarity in my remarks.17:15:009631Conroy, Sen StephenSenator CONROY3L6VICALP00—I just wanted to point out to Senator Ian Campbell—and I think Senator Murray has made this point—that both Senator Murray and I have been burnt by Senator Ian Campbell's interpretations on matters before the chamber. These amendments were circulated and debated in the House of Representatives on 3 June—that is, some four months ago. It would be disappointing if people tried to portray these as last-minute amendments when the last minute was four months ago.I personally circulated these amendments some time ago—three or four weeks ago—to IFSA and to the Australian Institute of Company Directors.H15CAMPBELLSenator Ian Campbell—And I opposed them and opposed them.3L6Conroy, Sen StephenSenator CONROY—There is a difference between discussion and whether or not people agree. The argument that you have previously burnt Senator Murray and me with—and you seem to be beginning to set up the debate again—is that these are last-minute amendments that no-one has looked at. These are amendments that people have looked at. If they do not agree with them, that is a different argument from trying to portray these as last-minute amendments.It would be very disappointing if the government sought, as they did more than 12 months ago, to portray amendments that have been on the table for some months, but that the government did not agree with, as being last minute. I do not mind you saying you do not agree with them, I do not mind the company directors saying they do not agree with them and I do not mind IFSA saying they do not agree with them. What I object to very strongly is the sort of campaign that was waged against both Senator Murray and me over 12 months ago saying that these were last-minute amendments by the chamber. This is not the case.These amendments have been tabled in parliament for four months. I personally wrote to IFSA and the AICD some weeks ago when they appeared not to have seen them, despite them being on the public record for a number of months. I just wanted to make the point that, if Senator Ian Campbell is looking to try to run that campaign, the Hansard and parliamentary record will show that that is incorrect.I also want to indicate that we would support the withdrawal of `intentionally' in both cases, which was what I thought the original amendment you moved intended. You are now indicating that it is just one `intentionally'. We are happy to support your revised amendment to our amendment, which is to take `intentionally' away from `reckless' but to keep it with `dishonest'. We accept your amendment, Senator Murray.Amendments agreed to.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Ferguson)—The question is that opposition amendments Nos. 3 and 39, as amended, and opposition amendment No. 4 be agreed to.Question resolved in the affirmative.17:18:009632Conroy, Sen StephenSenator CONROY3L6VICALP00—I move:(38A) Schedule 5, item 11, page 436 (line 31), omit "what he or she believes to be".This is a consequential amendment that arose through an earlier amendment, when we amended only schedule 1. It was agreed to by everybody previously but there is a second bit that needs to be done as well. I will not speak to it. Senator Ian Campbell and Senator Murray are nodding, so I will not take up any more of the chamber's time. It is just consequential to an earlier amendment.Amendment agreed to.17:20:009632Murray, Sen AndrewSenator MURRAY3M6WAAD00—I move:(1) Schedule 1, item 1, page 45 (after line 18), at the end of section 204B, add: (3) ASIC may determine the qualifications or experience that a person must have to be appointed as a secretary of a public company.This amendment relates to page 45, schedule 1, item 1 at the end of section 204B and is in reference to company secretaries. This is an issue, as you know, on which all of us have been lobbied—rather late in the day in some cases—by the professional association who concern themselves with this matter. The effect of this amendment is to allow ASIC to determine the qualifications that a person must have to be appointed as the secretary of a public company. At present, the Corporations Law requires all companies to appoint a company secretary. This bill removes that requirement and replaces it with a requirement that only public companies must appoint a company secretary.We have been lobbied to retain the existing requirement in relation to company secretaries. We do not see any real value in requir ing all companies to appoint a company secretary, which was also the government's view. This is particularly the case in two-director, mum and dad companies. Quite often, that situation results in the mere nomination of a person as the secretary when that person may in fact have very little involvement in the company. However, we do see value in requiring public companies to appoint a secretary, who will usually have responsibility for ensuring compliance with all manners of statutes. I believe that there is merit in requiring the secretaries of public companies to have qualifications of a certain standard. However, I do believe that the approach to be taken to such a requirement must be flexible.I do not envisage that the law should contain a section which states that a public company secretary must have a law degree or an accounting qualification; that was obviously the request of the professional association that looks after company secretaries. But I can envisage a situation where company secretaries in future might have entirely different qualifications, such as being very proficient with, for instance, computers. It should be the case that the Australian Securities and Investment Commission might periodically prescribe qualifications when and if they think that is appropriate. Accordingly, I commend this amendment to the committee as a means of improving the intention with standards in this area, without derogating at all from the government's intention.17:23:009633Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—The government does have concerns on a number of aspects of this. Firstly, the prescription of minimum qualifications in the law is potentially undesirable. The government has conducted no consultations whatsoever on this proposal. As all honourable senators know, it has been the practice of this government and also previous governments to have significant broad ranging consultations with stakeholders when there has been any change to the Corporations Law. That generally makes changes to the Corporations Law long and tedious, but it usually ensures that there is a high degree of certainty about them. This change, therefore, would have the potential to create a great deal of uncertainty. We are not aware—certainly they did not come to my attention during my term in the portfolio—of any failure of company secretaries to adequately fulfil their duties under the law. Accordingly, there seems to be little justification to impose the suggested changes at this time.I have not discussed this with the minister, and I do not want this to be seen as a fob off—it is a genuine offer—but I am happy to have consultations on this matter. I am happy to have it inquired into either by a relevant parliamentary committee or even by a body such as CASAC, for example, if we do not want to leave it to a parliamentary committee. I am sure the minister would agree to have an independent expert body like CASAC look into this. As honourable senators who are interested in Corporations Law reform know, further bills are coming before this place over the coming months—if not the next year, at least—and on behalf of the government, yet without consultation with the minister I represent, I would be happy to see this referred to a body such as the joint statutory committee or CASAC. I would be happy to hear other views on that, but I do not think it is particularly good practice to impose this new requirement without any consultations whatsoever. We have reservations about it, but I am not saying that it is a bad idea. I am happy to consult on it.17:25:009633Conroy, Sen StephenSenator CONROY3L6VICALP00—I note that my colleague Senator Cooney also wishes to make a contribution, so I will be brief so we can hear from him. The Labor Party are genuinely supportive of Senator Murray's amendment. We think that there is an appropriate need for the right sort of qualifications for people who hold these positions. I have also been lobbied on this issue and I do believe that the company secretary has traditionally been a very important focus for these sorts of corporate governance issues which this parliament has seen fit to support. My concern with where the government seems to be going on this is that those corporate governance issues tend to find a focal point in the position of company secretary—not always, but they do in many cases become the focal point and the point from which good corporate governance practices come and are dealt with in a corporation. To have them dispersed within corporations, certainly the large ones, would in my view be a retrograde step, but I accept the points that Senator Campbell has made and that Senator Murray has made in terms of small companies. Having the position of a company secretary can sometimes cause stretching of resources in the mum and dad partnership company structure.Senator Campbell, I do support and welcome your suggestion that it be referred to a committee. I would like to see both CASAC and the parliamentary committee involved—or perhaps CASAC could make a submission to the parliamentary committee on this. As I indicated to you privately a minute ago—and I am in no way reflecting on your word—you recently made an offer on behalf of the government to do with supporting the re-establishment of the Patrick issue. Senator Murray sat through a very tedious discussion of this at the recent Joint Committee on Corporations and Securities, as I think did Senator Cooney. When I sought to re-establish the Patrick issue, which you had offered support for, government members and senators on that committee voted me down. I urged them to consult you on this. I said that this was an offer made on the floor of the Senate by Senator Campbell on behalf of the government and that all I was seeking to do was to get them to keep the commitment from Senator Campbell.Senator Campbell, you are nodding, so you are aware of the particular debate. I was particularly disappointed that, when I sought to re-establish the reference, which was agreed to in this chamber, by dint of the election coming along the government members and senators voted me down. While I in no way doubt your word on it, I have unfortunately had a recent experience on that reference where your members and senators did not keep the government's word and the word that you gave. I would be keen for you to indicate that my recollection and, as you seem to be nodding, your recollection that the government made a commitment to hold that inquiry is correct. I will take on face value your commitment to refer that matter, but I also draw to your attention the fact that, unfortunately, some members and senators did not keep your previous commitment on that Patrick debate. I urge you to speak with them so that, if I were to move that again, I would have the support of the government members and senators on that committee. So I seek your guidance on both those issues.17:29:009634Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—I would be very disturbed if any commitment I have made in the chamber on behalf of the government were not fulfilled. I will look closely at the detail of that commitment and undertake to see that it is fulfilled. We will certainly ensure that any undertaking I make in relation to this matter is fulfilled. I regard it as an important matter. Company secretaries are critical people in corporate governance in Australia and I would certainly ensure that, if it is decided in the great wisdom of the Senate that it should refer to something like CASAC or the joint statutory committee, that would happen.17:30:009634Cooney, Sen BarneySenator COONEYSF4VICALP00—I would be interested to know from Senator Murray—of course, our position has been put by Senator Conroy—why ASIC is the body that may determine the qualifications or experience that a person must have to be appointed as a secretary of a public company. I know a number of the people in ASIC and they are quite outstanding in the work they do and well qualified, but I am not sure that they are qualified as teachers or as people who know, to the depth that we would perhaps like, what makes a good company secretary. I ask Senator Murray why ASIC should have a part in the setting of qualifications and the education and experience of these people.I know, for example, that doctors, lawyers, architects and other people qualify and have their standards set by universities, or when a person goes on to be a solicitor by a board of examiners, but what precisely ASIC has to do with the qualifications and experience of a secretary I am not sure. It just seems to me that there are plenty of other bodies that could do that better. I am not concerned about the proposition that people ought to be qualified properly to take on the secretaryship of a public company, because public companies are a vital social institution. But why should ASIC, in addition to the onerous tasks it has already got, and I know it has not got enough people to do them, have to take on the additional task of setting qualifications and experience, and how is it possibly going to be able to do it?17:32:009635Murray, Sen AndrewSenator MURRAY3M6WAAD00—As always, Senator Cooney asks interesting questions. I will start by referring, if I may, to Senator Cooney's own guild, his own closed shop, and that is the lawyers, who determine what qualifications one should have and how one should proceed to be recognised in law and in practice. The Institute of Company Secretaries—I need your attention, Senator Cooney, if you are going to understand the response—SF4COONEYSenator Cooney—I am listening.3M6Murray, Sen AndrewSenator MURRAY—The Institute of Company Secretaries lobbied the government, the Labor Party and us with a full submission. That submission was somewhat self-serving, as you would expect. They are looking after their own self-interest, and there is nothing wrong with that. What they were saying in their submission is that the law should be prescriptive as to not only what entities should have company secretaries, to a far greater extent than the government has suggested, but also the qualifications and duties that those company secretaries should have. We, the Democrats, took account of the government's view that they wished to avoid as much prescription in there as possible and we understood that they are seeking to allow companies, through their boards, to determine who does what and what are the appropriate qualifications that are relevant to those boards. However, we accepted that the company secretaries have traditionally had a very important role in the focus that they put on corporate governance, on dealing with legal issues and on dealing with accounting issues in a particular professional way. In other words, they are often the ethics commissioner, the attorney-general, if you like, of a board, with that kind of brief to be both independent and objective in the pursuit of their duties.To return to your question, if we agreed with the government that we should in fact avoid prescription but we agreed with the company secretaries that you should have persons of appropriate qualifications, and we could also envisage a situation where the appropriate qualifications could change over time—and I gave as an example that it might be extremely important for persons with that function to be highly proficient in interactive computer skills—and if there was a desire to maintain high professional standards then the best body to determine that would be ASIC, who would obviously do it in consultation with the professional associations that determine these things. Otherwise, like the lawyers, who have this kind of closed shop device whereby they determine their own background and destiny and how things get along—I am not saying this to dig into your ribs; I am merely saying that they have got a superbly organised closed shop, in my opinion—the Institute of Company Secretaries would continue to run things the way that suited them and their people best. So my view is that ASIC, as the professional body with real authority and understanding of Corporations Law, is the appropriate body to lay down appropriate qualifications, after consultation with the professional bodies that are concerned, which is not just the Institute of Company Secretaries but would include the Institute of Company Directors and any other body that they thought appropriate.The second thing I should say with regard to the parliamentary secretary's remarks is that I should have made it clear in my exposition of the arguments for this amendment that I have used the word `may'—not `must', `may'—because ASIC may take the view that the qualifications and standards being pursued are perfectly reasonable and acceptable at this time, but in five or 10 years time they may not take that view. They may then decide that they need to beef up ethics and standards by perhaps being a little tighter with their recommendations on qualifications.I hope that fairly fulsome response gives you an understanding of my reasons. You might not agree with them, but hopefully you now understand what my reasons are. They result from a very considered response to interviews with, and a very detailed presentation in the submission from, the Chartered Institute of Company Secretaries. It is not something that we just dreamt up as we went along. That is the purpose of it.17:38:009636Cooney, Sen BarneySenator COONEYSF4VICALP00—What Senator Murray has said is that you should not leave these things to the profession, and that is more and more the way these days. In Victoria, for example, you now have all sorts of bodies set up to regulate the legal profession. But all those bodies have the purpose of looking after the profession in the sense of regulating it—looking at standards and what have you. We do not have the Victorian police determining the qualifications or experience that a person must have to be appointed a lawyer in Victoria because the Victorian police have a different function. Senator Murray said that he has discussed these issues with the Chartered Institute of Company Secretaries and so on, so this is a planned thing.But as it stands there now you have the strange situation where the contents of, and the qualifications and experience required by, a profession have to be determined by what is in effect a regulatory body—a body that polices a particular section of society, namely companies. That seems to me to be a different function altogether from that of setting qualifications and experience. ASIC might set standards—in fact, it does. It says, `You've got to come up to this level of action for it to get past our scrutiny.' But we are not talking about actions here or conduct; we are talking about qualifications and experience. How people at ASIC, with all their goodness, can sit there and judge the experience of a company secretary—how they have the time to do that, for a start, in the way that we would want it done here—seems very interesting to me. The other point I want to make is this: when they regulated the profession in Victoria, as Senator Murray said, they did so with a fairly thick bit of legislation, because it is a much more complicated process than simply putting a couple of lines in a general act, may I suggest.17:41:009636Ludwig, Sen JoeSenator LUDWIG84NQldALP00—My comment comes on the back of what has already been put. It is an interesting point that is being made. When you look at the Australian Securities and Investment Commission, they are, as Senator Cooney has pointed out, a regulatory authority. One would then have to look at whether or not to come to the conclusion that ASIC should have the ability to set or determine qualifications. One would have to be able to look at ASIC to determine whether or not they have within their own ranks people who have the necessary training and ability to set and determine competency levels and qualifications, to then put them into effect and to require people to determine those qualifications for the secretary's position.In addition, it is important to look at putting those two functions together—that is, both the policing or regulatory authority and an auth ority that would also look after the qualifications. As far back as the Robens committee of inquiry in England, they put forward the notion that you should separate both the policing and the regulatory authority so that there was at least a separation between the two. Otherwise, you run the risk of having someone who not only regulates but also enforces sitting in the same chair. It has always been decided, at least from a Public Service perspective, that it is far better to be able to separate them for scrutiny and for a whole range of other reasons.Senator Murray raises an interesting question. He raises the fortunate issue that ASIC `may' determine the qualifications. I found through my experience that usually if you put `may', ASIC will read that as `must' and will launch off and do that. I could not imagine them being reticent about setting qualifications. It then does not provide an idea of what those qualifications, the criteria and other matters involved in determining those qualifi cations for a company secretary might be. So I would caution against moving directly as Senator Murray has suggested without, at least, far more consideration of the issue than what is being given here today.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Ferguson)—The question is that the amendment moved by Senator Murray be agreed to.Question resolved in the affirmative.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—We now move to opposition amendments Nos 5 and 6 on sheet 1414.17:44:009637Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—I would like to make an intervention. My idea of sending Senator Murray's amendments to CASAC or the committee was an alternative to putting it into law. I do regard it as bad form that it has gone into law without any consultation with stakeholders. That was my offer. It was not, `Let's pass it and then send it to a committee.' My offer was, `Let's not put it into law before it has been considered by stakeholders.' Can I make that clear to the chamber so it does not come up in another year's time that I did not do it. I will not now be sending it to CASAC or to the joint statutory committee because it is now in the law and ASIC will have to work it out somehow. I hope that was clear when the Labor Party actually voted for this: it is now in the law.17:45:009637Murray, Sen AndrewSenator MURRAY3M6WAAD00—I must confess I cannot remember, when I had the discussion with ASIC, whether I did discuss this with them. I suspect I did, but I am not going to produce a sworn affidavit to that effect. I got a bit confused by that because, having had Senators Cooney and Ludwig argue against it, I expected it to go down. So I was a little surprised.Senator Ian Campbell interjecting—3M6Murray, Sen AndrewSenator MURRAY—I know Senator Campbell does not like to give an inch, if he can avoid it. I do not say that unkindly, Senator Campbell; I just make the observation. If the government remains very strong about this matter, it will no doubt come back to the Senate. I think the provisions of May in fact give the discretion that is appropriate. I have previously discussed this with the advisers and the minister, so they are well aware of it. They will let the Labor Party make a judgment on it.10000Murray, Sen AndrewThe TEMPORARY CHAIRMAN (Senator Ferguson)—I think I perhaps need to clarify the situation. Senator Conroy, what did you call?17:46:009637Conroy, Sen StephenSenator CONROY3L6VICALP00—No. I have just been consulting my colleagues, and we would happily have that recommitted and take up the parliamentary secretary's offer.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN—Is leave granted to recommit Democrat amendment No. 1?Leave granted.3L6CONROYSenator Conroy—I want to make the point that we should get the government's commitment clearly on the Hansard .17:47:009637Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—I would be very happy, as I have said previ ously, to refer this matter to either the CASAC or the Joint Committee on Corporations and Securities, or both. I would be happy to consult with the opposition and any other honourable senators who have an interest in this to see what is the most appropriate committee. I suspect, in some respects, it would probably be the CASAC.Amendment not agreed to.17:48:009637Conroy, Sen StephenSenator CONROY3L6VICALP00—by leave—I move opposition amendments (5) and (6):(5) Schedule 1, item 3, page 81 (after line 11), before subparagraph (i), insert: (ia) the ASIC; or(6) Schedule 1, item 3, page 83 (after line 18), before paragraph (1)(a), insert: (aa) the ASIC;Labor is moving an amendment to the government's proposal to allow shareholders to undertake a statutory derivative action and court proceedings on behalf of a company. The current Corporations Law regime already allows such action, but the process to do so is not clear and it is not often used. There is a widely held view that, without clear statutory procedures, pursuing a derivative action will continue to be a confusing exercise.However, the opposition believes that the statutory derivative action rule proposed by the government is likely to be too onerous for individual investors to utilise. It is doubtful whether many shareholders will be able to meet the onerous requirement of applying for leave from the court to take action. The ineligibility of ASIC to apply for leave from the court is difficult to understand. As the government created consumer protector, ASIC should surely have the power to act under these provisions. Labor accepts that it would be appropriate that the right to take a statutory derivative action should be extended to ASIC because small shareholders may not have the resources to take such action. The opposition's amendment is designed to ensure that this can occur.It was the opposition's initial understanding that the government had indicated an intention to accept a recommendation of the joint parliamentary committee report to allow this to occur. If this is still the case, I look forward to the government's support for the amendment. Our amendment to allow ASIC, which is the government nominated consumer financial services protection agency, to have the right to pursue statutory derivative actions on the behalf of shareholders will extend consumer protection and improve the accountability of directors. While the government claims that its proposal to allow shareholders to take a statutory derivative action will balance the so-called safe harbour provisions, it is clear that the government's proposal does not balance the ledger at all.Labor's amendment will go some way towards achieving appropriate rights for shareholders. With the government trumpeting its support for Australia as a shareholding nation, I would have thought that it would support a regime that provides an appropriate level of protection for the thousands of new and somewhat inexperienced shareholders who have entered the market.I recently attended a two-day seminar on corporate governance and a whole variety of issues to do with corporate governance, including some discussion on the statutory derivative action. One of the nation's largest legal firms was the speaker on this issue at that conference. I think it would be fair to say that this company did not realise that I was in the audience because, when asked about the statutory derivative action, the response from one of the leading law firms of this country was that the statutory derivative action as defined in this bill was a joke, it was irrelevant, and it would be something which companies could ignore at will. This is not the Labor Party saying this; this is not the Democrats saying this. I say to Senator Murray and the Democrats that this was a leading Australian law firm which said it was a joke. So the government come before us today and say that this is the balance for the safe harbour, but this is no balance at all. In its current form it does not go anywhere near far enough. It is rightly being treated and described as a joke in business and legal circles. For the government to try to maintain the fiction that it is an appropriate level of balance is just that—a fiction.I commend the amendments to the Senate, and I look forward to hearing the government's position. As I said, they did indicate earlier on that they may be willing to support the amendments. I am not sure where they are at the moment. I am hopeful that the Democrats are also willing to support our amendments.17:52:009638Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—I fully trust what Senator Conroy is saying about a supposedly major senior law firm in Australia, or at least a spokesman for it. We genuinely try to balance the BJR proposals against the statutory derivative action. It is a genuine, quite clear and constructive move towards giving enhanced rights to shareholders to take actions on behalf of the company at the company's expense where the company refuses to act. Beyond any doubt it is a new right. People might argue about how much the right will be used or how it could be curtailed. We went to extraordinary lengths to ensure that it was a significant new statutory right for shareholders, particularly minority shareholders by definition.It is fair to say that during those consultations interests associated with company directors, right up until the final drafting of the law, fought hammer and tongs to not have a statutory derivative action. The company director side of the argument did not like this; they did not want it. They thought they should have a business judgment rule, that that was all okay, but they did not want an SDA. I think people like Senator Cooney and probably Senator Conroy and Senator Murray, who have had discussions with the various stakeholders in this debate, would not be surprised that I say that. The company directors would much prefer not to have the statutory derivative action. Generally speaking, it is fair to say that some of the minority shareholder interests would prefer not to have the BJR.We looked very carefully at the proposals in the Cooney committee, the Lavarch committee and other committees outside the parliament for a business judgment rule. I know that proposals for an SDA, a statutory derivative right of action, were also considered because I read the Lavarch report again today. I cannot remember whether Senator Cooney's committee looked at a SDA when they were considering a BJR. I apologise to people across Australia who are tuned into this lively and interesting debate on Corporations Law reform for using those acronyms. We put the SDA in to create a balance. The achievement of the government is that everyone, including the Australian Shareholders Association and other consumer organisations, has agreed that we have found a fair balance.To answer Senator Conroy's point that we could toughen this up by giving ASIC the right to use it as well, I did, as he would expect, raise this matter over the couple of years it took to draft these laws. It is a quite legitimate proposal. I discussed it closely with ASIC, who were totally sanguine about it. They were sanguine about it for this reason: under section 50, for example, they can already take action on behalf of investors. With the statutory derivative right of action—that is, giving a statutory right of action to shareholders to take action against directors on behalf of the company or against the company using the company's resources—we are giving a right to the shareholders that, at the moment, is only available to the regulator.During my term in the portfolio, I received many letters—as I am sure all of us who have been associated with corporate affairs will have—from disgruntled shareholders who want ASIC to go after someone. ASIC have limited resources; they always have limited resources by nature. They can only go after the ones where they are pretty certain of getting a prosecution. Like any organisation that has limited resources, they cannot chase down every rabbit hole, every complaint from every disgruntled investor. We would love it if they could. What this does is say to those shareholders that, if you can get an action together, if you can get together as a group of shareholders, you now have this right to do so under the law. You do not have to do it through the civil provisions.ASIC's powers are the focus of the amendments moved by Labor. As I said, I did have a close look at it. The government closely considered whether, firstly, ASIC needed or wanted the powers. We discussed and debated that with them closely. We discussed it with other stakeholders. We found that, under section 50, ASIC could already take action on behalf of shareholders and could also bring proceedings directly for any breach of the law under the civil and criminal penalty regime of the Corporations Law. The point I make, as briefly as possible, is that ASIC do not need this power; they already have it. What we are trying to do is give shareholders' minority interests access to the sorts of powers under the law that ASIC already hold. That is the government's view on it. We see nothing wrong with the intention of these amendments moved by Senator Conroy on behalf of the opposition, but we do not think they achieve anything.17:58:009639Ludwig, Sen JoeSenator LUDWIG84NQldALP00—I would like to speak to the point you raised regarding section 236. As I understand it, you are effectively saying that it is a positive advantage; you are broadening the proposal to allow a court appointed investigator to be able to investigate the causes of actions and report back to the court itself. Recently I read an article from the CCH Internet site written by Russell Evans and headed `Court appointed investigators in statutory derivative actions'. It states:Left unaddressed is whether an investigator becomes an officer of the Court by virtue of his or her appointment. And, if so, could a person be in contempt of Court by refusing to co-operate with an investigator? Will an investigator have privilege? Will an investigator be bound by an obligation of confidence?I wonder if you could provide some advice to the chamber if you are going to go down the track of having an investigator who can act in these very important matters. As we know, the rule in Foss v. Harbottle has practically done away with the statutory derivative action provision that you are intending to use.If it is the case that a person who takes on that mantle is able, by virtue of their appointment, to go in and do what is necessary, there is the question of whether they can go in fearlessly, with confidence and with the surety that they have things such as privilege or qualified privilege. They are fine points, but without that being made clear people will certainly be left in some doubt. Could the minister provide some information with respect to that?18:00:009640Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—I do not think this particularly relates to the debate about the statutory derivative right of action that we are seeking to give to shareholders. As I understood the question, it goes to the rights of investigators who work for ASIC—going back to the concept of the regulator also acting as the prosecutor—and whether or not that role is compromised in any way by these provisions. Perhaps you could clarify that. I do not see that the point you made is actually directly related to the statutory derivative right of action.18:01:009640Ludwig, Sen JoeSenator LUDWIG84NQldALP00—Section 236 will permit specified persons to bring an action on behalf of the company or to intervene to take responsibility for proceedings of which the company is already a party. The person specified is `a member, former member or a person entitled to become a member of a company or related body corporate, or an officer or a former officer of the company'. Such a person will need to apply to the court for leave to bring or intervene in the proceedings. So it does arise directly within section 236.When you look at that situation, the court must grant leave if it is satisfied as to certain criteria, including that `the applicant is acting in good faith, that there is a serious issue to be tried and that the granting of leave would be in the best interests of the company', which is stated in section 237. It will also be possible for a further person to be granted leave by the court in substitution for the person initially granted leave by the court, which is stated in section 238. Labor is suggesting that ASIC also be added as one of those bodies. The reason behind that, I suspect, is to ensure there is a properly resourced, independent appropriate body to look at it. Because of the way that the existing provisions are actually worded, I am left in some doubt as to the position of that investigator—that is, the person would then be able to do it without the amendments proposed by Labor.I will go again to the questions that remain, which are, I understand, left in the body of section 236. Those questions are: if that person becomes an officer of the court by virtue of his or her appointment, could that person be in contempt of court by refusing to cooperate with an investigator, will an investigator have privilege and will an investigator be bound by an obligation of confidence? You can then look at the court's power to appoint an investigator, which comes up under `General powers of the Court', at section 241. That section says:The Court may make any orders, and give any directions, that it considers appropriate in relation to proceedings brought or intervened in with leave, or an application for leave, including . . . And it goes on with (a), (b), (c), and so forth. When you examine that provision you find that the court is required to make orders as to who is to be liable for the investigator's costs, although the court may vary that order at any time, which is stated in section 241(3). It goes on further. Part 2F.1A is silent on the question of whether a court appointed investigator is an officer of the court. I take you to 6.63, which is in the explanatory memorandum. It says that `a court appointed investigator will effectively be an officer of the court'. It does not say that they will in fact be an officer of the court; it just says `effectively'.They are matters that have been raised in a number of articles that, as I have said, I have read in respect of this section, which I suspect has prompted our view be adopted that ASIC should be in there. I think it is entirely appropriate and that is the basis of the argument that I am putting to you. I hope that has explained, in short form I suspect, where I am coming from so that you can provide some light on some of those matters. I am asking: can refusal to cooperate with an investigator be a contempt of court? It is a serious matter that I think requires an answer in respect of those provisions under section 236, which has obviously prompted this side of the chamber to also include ASIC as part of the operation. I can go on with a further explanation, but I hope that makes it a bit plainer.18:06:009641Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—I am clear. We were on slightly different wavelengths but we have now got into a simulcast situation. The position remains the same. I have listened very carefully and have understood the points made, but the government position remains unchanged. This is not a provision that seeks to give ASIC any alternative powers; it is an addition to the law which is designed absolutely to give shareholders additional powers. The law already sets out a range of powers and rights of action for statutory rights of action for ASIC in relation to a whole range of matters. This is a provision that is aimed fairly and squarely and unambiguously at giving shareholders a right.It does not inhibit shareholders running off to ASIC; it gives shareholders a special new statutory derivative right of action that they can take. They can go to the courts and if they can satisfy the courts in respect of the terms in section 236 and onwards that Senator Ludwig has already eloquently outlined and if they can meet what are very reasonable tests—it cannot be frivolous and it cannot be vexatious; they have to have a serious case to try—then they can do so. The company will pay for it and the court can establish investigators, and so forth. I hear what Senator Ludwig is saying. I have heard the argument before. I have heard the arguments back and forth about whether ASIC should be listed here. It is contrary to the clear policy intent to have ASIC included in the SDA.18:08:009641Murray, Sen AndrewSenator MURRAY3M6WAAD00—The effect of these amendments is to give ASIC the power to bring statutory derivative actions. Let me see how we go with this: a derivative action is a claim made through the courts by the shareholders of a company against the director of the company. The important point to note is that the action against the director is brought in the name of the company, not in the name of the shareholders. As a general comment, under present law, derivative actions are not permitted. That means that, if directors commit a wrong against a company and they decide that a company should not commence an action against themselves, the shareholders have no ability to commence an action against them in the name of the company.The statutory derivative action contained in proposed section 236 will allow shareholders to commence a derivative action against the directors in certain circumstances, and that is a desirable improvement to the law. In proposed section 237, derivative action may be brought only with leave of the court. The court must be satisfied that it is probable that the company will not itself bring the proceedings, that the applicant is acting in good faith, that it is in the best interests of the company that the applicant be allowed to commence proceedings, that there is a serious question to be tried, and that notice has been given of the intention to seek leave. These Labor Party amendments propose that the right of a shareholder to bring a derivative action should also be extended to ASIC—that is, that ASIC should also be able to apply to a court to bring a derivative action. I see in this the following issue: shareholders have not had this right and now they are to be given this right. In other words, they have the ability to act in a way they have not before, and that is very desirable.Parliamentary Secretary, is it your expectation in behavioural terms that, if ASIC were given the power, shareholders would not do anything—that they would demand that ASIC do it? In other words, that they would shift the responsibility and the cost from themselves to the government and ask the government to pursue a private action against a company? Is it a weakness that is at the core of this problem? I do not want to put words into their mouths because I have not heard them say it, but I assume the Labor Party are saying that there may be some shareholders who would not be able to get their act together, or who are very poor, or who would not understand how to do things. They would like somebody else to do it for them because, otherwise, it would not happen.That would not be the case with many shareholders. You might find some extremely well-heeled shareholders—some very large, powerful and wealthy shareholders—who would say, `Hang on. Why should we carry the cost and the expense and the difficulty of this action? We'll get ASIC to do it for us, and we'll tie up public resources, public money and public officers with pursuing what is essentially a private action.' Parliamentary Secretary, am I right?H15CAMPBELLSenator Ian Campbell—Spot on.3M6Murray, Sen AndrewSenator MURRAY—Could you let me know where this problem lies and where the real issue is? My memory does not extend to that, despite having been exposed to all this stuff for years. Could you let me know whether most of the people who write to you to complain about the inability to take action have been poor, weak and disorganised shareholders or whether they constitute the whole range of shareholders from those who are ordinary to those who are substantially well off?18:12:009642Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—I am very happy to. Senator Murray has hit bullseye with his summation of the problem. Certainly in my time I did get correspondence from very wealthy individuals who were disgruntled, wanted to take action and were very upset that ASIC had not. I vowed not to call them mums and dads, but I got small investors—householders and Howard battlers—who wanted their gripe with the company resolved.This new statutory right for shareholders will, for the first time, give them the opportunity to take their case on behalf of their interests and the interests of the company. It is a new right. It will not matter if they are not particularly well off—and Senator Ludwig will tell you, I'm sure, that there are a lot of lawyers around who are looking to take cases—because all they will have to do will be to find a lawyer who thinks they have half a case. If they have a decent case they will get it into the court and the company will pay. So a lawyer who is looking to help the poor downtrodden shareholder is likely to assist if they, in their own judgment, decide that the shareholder has some sort of case under this law. The point you make in terms of the incentive for a shareholder to go running first to ASIC is a very valid one, and that is why we have been very clear.We have looked at it very closely. It is not an ideological position; it is a practical position, as you have picked up, Senator Murray. It is a very practical thing. We have thought about it, we have looked at it and we have made the decision that this is for shareholders. We want to encourage shareholder activism, and this is a brilliant way to do it. It gives them a right to be active. They do not have to yell and scream at an AGM and be fobbed off and come back in 12 months time. If they are not happy they have this right, and they can take it.It is a very good corporate governance measure. I will be watching very closely— probably more closely than just about anybody this country—to see how often it is used and how successfully it is used. I really hope it gets through intact today and that it is embraced by shareholders as a new arrow in their armoury to improve the rights of shareholders and increase and better Australia's corporate governance.18:15:009643Murray, Sen AndrewSenator MURRAY3M6WAAD00—Parliamentary Secretary, let me ensure that I have got the sequence right. Although I know that the company can end up paying for the action eventually, in the intervening time shareholders have to get together and risk a bit of money to get advice early on and get the whole thing processed. It is in that intervening stage that they would find it much more attractive to get ASIC involved in the early cost. That is true, isn't it? Although the company itself might pay for an action which does get into the courts on due grounds, it is the intervening phase which makes it attractive for shareholders to go to ASIC because they do not get involved with having to get expensive advice and to fund the early stages.18:16:009643Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—Section 242 at page 85 of the bill makes it clear:The Court may at any time make any orders it considers appropriate about the costs of the following persons—which are then enumerated—in relation to proceedings brought or intervened in with leave under section 237. . . What I am advised that means is that even on the very first day of the court the person representing the shareholder or shareholders can seek costs and that the court under this provision has the power to make those cost orders on day one. So one would envisage that, if the shareholders went to the court on the first day and the court gave leave under 237, the cost orders could be made there and then. So the risk is very low at the outset. As long as the lawyer thought there was a case to be tried and thought he had a fair go, he could go along to the court and clearly, if they were successful in the very initial stages, the court could make those costs. I am not a lawyer. As I said, I hire them when I need them. I have many good ones advising me today at little cost to me but at massive cost to the taxpayer.3L6CONROYSenator Conroy—They wish.H15Campbell, Sen IanSenator IAN CAMPBELL—They deserve to be paid a lot more, these people, they really do.That would be an appropriate thing a court would take into account, I would think. If you went there and you had an impecunious set of shareholders, that would be something I would imagine their legal representation would put before the court there and then and, if the case had merit, ensure that it could proceed.We have agreement amongst the parties to allow the Senate to sit till 7.20 p.m. on this matter. I thought I might deal with that now rather than waiting until later.Progress reported.Motion (by Senator Ian Campbell) agreed to:That the committee have leave to sit again at a later hour of the day.Business96439643Motion (by Senator Ian Campbell)—by leave—agreed to:That consideration of government documents be not proceeded with this day and that government business continue until 7.20 p.m.Bills9643r6709643Consideration resumed.18:20:009643Conroy, Sen StephenSenator CONROY3L6VICALP00—The points you have raised are very valid, Senator Murray. If you read—and I am sure you have—the explanatory memorandum closely, 6.3 on page 21 makes it quite clear what the agenda is here. It mentions Foss v. Harbottle , which more learned people than I have already referred to, and talks about what flowed from that—there is no proper role for ASIC to proceed. `Effectively, the action is designed to be a self-help measure' is how the government is describing this venture. It says:In this regard, a statutory derivative action has the potential to remove some of the regulatory burden from ASIC by making it easier for investors . . .What we are seeing here is ASIC being able to wash its hands of small investors who have a problem. Notwithstanding that, they go on to say—Senator Campbell has also said this—that there are other means by which ASIC may commence actions on behalf of investors—for example, under section 50. This is a mechanism that is about saying: `No, I am not going to intervene.' This is ASIC getting out of its obligation.There are some things that as a community and as a parliament we expect ASIC to do. We supported ASIC becoming the consumer watchdog, the consumer protector, the financial services protector for small shareholders. We all voted for that, we passed it and the government assured us that ASIC would have the resources to do its job. As Senator Campbell has already said, there are things that ASIC will always have to prioritise.What we will be doing here today, if we do not accept the Labor amendments, is consigning small shareholders to the dustbin because, as you have described, Senator Murray, there is not a lot of opportunity for people who are not as well off to actually get involved in this. Many times lawyers will require collateral. Would you be prepared to put your house on taking on a huge corporation? Would you be prepared to risk all of your assets?H15CAMPBELLSenator Ian Campbell—Slater and Gordon would take it on.3L6Conroy, Sen StephenSenator CONROY—Would you be prepared to risk all of your superannuation to take on a huge company, with almost unlimited legal resources designed to drive you into the ground? The answer is: of course not. That is what will happen if ASIC is able to wash its hands. Always be suspicious when a regulatory authority wants to say, `This is for self-help.' It is designed to remove some of the regulatory burden from ASIC. I did not know we wanted to remove the regulatory burden from ASIC. I thought that was their job. I thought that is why we created ASIC in its current form. That is why this Senate chamber was asked by the government—I think the Democrats, like the opposition, supported this—to make ASIC the watchdog in this area. Well, now we are into self-help, a bit of reciprocal obligation for the poor punter who has a few shares and nothing much else behind them.I urge the Democrats to reconsider. Senator Murray has asked Senator Ian Campbell all the right questions so far. I do not believe he has given the Democrats any satisfactory answers, making jokes about Slater and Gordon across the chamber. What is at stake here is far more than what is at stake for you or me.H15CAMPBELLSenator Ian Campbell—What about Rene Rivkin? He'll do it too.3L6Conroy, Sen StephenSenator CONROY—The parliamentary secretary can make frivolous interjections, but we are talking about genuine protection and the capacity for people who are not able to take on big corporations being taken away if this amendment is not supported.H15CAMPBELLSenator Ian Campbell—But the company pays.3L6Conroy, Sen StephenSenator CONROY—To get involved, you have to go to court first before the company pays, Senator Campbell, as you well know. You have to be prepared to put your money up to start the process. That is the hurdle that you know full well is there and that is what will make sure that almost nobody bothers to take up this option.H15CAMPBELLSenator Ian Campbell—What's your solution? Do you have a solution?3L6Conroy, Sen StephenSenator CONROY—My solution is for ASIC. This is what the amendment is about.H15CAMPBELLSenator Ian Campbell—It is already in there.3L6Conroy, Sen StephenSenator CONROY—It is not. You well know, Senator Campbell, that this is designed to do the exact opposite to what you describe. This is designed to stop small shareholders being able to access their proper legal rights. This is about ASIC washing its hands and saying, `You've got the option. You go away and do it. We don't have to do it.' That is what this is about. This is the excuse for ASIC to wash its hands of all small shareholders complaints. That is not the role of the regulator. It is not about self-help. It is not about removing the regulatory burden from ASIC.H15CAMPBELLSenator Ian Campbell—You just said ASIC wants what you want. You cannot have it both ways. Do ASIC want it or don't they want it? Do you know?3L6Conroy, Sen StephenSenator CONROY—I am not interested in whether or not ASIC want it. I am saying that it is this parliament's job to decide ASIC's role and to assign its regulatory burden. As you have described in the explanatory memorandum—these are your words; I hope you have read them—`a statutory derivative action has the potential to remove some of the regulatory burden from ASIC', and it is removing it from ASIC by plonking it onto the people who can least afford it. I say that is wrong and we give it back to ASIC, whether ASIC want it or not. It is not ASIC's job to say, `We don't want to be involved in those little shareholder things.' If the parliament says, `That's your job; that's your role,' then we expect ASIC to perform its role. It is nice that you organised for Alan Cameron to meet with Senator Murray on a range of these issues. There was no such offer to us, at any stage, to discuss these issues with ASIC.3M6MURRAYSenator Murray—I asked for it, Senator Conroy.3L6Conroy, Sen StephenSenator CONROY—I am glad that the government were willing to cooperate. I appreciate the interjection, Senator Murray.3M6MURRAYSenator Murray—I asked ASIC; I did not ask the government.3L6Conroy, Sen StephenSenator CONROY—I am sure that ASIC cleared it with the government before they came wandering down to see you. I am sure that the government have not let it slip—H15CAMPBELLSenator Ian Campbell—They come to see you without having talked to us. That's always been the way.3L6Conroy, Sen StephenSenator CONROY—They have never wandered in to see me. I occasionally have conversations with ASIC, usually informally over a cup of tea during estimates.H15CAMPBELLSenator Ian Campbell—They have regularly done so.3L6Conroy, Sen StephenSenator CONROY—I have not been briefed by them yet on any issues. The point is that, if ASIC came to me to discuss these issues and said, `Look, Senator Conroy, we really don't want this. We're into this self-help stuff. We're into making the poor people pay if they want to try to start this process,' I would say, `Well that's nice of you, ASIC, but tough!' What my amendments seek to do is to put on the table that ASIC has to do this and has to commit resources to it. I know resources are a constant battle, Senator Campbell. I appreciate the point you made earlier. There is always a prioritisation. But to effectively give small shareholders the flick in this way, as you are seeking to do if you vote against the Labor Party amendment, is reprehensible. I do not believe it is in the interests of shareholders. I do not believe it is in the interests of all the mums and dads whom you and your government so regularly champion. As recently as yesterday, the Treasurer waxed lyrical about the 32 per cent of Australians directly owning shares, the 560,000 Australians who purchased shares, the 75 per cent of Telstra employees who took up shares. They are the people you will be giving the flick to if you vote against these amendments.I ask the Democrats to reconsider. You have asked all the right questions, Senator Murray. I cannot believe that the answers that I have heard would have satisfied your concerns in this area. Just because ASIC say that they do not want it and are saying, `We would like to remove some of our regulatory burden,' that should not be enough for this chamber, for the Labor Party and the Democrats, to say, `Okay, we'll give ASIC what they want,' or, `We'll give the government what they want.' I urge you to consider supporting our amendments and hope that you are willing to vote for them.18:30:009645Cooney, Sen BarneySenator COONEYSF4VICALP00—I wish to add to what Senator Conroy has said. If we are to have a law, it ought to be available to everybody who needs it. What often happens in discussions in this chamber is that various parliamentarians arguing around the chamber creates scenarios which prove their point. That was done in this case. Senator Murray said, `What would big business people do? What would people with big money do? They would go to ASIC. Therefore, ASIC would have to spend money which would be better spent elsewhere and would, as it were, supplement with legal aid people who are rich and wealthy.' That ignores the fact that ASIC would have a choice. The section reads that a person—it may be ASIC—`may bring proceedings'. A person does not have to do so.If the amendments that the opposition proposes were carried, it would give small people, as Senator Conroy has said, the opportunity of making use of the proceedings that are now made available under section 236. Those proceedings are now going to be available to very wealthy people, but they are not going to be available to the mums and dads who are not wealthy—as has been said again and again during this debate—but who now have shares. Australia has become a shareholding nation. Why should those people be denied the same opportunity that will be available, when this legislation is passed, to people with greater resources? Why should they be denied that simply because they do not have the money? That is a question that is asked again and again in the general law in terms of legal aid. This is not a matter of legal aid: it is a matter of enabling, in the proper circumstances—and I would imagine that they would be very limited—ASIC to take proceedings that are appropriate. If you are going to give a right, make that right available to all people.This is an important section. It is a section that gives people who are members of companies, or have been members of companies, a constitutional right, as it were, to do something about that company. This procedure is going to be very expensive. As has been said, first of all, leave has to be obtained and the person that seeks the leave has the onus of proving the various matters that are set out in section 237. That could well be an expensive proceeding. You have to prove, for example, that it is in the best interests of the company that the applicant be granted leave. Once that leave is granted, proceedings, of whatever nature, must follow.It is said that there are lawyers who do matters subject to results and that is so, particularly in matters such as criminal law or family law. But I do not know many big legal firms that tend to deal with company matters that would do these matters on contingency for small people. That is fair enough. They are big companies and they are handling big clients. To handle small matters like this would interfere with the general running of their practice. I am not condemning that. I might say that many big firms do give legal aid in areas such as criminal law and family law. I am not in any way denigrating them. What I am saying is that the structure of their business would not enable them to do that.Perhaps the parliamentary secretary could ask his advisers how an action such as this would affect the running of a company, what would be involved, what witnesses you would have to get, what the cost of it would be and what sort of evidence would be needed. Indeed, in their experience of having run these cases, can they say how long similar cases have run and how much those barristers that practise in company law would charge? Do they think that a small person would have not only the financial resources but also the emotional resources to go up against a big company which, I would imagine, would have the top people in the land acting for them, and do they reckon that would be a fair contest?We have to remember that ASIC would make the choice as to whether or not it would take up such an action. It is not obliged to take up an action if it does not want to do so. We are talking about a couple of gateways for somebody who wants to bring an action against a company. The first gateway is getting through ASIC, which would be very difficult. The second is getting through the gateway of the court to get leave to take proceedings. The third gateway is the actual action that the particular person wants to take. It is a very complicated issue. To simply say that ASIC is going to become, as it were, the milking cow for very big people is an ab surd—and I use that expression advisedly—proposition.If we do not include ASIC, it will mean that it is only those with the big money—and I have nothing against big money—who will be able to take the action that is contemplated here. Small people—mums and dads—will be unable to do so for the reasons which I have already mentioned and which are fairly obvious in any event. One of the problems with that is that the law, therefore, becomes available to only a particular class of people. That situation is already occurring, and it is bad to add to it by legislation such as this.ASIC is a body that would make a judgment as to whether or not it is going to go on in this area. We trust ASIC to regulate the corporate world; surely we can trust it to make a decision as to whether or not there is an action open to people who come to see it. Even if it does say there is, it might say, `Well, in any event, it is not the sort of action that we should spend money on because ASIC has a statement and a budget.' Indeed, if the government became a bit concerned about the way ASIC was going, all it would have to do is reduce its funds. For those reasons, I think that if we leave ASIC out, it will be a bad thing for the general running of the law.18:37:009647Murray, Sen AndrewSenator MURRAY3M6WAAD00—Let us recognise, if we can, some of the very real benefits of what the government have put in this bill and let us consider the Labor Party's amendment as seeking to add to that. We see here that under the present law and under the proposed law ASIC has numerous provisions under which it can prosecute directors for breach of their duties. It does have numerous provisions on which it can act in regard to its duties on behalf of the act. The section that Senator Conroy read out could be taken in another way and the government may have had that in mind. That sentence said:In this regard, a statutory derivative action has the potential to remove some of the regulatory burden—not the prosecutorial burden, but the regulatory burden—from ASIC by making it easier for investors themselves to protect the interests of a company. When I read that, I thought it meant that right now ASIC are burdened by people coming to them and saying, `We have difficulties in our circumstances. Will you do something?' and ASIC sometimes can—because they have provisions, as you know—but quite often cannot. That is why I and my party welcomed this new provision 236 and the other provisions. It introduced an additional protection for shareholders—an additional ability to get justice, to access the law and to progress their issues and their concerns to their satisfaction. When I saw that, I did not see it as ASIC saying, `Well, let's get rid of something we used to do because we like to do other things.' I saw it as them saying, `Now we have got something whereby that particular problem can be dealt with.' I may or may not be right in that regard, but that is how I read it. I know that ASIC have been frustrated by numerous approaches to them which they simply could not deal with. Now this section 236 will allow them to be dealt with.It has some really terrific features in it. The feature whereby the company will pay the costs for those actions if they get up in court is just fantastic. That is providing ordinary people with a cheap and ready access to justice. That is what I like about it. Then I look at the Labor Party's amendment. This is one interpretation; it may not be yours. My interpretation is that what they are trying to do is say, `Well, here is a new provision which is good for shareholders, and particularly good for those at the lower end of the scale. Let us add to it by asking ASIC also to have this ability.' In other words, `You have got something good, but we want to improve it.' That is as I understood your recommendation. But when I looked at your recommendation, I was afraid—and I find it difficult to express this, and I hope I can—that the consequence of your amendment may in fact not improve the government's proposal but diminish it, because it would in fact make shareholders less capable of taking responsibility unto themselves to get on with taking action where it was appropriate.All of us get caught up in the description of mum and dad investors, with the kind of emotional and economic picture that that draws. But I sense that first time or relatively new investors—in this brand new participative world of capitalism that Australia has—are often not the sort of people who go to ASIC or would go to the statutory derivative action procedures anyway, because they are just not attuned yet. I would expect this kind of action to be taken up by informed, motivated and somewhat more experienced investors who would start this thing and then bring the others with them. You cannot in this law take an action which just benefits you as a sole shareholder and that does not affect the rights of every other shareholder in that same class, because obviously it flows on.My feeling with this—and the judgment we have made—is that this is an improvement to current law and practice. It provides an additional avenue of access for justice. My judgment is again that your motives in trying to introduce this are unquestionably good but it may have a consequence which actually diminishes the purpose of the government's amendment. That is why I am still inclined to vote against it. I do so for the reasons I have tried to express to you. I hope that you understand what I am trying to convey.18:43:009648Cooney, Sen BarneySenator COONEYSF4VICALP00—What Senator Murray is saying to us is, `Look, I agree with what the opposition is saying. I want this new ability for shareholders to go across the board so that shareholders, no matter what their size, can exercise it. That is the principle that the opposition is putting forward and I agree with that in principle.' But I understand Senator Murray to be saying, `Look, I say that if you introduce this you are going to diminish the chances of small shareholders because they will go to ASIC and in some way their rights will be diminished or they won't have the ability to do what they will be able to do if ASIC is not there.'Painting that scenario is, may I say, painting a scenario which is unreal. The opposition, on the likely reality of what will happen, is in a much stronger position than the Democrats. That is where the difference between us lies: not on the point of principle—the principle that everybody should be able to make use of 236 when it comes into operation—but on the factual consequences of that.If you just think about it for a while, company law can be complex and is often very expensive to run. If I can speak through you, Mr Temporary Chairman, to Senator Murray, it is a good provision, that is true, but the amendment moved by Senator Conroy on behalf of the Labor Party would make it better. No matter what Senator Murray may say, the reality is that, without that amendment, this good provision is not going to be made as good as it might be because, just on the evidence we have got over the years, if you look at how people with modest means are able to bring actions—say people who are earning, in this context, $80,000 or $100,000 a year—those people will not be able to bring an action under these proceedings because they will not be able to afford it.It is a bit like asking people to take libel actions. As Senator Conroy said, there is all sorts of terror in that when you have to get leave and you have to go to the action. It is likely that costs will not be awarded until the end. It says that a judge can award costs day by day. That is just an unreal proposition. What concerns me about this whole debate is that this is going to go through, it seems with the Democrats' help, on a number of scenarios as to facts which are just quite unreal and almost absurd.Everybody agrees on the principle. Even the government agrees on the principle that people should have proceedings available to them now. What is at stake is whether or not these proceedings are going to be available to ordinary people. The way this is set up, they will not be. One way of making that available to people is by putting ASIC in there. ASIC is not going to bring in a rush of litigation. We rely on ASIC as a regulator; why can't we rely on them as a gatekeeper in this respect? It just seems very interesting that we do not.18:48:009648Conroy, Sen StephenSenator CONROY3L6VICALP00—I would like to respond to Senator Murray but, before I do that, I congratulate Senator Cooney on that contribution, which I thought was very positive and measured. Through you, Mr Temporary Chairman, I would say to Senator Murray that I wanted to go to a point Senator Ian Campbell made on section 50, about which they seem to be saying, `It's okay, you've still got section 50.' I have section 50 of the Australian Securities and Investments Commission Act here, and it reads:Where, as a result of an investigation or from a record of an examination (being an investigation or examination conducted under this Part or a corresponding law), it appears to the Commission to be in the public interest for a person to begin and carry on a proceeding . . . The key test that is in here is `in the public interest'. If a little mum and dad investor comes along with a problem and wants to go to ASIC, under the law at the moment it has to pass a public interest test. It is very rare, between a combination of resources and the public interest test, to be able to interest ASIC.So when the government says that there are these provisions, it needs to be fully understood that there is a number of criteria again that the mum and dad investor must pass before they can actually get the benefit of ASIC's support, participation and interest. I caution the government and those who argue that the existing section 50 is the catch-all that can protect mum and dad investors, because I do not think it is. There is an important criteria in here, which I do support—the question of the public interest—but it should not cloud whether the mum and dad investor can get access to ASIC. Realistically, I do not think that this section allows that.I want to turn to your argument that the regulatory authority, by being there, possibly diminishes the capacity to undertake this sort of action. I would endorse Senator Cooney's comments that this is a good thing. I do not think it is as good as you do; I do not think it is going to have the impact that you do. As I said earlier, I was at this seminar where it was quite clearly expressed by a senior law firm that it was a joke and that there was nothing for anybody to worry about. I introduced myself to the individual after he made these comments. He went white. I was quite entertained by it.3M6MURRAYSenator Murray—Name him!3L6Conroy, Sen StephenSenator CONROY—No, I would not do that to him. I do not think he realised I was in the audience, to be frank. There is a parallel circumstance with superannuation. There is a low cost complaints tribunal, which is accessible and available. There is equally a legal process that you can go through. People are not diminished by the fact they can get the low cost alternative; people are empowered by the low cost alternative.While I agree with your assessment that it is a wonderful thing that the company is paying, getting to the starting point is where I have my real concern. If you cannot get to the starting point because you are just a battling mum or dad, or because you are afraid to put your house up, there is a disincentive, a deterrence, that exists. I do not believe it is a deliberate deterrence. I do not believe the government are putting it forward as a deliberate deterrence, but I believe they have put it forward from their blinkered view of the world that everybody can get access to the law. I do not believe that to be the case. I think Senator Cooney and other senators have long argued that an almost two-tiered situation is developing. There is not enough legal aid or understanding. I think that this will be one of those circumstances as well. I am afraid that that two-tiered system will discourage people from pursuing their rights. It is unusual to argue that giving an extra option diminishes the capacity to go forward.I would put to you, Mr Temporary Chairman Bartlett, as a member of the Democrats, that the task is to educate people so that they are aware of their rights and of statutory derivative action and so that they are confident enough to go on the Internet and call it up and read it, if that is what they want, or go to the library and pull the book out and read it. The education should go to their private capacity and to their knowledge that there is a regulatory authority there so that if they feel they cannot pursue the case they can go to the regulatory authority and have it help them kick it off.My greatest fear—and I am in no way trying to be critical, except in a generic sense—is that this view of the world that everyone has access because it is there is not true. It is not the case in education, it is not the case in the law and it is not the case in a variety of things in the real world. This parliament has upon it an onus to look at what happens in the real world and the effect on people in the real world, and if there is an in-built disincentive we should recognise that and allow at least the option for an alternative. That is all this amendment is seeking to do: to create the option of an alternative to avoid and perhaps get around that disincentive. What is critical is the education process. True empowerment of the shareholders comes through education. It does not just come through getting a dividend cheque once a year. It comes through understanding their obligations and their rights and what legal avenues are available to them. That is true empowerment. It is not just having a share and getting your dividend; it is about participating, having the understanding to defend your rights and having access to the means to defend your rights. Question put: That opposition amendments (5) and (6) be agreed to.19:00:00The committee divided. (The Chairman—Senator S. M. West)25Bishop, T. M. Bolkus, N.Brown, B. Campbell, G.Carr, K. Collins, J. M. A.Conroy, S. Cook, P. F. S.Cooney, B. Crossin, P. M.Denman, K. J. Evans, C. V.Forshaw, M. G. Gibbs, B.Hutchins, S. P. Ludwig, J. W.Lundy, K. Mackay, S.McLucas, J. E. Murphy, S. M.O'Brien, K. W. K. Quirke, J. A.*Schacht, C. C. Sherry, N.West, S. M.40Abetz, E. Allison, L.Bartlett, A. J. J. Boswell, R. L. D.Bourne, V. Brownhill, D. G. C.Calvert, P. H. Campbell, I. G.Chapman, H. G. P. Coonan, H.*Eggleston, A. Ellison, C.Ferguson, A. B. Ferris, J.Gibson, B. F. Greig, B. A.Heffernan, W. Herron, J.Hill, R. M. Kemp, R.Knowles, S. C. Lightfoot, P. R.Macdonald, I. Mason, B. J.McGauran, J. J. J. Minchin, N. H.Murray, A. Newman, J. M.Parer, W. R. Patterson, K. C. L.Payne, M. A.Reid, M. E.Ridgeway, A. D. Stott Despoja, N.Tambling, G. E. J. Tchen, T.Tierney, J. Troeth, J.Watson, J. O. W. Woodley, J.Crowley, R. A. Crane, W.Hogg, J. Lees, M. H.McKiernan, J. P. Vanstone, A. E.Ray, R. F. Alston, R. K. R.* denotes tellerQuestion so resolved in the negative.19:04:009650Conroy, Sen StephenSenator CONROY3L6VICALP00—The opposition opposes section 614 and schedule 3, items 283 and 363, in the following terms:(8) Schedule 1, item 5, page 129 (line 9) to page 130 (line 23), section 614, TO BE OPPOSED.(35) Schedule 3, item 283, page 405 (line 26) to page 406 (line 2), TO BE OPPOSED.(36) Schedule 3, item 363, page 418 (lines 12 to 21), TO BE OPPOSED.The opposition understands the arguments for the mandatory bid proposal, but the arguments against it clearly outweigh the arguments for. As I noted yesterday in my speech on the second reading, the opposition acknowledges that there are economic efficiency reasons for increasing takeover activity or at least the threat of it. But it comes at a cost that is potentially more than the opposition is willing to risk. The cost will come from the subversion of good corporate governance principles such as transparency, accountability and equity. No longer will there be an appropriate competitive regime for corporate control and, despite the proposed safeguards, shareholders will not get a better price than that obtained from an auction process. We will move to omit the mandatory bid rule so as to ensure that transparency in the markets is maintained. We oppose these provisions as we strongly question the need for this new rule. We believe that it would lead to significant disadvantages and few benefits.What does the government propose with this new rule? The government wants to give takeover bidders control of a target company before the market has been advised of the takeover bid. The government wishes to encourage bidders to try and lock up key blocks of shares before launching their takeover bid. The result of this proposal is that it could grant the bidder effective control of a target company before revealing its intentions. Why would some takeover bidders want the mandatory bid rule? They would have a mechanism to discourage competitors emerging in the takeover process. Under such an arrangement, competitive bidders and directors of target companies would have less time to appropriately respond to takeover bids. Discovery of fair prices would also be restricted, as there would no longer be an auction process.The mandatory bid rule would not be consistent with the proposed operation of the new takeover panel, except for earlier amendments today giving an exemption on the grounds of unconscionable conduct, because the rule would go against the Eggleston principles, principles on which the proposed takeover panel would consider and making judgment on takeover disputes. It is important to reiterate what those Eggleston principles are. Some people think they are a bit old-fashioned, a bit old hat, but these are the principles that have got us through the Asian crisis and these are the principles that have instilled integrity and confidence in the Australian capital markets. The Eggleston principles require: that shareholders of a takeover target company know the identity of any person that proposes to acquire a substantial interest in the company; that target shareholders and directors have sufficient time to consider the offer; that sufficient material is provided to them to make proper assessment of the offer; and that all shareholders have equal opportunity to participate in the benefits of a takeover offer. The mandatory bid rule breaks these principles. The government is effectively sacrificing a lot in terms of good corporate governance practices for potentially little gain in takeover activity.Forget the mandatory bid rule. The opposition has indicated that it is willing to support the CGT concession on scrip for scrip takeovers. This, more than the mandatory bid, will raise takeover levels. If the new tax arrangement does not deliver then we might reconsid er opposition on the mandatory bid rule. But right now the arguments put forward on the mandatory bid rule do not wash with this opposition. Let me reiterate: the mandatory bid rule will not benefit shareholders. It will lower the share price of takeover targets; it will simply allow takeover bidders to pay a lower price. The argument that Senator Ian Campbell put forward last night was that what we aim to do is increase the market for corporate control. We want more competition and more pressure to be placed on directors, particularly at the big end of town. I could not agree with Senator Campbell more. That is one of the reasons why we support scrip for scrip. That potential for takeover, that competitive pressure, is critical to the good functioning of Australia's economy and the benefits that come from that.But Senator Campbell went on to make a range of remarks in his speech which I believe do not reflect well on the intention of this bill. He talks about dopes who say, `I'll ring around and see if I can get a better offer.' There are dopes out there who may say, `I have a potentially controlling interest in a company and I'll take the first offer that comes up.' Senator Campbell, I believe you would be right in many examples. But there are examples where a good analyst can look at a situation and at somebody who controls a parcel of shares and say, `That person is under a bit of financial pressure at the moment. That person has a significant cash flow problem and they might just be willing to part with those shares for less than they would be able to get in the auction process.'So you can have a situation where a vulnerable shareholder is in a position where they actually sell for less—what you would define as a dope. But, because they are under some pressure for a whole range of other economic circumstances, they may be willing to sell out for less than the control premium might otherwise be analysed for. That would mean that all the other shareholders get that same offer and so, while you may be able to argue that there are not that many dopes out there, this is not a question about dopes; it is a question about whether or not people are in a position where they are vulnerable at certain times of the economic cycle.If there is a bit of a downturn, you could get a situation where companies need to restructure; they may need to make changes. Individuals may need to change their portfolios for a variety of reasons, and a good analyst will pick this and will be able to move in and get access to the key bundle of shares to transfer control at less than they otherwise would get in an auction process. It is undeniable that the auction process will get a higher price in the circumstances and it is for this reason—as well as for some of the others that I have outlined—that we believe that the intention of this change is good but that the costs to the broader Australian community and to the integrity of the market are too great for us to go down this path.As I have indicated, we may be willing to have a look at this down the track if this problem continues to be there. As for scrip for scrip, I think the government lauded it when the Ralph report came down. The Ralph report said scrip for scrip could double the amount of takeovers, and more power to it on that front. But, if for some reason that does not eventuate and that is a bit of government hype, then we may be prepared to revisit this issue. But at this stage those of us who want to see that competitive pressure and see takeover activity increasing believe that scrip for scrip is by far the measure that will most lead to that pressure. The mandatory bid has too many negatives to it and therefore we urge the Senate to reject it.19:12:009652Murray, Sen AndrewSenator MURRAY3M6WAAD00—I am going to make my remarks relevant to opposition amendments Nos 8, 7, 9 to 16, and 35 and 36, which are all in that block on the sheet, to get it over with and to get the understanding of what we are about. The opposition amendments relate to the deletion of all the provisions relating to the introduction of a mandatory bid rule. At present the law provides that any person who holds less than 20 per cent of the shares in a company cannot acquire more shares if the acquisition of those shares would result in them owning more than 20 per cent of the company, unless they make a public offer to purchase all of the remaining shares in the company. So, in other words, there is a mandatory bid rule at present which is of a different order.For example, if you owned 19 per cent of the shares in a company, you could not purchase another 1½ per cent unless you offered to acquire all the remaining shares in the company, and you must make the same offer to all other shareholders. What often results is that, when the announcement is made that a person is offering to take over the company and purchase the remaining 81 per cent, other individuals and companies make counter offers to buy out the rest of the company. This results in an auction for the shares in the company to the highest takeover bidder.This bill proposes the introduction of a mandatory bid rule. This will allow a person to make a private agreement with another shareholder to purchase their shares which will take them over the 20 per cent limit. When that agreement is concluded, the purchaser is then obliged to make a full takeover offer to purchase all remaining shares in the company. This means that a person could, for example, start off holding 19 per cent of the shares in the company and then reach a private agreement with another shareholder—the first seller—to acquire their 15 per cent holding, taking them to 34 per cent.It will quite often be the case that a 34 per cent holder—or whatever the percentage may be—has effective control of the company and this will deter any other shareholder or potential shareholder from making a counter offer for shares in the company. The result is that there is not an auction process for control of the company because the takeover bidder has already been able to obtain effective control through the private agreement with the first seller. The argument in favour of the proposed mandatory bid rule is that it makes company takeovers easier because the takeover bidders can secure control of the company privately before launching the full takeover bid. The suggestion is that the increased threat of being taken over applies pressure on managers and directors to perform better.The government's announcement in relation to capital gains tax rollover relief for scrip for scrip takeover, which the Democrats support, will remove a substantial impediment on takeover activity. I take the view that this will have a much greater impact on takeover activity than the introduction of a mandatory bid rule. At this stage, the Australian Democrats will not support the introduction of the mandatory bid rule, but we may well be prepared to revisit this issue at a future time if it becomes apparent that takeover activity is suffering as a result of the absence of the rule.Let me make it clear that we believe the government has made a good case. We have also had presentations from such informed professionals as the Australian Securities Institute and we are aware of overseas precedent in this area. However, the arguments against it are such that, at this time, we have decided to take a cautionary stance on this and to be careful about introducing something which may not be necessary additional to the other changes which, in terms of this bill and in terms of the proposed tax rollover relief for scrip for scrip takeover, will significantly increase takeover activity. Parliamentary Secretary, I know that you have a particular passion for this area of the bill. I believe it may be appropriate to revisit this issue after the new bill has bedded down for some time so that we can assess just how these matters are progressing.19:16:009653Campbell, Sen IanSenator IAN CAMPBELLH15WALP10—I want to make some quick remarks. The government, after over two years of very close consideration of this measure, is strongly committed to ensuring alternative mechanisms for putting pressure on directors. This is a measure that finds its most strong opposition from the big end of town and directors who are comfortable in the knowledge that Australia's existing takeover laws do produce the odd auction here and there but more often produce takeovers bogged down in litigation within minutes of any bid coming to fruition as soon as the defence for the takeover cuts into action. That is why under our regime so little pressure is put on boards in Australia.The other people who oppose this are the sort of people who Senator Conroy met at that seminar the other day who went white. They are indeed the lawyers who make fortunes—millions of dollars—out of takeover defences. That is why we believe in a mandatory bid, which ensures that, under the Eggleston principles, all shareholders share in the benefit of the premium. We believe that shareholders will receive more offers because there will be more takeover activity. We know that a shareholder who has a stake that is likely to deliver control, no matter if they are under financial pressure, will at least be able to pick up the phone and phone around and seek to get a higher bid. We also know that the auction is not eliminated—that if someone else wants to buy that company, they can come onto the market and bid at a much higher price and seek to attract other shareholders with their bid.But recognising that I have failed to convince the Australian Democrats and the Australian Labor Party of the benefits of this, I do genuinely accept the Labor Party's view that they are prepared to look at this again. I accept very much that the Democrats have made a decision on balance—that they are not opposed to this, but they are not quite in favour of it. I also put on the record a letter that I have received today from Ted Rofe, the head of the Australian Shareholders Association, saying that they are not opposed to the mandatory bids. So this is the organisation that represents the minority interests saying that they are not opposed to it. They recognise that it may reduce the opportunity for auctions. I will quote from Ted's letter and I thank him personally for putting this on the record. He says:We believe that the conditions proposed to be applied to the mandatory bid should provide adequate protections for minority shareholders. Having said all of that, the government will proceed with this. We would like to have it revisited. We will refer it to the Joint Statutory Committee on Corporations and Securities so that it can be further considered, and we will bring it back at the earliest possible time because we think it is very much in the interests of minor shareholders and the whole economy.10000TEMPORARY CHAIRMANThe TEMPORARY CHAIRMAN (Senator Ferguson)—The question is that section 614 and schedule 3, items 283 and 363 stand as printed.Question resolved in the negative.Amendments (by Senator Conroy)—by leave—agreed to:(7) Schedule 1, item 5, page 124 to 125 (table item 5), omit the table item.(9) Schedule 1, item 5, page 137 (lines 7 to 14), omit subsection (2).(10) Schedule 1, item 5, page 139 (lines 18 to 23), omit subsection (2).(11) Schedule 1, item 5, page 140 (lines 20 to 28), omit subsection (3).(12) Schedule 1, item 5, page 142 (lines 10 and 11), omit the note.(13) Schedule 1, item 5, page 157 (lines 29 to 32), omit paragraph (g).(14) Schedule 1, item 5, page 158 (lines 5 to 7), omit paragraph (i).(15) Schedule 1, item 5, page 162 (lines 26 and 27), omit "or" and paragraph (d).(16) Schedule 1, item 5, page 187 (line 6), omit "This subsection does not apply to a mandatory bid.".Progress reported.Adjournment965410000ACTING DEPUTY PRESIDENTThe ACTING DEPUTY PRESIDENT (Senator Bartlett)—Order! It being 7.20 p.m., I propose the question:That the Senate do now adjourn.965419:20:009654Tierney, Sen JohnSenator TIERNEYO15NSWLP10—Tonight I rise to report to the Senate on the rapidly changing situation with BHP steelworks in Newcastle. Last time I spoke we were then right on the cusp of the shutdown of the smelting operations in Newcastle. I did indicate at that time that BHP was now just a small player in the Hunter economy—this was before smelting was shut down. It was at that time employing one per cent of the work force. It was only the third largest employer, following the Hunter Area Health Service and the university. I would like to emphasise yet again—because this message seems to have been lost across Australia and indeed the world—that we were not shutting down steel production in Newcastle; just smelting. We were still employing 1,100 people in the rolling of steel and if you add in Tubemakers—a subsidiary of BHP—which then uses that product, another 600 again. There are still 1,700 steelworkers in Newcastle in the rod, bar and wire divisions and Tubemakers.When smelting shut down, 2,100 people were case managed by BHP in five streams through their very successful Job Pathways program. Twenty-five million dollars was injected by BHP, by the New South Wales government and the federal government to assist in the process of moving people who were losing their jobs onto one of these five pathways. At the end of this process, when it comes to looking at how many people are going to have some difficulty finding work, we come down to a figure of 600 direct employees and 100 subcontractors—a total of 700.Since I made my last matter of public interest speech on this matter, the shutdown has actually occurred. The press really tried to turn this into a bad news story and failed dismally. I was on Sky News, and they were carrying international images of the steelworks, my voiceover and funeral music in the background. But the image on the day was very different as steelmaking in Newcastle was shut down. The image on the day was of the workers coming out of the gate in quite a happy mood—almost a party mood. You must ask, `Why not?' For some of them who had put in 22 years of service in the steel industry, they were walking out with superannuation plus $80,000 in severance pay. This of course is a great financial boost to the Hunter economy.The mood of the day was best captured on the Channel 9 news report that night. A reporter, obviously trying to get a bad news story, went up to one of the workers and asked, `Where to for you now?' and the worker said, `The Phoenix Club, mate, and it's your shout!' That sort of positive response helped kill the bad news story. BHP are to be congratulated on the management of this process. With such a good outcome, it is obviously an example of world best practice in the management of the downsizing of a work force.It is a great pity that BHP did not give the same degree of thought or put the same effort into developing similar processes when they moved on to the next stage last week. They hardly let the people of Newcastle catch their breath before they announced, within one week of the shutdown, that they were going to sell off quite a considerable number of their steel assets. They are retaining some steel business. They plan to retain the Port Kembla steelworks, Coated Steel Australia and Asia, Steel Building Products Australia, New Zealand Steel and Steel Building Products Asia. These businesses employ 13,500 people, and they are part of the retained portfolio of BHP. They are divesting the Long Products Division, which is mainly based in Newcastle but has a number of other centres around Australia; Tubemakers; Structural and Pipelines Products; tin mills; Coated Steel Corporation USA; Steel Building Products USA/Pacific; and North Star. There are approximately 9,000 employees there.When BHP made this announcement, they gave the civic leaders of Newcastle some warning and did call a number of us in to explain what they were doing. I expressed disappointment that they had made the announcement at a time when they did not have a definite buyer, thereby creating uncertainty, and that they were not prepared to stay in a comprehensive steel industry.Over the last 15 years BHP have upgraded the Port Kembla steelworks. It is now the third most efficient integrated steelworks in the world. They closed down the ageing smelter in Newcastle and they still have a comparative advantage in Whyalla, with high-grade, quality ore and at least 15 years supply of ore close to the mill. Those three elements I have just mentioned provide the ingredients to rebuild a world-class, comprehensive steel industry. Unfortunately, with that sort of opportunity BHP seem to have lost the will to do that. Of course it is a commercial decision, and BHP have made that decision in the context of a global steel industry—and they have every right to make that decision. They face intense competition worldwide; falling prices; increasingly demanding customer needs; the emergence of new low capital intensive technologies, particularly arc furnace technology; and the need for a relentless focus on cost reduction. The government cannot change that.Kevin Maher, the head of the Ironworkers Union in the city, expressed the hope that the next buyer will be more committed to the steel industry. The good news is that BHP does not plan to shut down any of these businesses. What it plans to do is to sell them off. Announcing these initiatives on 6 October, the President of BHP Steel, Bob Every, said:These changes give effect to the strategic objective of building on the company's strong position in minerals, while taking advantage of niche opportunities in steel. They are an essential part of BHP's evolution if it is to remain a global player.These changes are not about closing businesses. They aim to focus BHP on operations that are consistent with portfolio objectives and to allow other companies, with different objectives, to bid for businesses that no longer fit the BHP portfolio.The reason for the loss of will on steel by BHP is to be found in a speech to the Australian Investment Conference by the Managing Director and CEO of BHP, Paul Anderson. The speech was peppered with phrases like `It will be a company focused on creating value for shareholders', `Focus on these activities that will accelerate growth in shareholder value', `We will continue to reduce employee numbers and strive for efficiency', `Cost will be king', `The response to globalisation is mega consolidation', and `BHP will be a natural resource company with a steel component'.This shows the driving force behind BHP's quite proper commercial decision. However, I feel that the founders of BHP, Guillaume Delprat and Essington Lewis, would be turning in their graves. They had a vision and they built, through the first half of this century, a vast industrial conglomerate, starting with minerals and then moving into mining and manufacturing. One hundred years later, BHP, the Big Australian, is shrinking back towards its beginnings.If the new investors had lifted their vision above the short-term bottom line, they could have reignited that original vision. I hold hope that their limited vision of a company with a narrow base does not create long-term value problems for their shareholders. I also hope that their move away from a comprehensive steel industry, which in the future may not include high-tensile rod and bar products, does not create long-term strategic difficulties for Australia. The founders of BHP Steel, Delprat and Lewis, understood its strategic value when they built a comprehensive steel industry between World War I and World War II. It is a pity that this vision has been lost with the passage of time.965619:30:009656Hutchins, Sen SteveSenator HUTCHINS84PNSWALP00—I rise to speak on the likely impact of changes to higher education research funding, proposed in the government's green paper on higher education research and research training entitled `New knowledge, new opportunities'. It is with concern that I rise to illustrate some of the potentially damaging consequences for Greater Western Sydney that will result from the implementation of the government's green paper. As a local resident and a duty senator for Western Sydney, I am particularly concerned that the proposed changes will inevitably have a detrimental impact upon one of the most significant institutions in the Greater Western Sydney region—that is, the University of Western Sydney.What seems to be clear from the green paper is the fact that the proposed changes to the funding formulae will lead to inequitable outcomes for universities such as the University of Western Sydney and will have a direct impact upon the Greater Western Sydney region. The bias in favour of the established `sandstone' institutions, contained within the funding formulae proposed in the green paper, seems to deny the valuable research role that emerging universities like UWS can play. As a relatively young university, UWS has distinguished itself as an educational and research centre of excellence and has achieved much for the people of Greater Western Sydney. It has brought high quality educational opportunities to the doorstep of one of the most dynamic, diverse and burgeoning population centres in Australia.By all available measures, the University of Western Sydney has proven itself to be the leader of the non-technology, post-1987 universities. Some of the university's most significant advances in recent times have come as a result of its investment in developing a rapidly expanding research base. In recent times, the university has aggressively sought to attract increased external research income, with the result being a threefold increase in external research income in what is a highly competitive market. At the same time, postgraduate research completions have increased from zero in 1993 to 63 in 1998, with a 30 per cent increase in postgraduate students since 1995.In actively seeking to develop its research base, the university has worked hand in hand with local industry. With 103 funded research partnerships with organisations in Greater Western Sydney and a tenfold increase in industrial research funds since 1995, the UWS research programs have become a showcase of what can be achieved when universities, local business, local government and local communities forge strategic partnerships. But, sadly, much of this fine work will be brought undone if the government proceeds with the recommendations of Dr Kemp's green paper. It is estimated that the reforms outlined in the green paper will have the net effect of reducing funding to UWS by at least $2.35 million per annum, or $7 million over the next triennium, with a corresponding reduction in postgraduate research places of up to 77 per cent in the second year of the reforms. In dismantling the university's fledgling research base, these reforms will ensure that the university will return to being just a purely teaching institution rather than an innovative centre of academic research and excellence.If implemented, the recommendations of the green paper will have a crippling effect upon the university and almost certainly upon the people of Greater Western Sydney. It is important to recall precisely why the Labor Party established the UWS in the first place. It was the Labor Party that created the UWS to expand educational opportunities for the people of Western Sydney. But if the proposals contained within the green paper are implemented, we will see those educational opportunities, particularly postgraduate opportunities, for the people of Greater Western Sydney diminished. These changes will deny the people of Western Sydney the opportunity to pursue an advanced education in close proximity to where they live and work. But the impact of these changes extends beyond the direct effect of the reduction in postgraduate places and an overall reduction in research funding.Not only will these changes devastate the university's research base and close off educational opportunities for the people in Western Sydney; they will have a profoundly negative impact upon the communities surrounding these campuses. In areas such as Penrith, Campbelltown and Parramatta, local employment opportunities, the success of small businesses and the viability of developing industries will be jeopardised by the green paper's proposals. To proceed with the recommendations of the green paper will be to rip away the very foundations of accessible education in Sydney's west. After spending the last decade taking on the more established institutions and succeeding in a very difficult area of research and research training, the UWS is now being told by the government that it should not be in the business of developing a research base.All this comes at a time when the government is mouthing the rhetoric of the `knowledge nation' and the need to invest in the knowledge based sectors of the economy. Here we have an example of where a university has succeeded in bringing together academia and industry in strategic alliances that have provided enormous benefits to local communities; however, the government now seems committed to bringing an end to success stories such as this. It seems to me that the government believes in the benefits of the knowledge based economy, but not for Western Sydney. It is true that these are only recommendations emerging from the green paper and that there will be a number of opportunities for the government to see sense on this issue. I must, however, express my complete lack of faith in the government when it comes to the likelihood of a policy outcome on this issue. To this point in time, the Minister for Education, Training and Youth Affairs, Dr Kemp, has refused to even meet with representatives of UWS to discuss in detail the impact of these proposed changes.Given revelations about the minister's vision for higher education aired in the House of Representatives earlier today with the release of his cabinet submission, I have even less faith in the minister. A matter of even more concern is the complete lack of action of a number of the local representatives of the areas most affected by these changes. The two most affected areas include the electorates of Parramatta and Lindsay. Whilst representatives of the university have had the opportunity to meet both these members, neither of these members has taken up the issue with the degree of vigour that one would expect, given the profoundly detrimental impact that these changes will have on the people of the Parramatta and Penrith communities.Whilst the member for Parramatta has chosen to ignore the issue, the member for Lindsay has hardly been convincing in her support for the cause of the university. If the member for Parramatta could reduce his point of order load to only one per sitting day, I am certain he would be better able to utilise his time representing the legitimate concerns of his local community.Similarly, far from providing this critical local issue with her wholehearted and unequivocal support, the member for Lindsay is reported in the local newspapers as saying, `It's important all possible views are heard—that's why I will ensure the relevant material will be considered by the right people.' Well, the people of Lindsay deserve much better from their local member. These proposed changes will cause irreparable damage to their local community, will adversely affect employment levels and will provide an additional barrier to participation in higher education for people in her electorate—and the best that the member for Lindsay can do is to say that she will make sure that the university's submission is heard by the right people.The people of Lindsay deserve more than a delivery service from their local member. They deserve a local member who will recognise that these proposals will be damaging to their community, and they deserve a member who will roll up her sleeves and fight for them. If the people of Parramatta and Lindsay cannot rely upon their local members to fight for their interests, who can they count on? Mr Acting Deputy President, I can assure you that the Labor Party will be fighting for their interests, because we will not let this government destroy UWS. We have fought too hard for educational opportunities for people in Greater Western Sydney to stand by and allow this ideologically driven government to dismantle an institution that is so critical to the prosperity of Greater Western Sydney.If Mr Kemp wants to deprive Western Sydney of access to education—and research funding to the University of Western Sydney is the battleground—then I can assure you that the Labor Party will defend the interests of the west, with or without the assistance of its local members.965819:39:009658Brownhill, Sen DavidSenator BROWNHILLRD4NSWNP10—The New South Wales National Party today marks its 80th anniversary as a political organisation. In the late 1800s and early 1900s there was a growing dissatisfaction that political parties of the day were ignoring the issues of concern to all but those living in the metropolitan areas. We were formed as a progressive party by the establishment of a central electoral council at a meeting in Sydney on 13 October 1919 of representatives of the Farmers and Settlers Association of New South Wales, the Graziers Association of New South Wales and the People's Party of Soldiers and Citizens. We subsequently became the Country Party in 1925.The party has been continuously and strongly represented in the New South Wales and federal parliaments since its inception and has a proud record of achievement for its constituents in non-metropolitan areas. It is a record upon which we continue to build today. Over the years, many doomsayers have predicted the end of the Country Party, yet we remain strong, independent and proud. We continue to boast the largest membership of any political organisation in Australia.The federal National Party will mark its 80th anniversary on 22 January next year. The strength of our history is a fundamental foundation that will ensure our continuing independent future. I pay tribute to all past and present members and supporters who have bound together to make us the great and enduring organisation that we are. On behalf of all my National Party colleagues—and, I am sure, all the members of this chamber—I wish the National Party of New South Wales many more successful anniversaries.965819:41:009658Allison, Sen LynSenator ALLISON1M6VICAD00—I rise tonight to talk about a very important issue in the area of aged care—that is, the findings of the Productivity Commission's report into nursing home subsidies. I must start by saying that the Democrats are very disappointed at the coalition's lack of response to the findings of this important inquiry. We had hoped that, in line with the stated commitment to improving the provision of aged care services, the government would have taken the findings of this inquiry much more seriously than it seems to have done. Not only has the government not responded but, despite receiving the findings of this inquiry in January this year, it has failed to give any indication as to when it will be responding.As I said recently in my second reading contribution on the Aged Care Amendment (Omnibus) Bill 1999 , the Democrats believe that this is most unsatisfactory. It is yet another example of a government setting up its own objective independent body to look into what needs to be done in the area of aged care, only to ignore its findings—reminiscent, perhaps, of the way that the ALP ignored the recommendations contained in its Gregory report when it was in government, which the Democrats, amongst others, rightly condemned the now opposition for.The coalition's failure to respond to the Productivity Commission's report on nursing home subsidies has left those with an interest in aged care with little option but to ask ourselves whether this is really just history repeating itself. The minister has said time and time again that the government will be providing a whole of government response to the findings of the Productivity Commission's inquiry into nursing home subsidies, and that it will be made public in due course. However, despite these findings being released in January this year, we still have no idea when this whole of government response will be forthcoming.Prior to the last federal election, there was considerable concern about the government's policy of coalescence in relation to nursing home subsidies. This policy will involve a reduction in subsidies for residents in nursing homes in Tasmania, Victoria, New South Wales and the Northern Territory in order to provide more equitable subsidies to nursing home residents in the lower funded states of Queensland, South Australia, Western Australia and the ACT.The Democrats were therefore very pleased when the government referred the matter of nursing home subsidies for independent investigation by the Productivity Commission. In announcing this inquiry, the then Minister for Aged Care, Warwick Smith, said:The Government gives the commitment to all Australians that it will consider and respond to whatever the Productivity Commission finds.The Productivity Commission consulted widely and after extensive consideration of the issues presented its recommendations to the government on 13 January this year. On receiving these recommendations, the government issued a press release saying:The report endorses the government's intention to move towards uniform national subsidies for residential aged care.Well, not quite, as it turns out. Anyone who has read the findings of this report will be able to attest that this claim is a very creative interpretation of the facts. It is a very creative interpretation of the facts because, rather than endorsing the policy of coalescence as the government has claimed, the Productivity Commission opposed it. It opposed the government's policy of coalescence because it is not based on a benchmark costing for a standard of care that would apply across Australia but simply on the average of current state subsidies. This is a very arbitrary kind of base with no real grounding in care standards.What the Productivity Commission did recommend was a subsidy regime which provides a clear link to the standard of care which the Commonwealth is seeking and funding that is adequate to meet the cost of providing that benchmark standard of care. Based on the current variation in standardised costs among the states and territories, the commission drew attention to the inequitable underfunding of services in Queensland and South Australia and recommended that this be addressed as a matter of priority. The timing of the implementation of coalescence presents serious problems for the services. Equitable funding for Queensland and South Australia would not be achieved until 2004-05, making it very difficult for services in these states to achieve accreditation and operate viable services.Urgent action is required if the government is not to be seen as placing a lower value on older people in these states and forcing aged care providers to eat into their capital reserves in order to maintain standards. Funding for services in Tasmania, Victoria, New South Wales and the Northern Territory will be offset by eight per cent of the difference from the national average on 1 July 2000. The reduction in subsequent years increases to 14 per cent, 24 per cent, 24 per cent and 24 per cent respectively. Services will find it increasingly difficult to maintain quality of care under these arrangements.A further recommendation of the commission was the introduction of revised indexation arrangements for nursing home subsidies as soon as possible. It found that there was an urgent need for special needs funding in high cost areas such as rural and remote areas to ensure that these older Australians needing care were not disadvantaged.The whole point of the Productivity Commission inquiry into nursing home subsidies was to determine whether the proposed coalescence of nursing home subsidies should proceed or be replaced by another funding methodology. Yet despite the fact that the inquiry did not endorse the government's coalescence proposal in setting nursing home subsidy rates from June this year, the government went ahead with its proposal anyway. This is causing ongoing difficulties for many aged care providers, particularly in those states which currently receive a disproportionately low level of funding—South Australia and Queensland.At my request, leading peak bodies in the aged care sector recently met with me to discuss this issue. As a result of this meeting I can report that there is widespread support for the Productivity Commission's recommendations accompanied by a widespread concern at the government's failure to respond to those findings. The Democrats call on the government to end the current angst in the aged care sector by making it very clear exactly when and how the findings of this report will be responded to.On International Older Persons Day the minister said that perhaps Australia doesn't value its older citizens enough. Surely this government does not wish to be condemned as devaluing older people through its inaction on the Productivity Commission recommendations. I therefore have no doubt that during this session we can work together to ensure that timely and appropriate action is taken on this matter so as to promote the wellbeing of frail older Australians and to demonstrate that they are truly valued by this government.966019:49:009660McGauran, Sen JulianSenator McGAURANWH4VICNP10—Just a brief moment following Senator Brownhill's acknowledgment of the 80th birthday of the National Party of New South Wales. My colleague Senator Tambling and I wish the National Party a happy birthday and, across the chamber, would you wish us a happy birthday too?FX5MURPHYSenator Murphy—Happy birthday.WH4McGauran, Sen JulianSenator McGAURAN—Thank you very much. And the Democrats? Before you leave the chamber, Senator Allison, do you wish us a happy birthday?1M6ALLISONSenator Allison—I would love to sing to you.WH4McGauran, Sen JulianSenator McGAURAN—No, please don't. We are the second oldest party next to the Labor Party, which is significant in that we have stayed the test of time. We are not socialists; we have always condemned socialism. Nevertheless, we did grow out of a need to represent the rural and regional areas and did support the statutory marketing authorities. That was very much the hallmark of the National Party, our philosophy base. Much has changed since then—for some of us, to our regret. Statutory marketing is a fair and fine philosophy which seemingly time has passed by for, in some cases, good economic reasons. But let us not get bogged down in that. This is just a jump up to wish the National Party happy birthday.It could be interesting for those here to know that on average the National Party has held some 14 per cent of the parliament. We are not far from that these days. That is our natural position in the House of Representatives. For the federal party it is 80 years in January. We wish the New South Wales party its 80th birthday. The demographics, the seats, the voting system have changed. We now have one vote one value, where once there was a weighting towards the country people in electorates. That is a good thing and it would not hurt the parliament in celebrating our birthday to reconsider that.You must remember that country people feel disenfranchised. One of the reasons is that they do not have the same political power as they used to because once there was an acknowledgment of the great distances out in the country regions and electorates were weighted accordingly. Now you have these massive electorates which National Party members have to service because of one vote one value. The servicing of that ideal has become an enormous burden and to a great extent those voters have become disenfranchised—another issue for another day.Again, I wish the New South Wales party a happy birthday. They have dominated the National Party in that time. Most of our leaders have come from New South Wales—our existing leader, our previous leader, the leader before that, and so it goes on. I would have to say our best leader came from Victoria, the most notable leader, Jack McEwen. When we reach our federal birthday in January, I am told, it is to be a knees-up affair and all are invited.Senate adjourned at 7.53 p.m.Documents96619661The following government documents were tabled:Australia Council—Report for 1998-99.Australian Competition and Consumer Commission—Report for 1998-99.Australian Tourist Commission—Report for 1998-99.Equity and diversity program—Health Insurance Commission—Report for 1998-99.Fisheries Research and Development Corporation—Report for 1998-99.Repatriation Medical Authority—Report for 1998-99.Rural Adjustment Scheme Advisory Council—Report for 1998-99, including a report for 1998-99 on operation of the Rural Adjustment Scheme.The following documents were tabled by the Clerk:Australian Bureau of Statistics Act—Proposal No. 12 of 1999.Health Insurance Act—Health Insurance Determination HS/5/1999.Lands Acquisition Act—Statements describing property acquired by agreement under sections 40 and 125 of the Act for specified public purposes [2].Public Service Act—Foreign Affairs and Trade Determination 1999/18.Answers to Questions on Notice9662The following answers to questions were circulated:9662(Question No. 1336)13369662Ray, Sen RobertSenator Robert RayUI4VICALP00 asked the Minister representing the Minister for Immigration and Multicultural Affairs, upon notice, on 23 August 1999:(1) In the 1997-98 and 1998-99 financial years, how many on-shore applications has the department received from individuals claiming refugee status.(2) What has been the longest time frame taken to finalise any such claims.(3) What has been the shortest time frame taken to finalise any such claims.(4) Can the department quantify the cost of such claims to the Commonwealth; if so, what is the department's estimate of the cost of these claims over the above two financial years.9662Vanstone, Sen AmandaSenator Vanstone7E4SALPJustice and Customs10—The Minister for Immigration and Multicultural Affairs has provided the following answer to the honourable senator's question:(1) In 1997-98, 8,128 applications for protection visas were lodged on-shore with the department and 8,257 were lodged in 1998-99.(2) As at 30 June 1999, the longest time between the lodgement, in 1997-98, and the finalisation of a primary protection visa application was 694 days. For a 1998-99 lodgement, it was 364 days.(3) As at 30 June 1999, the shortest time between the lodgement, in 1997-98, and the finalisation of a primary protection visa application was 1 day. For a 1998-99 lodgement, it was 1 day.(4) The total cost to the department of processing these claims was $12.28m in 1997-98 and $10.66m in 1998-99.9662(Question No. 1413)14139662Faulkner, Sen JohnSenator Faulkner5K4NSWALP00 asked the Minister representing the Minister for Education, Training and Youth Affairs, upon notice, on 2 September 1999.With reference to the effect of the goods and services tax (GST) on the internal operations of the Minister's portfolio (that is, not relating to the services provided to the public), and in relation to each of the agencies within the portfolio:(1) What preparations have been undertaken to date in regard to the introduction of the GST on 1 July 2000.(2) (a) What has been the total cost of those actions already undertaken; and(b) how much of these costs relate to: (i) consultancies, (ii) staff training, (iii) computer software, (iv) extra staff, (v) stationery, and (vi) other (please specify).(3) Was the cost of undertaking this work included in the portfolio's 1999-2000 budget appropriation; if so, how was this funding identified; if not what other area of funding has been used for this purpose.(4) What future preparations are planned or expected to be required in regard to the introduction of the GST on 1 July 2000.(5) (a) What is the total cost of the actions planned, or the estimated cost of expected actions; and (b) how much of these costs relate to: (i) consultancies, (ii) staff training, (iii) computer software, (iv) extra staff, (v) stationery, and (vi) other (please specify).(6) Was the estimated cost of undertaking this future work included in the portfolio's 1999-2000 budget appropriation; if so, how was this funding identified; if not what other area of funding has been used for this purpose.(7) Is there expected to be any change in the ongoing running costs of the department/agency after the commencement of the GST; if so, what is the extent of the difference in costs.(8) Are there any other GST-associated costs which the portfolio agencies will incur prior to the commencement of the GST; if so, what are those costs.9662Ellison, Sen ChrisSenator Ellison9X5WALPSpecial Minister of State10—The Minister for Education, Training and Youth Affairs has provided the following answer to the honourable senator's question:(1) A GST implementation plan has been developed and work is under way in the Department on progressing the various tasks under the plan to achieve GST readiness by 1 July 2000.(2) The costs of actions already taken involve mainly the costs of staff who have been seconded to the departmental implementation team. The cost to date is $35000.(3) No costs were included the Department's 1999-2000 allocation for the implementation of GST and no additional funds have been allocated for this purpose. As a result, costs are being met from existing allocations.(4) The future actions planned or expected to be required for the introduction of GST in the Department include:. Progression of implementation tasks under the plan;. Staff training and awareness; and. Implementation and testing of system enhancements.(5) The estimated cost of the future actions planned is as follows:- Consultancies/IT enhancements—$700,000- Extra Staff—$210,000- Staff Training—$20,000(6) See (3) above.(7) Apart from some savings arising from the abolition of wholesale sales tax, the impact of which has not yet been estimated, there is not expected to be any change to DETYA's running costs.(8) See (3) above.9663(Question No. 1419)14199663Faulkner, Sen JohnSenator Faulkner5K4NSWALP00 asked the Minister for Aboriginal and Torres Strait Islander Affairs, upon notice, on 2 September 1999:With reference to the effect of the goods and services tax (GST) on the internal operations of the Minister's portfolio (that is, not relating to the services provided to the public), and in relation to each of the agencies within the portfolio:(1) (a) What preparations have been undertaken to date in regard to the introduction of the GST on 1 July 2000.(2) (a) What has been the total cost of those actions already undertaken; and (b) how much of these costs relate to: (i) consultancies, (ii) staff training, (iii) computer software, (iv) extra staff, (v) stationery, and (vi) other (please specify).(3) Was the cost of undertaking this work included in the portfolio's 1999-2000 budget appropriation; if so, how was this funding identified; if not, what other area of funding has been used for this purpose. (4) What future preparations are planned or expected to be required in regard to the introduction of the GST on 1 July 2000.(5) (a) What is the total cost of the actions planned, or the estimated cost of expected actions; and (b) how much of these costs relate to: (i) consultancies, (ii) staff training, (iii) computer software, (iv) extra staff, (v) stationery, and (vi) other (please specify).(6) Was the estimated cost of undertaking this future work included in the portfolio's 1999-2000 budget appropriation; if so, how was this funding identified; if not, what other area of funding has been used for this purpose.(7) Is there expected to be any change in the ongoing running costs of the department/agency after the commencement of the GST; if so, what is the extent of the difference in costs.(8) Are there any other GST-associated costs which the portfolio agencies will incur prior to the commencement of the GST; if so, what are those costs.9663Herron, Sen JohnSenator HerronVW4QLDLPAboriginal and Torres Strait Islander Affairs10—The answer to the honourable senator's question is as follows:(1) The Aboriginal and Torres Strait Islander Commission (ATSIC) is currently preparing a taxation reform implementation plan. The implementation plan will identify the various tasks that will need to be completed in regard to the introduction of the GST on 1 July 2000.(2) No discreet expenditure has been made so far on GST implementation.(3) No additional funds were allocated in the 1999-2000 budget for GST implementation. The Commission will meet these costs from its existing budget as part of its operating costs.(4) The Commission is currently preparing a comprehensive taxation reform implementation plan. This plan will review amongst other issues the following:. accounting systems;. staff training;. Government grants;. cash flow management; and. compliance issues.(5) (a) At this stage it is not possible to estimate the cost of actions planned as the implementation plan has not been finalised. It is likely that external consultants will be used to assist with implementation. (b) (i)—(vi) see (a).(6) No additional funds were allocated in the 1999-2000 budget for GST implementation. The Commission will meet these costs from its existing budget as part of its operating costs. (7) No estimate is available at this stage on the likely changes to ongoing running costs of the Commission.(8) No estimate is available at this stage on other GST associated costs, which ATSIC will incur prior to the commencement of the GST.9664(Question No. 1426)14269664Allison, Sen LynSenator Allison1M6VICAD00 asked the Minister representing the Minister for Foreign Affairs, upon notice, on 10 September 1999:With reference to the entry of plutonium cargo ships into Australian waters on 28 August 1999.(1) Which organisation in Australia was initially notified that an emergency medical evacuation was necessary.(2) How much time elapsed between this notification and the evacuation.(3) Can details be provided of the accident and injuries sustained that necessitated the evacuation.(4) (a) From which ship was the evacuation made; (b) what was the exact position of the ships; and (c) what was the time of the evacuation.(5) Did both ships proceed to the evacuation point.(6) (a) What type of aircraft carried out the evacuation; and (b) was it a commercial or Australian navy aircraft.(7) For how long were the ships in Australia's exclusive economic zone (EEZ).(8) What was the occupation of the evacuee on board the ship.(9) Was the evacuee replaced.(10) (a) Apart from the Federal Government and the Australian Maritime Safety Authority, which other governments and organisations were notified of the entry of the Pacific Nuclear Transport Limited (PNTL) ships into Australia's EEZ and the medical evacuation; (b) was the State Government of Western Australia notified; and (c) was this notification provided before or after the ships entered the EEZ.(11) Was British Nuclear Fuels Limited (BNFL) or the British Government consulted about the details of the evacuation.(12) Who bore the cost of the evacuation.(13) (a) What kind of accident on board a PNTL vessel would trigger the involvement of a BNFL emergency team; and (b) are there agreed criteria for this or is it determined on a case by case basis.(14) If there was an accident on board a PNTL vessel involving the release or suspected release of radioactive materials, would the Australian Government provide assistance to the ship.(15) (a) Which organisations in Australia, military or civilian, have the necessary expertise and equipment to deal with a radiological emergency; and (b) where are they based.9664Hill, Sen RobertSenator HillBH4SALPEnvironment and Heritage10—The Minister for Foreign Affairs has provided the following answer to the honourable senator's question:(1) The Department of Foreign Affairs and Trade. The Department informed the Australian Maritime Safety Authority (AMSA), the organisation responsible for Search and Rescue operations.(2) Seven days.(3) AMSA has advised that the crew member fell in heavy sea conditions and injured his shoulder.(4) (a) The ship's name is "Pacific Pintail"; (b) AMSA has advised that the "medevac" took place at sea 110 nautical miles off the Western Australian coast (south of Albany); (c) AMSA has advised that the "medevac" was successfully undertaken at 1015am AEST.(5) Yes.(6) (a) The "medevac" was undertaken by a helicopter; (b) Commercial.(7) Between 24 and 30 hours.(8) AMSA has advised that the injured person is an officer of the United Kingdom Atomic Energy Constabulary.(9) No.(10) (a) No other government or organisation was notified of entry of the ships into the EEZ, which is not a relevant boundary in the context of the medevac or the innocent passage of the ships. BNFL notified the Ship's Agent in Australia of the medevac, who in turn notified Australian Customs. AMSA notified the WA Police of the time and position of the impending medevac, and the intended movements of the Medevac helicopter; (b) AMSA informed the WA State Police of the medevac; (c) AMSA estimates that the WA Police were notified around the time the ships would have been expected to have entered the EEZ. The precise time that the ships entered the EEZ is not known.(11) BNFL provided a specialist adviser in Perth to assist AMSA in arranging the medevac. The British High Commission was involved throughout.(12) AMSA has confirmed that BNFL paid the costs of the medical evacuation.(13) This question should be referred to BNFL.(14) Any request for assistance would depend on the nature of the incident and take account of Australia's international obligations. (15) (a) Emergency Management Australia (EMA), Department of Defence has advised that States and Territories are responsible for emergency management, including radiological emergencies. In the event that they require Commonwealth assistance they can request such assistance in accordance with the Commonwealth Government Disaster Response Plan (COMDISPLAN). In the unlikely event of a radiological emergency, assistance could be provided from the Australian Nuclear Science and Technology Organisation (ANSTO) and the Australian Radiation Protection and Nuclear Safety Agency (ARPANSA). Both organisations have personnel trained and equipped to assist in the event of a radiological emergency. The Australian Defence Force also maintains a small group of specialists which could assist in a radiological emergency. (b) ANSTO is located at Lucas Heights near Sydney; ARPANSA is located in Melbourne; and the School of Military engineering is located at Moorebank in Sydney.9665(Question No. 1547)15479665O'Brien, Sen KerrySenator O'Brien8O6TASALP00 asked the Minister representing the Minister for Veterans' Affairs, upon notice, on 21 September 1999:(1) How many Australian service personnel who saw service between 1972 and 1994 have beengranted a Totally and Permanently Incapacitated (TPI) pension.(2) How many of the above TPI recipients saw service entirely within Australia.(3) How many of the above TPI recipients were enlisted during the Vietnam conflict but did not see service outside Australia.9666Newman, Sen JocelynSenator NewmanBE4TASLPFamily and Community Services; Minister Assisting the Prime Minister for the Status of Women10—The Minister for Veterans' Affairs has provided the following answer to the honourable senator's question:(1) 3,328 (2,586 of these individuals have had service outside Australia in conflicts prior to 1972 such as Vietnam, the Far East Strategic Reserve and Korea, or in deployments since 1972 including Namibia, Somalia, Cambodia and the Persian Gulf. Their pensionable disabilities may have arisen from their peacetime service, overseas service or both. The remaining 842 have service only within Australia.)(2) 842.(3) I am unable to answer this, as my Department's database does not require the date of enlistment to be recorded. Only the period of service which entitles ex-service personnel for compensation coverage under the Veterans' Entitlements Act 1986 is recorded. Under the Act peacetime service, ie service within Australia, did not attract benefits until 7 December 1972.