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Wednesday, 29 November 2000
Page: 20148

Senator O'BRIEN (4:18 PM) —I thank the parliamentary secretary for the answers which were given to those matters which I gave notice of prior to 2.45 today. In relation to this arrangement in clause 9 of the bill and the permissive nature of the powers granted to the minister, if I can put it that way, I understand what she says about the flexibility that is intended to be granted to the minister now and in the future, but the difficulty is that for the minister to be able to exercise those powers the minister has to have entered into a deed of agreement with the Commonwealth. It seems that, having entered into the deed of agreement, the permissive nature of the powers is a little irrelevant.

You raise the issue of the cessation of declarations under clause 10 of the bill and how the minister might need flexibility at that point to enter into another arrangement, even though there was an existing deed of agreement between the Commonwealth and, for the purposes of the argument, the current Horticulture Australia Ltd body. That is the body that will be, at the first point, potentially the subject of clause 10 of the bill.

This goes to the other point I made about these provisions being reviewable at law in an administrative sense. You advise that that is reviewable through the Federal Court—and those proceedings may well take some time. It raises the question in my mind of what occurs in the process of such a review if one body is seeking to have a decision to cease declarations under section 10 of the bill and the minister, at the same time, is entering into alternative arrangements under section 9 of the bill, having signed off another memorandum of understanding or agreement or whatever as provided in 9(1)(d) and 9(2)(d). What would the effect be of entering one agreement where there was a review by the court which struck down the original decisions of the minister under section 10 of the bill? Might I say that nothing in the answer has dealt with the issue of whether the parliament ought to have a greater right to review any of these decisions, be they the decision to enter into a deed of agreement or to make declarations to cease deeds of agreement.

Under sections 9 and 10 of the bill, I note that you say that the decisions will be published and available and be able to be dealt with by the committees, including the estimates committee, of the parliament. But I would like to know a little more of the reasoning as to why essentially the power within the parliament is restricted to the executive and there is no provision apparently intended to give effect to the declarations by a regulation which would then be the subject of review by the parliament. One might suggest that, particularly at decisions to act under section 10 of the bill to cease declarations, these sorts of matters might be better dealt with by an action which would be reviewable by the parliament and, because of the way in which those matters are dealt with, could be dealt with much more expeditiously than proceedings before the Federal Court and might well obviate the problems that would arise by the review process that the parliamentary secretary suggests is adequate and provided by the legislation.

Another question which I might put in relation to these arrangements—I have to use this because it is the only thing available to me—is about the constitution of the new company and the constituent parts of that company; that is, the 29 organisations contained in the schedule on page 31. It is certainly not unknown that within grower groups of various commodities from time to time alternative organisations arise and there are significant groups of growers who seek alternative representation. But these arrangements would effectively lock in the representational groups, as I understand it, to the groups specified in the constitution. Now it may be—and this may be the answer; but I seek some clarification from the parliamentary secretary—that the minister might make some direction as to the constitution of the body, but I am not sure where that appears in the bill. I can see that the minister can enter into deeds of agreement and may vary the deeds and require variation of deeds but, when the representational capacity of the Corporations Law body is called into question by changes within representational bodies within the constituent groups, is there anything in the bill which would allow the minister to require the admission to the Corporations Law company of significant bodies that are no longer represented by the constituents of the original company?