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Wednesday, 15 August 2007
Page: 106

Senator BARTLETT (4:45 PM) —The Democrats oppose part 5 in the following terms:

(5)    Part 5, page 52 (line 1) to page 67 (line 27), TO BE OPPOSED.

This relates to the section of the legislation to do with business management areas. Part 5 of this bill gives the Commonwealth a broad range of powers in communities to unilaterally alter funding arrangements; to direct how services are to be provided; to acquire community assets from service providers; to appoint observers to attend meetings of service providers in communities; to suspend community councils on service related issues, provided funds have been received by the Commonwealth or the Northern Territory that could be used to fund those services; and to appoint a statutory manager to administer associations on service related issues, provided funds have been received by the Commonwealth or the Territory.

The Democrats understand why it might appear very convenient to the government to take such wide-ranging and sweeping powers. I am sure it feels very convenient to basically have the power to do whatever you want and to ignore the people at community level whenever you want—indeed, when service providers in communities have meetings, to even be able to appoint observers that those meetings have to allow to attend to observe what is happening in those meetings. I am sure it feels great to have all those powers, but in our view they are not only far beyond any existing powers in relation to communities; they are powers that could—and, I would argue, almost certainly will, in some circumstances at least—result in arbitrary interventions in community affairs, far beyond the stated intent of the legislation.

Concerns have been raised that these powers are ambiguous because the unilateral variation of contracts via legislative authority is against the usual presumption against interference in contracts by the parliament—normally a fairly simple and fundamental matter when it comes to contracts. Triggers for ministerial discretion are ambiguous and indeed could capture services provided by volunteer organisations. The minister could be able, in some circumstances, to summarily acquire assets that were not funded by the Commonwealth. And because of the broad, sweeping and to some extent ambiguous powers—as always happens when you get sweeping powers, there is ambiguity about how they can be applied—there is significant potential for many unintended consequences.

Expressing concerns about this part of the legislation does not mean that the Democrats do not accept that there is a good case, indeed a valid case, for improving the situation with regard to management of various aspects of communities. But we do not believe that giving such total, sweeping, unilateral powers is necessary, and we do not believe there are sufficient checks and balances in place to oversee how those powers are used and to provide adequate protection against misuse of those powers, whether deliberately or inadvertently. It really comes back to that broader issue of whether or not the Commonwealth actually thinks that it will get everything right all the time. Even the Prime Minister accepts that the government will make mistakes along the way. Again, that is inevitable—that is human nature. But the aim and purpose of the Senate in considering legislation is to minimise the amount of mistakes that are likely to be made along the way, rather than just saying, ‘Oh, well, some will happen; them’s the breaks.’ That is the real concern we have here: they are very broad, very sweeping powers.

Some of the concerns raised in the Alert Digest report from the Scrutiny of Bills Committee, which has been touched on a few times already in this debate, go to issues in this section. A lot of the feedback I have had from Aboriginal people in the Territory in this area is that they believe that there is potential for government to act in a way that will assist in an area that does need improvement, but it really is a matter of how you go about providing that assistance. The continuing inability of the government to provide that assistance and support in such a way that it is done in conjunction with people, instead of coming totally over the top and saying, ‘We’re running the show now; everybody out of the way—even with the meetings you are having, we’re going to appoint an observer to sit in and watch what you’re doing,’ is a completely disempowering model. I believe it is acknowledged even by the government that disempowerment is one of the reasons why there are serious situations here that we need to address.

So the Democrats’ concerns are not purely based on objecting to something on a philosophical basis. Our concerns are based on the fact that we believe these provisions are not likely to be effective, that they are not likely to achieve the goal that the government says they are going to achieve. That, to us, is the core issue. Our philosophical objections, our in-principle objections, are important, and those basic issues of empowerment, of control at community level and of business management within a framework are important principles that we stand by.

I am one who recognises that all principles come in competition with other principles at various times. If you can make a compelling case that the practical consequence of a particular course of action will provide a net benefit, I am willing to consider it. But that case has not been made. The only case has been: ‘We know best.’ Frankly, even without this government’s pretty bad record, where they have shown they do not know best when they have intervened in the past a couple of times, as Senator Evans has pointed out, the nature of governments is such that governments coming along saying, ‘We know best,’ is not something that fills me with a great deal of confidence. But that is basically what this section does. It allows the government to come in and say: ‘We know best. Get out of the way; we are running the show.’ I do not believe that is going to be effective. That is my core concern. Another concern goes to what happens after this phase when the framework of intervention and stabilisation is put forward and is then followed by a rebuilding. If the stabilisation phase involves total disempowerment of business management and community activities, you are going to make the re-empowerment 10 times more difficult.

I do not believe a case has been made as to why the Commonwealth needs to have these sorts of extreme powers. I am not at all surprised that the Commonwealth wants them. It is a natural feature of governments to want to take as much power as possible to themselves—not only in Australia across political parties but also around the world. It does not seem to matter what the initial philosophical approach is of various political parties; as soon as they get a significant amount of power, they seem to like grabbing more and more of it to themselves—always justifying it as being in the public interest, of course. Sometimes it is in the public interest, but the majority of times it is not. That is certainly one of the reasons that I find it all the more curious that any government that professes to have any interest in liberalism would be supporting approaches like this, which are total command and control, total government control, over very fine details of people’s lives.

It is a significant area of the legislation. I would not say it is as compelling a reason to vote against the legislation as the areas to do with taking over the land, but it is another area that does raise significant concerns. It is certainly an area about which a lot of concerns have been raised with me. I would assume that the government are aware of those concerns. I presume they open their ears to all views, not just the views of those who agree with them. It is another area where I believe the case has not been made that giving governments these sorts of powers is justified.

Let me restate the case and the core principle. For a parliament, and particularly for the Senate, which is the house of review, to give a government broad, sweeping powers and to take away power from individual people and give that power and control over their lives to a government in such a sweeping way, the case must be made, and it must be made in a credible way and in an evidence based way with sufficient details—not just on the basis of sweeping assertions and general statements about it being an emergency. I do not have a problem with people treating this as an emergency, but I do have a problem with using that as a catch-all justification for giving a government any amount of power they like—and I think that is the danger here.