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Wednesday, 27 October 2010
Page: 959


Senator FARRELL (Parliamentary Secretary for Sustainability and Urban Water) (5:49 PM) —I move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—

Corporations Amendment (No. 1) Bill 2010

Today I introduce a bill to amend the Corporations Act 2001, the Australian Securities and Investments Commission Act 2001 and the Telecommunications (Interception and Access) Act 1979.

This Bill contains two separate but related sets of measures, both aimed at improving investor trust and confidence in the Australian share market as well as targeting misconduct.

The first set of measures reform the regime governing access to information contained on company member registers, specifically banning improper uses of that information.

The second set of measures increase the penalties for market offences in the Corporations Act, such as insider trading, and enhance the investigative powers of the Australian Securities and Investments Commission (ASIC)_to catch those who would commit these offences. This set of measures also clarifies that certain off market unsolicited share offers must remain open for at least one month from the date of the offer.

Access to Registers

A company’s register of members is required to contain members’ names, postal addresses and shareholding details. Currently, any person can obtain access to a copy of a company’s register without providing any indication of the purpose for which they intend to use the information.

Today, the Government has introduced legislation to prevent members’ details being used for improper purposes.

The improper purposes will be specified in Regulations and the Government has made it clear that this reform is intended to have the effect of prohibiting the practice of making unsolicited below-value share offers to shareholders.

The Bill will do this by limiting the instances in which a copy of a register of members of a company or registered scheme may be obtained.

A person seeking a copy of the register will have to apply to the company and state the purpose for which they intend to use the information contained in the copy of the register. The company can refuse to provide a copy where the purpose is listed as an improper purpose, which will be provided in the Corporations Regulations.

Examples of these improper purposes are:

  • making an unsolicited off-market offer to purchase shares in a listed company - other than as part of a genuine takeover offer;
  • to enable the solicitation of donations from the listed members of a company;
  • the solicitation of a member of a company by a broker; and
  • gathering information about the personal wealth of a member of a company.

Going forward, this Bill will also prevent persons from using information obtained from registers for improper purposes; even where the information had been obtained by them prior to the commencement of this Bill.

This Bill will ensure that vulnerable or less sophisticated shareholders are protected from individuals or businesses that seek to profit by purchasing their shares for less than their value.

Penalties for Market Offences

The second set of measures contained in this Bill includes provisions that increase the criminal penalties associated with breaches of the insider trading and market misconduct provisions in Part 7.10 of the Corporations Act.

Insider trading and market manipulation can distort Australia’s financial markets and cause serious harm to their fair and efficient functioning. These markets function best when information is widely dispersed and investors have confidence in their integrity.

It is essential that the penalties reflect the serious impact that breaches of these provisions have on financial markets.

The benefit that can be gained from engaging in insider trading or market manipulation often far outweighs the maximum penalty that can currently be imposed for a breach.

This bill will increase the maximum fine for individuals found to have breached the provisions to 4,500 penalty units (currently $495,000) or three times the benefit attributable to the breach. The maximum term of imprisonment will be increased to 10 years.

The maximum penalty for a corporation will be the higher of:

  • 45,000 penalty units (currently $4.95 million);
  • three times the benefit attributable to the breach; or
  • 10 per cent of the corporation’s annual turnover during the applicable period.

The Bill also clarifies how the fault elements of the offence of creating a false or misleading appearance of active trading operate, in accordance with the requirements of the Criminal Code.

Improved Offence Detection Powers

The Bill also proposes to include the insider trading and market misconduct provisions in Part 7.10 of the Corporations Act in the list of serious offences in section 5D of the Telecommunications (Interception and Access) Act 1979.

Insider trading and other market offences are difficult to investigate, as these offences by their very nature involve complex networks of people, technological sophistication and avoidance of paper and traceable communications. In addition, the transactions often occur in real time, meaning that telephone conversations are often the only evidence of the offence.

This Bill enables interception agencies, such as the Australian Federal Police, to obtain direct evidence of these offences - such as the content of conversations - rather than simply relying on circumstantial evidence, such as the mere existence of suspicious telephone calls.

The Bill also amends the search warrant power in the Australian Securities and Investments Commission Act to permit ASIC to apply for a search warrant without first having to issue a notice to produce for the material sought by the warrant. The current legal requirement to issue such a notice provides those under investigation with an opportunity to destroy incriminating material.

Minco Approval

The Ministerial Council for Corporations has been consulted and has approved the amendments contained in this Bill.


Defence Legislation Amendment (Security of Defence Premises) Bill 2010

The Bill will insert a new Part (Part VIA) into the Defence Act 1903 (the Act) to give effect to Australian Government initiatives to enhance the security of Defence bases, facilities, assets and personnel, within Australia, in response to the changing nature of security threats.

In August 2009 a number of individuals were arrested for allegedly planning an armed attack against Holsworthy Army Base.  Defence facilities and personnel are potentially attractive targets for terrorist groups. 

Defence maintains a framework of protective security measures to safeguard defence personnel and facilities.  But, in view of the changing security environment including the increased risk of terrorism, in August 2009 the Prime Minister asked Defence to conduct a comprehensive review of base security.   

The Review of Defence Protective Security Arrangements subsequently recommended a number of policy and physical security initiatives to complement and strengthen existing security at Defence bases.

One of the recommendations of the Review was to bring forward a number of legislative amendments.  These are contained within this Bill.  The measures reflect the importance the Government places on the safety and security of Australian Defence Force (ADF) members, Defence employees and the Australian public.

First, the Bill strengthens the legal regime for ADF members who may be required to use reasonable and necessary force in the event of a terrorist attack on a Defence base. 

Various Commonwealth, State and Territory legislative provisions recognise the right to defend yourself and others who are threatened.  These currently provide a legal basis for members of the ADF to use reasonable and necessary force to defend themselves, or others, in the event of an attack on a base that is likely to cause death or injury.  

The Bill provides a scope of conduct that will apply uniformly for designated ADF members for the security of Defence premises. 

It clarifies that appropriately-trained and authorised members of the ADF may use up to and including lethal force where this is considered reasonable and necessary to protect life or prevent serious injury to themselves or others in the event of an actual or imminent attack on Defence premises or people on those premises. 

It is modelled on the existing section 51T of the Act which applies to the use of force by ADF members in assisting civilian authorities with domestic security incidents and violence under Part IIIAAA. 

The Bill does not alter the primacy of civil law enforcement authorities in responding to security incidents at Defence premises.  A full response to a terrorist incident clearly remains the responsibility of civil law enforcement authorities, and would be managed under the National Counter Terrorism Plan. 

Second, the Bill establishes a statutory regime of search and seizure powers to reduce the risk of unauthorised items entering Defence facilities, or restricted items being improperly removed. 

The Della-Vedova case, involving the theft, possession and sale of Defence owned rocket launchers by a Defence employee, illustrates the risk of improper removal of dangerous, restricted or classified items from Defence bases.

The Bill establishes a statutory regime of search and seizure powers to be exercised by three identified classes of Defence security officials, who will perform security functions at Defence facilities. 

These officials, identified in Division 2 of the Bill, are:

Defence contracted security guards; 

  • security authorised members of the Defence Force; and  
  • Defence security screening APS employees.
  • All three classes of officials will be empowered under Division 3 of the new Part to:
  • request evidence of a person’s identification and authority to be on defence premises;
  • conduct a consensual search of a person, vehicle, vessel, aircraft or item on entry to or exit from a Defence facility; and
  • in defined circumstances, refuse a person entry to or free exit from the facility, and potentially restrain and detain the person for the purposes of placing them in the custody of the police.

The circumstances where these latter powers might be invoked include when the security official reasonably believes that the individual is a trespasser, has or may commit a criminal offence on the premises, or constitutes a threat to the safety of people on the facility.

  • Security authorised ADF members or, where such members are not available, Defence security screening APS employees will be further empowered under Divisions 4 and 5 of the Part, to:
  • require evidence of a person’s identification and authority to be on the premises;
  • conduct a non-consensual search of a person, vehicle, vessel, aircraft or item on entry to or exit from a Defence facility;
  • seize items that constitute a threat to safety or relate to the commission of a criminal offence on the premises; and
  • in defined circumstances, remove people from Defence premises. 

The powers of security authorised ADF members will extend to include, where reasonable and necessary, the authority to take any action required to make a seized item safe, or prevent its use. 

The statutory regime incorporates a range of safeguards relating to the exercise of powers under the new Part.  These safeguards require that officials exercising these powers must:

  • have been authorised by the Minister for Defence;
  • have completed a minimum level of appropriate training as determined by the Minister for Defence or his delegate;
  • carry an identity card in a form approved by the Secretary of Defence;
  • surrender their identity card within 7 days of ceasing to be a security official;
  • wherever practicable produce their identity card for inspection by a person, prior to exercising powers under this new Part;
  • not stop or restrict any protest, dissent, assembly or industrial action;
  • not subject a person to greater indignity than is reasonable and necessary;
  • only use such force against a person or thing that is reasonable and necessary;
  • only restrain and detain for the purposes of handing a person over to the police; and
  • in respect of seized items, provide the person with a receipt if it is practicable to do so and, if there is a reasonable belief that the item relates to a criminal offence, give the item to the police.

Moreover, for the purposes of the consensual search regime contained in Division 3, the amendments will create offences for a Defence security official who conducts a search of a person, vehicle, vessel, aircraft or thing, without consent.

In practice, the exercise of these powers and the proposed use of the various classes of Defence security official will be dependent on the nature of the site and the assessed level of the security threat, typically determined on the basis of intelligence. 

For example, in practice, the consensual identification and search powers, contained in Division 3, will generally be exercised by contracted security guards, on a random basis, on entry to and exit from Defence premises at low to medium threat levels. 

The non-consensual identification, search and seizure powers, contained in Divisions 4 and 5, will be exercised by security authorised members of the Defence Force or, where such members are not reasonably available, by Defence security screening APS employees during higher threat levels on all Defence premises and, at all times, at Defence’s more sensitive sites.  Under these circumstances, the powers would be exercised on a more frequent basis to provide an increased level of security in line with the assessed risk.

Third, the Bill updates the existing trespass offence and associated arrest power in the Act to clarify that Defence has adequate powers to deal with unauthorised entry to all Defence premises. 

Currently, the Defence Act 1903 imposes a monetary penalty of $40 for the offence of trespass.  This is not an effective deterrent to potential trespassers nor does it reflect potential threats to national security.  Consequently, in line with current Commonwealth criminal law policy, the amendments impose a new maximum penalty of $5,500 for the offence of trespassing on Defence premises or accommodation. 

Defence is the largest Commonwealth landowner and one of the largest landowners in Australia.  The Department manages an estate comprised of in excess of 3 million hectares of land, around 88 major bases or facilities, approximately 370 owned properties and a further 350 under lease.  This poses a major challenge to detecting trespassers, particularly if detection was to rely exclusively on the use of manned patrols.

Consequently, to support the enforcement of the new trespass offence, Defence intends to increase the use of optical surveillance on Defence premises, including vessels and aircraft, to improve the Department’s capacity to detect and apprehend potential trespassers.  This may include video surveillance including Closed Circuit Television (CCTV). 

Further, as the purpose of surveillance activity undertaken by Defence would be to identify and deal with potential security threats, the Commonwealth needs to rely on any images captured to assist intelligence agencies, and as evidence to support any action by law enforcement agencies and Commonwealth, State and Territory public prosecution authorities.

Consequently, the amendments will insert new provisions that:

  • authorise Defence to use optical surveillance devices for the purposes of monitoring the security of Defence premises and the safety of people on those premises; and
  • authorise Defence to disclose information, including personal information, captured by those devices to intelligence agencies, law enforcement agencies and Commonwealth, State and Territory public prosecution authorities for the purposes of carrying out their statutory functions.

In conclusion, this Bill confers a range of powers on designated Defence security officials to allow the ADF and the Department to deter, detect and respond to incidents that threaten the security of Defence bases, facilities, assets and personnel within Australia. 

The Bill reflects the Australian Government’s commitment to protect the men and women who safeguard our nation.

I commend this Bill to the Senate.


Fisheries Legislation Amendment Bill (No. 2) 2010

The Fisheries Legislation Amendment Bill (No. 2) 2010 2010 amends the Fisheries Management Act 1991, the Fisheries Administration Act 1991 and the Fishing Levy Act 1991.

The Bill will enhance the ability of the Australian Fisheries Management Authority known as AFMA to implement more effective, efficient and less costly fisheries management in four main ways. Firstly, the Bill will facilitate the broadening of co-management arrangements in Commonwealth fisheries. Secondly, it will simplify the regulatory process applying to fishers, and which AFMA must administer and enforce. Thirdly, it will facilitate the restructure of AFMA’s management advisory committees to introduce a more effective dual advisory model.Lastly, the Bill will enable AFMA to provide and charge for services provided to other agencies in areas where AFMA has technical expertise.

All of these amendments are expected to result in increased efficiency within AFMA and a reduction in the costs that are passed onto industry.

Co-management arrangements enable AFMA to create partnerships to achieve shared responsibility for the management of the resource within a rigorous framework of accountability and policy. Within a co-management arrangement, responsibilities and obligations for sustainable fisheries management are negotiated, shared and delegated between government, fishers (the primary stakeholders) and interest groups.

The proposed legislative amendments will enable the Chief Executive Officer of AFMA to delegate certain powers and functions to ‘primary stakeholders’ in the performance of co-management arrangements. The functions that the CEO may delegate include determining the total allowable catch and the power to close all or part of a fishery.

The full implementation of co-management will only be accorded to fisheries with strong governance, leadership and demonstrated commitment to sustainability.

Importantly, the ability of AFMA to delegate such powers will not detract from AFMA’s legislative responsibilities. Any exercise of power by a primary stakeholder will be within a framework of rules established by AFMA’s CEO in accordance with the Fisheries Administration Act 1991. The framework of rules will ensure that industry delegates comply with relevant policies and that they are fully accountable to AFMA. The Acts Interpretation Act 1901 also provides further control over the delegation process, such as the ability for the CEO to revoke any delegation issued under an Act.

The second set of amendments relates to the simplification of AFMA’s regulatory processes. The complexity of the current regulatory regime has been identified as a significant area of inefficiency and cost for AFMA’s administration of Commonwealth fisheries and for the industry.

This Bill will enable AFMA to reduce the complexity of the rules that apply to fisheries, by prescribing standard conditions in the subordinate regulations rather than in individual management plans.

The third area of reform in the Bill relates to the restructure of Management Advisory Committees, or MACs as they are commonly known. MACs play a significant role in assisting AFMA in the management of fisheries. They generally include members from industry and other interest groups.

The amendment is required to simplify the process to reduce the number of MACs and to enable the implementation of a dual advisory model; a model that enables a MAC to advise on more than one fishery. This model also separates the provision of advice to AFMA. MACs will continue to provide advice to AFMA on community interest issues but advice on fishing operations will be provided by peak industry bodies.

The restructure has the broad support of industry because rationalised arrangements will improve the effectiveness of advice delivered to AFMA and could ultimately reduce the administrative costs borne by industry.

The last group of amendments contained in this Bill will allow AFMA to share its expertise and institutional knowledge with other agencies.

AFMA has some advanced systems and technologies, including satellite vessel monitoring systems and independent fisheries observer programs. There is growing interest from other domestic and overseas fisheries management agencies, looking for the most cost-effective way for governments to provide such services.

AFMA is restricted by the current legislation in its ability to provide these services; despite the demand and its capacity to do so. Providing these services to other organisations would increase the economies of scale and lower the costs in developing such technologies.

The measures introduced by this Bill are a further step in enabling AFMA to implement more efficient and effective sustainable fisheries management.


National Health and Hospitals Network Bill 2010

The National Health and Hospitals Network Bill 2010 is an historic Bill that delivers one of the major components of the Government’s health reform agenda. It is a key step forward in providing better health and better hospitals for all Australians. It establishes a permanent national commission for the safety and quality of healthcare.

The Government’s health reforms are the most significant changes to Australia’s health and hospitals system since the introduction of Medicare. We are creating a National Health and Hospitals Network that is funded nationally, and run locally.

It is the culmination of work that began with the establishment of the National Health and Hospitals Reform Commission, as well as taskforces on primary health care and preventive health.

It follows an extensive consultation process that has seen the Government road testing ideas with more than 100 local communities across Australia.

We are implementing major reforms to the funding and governance of our health system, to place it on sustainable long-term foundations.

We are changing the way that health services are delivered, through better access to services designed around patients’ needs, and a greater focus on preventive health and the provision of care outside of hospitals.

We are also investing in our health system and our health workforce, to deliver better care and better access to services for patients, now and into the future.

The Bill I am reintroducing today is a key component of this overall health reform agenda. Before turning to the detail of this Bill I will outline this agenda in some key areas: the capacity of our health system, better connecting care, access to services, preventive health, sustainability and quality.

Capacity

To ease the pressures on our health system, we need to increase its capacity and the services available. This means more doctors, more nurses and more beds.

The Gillard Labor Government is investing $1.2 billion as part of the National Health and Hospitals Network in doctors, nurses and allied health professionals. This will deliver 5,500 new or training GPs and 680 medical specialists over the coming decade. It will improve support for more than 4600 full-time equivalent nurses working in general practice, and help train and retain our valuable aged care nurses. And we will support 800 allied health professionals working and training in rural areas over the next four years.

We will also invest more than $1.6 billion for more than 1300 new subacute beds, to reduce bottle necks and capacity constraints in our system. These beds will be delivered in areas like rehabilitation, palliative care, and, importantly, mental health services, so that people can get the right care for their needs.

Better connecting care

As part of the National Health and Hospitals Network, the Government will ensure that services are better connected and coordinated, reducing fragmentation and the blame game.

Local Hospital Networks will be established. They will be more responsive to local communities, and new funding arrangements, such as the introduction of activity-based funding, will provide strong incentives for better performance and reduced waste.

The Commonwealth will also take funding responsibility for 100% of primary care, ending duplication and divided responsibilities. The Government will establish Medicare Locals which will work with local GP, allied health and community health providers, to drive local integration and coordination of services and improve access to care.

And, to bring the health system properly into the twenty-first century, the Government will invest $466 million to establish personally controlled electronic health records, reducing mistakes and duplication, and ensuring that, with patients’ consent, doctors have the information they need, when they need it.

Better Access to Services

The National Health and Hospitals Network will also deliver better, more timely access to health services in local communities across Australia.

The Government will establish a national after hour GP and primary care service. This will enable anybody calling their GP out of hours to be referred to a nurse or a GP on the phone, and if necessary referred to a local after hours GP service, coordinated by their Medicare Local.

The Government will also invest $355 million in more GP Super Clinics and expanded GP clinics, in about 450 locations across Australia. These will bring together in a single location services such as GPs, allied health and practice nurses, so that patients can more easily get the full range of care they need.

The National Health and Hospitals Network will also provide strong guarantees and targets to improve access to public hospital services - reversing the neglect from the Howard Government ripping $1 billion from hospitals.

The Gillard Labor Government will invest $750 million so that Emergency Department patients will have a guarantee that they will be treated, admitted or referred within four hours, where clinically appropriate.

And an investment of $800 million for elective surgery will help back a target that 95 per cent of elective surgeries be delivered within the clinically recommended time, and a guarantee that patients facing excessive waits should have their elective surgery fast-tracked.

Preventive Health

Keeping people well and out of hospital is a critical component of the Gillard Labor Government’s health reform agenda: while we are improving our hospitals, we also need to reduce pressure on them and keep people out of hospital in the first place.

To achieve this, the Government will take world leading action to combat tobacco - which contributes to the deaths of 15,000 Australians a year. The Government will introduce plain packaging for all tobacco products - a world first - in addition to raising tobacco excise, which is expected to result in 87,000 fewer smokers.

The Government will also invest $449 million to improve care for people with diabetes - which is fast on the way to becoming one of the major burdens of diseases.

Sustainability

The Labor Government’s record of strong economic management has enabled us to make major investments in our health system. But if our health system is to be sustainable into the future, we have to provide it a secure funding base for the future.

To ensure this, the Commonwealth will take, for the first time, funding responsibility for all GP and primary care services and all aged care services. The Commonwealth will also become the dominant funder of Australia’s public hospitals, paying for 60 per cent of hospital activity and capital, as well as 60% of training and research costs in public hospitals.

These changes will mean that one government will have dominant funding responsibility for all parts of the health system - ending the blame game and the perverse incentives for buck passing and cost shifting.

These changes are the most significant reforms to Commonwealth-state financial arrangements in decades, and my colleague, the Treasurer will also be re-introducing a Bill in coming months to enable the associated changes to federal financial relations.

Delivering reform

The Government is acutely aware of its responsibility to not only outline a reform agenda, but deliver those reforms and make them a reality.

And we are delivering reforms in six key areas:

  • Our hospital projects, including expanding hospital capacity as part of the National Health and Hospitals Network; landmark Health and Hospitals Fund projects and Regional Cancer Centres
  • Investing in our workforce, with new GP training places online from next year along with nursing and allied health scholarships and locum places
  • Primary care infrastructure, through more GP SuperClinics announced recently, and funding rounds to upgrade general practices currently underway
  • E-health and telehealth, with Medicare rebates for telehealth from mid 2011 and electronic health records from July 2012
  • System reform, with Local Hospital Networks and our first Medicare Locals being established from the middle of next year
  • Prevention, with investments for children and workplaces to prevent disease being rolled out from mid next year.

Quality

If we are to have a truly National Health and Hospitals Network spanning Australia, it is essential to have strong safety and quality standards, so that all Australians can be confident that they will receive consistently high quality care, wherever they live.

This Bill provides for framework legislation to establish the Australian Commission on Safety and Quality in Health Care.

It is imperative that the government’s health reforms ensure that the Australian public receives safe, high quality health care. The Australian Commission on Safety and Quality in Health Care will be established as a permanent body with an expanded remit to drive safe, high quality care and ensure the appropriateness of services delivered in particular health care settings, including primary care and mental health.

The Commission will help reduce the harm caused by preventable errors, reduce health care costs resulting from unnecessary or ineffective treatment and have a positive impact on community trust.

The Commission will formulate safety and quality standards, guidelines and indicators and work with clinicians, professional bodies and consumers to lead the drive toward practical health system improvements for the Australian public.

The Commission will provide advice to the Commonwealth, State and Territory Health Ministers about which of the standards are suitable for implementation by Local Hospital Networks as national clinical standards addressing safety and quality matters. Local Hospital Networks will be responsible for implementing relevant national clinical standards addressing safety and quality matters once they are agreed between the Commonwealth and States and Territories.

These national clinical standards for safety and quality will clearly state the high expectations all Australians have of their health and hospital services.

The National Health and Hospitals Network Bill 2010 provides a framework for the establishment of the Commission, including the expanded role for the Commission in setting national clinical standards and strengthened clinical governance. It is intended that arrangements under this expanded role will be further developed in consultation with the states and territories and subject to finalising financial commitments.

The Commission will work collaboratively with both the Commonwealth and the States and Territories in the performance of its functions. More detailed administrative arrangements for the Commission will be underpinned through an agreement with states and territories, and all governments will also agree the funding and work plan for the Commission.

The permanent Commission will be established from 1 July 2011, with existing arrangements for the Commission to continue as part of the Department of Health and Ageing until 30 June 2011.

The existing, temporary Commission has undertaken good work to lead and coordinate work to improve the safety and quality of health care, in areas such as clinical handover and communication, infection prevention in healthcare, and medication safety.

The expanded role of the permanent Commission would complement these activities with work on national safety and quality standards, guidelines and indicators.

At this stage, the West Australian Government has not yet signed the National Health and Hospitals Network Agreement. While Western Australia has indicated that it supports a permanent safety and quality Commission, it is disappointing that Western Australia is choosing to opt out of other important health reforms that will improve health and hospital services for all West Australians.

Conclusion

The National Health and Hospitals Network Bill 2010 marks an important step forward in delivering on the Gillard Labor Government’s commitment to reform Australia’s health system for the future.

Establishing a permanent, independent safety and quality body formalises the government’s commitment to drive improvements in quality and safeguard high standards of care for all Australians.

It will help ensure that there is a more nationally consistent approach to the quality and safety of healthcare across Australia - as part of the National Health and Hospitals Network.

It will help deliver better health and better hospitals for all Australians.

Ordered that the bills be listed on the Notice Paper as separate orders of the day.

Debate (on motion by Senator Farrell) adjourned.