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Thursday, 12 December 2002
Page: 7830


Senator IAN CAMPBELL (Parliamentary Secretary to the Treasurer) (10:01 AM) —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—

WORKPLACE RELATIONS AMENDMENT (FAIR TERMINATION BILL) 2002

This bill proposes to amend the Workplace Relations Act 1996 to ensure fairness in termination of employment, and to promote the creation and protection of jobs for Australian workers.

The bill will restore for businesses the previous level of protection from dismissal claims from short-term casual employees. It will also move provisions imposing a filing fee for dismissal applications from the regulations into the Act, and provide for the fee to be indexed annually in line with CPI.

These measures demonstrate the Government's commitment to a system of dismissal laws that is fair to employers and employees and a system which protects and creates jobs.

Last November, the Federal Court ruled invalid the regulations excluding short term casual employees from making dismissal applications, on the technical ground that they went further than allowed by the regulation-making power in the Act.

The regulations excluded casual employees from accessing termination of employment remedies, unless they had been working for their employer on a regular and systematic basis for at least 12 months, and had a reasonable expectation of continuing employment with the same employer.

Excluding short-term casual employees from termination of employment remedies is not new. Indeed, the exclusion for short-term casuals was first introduced in 1994, by then ALP Industrial Relations Minister, Laurie Brereton. It is worth noting, that, on the reasoning applied by the Full Federal Court in Mr Hamzy's case, Mr Brereton's regulations would also have been invalid.

The 1994 provisions have remained largely unchanged, except that in 1996, the Government, with the support of the Democrats, amended the regulations to require casuals to work for their employer for a minimum period of twelve months, rather than six months, before being able to make dismissal applications.

For almost a decade then, businesses have organised their employment practices around an exclusion of short-term casuals, and it is important that they continue to be allowed to do so. The exclusion ensures that businesses have the flexibility they need to hire short-term casuals without worrying about dismissal proceedings if it turns out that the employee is not needed permanently.

After the court decision, as an interim measure, the Government made replacement regulations giving employers the widest protection possible within the parameters of the Hamzy decision. If the Government had failed to do this, then employers may have been reluctant to hire casuals. This could have affected their ability to do business, and could have left those seeking casual work, such as working parents, without a job.

However, the Government cannot not re-instate the full casual exclusion through regulations. This requires changes to the Act. This bill will move the short-term casual exclusion out of the regulations and into the Act, and restore its full scope.

In addition, in order to provide certainty for businesses that made employment decisions based on the law as everyone understood it to be at the time, this bill validates the operation of the invalid regulations.

These provisions will declare that, as far as possible, the rights and liabilities of employers and employees are the same as they would have been had the invalid regulations been validly made— and as if the interim replacement regulation made after the Hamzy decision had not been made.

However, casual employees who have already had their cases determined by a court or by the Australian Industrial Relations Commission, are specifically protected by the bill and they will be unaffected by the validation provisions.

This bill also contains measures to ensure that the exclusion provisions are easy to find and understand. Currently, regulation 30B excludes other types of employees from accessing dismissal remedies, such as probationers and high-income earners. Also, regulation 30BA excludes some types of employees from particular dismissal provisions, including requirements for employers to provide notice of termination. Examples of employees excluded under regulation 30BA include longer-term casuals and daily hire employees in the construction and meat industries.

It is again worth noting that in 1994, the then Labor government excluded broadly similar categories of workers from termination remedies. The bill will move these other exclusions in regulations 30B and 30BA out of the regulations into the Act. This means that employers and employees wanting to know their rights and obligations will only need to check one piece of legislation, rather than two.

The bill makes slight and non-substantive alterations to these other exclusions. For example, the exclusion for employees on probation in regulation 30B(1)(c) has been simplified with the removal of the term `qualifying period of employment'. The Workplace Relations Amendment (Termination of Employment) Act 2001, now requires all employees, whether probationers or not, to work for their employer for a qualifying period, unless they agree in writing in advance to alter or waive the period. The use of the phrase in two different provisions could have proved confusing. Therefore the reference to qualifying period in regulation 30B(1)(c) has been removed.

Other changes are necessary to keep the provisions relevant and up-to-date.

Further measures in this bill deal with the $50 filing fee for lodging dismissal applications. This requirement is currently in the regulations. The bill would honour the Government's election commitments by moving the provisions out of the regulations and into the Act, ensuring that the filing fee is a permanent requirement, and providing that the fee be indexed annually in line with movements in the CPI.

The filing fee will discourage frivolous and vexatious claims, while ensuring that genuine dismissal applications can be dealt with efficiently.

In fairness to low-income earners, the Act will continue to provide that the fee can be waived where it would cause financial hardship. Further, the fee will be refunded where an application is discontinued at least two days before being dealt with by the Commission.

The Senate has repeatedly endorsed regulations containing the filing fee. However, there has been disagreement over whether the fee should be made permanent, or continue to be subject to parliamentary review. With this in mind, the Government included in its election platform, a commitment to making the fee permanent, and now has a mandate to implement it.

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CRIMES LEGISLATION AMENDMENT (PEOPLE SMUGGLING, FIREARMS TRAFFICKING AND OTHER MEASURES) BILL 2002

The Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Bill 2002 will introduce new strong and effective offences into the Commonwealth Criminal Code to deal with people smuggling and interstate firearms trafficking.

It also proposes to deal with a number of other important criminal law issues.

In recent years people smuggling has emerged as a major global issue. It is rapidly becoming one of the most lucrative illicit trades in the world. This bill is an important part in the Government's overall strategy to combat people smuggling.

The new people smuggling offences will target activity not covered by the regime in the Migration Act 1958.

In particular, the offences will prohibit the smuggling of persons from Australia to another country, or from a country other than Australia to a third country, with or without transit through Australia.

Where there is no transit through Australia, the offences will apply where the person who organises or facilitates the smuggling either engages in that conduct in Australia or is an Australian citizen or resident.

This bill also provides for aggravated people smuggling offences.

These offences provide larger penalties for people smugglers who endanger the lives or safety of the people they are smuggling, or who subject the people being smuggled to cruel, inhuman or degrading treatment.

An aggravated people smuggling offence is also proposed for people smugglers who smuggle five or more persons at a time.

The aggravated people smuggling offences also criminalise smuggling a person to a foreign country with the intention that that person will be exploited in that foreign country.

`Exploitation' is defined in the bill to include slavery, sexual servitude, forced labour and the removal of a person's organs.

This type of activity is commonly associated with the illegal trafficking of persons.

The people smuggling and aggravated people smuggling offences will apply to all Australian citizens or residents who are involved in overseas smuggling operations.

The broad coverage of these offences demonstrates Australia's commitment to combating people smuggling activity both in Australia and in the region.

The offences also fulfil a commitment to criminalise people smuggling made by participants in the Ministerial Conference on People Smuggling, Trafficking in Persons and Related Transnational Crime, which was held in Bali in February this year.

It is hoped that the introduction of these offences will encourage other countries in the region to adopt similar offences.

The people-smuggling offences are supported by new offences which will prohibit making, providing or possessing false travel or identity documents where those documents are intended for use in securing the unlawful entry of a person into a foreign country.

An offence of taking possession of or destroying another person's travel or identity documents is also included.

The bill also proposes to deal with the issue of interstate trafficking of firearms.

The trafficking of firearms to supply the black market is an increasing problem facing the Australian community.

Research indicates that those who engage in firearms crime are invariably sourcing their weapons illegitimately and do not comply with licensing and registration requirements.

The cross-border trade in illicit firearms is specifically targeted in the new firearm offences contained in this bill.

These offences will work with the existing State and Territory schemes, to make it unlawful, in the course of trade and commerce between the States and Territories, to dispose of or acquire a firearm, where the disposal or acquisition of that firearm is an offence under a State or Territory law.

The bill will also make it unlawful to take or send a firearm from one State or Territory to another, intending that the firearm will be disposed of in the other State or Territory in circumstances which would constitute an offence against the law of that State or Territory.

Implementation of these offences is an important step towards achieving a nationally consistent approach.

Differences in the relevant laws pose major challenges in our efforts to combat interstate firearms trafficking.

The offences will provide the means by which people engaged in the illegal interstate trade in firearms can be prosecuted under Commonwealth law.

The offences should also be a significant deterrent to those engaged in firearms trafficking across State and Territory borders.

In addition to people smuggling and interstate firearms trafficking, this bill makes amendments to a number of criminal justice laws to enhance their effectiveness.

The bill will fine tune the theft and fraud offences in the Criminal Code, which have been operating for over a year, to address minor problems which have emerged with the offences.

The bill will also repeal sections 16G and 19AG of the Crimes Act 1914.

That amendment will mean that courts will no longer have to take into account whether or not remissions are available in a State or Territory when sentencing federal offenders in that State or Territory.

This shift follows the abolition of remissions in most States and Territories and the move towards removal of remissions in the remaining jurisdictions.

The bill proposes to include the drug gamma-hydroxybutyric acid, better known as `fantasy', as a psychotropic substance under the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990.

The substance is commonly used in drink spiking incidents.

This will enhance the ability of law enforcement agencies to investigate and prosecute domestic manufacturers and suppliers of that substance.

The bill also amends the Financial Transaction Reports Act 1988 to ensure that remittance dealers are covered by the definition of `cash dealer' in that Act.

A technical amendment is also proposed to correct a cross-reference to the Commonwealth money laundering legislation following the passage of new money laundering offences earlier this year.

The bill also proposes to amend the International Transfer of Prisoners Act 1997.

These amendments will clearly define the role of the Minister for Immigration and Multicultural and Indigenous Affairs (the Immigration Minister), while ensuring that the Attorney-General and the Immigration Minister consult on the eligibility of prisoners prior to their transfer.

The amendments will also ensure that the Immigration Minister is given the opportunity to consider cancelling a prisoner's citizenship or visa prior to their transfer to Australia.

If the Immigration Minister does cancel a prisoner's citizenship or visa that person is no longer eligible for transfer to Australia.

The Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Bill 2002 deals with a number of important criminal justice issues facing Australia and our region.

The measures contained in the bill will go a long way to dealing with people smuggling, firearms trafficking and other important issues.

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NATIONAL ENVIRONMENT PROTECTION COUNCIL AMENDMENT BILL 2002

This bill will amend the National Environment Protection Council Act 1994:

· to provide a simplified process for making minor variations to National Environment Protection Measures;

· to require five yearly reviews of the National Environment Protection Council Act 1994; and

· to allow the NEPC Service Corporation to provide support and assistance to other ministerial councils.

At the time when the National Environment Protection Council Act 1994 was enacted in 1994, it was an important landmark in the history of environment protection in Australia, marking the commitment of the Commonwealth and the States and Territories to work cooperatively to develop national environment protection standards or `national environment protection measures' as they are called in the Act. Each of the States and Territories introduced mirror legislation to the National Environment Protection Council Act 1994 to ensure a seamless legal jurisdiction for making national environment protection measures.

In 2000-2001 the Commonwealth, State and Territory Acts were reviewed as required by section 64 of the Act. In responding to the review, the National Environment Protection Council concluded that it had made significant progress on matters of national priority in environment protection and noted that the five national environment protection measures in place at the time were making a real contribution to providing equivalent protection from pollution to all Australians.

The Howard government has put in place six national environment protection measures. These are for ambient air quality made in July 1998; the movement of controlled waste between States and Territories made in July 1998; a national pollutant inventory made in July 1998; the assessment of site contamination made in December 1999; used packaging materials made in July 1999; and diesel vehicle emissions made in June 2001.

Since 1998, the contribution of these measures to environmental protection in Australia has been considerable.

· The National Pollutant Inventory has 2,350 facilities reporting in the third year of operation—nearly double those of the first year. There are now more than 150 major industry sectors reporting, and estimates are available of emissions from non-industry sources, such as from motor vehicles, for 30 airshed areas and 24 water catchments.

· All States and Territories now have approved air quality monitoring plans that enable soundly based and consistent reporting on performance against the ambient air measure. Preliminary monitoring results indicate that in most cases the NEPM goal is being met.

· There is now a national scheme under the controlled waste measure to ensure that controlled wastes are moved from one Australian jurisdiction to another only if they are transported and disposed of safely, and with the consent of all State and Territory authorities;

· The Used Packaging Materials NEPM requires brand owners who are not signatories to the National Packaging Covenant to take-back and reuse a percentage of their packaging. There is strong evidence the NEPM is working well, as there are now over 500 signatories to the Covenant, covering major food, beverages, paint and supermarket brands, and including key packaging supply chain companies.

· The diesel vehicle emissions measure is already reducing emissions of particles, oxides of nitrogen and smoke from in-service diesel vehicles. Along with smoky vehicle programs in every state, a major testing and repair program on Sydney's buses is now underway, with other projects to follow shortly.

A further measure on air toxics is due to be completed in April 2003.

Two of the amendments to the Act put into effect recommendations arising from the 2000-2001 review.

The first is that Council should be able to make minor variations (such as corrections or technical updates to standards) to a national environment protection measure by using a process that is more streamlined than the existing process in Section 20.

The second is that there should be provision for the Act to be reviewed at further 5 yearly intervals.

The third amendment follows from the review of ministerial councils by the Council of Australian Governments that resulted holding joint meetings between the National Environment Protection Council, which remains a statutory body, and the new Environment Protection and Heritage Council. The new Council also deals with environment protection and heritage issues previously dealt with by the Australian and New Zealand Environment and Conservation Council (ANZECC) and the Heritage Minister's Meeting.

Under the current Act, the National Environment Protection Council Service Corporation, which provides secretariat services and project management for the National Environment Protection Council, is unable to extend its support and assistance to the new Environment Protection and Heritage Council. The bill will amend the National Environment Protection Council Act 1994 to allow this to occur.

Debate (on motion by Senator Mackay) adjourned.

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

Ordered that the resumption of the debate be made an order of the day for a later hour.