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Wednesday, 17 November 2004
Page: 2


Senator IAN CAMPBELL (Minister for the Environment and Heritage) (9:34 AM) —I table the explanatory memoranda relating to the bills and 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—

Administrative Appeals Tribunal Amendment Bill 2004

The Administrative Appeals Tribunal Amendment Bill 2004 (the Bill) introduces a suite of measures that will improve the capacity of the Administrative Appeals Tribunal (the Tribunal) to manage its workload and ensure that reviews are conducted as efficiently as possible. The Bill amends the Administrative Appeals Tribunal Act 1975 (the AAT Act) and related legislation.

Taken individually, each of the measures contained in the Bill is relatively modest. However, taken together they represent the most substantial reform of the Tribunal undertaken since it first opened its doors on 1 July 1976.

The purpose behind the reforms is simple: to make the Tribunal more efficient, more flexible and more responsive to the ever-changing environment in which it operates. The reforms reinforce that the primary objective of the Tribunal is to provide a mechanism of review that is fair, just, economical, informal and quick. This is primarily achieved by giving the President greater flexibility in the way he or she organises the work of the Tribunal.

The reforms do not involve a fundamental change to the purpose, structure or functions of the Tribunal. Rather, they build on the Tribunal's experience over almost 30 years of operation.

The reforms can be divided into five key areas:

Reforms to Tribunal procedures

Removal of restrictive constitution provisions

Better use of ordinary members

Reform of the role of the Federal Court, and

Changes to the qualification requirements for appointment as President.

I propose to identify some of the significant reforms to be introduced in each area.

Reforms to Tribunal procedures

The Bill reforms existing Tribunal procedures to allow for more efficient conduct of reviews.

The powers of the President will be expanded to facilitate more effective case management. In particular, the President will have the power to issue directions in relation to the operation of the Tribunal and the conduct of reviews. The Bill also rationalises the provisions relating to the resolution of disagreements between the members of the Tribunal hearing a particular matter, avoiding the costly and inefficient delays that, at present, occasionally result from such disagreements.

In keeping with the Government's commitment to alternative dispute resolution as an inexpensive and effective way of resolving disputes between parties, the Bill expands the range of alternative dispute resolution process available to the Tribunal. New alternative dispute resolution processes will include: neutral evaluation, case appraisal and conciliation. The Bill also provides the Registrar with the capacity to engage appropriately qualified and experienced consultants to conduct alternative dispute resolution processes.

Removal of restrictive constitution provisions

The Bill removes restrictions contained in the AAT Act and other legislation on how the Tribunal is to be constituted for the purposes of particular hearings. This will give the President greater flexibility in managing the Tribunal's workload. To ensure that the Tribunal is constituted by the most appropriate members in each proceeding, the Bill requires the President to have regard to a range of factors when determining the constitution of the Tribunal. These factors include:

the degree of public importance or complexity of the matters to which the proceeding relates

the status of the person who made the decision that is to be reviewed, and

the degree to which it is desirable for the members constituting the Tribunal to have special knowledge, expertise or experience in relation to the matters to which the proceeding relates.

To complement these changes, the Bill simplifies existing reconstitution provisions. There are two aspects to this proposal. First, the Bill would amend the provisions that apply where a member becomes unavailable during the course of a review. Secondly, the President would have the power to add, remove or substitute a member of the Tribunal if he or she is of the opinion that it is in the interests of achieving an expeditious and efficient conclusion of the review.

Better use of ordinary members

The Bill contains amendments to allow the President to authorise ordinary members to exercise powers currently only conferred on presidential and/or senior members. These powers will include granting applications for an extension of time before a hearing has commenced and giving a party leave to inspect documents produced under summons. These reforms will give the Tribunal greater flexibility in the allocation of resources and allow for tailored management of particular matters. It is expected that some matters will be heard more expeditiously than is possible under existing arrangements as a result of these reforms.

The role of the Federal Court

The Bill introduces an amendment requiring the consent of the President before a question of law may be referred to the Federal Court. I wish to stress at the outset that no existing appeal rights will be affected by this proposal. At present, subject to some restrictions, the Tribunal constituted for the purposes of a hearing may refer a question of law arising in the proceeding to the Federal Court for decision.

The involvement of the President is intended to ensure that only matters in genuine need of judicial resolution are referred. Under current arrangements, it is possible for issues that may be regarded as settled or insignificant to be referred to the Federal Court wasting the resources of the Court and causing delays in the resolution of the proceeding. Where a party believes that a decision of the Tribunal was based on an error of law, they will still be able to appeal that decision to the Court.

In a related reform the Bill allows the Federal Court to make findings of fact in appeals from decisions of the Tribunal. This reform implements a recommendation made by the Administrative Review Council in its report titled Appeals from the Administrative Appeals Tribunal to the Federal Court. This proposal is not intended to in any way reduce the Tribunal's role as the primary finder of fact in review proceedings. Rather, it is intended to allow the Federal Court to dispose of appropriate matters completely rather than remitting them to the Tribunal for the taking of further evidence.

The Court will only be able to make findings of fact if they are consistent with those already made by the Tribunal. Before making such findings the Court must determine whether it is convenient to do so, having regard to factors such as:

the expeditious and efficient resolution of the whole of the matter to which the proceedings relate

the relative expense to the parties of the Court, rather than the Tribunal, making the findings, and

the relative delay to the parties of the Court, rather than the Tribunal, making the findings of fact.

The amendments will not bring about far-reaching changes to the federal system of administrative law, but rather will improve the efficiency of the review process and provide for more immediate outcomes in a small but significant number of proceedings.

Changes to the qualification requirements for appointment as President

The Bill expands the range of people who are eligible for appointment as President of the Tribunal.

At present only a Federal Court judge may be appointed as President of the Tribunal. The Bill expands this to allow for the appointment of a current or former judge from any federal court, a former judge from any State or Territory Supreme Court, or a person who has been enrolled as a legal practitioner for at least five years.

The purpose of the reform is to ensure that the most appropriately qualified person occupies the position of President, regardless of whether or not they happen to be a judge of the Federal Court.

The Bill also removes those provisions under the Act which currently confer tenure on presidential members who are also judges and allow for the appointment of Deputy-Presidents or senior members with tenure. This means all future appointment to the AAT will be for fixed terms.

Tenured appointments reduce the flexibility of the Tribunal to respond to its changing case load.

To ensure it is able to continue to meet the needs of its users, the Tribunal requires access to a pool of appropriately qualified members. Tenured appointments undermine the ability of the Government to ensure that the pool of available members corresponds with the needs of the AAT and its users.

This reform is also intended to provide consistency across the membership of the AAT.

In addition, the Bill modernises the vocabulary of the Act and inserts new headings to enhance the readability and user-friendliness of the Act. Terms such as `serve' and `furnish' will be replaced with plain English equivalents. These amendments accord with the Government's policy of making the Administrative Appeals Tribunal more accessible to self-represented litigants. Criminal offences contained in the AAT Act are also re-drafted to accord with the style used in the Criminal Code and penalties updated.

Conclusion

For close to thirty years, the Tribunal has provided an avenue for people to seek review of the decisions of Government that impact on their lives. The Tribunal has also played an essential role in improving the quality of administrative decision-making across the Australian Government. The measures contained in the Administrative Appeals Tribunal Amendment Bill will ensure that as the Tribunal enters a fourth decade of operation, it continues to perform its vital function and to so serve the interests of the Australian community.

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AVIATION SECURITY AMENDMENT BILL 2004

It is an unavoidable reality that national security remains a very high priority for this Government. It is also a reflection on our times that it is essential for us to continue to protect our transport system and its passengers against very real threats. It is in this context that I present this Bill for the parliament's consideration.

Aviation security is kept under constant review to ensure that measures remain appropriate to current intelligence on threats to Australian aviation. Most recently, there was a comprehensive review of aviation security following a revised threat assessment issued by the Australian Security Intelligence Organisation in July 2003.

As a result of this aviation security review, the Government announced a major expansion of the nation's aviation security regime on 4 December 2003. As a part of the expansion, background checking has been extended to a larger part of the aviation industry in recognition of the nature and level of the threat. The threat assessment has highlighted pilot identification as an important issue that must be addressed as part of aviation security requirements in Australia. Ensuring that pilots and trainee pilots are subject to security checking will reduce the likelihood of persons who might pose a threat to aviation gaining access to aircraft through legitimate means.

I acknowledge that some might see the need for such scrutiny of all our pilots as an unwelcome imposition on an innocent group within our community. On the other hand, we must move with our changing times, in which an aircraft in the wrong hands has become a lethal weapon.

This Bill has two parts. The first part deals with the issue of background checking of flight crew, while the second part deals with minor amendments mainly of a transitional nature.

I will not dwell on the minor amendments, which deal primarily with transitional arrangements for programs approved under the Air Navigation Act after the commencement of the Aviation Transport Security Act, but I will instead focus on the changes to the background checking provisions.

Currently there are legislative impediments to the most efficient implementation of the Government's decision in relation to background checking of flight crew and trainee flight crew. The most efficient process is to fully integrate background checking into the licensing process so that we can all be assured that all holders of a pilot's license have withstood rigorous, if confidential, scrutiny of their background.

The legislative impediments are broadly the absence of a head of power in the Aviation Transport Security Act 2004 which enables the background checking of pilots, and subsection 9(5) of the Civil Aviation Act 1988, which prevents CASA from having responsibility for aviation security.

This Bill will remove those legislative impediments and provide a background checking process that is both effective and efficient.

The Bill inserts Division 9 `Security Status Checking' into the Aviation Transport Security Act.

New Section 74F will allow the Secretary of the Department of Transport and Regional Services to determine that a person has an adverse security status based on the results of background checks. The effect of such a declaration will be that the person is precluded from holding a security designated authorisation. A security designated authorisation will be defined in the regulations and will include, but not be limited to, all flight crew and trainee flight crew licences. This is intended to provide a mechanism preventing would-be pilots assessed as having an unacceptable security history from obtaining or retaining a pilot's license.

The procedure by which the Secretary of the Department of Transport and Regional Services will come to such a decision, and the kinds of factors which will have to be considered by the Secretary in making such a decision, will be set out in the regulations. These provisions have been included in acknowledgement that denying a license is a most significant decision that has to be seen to be based on valid security concerns rather than any form of arbitrary decision making.

It is envisaged that these procedures will include considering the results of a check of the person's criminal history, their immigration status, and the results of a security assessment conducted by ASIO in relation to the person. This is the same as checks undertaken on other aviation industry employees with access to aircraft and the secure areas of airports when they apply for an Aviation Security Identification Card (ASIC).

In addition, the Bill will remove the impediment to CASA having responsibility for aviation security. This is not intended to make CASA a security agency, but rather to ensure that CASA is not unnecessarily precluded from contributing to the Government's desired security outcomes through the exercise of its functions. This is a further sign of our troubled times and the extent to which `security is everybody's business': all government agencies, whether they are used to seeing themselves in such terms or not, have a contribution to make to our national security. This Government is doing everything it can to ensure that all of our agencies work together in our quest for our national security.

The changes contained in this Bill are part of a broader government strategy of ensuring that sensitive transport infrastructure and the public at large are protected from acts of unlawful interference with transportation. They will complement the ASIC regime which applies at airports and the Maritime Security Identification Card system which will apply at ports.

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Bankruptcy and Family Law Legislation Amendment Bill 2004

The Bankruptcy and Family Law Legislation Amendment Bill 2004 is a part of the Howard Government's continuing reform of both family law and bankruptcy law.

In particular, this Bill addresses the interaction of bankruptcy law and family law, and implements key recommendations of the Joint Taskforce Report on the Use of Bankruptcy and Family Law Schemes to Avoid Payment of Tax (the Taskforce).

The most significant amendments contained in this Bill are designed to harmonise the law that applies to the division of assets upon insolvency and upon the breakdown of a marriage and, in particular, to the interaction between the Family Law Act 1975 and the Bankruptcy Act 1966. There have been longstanding concerns about the uncertainty facing both bankruptcy trustees and non-bankrupt spouses when these two areas of law operate concurrently.

This Bill will make more comprehensive changes, partly under the Bankruptcy Act 1966, but mainly focussed on powers and procedures in relation to family property and financial arrangements under the Family Law Act 1975.

Schedule 1 contains amendments designed to clarify the rights of the bankruptcy trustee and the non-bankrupt spouse, and to offer certainty as to the competing rights of creditors and the bankrupt spouse.

The amendments in Schedule 1 will enable concurrent bankruptcy and family law proceedings to be brought together in a court exercising family law jurisdiction, to ensure that all issues are dealt with at the same time. This is achieved by giving courts exercising family law jurisdiction additional jurisdiction to deal with bankruptcy matters that are run concurrently with a family law financial matter, and by facilitating the bankruptcy trustee's and third party creditors' involvement in family law proceedings. By merging the courts' jurisdiction on bankruptcy and family law matters, in cases where these areas interact, the amendments will allow the courts exercising family law jurisdiction to consider the non-financial contributions of a non-bankrupt spouse to the acquisition of family property.

Under these Schedule 1 amendments, the trustee in bankruptcy can be a party to property or spousal maintenance proceedings under the Family Law Act 1975, and the court will have jurisdiction over property that has become vested bankruptcy property. The court will be able to make an order against the relevant bankruptcy trustee as part of the property adjustment order, allowing the trustee effectively to stand in the shoes of the bankrupt spouse.

The effect of these amendments will be to offer procedures and protections to the non-bankrupt spouse that were not previously available. At the same time, the court can be on notice about the interests of creditors of a bankrupt spouse, and can take those interests into account in determining family property adjustment or spousal maintenance orders.

Schedule 2 to the Bill will establish an enhanced regime for collecting income contributions under the Bankruptcy Act 1966. Currently, the Official Receiver can collect contributions to repay outstanding creditors from a bankrupt wage earner's salary and/or bank accounts. However, the existing provisions offer limited recovery of contributions against a self-employed bankrupt. These amendments will introduce a supervised account regime, giving the trustee access to all of the bankrupt's income before it reaches the bankrupt, ensuring that the contribution scheme applies in a more even-handed and effective manner.

Schedules 3 and 4 to the Bill contain amendments that are designed to prevent people using financial agreements under Part VIIIA of the Family Law Act 1975 to defeat the claims of creditors. The amendments will ensure that the existing `clawback' provisions in the Bankruptcy Act 1966 can be used to recover transfers made pursuant to financial agreements. The amendments will also create a new act of bankruptcy which will occur when a person is rendered insolvent as a result of transfers made pursuant to a financial agreement. This will allow the bankruptcy trustee access to dispositions of property made after that act of bankruptcy is committed.

The Government is committed to enhancing and making the family law and bankruptcy systems more accessible, efficient and effective and this Bill is part of the Government's commitment to that goal.

Full details of the measures contained in this Bill are outlined in the Explanatory Memorandum to the Bill.

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Disability Discrimination Amendment (Education Standards) Bill 2004

This Bill is an important precursor to the formulation of disability standards for the education of people with disabilities.

The Disability Discrimination Act 1992 provides that the Attorney-General may formulate disability standards in a range of areas, including the education of persons with a disability.

Draft Disability Standards for Education have been developed over many years. Their development has involved extensive consultation with government and non-government education providers, the disability sector and other interested members of the public.

In June 2004 the Government released for public information a final draft of the Standards, along with accompanying Guidance Notes to assist in their interpretation.

The final draft of the Standards differs from the operation of the Act in minor ways. Therefore, it is necessary to make minor amendments to the Act ensure that the Standards are supported to the greatest possible extent.

One amendment is to extend the defence of `unjustifiable hardship' to aspects of education beyond the point of enrolment. The others are to introduce a new definition of `education provider', and to clarify the position with respect to `reasonable adjustments' and the harassment and victimisation of students with disabilities.

When implemented, the draft Disability Standards for Education will specify how education and training are to be made more accessible to students and prospective students with disabilities, without imposing unduly onerous burdens on education providers. They will clearly describe the obligations of education providers in relation to students with disabilities, and provide guidance on how to meet those obligations.

The Standards will cover government and non-government providers in all sectors: pre-school, school, vocational education and training, higher education and adult and community education.

The Productivity Commission's recent Review of the Disability Discrimination Act identified `exclusion from, and segregation in, education' as `one of the most serious forms of disability discrimination'.

Disability discrimination in education can manifest itself in many ways, including refusal of enrolment, exclusion from sports or other activities, negative attitudes and unsuitable or inflexible criteria.

This Bill will amend the Disability Discrimination Act to make it clear that disability standards may require education providers to make reasonable adjustments to avoid discriminating on the ground of disability in relation to education and training.

What is a `reasonable adjustment' will depend on the circumstances of the individual case, but may involve something as simple as allowing a student additional time to complete a test, or supporting the use of assistive computer technology.

Education providers will not be required to make adjustments for students with disabilities if making those adjustments would cause them unjustifiable hardship.

The Productivity Commission's Review of the Disability Discrimination Act also noted that the absence of an unjustifiable hardship defence after the point of enrolment has created problems for educational institutions. It may be inadvertently aggravating discrimination by being a disincentive to providers to enrol students with disabilities.

The Government considers that more inclusive education and training can play a significant role in changing broader community attitudes about people with disabilities, and will play a crucial part in preparing people for participating more fully in the workforce.

Passing this Bill is the next step in ensuring that outcome.

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FAMILY LAW AMENDMENT (ANNUITIES) BILL 2004

The Family Law Amendment (Annuities) Bill 2004 is a part of the Howard Government's continuing reform of the family law system.

This Bill extends Part VIIIB of the Family Law Act 1975, which provides a regime by which future superannuation payments can be split on marriage breakdown, to certain annuity products.

The commencement of Part VIIIAA of the Family Law Amendment Act 2003 on 17 December 2004 combined with the passage of this Bill will complete the Government's promise in the 2001 election to ensure that life products can be split by parties on divorce, in the same way that couples are able to split superannuation interests.

Annuities are a financial investment product primarily designed for use as retirement income. They receive similar tax concessions and preferential treatment for social security income and asset test purposes as superannuation products. It is therefore appropriate that the family law superannuation regime applies to these products to provide both certainty and consistency in the treatment of these products.

The key distinction between superannuation and annuity products is that annuities are a contractual rather than a legislative product and annuities fund managers are not subject to the same regulation that applies to superannuation fund managers.

This Bill provides extension of Part VIIIB to both immediate annuities, that is those already in the payment phase, and deferred annuities, those where payments of an income stream is yet to commence.

Annuity products are often purchased because the particular superannuation fund from which the money has come from only allows for a lump sum payment and an individual wants to receive the money as an income stream. Alternatively an individual may have purchased an annuity product when they left a place of employment and the particular superannuation fund to which they belonged did not allow for retention of funds. Annuity products are a way to keep the money within the superannuation system and to continue to benefit from the concessional tax and income security treatment of these products.

While immediate annuities continue to exist as a product that can be purchased deferred annuity products are no longer available. This is primarily because changes to superannuation legislation in recent years means that superannuation funds now generally allow for retention or roll over of monies within the fund.

Australian Prudential Regulation Authority data is that in December 2003 there was approximately $13 billion held by what is classified as annuities and other miscellaneous funds within the superannuation system. This represents about 2.3 % of all superannuation assets.

The appropriate treatment of annuity products was first raised as an issue by the financial services sector in 2001 towards the end of consideration of the Family Law Legislation (Superannuation) Amendment Act 2001 which ultimately passed Parliament in June 2001. At that time it was decided not to include these products in the superannuation regime primarily due to difficulty in defining these products.

Concerns about the treatment of annuity products were also raised during Parliamentary consideration of Schedule 6 of the Family Law Amendment Act 2003. Schedule 6 inserts a new Part VIIIAA into the Family Law Act 1975 to allow the court in property proceedings to make orders binding third parties. The financial services sector in particular was concerned that there was uncertainty surrounding how orders made about annuity products by the courts under the new Part VIIIAA would affect its members.

The commencement of Schedule 6 was delayed for 12 months from Royal Assent, until 17 December 2004, to allow time to consider further the concerns that had been raised by the financial services sector. Following consultations with the financial services sector, the legal profession and the courts, this Bill addresses the concerns raised and will provide certainty about the orders that the court can make.

This Bill will add a class of eligible annuities to the categories of eligible superannuation plans to which Part VIIIB of the Family Law Act 1976 covers and remove that class of annuities from Part VIIIAA of that Act. A definition of an “eligible annuity” is proposed using the meaning of the term “annuity” under the Superannuation Industry (Supervision) Act 1993. Under this definition the annuity must be treated for the purposes of Division 14 of Part III of the Income Tax Assessment Act 1936 as being purchased wholly out of rolled over superannuation amounts.

One distinction in the operation of the current superannuation regime for annuity products is that the Bill does not contain a provision requiring the preservation of the non member's spouse's entitlement once splittable payments have commenced to be paid in respect of a deferred annuity. A preservation requirement is usually something like the attainment of retirement age or invalidity.

For immediate annuities this is not an issue as the member spouse must have already met one of the preservation requirements and the money would have already been part of the household income prior to the marriage breakdown. In these circumstances there is no requirement to withhold the splittable payments to a non member spouse who has not satisfied a preservation requirement.

For superannuation monies which are in the growth rather than the payment phase there is currently a requirement to preserve the non member spouses entitlement to a splittable payment until they satisfy a statutory preservation limit, such as the attainment of retirement age. The major purpose behind this requirement is to retain such monies within the superannuation system to be used as retirement income.

This different treatment for deferred annuities is appropriate because in the case of deferred annuity there is only a contractual not a legislative requirement for an annuity provider to only commence payments once a member spouse's preservation requirement is met. Without a statutory regime to enforce preservation it is not appropriate to seek to preserve the non member spouse's entitlement. The effect of this may be that in some cases a splittable payment will be made to a non member spouse who has not satisfied a preservation requirement such as retirement age.

Amendments will be required to the Family Law (Superannuation) Regulations 2001 in relation to annuity products between the passage of this Bill and commencement. The Family Law (Superannuation) Regulations 2001 sets out requirements mainly relating to valuation and information matters, in relation to superannuation interests held by parties to a marriage on marriage breakdown. To remove that annuity products are not subject to orders under Part VIIIAA before those amendments can be made.

The Bill contains a provision to take annuity products out of Part VIIIAA from the time it commences on 17 December 2004. This will mean that the provisions that currently apply to them will continue to apply until the rest of this Bill commences. The court can already make an order under Part VIII of the Act in property or spousal maintenance proceedings that a spouse pay income he or she receives under one or more of these products to the other spouse. However, the court can not bind third parties when making those orders.

The Bill also contains a provision to make it clear that annuity products will not become a part of Part VIIIB until commencement on Proclamation or 6 months from Royal Assent. This will ensure appropriate time to finalise the necessary regulatory regime.

The Government is committed to enhancing and making more accessible and efficient the family law system and this Bill is part of that commitment.

Full details of the measures contained in this Bill are contained in the Explanatory Memorandum to the Bill.

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FISHERIES (VALIDATION OF PLANS OF MANAGEMENT) BILL 2004

The Fisheries (Validation of Plans of Management) Bill 2004 (the Bill) provides certainty about the validity of certain plans of management determined, amended and/or revoked under the Fisheries Management Act 1991. It also provides certainty about things done under or for the purposes of those plans.

The Australian Fisheries Management Authority (AFMA) manages Commonwealth fisheries under the Fisheries Management Act 1991 and the Fisheries Administration Act 1991. Under Division 2 of Fisheries Management Act 1991, plans of management can be created for Commonwealth fisheries to establish the arrangements under which the resources are to be sustainably managed.

A plan of management may determine a range of matters for a fishery including the area, fishing method and gear, the fishing capacity and target species. It may also specify how AFMA will adjust catch levels when there are changes in the size and structure of the stock, economic and social conditions in a fishery or other events that may impact upon the biological sustainability of the stock or associated and dependent stocks.

A plan of management may also provide for the management of the fishery by means of a system of statutory fishing rights (SFRs) and other fishing concessions, and may formulate procedures to be followed for selecting persons to whom fishing concessions are to be granted. It is put in place following extensive consultation and review processes.

Plans of management are an essential tool for the effective management of Commonwealth fisheries and have been put in operation for a number of years in some of the significant Commonwealth fisheries. As such, it is important to ensure that nothing can call into question the regime of access to resources under these plans and things done under or for the purposes of those plans.

In this respect, a legal audit was undertaken last year which identified that there is a potential argument that there may have been an inconsistency in the process by which plans of management were determined, amended or revoked before July 2003 by the Managing Director or by the Acting Managing Director of AFMA.

There is a small, residual legal risk that this potential inconsistency may encourage some fishers to challenge the validity of these plans, even though the plans of management were formulated correctly, with due regard to the proper consultation and review processes.

The Australian Government is of the view that all current plans of management are valid. However, it is important for industry that these plans are placed beyond risk and are certain. The consequences of a successful challenge could be significant. It would undermine many of the existing arrangements and rules underpinning the management of Commonwealth fisheries. This would create uncertainty and instability within the industry.

The Australian Government is of the firm belief that the plans of management will withstand any challenge and wants to ensure there is no scope for uncertainty about the status of the plans of management.

The provisions of this Bill address this small legal risk and put beyond all doubt the validity of existing plans of management determined, amended and/or revoked under the Fisheries Management Act 1991 and things done under or for the purposes of those plans. The Bill will have no affect on fishing operators, other than to ensure that the current management arrangements relating to their fisheries are certain.

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National Security Information (Criminal Proceedings) Bill 2004

The protection of Australia's national security is an obligation that the Government takes seriously.

An integral part of this obligation is the protection of information which, if disclosed, could damage our national security.

As the Director-General of Security, Mr Dennis Richardson, recently told the Australian Chamber of Commerce and Industry,

“Sooner or later, the protection of classified and security sensitive information will be a critical issue in a terrorism trial in this country.”

The existing rules of evidence and procedure do not provide adequate protection for such information where it may be disclosed during the course of criminal proceedings.

As a consequence, the Commonwealth may be faced with a choice between accepting the damage resulting from the disclosure of information or protecting that information by abandoning the prosecution.

The National Security Information (Criminal Proceedings) Bill will strengthen the laws for protecting information that is likely to prejudice our national security.

The Bill is designed to enable information to be introduced during a federal criminal proceeding in an edited or summarised form.

This will facilitate the prosecution of an offence without prejudicing national security and the rights of the defendant to a fair trial.

The Bill has been considered by the Senate Legal and Constitutional Legislation Committee who reported on 19 August 2004 with 13 recommendations.

The Government has considered the Committee's report and has adopted several of the Committee's recommendations.

The Bill makes it clear that defendants and their legal representatives can only be excluded from hearings in limited specified circumstances, namely where the legal representative does not hold a security clearance, and that courts will retain the power to stay proceedings if the defendant cannot be assured of a fair trial, consistent with Committee recommendations 6 and 13.

The Bill provides that the court must, in making an order in relation to the disclosure of information or a witness, consider whether the exclusion of information or a witness would impair the ability of a defendant to make his or her own defence.

This requirement is in addition to requiring the court to consider whether the exclusion would substantially affect the defendant's rights to receive a fair hearing.

These requirements are consistent with Committee recommendations 7 and 8.

Closed hearings, in relation to information that is the subject of an Attorney-General's certificate, will be held by the trial court before the trial begins, rather than as soon as the trial begins, consistent with Committee recommendation 9.

The Bill also provides that evidence in a redacted or summarised form, approved during a closed hearing, can be adduced without it being argued in the trial itself that the form in which the evidence is adduced is inadmissible.

In all other respects the normal admissibility discretions of the court will apply, consistent with Committee recommendation 11.

Several other provisions have been included to strengthen the Bill.

The Bill provides for the court to give reasons for its decision for admitting, excluding or redacting information or excluding a witness.

The Bill ensures that a certificate of the Attorney-General will only lapse after the decision of the court in relation to the certificate is final, that is, where no appeal has been lodged and the period for lodging appeals has ended.

A notice of information that is likely to prejudice national security will be provided to the Attorney-General only.

The witness and the other party will be informed that a notice to the Attorney-General has been given.

A definition for the term “likely to prejudice national security”, has been included to mean a real likelihood and not a remote possibility.

The requirement that a closed hearing be held to decide whether to make an order in relation to the disclosure of information for extradition proceedings has been excluded.

This is because extradition proceedings are not a trial of the person for an offence, but merely determine whether an individual should be surrendered to another country to face trial in that country.

The admissibility of the evidence is then a matter for the trial court of the requesting state.

The Bill marks a significant change to the way information that may affect our national security is used in federal criminal proceedings.

However, the new measures will not prevent a defendant from receiving a fair trial.

The courts will retain the power to ensure that a trial is fair and the defendant is not disadvantaged.

In this way, the Government has struck the right balance in protecting national security without sacrificing the independence of the judiciary and the defendant's right to a fair trial.

For this reason, I commend this Bill.

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National Security Information (Criminal Proceedings) (Consequential Amendments) Bill 2004

This Bill amends the Administrative Decisions (Judicial Review) Act 1977 and the Judiciary Act 1903 to give effect to the National Security Information (Criminal Proceedings) Bill 2004.

The Bill amends the ADJR Act to exclude a certificate decision of the Attorney-General from section 13 of that Act.

This means that an individual cannot request that the Attorney-General furnish a written statement setting out the findings on material questions of fact and the reasons for the certificate decision.

Due to the nature of a certificate decision, exposing its underlying reasons could itself prejudice Australia's national security.

The Bill also amends the ADJR Act to include a certificate decision of the Attorney-General within the definition of a `related criminal justice process decision'.

This amendment will limit the jurisdiction of a court to hear a defendant's application under the Act while a prosecution or appeal is before a court, thereby ensuring that such an application will not delay the prosecution or appeal.

The Bill also amends the Judiciary Act to include an Attorney-General's certificate decision within the definition of a `related criminal justice process decision'.

This amendment gives the Supreme Court of the State or Territory in which the prosecution or appeal is before a court, jurisdiction with respect to any matter in which the defendant seeks a writ of mandamus or prohibition or an injunction against the Attorney-General in relation to a certificate decision.

It promotes administrative efficiency by ensuring that the application for a writ of mandamus or prohibition or an injunction is heard by the same court that is likely to hear the prosecution or appeal.

This Bill offers a greater level of protection to sensitive security-related information whilst also promoting efficiency.

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POSTAL INDUSTRY OMBUDSMAN BILL 2004

The Postal Industry Ombudsman Bill 2004 implements a Government election commitment to establish a dedicated Postal Industry Ombudsman (PIO).

Unlike a number of overseas postal administrations, Australia does not yet have a dedicated PIO. As a result, consumers do not have a recognisable, dedicated and independent entity to deal with their complaints about the provision of postal services.

The Bill will address this situation by inserting a new Part into the Ombudsman Act 1976 to establish the PIO as a separate office within the office of the Commonwealth Ombudsman.

The Commonwealth Ombudsman currently has the authority to investigate actions taken by Australia Post, and to recommend that it take appropriate action. However, the Commonwealth Ombudsman does not have a high profile with regard to postal complaints, and many consumers may be unaware of the Ombudsman's role with regard to Australia Post. In addition, the Ombudsman does not currently have the authority to investigate complaints relating to postal operators other than Australia Post, which are instead investigated by relevant State and Territory Offices of Fair Trading.

To address these issues, the Bill will establish the PIO as a high-profile office that will be responsible for investigating actions taken by Australia Post in relation to the provision of postal services. The PIO will also be able to investigate actions taken by other postal operators who choose to register with the scheme.

For private postal operators (PPOs), registering with the scheme may be attractive because it could be presented as a benefit to customers using their services. It may therefore provide a marketing advantage over their competitors. The PIO will also serve as a final arbiter for the resolution of difficult disputes, which will be of benefit both to postal service providers and their consumers. Any operators who choose not to register will remain subject to the authority of State and Territory Offices of Fair Trading.

In many respects, the PIO will be provided with similar powers to the Commonwealth Ombudsman. For example, the PIO will be able to require a person to provide information in writing or to attend before the PIO to answer questions. The PIO will also be required to provide procedural fairness to Australia Post, registered PPOs and their employees in the investigation of any actions they have taken.

However, whereas the Commonwealth Ombudsman's powers are tailored to the investigation of public sector administrative actions, the PIO's powers will be customised for the investigation of service delivery complaints in relation to both Australia Post and private operators. Moreover, as the PIO will have jurisdiction over non-government entities which have voluntarily registered with the PIO, the PIO will not have certain powers that are considered unnecessary or which would act as a deterrent to PPOs registering with the scheme. For example, it was not considered appropriate to provide the PIO with the power to enter premises or to override a person's claim to legal professional privilege.

Due to these differences, the PIO's powers will complement rather than replace the Commonwealth Ombudsman's existing powers to investigate action taken by Australia Post. The Commonwealth Ombudsman will retain existing powers to investigate actions by Australia Post, and will use these powers primarily to investigate actions that are not related to the provision of postal services. Examples of these types of action are the handling of requests under the Freedom of Information Act 1982, or the handling of pre-employment matters or employee compensation.

Complaint transfer provisions in the Bill will mean that complaints can be transferred from the PIO to the Commonwealth Ombudsman, and visa versa. These will mean that most, if not all, service delivery complaints against Australia Post will be dealt with by the PIO in a similar way to those against any other postal operator but, where it is more appropriate to do so, complaints against Australia Post can still be dealt with by the Commonwealth Ombudsman. This will ensure that the full powers currently available for the investigation of actions taken by Australia Post will remain available.

The PIO will also have the discretion to transfer an investigation to another statutory office holder, if it is considered that it could be more conveniently or effectively dealt with by that statutory office-holder. In combination, these transfer measures will ensure that complaints are handled by the Ombudsman or statutory office holder with the most appropriate functions and duties to deal with them.

Some provisions in the Bill have been drafted differently from provisions in the current Ombudsman Act, even though they cover similar matters. This has been done to modernise the drafting style and to address other drafting issues, some of which may be considered during the current review of the Act. For example, the current Act separates the Ombudsman's investigative powers in relation to preliminary inquiries from his or her other investigative powers. However, in practice the division of these powers is not reflective of the administrative practices of the Ombudsman. They are, therefore, combined in the new Part.

As the PIO will be an opt-in scheme for PPOs, the Bill provides that a register of registered PPOs be maintained for administrative purposes and for public information. The Bill provides that PPOs other than Australia Post may apply in writing to the PIO to be registered, and are taken to be registered once the PIO includes them on the Register.

A PPO may also apply in writing to deregister from the scheme. However, the PIO will still be able to investigate a complaint about a PPO who has decided to de-register, so long as the action was taken while they were registered and the complaint is received within 12 months of the action complained of. This provision is intended to discourage PPOs from deregistering simply to avoid having particular actions investigated.

The Bill provides that the PIO may charge Australia Post or a registered PPO fees to recover the costs of conducting investigations relating to complaints made about them. The details of the cost recovery mechanism will be prescribed in regulations.

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Surveillance Devices Bill 2004

Australia's law enforcement agencies rely on a variety of law enforcement tools to catch and prosecute serious criminals.

One important tool is the use of surveillance devices which could be anything from a hidden microphone, an ordinary video camera to a tracking device.

Yet today, the current surveillance device laws available to Commonwealth law enforcement are not up to the job of policing in the 21st century. The powers available to the Commonwealth also lag behind those available at the State level, both in terms of the types of devices that may be used and the offences for which they are available. It is therefore imperative that law enforcement agencies investigating Commonwealth offences are provided with this power so they can take advantage of what surveillance device technology makes possible, and what other jurisdictions permit.

This Bill began as an initiative of the Leaders' Summit on Terrorism and Multi-Jurisdictional Crime held on 5 April 2002.

A Joint Working-Group of Commonwealth, State and Territory officials was established by the Standing Committee of Attorneys-General and the Australasian Police Ministers' Council.

The Joint Working-Group developed comprehensive model laws for all Australian jurisdictions to improve the effectiveness of cross-border criminal investigations in the areas of controlled operations, assumed identities, protection of witness identity and the use of electronic surveillance.

These model laws were released in a public discussion paper to solicit feedback from groups and individuals on the suitability of the proposed powers.

The Surveillance Devices Bill 2004 implements the model laws on electronic surveillance, tailoring it to the needs of the Commonwealth. It also implements several recommendations of the Senate Legal and Constitutional Legislation Committee report on the earlier version of the Bill which was tabled on 27 May this year.

The Bill will consolidate, expand and modernise the outdated surveillance device powers available to the Commonwealth and will provide law enforcement agencies with access to the surveillance tools necessary to protect Australians and to investigate and prevent serious crime.

The Bill allows officers of the Australian Federal Police, the Australian Crime Commission, a State or Territory police force or other specified agencies, such as the NSW Crime Commission, which are investigating a Commonwealth offence to use a greater range of surveillance devices than is currently available to these agencies. The Bill will allow the use of data surveillance devices, optical surveillance devices, tracking devices and listening devices.

The Bill also allows the use of surveillance devices for a wider range of offences than is the case under existing Commonwealth law. For example, surveillance devices may be used under this Bill for the investigation of terrorist activity, people trafficking and child sex tourism.

The Bill also permits a law enforcement officer to seek an emergency authorisation, rather than a surveillance device warrant, from a senior executive officer of the law enforcement agency for the use of a surveillance device in urgent circumstances.

The Bill provides for three such situations: where there is an imminent threat of serious risk to a person or substantial damage to property, to recover an abducted child and where there is a risk of losing evidence in relation to specified serious Commonwealth offences, including terrorism, serious drug offences, treason and aggravated people smuggling.

In recognition of the privacy implications of this Bill, the Bill imposes a range of important accountability measures.

The most intrusive types of surveillance must be subject to the scrutiny of a judge or AAT member before the surveillance begins, or, in the case of an emergency authorisation, within 48 hours after the authorisation has been given.

Furthermore, the subsequent use, disclosure or communication of material gathered by, or relating to, a surveillance device is subject to stringent restrictions. For example, surveillance device product may only be used for a “permitted purpose” listed in the Bill. Furthermore, record-keeping requirements ensure that documents relevant to surveillance devices are kept to establish compliance with the law.

Chief officers of law enforcement agencies using surveillance device warrants and emergency authorisations must also submit detailed reports to the Attorney-General, both after a warrant or authorisation has expired and annually.

The Bill imposes a duty on chief officers to destroy surveillance device material when it is not longer relevant to one of the permitted purposes listed in the Bill.

The Commonwealth Ombudsman has extensive powers to ensure compliance with the Bill. The Ombudsman must report on a six-monthly basis to the Attorney-General who in turn must table these reports in Parliament.

I urge that this Bill be passed as a matter of priority so that these important investigative tools are made available to law enforcement as soon as possible.

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Telecommunications (Interception) Amendment (Stored Communications) Bill 2004

This Bill amends the Telecommunications (Interception) Act 1979.

These measures, which were first considered by the 40th Parliament, address obstacles faced by our law enforcement and regulatory agencies.

It was disappointing that during the last session of Parliament, the Opposition while, on the one hand applauding the amendments because they met the urgent operational needs of our law enforcement agencies, delayed the passage of the amendments by referring this Bill to a Senate Committee.

This was despite the Senate Legal and Constitutional Legislation Committee twice considering proposed amendments to the Telecommunications (Interception) Act in relation to stored communications.

The Bill we have before us today will limit the existing prohibition against interception to real time transit of communications by excluding communications that have been stored on equipment from the scope of the Act.

The Government recognises however that broader review of access to stored communications by our agencies is required.

The amendments will cease to have effect 12 months after their commencement, during which time the Attorney-General's Department will conduct a review focussing on the most appropriate means of access to these communications.

As previously said though, the need for more comprehensive review should not preclude the enactment of amendments to address the operational concerns created by the Act's current application.

The amendments in this Bill address concerns expressed by the AFP in relation to operational difficulties posed by the current interception regime.

The Act was drafted almost 25 years ago, at a time when the Australian telecommunications systems consisted largely of land-based services carrying live telephone conversations.

The Act was therefore built around a core concept of communications passing over a telecommunications system.

This concept has proven more difficult to apply to modern telecommunications services such as voicemail, email and SMS messaging.

The measures in the Bill are an urgent but temporary solution to operational difficulties experienced by law enforcement agencies.

The amendments will allow law enforcement and regulatory agencies prompt access to stored communications.

The amendments do not however allow unregulated monitoring of telecommunications services, such as e-mail, voice mail and SMS.

Access to stored communications will continue to require an appropriate form of lawful access, such as consent, search warrant or other right of access to the communication or storage equipment.

The amendments will also facilitate measures to preserve the security of information systems by allowing access to stored communications.

The amendments will at the same time ensure that new technologies that may involve storage but which are analogous to standard voice telephony, such as Voice over Internet Protocol services, are protected in the same way as normal voice calls.

The Government remains committed to ensuring that the interception regime keeps pace with technological developments.

These amendments address the operational impact of technology convergence in the immediate term, while recognising the need for further consideration of this issue.

It is important and in the national interest that this Bill be expeditiously dealt with and I seek the Opposition's co-operation in achieving this outcome.

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WORKPLACE RELATIONS AMENDMENT (AGREEMENT VALIDATION) BILL 2004

This Government is committed to a workplace relations system that works. Agreement making under the Workplace Relations Act 1996 has benefited Australia economically, socially and industrially. This Bill will provide certainty to those employers and employees who have entrusted their working arrangements to the federal agreement making system.

The Bill responds to the High Court's recent decision in the Electrolux case that federal certified agreements must only contain clauses that pertain to the employment relationship. The Government agrees with the High Court's findings in Electrolux and welcomes the ruling that a union bargaining fee, forced upon non-union workers, cannot form part of a certified agreement.

The majority judgements in Electrolux suggest that existing agreements that contain provisions that do not pertain to the employment relationship may not be valid because the Australian Industrial Relations Commission did not have jurisdiction to certify them. There has been some confusion among the unions and the business community about the implications of this decision.

The Government is determined to address the concerns of employers and workers across Australia in putting forward this Bill. Not to remedy the uncertainty raised by the Electrolux decision would be unjustifiable, particularly in the lead up to the Christmas holiday period.

The Bill will put parties to an agreement in the position they would have been in, had they complied with the Electrolux decision when they made or varied their agreement.

The Bill will ensure the validity of certified agreements and Australian Workplace Agreements (AWAs) which were certified, approved or varied under the Workplace Relations Act prior to the High Court's ruling in Electrolux. While Electrolux is concerned with certified agreements and contains no direct reference to AWAs, the Government believes that there is an equivalent need to ensure validity, and hence certainty, for the parties to AWAs.

The Bill will provide that where an agreement was certified, approved or varied prior to 2 September 2004 but contains matters that do not pertain to the employment relationship, these matters will not be considered to affect the validity of the agreement's certification, approval or variation. The Bill will only validate agreements certified prior to 2 September 2004, the date on which the High Court handed down its decision in Electrolux.

Consistent with the Electrolux decision, matters which do not pertain to the employment relationship but which are incidental or ancillary to that relationship, or machinery provisions, will be validated.

However, the Bill will not validate those parts of an agreement that do not pertain to the employment relationship. To do so would go beyond the decision in Electrolux that an agreement must only contain matters that pertain to the employment relationship. The High Court ruling was consistent with the legislative intent of the WR Act and with many years of court and Australian Industrial Relations Commission decisions that have required other industrial instruments to contain only matters pertaining to the employment relationship.

It will be up to the parties to determine how to address the aspects of their agreement that do not pertain to the employment relationship. If the parties to an agreement wish to honour non-pertaining matters, they are free to do so through formal or informal arrangements.

The Bill will also not remedy other defects in the certification process. If an agreement is invalid as a result of some other flaw in its making, certification or approval, this Bill will not render it valid.

The Government is determined to ensure agreements entered into by businesses are upheld and enforced and that unions are not able to exploit the potential invalidity of agreements. Unions have publicly discussed a campaign to use potential invalidity as a trigger to reopen negotiations with employers regarding their members' terms and conditions. Unions in the electricity and construction industry have already tried to take advantage of uncertainty caused by the Electrolux decision by pressuring businesses to re-negotiate agreements. This Bill will ensure that employers, and employees, who have negotiated, and operated under, agreements in good faith will not be left vulnerable to industrial action and coercion.

The Bill does not seek to validate past protected industrial action that was taken to support claims for matters that do not pertain to the employment relationship. Parties could not have reasonably expected that protected action was available to support claims for non-pertaining matters. Further, validating past industrial action would be complex and practically difficult. However, the Government considers it would be highly undesirable for parties to exploit uncertainty in relation to past industrial action by initiating or threatening legal action.

There is currently some uncertainty in the community about the validity of working arrangements set out in both collective and individual agreements. This Government is determined to ensure the certainty of current arrangements for employers and employees.