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Thursday, 2 December 2004
Page: 1

Senator ELLISON (Western Australia—Minister for Justice and Customs) (9.31 a.m.)—I give notice that, on the next day of sitting, I shall move:

That the provisions of paragraphs (5) to (8) of standing order 111 not apply to the following bills:

Copyright Legislation Amendment Bill 2004;

James Hardie (Investigations and Proceedings) Bill 2004;

National Water Commission Bill 2004.

I also table statements of reasons justifying the need for these bills to be considered during these sittings and seek leave to have the statement incorporated in Hansard.

Leave granted.

The statements read as follows—


Purpose of the Bill

The bill amends the Copyright Act 1968 (the Act) and the US Free Trade Agreement Implementation Act 2004 (US FTA Act) to further implement obligations under the Australia-United States Free Trade Agreement (US FTA) in respect of criminal offences, temporary reproductions, internet service provider liability and compensation for the extension of the term of copyright protection.

The bill amends the Act to broaden the scope of some criminal offence provisions added by the US FTA Act so that a prosecution is not required to establish that a person committed those offences `with the intention of obtaining a commercial advantage or profit' in addition to `by way of trade'.

It also narrows the scope of the incidental copies exception to temporary copies made as a necessary part of the technical process of using a copy of a work or other subject matter.

The bill places a time limit on the application of the transitional provisions relating to the extension of the term of copyright protection.

Finally, the bill clarifies provisions that limit the remedies available against carriage service providers.

Reasons for Urgency

The US FTA is expected to enter into force on 1 January 2005. Prior to entry into force, both Australia and the United States must exchange letters confirming that domestic processes have been completed. Minor clarifying and miscellaneous amendments are required to be enacted urgently to remove any doubt that Australia's obligations under the US FTA have not been implemented before letters are exchanged.

(Circulated by authority of the Attorney-General)


Purpose of the Bill

The bill facilitates a comprehensive investigation of matters arising from the New South Wales Special Commission of Inquiry into the Medical Research and Compensation Foundation (the James Hardie Special Commission of Inquiry) and any proceedings that may arise from those investigations. The bill expressly abrogates legal professional privilege in relation to certain materials, allowing their use by the Australian Securities and Investments Commission and the Commonwealth Director of Public Prosecutions in investigations of James Hardie and any related proceedings.

Reasons for Urgency

Over coming months, a detailed investigation into the issues raised in the James Hardie Special Commission of Inquiry will be conducted. It is expected that claims for privilege will be vigorously maintained in the context of this investigation. If the bill is to assist this investigation, it would need to be passed in the Spring 2004 sittings.

The Report of the James Hardie Special Commission of Inquiry was handed down to the New South Wales Government on 21 September 2004. The Report identified a number of complex issues relating to the conduct of the James Hardie group, its directors and officers, and its advisers. A thorough investigation of the conduct of James Hardie, with proceedings brought where misconduct is found, is essential to maintaining community confidence in the Australian corporate regulatory regime.

(Circulated by authority of the Treasurer)


Purpose of the Bill

The bill establishes the National Water Commission as a Commonwealth statutory authority.

Reasons for Urgency

At its 25 June 2004 meeting, the Council of Australian Governments agreed to the establishment of a National Water Commission.

Establishment of the Commission is a key platform of the National Water Initiative Agreement (NWIA) signed by the Australian Government and the Governments of New South Wales, Victoria, Queensland, South Australia, the Northern Territory and the Australian Capital Territory.

While the Commission is being established administratively pending passage of the bill, the NWIA commits parties to establishing the Commission as an independent statutory body by the end of 2004. Passage of the bill in the 2004 Spring sittings is required for the Commonwealth to meet this commitment.

The NWI Agreement sets out a number of key tasks for completion by the National Water Commission in its first year, including the evaluation of state and territory implementation plans for the Initiative by mid-2005, and the scheduled 2005 assessment of National Competition Policy water-related reform commitments.

The Commission will also provide advice and recommendations to the Government on projects to be funded under the Australian Water Fund, a major Australian Government investment in securing Australia's water future.

(Circulated with the authority of the Prime Minister)

Senator FERRIS (South Australia) (9.31 a.m.)—On behalf of the Chair of the Standing Committee on Regulations and Ordinances, Senator Tchen, I give notice that 15 sitting days after today Senator Tchen shall move:

That the following delegated legislation be disallowed.

1. Air Navigation (Aviation Security Status Checking) Regulations 2004, as contained in Statutory Rules 2004 No. 207 and made under the Air Navigation Act 1920.

2. Crimes Amendment Regulations 2004 (No.1), as contained in Statutory Rules 2004 No. 164 and made under the Crimes Act 1914.

3. National Health Amendment Regulations 2004 (No. 2), as contained in Statutory Rules 2004 No. 186 and made under the National Health Act 1953.

4. National Health (Private Health Insurance Levies) Regulations 2004, as contained in Statutory Rules 2004 No. 187 and made under the National Health Act 1953.

I seek leave to incorporate in Hansard a short summary of the matters raised by the committee.

Leave granted.

The summary read as follows—

Air Navigation (Aviation Security Status Checking) Regulations 2004, Statutory Rules 2004 No.207

These Regulations provide for background checks to be made on applicants for flight crew licences, permit the Secretary to declare a person to have adverse security status, and make other related amendments.

New regulation 7 provides that CASA may provide information, including personal information, to certain other Commonwealth organisations for the purposes of carrying out background and security checks. The Committee wrote to the Minister seeking advice as to whether the Privacy Commissioner was consulted with respect to this provision.

The Minister advised on 31 August 2004 that the regulations were put in place in an urgent manner in response to legal advice. The Attorney-General's Department and the Australian Government Solicitor were consulted in the process of developing the regulations. The Privacy Commissioner's input was not sought.

The Committee considers that the response answered the question but has written to the Minister seeking further information on why the Privacy Commissioner was not consulted.

Crimes Amendment Regulations 2004 (No.1), Statutory Rules 2004 No.164

The Regulations prescribe periodic detention orders under the Crimes (Sentencing Procedure) Act 1999 (NSW) and the Periodic Detention Act 1995 (ACT) for the purposes of subsection 20AB(1) of the Crimes Act 1914.

These amendments commence retrospectively (from 1 September 1995 for periodic detention orders in the ACT—Schedule 1, and from 3 April 2000 for periodic detention orders in NSW—Schedule 2). The Committee wrote to the Minister seeking advice as to whether any persons have been subject to periodic detention orders for relevant crimes in the ACT or NSW during the relevant periods and if so, what the legislative authority for such orders was. The Committee also sought advice on the reason for the lengthy delay in clarifying the position of periodic detention orders in the ACT and NSW for the purposes of the Crimes Act.

The Minister's response on 17 November 2004 argues that the retrospective operation of the amendments is beneficial because the alternative to periodic detention orders would be full time custody. The Committee considers that if that is the only alternative, then it appears that this is beneficial. However, it is not clear whether this is the only alternative and the Committee has written to the Minister seeking further advice on this matter.

National Health Amendment Regulations 2004 (No.2), Statutory Rules 2004 No.186

National Health (Private Health Insurance Levies) Regulations 2004, Statutory Rules 2004 No.187

The Committee notes that these regulations respond to concerns raised by the Australian National Audit Office about the Constitutional validity of certain levies imposed by the Private Health Insurance Administration Council. The Explanatory Statement indicates that legal advice has been received about this matter. It is not clear, however, whether any action is required to validate the imposition of levies that have been collected prior to these amendments. The Committee has therefore written to the Minister seeking advice on this matter and requesting a copy of the legal advice referred to in the Explanatory Statement.