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Wednesday, 16 March 2005
Page: 1


Senator ELLISON (Minister for Justice and Customs) (9:32 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—

CRIMES LEGISLATION AMENDMENT (TELECOMMUNICATIONS INTERCEPTION AND OTHER MEASURES) BILL 2005

This bill amends the Telecommunications (Interception) Act 1979 and the Criminal Code Act 1995 to ensure that they operate in a manner that enhances rather than hinders the functioning of our law enforcement agencies.

The interception of telecommunications in Australia by law enforcement and national security agencies is regulated by the Telecommunications (Interception) Act.

That Act contains a general prohibition against the interception of communications passing over a telecommunications system without the knowledge of the person making the communication.

This general prohibition operates subject to limited exceptions, including an exception for interception carried out under a warrant to assist in the investigation of serious criminal activity.

It is proposed that this bill will modify the operation of one existing exception and introduce an exception for radiocommunication inspectors.

The Interception Act currently provides that listening to or recording a communication to certain prescribed emergency service numbers, such as ‘000’, is not an interception for the purposes of the Act.

However, the structure of the provision presupposed that only a few numbers needed to be prescribed to monitor all calls to emergency centres.

In reality, the police, ambulance and fire services use hundreds, if not thousands, of numbers behind the scenes to provide the level of emergency services that all Australians enjoy.

The amendments proposed by the bill will mean that all calls made to or from an emergency call facility will be able to be recorded without infringing the Interception Act.

The new exception proposed by the bill will enable persons who are authorised inspectors under the Radiocommunications Act to intercept communications where that interception is incidental to the performance of a spectrum management function.

Inspectors are currently precluded from investigating radiocommunications interference to the extent that the interference emanates from a telecommunications service.

This amendment will ensure that radiocommunications inspectors are not hampered in undertaking their statutory function by the fact that some telecommunications services use radiocommunication.

I understand that interference from radiocommunications generated by telecommunications devices, such as portable phones, can affect the operation of essential services such as air traffic control towers and so the amendment has a significant safety aspect to it.

The bill will also allow telecommunications interception warrants to be obtained in connection with the investigation of the ancillary offence of accessory after the fact for a class 1 offence.

The absence of this power means that an important investigative tool is not available to law enforcement agencies who are investigating the activities of a person suspected of helping someone who has committed an extremely serious offence such as murder or a terrorism offence to evade justice or to dispose of the proceeds of their crimes.

The Interception Act contains a range of safeguards, record-keeping and reporting requirements to ensure that telecommunications interception is used sparingly and in appropriate cases, and that intercepting agencies adhere to strict standards of accountability.

To further enhance these oversight arrangements, the bill will implement two recommendations from the Report of the Review of Named Person Warrants and Other Matters completed by Mr Tom Sherman AO.

Those recommendations deal with statistical information for named-person warrants and additional information to be included in the Commonwealth Ombudsman’s annual report.

To ensure that the way in which lawfully obtained information may be used keeps in line with changes to the law enforcement environment, the bill will allow intercepted information to be used in civil forfeiture regimes.

The amendment reflects the recent shift in most jurisdictions towards civil forfeiture regimes in addition to forfeiture following a criminal conviction.

The Government has, in consultation with many interested stakeholders, considered the remaining Recommendations from the Sherman Report and is pleased to note that of the remaining five recommendations, recommendations 1 and 2, which address the administrative processes and practices that the agencies adopt in relation to named-person warrants, are being addressed by the Interception Consultative Committee.

In addition, the Government will accept recommendation 3 and agencies will ensure that, wherever practicable, persons making applications for law enforcement warrants should include a lawyer and the deponent to the supporting affidavit.

The Government does not, however, accept Recommendation 5.

The need for ASIO to report publicly in relation to its use of telecommunications interception warrants was considered in detail by the Parliamentary Joint Committee on ASIO in 2000.

It was then, as it is now, ASIO’s practice not to report publicly in relation to its use of telecommunications interception warrants and the Committee did not recommend any change to this practice.

ASIO discharges its accountability responsibilities by furnishing its classified annual report not only to the Government but also to the Opposition.

 The Sherman Report did not raise new substantive arguments to justify revisiting this arrangement.

The Government also does not accept Recommendation 8.

In responding to this recommendation, it is necessary to balance privacy and accountability interests with the information management and administrative needs of intercepting agencies.

Moreover, recent developments in technology, particularly the advent of digital communications technology, mean that it may be impractical and inappropriate for the Interception Act to seek to regulate “original” records. While there are some issues as outlined in the report, it is undesirable to return to the situation prevailing prior to the 2000 amendments to the Act.

The Government thanks Mr Sherman for his thorough review of the named-person warrants provisions.

The bill also clarifies that the term “an employee of a carrier” should not be read as being limited to someone employed in a narrow legal sense.

Such an interpretation does not reflect the reality of the workplace or corporate structures where people are engaged as contractors as well as by subsidiary or related companies.

The explanation will apply to all references to an employee of a carrier in the Interception Act.

This provision does not seek to alter the definition of employee.

Rather it is designed to explain what has always been the case.

The amendment therefore takes effect from the date of the commencement of the Interception Act, that is, 1 June 1980. While this reaches back a considerable period of time, the amendment does not adversely impact on individuals or the community as a whole.

Finally, the bill amends the Criminal Code Act 1995 to extend the operation of certain defences available in relation to telecommunications offences in Part 10.6 of the Act. The amendment will ensure that the existing defence, available to a range of law enforcement agencies, extends to all agencies that may intercept communications so that the defence is available when officers of those agencies engage in activities ancillary to telecommunications interception.

The amendments proposed by this bill represent a balanced response to the need for the legislation that regulates our law enforcement and security agencies to support the work of those agencies, without losing sight of privacy, transparency and accountability issues.


FAMILY LAW AMENDMENT BILL 2005

The Family Law Amendment Bill 2005 is a part of the Howard Government’s continuing reform of the family law system. The bill contains a range of amendments to the Family Law Act 1975, designed to improve the operation of the current family law system. Some of these relate to procedural matters, including appeal processes. The bill also contains technical amendments intended to improve the Act’s operation, particularly amendments to modernise the terminology used.

While the bill contains important amendments to the Family Law Act 1975, it does not represent the package of family law reforms that respond to the House of Representatives Standing Committee on Family and Community Affairs Every Picture Tells a Story Report. The amendments responding to the House Committee’s Report are being considered as part of budget process and I am confident that an announcement of the Government’s intentions will be made shortly.

The Family Law Amendment Bill 2004 was introduced in the House on 1 April last year. On 16 June 2004, the Senate referred that Bill to the Senate Legal and Constitutional Legislation Committee. The Committee’s report recommended that the bill should proceed, subject to a number of amendments.

The bill lapsed with the proroguing of Parliament before last year’s election and is now being reintroduced. The recommendations made by the Senate Committee have been taken on board and are incorporated in the bill before you.

The bill contains amendments to address the issue of parenting orders not working in practice. A number of parenting orders, particularly those made by consent, are found not to actually work. The bill contains amendments to provide a court with the power to vary, on its own motion, orders relating to children, at a hearing on a contravention application. The amendments also clarify the court’s power to send parties in contravention proceedings to counselling and post-separation parenting programs.

Another important amendment in the bill provides a right for persons who are determined not to be a parent of a child, through DNA testing or by other means, to recover any monies paid or property transferred for the benefit of that child under maintenance orders.

A number of amendments in this bill clarify the Family Court’s powers in a range of areas, including the Court’s rule making powers to support the Family Law Rules 2004 which commenced on 29 March 2004, and in relation to the ability of the court to change venue of proceedings and to clarify the effect of offers of settlement.

The bill also clarifies a number of issues relating to the operation of appeals. One amendment removes the power of the Full Court to issue a certificate that no special leave to appeal is needed from the High Court to appeal to that Court where ‘an important question of law or public interest’ is involved. This amendment was made in response to a recommendation of the Australian Law Reform Commission which the High Court and the Family Court agreed with. The Government accepted the recommendation as it considers that the High Court, through the special leave to appeal process, should be in control of what matters are dealt with by that Court.

The bill provides for the transfer of family law proceedings from State courts of summary jurisdiction (magistrates and local courts) direct to the Federal Magistrates Court on the State courts’ own initiative. Many proceedings instituted in State courts in relation to property with a value of over $20,000 or in relation to contested parenting orders will be appropriate for determination by the Federal Magistrates Court.

Currently the Family Law Act provides for transfers in such matters from courts of summary jurisdiction on the court’s own initiative to the Family Court but not to the Federal Magistrates Court. The Family Court then transfers appropriate matters on to the Federal Magistrates Court. This amendment will enable a matter to be transferred directly to the Federal Magistrates Court and reduce unnecessary delays.

The bill also widens the range of matters which can be the subject of private arbitration. Currently the matters that can be dealt with by a private arbitrator under the Family Law Act are limited to matters which relate to property, spousal maintenance and maintenance agreements. The bill expands the scope to include financial agreements and certain orders in relation to superannuation. Parties must consent before matters can be referred to private arbitration.

Also included in Part 16 of the bill is an amendment to the Bankruptcy Act 1966 to support reforms in the Bankruptcy and Family Law Legislation Amendment Bill 2005 that relate to bankruptcy and family law reform. This amendment will ensure that the Family Court of Western Australia, along with the Family Court of Australia, acquires all necessary bankruptcy jurisdiction in concurrent family law proceedings where a party is bankrupt.

The bill modernises the terminology of the Act to terms which are commonly used and widely recognised, thereby increasing the public’s understanding of the Act and accessibility to family law. This should particularly aid self-represented litigants. It will no doubt surprise many that the term ‘divorce’ does not appear in the Act. The term ‘dissolution of marriage’ is simply replaced with ‘divorce’.

There are a range of other minor amendments in this bill.

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

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

I commend the bill.


STATUTE LAW REVISION BILL 2005

The Statute Law Revision Bill 2005 corrects minor errors in existing Acts including spelling, numbering, lettering and punctuation errors. It continues the important exercise of promptly repairing the statute books and improving the accuracy of Government and commercial consolidations of Acts.

Schedule 1 amends 24 principal Acts and Schedule 2 amends misdescriptions in 24 amending Acts. The kinds of errors being amended in Schedule 1 are minor clerical and drafting errors in various current Acts such as incorrect numbering of subsections and typographical errors. Misdescribed errors are ones that either incorrectly describe the text to be amended or specify the wrong location for the insertion of new text. Misdescribed errors are best corrected by amending the amending Act (rather than the Principal Act) and Schedule 2 sets out the amendments to the amending Acts. None of the amendments proposed by either Schedule will make any change to the substance of the law.

The bill also updates references to organisations. For example, reference to the Queensland Criminal Justice Commission and the Queensland Crime Commission which no longer exist, will be replaced with a reference to the Crime and Misconduct Commission of Queensland—the successor of these two bodies.

The effect of the commencement provisions in the bill is that the errors are taken to have been corrected immediately after the error was made.

The bill, while not making any substantive amendments to the law, does improve the quality and public accessibility of Commonwealth legislation.


ENVIRONMENT AND HERITAGE LEGISLATION AMENDMENT BILL 2005

The purpose of the Environment and Heritage Legislation Amendment Bill 2005 is to make amendments to the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 and to the Sydney Harbour Federation Trust Act 2001.

Australia’s Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 has made a significant contribution to the global effort to phase out ozone depleting substances, and is now also contributing to minimising Australia’s avoidable emissions of synthetic greenhouse gases. Through cooperation between Government and industry, the legislation has reduced Australia’s consumption of ozone depleting substances by 80% since 1989, resulting in estimated savings to the Australian economy of some $6.4 billion by 2060.

This bill proposes to amend the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 to rectify a small number of operational anomalies and unintended consequences of drafting. The proposed amendments will ensure the consistent and effective operation of Australia’s legislation for the management of ozone depleting substances and their synthetic greenhouse gas alternatives. These substances have very significant impacts on the global climate system and the ozone layer, and appropriate restrictions are essential to ensure that these substances are managed consistently and used sustainably within Australia.

Specifically, this bill will make two changes to the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989. Firstly, it will confirm that importers or exporters of recycled or used methyl bromide or hydrochlorofluorocarbons are only required to hold a Used Substances Licence. This approach is consistent with that taken for other ozone depleting substances (such as chlorofluorocarbons and halons) currently controlled under the Act.

Secondly, the bill will ensure that reporting obligations for synthetic greenhouse gases manufactured in Australia are the same as those for synthetic greenhouse gases imported into, or exported, from Australia.

The proposed amendments to the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 contained in this bill demonstrate the Government’s determination to further advance its practical and effective approach to managing ozone depletion and climate change.

In relation to the amendments to the Sydney Harbour Federation Trust Act 2001, the Sydney Harbour Federation Trust is responsible for preparing and implementing a plan for the future uses of former defence and other Commonwealth lands on or near the foreshores of Sydney Harbour. These are historic lands. They tell the story of European settlement in Sydney and trace the patterns of defence, industry and population growth in the fledgling colony of New South Wales.

The lands are Macquarie Lightstation on South Head; the former Artillery School at North Head; Woolwich Dock and Parklands; Cockatoo Island; Snapper Island; defence lands at Middle Head-Georges Heights-Chowder Bay; and the former Marine Biological Station at Watsons Bay.

The Sydney Harbour Federation Trust’s comprehensive plan for these sites was approved by my predecessor, the Hon. Dr David Kemp, in September 2003. The plan was three years in preparation and involved wide community consultation. It is fair to say that consultation by the Sydney Harbour Federation Trust in the preparation of the plan was a hallmark of the planning process. A Community Advisory Committee, established under the Sydney Harbour Federation Trust’s legislation, was instrumental in reflecting community interest in the sites and providing advice and recommendations on site outcomes.

The Sydney Harbour Federation Trust has begun the challenging task of implementing the comprehensive plan.

Former Defence lands at Middle Head-Georges Heights-Chowder Bay are being transformed into a Headland Park. The park will link all the elements of these disparate defence bases and bring them into accord with the great natural and cultural assets of the Middle Head plateau. A network of walking tracks, lookouts, revegetation and interpretive signage will underpin compatible uses of buildings and facilities and highlight the indigenous and military history of this beautiful headland.

The Sydney Harbour Federation Trust Act 2001 provides for the sale, subject to environmental and heritage considerations, of 19 residential lots listed in Schedule 2 to the Act. The residential lots are at Markham Close, Mosman. Other Trust lands are listed in Schedule 1 to the Act and are to remain in public ownership.

To date 12 residential lots at Markham Close have been sold by auction.

The effect of the proposed amendments contained within this bill will be to enable the Sydney Harbour Federation Trust to more effectively bring to the fore the natural ridgeline of Middle Head peninsula and add to the character of the Headland Park. This entails transferring 3 residential lots in Markham Close from Schedule 2 to Schedule 1, thus allowing them to be incorporated into the park and in exchange transferring the land on which a disused Scout Hall is located, currently included in Schedule 1, to Schedule 2 permitting its eventual sale.

This land swap is consistent with the Sydney Harbour Federation Trust’s comprehensive plan and the fundamental objective of making its lands accessible to the public. The Scout Hall land does not have any significant environmental and heritage value and the Scouting Association has relinquished its lease on the land. The Scout Hall land, comprising around 2/10th of a hectare of Trust lands, would be sub-divided and sold for residential purposes.

The Sydney Harbour Federation Trust’s preparation of the Management Plan for Markham Close included the proposal to swap land in the interests of highlighting the ridgeline of Middle Head peninsula and contributing to the creation of a spectacular Headland Park. The proposed land swap was overwhelmingly supported by the community during the exhibition of the draft Management Plan.

The proposed amendments contained in this bill will enable the Sydney Harbour Federation Trust to fulfil the objectives of the comprehensive plan and to open Middle Head peninsula for the benefit of the community.


CONSULAR PRIVILEGES AND IMMUNITIES AMENDMENT BILL 2005

This bill amends the Consular Privileges and Immunities Act 1972 to allow for additional privileges and immunities to be granted on a reciprocal basis to consular officers representing overseas countries in Australia. The Consular Privileges and Immunities Act incorporates specific Articles of the Vienna Convention on Consular Relations into Australian law. The Convention governs the conduct of consular relations between nation States and establishes the privileges and immunities of consular posts and associated persons.

At the time the Convention was drafted in 1963, the drafters envisaged that the Convention might not cover all possible situations and circumstances affecting consular relations. Therefore, the Convention contemplates that states parties could extend additional privileges and immunities to other nation States through custom or agreement.

The changed overseas operating environment since the Convention was drafted in 1963 calls for reflection on whether the interests of Australia’s consular officers serving overseas are, in all situations, offered the most appropriate protection available. This bill sets in place a framework within which Australia can negotiate, on a country by country basis, enhanced protections for persons performing consular duties on behalf of the Australian Government overseas. In response, Australia will offer reciprocal treatment to consular officials from overseas countries undertaking consular functions in Australia.

The main provision of this bill sets out the conditions under which Australia will grant additional privileges and immunities to an overseas country. The bill requires an agreement, arrangement or understanding—called a “reciprocal instrument” in the bill - to be entered into between Australia and an overseas country. This will grant reciprocal privileges or immunities, or both, which supplement, extend or amplify the provisions of the Vienna Convention on Consular Relations.

The amendment to the Act will not of itself grant additional privileges or immunities. In order for additional privileges or immunities to be granted, the Minister for Foreign Affairs must determine that the section will apply to a specific country and the reciprocal instrument must be in place. In line with growing international practice in this field, the granting of privileges or immunities will be negotiated bilaterally on a reciprocal basis. The bill also provides that any privileges or immunities shall be extended only for so long as the Minister’s determination and the reciprocal instrument are in force.

The amendment facilitates the making of arrangements which will appropriately provide for the changed operating environment of consular officials both in Australia and overseas.

Ordered that further consideration of these bills be adjourned to the first day of the next period of sittings, in accordance with standing order 111.

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