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Wednesday, 21 June 2006
Page: 1


Senator ABETZ (Minister for Fisheries, Forestry and Conservation) (9:31 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 ACT AMENDMENT (FORENSIC PROCEDURES) BILL (No. 1) 2006

The Government recognises that the creation of a national DNA profile matching system will greatly assist Australia’s law enforcement officers in their fight against crime.

This bill will ensure that inter-jurisdictional DNA profile matching, using the National Criminal Investigation DNA Database (NCIDD), may be implemented by all corresponding law jurisdictions within Australia.

The States and Territories have expressed concern that under current legislation it is unclear if they can lawfully transfer DNA profiles from their DNA databases to the Commonwealth. There is also concern that it is unclear that the Commonwealth can disclose DNA profile information that it holds to the States and Territories. The Commonwealth never held these concerns, however, this bill will clarify, for the States and Territories, that the transfer of information, so that inter-jurisdictional DNA matching can occur, is lawful and thus there can be national DNA profile matching.

The bill will also allow prison officers to present, subject of course to the relevant State or Territory law, while a forensic procedure is carried out on a suspect. This amendment is being made simply to ensure the safety and security of those who carry out forensic procedures by allowing a prison(s) officer to be present.

The opportunity is also being taken to have the bill correct drafting errors currently existing in the Crimes Act.


CUSTOMS LEGISLATION AMENDMENT (MODERNISING IMPORT CONTROLS AND OTHER MEASURES) BILL 2006

This bill, the Customs Legislation Amendment (Modernising Import Controls and Other Measures) Bill 2006, contains amendments to the Customs Act 1901 that deal with a range of matters.

These amendments relate to:

  • allowing a person to surrender certain prohibited imports that have not been concealed;
  • allowing infringement notices to be served for certain offences including importing certain prohibited imports and border security related offences;
  • allowing the granting of post-importation permissions for certain prohibited imports; and
  • amending the Customs Act to reflect the new Certificate of Origin requirements for the Singapore-Australia Free Trade Agreement.

This bill provides Customs officers with additional powers to deal efficiently with prescribed prohibited imports that are low value and low risk. Presently, Customs only has the power to seize prohibited imports - a time-consuming and resource intensive process.

This bill will enable Customs to establish a tiered response to sanctions for dealing with prohibited imports. The process will allow for the possible voluntary surrender of the goods, payment of a penalty under an infringement notice, or the seeking of a post-importation permission, rather than automatic seizure of the goods.

This bill also gives effect to recommendations of the first Ministerial Review of the Agreement by Australia and Singapore in July 2004. They would allow importers to provide less documentation to Customs when claiming preferential rates of duty on imported goods.


FINANCIAL TRANSACTION REPORTS AMENDMENT BILL 2006

The primary purpose of the bill is to vary the amendments to the Financial Transaction Reports Act 1988 (the FTR Act) made by Schedule 9 of the Anti-Terrorism (No.2) Act 2005 (the ATA). Schedule 9 comes into force on 14 December 2006. The bill needs to come into operation by that date. The need for variation has arisen during the consultation on the Anti-Money Laundering and Counter Terrorism Financing Bill 2006. The amendments are to the new Division 3A which Schedule 9 of the ATA inserted at Part II of the FTR Act.

The bill amends the definition of ‘account’ for the purposes of Division 3A of Part II of the FTR Act. This amendment is to assist industry by reducing the number of systems changes required at an institutional level to meet the requirements of Financial Action Task Force Special Recommendation VII. It is intended that the new definition of ‘account’ should only be applicable to and confined to Division 3A of Part II of the FTR Act.

The bill clarifies the definition of ‘customer information’ in section 17FA of the FTR Act. The amendment is to make it clear that either an account number or an identification code can be used. Some customers sending money by an IFTI will not be an account holder with a financial institution and clearly in this instance an identification code should be able to be used.

The bill amends the definition of ‘customer information’ for incoming international funds transfers under section 17FB of the FTR Act. The effect of this amendment is that the customer’s account number or the identification code is now given equal standing for incoming IFTIs received by Australian authorised deposit taking institutions (ADIs) under section 17FB of the FTR Act.

The bill restricts the application of Division 3A of Part II of the FTR Act to ADIs. The reason for this restriction is due to problems that have arisen with the current application of Division 3A of Part II to non-bank money remittance businesses. Presently, the FTR Act does not distinguish between non-bank international funds transfer instructions (IFTIs) which are ‘same-institution’ funds transfer instructions and non-bank IFTIs involving ‘multiple’ institutions. It is impracticable to require IFTIs sent from one institution in one country to the same institution in another country to include originator information because in effect this would require the institution to ‘pass on’ the information to itself. In these situations, funds transfer requests are registered on a single internal system of the institution, while the actual transfer of funds is effected through net settlements between the institution’s various accounts around the world.

Presently, non-bank money remitters report IFTIs to AUSTRAC. This means that ordering customer information is currently available to law enforcement authorities. The amendment to restrict Division 3A of Part II of the FTR Act to ADIs will not alter this position.


MIGRATION AMENDMENT (VISA INTEGRITY) BILL 2006

This bill makes several minor amendments to the Migration Act 1958 which are designed to clarify current procedures, maintain the integrity of various provisions of the Act, and ensure that certain provisions in the Act operate as originally intended.

The changes relate to:

  • immigration clearance and migration status of non-citizen children born in Australia;
  • criminal code harmonisation amendments;
  • taking of securities for compliance with visa conditions; and
  • bridging visas.

Immigration clearance status of non-citizen children born in Australia

It is important to clarify the immigration status of non-citizen children born in Australia because it has significant implications for a person’s entitlements under the Act. As an example, whether or not a person is immigration cleared will impact on the person’s ability to access bridging visas.

Currently, there is no express provision in the legislation which covers a non-citizen child being ‘immigration cleared’ by virtue of their birth in Australia. The amendment provides that these non-citizen children are immigration cleared in these circumstances.

A second complementary amendment is also made to clarify that any visas taken to have been granted to non-citizen children at the time of their birth, do not cease to be in effect because these children do not technically ‘enter Australia’ through a port or on a pre-cleared flight.

Criminal code harmonisation amendments

In 2001, the offence provisions under the Migration Act 1958 were “harmonised” to accord with the Commonwealth Criminal Code. Although the intention was to preserve the ‘status quo’ in relation to the operation of these migration offences, it became apparent that a number of offences were altered so that they did not operate as they had done previously. This was an unintended consequence of the harmonisation process. These technical amendments ensure that the provisions now operate as originally intended, whilst remaining consistent with the Criminal Code in their structural framework.

The taking of securities

The bill also seeks to clarify procedures where an authorised officer requires a security from an applicant on the grant of a visa. Securities are sometimes required to promote compliance with the conditions that will be attached to the visa.

The amendments will clearly authorise an officer to exercise the power to require a security before a visa is granted. Where the visa is subsequently not granted, the security will be returned.

Minor amendments relating to bridging visas

Finally, minor amendments have been made in relation to bridging visas to ensure that the integrity of various provisions of the Act is not compromised.

The amendments will ensure that the statutory restrictions on certain persons making further visa applications in Australia will apply to all non-citizens holding a bridging visa. Non-citizens who have been refused a visa or had their visa cancelled after last entering Australia may only apply for prescribed classes of visas. However, some bridging visa holders who have had their substantive visa refused are presently able to circumvent these restrictions by leaving and re-entering Australia on a bridging visa. It was never intended that bridging visa holders would be able to avoid this statutory restriction on making further visa applications.

An amendment is also proposed to clarify that where a bridging visa ceases on the occurrence of a specified event, it will cease the moment that event occurs. For example, a bridging visa which ceases when a substantive visa is cancelled will cease as soon as the cancellation occurs, rather than at the end of day.

In summary, the bill will clarify current procedures and maintain the integrity of various provisions of the Act.

I commend the bill to the chamber.


PUBLIC WORKS COMMITTEE AMENDMENT BILL 2006

This bill is to amend the Public Works Committee Act 1969 (the Act) to alter the value and definition of a public work that requires referral to the Parliamentary Standing Committee on Public Works (the Committee).

The amendments in the bill reflect the changes in the Commonwealth public works environment since the Act was last amended in 1989. This was based on feedback from the Committee and other sources on the practical operation of the Act.

The amendments particularly take into account new methods of procurement and the increase in construction prices since the threshold was last amended in 1985.

The bill updates the threshold value at which projects must be referred to the Committee from $6 million to $15 million. This reflects the increase in the cost of construction since the value was last amended in 1985.

The proposed legislation also allows for the value to be otherwise set by regulation. This provides for greater flexibility for future updates of the threshold value to accommodate future changes in the value. A regulatory regime will help avoid freezing the threshold at inappropriate levels, allowing for more regular adjustment.

The change to the definition of a ‘public work’ firstly clarifies that works funded by way of public private partnerships, or PPPs, must be referred to the Committee. This reflects the current understanding that works funded through PPPs are implicitly covered by the Act.

The amended definition of a ‘public work’ specifically includes those public works funded through leasing or other similar arrangements. These are often fit-outs of leased accommodation, which are included in the Act. However, their funding arrangements caused them to fall outside the definition of a ‘public work’.

The revised definition does not refer to the specific funding methods. Instead, the characteristics of a public work have been amended so as to include these works. Two amendments have been made to achieve this end.

The first allows for indirect funding of the work. This covers, but is not limited to, deferred payment, payment through a PPP vehicle, or payment through leasing or similar arrangements.

The second removes the requirement that the Commonwealth or Commonwealth authority is proposed to become the owner of the work. Under either funding method, the Commonwealth or Commonwealth authority may not necessarily become the owner of the work.

The revised definition does not extend to cover works that are not “for the Commonwealth”, or “for a Commonwealth authority”. An example of this is a pre-commitment lease, where the private sector constructs a building that is subsequently occupied by a Commonwealth (or a Commonwealth authority) tenant.

No other changes are made to the definition of a ‘public work’.

The amendment to the definition of a public work removes the requirement that the Commonwealth must become the owner of the work. However, in order for it to be a public work, the reason for undertaking the work must be that it is for the Commonwealth or a Commonwealth authority.

For example, a PPP will be undertaken for a Commonwealth purpose and simply represents an alternative procurement method. A pre-commitment lease on the other hand, implies that the Commonwealth, or a Commonwealth authority, will be the first tenant in a facility that is not custom designed for it. Pre-commitment leases differ from PPPs in that the construction of the facility is not predicated on the Commonwealth or a Commonwealth authority being a party to the contract.

Any works currently under scrutiny by the Committee still require a report to the Parliament, even if the amendments to the Act would otherwise cause that work to no longer be covered by the Act.

Finally, the language of the Act is updated to reflect the modern approach of using non-gender specific terminology. References to the Minister for Housing and Construction have also been updated.


TRADE MARKS AMENDMENT BILL 2006

This bill will amend the Trade Marks Act 1995. The current Act was introduced as the result of a working party set up to review and streamline trade marks legislation. The Act replaced legislation that had been in place since 1955.

The Act has now been in force for ten years. The Government has carried out a review of trade marks legislation in keeping with our policy to keep legislation relevant and up-to-date.

The review sought comment from interest groups. The Government released three issues papers and received comments from interested parties, including intellectual property professionals and small businesses. An industry reference group consisting of intellectual property professionals and industry representatives was set up to help in the consultations. The review found that the trade marks system was working effectively, but there were some changes that could be made to enhance the system. This bill implements changes to the trade mark system arising out of that review.

A strong trade mark right is a valuable asset that can help increase recognition of a brand. Registered owners have the exclusive right to use their registered trade mark on their goods and services. They can sell or license the trade mark. They can also ask Customs to seize goods coming into Australia if the goods infringe their trade mark, to prevent the flow of counterfeit goods.

A strong trade mark system provides a benefit to the public. It provides members of the public assurance that when they buy something, they are buying genuine goods that have the quality they have come to expect from that brand.

The changes made by the bill will improve the trade marks system in a number of ways. The bill will strengthen trade mark rights, providing greater certainty to trade mark owners and the general public. The bill includes provisions that will reduce the regulatory and administrative burden on the users of the system. It will also increase the transparency of the trade mark system, and increase alignment of the trade mark system with other intellectual property rights.

The Government is committed to encouraging innovation and to providing Australia with a strong trade mark system that meets the needs of all Australians. We are also committed to reducing the regulatory burden on Australian businesses in registering trade marks. This bill reflects those commitments.

Amendments in this bill strengthen trade mark rights by enabling trade mark owners to more effectively protect their trade mark. For example, owners of trade marks with a reputation in Australia can now more readily protect their trade marks against registration of other trade marks whose use is likely to lead to confusion in the marketplace.

A trade mark can be opposed by members of the public if it will affect their business or they believe the trade mark should not be registered. Amendments in this bill will clarify the basis on which an opposition may be taken, and allow a trade mark to be opposed because it was made in bad faith. This will increase the strength of registered trade marks and help weed out bad ones.

Over half of the trade mark applications are filed directly by the owner of the business. Many of these are small and medium sized enterprises. These smaller businesses can be greatly affected by the burden of regulation and administration in the trade mark system. It is our policy to reduce this burden wherever possible.

Amendments in this bill reduce the administrative and regulatory burden on trade mark owners in a number of ways. Some of the changes reduce complexity in the system while other changes make it easier for trade mark owners to correct their application if they do make a mistake.

Trade mark owners will also find it easier to request Customs to seize goods that might infringe their trade mark. Notices requesting seizure will stay in effect for longer and trade mark owners will be able to provide a written undertaking to repay any expenses incurred by the Commonwealth, instead of paying a cash security up-front as is currently required. Small business owners, in particular, will find it easier to use the trade mark system to prevent importation of counterfeit goods.

A trade mark is a valuable right and certainty of ownership is necessary for both the owner and also for anyone who may have an interest in the trade mark. Amendments set out in this bill increase certainty of ownership of a trade mark and increase the public’s certainty that the information on the Trade Marks Register is correct and up to date.

Amendments in this bill also clarify parts of the trade marks Act that have confused trade mark owners in the past. By clarifying these requirements, it will make it easier for people to apply for a trade mark.

The amendments set out in the bill also increase transparency and alignment with other intellectual property Acts. Many businesses hold a number of intellectual property rights. For example they may own a patent for an invention and a trade mark for the invention’s proprietary name. It is more convenient for the owner of these rights if there is consistency when seeking patent and trade mark protection. The amendments in this bill bring some of the administrative aspects of the trade mark system into line with the patents and designs systems.

The bill will result in stronger registered trade mark rights and improve the administration of the trade mark system.

Ordered that further consideration of the second reading 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.