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Wednesday, 13 June 2007
Page: 98

Senator COLBECK (Parliamentary Secretary to the Minister for Finance and Administration) (4:27 PM) —I move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—


This Bill implements an important reform to the Commonwealth Evidence Act 1995 by introducing a privilege that will protect confidential communications between journalists and their sources.  This privilege will assist journalists to reconcile their ethical obligations with their legal duty to provide courts with relevant evidence when requested.  In applying the privilege, courts will be required to give consideration to the protection of interests including freedom of the press and the public’s right—or need—to know. 

There has been significant recent commentary about the need to ensure and maintain the freedom of the press.  Currently, except in New South Wales, if a court compels a journalist to produce evidence about a confidential source or information provided by that source, there is no legal basis for the journalist to seek to refuse.  Yet, journalists also operate under a strict code of ethics which stipulates a clear obligation to keep a source’s confidence. 

This conflict between legal reality and ethical obligation can lead—and indeed has led—to situations where journalists have been forced to choose between protecting their sources or being charged with contempt of court and facing imprisonment.

This Bill seeks to achieve a balance by introducing a privilege—at the trial and pre-trial stages of civil and criminal proceedings—for communications made in confidence to journalists.

The proposed privilege is based on recommendations made by the Australian, New South Wales and Victorian Law Reform Commissions in their Uniform Evidence Law report tabled in this place on 8 February 2006.  The report proposed a privilege based on New South Wales provisions that have been operating since 1998. 

In the interests of achieving a national, uniform approach to this issue the Australian Government has accepted the recommended model.

The new privilege will not be absolute.  Instead, the proposed provisions set out a guided discretion for the court to exclude evidence which would disclose confidential communications made to a journalist who is under an ethical obligation not to disclose that information.  The protected information can be information provided to the journalist, information about the source’s identity, or information that would make it possible for that identity to be discovered.

In deciding whether to exclude the evidence, a court will take into account:

  • the nature of the proceedings
  • the importance of the evidence
  • the likely harm to the journalist’s source
  • other means to obtaining the evidence, and
  • the means available to limit the impact of disclosure.

Further, in a modification to the New South Wales model, the court will be required to give greatest weight to the risk of prejudice to national security.  This deviation from the model is a justified and necessary update.

The Bill also amends the Family Law Act 1975 to ensure that the privilege can be claimed on behalf of a child and that the best interests of the child are paramount when a court is determining whether confidential communications should be disclosed. 

While this Bill implements a new privilege, there are some recognised situations where it would not be appropriate for it to apply.  Accordingly, the Bill makes consequential amendments to the Proceeds of Crime Act 2002 and the James Hardie (Investigations and Proceedings) Act 2004 to ensure that the journalists’ privilege does not apply in circumstances where legal professional privilege has already been abrogated for public policy reasons. 

Further, the privilege will not apply if the communications between the journalist and his or her source involve misconduct such as furtherance of fraud or another offence.

Protection of journalists and their sources is a national issue.  It is important that any approach be a national one.  The amendments being introduced today will protect journalists in federal proceedings, but to ensure protection before the other courts, the States and the Northern Territory will need to enact similar legislation.  I will be continuing to encourage my State and Territory counterparts to introduce similar amendments as expeditiously as possible.

The Standing Committee of Attorneys-General has also been considering a variety of other amendments to the Uniform Evidence Acts.  I remain committed to working to achieve model uniform evidence laws as this will be a great outcome for all Australians.  It is my hope that I will soon be introducing another bill that will implement more general reforms to the Evidence Act.  However, the protection of journalists is too important an issue to wait for the finalisation of that other bill. 

This Bill represents a significant amendment to the Evidence Act.  It will assist the courts to balance the interests of justice in needing to make evidence available with the public interest in ensuring a free press by protecting confidential communications between journalists and their sources.


This bill is an important step towards fulfilling the Government’s recent child care initiatives for Australian families.

It provides in particular for the Child Care Management System (the CCMS), which is a significant investment in improving the supply of information and accountability across the child care sector.  The CCMS is a national child care computer system and recognises the need for better management and information underpinning the Government’s projected $11 billion investment over four years in child care.

The new system will provide the best information on child care supply and usage that has ever been available across Australia for families, child care services and government.  In part, this will support the Child Care Access Hotline, which gives families access to up-to-date information on child care vacancies, in that child care services will now have simplified arrangements for reporting to the hotline.

Just as importantly, the CCMS will simplify and standardise the administration of Child Care Benefit for families.  All approved child care services will be brought online to give weekly information on child care usage and fees directly to the Department of Families, Community Services and Indigenous Affairs and Centrelink, to allow swift calculation of child care fee reductions and weekly delivery of payments to services in arrears.  Families will also be able to access directly an online statement through the Family Assistance Office about their child care usage and Child Care Benefit payments made on their behalf to their child care services.

The CCMS will reduce the administrative burden on child care services.  It does, however, represent a significant change to the way in which services currently interact with government.  All Australian Government approved child care services, and therefore very many families, will benefit from the improvements from the CCMS.  Accordingly, the new system will be rolled out progressively across child care services from 1 July 2007 over a period of two years.

The CCMS will complement the child care compliance strategy announced in the 2006 Budget to protect the integrity of payments made in support of families using child care.  This bill also provides these compliance measures, which will strengthen the relationship between government and the child care sector as a means of maintaining the focus on Australian families and their child care needs.  This measure will target projected funding of around $1.7 billion per annum in Child Care Benefit.  Child Care Benefit is most commonly delivered to families through their child care services.  Approval of services to participate in the Child Care Benefit program is based on their compliance with certain conditions and it is this compliance system that is being strengthened.

In combination with the new CCMS, the new compliance measures will help to minimise the risk of incorrect payments and fraud, and to detect them as soon as possible should they occur.  They will also help to increase services’ awareness of their obligations and the consequences of non-compliance with their obligations.

An essential new element of strengthening the compliance system is the introduction of a civil penalties scheme.  The civil penalty scheme provides for the imposition of a pecuniary penalty on a service that contravenes a civil penalty provision.  This bill sees the introduction of a new obligation on a service to provide information in relation to the Child Care Access Hotline on time.  This obligation is a civil penalty provision.  The delivery of up-to-date information on time to the Hotline means that families are able to be fully informed of any vacancies at child care services in their local area.  The information is also a source of information and an indicator enabling the assessment of child care place needs in a particular location or region.

The civil penalties scheme will operate in conjunction with an infringement notice scheme.  An infringement notice that is issued to a child care service will provide the service with the option of paying the lesser penalty set out in the notice or proceeding to a court to determine liability.

The civil penalty and infringement notice scheme will be developed further in the future.  Its introduction will provide a wider range of penalties that may be applied to child care services to ensure that penalty is suited to the level of non-compliance.  This will require further legislative amendment.

The civil penalties and infringement notice scheme will not directly impact on families receiving Child Care Benefit.  A family will only be affected where an approved child care service consistently fails to comply with its obligations under family assistance law, such as through the application of existing sanction provisions.

Families are entitled to know if the service’s approval is under threat or terminated because their Child Care Benefit may stop and they may become liable for full fees.  Therefore, if a particular child care service should fail to comply with one of its conditions of approval, or have its approval suspended or cancelled, another compliance measure in this bill will allow the Department to pass that information on to the families who have their children in care with the service.

Other compliance measures are included in the bill.  The bill also includes other measures that make improvements to Child Care Benefit administration.  For example, the amendments to the absence provisions will reduce the administrative burden on both families and services.  Child Care Benefit will be paid for the first 42 days of absence from care for each child, regardless of the reason for the absence and without the need for documentation.  Other amendments of a similar order are also made by this bill.


The Fisheries Levy Amendment Bill 2007 (the Bill) contains amendments which are consequential to the Fisheries Legislation Amendment Bill 2007 and complements the Howard Government’s efforts to modernise legislation affecting the governance and management of the Torres Strait fisheries.  Together, the Bills will provide the Minister and the Torres Strait Protected Zone Joint Authority (PZJA) with broader powers to implement cost recovery in these fisheries consistent with Australian Government and PZJA policy.

These amendments appear in a separate bill to the Fisheries Legislation Amendment Bill 2007 because levies are a form of taxation and, under the Constitution, require separate legislation.

The Fisheries Legislation Amendment Bill 2007 will enable the Minister and the PZJA to introduce plans of management for Torres Strait fisheries which are underpinned by output controls, for instance, a quota management system. The Bill will make it possible for the costs of managing Torres Strait fisheries governed by these management plans to be recovered from fishers. The Bill also makes it possible for levies to be collected against a new licence ‘without a boat’.

The Fisheries Levy Act 1984 (the Act) is the mechanism for collecting levies in fisheries managed under the TSF Act.  Under current arrangements, the Act provides for levies to be collected against a plan of management as determined by the Fisheries Act 1952, which has been superseded by the Fisheries Management Act 1991 (FM Act). Plans of management for Torres Strait fisheries are made under the TSF Act rather than the FM Act. The definition of a management plan will be amended by this Bill to include a plan determined under the TSF Act.

The Bill also consequentially amends references to “units of fishing capacity” in the Act so that these references are consistent with those in the TSF Act and so that levies can be calculated according to arrangements set out in management plans determined under that legislation.


The Fisheries Legislation Amendment Bill 2007 (the Bill) will improve the management of the Torres Strait fisheries, better enable monitoring of fishing activity in Commonwealth fisheries and deter illegal, unreported and unregulated fishing in Australian waters.

The primary focus of the legislation is to amend the Torres Strait Fisheries Act 1984 to modernise fisheries management practices. This will make them consistent with those already in place under the Fisheries Management Act 1991 and Queensland’s Fisheries Act 1994.  The Torres Strait Fisheries Act 1984 has largely operated without amendment since 1985 and a range of operational and administrative practices require greater support in legislation.  

These amendments will ensure that the Australian Government, including the Torres Strait Regional Authority, working in partnership with Queensland through the Torres Strait Protected Zone Joint Authority (PZJA), will be better placed to manage the commercial harvest in the Torres Strait Protected Zone fisheries.  This will ensure that the Torres Strait communities, and the adjacent communities on northern Cape York, can continue to enjoy their traditional fishing rights as well as participate in the commercial fisheries. 

The importance of the Torres Strait Protected Zone fisheries to the economic development of Torres Strait communities is undeniable. Commercial fishing is the primary source of non-government economic activity in the Torres Strait. It is important, therefore, that these fisheries can be managed sustainably into the future.

As I mentioned earlier, the Australian Government relies on the cooperation and support of the Queensland Government in managing these fisheries and in fulfilling its rights and obligations under the Treaty with Papua New Guinea. Where fisheries are managed by the PZJA, this Bill will provide it with the capacity to determine a management plan in the Torres Strait fisheries.  This power currently sits with the Australian Government Minister only.  The Bill will enable the PZJA to implement a quota system in these fisheries. To complement this regime, the Bill will also establish a register which will record all interests conferred under a plan of management. 

To support these new management arrangements, the Bill enhances the existing licence regime.  This includes the introduction of a new fish receivers licensing regime, a requirement for fish receivers to report on product delivered to them, and the capacity to regulate people who hand fish for commercial purposes. To provide sufficient time for industry to adapt to the new licenses, these aspects of the Bill will commence 12 months after royal assent. 

To support compliance with the new quota systems, licensing regimes and requirements to provide information, this Bill also introduces penalties and, by regulation, an infringement notice scheme.  These enforcement mechanisms will be consistent with those in place in other Commonwealth fisheries. The Bill also provides for a demerit point regime to be introduced by regulation to deter repeat offenders. 

This new management regime will better enable the Australian Government to fulfil its catch sharing obligations with Papua New Guinea as set out in the Treaty.  The Bill amends the objectives of the Torres Strait Fisheries Act 1984 so that the objectives of the Treaty are better articulated in the legislation and will ensure fisheries can be managed consistent with the requirements of the Treaty.

In addition to the amendments concerning Torres Strait fisheries, the Bill will also amend the Fisheries Management Act and the Fisheries Administration Act 1991.  These amendments flow on from the Government’s successful ‘Securing our Fishing Future’ package.  This initiative has led to significant reductions in fishing effort along with a $220 million adjustment package to enable fishing operators to exit, and the associated industry to adjust. The amendments will assist AFMA to implement the Ministerial Direction that was made in November 2005 by enabling it to introduce a comprehensive set of management measures involving harvest strategies and enhanced monitoring of fishing. These initiatives are designed to ensure Commonwealth fish stocks are managed both sustainably and profitably in the long-term. 

New management measures introduced by the legislation include clarification of AFMA’s powers to place observers on board fishing vessels 

Further, the legislation will amend the Fisheries Management Act to enable AFMA to share information with environment and law enforcement agencies.  This will facilitate the investigation of serious crime, fisheries and wider marine monitoring and enforcement. The type of information to be shared and the agencies with which it will be shared will be specified in regulations and, as such, be a disallowable instrument.

The Bill also contains amendments to implement government policies to prevent, deter and eliminate illegal, unreported and unregulated fishing in the Australian Fishing Zone (AFZ). The Australian Government devotes significant resources to address the risks posed by illegal foreign fishing vessels and has announced a range of additional measures in recent years, including custodial penalties to further deter illegal incursions.

The Fisheries Management Act and the Torres Strait Fisheries Act were amended in 2006 to provide for custodial penalties ranging up to a maximum of three years for foreign fishing offences in the territorial sea of Australia. These offences reflect the inherent sovereignty violation with such incursions.

Further amendments are required to deal with evidentiary problems in securing custodial convictions.  For example, it is difficult proving the fishers were aware they were fishing in Australia’s territorial sea. The Bill addresses this problem by applying strict liability to this aspect of these offences, while leaving the overall offence a fault based one.  The Bill also makes complementary amendments to the Surveillance Devices Act 2004 to ensure that the new custodial penalty offences can be effectively investigated and prosecuted using surveillance devices.  By overcoming the current impediments to prosecuting the new offences, the Bill will strengthen the Government’s overall policy response to illegal foreign fishing.

The Bill will also strengthen forfeiture provisions allowing for the forfeiture of the boat, catch and all equipment on a foreign fishing boat that has engaged in illegal fishing in the AFZ at the time of its seizure.  These amendments are intended to further deter foreign fishers from illegally fishing in the AFZ. Knowledge by illegal foreign fishers that they may be given custodial sentences, and lose the boat, catch and all equipment any time after the offence occurs also makes it more likely that the owner will exercise vigilance to prevent the vessel being used to illegally fish in the AFZ.

Finally, the Bill will amend the Fisheries Administration Act to provide certainty regarding AFMA’s governance arrangements.  The Australian Government has decided to establish AFMA as a commission on 1 July 2008. In keeping with this decision, the existing directors’ terms of appointment expire on 30 June 2008. The current legislation does not provide for the director’s terms to be extended.  The amendment will give the Minister a temporary power to appoint the directors of AFMA for up to nine months at a time without going through the selection and appointment prescribed in the Act.  The power will only be exercised if AFMA does not become a commission by the proposed date and will have a sunset clause of 30 June 2009.

In summary, these amendments will improve the Australian Government’s domestic fisheries management arrangements, it will support this Government’s strong stance against illegal unreported and unregulated fishing and it will bolster our capacity to end overfishing in Australian waters.


The Migration Amendment (Statutory Agency) Bill 2007 will implement the last of a range of minor changes to the legislative framework of the Migration Review Tribunal and the Refugee Review Tribunal recommended in the Uhrig Report on the Corporate Governance of Statutory Authorities and Office Holders in 2003.

The purpose of the recommended changes is to strengthen the governance of the two Tribunals and give legal effect to the practical reality that they have progressively been administered as one agency since 2001.

The Bill will insert a new section into the Migration Act 1958 that will establish a single Statutory Agency for the purposes of the Public Service Act 1999, consisting of the Principal Member of the Refugee Review Tribunal and the Registrars, Deputy Registrars and other officers of both the Refugee Review Tribunal and Migration Review Tribunal engaged under the Public Service Act. 

The new section will also provide that the Principal Member of the Refugee Review Tribunal will be the Agency Head of the Statutory Agency.

Under the current statutory arrangements, the Australian Public Service employees working at the Tribunals are legally employed by the Secretary of my Department. However, for all practical purposes, Tribunal Staff are directed by the Principal Member, who is the Executive Officer of both of the Tribunals, under powers delegated by the Secretary. 

This Bill gives legal effect to the administrative arrangement that the Principal Member of the Tribunals is the employer of the Australian Public Service employees working at the Tribunals, not the Secretary of my Department.

Since 2001, the two Tribunals have progressively amalgamated their administrative operations to achieve efficiencies and savings and allow for more flexibility in managing the fluctuating caseloads of the two Tribunals. Creating a single statutory agency for the purposes of the Public Service Act is consistent with this administrative reality.

Both Tribunals are now co-located in Sydney and Melbourne and have common registries and legal, research, library, corporate and administrative facilities. 

As with the Principal Member, other members are also cross-appointed to both Tribunals to allow them to hear cases in either Tribunal. The Australian Public Service staff who work at the Tribunals are covered under the same certified agreement and provide their services to either Tribunal, as required.

I said earlier that the Bill provides for the Principal Member of the Refugee Review Tribunal to be the Agency Head of the Statutory Agency established for the purposes of the Public Service Act.  This is an important provision because it ensures that if in future two individuals are separately appointed as the Principal Member of the Refugee Review Tribunal and the Principal Member of the Migration Review Tribunal, there will still be certainty about who is the Head of the single Statutory Agency established for purposes of the Public Service Act. 

As a statutory appointee, the Principal Member of the Migration Review Tribunal will not form part of the Statutory Agency.

The Bill provides for the Principal Member of the Refugee Review Tribunal to be the Agency Head because this is consistent with similar amendments to the Financial Management and Accountability Regulations 1997, which establish the Tribunals as a single prescribed agency for the purposes of the Financial Management and Accountability Act 1997 and makes the Principal Member of the Refugee Review Tribunal the head of that agency.   

It is important to stress that this Bill will not change the functions of the two Tribunals under the Migration Act and will not diminish the role and responsibility of the position of Principal Member of the Migration Review Tribunal, under that Act. 

By making the Australian Public Service employees of the two Tribunals a single Statutory Agency  for the purposes of the Public Service Act the Bill will clarify the employment arrangements of the Tribunals’ staff  and will bring the Tribunals into line with other merits review Tribunals which are already Statutory Agencies, such as the Administrative Appeals Tribunal.

I commend the Bill to the Chamber.

Debate (on motion by Senator Colbeck) adjourned.

Ordered that the Fisheries Legislation Amendment Bill 2007 and the Fisheries Levy Amendment Bill 2007 be listed on the Notice Paper as one order of the day, and the remaining bills be listed as separate orders of the day.