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Thursday, 22 November 2012
Page: 9471

Senator SMITH (Western Australia) (10:31): I am also pleased to have this opportunity to speak on the Low Aromatic Fuel Bill 2012. As a member of the Senate Community Affairs Legislation Committee, at the outset of my contribution I would like to say how grateful I am for all those who have taken the time to make a contribution to the committee's inquiry on this important subject and add my commendation to those of other senators on the work of CAYLUS, the Central Australian Youth Link Up Service, which gave a very fulsome presentation to the committee over numerous days and was quite instrumental in making sure that the committee had an opportunity to hear from those most affected by the damaging consequences of petrol sniffing.

On a more personal note, the issue brought to the fore for me the central role that women will play in resolving many of the social issues we confront in Indigenous communities, but also the very important and urgent need to make sure that young Indigenous males across Central Australia and my home state of Western Australia have the necessary support and encouragement to avoid the temptation of petrol sniffing.

Petrol sniffing is a problem that has bedevilled areas of Northern Australia since the 1950s. Since the 1980s there have been a number of inquiries and solutions proposed to address petrol sniffing and its harmful, indeed tragic, social consequences. The most significant step at a Commonwealth level came, I am pleased to say, in 2005 when the Leader of the Opposition, Mr Tony Abbott, was the Minister for Health and Ageing. Mr Abbott's passionate, genuine and ongoing commitment to the welfare of Indigenous communities is well known to most Australians. In March 2005, as health minister, he worked with industry to commence the rollout of a form of low-aromatic fuel, more commonly known as Opal, across parts of Central Australia that had been identified as areas with particularly high instances of petrol sniffing.

Opal was developed by BP Australia and is a form of unleaded fuel that contains low levels of aromatic hydrocarbons. That means that a petrol sniffer will not be able to obtain the high from this form of fuel that they would from regular unleaded petrol. Opal fuel is produced by BP's facility in Kwinana, in my home state of Western Australia, but other petrol-retailing companies have agreed to distribute it through their own retail outlets.

The Howard government committed $42.7 million over five years to make Opal available to more and more communities throughout Central Australia. The Howard government invested a total of $55.2 million over four years on its whole-of-government Petrol Sniffing Strategy. And I join with Senator Scullion in commending also the efforts of the Rudd and Gillard Labor governments for the continued rollout during their tenures. As at 1 July this year, there were 123 sites across regional and remote Australia that were receiving low-aromatic fuel, and 67 of those sites were within zones identified as high risk for petrol sniffing activity. Focusing on my own state of Western Australia, the East Kimberley region has been identified as an area with a significant petrol-sniffing problem. In Western Australia there are 26 sites currently receiving low-aromatic fuel, with a further 18 sites targeted for rollout in the near future.

I am disappointed and saddened to say that only yesterday we heard of a firsthand account of the dangers and perils of petrol sniffing, when a 13-year-old boy unfortunately had almost 40 per cent of his body burnt after setting himself alight while sniffing petrol. The boy is believed to have inflicted the injuries on himself when his family found him sniffing in a shopping centre car park in South Hedland—and South Hedland is a place where I spent much of my youth, as my father was a police officer there in his early years. The boy was subsequently flown to the Princess Margaret Hospital. This incident points to the fact that this is a recurring issue.

But, while it is a recurring issue, I want to remind all of us that we must acknowledge the success of the low-aromatic fuel initiative. Universally it is accepted as having made a valuable and significant contribution to reducing the incidence of petrol sniffing. In the committee's report, I am pleased to say, we take some time to draw attention to the fact that the introduction of Opal has been significantly successful. In our report we mention:

The story of the manufacture and distribution of low aromatic fuel in central Australia, to substitute for sniffable fuel, is a story of spectacular policy success. It is a rare and precious achievement in the challenging field of Indigenous health policy. The initiative has involved a partnership between the private sector, including both large and small businesses, governments at all levels, non-government organisations, and Indigenous communities.

This statement in this latest report is consistent with previous findings. People will be familiar with the fact that the committee concluded in its 2009 report that 'the supply of Opal fuel has been a resounding success in helping to reduce petrol sniffing'.

I think it is fair to say, and I echo the comments of other senators, that the majority of submissions have noted the success that has been achieved to date with the voluntary rollout of low-aromatic fuel. I would like to draw specific attention to the contribution of Mr David and Mrs Margaret Hewitt, who have been activists in Indigenous communities and have committed themselves for a very long period of time to supporting the work of Indigenous communities.

Mr and Mrs Hewitt in their submission to the committee noted:

… the introduction of the Opal low aromatic fuel has had the biggest single positive impact on the health and welfare of Indigenous people in the 48 years of our work in remote regions.

What we are being asked to deliberate on today is not the suitability or the appropriateness of low-aromatic fuel as a means of containing petrol sniffing but instead what is the most appropriate legislative mechanism to deal with recalcitrant fuel suppliers across Central Australia—and, I might add, other parts of our country—that for reasons perhaps best known to themselves are not yet able to commit themselves to the introduction of Opal fuel. It is the legislative mechanism that requires our careful deliberation.

The committee's report as a result of its most recent inquiry found that the Commonwealth's efforts to communicate to outlets the benefits of selling low-aromatic fuel during the last 3½ years have not yet yielded great success. It was interesting to note that some of those who presented to the committee said they had never been asked about the possibility of supplying Opal fuel through their outlets. That suggests to me that the problem may not be outlets refusing to stock Opal, as some of the commentary around this issue has suggested, but at least in some instances it is a case of operators not having access to the information about the benefits or some of the assistance available to them in terms of moving from regular unleaded petrol across to Opal fuel.

My concern and the concern of other coalition senators in relation to the current bill is that, whilst it has honourable intentions, it has overlooked some important issues and may produce unintended consequences. Firstly, the Commonwealth government is already working with state and territory governments to address some of the issues outlined in the committee's report. There is goodwill from all parties and a determination to work through the issues cooperatively and comprehensively. To simply impose Commonwealth legislation now would merely bring that process to a halt.

I share Senator Scullion's suspicions about what might have motivated a change in the last 24 hours in regard to the government's consideration of and attitude to this private member's bill. I think it is worth reflecting that the minister, Mr Snowdon, has said previously how wrong this proposed approach would be. On ABC back in February of this year Mr Snowdon said the Commonwealth legislation as proposed in this bill:

… creates, I think, a potential legal minefield.

Again, he said:

If the Northern Territory government had in its mind that it ought to regulate it could, as could a Western Australian government, as could the Queensland government.

In July of this year he also said the same to his state ministerial colleagues, as reported by the Australian:

He told the ministers it was difficult to see how a commonwealth ban on unleaded fuel—which he has previously described as a "legal minefield"—would have a greater impact on addressing petrol sniffing and state and territory legislation.

So what we are dealing with at the moment is a situation where, by the government's own admission, the proposition before us is not a worthy one—or at least is a second-class one.

The Greens say that the constitutionality of their bill is underpinned by the corporations power. The problem with that approach is that some of the bodies involved in the rollout of Opal fuel maybe unincorporated traders. As a result, the bill may be creating a loophole through which traders within petrol-sniffing zones can go on selling regular unleaded petrol—the opposite outcome to the one the bill seeks to remedy. Furthermore, what is contained in this bill will not do anything to actually address supply issues. BP's capacity to produce Opal fuel will not simply be increased as a result of passing legislation. Storage facilities for the distribution of the Opal fuel will not magically appear merely because this parliament passes a piece of legislation. Even the Greens who have authored this bill appear to have acknowledged this point. It is right there in the Greens minority report, which says:

This bill introduced by the Australian Greens does not in itself cause anything to take place.

I do not doubt for a moment the sincerity of the Greens' intentions in terms of what they have brought to the Senate, but I do question the merits of passing legislation in this place when even its proponents admit it will not cause anything to take place. Australia needs to make sure that its legislative approach is focused on getting outcomes. I am not convinced that this bill passes that simple test.

But there is a better way. There is already a process of discussion and negotiation under way between the Commonwealth and the relevant state and territory jurisdictions to deal with many of the issues that were raised during the committee's inquiry into this bill. For instance, I know that my coalition colleague Senator Scullion has met with the recently elected Chief Minister of the Northern Territory to discuss this very issue. During the committee's inquiry I actually raised the idea of replicating some of what the Northern Territory has done and fostering a coordinated approach across other state jurisdictions. That would seem to me to be a solution far preferable to additional Commonwealth legislation in this circumstance.

The indication in the Northern Territory is that the new Country Liberal Party government will be open to further amending the Northern Territory's volatile substances act to deal with this issue. There is no reason why that approach could not then be replicated in other relevant state jurisdictions. I am confident that the coalition government in Western Australia will be speedy in its response to this important issue. I acknowledge that sometimes the Commonwealth may be forced to legislate when states actively refuse to address a critical issue. That is not the case in this issue. No-one is denying that action must be taken. I think there is merit in allowing a solution based on state and territory legislation to proceed. It will allow for a more flexible and better targeted approach. All of us in this place want to see the supply of Opal fuel expanded and the problem of petrol sniffing eliminated. However, I do not feel that this bill will achieve that in the most effective way and in fact risks the creation of other difficulties. That is why I am opposed to it.

In this debate I think it is important to acknowledge that the commitment to improving the lives of Indigenous Australians is genuinely a matter that transcends party politics. We hear a lot of talk in this place about bipartisanship. Sometimes that is opportunistic but, fortunately, this is not one of those times. During my six months as a senator for Western Australia I have been struck by the genuine commitment of all my Senate colleagues to improving Indigenous lives, especially those in remote communities.


The hearings that the Community Affairs Legislation Committee held in regard to this specific bill were a powerful demonstration of that commitment, and I am grateful to senators from all parties on that committee for their efforts. Here was an example of the Senate and its committee process working at their best. Yes, there is now a discussion about the best way forward on this critical Indigenous social issue; however, I want to make it clear for the record that what is at issue merely amounts to a question over the best route, not the ultimate destination.

The coalition agrees with the need to stop petrol sniffing but believes this bill will be ineffective on the issue and that the issue is best handled at a state and territory level. In the Northern Territory many will be aware that the Territory's Volatile Substance Abuse Prevention Act—which could be enabled in other jurisdictions, with minor amendments—does enable supply of sniffable fuel to be banned in certain areas. This act could form framework legislation in other states, allowing effective anti-sniffing measures that better reflect local circumstances and differences amongst different Indigenous communities.

The Community Affairs Legislation Committee recommended the bill not proceed. It recommended that the act should not rely on the corporations power. It recommended that ongoing coordination with state and territory governments to prevent supply issues with Opal should be pursued. It also suggested that a review of Opal production and distribution subsidies should be more closely undertaken. The bill before us relies on the corporations powers under section 51 of the Constitution. It will have no effect on unincorporated traders. This means that any sole trader, partnership or other trading entity would not be covered. We know from the current situation that one point of leakage is enough to allow sniffing outbreaks in large surrounding areas. I think we are all agreed on that significant point. Therefore, a bill that does not cover every trader in the area would be all but ineffective.

Our alternative is a simple one but a highly effective one. The Northern Territory's Volatile Substance Abuse Prevention Act can, subject to minor amendment, be used to tackle the problem. Under this act a group of 10 or more residents of a locality or a community council could seek to prevent supply of a particular substance, including petrol, in that location. In the Northern Territory the department of health would then lead a process that would take account of interested parties' contributions to develop a management plan that would be able to specify restrictions on supply and use of regular unleaded petrol and other sniffable substances at that location.

This approach is worthy not least because it is one that has been advocated by coroners in other jurisdictions. This approach was endorsed in a Western Australian coronial inquest into a tragic circumstance. That inquest said:

… the Volatile Substance Abuse Prevention Act 2005 (NT) has been an effective tool in the Northern Territory for ensuring that chronic solvent users who are at risk of severe harm undergo suitable treatment at appropriate facilities.

In similar circumstances in South Australia an inquest recommendation stated:

That the Minister for Health consider introducing legislation before the South Australian Parliament similar to that encompassed within the Northern Territory Volatile Substance Abuse Prevention Act 2005 …

Senator Scullion has been actively working with the Northern Territory government to bring about this solution. I am sure that other senators, including me, from Western Australia, can use their energies and motivations to ensure that other jurisdictions follow suit in a speedy and effective manner.

It is very clear that what we have seen in the last 24 hours is a step back from what would have been a highly effective first-class solution to a less than perfect solution that unfortunately could compromise the future welfare of young Indigenous Australians. In conclusion I again would like to congratulate the committee on their deliberations. I also congratulate CAYLUS for its work in fostering the development of young people across our Indigenous communities.