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Wednesday, 29 November 2000
Page: 20104

Senator O'BRIEN (12:35 PM) —Given the time, I thought it might be productive if I outlined some issues that I wanted the Parliamentary Secretary to the Minister for Agriculture, Fisheries and Forestry, Senator Troeth, to address in the committee stage. Whenever we return to this legislation, the parliamentary secretary and officers will be forewarned as to the issues which need to be addressed in the view of the opposition. For example, if I go to clause 9 of the Horticulture Marketing and Research and Development Services Bill 2000, the minister may declare a body to be an `industry services body'. That is permissive. The word `may' is used. I would like some comment on why the minister is not mandated to take action on the meeting of the conditions set out within that provision but rather, as it is expressed, is given a permission but no obligation to declare a particular body an `industry services body'. There may be good reason for that but I think the permissive nature of the provision needs to be addressed. It goes on in part (c) to say:

... the minister has had regard to whether the body's constitution is appropriate for a body performing the functions of the Industry Services Body.

I want to know what factors the minister would be looking at in making such a determination. Are the factors to be considered simply the objects listed on page 2 of the constitution we have been provided with—that is, the draft 3, dated 22 September? I am assuming—and perhaps at some stage you would let us know—that that is the most recent draft. If there is a more up-to-date one, perhaps the minister could tell us what the changes to that draft have been, or tell us, alternatively, if it is the final form of the constitution. What other factors would the minister take into account? What processes is the minister required to follow in forming a view and then making a decision in this regard? For example, who does he have to consult with?

According to the Bills Digest on this bill—No. 58 on page 4—the determination by the minister is not a disallowable instrument. Can you tell us why that is the case, given that the minister is required to gazette his decision? Why is it that that is all he or she is required to do? In relation to clause 9(2)(c), what factors will the minister take into account in determining whether a body's constitution is appropriate for that body to perform the functions of the industry export body? I assume—and perhaps you can correct me if I am wrong—that this decision also will not become a disallowable instrument.

Scrutiny of Bills Committee Alert Digest No. 14 of 2000 raised a number of questions about the issues relating to these two bills. I want to ask some questions about the issues raised and the government's response to those issues. The Alert Digest points to the fact that clause 9 of the Horticulture Marketing and Research and Development Services Bill 2000 provides for the minister to declare a body `the relevant industry services body' or `export control body', and clause 10 authorises the minister to declare that that body ceases to be the relevant body. That committee sought advice from the minister as to why these declared bodies are not subjected to parliamentary scrutiny. The minister's response advised that the declarations are the subject of judicial review. So could the minister explain how that process will work? Is the government talking about the administrative decisions judicial review process or the AAT or something else? If so, are those reviews related only to the administrative processes, as I expect they would be? If the reference is the option of civil action through the courts, how does that meet the needs of the parliament and the public in relation to the expenditure of some $14 million of public moneys? Could you let me know what you mean by the `reference' in that response to `normal parliamentary processes' that you refer to in your letter as a means of dealing with the matter? Further, we will be seeking answers on matters such as our understanding that the new entity, Horticulture Australia Ltd, will not be the subject of any scrutiny through the Senate committee system unless there is a formal reference. I would like a comment on that.

Parliamentary Secretary, you advise in your letter that these arrangements will be transparent to industry, government and the parliament because the deed of agreement between the government and the new private entity will be a public document and that that will enable the industry and parliament to see exactly what the new entity is required to do, as distinct from what it actually does. Is that right—that is, the new entity will report on what it is required to do rather than on its actual functions? Is it fair to say that parliament will not have access to the information referred to in E45, E5 and E8 in the deed, starting from around page 13? Isn't it fair to say that, if that is the case, there really is not appropriate transparency in relation to the expenditure of public moneys accountability?

Clause 10 of the Horticulture Marketing and Research and Development Services Bill 2000 relates to the cessation of a declaration of the industry service body or the industry export control body. A point was made in the Alert Digest of the Scrutiny of Bills Committee I referred to that the provision under clause 10(2)(b)—which allows a determination of what constitutes reasonable grounds for that decision—needs to be addressed and that it would be helpful if the parliamentary secretary could bring some information to the committee on that matter. I ask the question because, while this structure is being privatised, the minister, through these clauses, still holds the ultimate power over this company. I want to know how subjective the process is. I would also like—and I am sure the committee would appreciate—explanations as to the meaning of clauses (10)(2)(h)(i), (ii) and (iii). What would be the basis of a request from the secretary for a variation under section 13 of the deed of agreement?

Can the parliamentary secretary tell the committee how, under clause 16(2), the level of funding from the Commonwealth will be determined? That clause refers to section 4 of the bill. According to section 4, eligible research and development expenditure means the amount determined by the deed of agreement-schedule 4. It seems to be a circular reference. The deed states in B4.1:

For the purpose of section 16(2) of the Act, the eligible R&D expenditure of HAL shall be determined in accordance with Schedule 4.

But the act says at section 16(4) that the reg-u-lations may provide for the way in which the secretary is to determine the amount of the gross value of production of the horticult-ure industry for a financial year. I want to know what the regulations actually say. Further, it would be helpful if the committee could have explained to it the meaning of section 16(5)(b) which states:

(5) Amounts are not payable ...

(a) in circumstances in which the deed of agreement specifies the amounts are not payable;

And (b) states:

... if those amounts have previously been paid to a body that was, at the time of the payment, an industry services body.

I realise that some of these issues are technical, but we are dealing with the technical issues about the establishment of provisions which will allow the authorisation of an entity to take over the roles of statutory bodies that are being abolished. There are further questions that I wanted to raise, but that will probably do for starters, given that we are rapidly approaching the appointed time for the conclusion of the consideration of this legislation at this time.

Progress reported.