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Thursday, 6 May 1993
Page: 208


Senator FAULKNER (Minister for Veterans' Affairs and Minister for Defence Science and Personnel) (10.16 a.m.) —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.


The PRESIDENT —Is leave granted?


Senator Reid —No. We require that the second reading speeches for the Charter of the United Nations Amendment Bill 1993 and the Australian Citizenship Amendment Bill 1993 be read. It is appropriate and proper that Ministers introducing Bills in this chamber should read the second reading speeches. They should be of sufficient importance that they would wish to do so. As a compromise, we will agree to the speeches for two of the Bills being read today, to save some time. But the principle is that Ministers should be present and should read their second reading speeches into the Hansard at the time that they are introduced. Leave is not granted to incorporate the second reading speeches for the Charter of the United Nations Amendment Bill and the Australian Citizenship Amendment Bill.

CHARTER OF THE UNITED NATIONS AMENDMENT BILL 1993


Senator FAULKNER —The purpose of this Bill is to amend the Charter of the United Nations Act 1945. The amendments will allow the Governor-General in Council to make regulations allowing for more comprehensive implementation of Australia's obligations under the United Nations Charter than existing legislation permits. They also provide for the imposition of fines for breach of the regulations and allow the Attorney-General to seek injunctions to restrain such a breach.

  During the Cold War era, the rivalry between the Soviet Union and the Western powers meant that the Security Council was seriously hampered in addressing international crises. The end of the Cold War has seen the Council begin to function in the way the founders of the United Nations envisaged it would. It has taken action in regard to a number of the world's most troublesome conflicts—in the Persian Gulf, in Cambodia, in Somalia and in the Balkan conflict, to name some of the most prominent. In some cases the Security Council has determined that the imposition of economic sanctions is necessary in order to bring to an end a breach of international peace and security.

  In recent times, such sanctions have been imposed against Iraq, Libya and Yugoslavia (Serbia and Montenegro). A failure by member states of the United Nations to implement those sanctions would inevitably erode respect for, and the authority of, those decisions. It is therefore important that Australia play its part in strengthening international peace and security by placing itself in a position fully to implement obligations that may arise from measures mandated by Security Council decisions. Further, Australia, as a member of the United Nations, is required as a matter of international law by Article 25 of the Charter to implement those decisions.

  Security Council resolutions imposing sanctions generally decide that `states shall prevent' specified transactions with the offending state. Australia's obligations under such resolutions have previously been implemented by way of the making of regulations under the Customs Act 1901, the Air Navigation Act 1920, the Banking Act 1959 and the Migration Act 1958 and by way of appropriate directions issued by the Treasurer to the Governor of the Reserve Bank. Up until now, the Australian Government has been able to use those methods to implement, directly or indirectly, sanctions mandated by the United Nations against Iraq and Libya and those mandated against the Federal Republic of Yugoslavia (Serbia and Montenegro) last year. However, recent events have shown that this ad hoc utilisation of legislation designed to be used for other purposes is no longer adequate.

  The Security Council adopted Resolution 820 on 17 April 1993. The Resolution provides for the imposition of strict new sanctions on the Federal Republic of Yugoslavia as from 26 April. The Government has been advised that Australia lacks a legislative basis by which it could ensure compliance with the obligations imposed by the Resolution in a number of important respects—for example, the freezing of funds held in Australia by the Government of the Federal Republic of Yugoslavia or companies based in the Federal Republic of Yugoslavia. Nor, under existing legislation, can the Government prevent Australian individuals or firms from providing services—such as accounting services or the installation of computer software—to the Federal Republic of Yugoslavia. The High Court held as long ago as 1973 that the Commonwealth did not have the executive power to cut off the telephone and mail services of the "Rhodesian Information Bureau" in Sydney, pursuant to a Security Council resolution. A failure to comply with the Resolution would place Australia in breach of its international obligations.

  In examining its options in relation to the implementation of those sanctions, the Government had regard to the ways in which other countries have done so. The United States, Canada, the United Kingdom and New Zealand have had facilitating legislation in place since the 1940s designed to allow a quick response to an obligation to implement Security Council sanctions. The Canadian and New Zealand legislation is particularly close in its wording to that proposed in the Bill.

  The central provision in the Bill before honourable Senators is the insertion of a new section 6 in the Charter of the United Nations Act 1945. The section will enable the Governor-General in Council to make such regulations as are necessary or convenient for applying measures adopted by the Security Council pursuant to Chapter VII of the Charter. The Government will thereby be able to implement promptly by way of regulation economic sanctions introduced by the Security Council. As Honourable Senators would be aware, the Senate Standing Committee on Regulations and Ordinances agreed in its Ninety-third Report of December 1992 (Scrutiny of Regulations Imposing United Nations Sanctions) that it was appropriate that Australia's obligations under Security Council resolutions be implemented by way of regulation. The reason for their conclusion was the need for speed and flexibility in the implementation of the sanctions and the fact that the regulations merely filled out the details of Australia's existing international legal obligation to comply with the sanctions.

  The legislation will be based on the external affairs power of the Commonwealth. It is not intended that the legislation replace existing regulations: rather, it will enable the Governor-General in Council to make regulations dealing with situations which fall outside the present regulatory framework.

  The legislation will not have the effect of taking away from the Government or the Parliament the power to decide whether the imposition of sanctions against a particular foreign state is in Australia's national interests. It would only be after the making of regulations under the legislation, which would be subject to the normal provisions regarding disallowance in the Parliament, that sanctions would be implemented. It would be open to persons aggrieved by a decision to make particular regulations to claim that their making was neither necessary nor convenient for applying measures adopted by the Security Council.

  Mr President, the other amendments to the Act are directed to ensuring that regulations made under the Act as amended will properly implement Australia's international legal obligations. The proposed Section 3 will ensure that regulations implementing Australia's obligations under the Charter can be enforced in Australia's external territories. The proposed section 4 makes it clear that the Crown in the right of the Commonwealth and of the States and Territories is bound by any regulations made pursuant to the Act.

  Security Council resolutions may provide that member states of the United Nations shall prevent their nationals from engaging in specified conduct. Section 7 will allow the Government to implement such provisions effectively.

  The wording of Section 8 reflects the fact that the sanctions introduced by regulation are those currently mandated by decisions of the Security Council. Once the Security Council decides that sanctions against a particular state are no longer necessary, it would obviously be inappropriate for the regulations implementing those sanctions to remain in force. Whilst prompt action will be taken to repeal or amend the regulations formally in line with the decision of the Security Council, this section will make it clear that they cease to have effect as soon as the sanctions are lifted by the Security Council. It also makes it clear that the Government may decide, consistent with the position regarding the introduction of sanctions, that the continued implementation of particular sanctions is no longer in the national interest.

  Consistent with the position that we are obliged by international law to give effect to decisions of the Security Council, the proposed new sections 9 and 10 are intended to guarantee that regulations implementing sanctions are not read subject to existing legislation nor later found to have been accidentally repealed by subsequent legislative action. Unless such provision is made, Australia could inadvertently find itself in breach of its international legal obligations and be subject to international criticism.

  As I stated earlier, Mr President, the Government has previously implemented, and will continue to implement, United Nations sanctions by way of Regulations under the Customs Act, the Air Navigation Act, the Banking Act and the Migration Act. Doing so confers substantial advantages in regard to the administration of the regulations and the imposition of more appropriate penalties than are available under this Bill. This Bill is intended to supplement, not replace, that existing pattern of legislation and regulation. Section 11 makes it clear that regulations made under the legislation referred to above will continue in force.

  The Bill includes provisions for penalties for breach of regulations made under it and for the Attorney-General to seek injunctions to prohibit prospective breaches of the regulations. The Bill will come into force on Royal Assent. I commend the Bill to honourable members.

AUSTRALIAN CITIZENSHIP AMENDMENT BILL 1993

  This Bill provides for amendments to the Australian Citizenship Act 1948 to incorporate a preamble, which gives proper recognition to the significance of Australian citizenship as a common bond which unites all Australians, and to introduce a distinctive Australian "pledge of commitment as a citizen of the Commonwealth of Australia" to be made by persons acquiring Australian citizenship.

  In the past year, the Government has sought to promote community discussion of issues relating to our national identity. The Government's view is that there is strong and growing support for ensuring that our national symbols effectively express our distinctive identity.

  Citizenship proclaims and defines national identity. The Government believes the time is right to change our citizenship law to reinforce the place of Australian citizenship as a defining element of our national identity.

  The current Australian Citizenship Act 1948 is principally concerned about the process of acquiring and losing citizenship. This is inadequate. The Act should also contain a preamble defining the meaning which the Parliament and the people of Australia accord to citizenship.

  This is what the preamble will do. The preamble explains that Australian citizenship is a unifying factor, in our diverse society. It states that citizenship represents "formal membership of the community of the Commonwealth of Australia".

  The preamble also makes it clear that citizenship involves both rights and obligations, which are enshrined in the constitution and our laws.

  Australia is a parliamentary democracy committed to providing equality before the law, freedom of the individual, freedom of speech and religion, equality between men and women and equality of opportunity for all.

  Australia is one of those few countries which actually relishes its diversity. Under the umbrella of an overall commitment to the nation and its uniting values and institutions, a society of great richness and variety as well as remarkable harmony has evolved.

  As the multicultural society we are, it is proper that the pledge of commitment be one which will be equally meaningful to all our people. It is therefore time that individual citizens be allowed to make a commitment of loyalty to Australia in embracing Australia's democratic beliefs and institutions, respecting others' rights and liberties, and upholding and obeying the laws of Australia.

  To reinforce this commitment to national unity, we must continue to develop the special Australian identity. We need strong national identity to give us more strength of purpose. We need it abroad to leave no-one in any doubt about who we are and what we stand for.

  The Government is of the view that the process of nation building is enhanced by reinforcing the notion of an "Australian" citizenship. Australian citizenship, with its attendant rights and obligations, is part of the glue which binds the nation and its citizens in a manner that gives adequate recognition to the reciprocity of that bond.

  Therefore, most importantly, this Bill proposes a "pledge of commitment as a citizen of the Commonwealth of Australia" to replace the current oath or affirmation of allegiance taken by applicants when acquiring citizenship. The pledge gives effect to the intent of the preamble, and is distinctively Australian. Some residents are reluctant to apply for citizenship partly because they do not see the present oath or affirmation as being adequately Australian in character.

  The pledge calls upon applicants to make a commitment of loyalty to Australia, the nation and its people. This contrasts with the present oath or affirmation of allegiance, which is made to a sovereign by a subject and has its origins in feudal times.

  Alternate versions of the pledge have been included, allowing one to choose either the version using the words "under God" or the version with no religious connotations. This approach properly reflects our diverse society, with its commitment to the fundamental principle that people should have the right to express their faith and to celebrate it. The fact that a significant number of people will want to express their deep commitment to this country in religious terms is therefore specifically catered for and formalises a choice currently available at other solemn occasions, for example, in courts and at swearing in ceremonies.

  The oath or affirmation of allegiance has evolved over the years, reflecting changed community concerns, since it was first introduced in 1949. The pledge captures the current way in which the Australian people view their national identity. It also reflects a sense of national identity that can be readily identified with by citizens of Australia, not just applicants for citizenship.

  The pledge is specifically designed for use at citizenship ceremonies, to enable new citizens to affirm their commitment to Australia but it is also quite appropriate for use on public or formal occasions and in schools.

  To ensure the concepts in the preamble and the pledge are widely understood, and to promote the pledge to potential new citizens and its wider use in the community, the Government has provided some modest funding for an information program involving advertising, posters in schools and the provision of a quality printed pledge, as a memento of the citizenship ceremony.

  In dealing with this amendment, I wish to refer briefly to the high court decision relating to the Wills by-election. That decision clearly has very important implications for those Australian citizens who are dual citizens and their ability to fully enjoy the rights of other Australian citizens. The Government has already made clear that it intends to pursue these issues with the Opposition with a view to changing the current constitution requirements for eligibility for Parliament. In our view Australian citizenship should be sufficient qualification.

  The incorporated speeches read as follows—

BROADCASTING SERVICES AMENDMENT BILL 1993

This Bill introduces changes to Part 7 of the Broadcasting Services Act 1992—the provisions dealing with subscription television broadcasting services, or Pay TV.

As you may be aware, on 29 January this year, I announced changes to defer the allocation of licences under section 96 of the Broadcasting Services Act 1992 for subscription television broadcasting services delivered on multipoint distribution systems (MDS).

While the Government was aware that mandating digital technology for the satellite services could provide a window of opportunity for MDS, it was never intended that MDS should take the dominant role in providing subscription television broadcasting services.

In fact, in mandating digital technology, the Government seized the opportunity to place Australia at the forefront of world developments in broadcasting technology and to present exciting opportunities for Australian industry with employment and export potential.

Following the calling of tenders for the remaining MDS channels, it became clear that major commercial interests had developed plans to provide extensive subscription television broadcasting services through MDS.

MDS had been seen by the Government as providing a useful competitive ancillary to a national satellite or cable system, but because of its inherent limitations of audience reach it was not envisaged that it would provide the backbone of a national subscription television broadcasting service.

The Government is concerned that the early development of an extensive MDS subscription television broadcasting network may prevent the subsequent provision of high quality subscription television broadcasting services on a national basis through satellite transmission or a cable system. Because of the head start enjoyed by MDS technology, MDS systems could corner markets in a handful of major population centres. This would affect the commercial prospects of any national service to be delivered by satellite.

The Government considers that if MDS services were to provide the basis of a national subscription television service, they should be subject to the same sorts of rigorous controls on concentration of ownership and cross media ownership or the Australian industry development requirements which apply to satellite subscription television broadcasting services.

In addition, the development of widespread MDS based subscription television broadcasting services could prejudice the ability of the ABC to provide an effective nationally available service as was expressly provided for under the provisions enacted late last year.

The Government therefore decided it will delay the provision of subscription television broadcasting services using MDS so that services delivered by other delivery technologies including the satellite services expressly provided for in Part 7 could commence commercial operations on a more equal footing.

On 29 January, the Government announced a policy in relation to the use of MDS for delivery of subscription television broadcasting services that:

no licences should be issued for subscription television broadcasting services relying predominantly on MDS for delivery prior to:

a) the award of licences for satellite Pay TV services and the determination of the digital transmission standard for satellite subscription television broadcasting services; or

b) a subscription television broadcasting service by cable being licensed and being in a position to operate nationally;

whichever is the earlier.

This policy was notified to the Australian Broadcasting Authority under section 161 of the Act. Further, the ABA was directed to act in accordance with that policy in exercising its licensing powers. No applications for subscription television broadcasting licences had been lodged at the time the policy was announced and the direction given to the ABA. However, applications were subsequently lodged by one company which then challenged the policy notification and direction to the ABA in legal proceedings brought in the Federal Court.

The uncertainty created by those proceedings, with the prospect of subsequent appeals, can be cut short by the proposed legislation. The Government's intention to introduce the legislation was announced before the applications were lodged or proceedings commenced.

The Bill reflects the policy notification and direction. New section 3A provides for the government's policy, and new section 3B gives guidance to the ABA in deciding for cable what is a national service.

The Government's policy is intended to ensure that the incentive remains to develop a truly national subscription television broadcasting system of the highest technical quality.

It will protect the pro-competitive ownership and cross media arrangements we have in place and ensure that Australian industry development receives an appropriate impetus.

It will not prevent the continued use and development of MDS for narrowcasting services or the progressive development of cable services.

In time it will allow for MDS to play its proper role along with satellite and cable in providing subscription television services.

Financial Impact

The Bill is not expected to have a significant impact on Commonwealth expenditure or revenue.

I commend this Bill to the Senate.

NATIONAL HEALTH AMENDMENT BILL 1993

  The purpose of this Bill is to clarify doubts concerning the interpretation of Section 135AA of the National Health Act 1953, requiring the issue of guidelines by the Privacy Commissioner relating to information obtained under the Medicare Benefits Program and the Pharmaceutical Benefits Program.

Under these two programs the Government receives annually claims for approximately 157 million medical services and 94 million pharmaceutical prescriptions. Over $6 billion annually is spent on these services by the Government. Efficient and accurate processing of this huge quantity of information requires the use of large computerised databases.

Legislation provides for the privacy of all information gathered as part of the administration of these very large and complex programs. Section 135A of the National Health Act 1953 and Section 130 of the Health Insurance Act 1973, require officers to observe secrecy in respect of all information obtained in the course of their duties. The Privacy Act 1988 also applies to the collection, storage, use and disclosure of personal information which is obtained in the administration of the Medicare Benefits Program and the Pharmaceutical Benefits Program. In addition, the agencies responsible for administering these programs have agreed to be bound by the Privacy Commissioner's Data Matching Guidelines.

Section 135AA of the National Health Act 1953 complements this general framework by expressly providing that the Privacy Commissioner shall develop, in consultation with affected organisations, privacy guidelines relating to information obtained under the programs. This section was enacted in 1991 following an amendment moved by the Opposition in the Senate which was accepted by the Government.

The Privacy Commissioner's subsequent consultations on the guidelines, and advice from the Office of General Counsel in the Attorney-General's Department which was provided to the then Department of Health, Housing and Community Services, revealed a number of problems relating to the wording of that section. For example, on one reading of the current provision, personal identification information held in the eligibility enrolment databases (i.e. name, address, Medicare card number and Pharmaceutical entitlements number) would need to be deleted and reconstructed each five years thereby necessitating the issue of new eligibility cards at considerable public expense for no net benefit. Similar problems may relate to databases containing the names, addresses and qualifications of all approved providers of services and goods. A further difficulty relates to uncertainty as to whether the section applies only to information received after the commencement date of the Health Legislation (Pharmaceutical Benefits) Amendment Act 1991 (i.e. 27 June 1991).

The various difficulties were identified by the Privacy Commissioner in his report to Parliament of 28 May 1992. The Privacy Commissioner has deferred issuing privacy guidelines under the existing section pending the proposed legislative amendments contained in this Bill.

The provisions in this Bill have been developed in consultation with the Privacy Commissioner. Officials have also discussed these issues with members of the Opposition and the Australian Democrats.

The purpose of this Bill is to clarify Section 135AA to overcome the problems identified during the consideration of the draft guidelines. It repeals the existing section and substitutes a new Section 135AA with, subject to the differences identified below, the same general structure. The Privacy Commissioner will still be required to issue privacy guidelines for the management of information stored in computer databases and to conduct consultations with affected organisations. The guidelines will also have to be tabled in the Parliament as a disallowable instrument.

To avoid the need to delete and reconstruct eligibility enrolment databases every five years, the new Section 135AA makes it clear that the guidelines to be formulated by the Privacy Commissioner do not extend to information contained in databases maintained for the purpose of identifying persons eligible to receive benefits. For similar reasons information simply identifying the practitioners and pharmacists who provide goods and services or issue referrals in connection with claims are also excluded.

The Bill restricts the scope of the proposed guidelines to databases as it is not practicable to cover information held on paper files (e.g. otherwise the guidelines would require the removal of patient names from general files containing Ministerial correspondence). However, the Bill does require the guidelines issued by the Privacy Commissioner to specify the circumstances in which creating paper copies of information in computer databases is prohibited.

Notwithstanding those exemptions, the disclosure of such information will continue to be regulated by the general secrecy provisions under the National Health Act 1953, the Health Insurance Act 1973 and the Privacy Act 1988.

The new Section 135AA also specifies that the guidelines will cover information held by an agency whether or not it was obtained after the commencement of the new section.

The new section also specifies the content of the guidelines. In particular, it requires the guidelines to cover the ways in which information may be stored; the circumstances under which the making of paper copies of the information in the databases is prohibited; the uses to which agencies may put the information (e.g. to process claims, to investigate fraud); the circumstances in which agencies may disclose information. It also requires that information obtained from claims for medical benefits must be stored in a separate database from information obtained from claims for pharmaceutical benefits; and prohibits linkage of such information except in the way specified in the guidelines. It also requires the guidelines to make special provisions in relation to the storage and retrieval of information that is more than five years old.

Any complaint about breach of the guidelines will be regarded as a complaint under the Privacy Act 1988, enabling the Privacy Commissioner to exercise the powers available under that Act.

As a transitional measure, consultations on guidelines already conducted by the Privacy Commissioner in 1991-92 will remain effective under the new section to avoid unnecessary duplication of effort.

The Bill also provides for a number of consequential amendments to the National Health Act 1953 and to the Privacy Act 1988.

I commend this Bill to the Senate.

HEALTH INSURANCE COMMISSION AMENDMENT BILL 1993

This Bill amends the Health Insurance Commission Act 1973 to allow the Health Insurance Commission to plan, establish and administer the Child Care Cash Rebate scheme for expenses incurred for work-related child care as announced by the Prime Minister on 9 February 1993.Under current Health Insurance Commission legislation, the Health Insurance Commission is restricted to undertake preparatory work in relation to health insurance or other health related matters only. This amendment to the Health Insurance Commission Act 1973 provides for additional functions for the Health Insurance Commission in respect of rebates for child care costs.

Under the new arrangements, the Health Insurance Commission can plan and establish a scheme which will allow the payment of rebates for child care costs to parents who are working, studying or training or seeking work. Such an amendment to the Act is required to enable the Health Insurance Commission to devote resources to develop and establish systems and procedures to register carers, register eligible families and make payments under the scheme from 1 July 1994. The new arrangements will also enable the Health Insurance Commission to administer a Child Care Cash Rebate as specified by an Act. Such a scheme will be specified in amendments to the Child Care Act 1972 which is scheduled for amendment in Autumn 1994.

The Child Care Cash Rebate is part of the Labor Government's comprehensive child care policy which recognises that most parents need quality child care at some stage of their working lives and that they need help with the cost of child care.

The Child Care Cash Rebate recognises that the cost of child care is a legitimate expense for parents in earning an income. The rebates will significantly improve the affordability of child care for working parents.

From 1 July 1994, parents using child care while in employment, training, studying or looking for work will be able to claim a rebate for part of their child care expenses. An estimated 230,000 families with 358,000 children will benefit from the scheme.

After the first $16 of weekly child care expenses, eligible families will be able to claim 30 per cent of their child care costs up to a ceiling of $110/week for one child in care and $220/week for two or more children.

The maximum Child Care Cash Rebate will be $28.20 per week ($1466 per year) for one child and $61.20 per week ($3182 per year) for two or more children.

The Child Care Cash Rebate will be paid for any work-related child care expense for children aged up to twelve years old. Child care expenses incurred in formal child care (eg Long Day Care Centres, Family Day Care, Outside School Hours Care) and in informal care arrangements (eg relatives, nannies) will be eligible for the rebate. Child care expenses incurred in informal care have been included in recognition of the fact that almost two-thirds of working families use informal care, either by choice or because formal care is not available.

Families will be able to claim the rebate by mail or in person at one of 240 Medicare offices around Australia.

I commend this Bill to the Senate.

  Debate (on motion by Senator Reid) adjourned.

  Motion (by Senator Faulkner) agreed to:

  That the National Health Amendment Bill 1993 and the Health Insurance Commission Amendment Bill 1993 be listed on the Notice Paper as an order of the day and the remaining Bills be listed as separate orders of the day.