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Monday, 12 November 2018
Page: 7813


Senator RUSTON (South AustraliaAssistant Minister for International Development and the Pacific) (20:15): I table a revised explanatory memorandum relating to the Aboriginal and Torres Strait Islander Amendment (Indigenous Land Corporation) Bill 2018 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—

ABORIGINAL AND TORRES STRAIT ISLANDER AMENDMENT (INDIGENOUS LAND CORPORATION) BILL 2018

This Bill represents a significant step forward in Australia's land rights journey.

The Indigenous Land Corporation was established as part of the Government's response to the High Court's decision in Mabo (No 2). In recognition that many Indigenous people would be unable to benefit under the Native Title Act 1993, the Indigenous Land Corporation was established to assist Aboriginal and Torres Strait Islander organisations to acquire land and to manage Indigenous-held land so as to provide economic, environmental, social or cultural benefits for Aboriginal and Torres Strait Islander people.

"Land" is not defined within the Aboriginal and Torres Strait Islander Act 2005. On a plain language interpretation, this means the Indigenous Land Corporation cannot support Aboriginal and Torres Strait Islander organisations to conduct activities in freshwater and sea country. For example, it cannot support Aboriginal and Torres Strait Islander people to: strengthen their connection with culture and community through activities in freshwater and sea country; manage freshwater and sea country to keep culturally significant plants and animals healthy; or establish fishing businesses.

This is inconsistent with the understanding Aboriginal and Torres Strait Islander peoples have of country. This is also inconsistent with developments in case law recognising that native title rights can extend to freshwater and sea country. In some cases those rights include rights to take and use water for a variety of purposes, and to take resources from certain waters.

The law now acknowledges that, for Aboriginal and Torres Strait Islander people, land and water are inseparable parts of country. It is now time for the functions of the Indigenous Land Corporation to reflect this.

These reforms follow extensive consultation with Indigenous stakeholders. A clear majority of stakeholders supported changes to expand the remit of the Indigenous Land Corporation to include freshwater and sea country.

The Government has listened and is now enabling the Indigenous Land Corporation to assist Aboriginal and Torres Strait Islander organisations to care for, manage and benefit from freshwater and sea country.

The Bill amends the Aboriginal and Torres Strait Islander Act 2005 to give the Indigenous Land Corporation functions in relation to 'water-related rights'. These additional functions are consistent with the Indigenous Land Corporation's functions in relation to land, and include:

a. the acquisition of water-related rights and divestment to Aboriginal or Torres Strait Islander Corporations;

b. the provision of assistance (grants, loans or loan guarantees) to Aboriginal or Torres Strait Islander Corporations to acquire water-related rights;

c. the carrying on of management activities in relation to 'indigenous waters' (an expression defined in the Bill) and water, or waters, in which the Indigenous Land Corporation has water-related rights; and

d. the provision of assistance (grants, loans or loan guarantees) for the purpose of carrying on management activities in relation to indigenous waters.

The Bill also renames the Indigenous Land Corporation the "Indigenous Land and Sea Corporation" to reflect the expansion of its remit to include water.

Expanding the remit will enable the Indigenous Land Corporation to reflect the understanding Aboriginal and Torres Strait Islander peoples have of country. It will also enable the Indigenous Land Corporation to support the full range of opportunities for Indigenous economic development in sectors such as fisheries, agriculture and tourism.

These reforms represent a significant step in Australia's land rights journey. By expanding the functions of the Indigenous Land Corporation to rights in relation to water, this Government is realising its commitment to improving the lives of Aboriginal and Torres Strait Islander people.

AVIATION TRANSPORT SECURITY AMENDMENT BILL 2018

It is important that Australia's aviation security framework remains effective and fit for purpose in an evolving and increasingly complex security environment.

The Aviation Transport Security Amendment Bill 2018 will ensure that Australia's aviation security framework remains responsive to changes in the security environment, while reducing the regulatory burden on smaller aviation industry participants.

Aviation is an enduring and attractive target for terrorists. This was evidenced in July 2017 by the disrupted attack in Sydney. The attack marked a significant shift in the threat and risk to Australian aviation, demonstrating a level of sophistication not seen before in Australia.

To remain ahead of the evolving threat, the Department of Home Affairs is working with industry to introduce a range of new security measures, including sophisticated new security screening technology at major and regional airports, and enhanced powers for the Australian Federal Police.

We must, however, balance aviation security needs with maintaining a viable aviation sector, particularly in regional Australia.

Not all industry participants face the same level of risk. The Department uses intelligence and characteristics specific to each aviation operator to assess risk. This shows, not unexpectedly, that larger aircraft and major airports are more attractive targets.

This Bill will amend the Aviation Transport Security Act 2004. It will introduce measures to allow the Secretary of Home Affairs, or their delegate, to give a 'model' transport security program, or TSP, to a lower risk aviation operator.

An industry participant is required under the Act to have a TSP that sets out the security measures and procedures that they have in place to meet their regulatory obligations.

The Department of Home Affairs assesses all TSPs, including minor amendments, and undertakes rigorous compliance activities to ensure industry participants meet their security obligations.

Currently, the Act requires all industry participants to maintain a comprehensive and bespoke TSP. This is despite the differences in the risk, size, sophistication or complexity of their operations.

This places a disproportionately high administrative burden on some lower risk industry participants, such as smaller, regional airports.

These amendments will allow an industry participant to be given a Secretary-issued TSP if assessed as lower risk, and where the administrative burden of preparing a bespoke TSP is not proportionate to the security outcomes. A Secretary-issued TSP will enable lower risk industry participants to direct resources to maintaining security measures rather than towards preparing documents for Government.

If an industry participant's risk profile changes, for example, they start operating larger aircraft, or experience significant increase in passenger numbers, the Department will assess their risk profile and adjust their security requirements accordingly.

The measures provided for in this Bill will uphold security outcomes while ensuring security measures and costs are commensurate with risk.

I commend the Bill to the Chamber.

COPYRIGHT AMENDMENT (ONLINE INFRINGEMENT) BILL 2018

Australia's copyright system provides the legal basis for supporting Australia's creativeindustries and ensuring that they are viable and successful. It is an essential mechanism for rewarding the creative efforts of authors, artists and musicians, and the investors that take the risks to bring creative works to the market. Our copyright system balances incentives to create and disseminate new works by allowing fair access and use of these works by Australian consumers and other users for public policy benefits.

The Australian Government has made two major updates to this system over the past three years. These updates have given the disability, education and cultural sectors enhanced use of copyright material. Those reforms were long overdue and necessary to enable those organisations to go about their normal functions without harming copyright owners. Now it is time to provide our creators and copyright industries with updated tools to ensure their creative efforts do not go unrewarded.

Australian film, television and music is a major success story, and the digital age has created opportunities for consumers to access this content in new and different ways. Streaming of content through providers such as Netflix, Stan and Spotify has opened up new ways of enjoying content. The Government encourages the ongoing development and rollout of these legitimate platforms because they enable Australian creators and investors to be appropriately rewarded for their efforts.

But the internet continues to create major challenges for Australia's creative industries Online copyright infringement reduces the livelihood of Australian creators and investors, and foreign-based websites continue to illegally distribute the content of Australian copyright owners. The operators of these sites are often difficult or impossible to find, and are located in countries that do not have strong copyright laws.

In 2015, the Government introduced a website blocking scheme in the Copyright Act 1968 to provide a means of addressing large scale copyright infringement by overseas operators. The scheme has been successful. Since it was introduced, a number of sites have been blocked and there has been a reduction in the rate of online copyright infringement by Australian users. Research commissioned by the film industry shows that traffic to blocked sites in the months after blocking dropped by around 50 per cent. That is an encouraging result. But in an environment that is subject to continual change, we need to make sure our regulatory protections are up-to-date and effective.

Australia's piracy rate still remains higher than in countries with strong copyright enforcement frameworks, such as the United Kingdom and Canada. There is a still a proportion of Australian users that seek out infringing sites, and there are still pathways for them to get to these sites, including blocked sites.

In February this year, the Government reviewed the existing scheme to determine whether it was operating effectively. In general, this assessment found that the scheme is working well, and that blocking arrangements have been implemented by carriage service providers with minimal disruption. However, there are some clear pressure points. First, search engines enable users to discover the existence of blocked websites and provide alternative pathways to get to those sites. Second, the types of online piracy have also become broader, with increased uses of sophisticated online locations, such as 'cyberlockers', that allow mass file-sharing. Third, new pathways to the blocked sites appear after the initial blocking, and these new pathways can't be blocked because they are not part of the original order. Finally, it can be difficult and costly to determine whether an online location is, in fact, located overseas.

The Bill directly addresses these concerns. It will allow injunctions to be made against online search engines, who would be required to take reasonable steps to remove search results that refer users to an infringing online location. This will remove links that allow users to discover the existence of websites that may be the subject of an injunction. Some of these appear on the first page of search results, when they should not appear at all. Search engine results can also disclose alternate pathways to blocked websites, which can undermine the effectiveness of blocking orders.

The Bill will provide that an injunction may be granted in respect of an online location that has 'the primary purpose or the primary effect' of infringing, or facilitating an infringement, of copyright. This will ensure that some overseas online locations, such as certain 'cyberlockers', may be captured under the scheme. Some cyberlockers are widely used as sites for sharing infringing music and movie files. At the moment, there is doubt about whether these sites have the 'primary purpose' of infringing copyright, or facilitating the infringement of copyright. The Bill will enable sites such as these to be brought within the scheme.

The Bill will make clear that the Federal Court has the power to issue responsive and adaptive injunctions, without the need for the copyright owner to go back to the Court. This will give the Court the power to grant injunctions on terms that allow the copyright owner and carriage service provider, by agreement, to apply the injunction to block other pathways that start to provide access to an infringing site. The Bill will also introduce an evidential presumption that will provide that an online location is outside Australia, unless the contrary is proven.

None of these measures will impede or affect the capacity for carriage service providers or search engine providers to voluntarily block or remove links to copyright infringing online locations. Indeed, if these voluntary arrangements are effective, injunctions are unlikely to be needed. However, these legislative changes provide an important fallback should industry initiatives prove to be inadequate or ineffective.

In closing, the Government is seeking quick passage of this Bill so that Australia's creative industries can take action to protect their rights. These industries have put in place voluntary measures to make content more accessible and cheaper, and run education campaigns so that Australians are aware of the impact of piracy. It is now appropriate for the Parliament to support these efforts by reforming our copyright website blocking scheme to ensure it is fit-for-purpose in a contemporary digital media environment.

I commend the Bill.

CORPORATIONS AMENDMENT (STRENGTHENING PROTECTIONS FOR EMPLOYEE ENTITLEMENTS) BILL 2018

This Bill amends the Corporations Act 2001 (Corporations Act) to address corporate misuse of the Fair Entitlements Guarantee scheme.

This vital legislation cracks down hard on companies which try to evade their obligations to workers and shift the burden to taxpayers.

Corporate misuse of the Fair Entitlements Guarantee scheme places an unfair burden on Australian taxpayers who ultimately bear the costs of employers improperly relying on the scheme.

It also creates an unfair commercial advantage over honest competitor businesses which do the right thing by their employees.

This Bill will mean we have stronger levers to ensure employers are held accountable for their obligations:

stronger penalties for those who do the wrong thing;

stronger options to recover entitlements; and

stronger powers to deal with directors and companies deliberately evading their obligations.

The FEG is an important safety net for Australian workers which protects employment entitlements when workers lose their job due to their employer's insolvency.

Whilst the overwhelming majority of companies are doing the right thing, unfortunately, some employers shift employee costs onto the FEG scheme for their own advantage, or just to exploit the scheme.

These changes are tightly targeted to deter and punish only those who seek to avoid their employee entitlement obligations and exploit the FEG scheme.

This improper use of FEG is contributing to a significant increase in scheme costs.

Average annual costs under the scheme have more than tripled from $70.7 million in the four years to 30 June 2009 to $235.3 million in the four years to 30 June 2018.

The amendments in Part 1 of Schedule 1 of this Bill strengthen enforcement and recovery options under the Corporations Act to deter and penalise company directors and other persons who engage in, or facilitate, transactions that are aimed at preventing, avoiding or significantly reducing employer liability for employee entitlements in insolvency.

The changes in Part 1 of Schedule 1 of the Bill include:

extending the fault element necessary to contravene the existing criminal offence in Part 5.8A of the Corporations Act to include recklessness;

significantly increasing the penalties applicable to contraventions of the criminal offences under Part 5.8A of the Corporations Act;

introducing a new civil penalty for entering into a transaction that is likely to avoid, prevent or significantly reduce recoverable employee entitlements, with an objective test based on what a reasonable person in the circumstances would have known about the transaction; and

expanding the parties who can commence civil compensation proceedings to include the Australian Taxation Office, the Fair Work Ombudsman and the Department of Jobs and Small Business.

The amendments in Part 2 of Schedule 1 of this Bill enable the Court to make a contribution order against an entity in a corporate group or closely connected economic relationship with an insolvent company, where:

that insolvent company has unpaid employee entitlements;

the other entity has unfairly benefited from the work done by the insolvent company's employees; and

it would be just and equitable for the Court to make the order.

The amendments in Part 3 of Schedule 1 of this Bill strengthen the ability of the Australian Securities and Investments Commission to disqualify company directors and other officers (either directly or on application to the Court), where they have a track record of corporate contraventions and inappropriately using the FEG scheme to pay outstanding employee entitlements.

The reforms are the result of extensive public consultation processes conducted during 2017 and 2018. They have been developed with the Government's insolvent trading safe harbour reforms in mind and are tightly targeted to deter and punish only those who do the wrong thing by workers and taxpayers. They will not affect the overwhelming majority of companies which are doing the right thing.

The reforms build on other actions the Government has taken to protect employee entitlements, such as;

amending the Fair Work Act to protect vulnerable workers, including:

- increasing penalties up to 10 fold for serious contraventions of workplace laws,

- strengthening the Fair Work Ombudsman's investigative powers, and

- making franchisors and holding companies responsible for breaches of the Fair Work Act in certain circumstances.

providing a $20.1 million increase in funding to the Fair Work Ombudsman over four years;

establishing the inter-agency Migrant Workers' Taskforce led by Professor Allan Fels AO;

introducing legislation to tackle non-payment of the Superannuation Guarantee by targeting employers that fail to meet their superannuation obligations;

releasing draft legislation to combat illegal phoenix activities, involving the deliberate avoidance of company debts, including employee entitlements, by company operators and pre-insolvency advisers who facilitate this activity; and

legislating that a company must pay its employee entitlements when they fall due, for its directors to rely on the insolvent trading safe harbour.

The Legislative and Governance Forum on Corporations was consulted in relation to the Bill and has approved it as required under the Corporations Agreement 2002.

Full details of the measure are contained in the Explanatory Memorandum.

I am sure all those present will be keen to support the Bill and ensure these important protections for workers and taxpayers come into effect as soon as possible.

NATIONAL HOUSING FINANCE AND INVESTMENT CORPORATION AMENDMENT BILL 2018

In the 2017-18 Budget, the Government announced that it would establish the National Housing Finance and Investment Corporation (NHFIC), a new independent corporate Commonwealth entity, to operate an affordable housing bond aggregator to provide cheaper and longer-term finance for community housing providers. This was intended to ensure that Australians, particularly vulnerable Australians, have more opportunities to access affordable housing.

Prior to the NHFIC Act being passed, the Government and the Opposition worked together and committed to amendments that would ensure that the Board would have the appropriate skills to oversee NHFIC's activities and that after two years a review would be conducted on the operation of the NHFIC Act.

This Bill implements this bipartisan commitment by making explicit that the Board of the National Housing Finance and Investment Corporation must collectively have an appropriate balance of qualifications, skills and experience in a relevant field (being banking and finance, law, housing, infrastructure planning and financing, local government, and public policy), and that at least one Board member must have appropriate qualifications, skills or experience in social or affordable housing.

The Bill also provides for the statutory review of the operation of the NHFIC Act to occur after the period of two years from the commencement of the Act, rather than three.

In addition, the Government is bringing forward planned annual appropriations for the purpose of the affordable housing bond aggregator to allow NHFIC to redraw amounts repaid to the Commonwealth. The amendments ensure that NHFIC is better placed to respond to demands from community housing providers. The amendments also provide certainty over NHFIC's available finance in future years so it can commit to potential loan transactions. To facilitate this, the Bill provides for the creation of a special account for the purposes of the $1 billion line of credit appropriated to the Department of Treasury for the bond aggregator function of NHFIC.

Upon the commencement of the Bill, the $150 million already appropriated to the Commonwealth for the purpose of the affordable housing bond aggregator is credited to the special account. The Bill also appropriates the remaining $850 million of the $1 billion line of credit, which is to be credited to the special account over four years from the commencement of the Bill.

The amendments fulfil the original intent for the line of credit to be ongoing, by providing for the $1 billion to be reused and by avoiding the lapsing of any undrawn funds three years after appropriation.

This Bill will help secure and improve NHFIC who play a key part in the Government's plan to help reduce pressure on housing affordability.

Full details of the measure are contained in the Explanatory Memorandum.

SHIPPING REGISTRATION AMENDMENT BILL 2018

The purpose of the Shipping Registration Amendment Bill 2018 is to amend the Shipping Registration Act 1981 (the Act) to make minor technical changes necessary for the remaking of the Shipping Registration Regulations 1981 (the Regulations). The Bill does not alter the policy intent or effect of the Act or the Regulations.

Internationally, shipping registration and nationality is addressed in the United Nations Convention on the Law of the Sea 1982. Australia is a party to the Convention on the Law of the Sea, and the Australian Government takes these responsibilities seriously.

Shipping registration in Australia is administered under the Shipping Registration Act and the Shipping Registration Regulations. Registration on the Australian General Shipping Register and the Australian International Shipping Register enables such ships to claim and demonstrate Australian nationality when in foreign ports and places those vessels under Australia's sole jurisdiction when they are in international waters.

There are currently approximately 12,000 vessels recorded on the Australian General Shipping Register which permits ships to fly the Australian national flag or the Australian Red Ensign. We have a responsibility to the owners and operators of these ships to get shipping registration right.

The Shipping Registration Act passed into law in 1981. Since then, it has been reviewed multiple times, along with the Shipping Registration Regulations.

The most recent review of the Shipping Registration Act undertaken by the Office of Parliamentary Counsel, the Australian Maritime Safety Authority (AMSA) and the Department of Infrastructure, Regional Development and Cities identified a small number of provisions be amended in accordance with best practice drafting principles before the Regulations can be remade.

The Bill makes the following minor technical changes to the Act:

enhancing the head of power for regulations where it is unclear;

removing the requirement for the Regulations to prescribe forms for shipping registration certificates, instead allowing the AMSA to approve the forms of certificates; and

updating wording to reflect modern drafting standards.

Currently in some provisions of the Act the head of power needed to give the Regulations authority is either missing or is unclear in its wording. This Bill will correct those uncertainties by clarifying a head of power for those regulations and will also provide a head of power which provides AMSA with the capacity to act as the Authority under the Act and the Regulations.

Enabling AMSA to approve the forms of certificates will make it easier for shipping registration certificates to be updated and reduce the regulatory burden on Australian industry and will also provide AMSA with the flexibility to alter the form of a certificate to suit industry needs. This is in contrast to the current situation, where any changes to the form of certificates must be prescribed by regulation and tabled in Parliament. The proposed amendments will preserve the effect of the current regulations but will remove the requirement for forms to be prescribed by Regulation, meeting modern drafting standards and allowing regulatory flexibility.

Without these changes, the Regulations would not be remade in accordance with the Clearer Commonwealth Laws principles as advised by the Office of Parliamentary Counsel. The Australian Government is committed to making Commonwealth law clear and easy to understand, and accessible for the community. These reforms are a reflection of that commitment, and will benefit all current and future shipping registration stakeholders.

Minor technical changes to the Act are required before the Regulations can be remade. The Regulations are due to sunset on 1 April 2019. If the Regulations are not remade by 1 April 2019, there will be no mechanism by which ship owners can register their vessels in Australia, or through which transfer of ownership and registration could occur. Therefore it is imperative that this Bill be passed in a timely manner.

The Australian Government is committed to ensuring Australians can continue to register ships in Australia in a timely manner. These reforms are necessary and appropriate, and will modernise shipping registration legislation making it clearer and easier to understand for stakeholders.

I commend the bill.

Debate adjourned.

Ordered that the bills be listed on the Notice Paper as separate orders of the day.