Simon Birmingham (SA, Liberal Party, Parliamentary Secretary to the Minister for the Environment) Share this | Hansard source

Senator Xenophon, in relation to some of the concerns you are expressing here, I think a level of faith needs to be had in the public officials who are empowered to make sure that they are applying the spirit as well as the intent of the legislation. Clearly, the idea that just because there is a black sheep in the family somebody might be excluded is something that I cannot imagine occurring under any circumstances. The word 'associate' obviously has certain understood meanings in that regard.

One would expect that, for somebody to be deemed not a fit and proper person based on an associate, that would relate to somebody who was directly involved in their business activities and dealings and that that association had an impact on the direct trustworthiness of dealing with that consultant or business. I refer you to the explanatory memorandum, which states in relation to item 6 that:

In applying the assessment criteria to be set out in the Guidelines, it is expected that the CEO of Austrade would only form an opinion that a consultant was not a fit and proper person where there was a concern with that person’s capacity or trustworthiness to act as a consultant in the best interests of both their applicant client and the public funds from which EMDG grants are paid.

The EM is making relatively clear there the narrowing of some of the broader scope of possible applications of this that you have expressed concerns about. The only basis on which you would expect the CEO of Austrade to deem somebody not a fit and proper person via the guidelines is where that person's capacity or trustworthiness to act as a consultant in the best interests of both their client and the taxpayer was in some question. That is where we bring the detail back to in this regard.

I am advised that the department and Austrade are not aware of an unsettled or outstanding claim that dates back to 2009, as you have indicated. As I said, it is of course possible that somebody from 2009 who was at some point along the way deemed not a fit and proper person may still be aggrieved or dissatisfied by that. They may have chosen not to go with the options of appeal that are available to them. But I am advised that there has not been an outstanding matter of determination since 2009.

You highlighted that you have been provided with some information by the Export Consultants Group. I appreciate that. The government and Austrade would obviously welcome hearing their concerns in relation to any of the particular guidelines in play. But, as I noted in my concluding remarks in the second reading debate, they provided evidence to the Senate Foreign Affairs, Defence and Trade Legislation Committee on 7 June last year and indicated their broad support for a 'fit and proper person' test for consultants that aligned broadly with the test that has been in place for clients and applicants since 2004. Certainly it is our understanding that their support for the broad nature of these provisions is not in doubt. But if they have concerns about the detail of how the provisions will operate then we would be happy to work through those concerns sensibly as those provisions are finalised.

I have been given some information about the number of determinations from the department. I am advised that there have been 11 in the 10-year period since 2004-05. In that 10-year period there have been 11. That is noting that there are somewhere between 3,000 and 5,000 applications for grants per annum. So 11 businesses or individuals have been deemed not to be fit and proper persons in recent times. There was one determination in this financial year, four in 2012-13 and none, I believe, in 2011-12. In total, there have been just 11 in the 10 years of the operation of that test for applicants.