Wednesday, 6 December 2017
Aboriginal Land Rights (Northern Territory) Amendment Bill 2017, Australian Capital Territory (Planning and Land Management) Amendment Bill 2017, Broadcasting Legislation Amendment (Digital Radio) Bill 2017, Broadcasting Legislation Amendment (Foreign Media Ownership and Community Radio) Bill 2017, Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017, Communications Legislation Amendment (Regional and Small Publishers Innovation Fund) Bill 2017, Copyright Amendment (Service Providers) Bill 2017, Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2017, Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2017, Family Law Amendment (Family Violence and Other Measures) Bill 2017, Family Law Amendment (Parenting Management Hearings) Bill 2017, Great Barrier Reef Marine Park Amendment (Authority Governance and Other Matters) Bill 2017, National Broadcasters Legislation Amendment (Enhanced Transparency) Bill 2017; Second Reading
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 speeches read as follows—
ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) AMENDMENT BILL 2017
It is my pleasure to introduce Aboriginal Land Rights (Northern Territory) Amendment Bill 2017 (Bill) to the chamber.
The Bill demonstrates the Government's commitment to recognising traditional Aboriginal ownership of land and to finalising land claims in the Northern Territory which have remained unresolved for decades.
It delivers on the Government's election commitment to resolve outstanding Aboriginal land claims in the Northern Territory and to work with Indigenous land owners to ensure their land rights deliver the economic opportunities that should come from owning your own land.
This Bill also gives practical effect to our commitment to working in partnership with Indigenous Australians.
The Government is committed to the recognition of Indigenous land through statutory land rights and native title and we are working with traditional owners and land councils to make sure these are resolved as soon as possible.
The Bill adds areas subject to four traditional land claims in the Kakadu region of the Northern Territory to Schedule 1 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Land Rights Act) so that the land can be granted as Aboriginal land. It also provides for the leaseback of that land to the Director of National Parks (Director).
The Bill also adds land that was subject to a successful native title application in the Roper River region of the Northern Territory to Schedule 1 of the Land Rights Act so that the land can be granted as Aboriginal land. Scheduling of the land is consistent with the terms of the Township of Urapunga Indigenous Land Use Agreement executed by the native title parties and the Northern Territory Government.
The four land claim areas in the Kakadu region comprise approximately 50 per cent of Kakadu National Park (Park).
Title to the majority of that land is held by the Director, a Commonwealth statutory office holder. Smaller land parcels subject to the land claims are Crown land held by the Northern Territory and Commonwealth.
The balance of the land in the Park is already Aboriginal land and leased to the Director by the Aboriginal Land Trusts which hold title.
The land claims were lodged between 1984 and 1997. While they remain unresolved there are statutory limitations on dealing with the land. This has constrained potential developments in one of Australia's iconic tourism destinations and added a layer of complexity to the joint management arrangements in place between traditional Aboriginal owners and the Director.
The parties to the land claims have agreed to settle on the basis of the land being scheduled for grant as Aboriginal land, subject to immediate leaseback to the Director of as much of that land as is required to continue to form part of the Park.
The Director is not the Crown for the purposes of the Land Rights Act in its current form and that would prevent the land from being granted after it is scheduled.
The Bill amends the Land Rights Act to allow deeds of grant for the land to be delivered to Aboriginal Land Trusts and to take effect despite the interests of the Director.
The Bill also repeals certain existing provisions of the Land Rights Act relating to land descriptions in the Kakadu region that will be made redundant by adding the relevant land to Schedule 1.
The grants of these areas of land is supported by stakeholders including the Northern Territory Government, Northern Land Council and other local stakeholders.
I commend the Bill to the chamber.
AUSTRALIAN CAPITAL TERRITORY (PLANNING AND LAND MANAGEMENT) AMENDMENT BILL 2017
Today I introduce into Parliament a Bill to improve the ability of the National Capital Authority—the NCA—to look after the Commonwealth interest in Canberra as our capital city.
This Australian Capital Territory (Planning and Land Management) Amendment Bill 2017 will strengthen governance arrangements for the NCA.
The NCA is a statutory authority that manages the Commonwealth's interests in the capital, especially through planning and the management of major Commonwealth assets in nationally important areas.
The purpose of this Bill is to improve the governance, transparency and oversight of NCA activities by enhancing the role of its Authority—in effect, the NCA Board. Currently, the Accountable Authority for the NCA under the Public Governance, Performance and Accountability Act 2013 (the PGPA Act) is its Chief Executive alone.
Currently, the Authority lacks any prescribed corporate management responsibilities, including oversight of the NCA's finances. With the exception of planning decisions, members of the Authority have a role that is principally advisory.
There is a need for a reformed corporate structure that provides greater transparency and accountability. This would also provide the Chief Executive and the Minister with the level of support they require.
The Bill therefore amends the Australian Capital Territory (Planning and Land Management) Act 1988 to establish the Authority as the accountable authority under the PGPA Act. It also empowers the Authority to provide the Chief Executive with specific directions in relation to the operation of the NCA.
The Chief Executive will remain the head of the agency under the Public Service Act 1999. While the Authority would take on a greater role in oversighting corporate management, most day-to-day operations would still be handled by the Chief Executive. The Chief Executive will continue to have a close working relationship with the Authority by remaining an Authority member.
The Bill also clarifies some provisions of the legislation, such as by confirming that Ministerial directions to the Authority are legislative instruments. It includes minor updates to ensure that the PALM Act is consistent with current practice on public sector governance. It makes all Authority members officials of the NCA so as to engage PGPA Act provisions on the duties of officials, notably care and diligence.
There will be no changes to the NCA's basic functions, including concerning the planning of Canberra.
The Bill will ensure that the NCA continues to operate efficiently and effectively in planning and managing the national capital. It will do so by enabling the NCA to operate in way more consistent with the Government's expectations of a modern agency.
I call on both Houses to show bipartisan support for the Bill and its non-controversial measures.
With this, I commend the Australian Capital Territory (Planning and Land Management) Amendment Bill 2017.
BROADCASTING LEGISLATION AMENDMENT (DIGITAL RADIO) BILL 2017
The Broadcasting Legislation Amendment (Digital Radio) Bill 2017 continues the Government's commitment to a more streamlined regulatory framework for digital radio. These amendments to the Broadcasting Services Act 1992 and the Radiocommunications Act 1992 (Radcomms Act) further simplify digital radio processes. This includes efficiencies across the planning, licensing and allocation processes making for a more efficient rollout of digital radio services in regional Australia.
This government remains committed to removing unnecessary and outdated regulations that hamper the industry from delivering what audiences want. The reform agenda requires continuous effort. Small improvements such as these, over time, will provide a cumulative benefit to industry and consumers. The Bill makes a modest but welcome contribution in this regard.
Digital radio is now recognised as an important component of Australia's broadcasting landscape. In the decade since it was legislated, digital radio is now available in all Australian mainland state capital cities—Adelaide, Brisbane, Melbourne, Perth and Sydney—and planning is being undertaken for permanent digital radio services in Canberra, Darwin and Hobart.
Digital radio is being introduced to Australia in a staged way. Commercial radio broadcasters are the key driver in providing digital radio services in new areas, by targeting those areas where they are most likely to be commercially viable. Digital radio remains a supplementary part of the many broadcasting services available to Australians and the Government does not consider a switchover program to be appropriate. The Government also considers it important that the radio broadcasting industry remain the key driver in the rollout of digital radio into regional Australia. Nonetheless, the Government recognises that it still has a role to play in ensuring that any legislative or regulatory impediments to introduction of digital radio into regional Australia are removed and that the digital radio regulatory regime is working efficiently.
The Government acknowledges the ongoing work of industry members of the Digital Radio Planning Committee for Regional Australia. This Committee, which is chaired by the ACMA, was established following a recommendation of the Digital Radio Report tabled by this Government in July 2015. Committee members include the Department of Communications and the Arts, the Australian Broadcasting Corporation, the Special Broadcasting Service, Commercial Radio Australia, the Community Broadcasting Association of Australia and the Australian Competition and Consumer Commission. The Committee has become a critical forum for industry, the regulator and Government to plan the future rollout of digital radio in regional Australia. Some of the digital radio issues being addressed in this Bill are a direct result of discussions at the Planning Committee. All the measures in the Bill are supported by Committee members.
The Bill intends to assist industry to expedite the rollout of digital radio to regional Australia. The Bill shortens several legislatively prescribed timeframes and removes unnecessary or redundant steps in the digital radio planning and licensing processes. Doing this reduces the overall time and cost for commercial broadcasters who want to rollout digital radio to viable regional markets. These benefits also extend to the community and national broadcasters.
Furthermore, it is important to recognise that radio broadcasters, whether they are located in metropolitan or regional markets, need to be more innovative and responsive to changes in audience demand and listening patterns. While this is a matter for the broadcasters themselves, the Government does have a role to play in ensuring the regulatory arrangements reflect the realities of the 21st century broadcasting market.
As part of this role, the Government is also introducing a measure in the Bill that will implement measures to clarify the calculation of digital radio excess capacity entitlements in the Radcomms Act. At present, there is the potential for existing excess capacity entitlements to be extinguished by later excess capacity allocations on foundation multiplexes. The Government considers this is not fair to the digital radio broadcasters who acquired excess capacity by allocation or competitive auction. The proposed measures aim to clarify that existing excess capacity entitlements allocated to content providers are considered when determining new excess capacity allocations. This will provide certainty to content providers on their existing excess capacity entitlements on foundation digital radio multiplexes, as well as other parties seeking access to excess capacity entitlements.
The Bill represents a necessary step in facilitating the rollout of digital radio to regional Australia.
BROADCASTING LEGISLATION AMENDMENT (FOREIGN MEDIA OWNERSHIP AND COMMUNITY RADIO) BILL 2017
Australia's media industry is under sustained and significant pressure, as digital technologies upend established business models and intensify competition for audiences and revenue.
In October 2017, the Government secured passage of legislation that will enable Australia's media companies to deal with these challengers and better compete in what is now a global media environment.
The Broadcasting Legislation Amendment (Broadcasting Reform) Act 2017 and the Commercial Broadcasting (Tax) Act 2017 implemented a number of the key measures of the Government's Broadcasting and Content Reform Package: the abolition of broadcasting licence fees; the introduction of a charge on spectrum more reflective of its value; and changes to the anti-siphoning scheme and list.
These are important initiatives that modernise broadcasting and content regulation and will improve the sustainability of Australia's media industry. But they don't mark the end of the reform program, and there is more work to be done.
The Broadcasting Legislation Amendment (Foreign Media Ownership and Community Radio) Bill 2017 implements two measures developed as part of the passage of the media reform bills.
The first is the establishment of a Register of Foreign Ownership of Media Assets (Register), to be overseen and administered by the Australian Communications and Media Authority (ACMA). The Register will enhance the transparency of foreign investment in Australian media companies and the levels and sources of such investment.
The second measure relates to applications for community radio broadcasting licences. The Bill will introduce a new 'local content' criterion that the ACMA can consider in assessing such applications, giving applicants the opportunity and incentive to deliver more localised content.
I now turn to each of these measures.
Foreign investment plays an important role in the Australian economy and is a key source of funding for Australian media companies. Despite this, there are few sources of information on this type of investment. Existing regulatory frameworks, including the disclosure obligations applicable for entities listed on the Australian Securities Exchange, don't identify foreign investors, and there is no information about investment in privately held media companies.
From a public policy perspective this represents a significant information gap. The media has the unique ability to set news agendas and the context in which important issues are analysed and discussed. In turn, this allows the media to inform and shape community views on social, economic, and political issues.
There is a strong case to ensure foreign investment in the Australian media is better understood, and the Register proposed in this Bill will achieve this outcome. It will ensure that the Australian public is not left in the dark about the levels and sources of foreign investment in Australian media companies.
Under the Register, foreign persons will be required to notify the ACMA of any interests in regulated Australian media companies—commercial television, commercial radio and associated newspapers—where those interests exceed two and a half per cent.
The main reporting obligations will be annual, at the end of each relevant financial year, along with any circumstance where a person becomes, or ceases to be, a foreign stakeholder for the purposes of the Register. A foreign person must report their interests within 30 days of the end of the financial year, or the change in their status as a foreign person, as applicable.
The details to be published on the Register will be limited to the foreign stakeholder's name and country of residence (for individuals), or the place of incorporation or formation for companies and trusts. Published information will also include the relevant interests in the media company, and the reason that the investor is a foreign person.
Importantly, there will be protections in place to prevent the disclosure of commercially sensitive information. Foreign stakeholders will not be required to disclose sensitive information as part of the Register. However, if they do, the ACMA will be prohibited from publishing such information where it would materially impact the interests of the person.
Although foreign stakeholders that are individuals will be required to disclose some personal information, for administrative and identification purposes, only their name and ordinary country of residence will be published on the Register.
The reporting provisions established through the Register will be civil penalty provisions, and also designated infringement notice provisions. If a foreign person fails to comply with these reporting requirements, then the person may be liable for an administrative penalty.
At the end of each financial year, the ACMA will present a report to the Minister, setting out the interests held by foreign stakeholders in Australian media companies. The ACMA will also have the opportunity to identify and comment on foreign investment trends, which will assist future Government decision making in the media industry.
The Register will complement existing regulatory frameworks governing foreign investment in Australia. It draws on key terms from the Foreign Acquisitions and Takeovers Act 1975, such as 'foreign government', 'foreign government investor', 'foreign person', and 'ordinarily resident'. It is also modelled, to an extent, on the National Register of Foreign Ownership of Water Entitlements, particularly in terms of the timing for disclosure and the type of information that foreign persons would need to supply.
As a whole, the Register will provide greater transparency regarding foreign investment in the Australian media, while minimising the impost of a disclosure obligation on industry.
I now turn to the second measure in the Bill, which amends the criteria for allocating and renewing community radio licences.
When assessing an application for a community radio broadcasting licence, the ACMA will now be required to specifically consider the extent to which the applicant will provide material of local significance. Material of local significance is defined as material that is produced or hosted in the relevant licence area, or relates to the licence area.
This measure builds on the natural strengths of community radio and will encourage
broadcasters to consider how they can boost local participation in creating programs, or how they can provide more coverage of topics and issues that are relevant to their local communities.
Material of local significance would be given the same priority as the existing criteria for licence allocation decisions under the Broadcasting Services Act1992. This will provide the ACMA with appropriate discretion to weigh up the relative strengths and weaknesses of different applicants.
This is important, as community radio services are highly varied and represent a diverse range of community interests. This measure will encourage localism in a way that takes these differences into account, and does not disadvantage services that meet particular community needs.
The measures contained in this Bill represent the next steps in the Government's commitment to implementing holistic reform to the Australian media industry.
I commend the Bill to the Chamber.
COMMUNICATIONS LEGISLATION AMENDMENT (ONLINE CONTENT SERVICES AND OTHER MEASURES) BILL 2017
The Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017 amends the Broadcasting Services Act 1992 and other legislation to introduce a new regulatory framework to regulate gambling promotions on online content services. The Bill will also establish a regulatory mechanism that can be used to apply the new gambling promotions restrictions to broadcasting services if necessary.
The Government has listened to community concern about the scheduling and quantity of gambling promotions shown during live sporting events, particularly in the context of its impact on child audiences.
In response to this, the Government's Broadcast and Content Reform Package included new community safeguards in the form of additional restrictions on gambling promotions shown or broadcast during live sporting events in children's viewing hours. Importantly, the Government determined that these new restrictions should apply across commercial free to air television, the Special Broadcasting Service, subscription television, commercial radio and online content services.
The additional restrictions will prohibit all gambling commercials and promotions during live coverage of sporting events, from five minutes before the scheduled start of play to five minutes after the conclusion of play. It is intended that under rules made by the Australian Communications and Media Authority (ACMA), the restrictions will apply between the hours of 5:00am and 8:30pm.
The restrictions will apply to all audio and audio-visual live coverage of sports. The types of gambling promotions covered will include advertising, sponsorship announcements and promotional content. The Government intends that the new restrictions will be in effect across all platforms by 30 March 2018.
The restrictions will be applied to broadcast services via changes to their industry codes of practice. As no equivalent industry arrangements exist for online content services, this Bill will amend the Broadcasting Services Act to establish a flexible, fit for purpose regulatory framework that can be used to apply the gambling promotions restrictions to online content services.
The gambling promotions reform will mean that, for the first time, broadcast-like program standards will be applied to online content services.
This Bill, once enacted, will add Schedule 8 to the Broadcasting Services Act. Schedule 8 is an enabling framework that will allow the ACMA to make service provider rules which regulate gambling promotional content shown on online content services in conjunction with live coverage of a sporting event.
The online content service provider rules will be a legislative instrument for the purposes of the Legislation Act2003, and subject to parliamentary scrutiny and disallowance.
A key objective of the policy reform is for, to the extent possible, the same restrictions to apply to broadcast, subscription and online providers. It is intended that the online content service provider rules will be similar to existing code-based gambling promotions restrictions that apply to broadcast services.
Schedule 8 provides that the ACMA may make rules regulating or prohibiting gambling promotional content provided on online content services in conjunction with live coverage of a sporting event.
Under Schedule 8 an 'online content service' is one that delivers, or allows the public to access, content using the internet, where the service has a geographical link to Australia.
A service will have a geographical link to Australia if an ordinary reasonable person would conclude that the service is targeted at individuals who are physically present in Australia or, any of the content provided on the service is likely to appeal to the public, or a section of the public, in Australia. In addition, for the service to be subject to online content service provider rules, the end user must be physically present in Australia.
Consistent with Government policy, under Schedule 8, gambling promotional content will be taken to be 'provided in conjunction with live coverage of a sporting event' where it is provided in the period beginning five minutes before the start of play and concluding five minutes after the conclusion of play.
Where the content consists of promotions of betting odds by match commentators, or the appearance of representatives of gambling firms at or around sporting venues, these time thresholds are extended to 30 minutes before and after play. This reflects the existing rules in broadcast codes of practice. It will also allow the online content service provider rules to better protect the community from the potential adverse effects of gambling promotions which link sports personalities and gambling products.
Consistent with broadcast codes of practice, 'live', in relation to coverage of a sporting event, would include both real time and delayed coverage where the delayed coverage is provided as if it were live and begins no later than the conclusion of the sporting event. However the Bill also provides that a program can no longer be considered live, for the purposes of the rules, once the sporting event has concluded.
The term 'sporting event' is defined to include the Olympic Games, Commonwealth Games, and other similar games. Given that new kinds of sporting events are constantly emerging, the online content service provider rules may also, for certainty, provide that particular events are, or are not, 'sporting events' for the purposes of Schedule 8. The term 'sporting event' otherwise has its ordinary meaning.
The Government recognises that there are a range of online content services, with different business models and technical characteristics, and that the online content service provider rules will not need to regulate all online content services.
Accordingly, rules made under Schedule 8 will not apply to simulcast services—that is, services that do no more than simultaneously stream a broadcast service that is already subject to code based gambling promotions restrictions. This prevents such content from being subject to two separate regulatory regimes.
Schedule 8 will also empower the ACMA to determine that a specific online content service or online content service provider is exempt from the rules. A refusal to make, as well as a decision to vary or revoke, an individual exemption determination, will be subject to merits review by the Administrative Appeals Tribunal.
In addition, Schedule 8 will empower the ACMA to, by legislative instrument, determine that online content services or online content service providers included in a specified class are exempt from the online content service provider rules.
In terms of compliance and enforcement, it is anticipated that investigations of potential breaches of the online content service provider rules will, as is the case with broadcasting codes of practice, be largely complaints driven. The online content service provider rules may also require relevant online content service providers to keep records that will allow the ACMA to ascertain whether they have been complying with the rules.
Schedule 8, in conjunction with existing provisions in the Broadcasting Services Act, sets out the mechanisms that may be used to enforce compliance with the online content service provider rules, including infringement notices, civil penalties and remedial directions. The Government does not consider that criminal penalties are appropriate sanctions for breaches of online content service provider rules, and I note that breaches of broadcast industry codes of practice do not, of themselves, result in potential criminal penalties.
As noted earlier the Bill also includes a regulatory mechanism that can be used to apply the new gambling promotions restrictions to broadcasting services should industry codes of practice not be amended in time. I can report that broadcast sectors are working closely with the Government and the ACMA to ensure that their codes are appropriately amended and I anticipate that the Government will have no need to mandate these important restrictions. I am grateful for the constructive engagement of broadcast sectors to date.
In conclusion, this enabling legislation, which provides increased powers to the regulator and helps ensure a more consistent approach to regulating gambling promotional content across platforms, will send a clear message to the public that the Government is committed to implementation of its policy to enact additional restrictions on gambling promotions.
The announced gambling promotions restrictions will establish a clear safe zone during which parents and caregivers may have confidence that children will not be exposed to gambling promotions by viewing live sports events.
I commend the Bill to the Chamber.
COMMUNICATIONS LEGISLATION AMENDMENT (REGIONAL AND SMALL PUBLISHERS INNOVATION FUND) BILL 2017
In October this year, the Parliament passed a landmark package of reforms that will modernise broadcasting and content regulation and improve the sustainability of Australia's media industry. A number of additional measures were developed as part of that process and this Bill, the Communications Legislation Amendment (Regional and Small Publishers Innovation Fund) Bill 2017, establishes the legislative framework for one of those measures.
The Regional and Small Publishers Innovation Fund will assist regional and small publishers to transition, compete and innovate more successfully in a changing media environment. These news providers are operating under acute and sustained pressure. The business models that have traditionally supported journalism, particularly those funded by advertising revenue, are being challenged, and the need to adapt successful subscriber and other revenue models is proving especially demanding for smaller publications.
The Bill will amend the Broadcasting Services Act 1992 (BSA) to establish the legislative framework for the Regional and Small Publishers Innovation Fund. The Fund will provide $16.7 million in grants each year from 2018-19 to 2020-21, via a competitive application process, to assist small and regional publishers adapt to the challenges of providing quality news content in a digital media environment.
The Bill establishes the legislative authority for the Australian Communications and Media Authority (ACMA) to administer the Fund. It will require the ACMA to enter into an agreement with each funding recipient, specifying the terms and conditions of the grant, before making any payments, and will require the recipient to spend the funding on activities that relate to the newspaper, magazine or periodical or online content service.
The Bill will also allow the Minister for Communications to establish a Committee to provide advice to the ACMA in its administration of the Fund, including its assessment of applications for grants. It is expected that the Committee will comprise members who have significant experience with news, journalism, and other media-related content and will include, as a minimum, a representative from each of the Australian Press Council, the Walkley Foundation and Country Press Australia. The ACMA will be required to have regard to any advice provided by the Committee in exercising its powers under the Fund, although this won't limit the matters to which the ACMA may have regard.
The Bill will require the ACMA to include in its annual report the details of the name of each recipient of one or more grants of financial assistance, the total amount of those grants, and any advice given during the financial year to the ACMA by the Committee. This will ensure full transparency in relation to the oversight of the Fund and the decisions made by the ACMA to provide grants to publishers.
The Fund complements the core components of the Government's Broadcasting and Content Reform Package by fostering an adaptable and sustainable Australian media industry. Journalism that investigates and explains public policy and issues of public significance is critical for our democracy. But its provision is under challenge by a changing media environment. The Fund will assist Australian publishers, particularly smaller publishers and those operating in regional areas, to transition their businesses to the new operating environment, and continue to provide news content that informs and engages Australians across the country.
I commend the Bill to the Chamber.
COPYRIGHT AMENDMENT (SERVICE PROVIDERS) BILL 2017
There are significant opportunities in the digital environment for improving the way we provide educational services, provide services to people with a disability, and promote cultural and historical experiences in Australia. Many of these opportunities, however, may put Australia's educational and cultural institutions and organisations assisting people with a disability at a high risk of copyright infringement. There is a balance to be struck between encouraging the development of new and innovative services for the benefit of all Australians, and ensuring that Australian creators can retain control and derive value from their copyright protected material. Ensuring respect for the creative efforts and economic rights of creators is an ongoing challenge for all participants in the digital environment. Extension of the safe harbour scheme to service providers in these sectors will provide greater certainty to educational and cultural institutions and to those organisations assisting people with a disability about their responsibilities in engaging in the online space.
The current safe harbour scheme in the Copyright Act 1968 was introduced following the commencement of the Australia-United States Free Trade Agreement in 2005. The scheme in the Australia-United States Free Trade Agreement was intended to provide an alternative to court proceedings for copyright owners where their infringing material is hosted, cached or linked to by a service provider or where a provider's network services are used to infringe copyright. It sets out conditions that a service provider must comply with, including in some situations, taking down infringing material or removing links to infringing material when they have been notified of a suspected infringement by a copyright owner. When the scheme was originally implemented in Australia, it was restricted only to carriage service providers—or providers of telecommunications services (such as Internet Service Providers) as they are more commonly known. This cautious approach was taken because the Internet was still in its infancy.
This Bill, through the extension of the existing safe harbour scheme, will ensure that a greater range of service providers can work with copyright owners to effectively protect copyright material, without recourse to litigation. The extended scheme enabled by this Bill will apply the safe harbour provisions to educational institutions such as universities and schools as well as libraries, archives, museums and organisations assisting people with a disability. Where these additional service providers comply with the requirements of the safe harbour scheme, including the operation of a 'notice and take down system', their liability for monetary remedies will be limited.
The education, cultural and disability sector generally take a very risk averse approach to protecting and managing the copyright of others. Many of the institutions and organisations who, under this Bill, will be covered by the safe harbour scheme already comply with the requirements of the scheme, and actively work with copyright owners to remove or disable access to infringing material residing on their systems or networks or to take action against repeat infringers. In doing so they dedicate a significant amount of resources on their processes. Yet they still remain potentially liable for the infringement of their users which is beyond their active control.
The Bill will reduce the potential exposure of these sectors to legal liability for authorising copyright infringement when third parties use their networks or services in a way that breaches copyright. This amendment will provide certainty to a group of institutions and organisations which provide services that are in the public interest and will support them in being more innovative in the online environment. This will therefore encourage these institutions and organisations to create and deliver enhanced online services for all Australians.
Copyright owners will benefit from the extended scheme as it will provide them with a consistent mechanism for working with those organisations covered by the Bill to address copyright infringement on a broader scale, rather than having to pursue each and every individual who infringes copyright online.
Earlier this year the Government introduced and passed the Copyright Amendment (Disability Access and Other Measures) Act 2017 which was the result of a collaborative effort between rights holders, the education and cultural sector and the disability sector. The passage of the Disability Access Act was an important step in simplifying and modernising the Copyright Act 1968 in response to specific challenges and concerns identified by rights holders and those sectors of the community. This Bill now builds upon the effective working relationship that already exists between these sectors and copyright owners as a result of the Disability Access Act.
Users of these institutions and organisations' services will also have additional protection under the safe harbour scheme. The changes will give users a clear process for ensuring that where their material is removed from the institutions or organisations' systems or networks, in line with a notice under the safe harbour scheme, it can be reinstated when the user can demonstrate the material is not infringing. This will ensure, for example, that students and researchers can protect their legitimate use of copyright material in online forums.
The Government has made the decision to make this incremental expansion of the safe harbour scheme, so that it can continue to consult on how best to reform the scheme to apply to other online service providers in the future. In Australia, the expansion of the safe harbour provisions has been reviewed in six separate government reviews over a period of more than ten years. Each of these reviews called for submissions from the public. The Productivity Commission's 2016 review of Australia's Intellectual Property Arrangements was the most recent of these reviews and it recommended that the scheme be extended to all online service providers.
The Government is, however, aware that a blanket extension of safe harbour remains a highly contested reform. This is why we chose to undertake further consultation this year. The consultation demonstrated the full spectrum of views from complete support to strident opposition. Both sides are worthy of a full examination. The Government has appreciated the open and frank dialogue that we have had with representatives from both sides.
On the one hand we have heard that extending safe harbour would encourage piracy, contribute to the gap in revenue between subscription and ad based content services, and remove the ability for rights holders to seek licence revenue from online services. Of particular concern have been scenarios in which service providers derive profit from the infringing activities of their users. There are also strong concerns that the current conditions in the safe harbour scheme are no longer effective in addressing infringement and that they need to be reconsidered to ensure they promote a collaborative and supportive online environment.
On the other hand we hear that Australia has legal uncertainty about the extent to which service providers can be liable for the actions of their users, which has a chilling effect on innovation. Service providers, who in many cases perform the same role as a carriage service provider, have pointed out that they are the ones that have no protection and that this makes Australia uncompetitive compared with other countries who have a safe harbour scheme. Internet users and service providers alike have argued that safe harbour provides a simple non-court based option to address infringement on the internet which should be a good thing for the creative sector.
The worst outcome would be for the Government to inadvertently impact on rights holders' ability to realise returns on their creative and financial investments. Australia has thriving creative industries whose work contributes enormously to our economy and our cultural life. The Government is trying to achieve an environment that encourages innovation, but does not want to do that at the expense of a vibrant cultural and arts sector and the thousands of Australians it employs. At the same time the Government recognises that there are many institutions and organisations that operate in the public interest of all Australians and there are actors on the internet who are trying to build a robust and innovative Australian digital economy.
So far, opposing parties have been unable to meet in the middle of this protracted debate. So this Bill starts the process of safe harbour reform by responding to where there is broad consensus and extending the scheme to a group of institutions and organisations that all agree are responsible players in the copyright space.
The current Australian safe harbour scheme, which this Bill will extend, is governed by procedural provisions in the Copyright Regulations 1969. These Regulations provide the additional details about exactly how the safe harbour scheme works including: how industry codes must be developed, how notifications and notices should be issued and received, and the procedures for notice and takedown of infringing material. As part of the Department of Communications and the Arts review of the sunsetting Copyright Regulations 1969, over the past six months stakeholders have had an opportunity to indicate how these provisions might be updated. Shortly, the Government expects to remake these Regulations in largely the same form as their sunsetting version, save for some further enhancements to give effect to provisions contained in the Copyright Amendment (Disability Access and Other Measures) Act 2017. However, the passage of this Bill will require some further updates to the Regulations.
Therefore, in early 2018 the Government will release an Exposure Draft of amending Regulations to facilitate the extension of the safe harbour scheme for consultation prior to passage of this Bill. The Government will focus on ensuring that the mechanics of Australia's safe harbour scheme, contained within the Regulations, operate effectively in Australia's digital environment for copyright owners and the broader range of service providers defined in this Bill.
The Government will continue to work with stakeholders to find a way to further extend the safe harbour scheme in a way that allows Australian businesses to harness the significant opportunities of the growing digital economy while ensuring respect for the creative efforts and economic rights of creators. The Government is confident that through this staged approach it can find a way to provide a practical and responsive safe harbour framework that operates effectively in the Australian environment.
CRIMES LEGISLATION AMENDMENT (COMBATTING CORPORATE CRIME) BILL 2017
The Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2017 will amend the Criminal Code and the Director of Public Prosecutions Act 1983 to enhance the tools available to law enforcement to tackle corporate crime.
Corporate crime is estimated to cost Australia $8.5 billion every year. It hurts business, it hurts Australia's international reputation and it hurts our economic wellbeing.
The opaque and sophisticated nature of corporate crime can make it difficult to identify and easy to conceal. Investigations into corporate misconduct can be hampered by the need to process large amounts of complex data, and evidence may be held overseas. Court proceedings can be long and expensive, particularly against well-resourced corporate defendants.
The measures in the Bill seek to address these challenges.
The Bill will remove undue impediments to the successful investigation and prosecution of foreign bribery. Foreign bribery is an inherently challenging crime to investigate. The OECD has reported that, across all parties to the OECD Anti-Bribery Convention, it takes an average of 7.3 years to conclude foreign bribery cases.
The offence in its current form poses challenges for typical foreign bribery cases. Prosecutions can also be hampered where evidence is held offshore and where bribes are disguised as legitimate payments.
The Bill will address these issues by expanding and clarifying the scope of the foreign bribery offence.
Under the foreign bribery offence as currently drafted, the prosecution needs to show that both the bribe and the business advantage sought were 'not legitimately due'.
This presents challenges where bribes are concealed as legitimate payments (for instance, agent fees).
The Bill replaces the requirement that the bribe and the advantage sought be 'not legitimately due' with the concept of 'improperly influencing' a foreign public official. This better reflects the conduct of foreign bribery. The Bill also amends the definition of 'foreign public official' to include candidates for public office.
The Bill also broadens the scope of the foreign bribery offence to encapsulate bribery conducted to obtain any advantage, such as a personal advantage, rather than requiring that the bribery be perpetrated to achieve a business advantage. This reflects law enforcement experience that bribes can include the bestowal of personal honours or the processing of visa requests.
The Bill further removes the existing requirement that, for the offence to be established, the foreign public official be influenced in the exercise of their official duties. The Bill also clarifies that the offence does not require the accused to have had a specific business or advantage in mind, and that the business or advantage can be obtained for someone else.
The Bill also introduces a new corporate offence of failure to prevent foreign bribery. This new offence will apply where an associate of a body corporate has committed bribery for the profit or gain of the body corporate. However, the offence will not apply if the body corporate can demonstrate that it has 'adequate procedures' in place to prevent the commission of foreign bribery by its associate.
The United Kingdom has successfully used a similar offence to prosecute companies in several foreign bribery cases.
The Bill will also implement a Commonwealth Deferred Prosecution Agreement (DPA) scheme.
The DPA scheme will bolster cooperation between law enforcement agencies and the business community to uncover and deal with corporate crime, and provide a new tool for holding offending corporations to account.
DPAs have been used to tackle corporate crime with significant success in both the United Kingdom and the United States.
Under the DPA scheme, the Commonwealth Director of Public Prosecutions will be able to invite corporations suspected of certain serious corporate criminal offences to negotiate an agreement to comply with a range of specified conditions. If the corporation fulfils its obligations under the DPA, it will not be prosecuted for the offences specified in the DPA.
Because the purpose of the DPA scheme is to tackle corporatecrime, a DPA will only be available with respect to one or more of the serious corporate offences specified in the Bill. These offences are often difficult to detect, investigate and prosecute, and include offences relating to foreign bribery, false accounting, dealing with proceeds of crime, money laundering and dishonest conduct, as well as sanctions offences. Under the scheme, the Director of Public Prosecutions will have the discretion to extend a DPA to also apply to additional less serious offences where it is appropriate to do so.
A DPA will not be appropriate in all cases. The scheme will provide prosecutors with an additional option in cases where a company is actively cooperating with authorities.
The DPA scheme strikes a balance between encouraging corporations to self-report misconduct, and ensuring that a DPA does not represent a 'free pass' to corporations that have engaged in serious corporate crime.
The scheme offers corporations an opportunity to avoid some of the reputational and financial costs associated with lengthy investigation and trial processes, but will typically require a party to a DPA to admit to agreed facts, cooperate with any related investigation, pay a financial penalty and implement a compliance program.
Each DPA will be assessed and approved by a former judicial officer to ensure that the DPA is in the interests of justice and that its terms are fair, reasonable and proportionate.
The DPA scheme is a new and innovative approach to combatting corporate crime, and it is important to ensure that stakeholders understand the benefits of the scheme and can inform how it works in practice. As such, the Government will consult publicly on proposed guidance material detailing how the scheme operates in early 2018.
The amendments in the Bill will strengthen Australia's implementation and enforcement of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the United Nations Convention against Corruption.
The Bill will enhance Australia's criminalisation of foreign bribery and assist in meeting our international obligations to combat corruption and related corporate criminal conduct. Through the establishment of a DPA scheme, the Bill also will provide a new tool to law enforcement to help tackle the challenges of investigating and prosecuting serious corporate offences.
This Bill demonstrates that the Government is committed to tackling corporate offending, and to protecting Australia from the corrosive effects of corporate crime.
Ordered that further consideration of the second reading of these bills be adjourned to the first sitting day of the next period of sittings, in accordance with standing order 111.
Ordered that the bills be listed on the Notice Paper as separate orders of the day.
ENHANCING ONLINE SAFETY (NON-CONSENSUAL SHARING OF INTIMATE IMAGES) BILL 2017
The Enhancing Online Safety (Non-Consensual Sharing of Intimate Images) Bill2017 implements the Government's commitment to take strong action to combat the non-consensual sharing of intimate images.
The term 'non-consensual sharing of intimate images' refers to the sharing or distribution by a relevant electronic service, a designated internet service, or social media service, of an image or video of a person or persons portrayed in sexual or otherwise intimate manner, which has been shared without consent. This behaviour is colloquially referred to as 'revenge porn' or 'image-based abuse'.
Intimate images might be obtained with or without consent of the subject and can come from a variety of different sources including recordings from hidden devices, hacking into personal electronic storage such as computers, hard drives, cloud-storage or email accounts, images shared with an individual with consent, and subsequently distributed without consent, or images doctored to falsely portray an individual.
The sharing of images can occur over various electronic services, including email, text or multimedia messaging, social media services, websites including mainstream pornography sites, message boards and forum websites, or websites specifically designed to host images shared without consent.
The reasons for non-consensual sharing of intimate images are varied. For example, it can often occur as a result of the ex-partner of a victim seeking revenge, or it can also involve acquaintances or complete strangers distributing the images either maliciously or simply because they think it might be a fun thing to do. However, in the most part, the practice is generally intended to cause harm, distress, humiliation and embarrassment, whether through the actual sharing of intimate images, or through the threat to share. Often such threats are made in an attempt to control, blackmail, coerce, bully or punish a victim. Other motives might include sexual gratification, entertainment, social notoriety and financial gain.
During the Government's consultation about this Bill we have heard that the psychological impact on victims can be significant, and can have negative implications which affect their reputation, family, employment, social relationships and even personal safety.
The need for government action
This issue is a global concern with many countries taking targeted action against this unacceptable practice. The Government recognises that the sharing of intimate images without consent is also an emerging issue of great concern here in Australia.
According to a report published in May 2017 by the Royal Melbourne Institute of Technology University, one in five Australians, one in two Australians with a disability and one in two Indigenous Australians have experienced the non-consensual sharing of intimate images.
Previously, the impacts of intimate image distribution were limited by the restrictions of the physical world. However, as noted by academics from Bond University, 'as a result of movement to the digital world, globalisation and society's reliance on technology, many more of our lifestyle activities are conducted in the digital world'. The ubiquity of internet connected mobile devices has changed the way we socialise and increased the speed and reach of information shared online.
There are existing criminal offence provisions available in relation to the non-consensual sharing of intimate images at both the Commonwealth and state level.
Under Commonwealth law, it is an offence to use a carriage service in a menacing, harassing, or offensive way (section 474 of the Criminal Code Act 1995 (Cth) (Criminal Code)). The maximum penalty for this offence is three years imprisonment and/or a fine of up to $37,800. Since 2004 there have been 927 charges proven against 458 defendants under this offence, including a number of cases in relation to image-based abuse conduct.
Victoria, New South Wales, the Australian Capital Territory, South Australia and Western Australia have criminalised this behaviour and there have already been a number of prosecutions under existing state laws including broad laws covering stalking, identity theft and domestic violence. The Northern Territory and Queensland have indicated their intentions to introduce specific criminal offences for this behaviour.
These laws do differ slightly across jurisdictions which is why the Commonwealth worked with states and territories through COAG to support a nationally-consistent approach to criminal offences relating to the non-consensual sharing of intimate images.
On 20 May 2017, the Law, Crime and Community Safety Council published the National Statement of Principles on the criminalisation of the non-consensual sharing of intimate images. Alignment on key principles is an important initiative as most offences are likely to be prosecuted at the state level.
The Commonwealth continues to work with states and territories on this issue.
Consultation on a proposed civil penalty regime
On 23 November 2016, the Government committed to consult on a proposed civil penalty regime targeted at perpetrators who share intimate images without consent and the website and content hosts that are involved.
The Government heard from a range of stakeholders including women's safety organisations, mental health experts, schools and education departments, victims and members of the Government's Online Safety Consultative Working Group.
The majority of stakeholders were broadly supportive of a civil penalty regime as it would provide victims a timely, accessible and effective means of redress not available to them through the criminal justice system. The ability to take down intimate images quickly is a primary concern of victims and support services.
Feedback from police indicates that victims are often reluctant to pursue criminal charges against perpetrators which could result in lengthy and expensive court processes, which in turn has the effect of amplifying the harm inflicted on the victim.
Enhancing Online Safety (Non-Consensual Sharing of Intimate Images) Bill 2017
The Enhancing Online Safety (Non-Consensual Sharing of Intimate Images) Bill 2017 implements a civil penalty regime for the non-consensual sharing of intimate images.
The Bill introduces a new prohibition for the non-consensual posting, or threat to post, of an intimate image on a social media service, relevant electronic service which includes images shared by email, text or multimedia messages, or a designated internet service. A designated internet service could include websites and peer to peer file services.
During the consultation process stakeholders reached consensus that the eSafety Commissioner was best positioned to administer the civil penalty regime. This would utilise existing expertise within the Office of the eSafety Commissioner and build on the eSafety Commissioner's ability to take fast, effective action to have images removed and limit further distribution with minimal additional stress to victims.
Under the civil penalty regime, a victim or someone authorised to act on behalf of the victim, can make a complaint to the eSafety Commissioner by phone, in writing or through the Commissioner's online complaints portal.
The eSafety Commissioner will have the discretion to action various enforcement mechanisms such as investigating complaints, issuing infringement notices, accepting enforceable undertakings or seeking injunctions.
The Commissioner will also be able to issue formal warnings for breaching the prohibitions and will have the power to issue removal and objection notices to both perpetrators, social media services and content hosts. The Bill will introduce a penalty of up to 500 penalty units (up to $105,000 for individuals and up to $525,000 for corporations) for a breach of the prohibition, or failure to comply with a removal notice.
National online reporting portal
On 16 October 2017, the Government welcomed the pilot launch of a new national portal for reporting instances of non-consensual sharing of intimate images. The portal is a world first government-led initiative developed by the Office of the eSafety Commissioner and provides immediate and tangible support to victims of image-based abuse.
The portal gives victims a place to seek assistance and report instances of image-based abuse. It provides clear and concise information about the practical steps victims can take to reduce the impact of the abuse.
The pilot is designed as a test platform to evaluate the volume and complexity of reports about image-based abuse. The Office of the eSafety Commissioner expects to formally launch the portal in early 2018. This civil penalty regime will complement the portal.
Industry efforts in addressing the non-consensual sharing of intimate images
I would also like to commend those social media providers and content hosts that have taken steps to address this issue through the development of acceptable use guidelines, the adoption of complaints processes and the investment in technology which removes or prevents further posting of images. Victims have benefited from industry investment and responsiveness.
The Government expects that these social media providers and content hosts will build on this good work. It is noteworthy that the Bill will not prevent victims from approaching these services in the first instance to quickly remove images, rather than the Office of the eSafety Commissioner, if they wish to do so.
The Government also recognises the strong partnerships that many social media services, content hosts, and technology companies have established with the Office of the eSafety Commissioner and envisages that these relationships will continue to be pivotal in protecting Australians against the non-consensual sharing of intimate images.
The Bill reflects the Government's ongoing commitment to keep Australians safe online.
The non-consensual sharing of intimate images is a significant issue that can have an adverse impact on victims, their families and the Australian community.
The Bill will prohibit the non-consensual posting of intimate images and the threat to post intimate images. It will empower the eSafety Commissioner with enforcement capabilities including the ability to take fast and effective action to have images removed and limit further sharing of images.
The civil penalty regime will complement existing criminal laws and provide another avenue for victims to seek assistance and redress. It will also send a clear message that in Australia, the non-consensual sharing of intimate images is unacceptable in our society.
I thank stakeholders who provided input, either through submissions or attendance at the public workshops, during the consultation process. I make special mention of those victims who opened up about their own experiences. Their stories and views were essential in the development of this Bill.
I commend this Bill.
FAMILY LAW AMENDMENT (FAMILY VIOLENCE AND OTHER MEASURES) BILL 2017
Family violence and child abuse are unacceptable and require a strong legislative response. The Family Law Amendment (Family Violence and Other Measures) Bill 2017 will enhance the capacity of the justice system to provide effective outcomes for vulnerable Australians who are experiencing family violence. In particular, the Bill will strengthen the powers of courts to protect victims of family violence, and facilitate the resolution of family law matters by state and territory courts in appropriate cases.
The Commonwealth, states and territories have made shared commitments under the National Plan to Reduce Violence against Women and their Children 2010-2022, which sets an ambitious agenda for addressing the scourge of family violence affecting many Australians. Under Action 5.1 of the Third Action Plan of the National Plan, governments have agreed to implement supported recommendations of the Family Law Council's 2015 and 2016 reports on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems. This Bill implements four of those recommendations.
The Bill also responds directly to calls for reform from Victoria's 2016 Royal Commission into Family Violence, the Australian and New South Wales Law Reform Commissions' 2010 report: Family ViolenceA National Legal Response, and the Victorian State Coroner's 2015 findings of the inquest into the death of Luke Geoffrey Batty. This Bill demonstrates the seriousness with which the Government has taken the findings of these enquiries, and its commitment to improving how the federal, state and territory justice systems help vulnerable families.
Increasing family law jurisdiction of state and territory courts
The Bill will reduce the need for families to interact with multiple courts across these systems to address their legal needs.
Currently, families are often required to navigate state or territory magistrates' courts and children's courts, and the federal family law courts. This can cause confusion, delay and prolonged exposure to risks of violence, particularly for families with complex needs such as family violence, mental health and substance abuse issues.
State and territory magistrates' courts already have a range of powers to make, vary and suspend family law orders under the Family Law Act. However, they don't always do this, and when they do, it can result in inconsistent state and federal orders. This can create uncertainty, but also increase risk, for families.
The Bill will also provide for an increased total property value, under which state magistrates' courts can hear contested family law property matters without both parties' consent. The current property value of $20 000 has not been updated since 1988. The Bill will allow a higher value to be prescribed in regulations, with the flexibility of prescribing different values for different states and territories.
Increasing this value will reduce the cost, pressure and risk for vulnerable families who are dealing with legal matters across multiple courts. State and territory magistrates' courts exercising limited property and parenting jurisdiction will enable vulnerable victims of family violence to achieve some measure of economic independence, without having to initiate separate proceedings in a family law court. This can accelerate their recovery process by facilitating earlier financial stability.
The Bill will allow relevant state and territory courts, such as children's courts, to be prescribed so that they can exercise family law parenting jurisdiction. This will provide children's court judicial officers with additional tools to make orders that support the best interests of children.
Family law orders will be a useful tool for the children's court where they can provide greater certainty to children and their carers. For example, where a matter is already before the children's court, a family law parenting order may give a protective carer, such as a grandparent, greater certainty about ongoing care arrangements for a child. It will also negate the need to institute future proceedings in a family law court.
The Government does not intend that state and territory courts become the primary fora for resolving family law disputes. The amendments in this Bill are designed to give state and territory courts greater flexibility to hear family law matters where parties are already appearing for a related state or territory proceeding. State and territory courts will retain their existing powers to transfer proceedings to the federal family law courts in the circumstances provided for in the Act.
To support this Bill, the Australian Government has funded the National Judicial College of Australia to deliver training to state and territory judicial officers about family law parenting and property matters.
Criminalisation of breaches for personal protection injunctions
Family violence is not a private matter, but a criminal offence of public concern. The Bill will reinforce this critical message by criminalising breaches of family law injunctions made for personal protection. Currently these injunctions are enforceable only by civil action brought in the family law courts. These consequences do not reflect the seriousness of family violence. The new offences will relieve the burden on family violence victims of bringing a private application for contravention of the injunction. Instead, breaches of an injunction will be enforceable by the police through criminal action, which will improve the safety of protected people under the order, including children.
The Government recognises the ongoing power and control dynamics of family violence and is committed to ensuring that the law prioritises the safety of victims. Accordingly, the Bill will prevent a perpetrator from relying on self-induced intoxication as a defence to a breach offence, and will ensure that victims cannot be charged with aiding and abetting the offence if their actions invite a breach.
Additional measures to improve the operation of the Family Law Act
The Bill will further improve the efficacy and protective function of the Family Law Act by ensuring that judges exercising family law jurisdiction do so expeditiously, and that the information children receive from a court is appropriate and would not expose them to further details of family violence. The Bill includes measures to avoid inconsistencies between family violence orders and family law orders, which can lead to confusion and increased risk for victims. It will also strengthen and codify the power of the family law courts to dismiss unmeritorious cases and proceedings that are frivolous, vexatious or an abuse of process, which will enable courts to better protect victims of family violence from perpetrators who attempt to use the family law system as a tool of continued victimisation. Lastly, the Bill will remove an outdated provision in the Family Law Act which deals with conjugal rights and marital services—concepts which are repugnant to our modern values of equality and respect within relationships.
This Bill will improve the justice system's capacity to produce timely and effective resolutions to matters involving family violence. It will respond directly to expert recommendations to address the needs of vulnerable families and support more effective interaction between the family law, and state and territory family violence and child protection systems. The measures in this Bill exemplify the Government's commitment to ensuring that the family law system will protect victims of family violence and hold perpetrators accountable.
FAMILY LAW AMENDMENT (PARENTING MANAGEMENT HEARINGS) BILL 2017
When Mum and Dad fight, children hurt. The longer the conflict, the more intense the conflict—the greater the pain suffered by the children. Research shows that it is protracted conflict that harms children, rather than family separation itself. There is also longstanding recognition of the limitations of the adversarial method for resolving family disputes; in particular, the costs, delays and inherently oppositional structure of that system, which prolongs and exacerbates conflict.
It is critical that the family law system evolve to ensure that families can access the most effective mechanism to resolve their parenting disputes. We need a framework that reduces, not exacerbates, parental conflict. Our arrangements must support families to achieve safe, fair and timely outcomes and lay the foundations for healthy co-parenting.
For this reason, in May this year, the Turnbull Government announced that it would commit $12.7 million to pilot a new forum for resolving family law disputes.
The Family Law (Parenting Management Hearings) Bill 2017 provides for the establishment of this forum—the Parenting Management Hearings Panel—a new statutory authority designed to offer self-represented litigants a more flexible and inquisitorial alternative to the court process. During the pilot phase, there will be no costs charged to families who choose to participate.
Self-represented parents represent a significant proportion of litigants who come before the family law courts, and they often face considerable challenges due to the complexity of the rules that apply, and the adversarial nature of the system. Many self-represented litigants are struggling not only with the loss and pain of family separation, but with coexisting challenges, including housing and financial stress and mental health issues.
A key objective of the Panel is to give to parents who would otherwise be in a court without legal representation the option to obtain a binding decision about parenting arrangements in a quick, fair, just, informal and economical way, all the time ensuring that decisions are made in the best interests of children and that safety is prioritised.
A key feature of the Parenting Management Hearings model is its multidisciplinary approach. The Panel will be constituted by members with specialist skills and expertise in family law, family dispute resolution, family violence, psychology, mental health and child development.
It is critical that families' situations are considered holistically and not seen predominantly through a technical legal lens. After all, family breakdown is not, fundamentally, about a legal dispute. It is about the deterioration of a relationship. The easy access to professionals who can offer a sophisticated understanding of the psychosocial dimensions of a family breakdown, and identify tools to address these, will support delivery of more nuanced and tailored services.
Many reviews and reports into the family law system have identified the need for a less adversarial approach to resolving parenting disputes. From the House of Representatives Standing Committee on Family and Community Affairs 2003 report, Every Picture Tells a Story, to the more recent report of the Family Law Council, in 2016, on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems.
Unlike the traditional adversarial system, where opposing sides assemble and present their evidence to advocate for a particular outcome, those managing the hearings will undertake inquiries and gather information to promote informed and safe outcomes for families. The rules of evidence will not apply, allowing parties to speak freely to the Panel members.
This approach will allow Panel members to investigate and focus on the information and issues most pertinent to the dispute, whilst ensuring that the process is procedurally fair, and vulnerable family members get the support they need.
Role of family dispute resolution
It is not intended that the Parenting Management Hearings Panel will replace the important role of family dispute resolution, a major innovation introduced by the Howard Government in 2006.
Families will still be required to try to resolve their disputes themselves where possible and appropriate, through family dispute resolution services, before making an application to the Panel.
As the forum is designed with self-represented litigants in mind, the Bill provides that legal representation during the hearings would be allowed only with the leave of the Panel, and be subject to any directions of the Panel.
In considering whether to grant leave to allow legal representation, the Panel must have regard to any instances of family violence between the parties, and the capacity of each party to effectively participate in the hearing. It is envisaged that legal representatives could support vulnerable parties in the hearings, including victims of family violence or parties with a disability. The intention is to ensure that these parties are assisted to present their case effectively, for the purpose of ensuring a fair hearing.
The general position that legal representation during the hearings is not allowed, does not, of course, preclude parties seeking legal advice in relation to their family law matter, and about the suitability of the Parenting Management Hearings Panel in their individual circumstances. Using legal services in this limited way may present a more cost-effective option for families than having to pay for legal services from initiation of legal action to its finalisation some years later.
Family violence and child abuse
Family violence is distressingly common among separated parents. A high proportion of matters in the family law system, and before the family law courts, involve family violence.
For this reason, it is critical that any forum established to resolve parenting disputes is equipped to identify and respond effectively to family violence.
The Bill requires that the Principal Member appointed to lead the Panel must be an experienced legal practitioner with extensive specialist knowledge and skills in family law, and in dealing with matters relating to family violence.
The Bill ensures that, in each case that comes before it, the Panel will give careful consideration to the family's individual circumstances, and will make an assessment about the capacity of the Panel to manage any safety risks for the family through the forum. The Panel will not be empowered to deal with applications involving allegations of child sexual abuse. Any application made to the Panel raising such allegations will continue be dealt with by the family law courts. The Family Court of Australia's Magellan Program provides for specific case management for matters involving serious allegations of child abuse, and ensures such cases are prioritised.
Importantly, if the Panel becomes aware of an allegation of child sexual abuse at any stage of proceedings, it will also be required to notify the relevant State and Territory child welfare agency.
The Panel will operate under an inquisitorial model, allowing Panel members to have more control over hearings, directing lines of enquiry and the focus of the hearing; and questions will be asked by Panel members, avoiding the potential for cross-examination of a victim by a perpetrator of family violence.
As part of the Parenting Management Hearings model, families will be referred to other support services, such as counselling and family violence services, to ensure that families and children are better supported at an earlier point than currently is the case, with a view to minimise the intensity and duration of conflict. This capacity is funded from the Budget commitment.
Best interests paramount
While the Bill offers a new forum for the resolution of parenting disputes, the Panel will use the legislative framework which is currently applied by the family law courts. In particular, the best interests of the child will remain the paramount consideration.
Parenting determinations made by the Panel will be enforceable by a court exercising jurisdiction under the Family Law Act, in the same way as a parenting order made by a court.
A party will also be able to appeal a decision of the Panel, on a question of law, to the Federal Circuit Court.
Subject to the passage of the Bill, it is intended that the first location of the Parenting Management Hearings Panel will commence operations in the Family Law Court Registry in Parramatta from mid-2018, and commence in a second location by the end of 2018.
Parenting Management Hearings will be a consent-based forum, and parties will be not be compelled to participate in the process.
Families in the two early pilot locations will have the option of making an application directly to the Panel as an alternative to making an application to a family law court. Parties may also be referred by a court, with their consent. In all cases, it will be a choice made by the parties themselves.
Given that the Bill provides for an innovative forum for the resolution of parenting disputes, it is critical that its operation be carefully and comprehensively evaluated, to provide a rigorous and robust evidence basis for ongoing policy and program development.
For this reason, the Bill requires that an independent review of the operation of new part IIIAAA of the Family Law Act be undertaken and finalised within three years after commencement.
The establishment of the pilot program of the Parenting Management Hearings Panel represents one of several important commitments taken by the Turnbull Government to help improve access to family law services.
It complements a range of other Turnbull Government initiatives. These include:
The Australian Law Reform Commission will be able to consider the early observations about the operations of the Panel in the context of its broad and far-reaching review of the family law system, due to report by 31 March 2019.
This Bill provides the basis for an important development in the family law system. It establishes, for the first time, a forum specifically designed for self-represented litigants, and one that draws together multidisciplinary expertise in child development, psychology, family dispute resolution, social work and family violence, as well as legal expertise. It provides an important opportunity to offer to families a holistic approach which is less prone to exacerbate conflict and which provides early access to support services.
The Bill recognises that ongoing parental conflict leads to poorer outcomes for children, washing right through their futures, impairing their educational and employment outcomes, and hampering their future ability to nurture healthy, respectful relationships as adults, including with their children. The Bill exemplifies the Government's commitment to ensuring that families are able to resolve disputes about parenting arrangements as quickly, economically and safely as possible, and in the best interests of children.
GREAT BARRIER REEF MARINE PARK AMENDMENT (AUTHORITY GOVERNANCE AND OTHER MATTERS) BILL 2017
The Bill amends the Great Barrier Reef Marine Park Act 1975 to implement a new governance model for the Great Barrier Reef Marine Park Authority. The amendments will strengthen the strategic capability and capacity of the Authority to respond to challenges facing the Marine Park.
The Authority plays a crucial role in protecting the iconic Great Barrier Reef, a World Heritage site, now and for future generations. It was established through the Actto set up and manage the Marine Park, provide advice to the Government, conduct research and provide educational, advisory and information services.
The rapidly changing ecology of the Reef drives the need to transition the focus of Marine Park management from conservation and sustainable use, to actively fostering resilience and assisting the Reef to adapt and recover. Leading and implementing this transition in Marine Park management will challenge the Authority's capacity to adapt, facilitate community debates and understanding, and coordinate management actions with other Reef related organisations.
The Australian Government remains firmly committed to protecting the Reef. Effective operation of the Authority is central to this commitment. The Reef 2050 Long-Term Sustainability Plan was established in 2015 as the centrepiece of Australia's efforts to build the resilience of the Reef. The Authority delivers key programs under the Reef 2050 plan such as the joint field management program and actions to control crown of thorns starfish.
In March 2017 the Government commissioned an independent review to determine whether the current governance arrangements continue to be the best fit to support the Authority's important and challenging work over the coming decades. The independent reviewer, Dr Wendy Craik AM, considered numerous public submissions and held more than 50 consultation meetings with individuals from relevant government, industry, community and conservation organisations.
The 2017 Review found these arrangements do not allow for sufficient strategic leadership or management commensurate with the requirements of the Authority's functions and responsibilities.
The Bill amends the Act to implement the governance arrangements recommended by the Review and accepted by the Government.
The Bill replaces the existing full-time Chairperson position with a part-time Chairperson and a full-time Chief Executive Officer, and establishes one additional part-time member position. It also strengthens requirements for the appointment and termination of members.
The Authority will continue to have responsibility for implementation of the Great Barrier Reef Marine Park Act 1975, and will be supported by the Chief Executive Officer and staff of the agency.
In addition to implementing the new governance arrangements, the Bill also makes a minor technical amendment to clarify the relationship between the suite of legislation underpinning the functions of the Authority.
The Government recognises every effort needs to be made to mitigate threats to the Great Barrier Reef and is committed to its long-term protection and best-practice management.
The Bill will ensure the Authority is best placed to meet the significant challenges facing the Reef and continue its important work with Reef users, business, research and government and non-government partners.
NATIONAL BROADCASTERS LEGISLATION AMENDMENT (ENHANCED TRANSPARENCY) BILL 2017
The National Broadcasters Legislation Amendment (Enhanced Transparency) Bill 2017, amends the Australian Broadcasting Corporation Act 1983 (ABC Act) and the Special Broadcasting Service Act 1991 (SBS Act) to require the annual reporting of employees, including on-air talent, whose combined salary and allowances are in excess of $200,000 annually.
I gave the national broadcasters an opportunity to implement this reporting measure and advised that if they did not agree I would bring forward legislation to amend the ABC Act and the SBS Act to force the obligation. The national broadcasters have advised that they will not undertake the voluntary reporting, therefore I am following through on my commitment.
This measure seeks to provide more transparency in how the broadcasters allocate Government funding in relation to remuneration for staff and on-air talent. This measure not only provides transparency in the allocation of funding but will also provide for the comparison of remuneration between male and female employees and on air-talent.
Reporting of salaries over $200,000
The national broadcasters each are required under the Public Governance, Performance and Accountability Act 2013 to prepare annual financial statements which comply with accounting standards and any other requirements prescribed by rules, as well as fairly presenting the financial position, performance and cash flow. There is however, no requirement for the national broadcasters to report on how it allocates its Government funding in the employment of high paid staff and on-air talent.
The payment of salaries and allowances in excess of $200,000 per annum is a major allocation of Government funding which should be visible to the taxpayer. The national broadcasters have an obligation to be transparent in their operations and how Government funding is allocated.
The ABC and SBS will be required to line-by-line, list the names, position, salary and allowances for employees, including on-air talent, whose combined salary and allowances brings them to over $200,000 annually.
The concept of reporting on employee salaries is not a new one. The salaries of members of parliament, ministers, judges, senior public servants and military officers all have their salaries publicly released. In addition, private companies, including commercial broadcasters are required to include similar information in annual reports, provided for under the Corporations Act 2001.
Gender pay issues
Enhanced transparency will also enable scrutiny of the extent to which the national broadcasters are meeting public expectations in relation to gender pay parity. The national broadcasters assert that no pay gap unfavourable to women exists within their organisations. That is to be commended. The additional transparency measures proposed by this Bill will ensure ongoing scrutiny and visibility to the Australian public of the performance of the national broadcasters in this regard.
The Privacy Act 1988 provides for instances where disclosure is required under an Australian law. Where the enhanced transparency measure is legislated in the ABC Act and the SBS Act, it will enable the ABC and SBS to lawfully publish personal information (such as names) of the relevant employees and on-air talent individuals.
Privacy issues are of course a concern to those who will be affected by this amendment. I appreciate that. However, taxpayers have a right to know how their money is being spent for high profile employees and on air talent. These individuals occupy significant positions of public trust and so it is reasonable to expect greater transparency of the remuneration arrangements that apply to high-earning individuals at taxpayer-funded broadcasters. I expect the national broadcasters to manage these issues appropriately.
British Broadcasting Corporation
Similarly, the British Broadcasting Corporation (BBC) publishes information in its annual report on the names of all senior executives of the BBC paid more than 150,000 pounds from licence fee revenue in that financial year. In addition, the names of all other staff of the BBC paid more than 150,000 pounds from licence fee revenue in that financial year is set out in pay bands.
Transparency in how Government funding is allocated and spent is of interest to the public. This obligation provides a more open and transparent view of our national broadcasters.
In addition, enhanced transparency will provide the public with visibility over how the national broadcasters are ensuring gender pay parity amongst their highest-earning employees.
The Bill is a responsible way to improve public visibility over how the national broadcasters allocate and spend the significant taxpayer funding which they receive each year.