Thursday, 21 June 2007
Wheat Marketing Amendment Bill 2007
by leave—I move opposition amendments (2) to (7) on sheet 5307:
(2) Schedule 1, item 2, page 3 (line 12), omit “request”, substitute “require”.
(3) Schedule 1, item 2, page 3 (line 17), omit “Request”, substitute “Requirement to produce information and documents”.
(4) Schedule 1, item 2, page 3 (line 18), omit “request”, substitute “require”.
(5) Schedule 1, item 2, page 4 (line 10), omit “Request”, substitute “Requirement to produce report”.
(6) Schedule 1, item 2, page 4 (line 11), omit “request”, substitute “require”.
(7) Schedule 1, item 2, page 4 (after line 17), after section 5DB, insert:
5DBA Failure to produce information, documents or a report
If a person fails to produce information, documents or a report in accordance with section 5DA or 5DB, as the case may be, the person is guilty of an offence.
Penalty: (a) in the case of a natural person—600 penalty units; or
(b) in the case of a body corporate—5,000 penalty units.
I have debated these amendments substantially. These amendments replace the empowerment of the authority or the commission to request information, replacing it with the power to require the production of information. I have debated the reasons for that. With respect to amendment (7), because we would see this as being a power to compel, the failure to comply ought have a penalty. This amendment contains penalty provisions, based on the current Criminal Code penalty of $110 per unit. In our view, if we are going to have real teeth for the regulator, this is the sort of provision that is necessary. We are still unable to fathom the government’s resistance to this proposition.
Very briefly, like Senator O’Brien, I think we can all be agreed that these issues were canvassed during the question and answer session that we had previously in the committee stage. I do not seek to detail the reasons why we are opposed to the amendments any further than was previously canvassed.
That the amendments (Senator O’Brien’s) be agreed to.
I move opposition amendment (8) on sheet 5307:
(8) Schedule 1, item 2, page 6 (after line 5), after subsection 5DC(9), insert:
Presentation of report to Parliament
(9A) The Minister must cause the whole of a report presented to him or her in accordance with this section to be tabled in each House of the Parliament within 5 sitting days of that House after receiving the report.
This refers to section 5DC of the bill, which provides the minister with the power to order the regulator to conduct an investigation into matters listed in 5DC(2). There is no requirement for the minister to make such a report public, despite the fact that the minister can only request such an investigation if the minister has already determined that it is in the public interest to do so. In those circumstances, given that it is a public interest investigation, this amendment would require the minister to table such a report in the parliament within five sitting days. Simply put, if a public interest investigation is, in the view of the minister, required then it goes without saying that the minister ought to report to parliament the fact that such a request has been made and that the report on such a request be made public. I commend the amendment to the Senate.
The Democrats felt with the previous amendment that people like the ACCC, ASIC and APRA do not ‘request’ as an independent authority; they ‘require’ and that that was appropriate for this authority. That amendment now having been lost, this particular amendment asks that a report be tabled in each house of the parliament. I am a little concerned with the wording. I am not sure that the whole of a report would automatically be advisable. Traditionally, ministers have had the ability to withhold a matter. For instance, it might be commercial-in-confidence. It worries me that that discretion is not there. I also think that five sitting days is too short. But I wish to say to the shadow minister: I think you are dead right on the principle that a report be tabled within a reasonable time in the parliament.
The language used by Senator O’Brien is that there is a request, but in fact the minister must cause the whole of a report to be tabled. I thought he said the ‘request’ for a report. I may have misinterpreted what he said—
Right. His actual amendment is simply that the report presented must be tabled within five days. The reason that Senator Murray has outlined in relation to commercial sensitivities is one of the reasons why we oppose this. Also, the report may well contain other sensitive information which the minister might be referring to prosecuting authorities or other investigative authorities, and to have that document tabled within five days may well be before certain authorities even get their proper investigations underway in a full way. So we believe that, whilst we can understand what is motivating this request, I must say that the government cannot support the amendment.
I move Labor amendment (9) on sheet 5307 standing in my name:
(9) Schedule 3, item 2, page 8 (after line 21), after subsection 3AA(5), insert:
Limitation on declaration
(5A) The Minister must not make a declaration in accordance with this section unless:
(a) the Minster has caused a poll to be conducted of all growers who have paid a wheat export charge as defined in the Wheat Marketing Act 1989 since July 2002; and
(b) the poll finds that 51 per cent or more of growers are in support of declaring the specified company; and
(c) such further conditions as the Minister considers appropriate.
(5B) The poll required to be conducted by subsection (5A) is to be conducted by the Australian Electoral Commission in accordance with that Commission’s recommendations for the fair conduct of such a poll.
This is the growers’ support test. If the measures in this legislation are to be enacted in the name of the growers then surely there ought to be evidence that the growers support the measure to be enacted, in this case the very important measure of the declaration of another company as the single desk with all of the protections and the right of veto power. We have heard suggestions that there has been consultation but we have also heard clear responses which indicate that growers were not even shown this legislation and that the Grains Council were not told that they were being removed from the consultation process by the legislation. So how could we have confidence that growers would be supporting some organisation given support by the government?
This is a real test for the bona fides of the coalition, those who claim that this is done in the name of the growers. Why not give the growers an opportunity to have a say in a matter such as this? If the growers support it and if growers give such a body support, then surely that would lend the decision of the minister much more credibility. I believe that this is a fundamental provision that needs to be included in the bill and I urge the Senate to support it.
That the amendment (Senator O’Brien’s) be agreed to.
The Labor Party oppose schedule 4 of the bill in the following terms:
(11) Schedule 4, items 9 to 13, page 14 (lines 9 to 19), TO BE OPPOSED.
We oppose these items, which establish a so-called quality assurance scheme for boxed and bagged wheat. We do not oppose the provisions of schedule 4 which allow for the deregulation of boxed and bagged wheat, including related consequential amendments. The reason for opposing these provisions is that there are extensive provisions within existing legislation to ensure quality issues are effectively managed.
With the exception of the AWB, growers have unanimously supported calls for the immediate deregulation of containerised and bagged wheat. The government has failed to prosecute a case that there is market failure in terms of the quality of Australian boxed and bagged wheat exports. If our earlier amendment had been carried it would have been the best outcome, but we say that if you are going to deregulate containerised and bagged wheat then do not put in place false quality requirements which simply stymie the efforts of the sector to expand. This is not a quality assurance scheme; it is simply going to be an impost on growers who seek to use this provision. It is clearly designed to make the cost of each shipment more expensive. It has not been made clear whether each container has to have individual certification if there is a multicontainer shipment. Frankly, this industry has an excellent quality assurance program in place; they should be commended for it and not penalised, as these provisions would do. We urge the Senate to oppose these provisions in the bill.
While the Democrats are sympathetic to these arguments, we think that the government are entitled to trial the system. We just ask—and perhaps the minister can confirm this on the record—that they monitor its efficiency and efficacy to make sure it does not act as a barrier to exports, which is what the shadow minister is saying. But, on the basis of the knowledge we have at this stage, we will not oppose schedule 4.
I can confirm that the government monitors all legislation, in fact, at all times. If we see certain developments that suggest that legislation needs to be changed, I think we have been shown many, many times to be willing to change our minds and change the legislation to make it relevant to the prevailing circumstances.
I move amendment (12) on sheet 5307:
(12) Schedule 5, page 29 (after line 1), after item 54, insert:
54A After subsection 60(1)
(1A) If the Minister does not agree in writing in accordance with subsection (1), the Minister must provide a written statement of particulars and reasons specifying the ground or grounds on which agreement was not given.
(1B) A copy of the Minister’s decision in relation to consent, and the written statement of particulars and reasons, if applicable, must be supplied to:
(a) the Chairperson of the Commission; and
(b) the person who made the application to export wheat under section 57.
(1C) The Minister must cause a copy of his decision in relation to consent given in accordance with subsection (1) and a statement of particulars and reasons in accordance with subsection (1A), if applicable, to be tabled in each House of the Parliament within 5 sitting days of that House after the Minister makes a decision in relation to consent.
This provision places limits on and requires accountability for the minister’s use of the temporary veto power. This amendment requires the minister to provide a written statement of reasons if he or she chooses to use the temporary veto power conferred by section 62(2). A copy of the written statement of reasons must be supplied to the chairperson of the regulator, the person who made the application and both houses of parliament within five days of the notice.
This move would be strongly welcomed by many growers and their organisations. It is necessary to ensure that the minister is held publicly accountable for the decisions he takes in this very powerful position that the parliament confers upon him in relation to export wheat applications and to guard against cavalier decisions—particularly to guard against conflict of interest, but certainly on the basis of transparency. We do not see why the minister should not provide that information to the parliament. The minister might say, ‘Well, people may choose to supply it,’ but I would respond by saying: ‘Why should the parliament be dependent on other people to inform it about how the powers conferred upon the minister by the parliament are used? Why shouldn’t the minister advise the parliament?’ We do not think this is an onerous provision. We think it ought to be supported.
The government opposes the amendment. We believe it is not necessary. Applicants can ask for a statement of reasons if they wish. In addition, applicants can appeal the decisions under administrative law. As such, there is already sufficient transparency and accountability in the process. Further, disclosing all reasons publicly may involve disclosing commercial information relating to the marketing of Australian wheat.
I move amendment (13) on sheet 5307:
(13) Schedule 5, page 29 (after line 9), after item 57, insert:
57A After subsection 62(2)
(2A) If the Minister gives a notice in accordance with subsection (1), the Minister must provide a written statement of particulars and reasons specifying the ground or grounds on which the notice was given.
(2B) A copy of the notice in accordance with subsection (1) and the written statement of particulars and reasons in accordance with subsection (2A) must be supplied to:
(a) the Chairperson of the Commission; and
(b) the person who made the application to export wheat under section 57.
(2C) The Minister must cause a copy of a notice given in accordance with subsection (1) and a written statement of particulars and reasons in accordance with subsection (2A) to be tabled in each House of the Parliament within 5 sitting days of that House after the notice is given.
Section 60(1) of the act provides that the regulator cannot provide a permission to export wheat unless the minister has agreed in writing to do so. This amendment is identical in effect to amendment (14).
No, there is not. I withdraw that. This amendment is necessary to require the minister to actually make a decision on an application and not simply sit on an application. It is necessary to ensure that there is no game playing in this process. This amendment is required to ensure that, being given the power, the minister will exercise it in a way that is transparent and will provide a copy of the decision and the particulars to the parliament, particularly where he decides to refuse to consent.
I move amendment (1) on sheet 5315:
(1) Schedule 3, item 2, page 9 (lines 12 to 14), omit subsection 3AA(12), substitute:
(12) Until the first declaration under subsection (1) takes effect, nominated company B continues to be the designated company for the purposes of this Act until 1 July 2008, after which time nominated company B ceases to be the designated company for the purposes of this Act.
This is the ‘let’s not have AWB become the default single desk beneficiary because a minister doesn’t act’ amendment. The minister conceded earlier that I was correct—he chose to say it was ‘technically correct’, which means, I think, the same thing as saying that I was correct—in saying that, if there is no decision exercised under proposed section 3AA(1) in that window of opportunity for such a declaration to be made, then, on the bill as it stands, nominated company B, AWB, would continue to be the single desk holder with the power to export without permit. It would not have the veto power—we can be thankful at least for that—but it would still have effective control of the export of the majority of Australian wheat.
I would have thought, with all that the government has said about a time to change the status quo, that the government would welcome an amendment which made absolutely clear that there was not any way where, by default, AWB would become the controller of the single desk again. I would have thought that that was something that the government could contemplate in no circumstances, yet this legislation was introduced just a week ago containing this provision and also permitting AWB to have the veto power. Now the veto power has been removed, but we still have this anomaly in the legislation in the circumstances where a minister decides not to declare a particular company a designated company.
Let us look at the circumstances. The attempts to demerge AWB International fail, and it is a stiff task to demerge that company. You need a vote of the A-class shareholders, the B-class shareholders and the B-class shareholders by state—a majority in each case. It is not an easy task to demerge AWB International from AWB Limited. So, if that did not occur, where are we? The government says it will introduce new legislation but, at the present time, whilst that is an intention, the parliament cannot be satisfied with leaving a situation where, were that not to happen or were that legislation not to pass for some reason, there would be a reversion to AWB. Why should the parliament allow this provision, as contained in the bill, to stand and to lead to that outcome? It is a simple proposition and the amendment that I move makes sure that that will not happen because, if by 1 July 2008 there is no designated company, there will be no reversion. In other words, there will have to be some action by the parliament to deal with that circumstance.
In terms of the proposition that somehow we can simply wait on the government’s pleasure on this, I suggest that that would be the most irresponsible position that could be taken in relation to this legislation. This is a fundamental provision and the government has given a commitment to the public that AWB Limited and AWB International together will not be the mechanism for the single desk in the future. If they are committed to that, they will have no problem supporting this, but, if the government is not prepared to support this, the only conclusion that we can come to is that there is a secret agenda, that the government is looking for an opportunity—
Perhaps Senator Abetz is not aware of it but, given the shenanigans that occurred with this legislation in the first place—it had to be amended within days of it being introduced because of uproar in the government ranks, but this is something that has been missed—the reality is, if the government does not pass this legislation, the only conclusion can be that the government is comfortable with the proposition that from 1 July next year AWB International and AWB Limited together can come back into the picture and run the single desk, because that is what this legislation means. It is as simple as that.
Can I disabuse Senator O’Brien of any notion that there is a secret agenda. If there is a secret agenda it is so secret that nobody in the government knows about it. But, if Senator O’Brien’s amendment were agreed to, there would be no designated company as at 1 July 2008 in the event the demerger does not occur or a new entity does not happen. That would therefore mean the end of the single desk. I am not sure that that would be necessarily the outcome that people would want. Having said that, it is not expected to happen in any event because the Prime Minister said in that statement of 22 May that I have referred to on a number of occasions that, in the event that there is no new entity by 1 March 2008, new legislation would be considered and further legislation would be introduced, and that gives us a window of opportunity of some three months.
And, as it currently stands, AWBI is a subsidiary of AWB Limited, so we would have the single desk under the control of AWB, as it has been since 1999 and as it was throughout the wheat for weapons scandal.
The proposition which concerns me more than there being a need for legislation is the proposition that there is strong pressure within the National Party to keep AWB in control of the single desk and, were the coalition to be returned at the next election, by convention a National Party minister would have the portfolio—the National Party minister is the minister referred to in the legislation—unless there is going to be some big change. Given the performance of this minister on this legislation and the fact that he has had to be rolled so quickly, there is obviously room for more shenanigans in terms of what happens with this industry. I frankly do not accept the assurances that we can be certain that there will be an acceptable series of measures put in place were this government returned. And, were a Labor government returned, there is no way we would be accepting the proposition that AWB would control the single desk. So we would certainly be introducing legislation to make sure that that did not happen. But, of course, we would be dependent in that period—up to 30 June—on support from the coalition in the Senate. Clearly there is an agenda here to try and control the agenda even if the government does not win the election. We are very concerned that this is a proposition which is designed to give this minister the power to do nothing and achieve an outcome that is clearly held dear by some in the National Party but certainly not held dear by growers.
We think the government ought to be supportive of this proposition. In the event that it wins the election and its suggestions for a grower controlled entity come into being by 1 March, if it is saying it is going to introduce legislation and we are saying we are going to introduce legislation, what is the problem with the amendment we are proposing? In fact, our amendment is the sensible course of action. If the government fails to pass this then I think it is a reasonable conclusion, which the public can and will draw, that the government has no real commitment to removing AWB from control of the single desk.
Briefly, just to make it absolutely clear, on 22 May 2007 in response to a question from the excellent member for Grey, Mr Wakelin, the Prime Minister said this:
If growers are not able to establish the new entity by 1 March next year, the government will propose other marketing arrangements for wheat exports. Let me make this clear to the House. The options available would include further deregulation of the wheat export market. The government believes that the new arrangements will maximise the returns to growers—
Of course, talking about maximising returns to growers required a spurious point of order from the member for Denison, Mr Kerr. Then Mr Howard continued. That statement from the Hansard from the other place makes it perfectly clear what the government will do in the event that we are re-elected. Quite clearly, either side of politics would need to address the situation and would address it in the event that growers could not get themselves together by 1 March 2008.
That the amendment (Senator O’Brien’s) be agreed to.
I move amendment (2) on sheet 5315:
(2) Schedule 5, item 43, page 26 (line 16) to page 27 (line 3), omit the item, substitute:
43 Section 14
Repeal the section, substitute:
(1) The staff of the Commission are to be persons engaged under the Public Service Act 1999.
(2) For the purposes of the Public Service Act 1999:
(a) the Chairperson and the staff together constitute a Statutory Agency; and
(b) the Chairperson is the Head of that Statutory Agency.
43A Before section 16
Division 6—Planning and reporting obligations
This is the Grains Council of Australia amendment. The government, without notice and without any consultation whatsoever, removed the reference to the Grains Council, the requirement to brief the Grains Council and the requirement to report to growers, albeit in an annual report table. If there is a move in this direction, there should be full consultation with the industry about this provision before it is done. There has been no consultation. This is simply another high-handed action by this minister to do something, with no warning, no consultation and, frankly, no justification.
This amendment is a matter of basic openness and transparency to the industry that is being regulated and that pays for the Export Wheat Commission or the Wheat Export Authority. Why shouldn’t they and their peak representative body be guaranteed consultation by the legislation rather than at the whim—perhaps suggested by the minister—of whoever is running the authority or the commission at the time?
If the provisions were to remain, as is being suggested by Senator O’Brien, we would have the authority being responsible under the Commonwealth Authorities and Companies Act 1997. What we are doing with the Uhrig review is changing the structure so that it would now be under the Financial Management and Accountability Act. Also, as part of that new regime, we have the independence of the commissions from representative bodies, such as the GCA, and that will ensure maximum objectivity, transparency and regulatory independence. While there is no longer a specific requirement for the commission to consult formally with the GCA, it is expected that the commission will, as a matter of course, consult widely and regularly with industry. In his statement of expectations to the EWC, the minister has said that he will request the commission consult widely with industry. The requirement that at least one commissioner have expertise in export wheat production and another have expertise in grain production means that the view of industry will be represented on the commission. This is going to be more of an expertise based body than one with people consulted on the basis of a representational situation. The new commission is to be an independent statutory body, and requirements for it to be obliged to report to any representative body are inconsistent with this policy and expectation of independence.
I was under the impression that the Uhrig report was not about representation. This is not what we would expect in this type of amendment. What we are saying, whether it be under the Commonwealth Authorities and Companies Act or the Financial Management and Accountability Act, is that there ought to be consultation with the peak industry body. The legislation at the moment guarantees it. There is no reason to remove it. That there would be some ministerial or governmental suggestion that some form of consultation would occur is frankly not good enough. That is why we pressed this amendment. The position of growers and the Grains Council has never been controversial and, as far as I am aware, it was not a matter that was raised in any of the consultation meetings. We certainly have not had the benefit of the Ralph report, but I very much doubt from what I have heard that it would be touching upon a matter such as this. It is clearly a decision of the minister, with no consultation. It is clearly a decision of the minister which, frankly, is arrogant in terms of changing the reporting requirements to the growers who pay for this body. We believe that this amendment ought to be carried.
Bill agreed to.
Bill reported without amendment; report adopted.