Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I am grateful to the Minister for Superannuation and Corporate Law for his response in summing up the second reading debate. There is one issue I want to clarify. My concern all along has been that there is not only adequate consultation but also adequate scrutiny—a mechanism to scrutinise any regulations that have been made—and that there is an opportunity for the disallowance of these regulations before they actually come into effect. Given that the context of this legislation is about cost recovery in the event of an EI outbreak, it is important that there is that safeguard. So I am grateful to the minister for his response.

I do raise an issue, and I may need to get advice from the clerk’s office or the Deputy Clerk on this: if the government undertakes that the regulations sit on the table for a certain period—and I think we need to determine that—does there need to be an amendment to the legislation to put that into effect or will the undertaking in itself be sufficient in the context of these particular regulations? My understanding is that the regulations, in their current form, take effect from the time that they are proclaimed or the time they are enacted under the Legislative Instruments Act. Does it need a statutory modification so that there can be a sufficient period to consider the regulations prior to their coming into force? Does the government have a position on an adequate time frame? I would have thought that a reasonable time frame—and I look forward to hearing Senator Colbeck’s view on this—of something like eight sitting days would give that two-week window for there to be appropriate scrutiny by the Senate.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

I am advised that the regulations can be worded such that they do not take effect until the Senate has an opportunity to disallow or there could be an amendment to the primary bill. I would urge you to accept the word of the minister. There are consequences if an undertaking given on the record by the minister is breached. There are consequences, and I think we are all aware of that. You would take into account an obvious breach of trust in your dealings with the minister. I am very confident that will not happen. The minister has given that assurance. I am happy to place it on the record on behalf of the government.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

If I can make it absolutely clear, this is not a question of not taking the minister’s word; it was a technical procedural question as to whether there was any drafting impediment. I am grateful to the minister for clarifying that.

That leaves one final issue, one final obstacle or one final hurdle to this bill and it relates to the number of days for the Senate to consider this as a part of the undertaking of the minister. Is the minister in a position to undertake that eight sitting days would need to elapse before the regulations would come into force from the time they are tabled in the Senate?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

In principle, eight days seems reasonable. The staff that are here are not aware of any technical issues around that. With any technical requirements, we are certainly willing to indicate there will be at least eight sitting days for the Senate to consider a disallowance.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Without appearing to be a pesky suburban solicitor, which is my background, I accept in good faith what the minister is saying, but I want to make sure that there is not some technical impediment that, despite the good faith of the minister, would prevent that undertaking from coming into force. It is not a question of the minister not acting in good faith, I understand that, but is the minister in a position to advise firmly and clearly that there will be eight sitting days? If that is the case, from my point of view, that hurdle has been removed.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

I am advised by an extraordinarily reliable source that it is technically possible. The advisers who are here presently are not technical drafters from the department, but I will attempt to confirm that with the extraordinarily reliable Senate staff. I do not believe I can indicate beyond that, but we will double-check with the drafting section of the Attorney-General’s Department.

Richard Colbeck (Tasmania, Liberal Party, Shadow Parliamentary Secretary for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I want to make a couple of points on where we are at. I respect the views put forward by Senator Xenophon. I am happy with the eight-day period he is asking for. So, if that could be clarified, the opposition would appreciate that. Unfortunately, as appears to be becoming a common trait of the government, there is apparently some deal that has been negotiated with the Greens and the Independents which the opposition have not been let in on. My understanding of that is—and again, because we have not been formally given advice by the government, it is hearsay—part of the approach that the government is taking is to narrow the base of the proposed levy by placing a cap under which the levy will not be charged. My understanding is that a breeder with fewer than 20 horses—or perhaps 20 registrations, and perhaps the minister can clarify that for me too—will not be levied under the proposals that are part of the secret deal between the Greens, the government and the Independents. We would like some advice on how far the base might be narrowed and what impact that might have for those paying the levy.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

I can say—and I suspect Senator Xenophon would want to say this too—there is no deal or agreement between the Independents, the Greens and the government on a minimum threshold figure for a levy period event. There is no deal. There has been information provided to the Senate committee, I understand, around a minimum threshold and examples of a minimum threshold for practical administrative purposes, for obvious reasons. An event could have two horses I suppose at the barest minimum. Is it practical to levy in those circumstances? There has been no agreement, no deal, with the minors or the Greens on this matter.

Richard Colbeck (Tasmania, Liberal Party, Shadow Parliamentary Secretary for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I can only take the minister’s word for it, but that is not how it has been put to me. We can only take that as it has been placed. Are we looking at the scope of the potential levy remaining as it was initially or is there some threshold that is going to be put in place? Can the minister give some advice as to what that might be?

I note Senator O’Brien’s comments with respect to regulations being available to Senate committees and/or the Senate prior to passing legislation. When debating a previous piece of legislation I acknowledged that previous practice has been not to provide regulations as part of the legislative process. A number of senators on both sides of the chamber over a period of time have expressed frustration with that. I do note that the government has on occasion—one occasion was with the PBS cost recovery bill, which was a very similar process to this one—provided to the committee involved the regulations so that they could be considered by the committee. Senator O’Brien did make comment about that. In a very similar set of circumstances with another piece of legislation—and this is more a comment than anything else—the government made the regulations available so there was time for the Senate committee to scrutinise them before the legislation came before the Senate.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

I thank Senator Colbeck for his observations. Specifically, I am advised that there was no specific proposal by the department or the government about a minimum threshold. What was given were some examples about how an approach would need to be taken to have a minimum threshold. It may be five, 10 or 20. There has been no specific proposal put on the table. It is a matter still for discussion, negotiation and consultation.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

This is an interesting discussion, isn’t it? There has been a fair bit of debate about Independents. I belong to Family First. I am not an Independent; I actually belong to a party. I think the government needs to do a bit more work on this. There is no way that a family that owns a horse as a pet should be hit. You can say that it can be covered in the regulations and there should be a yes/no answer to that. We should have the regulations. We had this debate about the PBS. Frankly, you need to come to the chamber and show us what you are thinking. You have heard in the Senate inquiry there is genuine concern about the number of horses that someone owns. Mums and dads should not be hit with this. I am happy for you to adjourn the debate and come back next week when you have done a bit more work on this. There is no way that mums and dads should be hit with this. You need to address the issue.

Richard Colbeck (Tasmania, Liberal Party, Shadow Parliamentary Secretary for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Senator Fielding, I take your admonishment that I referred to your party as Independents. I accept that you do represent a party. I place on record my apologies for doing that. I think Senator Fielding’s point and the minister’s response actually reinforce the concerns that the opposition have had about this legislation and the regulations all through the process. It has been informative for us to have the opportunity to ask these questions at this stage and find that, although the impression has been given that there might be something that is going to provide an exemption, that does not necessarily exist. I agree with Senator Fielding that the government really does need to do some more work on this. I am sure that this chamber and the committee could be very well assisted by the provision of the regulations, as was done with the PBS cost recovery bill.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

We will not be adjourning the debate on the legislation, Senator Fielding, for the obvious reason that, as I have indicated, there is a consultation period of at least six months to go on the regulations. We will put the bills, they will be defeated and there will be a period of uncertainty. I am not happy with it, but that is your decision, and obviously the decision of the Liberal-National Party, now opposition. I would point out that the process of consideration of a levy bill and then the development of regulations through very intensive consultation is not new. This is not a new approach we are going through in this particular area. But the Liberal-National Party have decided to abandon this approach after some 20 years of bipartisan support, including from the Labor Party as opposition. Now, of course, they are in opposition and are taking a somewhat opportunistic approach. We will put the bills to the vote. It seems to me they will be defeated and we will see what we come up with in the months or possibly years ahead. If there is an outbreak and we are not in a position to respond, we are not in a position to respond.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

I do not know what you say to that. I have not heard too many of the government senators worrying about the mums and dads being slugged by this, frankly. I tend to think that the regulations for this one, like with the PBS, should be tabled. Senator Sherry, go through your process, do it as quickly as you can, come up with some draft numbers and let us have a look at it. Let us have a decent debate about it. It is really on your head whether or not you get this through.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Firstly, I think Senator Colbeck talked about some deals done with the Greens and other crossbenchers. I think he referred to us as the Independents, and Senator Fielding quite rightly corrected him in relation to that. Can I assure Senator Colbeck that there has been no deal. There has been no horse-trading or any sort of trading whatsoever in relation to this. There is some vague allegation that there has been some deal done. There has been no deal done. I have been entirely transparent in the whole process. My principal concern has been the appropriate scrutiny of any regulations. The minister has indicated in broad terms that, subject to, I think, some technical advice, these regulations will not come into force for a period of eight sitting days. However, I note the caveat which the minister in good faith put to that undertaking. My concern is that it is not an unequivocal undertaking, for the quite reasonable reasons the minister outlined in terms of getting appropriate advice. It would be my preference that progress be reported pending that specific advice in relation to that undertaking. To reiterate my position, I will support the bills provided that there is an unequivocal undertaking in those terms about the regulations not coming into force for a period of at least eight sitting days of the Senate in order to allow for appropriate scrutiny of those regulations once they have been prepared.

The Temporary Chairman:

Senator Xenophon, were you asking that progress be reported? That question has to be put if you were.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Perhaps I have foreshadowed it rather than simply asking for it at this stage, Chair, and thank you for seeking clarification from me. I guess it depends on whether the minister is in a position to go further than what he put earlier. Again, I accept what he says in good faith, but I also note his caveat about the technical advice. I accept the circumstances in which there has been a caveat to that advice. My position is that the undertaking needs to be unequivocal in order for me to support the government in relation to the legislation.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

I just indicate the government is not in a position to agree with your request, Senator Xenophon. This legislation has been around since February last year—a year ago.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I wasn’t here then.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

No, I know you were not here, but you have been here since July last year. There has been a fair amount of discussion—in fact, I would consider it an extraordinary amount of discussion. We have taken up some time in the chamber today and, if we agreed to your request and we were to sort out that technical issue and give you a further assurance, that would obviously not satisfy Senator Fielding. So we are not inclined to agree to the request. As I say, the matter has been around for a year. You can only consult so far. That is the reality of the world, and the reality of the world is that people are not satisfied with the consultations so far.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Can I just make it clear: I understand what the minister is saying about the level of consultation. I am happy with what the minister has said in terms of there being consultation. The only stumbling block for me was this issue of an undertaking. I have made my position clear and I accept that. Subject to technical advice and if the minister gives that undertaking in unequivocal terms then the government has my support. That is why, in order to allow for that to occur, I now move:

That progress be reported.

Question negatived.

Bills agreed to.

Bills reported without amendments or requests; report adopted