Senate debates

Wednesday, 22 August 2012


Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012, Illegal Logging Prohibition Bill 2012, Public Service Amendment Bill 2012, Veterans' Affairs Legislation Amendment Bill 2012; Second Reading

5:42 pm

Photo of Chris EvansChris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | | Hansard source

I present two revised explanatory memoranda relating to the Illegal Logging Prohibition Bill 2012 and the Public Service Amendment Bill 2012 and I move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—


The Crimes Legislation Amendment (Slavery, Slavery-Like Conditions and People Trafficking) Bill 2012 will protect some of the most vulnerable people in Australian society.

With this bill, the Gillard Labor Government is protecting vulnerable, women and children, and in some cases, men from trafficking and slavery.

For many in our community, the notion of "slavery" evokes nineteenth century images of people sold as chattels, shackled and transported between countries. Tragically, nineteenth century slavery has not been abolished. It has simply taken other forms.

People traffickers recruit, transport, transfer, harbour or receive their victims through force, coercion or other means in order to exploit them. This is the modern day face of slavery.

A common factor of contemporary slavery and trafficking – from forced labour and forced marriage to organ trafficking – is the misuse and abuse of power. And such an abuse has no place here.

I want to send that message loud and clear – to all Australians, to all young people. Duress, violence and intimidation are not acceptable in contemporary Australian society – in any context. Slavery, trafficking and forced marriage are unacceptable. They are very serious crimes.

That's why Labor is bringing forward this bill to improve protections for victims of all forms of slavery and trafficking, and to help law enforcement agencies detect, investigate and prosecute the perpetrators.

Fortunately, slavery and people trafficking are not common in Australia, but the effect on victims is traumatic and can have lifelong consequences.

The bill will strengthen and expand the capability of investigators and prosecutors to combat these crimes by introducing new offences of forced labour, forced marriage, harbouring a person for the purposes of furthering the offence of trafficking and organ trafficking into the Commonwealth Criminal Code.

More specifically this bill will:

          The bill will also insert general relevant evidence provisions into both Divisions 270 and 271 of the Criminal Code. These provisions set out a list of matters a court or jury may have regard to in determining whether a victim has been coerced, threatened or deceived (for both Divisions 270 and 271), whether the victim or their guardian consented to the removal of the victim's organs, or whether another person has caused the victim to enter into debt bondage (Division 271).

          It will also insert general consent provisions into Divisions 270 and 271 to make it clear that a victim's consent or acquiescence cannot be used as a defence in a proceeding for an offence against those Divisions.

          Reducing a person to a state of slavery or servitude often involves suppressing the person's free will and their self-respect, as well as the ability to make decisions for themselves. To allow a defendant to escape liability because his or her offending achieved the desired effect in bringing about these changes in a victim so that they appear to consent would be inexcusable. This provision makes that clear.

          These measures will establish a continuum of offences criminalising exploitative conduct ranging from slavery to debt bondage. The definition of 'exploitation' in the Criminal Code will be expanded to cover broader forms of exploitation including debt bondage, forced labour, forced marriage, and all forms of servitude including non-sexual servitude.

          Forced labour goes against everything Labor stands for. And that is why we must act to make sure that no one in this country is subject to such a misuse of power. And that no one is able to get away with forcing someone to work in that way.

          Labor has a long history of protecting Australia's most vulnerable. We introduced Medicare, we introduced the Sex Discrimination Act and we are introducing a National Disability Insurance Scheme. And this bill continues this tradition.

          It was Labor who repealed Tony Abbott's unfair workplace laws.

          And it is Labor who is now introducing a new offence of forced labour.

          While the majority of identified victims in Australia have been women trafficked for the purposes of exploitation in the sex industry, law enforcement agencies are increasingly identifying both men and women who have been subjected to exploitation in a range of other industry sectors and workplace environments. This bill will introduce a standalone offence of forced labour and expand the existing offences of sexual servitude and deceptive recruiting to ensure they apply regardless of industry.

          Where a person who does not consider himself or herself to be free to cease providing or leave the place where they provide labour or services, because of the use of coercion, threat or deception – they will be protected.

          Penalties for the existing debt bondage offences will also be increased, reflecting the seriousness of these crimes.

          I would like to take this opportunity to say something about one particular aspect of this bill: forced marriage. I am proud to introduce legislation which makes forcing someone into a marriage illegal. It is a serious matter – and should be treated as such. Marriage should be a happy event, entered into freely between consenting adults,

          Forced marriage places young people at risk, and can result in harmful consequences including the loss of education, restriction of movement and autonomy, and emotional and physical abuse.

          Some critics have asked: "won't this force it underground? "I say to them – it is already underground now – and it can't stay that way. It is the role of the Attorney-General to make it completely clear that in Australia, marriage must be entered into freely, without duress or constraint.

          In order to strengthen the law's ability to deal with the perpetrators of slavery and trafficking offences, this bill makes it a crime for another person to assist or further the commission of these offences. The new offence of harbouring will extend criminal responsibility to those who facilitate a slavery or trafficking offence by harbouring, concealing or receiving a victim of a slavery or people trafficking offence. This is to ensure that there is no way for people to avoid prosecution because they did not transport, recruit or transfer the victim into the country themselves.

          The bill also creates standalone offences of organ trafficking. Trafficking a person to remove his or her organ is currently criminalised through offences relating to exploitation. This amendment will clarify the circumstances in which an offence of organ trafficking will apply, including situations in which the victim's organ is not ultimately removed.

          These organ-trafficking offences will ensure that Australia meets its international obligations and comprehensively criminalises this exploitative conduct.

          The bill will increase the capacity of law enforcement agencies to investigate and prosecute perpetrators, and to better support and protect victims. It will assist in addressing the impact of crime by improving the availability of reparation orders to individual victims of Commonwealth offences, including slavery and people trafficking.

          In conclusion, the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012 was prepared following extensive public consultation.

          The Government released two discussion papers on slavery, people trafficking and forced marriage, and also sought submissions on an exposure draft of the bill.

          With this bill, the Government will clarify and strengthen the operation of existing slavery and people trafficking related offences to make sure that the perpetrators of these offences and those who facilitate them cannot escape prosecution.

          The bill reflects the Government's commitment to doing all it can to prevent slavery and people trafficking. It is easy to say no. It is harder to stand up and do the right thing. And that is what this bill is about. For Labor, it is about protecting the most vulnerable in Australia. It is about getting things done to make this country a fairer, safer place for all of us.

          This is the Gillard Labor Government carrying on the great Labor tradition of standing up for the less powerful against the strong and giving a voice to those who cannot always speak up for themselves.



          The Illegal Logging Prohibition Bill (the Bill) responds to a significant issue affecting forest communities around the world.

          The environmental and social costs of illegal logging worldwide have been estimated at approximately US$60 billion per annum.

          Illegal harvest of timber contributes to environmental degradation through bad practices by illegal loggers. It hampers social development by depriving local governments and communities from the benefits derived from the use of their resource.

          Illegally harvested timber also undermines well regulated and sustainable industries, including the Australian industry, by undercutting legally harvested timber products.

          This Bill will make it a criminal offence to import regulated timber products or process raw logs without undertaking due diligence.

          How this Bill was developed

          The Bill is the product of extensive consultation.

          A commitment to prohibit the importation of illegally harvested timber was first presented to the community during the 2007 and 2010 election campaigns. Following the 2007 election, the Labor Government commissioned substantial research to inform policy development including a regulation impact statement; a risk assessment framework; a framework for differentiating legality verification and chain of custody; a generic code of conduct for importers; an economic analysis of the impact of illegal logging; and reports on the small business impacts and social costs of illegal logging.

          In December 2010, the Government announced the framework to implement the policy.

          On 23 March 2011 the Minister for Agriculture, Fisheries and Forestry tabled an exposure draft, referring it to the Senate Rural Affairs and Transport Legislation Committee for public inquiry.

          The Committee released a report on its findings on 23 June 2011, which included seven recommendations. In particular, the committee recommended the government reconsider the role of the timber industry certifiers and the inclusion of a requirement for a mandatory and explicit declaration at the border.

          The Government has considered the report, and the dissenting report, and the views of stakeholders about the Committee recommendations in preparing the Bill now before the Parliament.

          The Government has received representations from the domestic timber industry; state governments, timber and timber product importers, the Australian Conservation Foundation, Greenpeace, the Uniting Church of Australia, the Construction, Forestry, Mining and Energy Union, domestic retailers and exporters of timber products to Australia.

          The Government welcomes the strong community interest in this issue.

          How the Bill works

          The Bill focuses exclusively on measures that will restrict the importation and sale of illegally logged timber in Australia. The Government recognises these measures are an essential first step towards a longer term goal of Australian's sourcing timber products from sustainably managed forests, wherever they are in the world.

          The Bill will regulate timber products at two key points of entry onto the Australian timber market – at the border, for imported timber products, and at timber processing plants where domestically sourced raw logs are processed for the first time. It will restrict the importation and sale of illegally logged timber in Australia in three main ways.

          First, the Bill prohibits the importation of all timber products that contain illegally logged timber and the processing of domestically grown raw logs that have been illegally harvested. The prohibition enters into force on the day after Royal Assent of this Bill. A maximum penalty of five years imprisonment or 500 penalty units, equivalent to $55,000 for an individual and $275,000 for a corporation or body corporate, or both, applies under this offence. Importers and processors suspected of importing or processing illegal logged timber products would be investigated under the powers of monitoring, investigation and enforcement under Part 4 of the Bill and will be prosecuted if they intentionally, knowingly or recklessly import or process illegally logged timber products.

          Our own research and the work of the European Union indicate that the best way to minimise trade in illegally harvested product is to implement a due diligence framework. Importers and processors will be required to undertake a process of due diligence on those products to mitigate the risk that the timber has been illegally logged. The level of culpability for these products is negligence which differs from the standard subjective fault elements of intention, knowledge or recklessness. Negligence is an objective fault element which looks to the standard of care that a reasonable person would exercise in the circumstances. Importers of regulated timber products can only be negligent if the prosecution can satisfy the requirements for negligence set out in the Criminal Code 1995.

          Second, the Bill will require importers of regulated timber products and processors of raw logs to undertake due diligence to mitigate the risk of products containing illegally logged timber.

          Timber products, for which due diligence will be required, will be prescribed by regulations that will be developed in consultation with key stakeholders. The government will use a number of inputs when finalising timber products to be prescribed by regulations including an economic assessment of the range of product types, value and volume of timber annually imported into Australia.

          Importers of regulated timber products and processors of domestically grown raw logs will be required undertake due diligence to mitigate the risk of importing or processing illegally logged timber. The details of the due diligence process will be prescribed by regulations and will be based on a risk management approach. Criminal offences will apply to importers and processors who do not comply with the due diligence requirements of the Bill. There is a maximum penalty of 300 penalty units, equivalent to a fine of $33,000 for an individual and $165,000 for a corporation or body corporate. Administrative sanctions and civil penalties for minor breaches of the legislation will be included in subordinate legislative instruments, such as administrative sanctions for non-compliance with certain due diligence requirements.

          Requirements for due diligence will be enacted after two years have elapsed following the commencement of the Bill to give industry sufficient time to establish and implement their due diligence systems and processes.

          Due diligence will involve a three step process - (i) identifying and gathering information to enable the risk of procuring illegally logged timber to be assessed; (ii) assessing and identifying the risk of timber being illegally logged based on this information, and (iii) mitigating this risk depending on the level identified, where it has not been identified as negligible. The specific measures and procedures underpinning the three steps will be prescribed by regulations to be developed in consultation with stakeholders.

          To help meet their due diligence obligations and minimise compliance costs, importers and processors may utilise laws, rules or processes, including those in force in a state, a territory or another country. Individual country initiatives and national schemes, including national timber legality verification and forest certification schemes that can demonstrate that timber products have been harvested in compliance with the applicable laws of the country of harvest may be used, where applicable, as part of an importer's due diligence process.

          To enable the Government to enforce compliance with the due diligence requirements, importers are required to complete a statement of compliance with the due diligence requirements of the Bill before they complete a customs import declaration at the border. The information to be provided on the statement of compliance and customs import declaration will be prescribed by regulations.

          The customs import declaration will include a community protection question asking importers of regulated timber products whether they have undertaken due diligence in compliance with the Bill. This will be linked to importers' statements of compliance to provide a legally binding basis for enforcement of compliance with the legislation. The government will monitor the importation of regulated timber products at the border for compliance with the customs declaration, whilst government compliance and investigation officers will carry out border and post-border checks, as required, using the monitoring, investigation and enforcement powers of the Bill.

          Processors are required to complete a statement of compliance with the due diligence requirements of the Bill. As Commonwealth, state and territory laws relating to the legality of timber harvesting in Australia are comprehensive and robust, the Commonwealth Government will seek to align the due diligence requirements of the Bill with the pre-harvesting approvals processes of relevant state and territory governments to reduce compliance and administrative costs. The content and form of the statement will be prescribed by regulations.

          Third, the Bill establishes a comprehensive monitoring, investigation and enforcement regime to ensure compliance with all elements of the Bill including the prohibition and due diligence requirements. Imported timber products may be seized by the Commonwealth without a warrant, under provisions in the Customs Act 1901, whilst goods deemed to be involved in an offence under the Act, consistent with provisions provided in the Customs Act 1901 and the Crimes Act 1913, may be forfeited to the Commonwealth.

          The Bill also provides requirements for importers and processors to provide statements and declarations of compliance, undertake audits and remedial action, provide reports and other information to the Minister and publish information for compliance and enforcement purposes.

          The results of audits will provide a basis for continuous improvement of importers and processors due diligence systems and processes, where deficiencies are identified, and for enforcement purposes by the Commonwealth where breaches are detected. To ensure there are satisfactory levels of transparency of compliance with the due diligence requirements of the Bill, importers and processors are required to make an annual statement of compliance. The nature and detail of these statements will be prescribed by regulations to be developed in consultation with key stakeholders. This information may be used by the Commonwealth to publicly report on the performance and level of compliance of importers and processors, consistent with privacy and commercial-in-confidence considerations. The coverage and detail of public reporting requirements will be developed in consultation with key stakeholders.

          The Bill provides for the government to undertake a review of the first five years of the operation of the Act. This review is to be commenced no later than 12 months after the 5 year period is complete. This provision should ensure ongoing improvement in relation to the operational aspects and effectiveness of the legislative framework.

          International alignment

          The Bill aligns Australia's efforts to combat illegal logging with international initiatives, including legislation already implemented in the United States and developments in the European Union.

          It is therefore sensible that this Bill should work towards alignment with international regimes.

          In establishing the regulations, the government will continue to develop requirements that, to the greatest extent possible, align with the measures being introduced as part of the US Lacey Act Amendments (2008) and the EU Regulation (2010) in order to minimise compliance costs for exporters. This will have the effect of engendering greater cooperation amongst timber importing markets like Australia, Europe and the US and help to facilitate higher compliance amongst exporting countries.

          For example, the Government anticipates that certification systems (either third party or government) recognised by EU or the US frameworks will be capable of meeting Australia's requirements.

          The Bill will also strengthen Australia's leadership position in the Asia–Pacific region on forestry issues and facilitate continued bilateral and multilateral cooperation with developing countries to promote legal and sustainable forest management.


          The Bill allows the Government to work with key stakeholders to stamp out illegal logging and trade in illegally logged timber products.

          An illegal logging working group, comprising industry sectors and non-government organisations is already established to assist the government in this process and help minimise the compliance and administrative costs for both industry and government, whilst driving behavioural change in the global timber trade. The government will continue to work closely with its illegal logging working group and state and territory governments to develop the subordinate legislative instruments required.

          The Government appreciates the work of the Senate Committee for Rural Affairs and Transport for its contribution to the development of the Bill. The Government also acknowledges the input of industry, both importers and domestic producers, and other members of the community for their input into the process thus far.

          The Illegal Logging Prohibition Bill (2011) delivers on the Government's policy to restrict the importation and sale of illegally logged timber in Australia. It will remove unfair competition posed by illegally logged timber for Australia's domestic timber producers and suppliers establish an even economic playing field for the purchase and sale of legally logged timber products and provide assurance to consumers that products they purchase have been sourced in compliance with Government legislation.


          Mr President, this Bill makes some important amendments to the Public Service Act 1999.

          On 8 May 2010, the then Prime Minister announced that the Government had accepted all of the recommendations made in the earlier report, Ahead of the Game: Blueprint for the Reform of Australian Government Administration.

          This report, 'the Blueprint', outlined a comprehensive reform agenda to position the Australian Public Service to better serve the Australian Government and the Australian community. It is an agenda that requires modernisation of the Public Service Act, bringing it into line with contemporary needs.

          The amendments in the Bill will strengthen the management and leadership of the public service and help to embed new practices and behaviours into its culture. The Bill recognises that the delivery of high quality services and policy advice requires effective and committed leadership, supported by a public service that is efficient, driven by its desire to serve the community, and contemporary in its outlook.

          Strengthen the leadership of the APS

          Part 1 of Schedule 1 to this Bill provides for a clearer articulation of the roles and responsibilities of Secretaries, particularly in relation to their stewardship of the Australian Public Service. The revised descriptions clarify the service and performance expected of Secretaries and strengthen Secretaries' accountability to Ministers in performing their roles and discharging their responsibilities.

          The amendments restore the arrangements which operated prior to 1999. The amendments provide for appointment and termination decisions of Secretaries to be made by the Governor-General, on the recommendation of the Prime Minister, following receipt of a report from the Secretary of the Prime Minister's Department in consultation with the Public Service Commissioner.

          The minimum length of a Secretary's appointment will be five years—unless the Secretary requests otherwise. This provides for continuity of leadership and strengthens the integrity of the appointment process.

          Part 2 of Schedule 1 to this Bill creates the Secretaries Board, comprised of the Secretary of each Department and the Commissioner. The Secretaries Board, which replaces the Management Advisory Committee, will identify strategic priorities for the APS and take responsibility for its stewardship.

          Part 3 of Schedule 1 to this Bill amends the role of the Senior Executive Service to strengthen APS leadership by expanding the descriptors of Senior Executive Service leadership responsibilities, supporting collaboration and the development of whole-of-government responses to issues.

          Modernise and clarify the functions of the Public Service Commissioner

          Part 4 to Schedule 1 of this Bill modernises the functions of the Public Service Commissioner.

          The Bill specifically recognises the Commissioner's role as the central authority for APS workforce development and reform, an authority that will take a leading role in ensuring that the Service has the organisational and workforce capability to meet future needs.

          The Commissioner will have three broad functions:

                A new function will allow the Commissioner to undertake those tasks and responsibilities which are issue-specific or which may change over time.

                Review and inquiry functions

                The Commissioner has extensive powers to undertake reviews or inquiries which were introduced with the 1999 Act, including in certain circumstances the ability to exercise the same information-gathering powers as are available to the Auditor-General. The Bill provides more detail on how reviews may be initiated and reported.

                In particular, the Commissioner will be able to undertake a 'systems review' or a 'special review' in specific circumstances.

                'Systems reviews' will allow the Commissioner to review and report on the management and organisational systems, structures and processes of an APS body, or the functional relationship between two or more bodies. These powers do not derogate from the inquiry functions of other statutory officers and it will be a matter for Government as to who is the most appropriate entity to conduct a review.

                By contrast, 'special reviews' will be able to be initiated only at the direction of the Prime Minister. While it is expected that special reviews will be uncommon, the Bill makes clear such a review is available to Government in those rare circumstances where the public interest demands it. The Commissioner's information-gathering powers under section 43 of the Act will be available for special reviews.

                To augment the capacity of the Commissioner to conduct reviews and call on specialised knowledge, the Bill provides for the appointment of Special Commissioners by the Governor-General to assist in undertaking all or part of a systems or special review and report through the Commissioner.

                Agency Head Code of Conduct

                Under the Public Service Act, the Commissioner has a specific power to inquire into alleged breaches of the Code of Conduct by Agency Heads and report to the appropriate authority on the results of such inquiries.

                Unlike the discretion available to Agency Heads in respect of APS employees, there is little scope for the Commissioner to conduct a preliminary assessment before launching a formal inquiry. To remedy this, the Bill provides a regulation-making power to prescribe the circumstances in which the Commissioner may exercise discretion to decline to conduct an inquiry into alleged breaches of the Code by Agency Heads, or to discontinue an inquiry without invoking the reporting requirements. This element of discretion is desirable to deal with trivial or futile matters or matters that have previously been dealt with.

                APS employee Code of Conduct

                Currently, the responsibility for investigating and determining breaches of the Code of Conduct by APS employees rests with Agency Heads. On occasion Agency Heads have wanted the Commissioner to conduct an independent investigation into suspected misconduct by one or more of their own employees. This is typically when public interest concerns raised by a particular allegation make it desirable that matters are investigated and determined by an authority that is both expert and independent.

                The Bill proposes that the Commissioner will have a new function to determine alleged breaches of the Code by APS employees. This function will be triggered when requested by the Agency Head or by the Prime Minister. The Commissioner may decline to conduct such an investigation.

                Revise the APS Values and introduce APS Employment Principles

                Part 6 of Schedule 1 to this Bill revises the APS Values and introduces a set of APS Employment Principles.

                The Values and the Employment Principles are statements about the essential character and philosophy of the APS. They define what the APS is, and how it should operate.

                The proposed Values—that the APS is Committed to Service, is Ethical, Respectful, Accountable and Impartial—are more succinct and memorable, easy to understand, and will help the Service to create an ethical, high performance culture.

                The Values and Employment Principles together capture the essence of the existing 15 Values, blending contemporary ethics with enduring principles of public administration that go to the heart of the Westminster model. No important concepts have been lost.

                Agency Heads and APS employees will, by law, be required to uphold the Values and the Employment Principles. Agency Heads and Senior Executive Service employ