Monday, 22 September 2014
Omnibus Repeal Day (Autumn 2014) Bill 2014; In Committee
If I could seek some clarification. Senator Ludlam mentioned that he thought he had moved amendments (1) and (3) on sheet 7566 but had not yet moved amendments (2) and (4). I seek your guidance as to whether all four have already been moved?
The CHAIRMAN: He moved them all. Two of the amendments are consequential to the other two, so we will deal with them as two separate groups. (Quorum formed) We are at the point where the question before the chair is that items 5 to 16 on schedule 2 stand as printed.
If I could seek some clarification. I filed an amendment that is on sheet 7567. I take it we have not got to that yet, as I have not formally moved it. These are Senator Ludlam's amendments?
The CHAIRMAN: Yes.
The CHAIRMAN: Your amendment came in just as we were wrapping up for question time.
Can I express my gratitude to the Clerk's office and to the Assistant Clerk for doing that in record time. It was on the run, so to speak.
The CHAIRMAN: The question is that items 5 to 16 on schedule 2 on sheet 7566 stand as printed.
Question agreed to.
The CHAIRMAN: Given that the next two amendments are consequential to the last question, do you require me to put those amendments?
The CHAIRMAN: All right. I will go through the formal process. The question is that amendments (1) and (3) on sheet 7566 be agreed to.
The CHAIRMAN: Senator Xenophon, this would be a good time for you to move your amendment.
It is always a good time to movement amendments. I move the amendment on sheet 7567:
(1) Schedule 2, page 11 (line 7), omit the heading.
(2) Schedule 2, items 17 to 23, page 11 (line 8) to page 12 (line 16), to be opposed.
This deals with the discussion that was held shortly before question time. This amendment will ensure that what is proposed by the government, that it merely becomes desirable for ACMA to look at certain matters, is taken out of the bill, that we leave the status quo so there is a greater sense of urgency and a greater need for an investigation of interactive gambling by ACMA.
My concern relates to the Interactive Gambling Act that was introduced back in 2001 by the coalition. And I remember it well—I was a state member of parliament and lobbied furiously for the act back then. The government's legislation will make the act weaker because ACMA has a key regulatory role to ensure that the Interactive Gambling Act is being complied with. This omnibus bill, under the pretext of ensuring less red tape, will actually reduce consumer protection. It will actually make it less likely that there will be an investigation into breaches of the Interactive Gambling Act by ACMA because ACMA's discretion and latitude will be so broad that there will be no reasonable prospect, I think, of these investigations taking place to the same degree that they have taken place in the past. I am concerned that having a general discretion to investigate will actually weaken consumer protections. This is a retrograde move. It is a move that goes against what the coalition was intending to do back in 2001 and I oppose it. My amendment will ensure that this broader discretion, this weakening of the legislation, does not take place. That is, in essence, what I am proposing to do with this amendment. If my colleagues in this chamber think this is a minor problem, then I urge them to think otherwise. More and more Australians are falling prey to unscrupulous operators all over the world who target Australians with online gambling problems.
An effective enforcement regime relies on ACMA investigating and working in conjunction with the Federal Police. I know that from the constituents I have dealt with who have been deeply affected by this. If this Omnibus Repeal Day (Autumn 2014) Bill 2014 is passed without my amendments, it will send a green light to the shonks in Gibraltar and other parts of the world. It will tell them that they are less likely to be detected and less likely to be affected by a police investigation. This is because the key regulatory body, ACMA—that first port of call—will simply be less likely to be investigating such matters.
() (): Labor will not be supporting these amendments. Whilst we acknowledge Senator Xenophon's concerns and long-held interest in this area, Labor does not believe that the effect of the provisions contained in this bill warrant the amendments that Senator Xenophon has proposed. As with the amendments from Senator Ludlam relating to the change from ACMA having a duty to investigate to it having a general discretion under the Broadcasting Services Act 1992, in order to allow for greater consideration Labor would have preferred to have received greater notice that these amendments would be moved. Labor supported this bill through the House on the basis that it makes minor amendments and repeals spent legislation. We have not identified any adverse consequences arising from the changes imposed by the bill. Labor opposed similar amendments from Senator Ludlam relating to the effect of the bill in altering ACMA's responsibility to investigate from a duty to a discretionary power. We oppose these amendments on a similar basis.
The appropriate minister is otherwise detained, so he has asked me to have carriage of this briefly, Senator Xenophon. In relation to Senator Polley's comments, my understanding is that this bill went to a committee. So I think there has been plenty of notice about what the contents of the bill are. If I am wrong, then I am wrong.
I would not have thought the amendments would have required much discussion if you supported the bill, which you do. I thank the opposition for its support. There is the discretion to investigate. ACMA have the discretion to investigate a complaint if ACMA considers there is merit in doing so. My understanding is that this discretion is consistent with other Commonwealth regulators. The overriding consideration for ACMA when exercising its proposed discretion will be public interest, having regard to general administrative law principles and the objects set out in the legislation.
From these notes I have just had a quick look at, I do note that the decision not to investigate a complaint could be referred to the Commonwealth Ombudsman for investigation. In some circumstances, it might also be subject to judicial review. These provide important accountability mechanisms for ACMA when exercising its discretion. Providing ACMA with appropriate discretion will mean that service providers and ACMA will no longer need to devote time and resources to complaints that ACMA considers to be minor or trivial or which can be resolved without a formal investigation process.
I am acutely aware of Senator Xenophon's longstanding interest in this area. But my very strong view and the government's very strong view is that the decision about whether there is merit in investigating these complaints should be made by ACMA. There are other means of appeal if people are aggrieved by ACMA's decision. But I think this will make for a more seamless approach by ACMA. Indeed, it will enable them to get on with the real issues and not deal with trivial matters, as they are required to under the legislation.
I thank the minister for his answer. I want to make one point before I put a specific question to the minister. Make no mistake—and the opposition should be aware of this as well—if you make the change that is proposed by the government in this bill in relation to complaints to do with online gambling, you will weaken the provisions that provide some framework of protection to consumers. You will weaken some avenues of redress for consumers, because the change would mean that ACMA can say it is not desirable to pursue them. It is a much broader discretion. There will be fewer cases investigated. The shonky online gambling operators from around the world will know that the chance of detection or prosecution will be reduced even further with these changes. Sending a green light to those shonks who destroy people's lives is not the direction we should be heading in.
The specific question I have for the minister is: does he concede that the ability for the Commonwealth Ombudsman to be involved in a review of a decision—or the circumstances in which that will occur—will, of necessity, be more limited than they are in the current legislation? In other words, there is less scope for the Ombudsman to be involved in matters of review because it is now much more difficult to get to that threshold at which the Ombudsman can be involved—by virtue of having a 'desirable to do so' test.
I think the important issue here is that this legislation is not about providing ACMA with an excuse to do nothing. This is providing a level of discretion for ACMA in relation to minor or trivial matters. I imagine the Commonwealth Ombudsman would be involved on only the rarest of occasions because ACMA still has responsibilities under the act. ACMA's responsibilities are quite clear. The principle that underpins both those two acts are quite clear. This is seeking to take out of the present act the obligation to investigate in every single situation and there are, Senator Xenophon, a number of examples of where the non-discretionary requirement has required ACMA to investigate matters which, quite frankly, were just a waste or resources. One was a complaint under the broadcasting act in 2004, which took five years to make, about whether a snake on a Channel 7 report was a big snake or a little snake. This is about strengthening ACMA. This is about providing the opportunity for ACMA to put its resources into issues which it views as non-trivial. They are the sorts of powers and the opportunity that ACMA needs to get to the shysters you are talking about because at the moment there is no discretion. When there is no discretion, they are required to investigate every single matter, which I can only assume takes up enormous resources.
We are as anxious as you are, Senator Xenophon, to make sure that ACMA has the very best opportunity and the very best resources to investigate the shysters and those who are creating the misery and not to have a legislative requirement to investigate every single trivial complaint, which can only, as a matter of course, as I am sure you understand, impact on ACMA's ability to do the real work.
I do not quite follow what the minister said a moment ago. Is the minister saying that ACMA will now have more resources to deal with matters as a result of these amendments? It seems to me that these amendments effectively mean that ACMA, if it does not have the resources, can more easily say, 'We cannot investigate this matter because we don't have the resources and we don't have a statutory obligation to do so.' My specific question to the minister, which I ask respectfully again, is: does the minister concede that, in respect of these proposed changes to the legislation, the discretion for the Commonwealth Ombudsman to be involved under his or her statutory power is being circumscribed by virtue of these changes? In other words, the circumstances in which the Commonwealth Ombudsman can undertake an investigation within his jurisdiction is now being restricted to some degree as a result of these changes—yes or no?
I just cannot see any instance where the scenario being painted by Senator Xenophon would occur. I suppose my answer to his question is no. I note—and this may be of interest to Senator Xenophon—that gambling policy, of which interactive gambling is a part, has been reviewed through a national process led by Minister Andrews. I would assume that Senator Xenophon will want to make an input to that process.
The CHAIRMAN: The question is that items 17 to 23 of schedule 2 stand as printed.
Bill agreed to.
Bill reported without amendments; report adopted.