Monday, 22 September 2014
Omnibus Repeal Day (Autumn 2014) Bill 2014; In Committee
by leave—I move the amendments circulated in my name on sheet No. 7548 together:
(1) Clause 2, page 2 (table item 2, column headed "Provision(s)"), omit "5", substitute "4".
(2) Schedule 5, page 54 (line 1) to page 67 (line 4), to be opposed.
We move these amendments for all of the reasons that my colleague Senator Rhiannon and I have articulated. What is being proposed is to remove protections for groundwater from subsidence mining in the Murray-Darling Basin. This is very serious matter and these are mining operations that are not covered by other laws that regulate the water impacts from large coalmining and coal seam gas projects, including in the Murray-Darling Basin. What the government is proposing to do, by repealing the protections for water from subsidence mining, is to allow companies to proceed with mining of gold, silver, copper—a whole host of mines that can have subsidence impacts—without doing the independent study on groundwater that existing section 255AA of the Water Act requires them to do.
We have already discussed how originally we had sought in this place to strengthen that section even further—to say that, if those groundwater impacts were identified in such an independent study, the mining exploration licence should not be granted. Unfortunately, we received very little support in this place for operationalising that groundwater protection. Nonetheless, existing section 255AA does remain on our law books and we think that it should stay there. We have already talked about the adverse changes to the ozone-depleting substances regime that will weaken protection for the atmosphere from ozone-depleting substances and also about the effect of removing the environmental provisions in the Sea Installations Act which cover protections against hotels, artificial reefs, pontoons and the like.
It is clear that we need these environmental protections to remain on our law books. We do not oppose any other part of the bill but the amendments I have moved simply retain those three environmental protections in our laws. The minister claimed that the Water Act protections are redundant because they are duplicative of EPBC Act protections under the water trigger. I have articulated how they in fact cover different operations. Since we are in committee, can the minister articulate how it is the government can still contend that there is duplication when they are clearly covering different mining operations?
As I understand the situation, the Water Act currently requires an independent study to be undertaken. Since 2008, there have been only three studies conducted and those three studies were projects that were also required to be assessed under the national environmental law the Environment Protection and Biodiversity Conservation act 1999. The introduction of the water trigger and establishment of the independent scientific committee on coal-seam gas has made that particular section of the Water Act redundant and the Water Act provisions provide no additional environmental protection. What they do provide yet again is that duplicative situation where there is no need for it. I simply confirm that the government is not about reducing standards; it is about removing a redundant regulation and cleaning up the statute books while protecting our environment. That is what our amendments seek to achieve that is why I commended the bill to the Senate.
The provisions are clearly not redundant when they capture gold mining, silver mining, lead mining and zinc mining in the Murray-Darling basement; whereas the water trigger you refer to only applies to large coalmines and coal-seam gas. Again I seek a coherent explanation of how there is any possible duplication when it is completely different mining that is being addressed by the Water Act as opposed to the water trigger?
My advice is that this removal will ensure that the standard to be applied will be the EPBC Act. At the moment we have two pieces of legislation covering the same situation, on my advice, and the EPBC Act regime seems somewhat more transparent than that under the Water Act. Since 2008, in the last six years or so, under the Water Act it has been used once every two years in circumstances where it also required an assessment under the EPBC Act. It is these things which cost developers to get mines ready for production, which makes exploration and the opening of mines in Australia regrettably more expensive without any genuine extra environmental protection. When the developers look around the world they do not only have to look at Australia; there are opportunities right around the world for these developments. If we impose extra green tape, extra burdens, which, when you step back and ask how this protects the environment and then find it does not really, in those circumstances we say let us get rid of one layer and have the consistency of the EPBC Act applying across the board. That is what we are recommending to the Senate.
To belabour the point, I am afraid the government is going to find it a little difficult to justify their positioning here when it is perfectly clear that we have only had the water trigger on the law books for about 18 months, yet these Water Act provisions have been used three times in the last six years. Clearly without them there would not have been those independent water studies. Yes, we now have the water trigger, but it only applies to large coal mines and coal-seam gas. Is the minister suggesting that the water trigger should be expanded so that it includes the mining activities that the Water Act section you are seeking to repeal currently covers? I would welcome that. Can the minister clarify: will you now expand the water trigger so that it can cover gold mining, silver mining, lead mining, zinc mining and any other subsidence mining currently protected under the Water Act and required to have had an independent study done into its ground water impacts?
There is nothing further I would seek to add to the debate. The positions are clear. We understand where the Greens come from on these matters but I think the explanation I have given to the senator stands. I can understand the Greens, from their position, would not find any change acceptable to them. I accept that. That is the way they approach these matters but, with great respect, we believe there is the appropriate protection here in relation to the provisions of the EPBC Act which cover a multitude of possibilities and eventualities.
So it is appropriate protection to not examine independently the impacts of gold, silver, lead and zinc mining on ground water? That is appropriate protection for the groundwater systems of our most important Murray-Darling Basin system? At least you have belled the cat, Minister. At least it is perfectly clear that you are now seeking to remove protection for our precious groundwater in the Murray-Darling from subsidence impacts from gold, silver, lead to and zinc mining. You have clarified that you think it is an appropriate level of protection to simply have the water trigger on our books. It is interesting how, if you find it so appropriate, you are actually wanting to get rid of that water trigger and give it away to state governments to administer. You say the standards will not drop but you have legislation before this place that says those same standards do not need to be codified in those same state laws that will now perform the function of what used to be your job.
The rhetoric is just disintegrating before our very eyes. Not only with this proposed repeal are you reducing protection for groundwater in the Murray-Darling from subsidence mining where it is not coal seam gas or large coalmines, but you are also trying to trumpet the water trigger which you are trying to get rid of your responsibility for and give to state governments.
Again, I find it very confusing that you are maintaining that there is some kind of duplication here when, clearly, it is different industries that are being covered and when your government is doing all it can to get rid of its responsibilities to protect water under federal laws. I seek a decent explanation as to how you can still contend that this is duplication.
I also want to question the minister in relation to this same aspect. Before I do that, can I just congratulate the government on the bill before us that reduces again red tape in accordance with the commitment that the coalition made prior to the election. Already there has been one series of abolition of red and green tape, which has been particularly beneficial to Australia and will save industry a lot of money. Of course it is not just saving industry; it actually creates wealth and jobs for Australians.
One of the crises that is fast confronting the nation is the unemployment issue and we have to, as a parliament, do everything possible to encourage investment because that encourages new jobs into Australia. If you took any notice of the Greens political party—and, fortuitously, not many people do—we would have very, very high unemployment in this country, because the Greens are intent on stopping any productive activity in Australia. We have seen that in the forests. We have seen it in the fishing industry. We have seen it in many other industries, and the Greens bear a big responsibility for the high unemployment that we have in Australia and which has, regrettably, continued.
The Environment Protection and Biodiversity Conservation Act is a very, very strong piece of legislation. It gives the government power to look at and control anything that impacts on the environment. Senator Waters has been mentioning—I know she said the Barrier Reef but she is certainly talking about the Murray-Darling Basin system. The EPBC Act gives the government very, very strong powers to do most of the things that need to be done to protect our environment. As Senator Abetz has previously indicated, the EPBC Act provides adequate protection to those provisions of the Water Act that are being repealed by this omnibus bill.
I might say the Environment Protection and Biodiversity Conservation Act is perhaps the strongest piece of environment legislation ever introduced into this parliament and was again introduced by a Liberal minister for the environment. I have often said in this chamber: every significant piece of environmental legislation that has actually done something to protect the very special and unique natural assets that we have in this country, has been introduced by Liberal governments over the years.
You will never, ever get the Greens political party acknowledging that, because they have an undying, philosophical hatred against anyone in this chamber who is not from the Labor Party or the Greens. I would love to hear the Greens get up and say, 'What a great job Senator Robert Hill did in introducing that legislation. What a great job Harold Holt did when he introduced the first environment minister into the federal parliament. What a great job Malcolm Fraser did when he moved to protect the Great Barrier Reef and Fraser Island'. But you will never hear the Greens acknowledging any of that, because it just does not suit their political rhetoric.
Again, every time the Greens speak, unfortunately, there is a denigration of the Great Barrier Reef, Australia's greatest natural asset—a natural asset that has been well managed and well protected by successive governments over a long period of time and an asset that significantly contributes to employment in this country in the tourism industry and otherwise.
The Great Barrier Reef—the lagoon, not the reef—is a ship's transport and it brings bauxite from Weipa around to Gladstone where thousands of our fellow Australians are employed in an industry, which, if the Greens had their way, would be in China, creating jobs for the Chinese rather than for Australians.
I want to use those preliminary remarks to, again ask: is there anything these provisions could possibly do that the Environment Protection and Biodiversity Conservation Act would not be able to do under one of the various provisions of that very stringent and strong piece of environmental legislation introduced by a former Liberal government?
I think Senator Macdonald has hit the nub of it. The Environment Protection and Biodiversity Conservation Act ensures that there are those protections. That is why the EPBC Act has overwhelmingly been seen as the general and right approach. As a result, it has superseded a lot of the other specific provisions in particular pieces of legislation that were either done at the time for a particular reason or simply for political reasons later on when there was no actual need for it. Will standards be maintained? Absolutely. Will costs be reduced? Absolutely. Will that enhance job creation in Australia? Absolutely. That is our motivation: job creation without prejudicing environmental standards.
In relation to the matter that Senator Waters raised, can I indicate—I forget the language she used—'passing responsibility for certain matters to state governments' is something that should occur in a cooperative federalist country like Australia. We are a federal system, and what we have had regrettably—and I think both sides of politics have been responsible for this—is one or the other trying to legislate and then gazumping each other. As a result, ever developer—every development—has to go through a two-stage process, where you get state approvals and federal approvals.
We said at the last election—and we went to the election on this—that we believe one-stop shops are the way to go. This would mean there was not confusion; there was not overlap; state bureaucrats would not be tripping over federal bureaucrats with potentially conflicting or different regulations; that they would be clarifying and making transparent the approval processes.
Are we passing to the state governments? Yes, we are; but what is our motivation in doing so? We want the Australian economy to grow at a greater rate than she is at the moment, at a rate that will ensure there will be genuine jobs growth. We want the economy to grow so that school leavers at the end of this year will be able to look forward to a future of gaining a job, becoming self-sufficient and self-reliant—that is our motivation—whilst ensuring that environmental standards are protected.
Labor does not support these amendments to schedule 5 of the omnibus repeal bill. Schedule 5 of the bill removes regulatory duplication in environmental protection. Labor believes that, where there are opportunities to streamline environmental assessment processes without weakening protections, those opportunities should be taken, and that removing duplication and superseded legislation makes sense.
I think Senator Collins went through our position in some detail earlier so I will not repeat that. I just want to indicate, as a former chair for some years of the environment and communications committee, that I think the big challenge for protection of the environment is not removing unnecessary duplication but protecting the environment and simply delegating approval of power to the states. I think that has been clear. There have been many submissions to the environment committee over a long period of time about handing powers of approval over to the states. That is where the danger lies, not in the repeal of a duplicative and superseded legislation.
Certainly Labor is of the view that that is a key issue that has to be addressed. Another of the key issues is—in terms of the environment—not offering to do deals with the government on so-called Direct Action policy. I think the big problems are in two areas: the Direct Action policy and handing power to the states.
In terms of unnecessary duplication: where it is not an environmental problem, we support it. We certainly do not support handing environmental powers to the states, given the record of the states over a long period of time; and we certainly will not be working with the government to hand over taxpayers' money to big polluters for the privilege of polluting. Our position is clear on this. We will not be supporting these amendments for the reasons that Senator Collins has outlined and the reasons that I have just amplified.
I go back again to this contention that it is duplicative, that protection for water from coal and coal seam gas is somehow the same as protection for water from silver, gold, lead and zinc mining. I cannot understand why it is so difficult for you both to accept that these laws do different things. That is why we are proposing that you keep the Water Act section that protects groundwater in the Murray-Darling from lead, copper, zinc and gold mining. That is different to coal seam gas and coalmining. Please, can somebody articulate that you realise that those minerals and commodities are different and that you just seek to weaken protection for groundwater in the Murray-Darling Basin. At least then you would be being honest about what you are seeking to do here.
I note that Senator Cameron said there was no duplication here. But there is a real problem if section 255AA is removed. The senator—often we have to be outside the chamber—may have missed that there is a real problem. If that section is removed and then replaced with what is being proposed, which is an independent expert scientific committee, it only covers coal seam gas and large coal mining developments. That is set out in the explanatory memorandum of this bill. The minister has failed. He has not answered my colleague Senator Waters's question, who set it out very clearly and requested that he detail how the government is proposing to handle this.
We have mining around this country and in New South Wales, which has the largest part of the Murray-Darling Basin, with silver, gold, copper, lead, zinc and, possibly, uranium mining. The minister came to a point. It was like something dawned on him, 'Wow, we have actually been caught out here.' But he would not explain what they are going to do because he has got no explanation, clearly. They have gone from what was a reasonable part of the bill. As I said in my second reading speech, section 255AA of the Water Act does require an independent expert impact study into the effects of mining subsidence on the Murray-Darling groundwater system.
We are going backwards. Maybe Labor and the coalition have not been briefed properly. Maybe they are not sure but, at the moment, what it is looking like is another leg-up to the mining industry. We see it time and time again in state and federal parliaments around this country, where the mining industry gets what the mining industry wants. Right now, it looks very much like that. You cannot just say, 'It is not a duplication,' or say, 'We just have another way of doing it. Because we have got the EPBC Act, we have got a water trigger.' No, there is something that is going to be lost here that is very important—that is, requiring the studies when mining that is not just coal seam gas and coal mining is undertaken.
Minister, if another large-scale copper mine in the Murray-Darling Basin system was proposed that would result in subsidence, what studies would be undertaken and what aspects of these changes would be significant for that development?
I might ask the minister and I might ask Senator Rhiannon as well. As I recall—and I do not have the EPBC Act in front of me—anything that has any impact on Ramsar wetlands is something that the EPBC Act can deal with. Again, I am not well enough prepared to actually name the Ramsar wetlands in the Murray-Darling Basin except to say that I am sure some part of the Murray-Darling Basin is subject to Ramsar classification. If I speak long enough, the names of those Ramsar wetlands will come to me. You were talking about subsidence from mining operations—drawing a very long bow—but, nevertheless, if subsidence in the Murray-Darling Basin because of mining is going to occur then it must, of necessity, have some impact on Ramsar wetlands, which are in the Murray-Darling Basin area. That then would seem to me to be an issue for the EPBC Act. There are other provisions of the EPBC—unfortunately, I do not have it in front of me—dealing with a range of water issues which would enable the EPBC Act, as I understand it, to do what this Water Act provision that we are trying to repeal already does. It was typical of Labor and of the Greens that it did not matter to put regulation on regulation and regulation. It did not seem to worry the Greens that that, effectively, at the bottom-line, cost jobs for Australians. I have mentioned in this chamber on many occasions that sort of duplication costs Australia jobs.
I have often spoken in this chamber about an aquaculture project—digressing slightly, I see the Marine Conservation Society is saying what a great thing aquaculture is yet their mates in the radical Green movement will take every step possible to stop any proper aquaculture operations—that I am familiar with. I saw the project's EIS for the Commonwealth and it was about half a metre high of paper. That is okay; it needed to be done thoroughly. But this is half a metre paper for the Commonwealth investigation when they already had another half metre of paper for the state investigation on exactly the same sort of thing. And that is what this Omnibus Repeal Day is all about and our party is all about—trying to maintain the standards and protections that are essential but stopping the senseless activity of having to do the same exercise over and over again. It just does not make sense. Sure, the protections need to be there, they need to be strong and they are strong.
You have a process where you go through all of the state government approvals, which takes years, millions of dollars and costs hundreds of jobs, and that is fine; it has to be done. But then, having got state government approval on a very rigorous process, you would think you could go ahead and create the activity and create jobs for Australians but, low and behold, you have to do it again under the EPBC Act. You have to go through the same process again, costing millions of dollars and hundreds of jobs.
That is what this whole process wants to address, and that is what I am quite confident the EPBC Act will do in the hypothetical situations raised by the Greens political party in their questions to the minister. My question to the minister goes to whether the minister or his advisers have the sort of information that we need to explain to the Senate which provisions of the EPBC Act are relevant to the issue. From my memory, I am sure there are provisions in the act, and I hope the minister can refresh my memory on just what they are.
I can indicate to the Senate that, whilst subsidence mining operations may not be limited to CSG and large coalmining projects which are subject to the water trigger and advice by the independent expert scientific committee under the EPBC Act, mining interception activities in the Murray-Darling Basin must be specified in state water resource plans and accredited in accordance with the basin plan. Accredited water resource plans must set out a process for monitoring the impact of all listed interception activities and associated actions that will be taken in the event that monitoring shows any impacts that compromise environmental watering or an increase in the quantity of water being intercepted. So I think what we would find is that this is a matter for the state regulatory authorities to determine. That is, I dare say, part of our one-stop-shop approach in these matters.
Thank you, Minister, for finally admitting what we have been talking about for the last three hours—namely, that there was not duplication with the Water Act provision that your government is seeking to repeal and with the water protections in a different act applying to different mining activities. Thank you for at least finally admitting that it is not duplication. You have now just said, 'Oh, well, the states are going to do it, so it shouldn't have to be our problem.' We know that is your general approach to environmental protection, we know that you are trying to delegate your existing federal approval powers under the EPBC Act down to states and we know that you contend that the standards will not drop—and yet you are actually also, with legislation before this house, seeking to allow the states to not need to change their laws to reflect those standards. So, in essence, we know your environment policy is a complete dog's breakfast and the mining companies are writing it.
But I do appreciate the honesty with which you have eventually—after the, I think, sixth time I asked the questioned—admitted that there is actually not duplication between these two provisions. Your justification now is, 'It's somebody else's responsibility; so the federal government doesn't need to care.' As I say, I commend your honesty but you do not care about subsidence mining in the Murray-Darling Basin and its impact on groundwater—because that is 'somebody else's problem; that's the state government's problem.' But fact remains that you are removing a federal requirement from the Water Act and you are therefore reducing protection provided by this level of government for groundwater in the Murray-Darling. Again, at least you have now been honest about that fact. It has been perfectly clear to anyone who understands environmental law that that is what was happening all along. But I am grateful to the advisers in the box for eventually providing you with the information that explains what you are actually doing.
I do not think I have anything to add, other than that we think this will result in lower protection for groundwater; that we think this will potentially result in greater subsidence in the Murray-Darling; and that we do not trust the state governments to look after internationally environmentally significant assets. It is not their job. They do not have the personnel to do that job. Queensland have sacked 220 workers from the environment department and I understand you are already sacking many hundreds of environment employees at the federal level. There are not going to be the people to do the work that is currently done by the very busy public servants in the environment department federally. Those people are not going to be in the state department.
We will see standards drop, particularly if you insist on ramming through this place the Environmental Legislation Amendment Bill, which says that state laws do not even need to reflect those federal standards, that they can be partially in plans or guidelines and that is fine. We all know the legal status of plans or guidelines—that is, they can be considered and they do not need to be adhered to. So I am afraid that your rhetoric about standards being maintained is completely wrong at law—and you should know that and have some concern for the flagrant mistruth in that statement. However, my wonders will never cease.
Given the influence that Hansard records the Australian Minerals Council—as it then was back in 2008 when this Water Act provision of 255AA was first introduced—having, I ask whether the mining industry in any of its representative bodies or mining companies themselves have lobbied to have this section removed? What has been the pressure from the mining industry about section 255AA? Is this just your own idea or is the mining lobby driving this one as well?
I am sure Senator Abetz would not be bothered answering that last question about lobbying by the mining industry. What a silly question to pose on this particular bill. I wonder how that is relevant to bill—'Did someone lobby you about this?' That is a wonderful argument and so mature!
I just want to thank the minister for his last answer. What Australia desperately needs is a regulatory body that will look after specific assets like the Murray-Darling Basin. To suggest that New South Wales officials do not have an interest in the Murray-Darling Basin—as the Greens political party are suggesting—is patently wrong. I know that, under their water plan that Senator Abetz has indicated, the New South Wales officials will do everything that needs to be done—but you will not have it duplicated by the Commonwealth.
I thank Senator Abetz for his answer. I think that demonstrates exactly what this bill is all about: maintaining the protections but avoiding the costly job-culling duplication that you see so much. Thanks, Minister, for your answer. I am very satisfied now that the protections are still there but some of the regulation and duplication goes.
I thank Senator Macdonald for his contribution and echo his comments. I say to Senator Waters: you can assert that I have somehow conceded that it is not duplicative. I am sorry; no such thing occurred. In relation to lobbying—and I do not know which track you were going down—I am minded of the fact that the Greens are still the beneficiaries of the largest donation ever made in Australian history, that the person who made it said that he thought it was a very good investment and your former leader said he would be forever grateful. We saw how that all turned out in the destruction of jobs in my home state of Tasmania.
Senator Waters then referred to internationally recognised watercourses. If they are internationally recognised, they would be under the World Heritage or Ramsar listed wetlands, and that of course would trigger the provisions of the EPBC Act. If we want to talk about 'internationally recognised', then of course they are covered by the EPBC Act. I reiterate that, under the Murray-Darling Basin Plan, there have to be plans submitted in relation to sustainable diversion limits, on water and of water. I am not sure with what greater moral authority Commonwealth bureaucrats might be clothed than state bureaucrats. I believe that both state and federal bureaucrats are honest, diligent and committed to doing their task in a professional manner. To try to suggest that just because a Commonwealth official might do something it will, by necessity, be of a higher standard than that of a state official—I am sorry, I do not agree with that view of the world.
I do not know if that can be construed as a response to my very clear question, so I will come back to that point. There were a number of assertions there that were inaccurate and misrepresented points that I had made. Senator Abetz seems to think that I think state and federal bureaucrats are somehow different in their competencies. I did not suggest that at all. The fact remains—and I cannot believe I have to explain to Senator Abetz—that legislation guides decision making and when legislative rules are different you get different decisions. That is the point about you saying that the federal standards do not need to be reflected in state laws—ergo they will not be complied with; ergo different decisions will be made. It is quite shocking that we are having this level of debate. I am really quite disheartened. I was already disheartened in this government, but I am truly shocked that Senator Abetz seems to be having difficulty with basic concepts, given the seniority of his role. I do not wish to descend into personal insults; I am simply flabbergasted. Be that as it may, could I please have an answer to the question about whether there were representations made at any stage since 2008, when this Water Act provision was inserted, by the mining industry, in any of its guises, to have it removed? That was my simple question. I am happy if the answer is no—then it was your own silly idea—but I would like to know whose idea it was.
I cannot answer that question. I do not know what representations have been made since the Water Act 2007 was introduced—that was seven years ago—who approached whom, what, when and how. I cannot answer that. What I can tell you is this: we as a government ensure that, irrespective of by whom we might have been lobbied, we take decisions in the national interest. That is what motivates us. Just because one, two, three or no individuals approached us to lobby us about a certain course of action, we will always be an open government, we will always listen to people who come before us and put proposals to us, and we will consider them and listen to them. We do not have closed minds, unlike some others in this place. But, having said that, at the end of the day we will make decisions based on the national interest, irrespective of by whom we might have been lobbied.
Mr Chairman, I now seek leave to move amendments (1) through (4), on sheet 7566, which were only circulated about 20 minutes ago.
The CHAIRMAN: Senator Ludlam, it would be more helpful if you could seek leave to move amendments (1) and (3) together, and (2) and (4) together, given that (1) and (3) are consequential on (2) and (4). I am happy for you to speak to them all at one time, though.
by leave—I move amendments (1) and (3) together, and (2) and (4) together, on sheet 7566:
(1) Schedule 2, page 9 (line 2), omit the heading.
(2) Schedule 2, item 5, page 9 (lines 3 to 15), to be opposed.
(3) Schedule 2, page 9 (line 16), omit the heading.
(4) Schedule 2, items 6 to 16, page 9 (line 17) to page 11 (line 6), to be opposed
I will seek Senator Abetz's reading, by way of apology, that the chamber has only had 20 or 25 minutes to consider these amendments. I guess that is one of the consequences of dealing with an ominous bill of this type that deals with 100 issues on a day. This is a small one that nearly slipped through and I will grant the minister the benefit of the doubt that this is a drafting error and it is not intentional. This does not at all fit my conception of red tape removal or streamlining legislation, which I think everybody in here is reasonably comfortable with. This is about a Commonwealth regulator, in this case ACMA, to whom you complain about the behaviour of commercial broadcasters, public broadcasters and some quarters of the internet. You can also make complaints relating to broadcasting and broadcasting services, data-casting services and prohibitive content. It is actually quite an important area of regulation. On my reading of these amendments—and I am taking this from the government's explanatory memorandum, on page 13—ACMA at the moment, as you would expect and hope, is not required to investigate complaints where they are considered to be, according to the government's explanatory memorandum, 'frivolous, vexatious or not made in good faith'.
What you have done there, on the basis of your judgement, is say to the regulator that if a complaint is simply a waste of everyone's time, you will not then be compelled to investigate it, which is reasonable. The next paragraph of the EM says:
The effect of the amendments are to remove the ACMA’s statutory duty to investigate complaints that do not fall in the limited categories for exemption. Instead the ACMA would have discretion to investigate the complaint if the ACMA considered it is desirable to do so.
I am a bit gobsmacked, so I am hoping that Senator Abetz can confirm this is a drafting error—and that we will not need to call a vote because we will all be on the same side of the chamber—and that you do not allow a regulator to regulate on a day when it feels like it and you do not remove the obligation for a regulator to uphold complaints of broadcasting made by the public or other organisations on the basis of what it considers desirable. I might hold it there and we will work out what kind of debate we are about to have. Senator Abetz can clarify exactly what it is that the government is up to and whether this is a conspiracy or a stuff-up.
The answer is neither and that answer would not surprise Senator Ludlam. Might I also say that it is somewhat disingenuous of him to suggest that the parliament is considering 100 changes on a day and that it is all a bit rushed.
This legislation was introduced into the House of Representatives four days short of six months. So it has been there for the public to see now for six months. We stand by the amendments that we are seeking and just remind everybody that the Commonwealth Ombudsman will still be able to review ACMA's administrative actions in performing its investigative functions.
Labor will be opposing these amendments. We supported this bill in the House of Representatives because we thought that there were no unforeseen circumstances that would prevail in the bill that were a problem. We have only just received these. Senator Ludlam, I accept the issues that you have raised are important in terms of your position, but we have only just received them, so we have not had a chance to have a really close look at it. But, given the position we have adopted in the House of Representatives, we will continue to oppose these amendments. We believe ACMA can do its job with the bill as it stands. Maybe, Senator Ludlam, in future, we can get discussions on these issues a bit earlier.
I just want to add my support to the amendments moved by Senator Ludlam and express my concern in terms of what the government is proposing. I am not suggesting that the government has rushed this or tried to sneak it through or anything like that, but the reality is that I have small office, a very hardworking office, and we are doing our very best to deal with every piece of legislation. This, too, is something that has slipped through the net.
The particular interest I have in this area relates to online gambling. My office gets complaints, not from just from South Australia but from around the country, in terms of complaints directed towards ACMA in respect of interactive gambling issues, where people have lost significant amounts of money—in some cases, their homes—because of the money they have lost in terms of online gambling. ACMA is often the only regulator that can assist in respect of that—or complaints about games that are targeting children that could be quite problematic in terms of future problem gambling behaviour.
My concern relates to the wording of the omnibus bill where it refers to 'desirable to do so'. What does the government say is the meaning of 'desirable to do so' and in what circumstances will that discretion be exercised? It seems to me that it is such a broad discretion that ACMA—perhaps through resource constraints, perhaps any other reasons or other priorities—can ignore matters that are clearly in the public interest, that are clearly of great personal interest for an individual that has lost a significant amount of money through online gambling. What safeguards are there in respect to that?
I note that the Leader of the Government, Senator Abetz, made reference to the Ombudsman having a say or an oversight role in respect of this. I do not pretend to be a better administrative lawyer than Senator Abetz by any standard, but my understanding is that, when it comes to dealing with administrative law matters, the Ombudsman's role is constrained based on the legislative framework. So if you have a legislative framework where there are so much more discretion for ACMA, there is less of a role, less chance for the Ombudsman to intervene, because there is such a broad discretion. The Ombudsman is there if there has been clearly a failure of process under the existing legislative framework. So these are my very real concerns expressed in the context of online gambling complaints that I get from my South Australians constituents and from people in the rest of the country who are concerned about this issue.
If I could very briefly respond to what I was saying to Senator Ludlam in relation to the Commonwealth Ombudsman, the information I have goes further: that not only does it not impact on the powers of the Commonwealth Ombudsman to review the ACMA's administrative actions in performing its investigative function, or for the decision to be subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977.
In relation to ACMA deciding that it is 'desirable to do so'—that phrase 'desirable to do so'—it would be expected that ACMA will continue to inform complainants about the result of an investigation as a matter of best practice. At the end of the day, yes, we do rely on the officials to act in a reasonable and appropriate manner, and they will be given that discretion as per the legislation.
My concern with the Leader of the Government's response is this: that, because it is a question of 'desirable to do so' under what is proposed in the omnibus bill, it gives such a broad discretion to ACMA that any realistic opportunity of judicial review or intervention by the Ombudsman will in effect be lost because it is so broad. There is such a broad discretion there that 'desirable to do so' is not the same as being concerned about the public interest or looking at the individual circumstances of an individual that may have been particularly affected by the matter for which they wish to seek intervention or assistance from ACMA. I am concerned that that level of discretion is so broad as to render the opportunity of a remedy through judicial review or through the Ombudsman as largely ineffective. My question to the minister is: does he agree with that proposition as a matter of law? Secondly, does the minister take the view that, in effect, 'desirable to do so' is not something that has been tested in another piece of legislation? Are there other examples of the phrase 'desirable to do so' in other pieces of legislation and similar regulatory frameworks where it has been used, where it has been effective or not? Is there a precedent for the 'desirable to do so' phrase?
There are two questions there. First of all, as a matter of law, I gave away the wig and gown many years ago and am no longer in the business of giving legal opinion, Senator Xenophon. However, in relation to whether the term 'desirable to do so' is used in other legislation: regrettably, I cannot assist you on that; I do not have any advice and I personally cannot think of an example. That does not mean that it does not exist, but I am unable to assist you.
I am grateful for the minister's candour! I still do not pretend, even though I still have a practising certificate—for my sins, I still do enough pro bono work around the place on issues. But I would have thought that, administratively, as a matter of law, it does mean judicial review, administrative law review, review by the Ombudsman, is much more problematic because of this wording, and the fact that the department or the minister's advisers cannot refer to any benchmark in terms of 'desirable to do so' indicates that we are perhaps in uncharted waters.
I feel very concerned about what is being proposed. I also just wanted to get some clarification from the shadow minister as to whether this is a particular section that the opposition will be opposing in the context of this.
I will be seeking a division on this. I do not think we should be going down this path.
I do not have more time but I think there is an argument that this would make it more difficult, for complaints in respect of online gambling and other issues where ACMA has jurisdiction, for there to be action. The online casino operators of Gibraltar and the Bahamas or Costa Rica or wherever will be very happy with this amendment, because it will mean less chance of ACMA being involved to protect consumers from abuses.
While the minister is seeking advice, I would be very keen to know where in law the minister can point to any statute, anywhere at all, where the phrase 'desirable to do so' is defined, so that ACMA will know on what its various desires on any given day, about whether it exercises its powers or not, will be based. I think Senator Xenophon has pointed out quite correctly that it makes it impossible for decisions like this to be judicially reviewed if ACMA can just kick back and say, 'We decided it wasn't desirable, and that's that.' So if the minister can provide us with what ACMA will be using as its working definition of desirability, for whether or not to do its job, that would assist greatly.
I have since been advised that there are allegedly many examples of the phrase 'desirable to do so'. The Superannuation (Resolution of Complaints) Act 1993 slipped my mind when I was responding. I am advised that there are also quite a few other examples, so we are not into uncharted territory here. It is an established legal term that has been used and, as you might guess, Senator Xenophon, I did not practice in the area of administrative law.
Senator Abetz, if this is an established approach that has been taken in previous legislation, do you have any examples as to where the issues that Senator Xenophon is raising have been dealt with—not the specific issues but the principles that he has raised? Does it cause or has it caused any of the problems that Senator Xenophon has raised in any other pieces of legislation? Obviously, if what Senator Xenophon is saying is correct then there are issues that need to be resolved in relation to this. The other question would be: in terms of the Interactive Gambling Act 2001, would there be a need for separate amendments on that, Senator Abetz? Do you see this as falling within the same principles as Senator Xenophon is raising?
I have since been given a checklist showing that the term to which Senator Xenophon referred, 'desirable to do so', in fact appears in 20 pieces of federal legislation. It has been relatively commonly used, it would appear, for over two decades now. Does this provide a wide discretion to the officials? Yes it does. We accept that. We believe that, in all the circumstances, it is appropriate. But, of course, as with all government departments and agencies, it is expected that ACMA will inform the public and the broadcasting industry about its general approach to investigating complaints in its discretion, and that will be made known publicly.
I recognise that we are probably about to go to question time, but maybe I will just put this question on notice for the minister and his officers to consider in the interim. You have put examples to us to show that this is a term of art that is been used in other acts. I ask whether, in any of the other examples the minister wants to name, that idea of desirability is actually determinative as to whether or not the regulator uses its powers—as to whether or not the regulator actually does its job—or whether it has been interpreted in more peripheral ways in other acts? I thank the minister for acknowledging that it does exist in other acts. I am not familiar with the one that he cited. But to me it seems wide open to allow a regulator, in any field at all, to decide whether to do its job not on the basis of, 'Ignore the frivolous and vexatious stuff,' but, 'Just if you happen to feel like it.' I would still be seeking any criteria that ACMA would be forced to use as a benchmark, which, again, would form part of any future judicial review of a particular decision that might be contestable. And I ask: would ACMA have an obligation to inform complainants that it chose not to investigate that particular complaint because it found it to be not desirable? So my question is: just what is that feedback process going to be either in terms of annual reporting to the parliament or reporting directly to the complainant?
Best practice does require ACMA and other organisations to inform complainants about the results of an investigation. This term that we are discussing has been in legislation, as I indicated, for over two decades. Its meaning is understood. It does give discretion to people in whom we have trust. That is why they are appointed to these positions. I commend the proposal to the Senate.