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senate vote 2017-10-18#4
Edited by
mackay staff
on
2018-01-20 17:15:21
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Title
Description
The majority voted against an amendment introduced by Labor Senator [Carol Brown](https://theyvoteforyou.org.au/people/senate/tasmania/carol_brown) that dealt with disclosure of interests.- The majority voted against an [amendment](http://www.openaustralia.org.au/senate/?id=2017-10-18.4.2) introduced by Labor Senator [Carol Brown](https://theyvoteforyou.org.au/people/senate/tasmania/carol_brown) that dealt with disclosure of interests.
- Senator Brown explained that:
- > *Disclosing any conflicts of interest by the CEO is about transparency to ensure that decisions made by the CEO are made without personal influence or indeed external influence. Ensuring that the CEO discloses any conflicts of interest will reduce the risk of any potential for corruption and/or misconduct. For the minister's information, that is a part of the Clean Energy Finance Corporation.*
- However, Liberal Senator [Anne Ruston](https://theyvoteforyou.org.au/people/senate/sa/anne_ruston) said that the Government would not support the amendment, explaining that:
- > *As you would be aware, the [PGPA Act](https://www.finance.gov.au/resource-management/pgpa-act/) [Public Governance, Performance and Accountability Act 2013] requires officials of Commonwealth entities to disclose any material personal interests that relate to the affairs of the entity, and it also requires and provides for rules to prescribe how and when those interests are to be disclosed. The [PGPA Rule](https://www.finance.gov.au/resource-management/pgpa-rule/) provides for the board, as the accountable authority of the entity, to instruct how officials of the corporation, including the CEO, are to disclose the interests.*
- ### Amendment text
- > *(7) Page 23 (after line 10), after clause 41, insert:*
- > *41A Disclosure of interests*
- > *(1) The CEO must give written notice to the Board of any disclosure made by the CEO under section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests).*
- > *(2) Subsection (1) applies in addition to any rules made for the purposes of section 29 of the Public Governance, Performance and Accountability Act 2013.*
- > *(3) For the purposes of this Act and the Public Governance, Performance and Accountability Act 2013, the CEO is taken not to have complied with section 29 of that Act if the CEO does not comply with subsection (1) of this section.*
- ### What does this bill do?
- The [bill](https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5906) was introduced to create a Regional Investment Corporation to administer farm business loans and financial assistance granted to states and territories. Read more about it in the [bills digest](https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1718a/18bd013).
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senate vote 2017-10-18#4
Edited by
mackay staff
on
2017-11-25 16:27:29
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Title
Bills — Regional Investment Corporation Bill 2017; in Committee- Regional Investment Corporation Bill 2017 - in Committee - Disclosure of interests
Description
<p class="speaker">Anne Ruston</p><p>by leave—I move government amendments (1) and (2) on sheet EF114 together:</p><p class="italic">(1) Clause 12, page 11 (after line 15), after subclause (3), insert:</p>- The majority voted against an amendment introduced by Labor Senator Carol Brown that dealt with disclosure of interests.
- ### Amendment text
- > *(7) Page 23 (after line 10), after clause 41, insert:*
- > *41A Disclosure of interests*
- > *(1) The CEO must give written notice to the Board of any disclosure made by the CEO under section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests).*
- > *(2) Subsection (1) applies in addition to any rules made for the purposes of section 29 of the Public Governance, Performance and Accountability Act 2013.*
- > *(3) For the purposes of this Act and the Public Governance, Performance and Accountability Act 2013, the CEO is taken not to have complied with section 29 of that Act if the CEO does not comply with subsection (1) of this section.*
- ### What does this bill do?
- The [bill](https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5906) was introduced to create a Regional Investment Corporation to administer farm business loans and financial assistance granted to states and territories. Read more about it in the [bills digest](https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1718a/18bd013).
<p class="italic">  (3A) In giving a direction under subsection (3), the responsible Ministers must exercise their powers consistently with the <i>Water Act 2007</i>.</p><p class="italic">  (3B) Before giving a direction under subsection (3) in relation to a water infrastructure project that is wholly or partly within the Murray-Darling Basin (as defined by the <i>Water Act 2007</i>), the responsible Ministers must seek the Murray-Darling Basin Authority's advice as to whether in giving the direction, the Ministers would be exercising the Ministers' powers consistently with the Basin Plan (as defined by the <i>Water Act 2007</i>).</p><p class="italic">(2) Clause 12, page 11 (after line 18), after subclause (4), insert:</p><p class="italic">  (4A) If:</p><p class="italic">(a) the responsible Ministers give a direction under subsection (3) to the Corporation to enter into an agreement; and</p><p class="italic">(b) the direction is one in relation to which the responsible Ministers received advice from the Murray-Darling Basin Authority under subsection (3B);</p><p class="italic">then:</p><p class="italic">(c) the Board must notify the responsible Ministers when the agreement has been entered into; and</p><p class="italic">(d) the responsible Ministers must publish the advice on the internet within 30 business days of receiving the notice under paragraph (c).</p><p>The government amendments to the Regional Investment Corporation Bill 2017 relate to directions that the responsible ministers are able to give to the corporation under clause 12(3) directions to enter into grants of financial assistance for water infrastructure projects. That directions power is an important part of the government's arrangements of the National Water Infrastructure Loan Facility and provides the mechanism for government to communicate its decisions on projects that have been approved for a loan. The amendment makes it clear that, in giving a direction under clause 12(3), the responsible ministers need to exercise their powers consistently with the Water Act 2007. They will also have to seek the advice of the Murray-Darling Basin Authority before issuing a direction under clause 12(3). This requirement ensures that the responsible ministers receive advice on the consistency of the projects with the Basin Plan from the independent body that is best placed to make the assessment. The government is committed to working with states and territories to build the water infrastructure needed for agricultural industries to expand and increase their productivity, and the National Water Infrastructure Loan Facility is a critical part of that commitment.</p><p>We are also committed to meeting our water management obligations, and this amendment makes that clear and should provide confidence to the senators in supporting this bill. In moving this amendment, I acknowledge in particular the interest of senators from my home state of South Australia in making sure that we are absolutely explicit that there is no impact on the delivery of the Murray-Darling Basin Plan and in particular water policy by this organisation. I thank Senator Xenophon for his work with me and the department on ensuring that we have the very clearest of conditions included in the bill to make sure that the Murray-Darling Basin Plan is delivered in full and on time and that the Water Act and water policy are not compromised in any way.</p> <p class="speaker">Nick Xenophon</p><p>I indicate that, obviously, we support this amendment. This is an important amendment in the context of ensuring that there is no ambiguity in how the Regional Investment Corporation will operate in the context of water policy and that the Water Act will not in any way be affected by this and, in particular, the Murray-Darling Basin Plan and sustainable diversion limits. The amendment is self-evident. Senator Ruston has alluded to productive discussions that I've had with her and the Deputy Prime Minister in respect of this. I believe this is a belts-and-braces approach, to put it colloquially, to ensure there is no ambiguity in terms of the impact of any water projects funded under the Regional Investment Corporation legislation. It will provide strong guarantees in directions in terms of the Murray-Darling Basin, that it must be transparent and that responsible ministers within the basin receive advice. That includes the Minister for Water and the River Murray in South Australia, the Hon. Ian Hunter, who has a strong interest in these issues as well. I have spoken to the honourable Mr Hunter in the last 36 hours about the need for this.</p><p>I may ask one question of the minister just so that it's on the record. It's something I have discussed with departmental officers. Does this amendment give rights of judicial review to those who have standing to ensure that it is complied with? In other words, we're not just saying that this must be complied with; can it actually be enforced through a judicial review process?</p> <p class="speaker">Anne Ruston</p><p>To clarify the point that you've just raised: under the Water Act and sections 34 and 35 of the Murray-Darling Basin Plan 2012, it is not lawful for the Commonwealth or a state to construct water infrastructure, whether it is funded by the RIC or by any other mechanism, that would alter the level of take above the relevant SDL in that basin. There are well-established avenues of redress for people or entities, including the state and territories, who are or who believe themselves to be adversely affected by any administrative decisions, including the Administrative Decisions (Judicial Review) Act, so there is nothing in the act that detracts in any way from the longstanding protections of the administrative law that the public may seek judicial review of decisions by the courts.</p> <p class="speaker">Carol Brown</p><p>Labor will be supporting the government's amendments because they do provide additional confidence that water proposals which will be put forward by the responsible ministers to the RIC within the Murray-Darling Basin will need to comply with the basin plan. The amendments will also require the RIC board to consult with the basin authority. I'm not surprised that Senator Xenophon talked about ambiguity in this area, because that ambiguity and that concern follows some of the statements made by the Deputy Prime Minister in response to allegations that water is being taken out of the basin: essentially, that there was nothing to see here.</p><p>This is another example of why this corporation is different from other, similar entities. The influence of the responsible ministers means that the corporation lacks the proper independence and transparency required for the corporation to work effectively and efficiently. But we, as I have said, will be supporting the government's amendments.</p> <p class="speaker">Janet Rice</p><p>The Greens will also be supporting these government amendments. We note in the contributions by the minister and by Senator Xenophon phrases like, 'It's going to ensure that there's no ambiguity,' and, 'It's a belt-and-braces approach, giving certainty and confidence.' Minister, is there actually anything in these amendments that does change things other than as they would already have been underneath the Water Act? What difference will it make to water projects—compared to the Water Act—if this legislation, and this amendment in particular, is passed?</p> <p class="speaker">Anne Ruston</p><p>In essence, the answer is nothing, but what we are seeking to do by this is be explicit in the bill so that there can be no doubt whatsoever that the Regional Investment Corporation cannot override the requirements of the Water Act or, specifically in doing so, the full implementation of the Murray-Darling Basin Plan.</p> <p class="speaker">Nick Xenophon</p><p>I may take some slight issue with what the minister has said—not a big issue; don't panic, it's okay! I just wanted to say that Senator Rice's question is a very important question. My understanding, from a point of view of statutory interpretation is that where you have two competing acts there sometimes may be some ambiguity. Having this particular amendment removes that ambiguity. I think it's fair to say that what Senator Ruston said is absolutely right—the intent is that the Water Act is at all times adhered to, particularly when it comes to sustainable diversion limits and the like. But, if there could potentially, as a question of law, sometimes be a conflict between the two acts which could be the subject of legal argument, this amendment would remove that issue of legal argument. You've got some esteemed lawyers from the department behind you who know more about administrative law than I ever will—apart from being a plaintiff or defendant in administrative law cases. I suggest to Senator Rice that this amendment is doing some good work. It's not just a symbolic amendment; it actually ensures that there cannot be an argument down the track to say that the Regional Investment Corporation Act takes precedence over the Water Act, which could be a potential argument. That's my jurisprudential lesson for the day. Maybe the lawyers there will disagree with me; I'll try and dig up some case law if they do, so just give me a moment.</p> <p class="speaker">Anne Ruston</p><p>And I probably wasn't exactly accurate in my response to you, Senator Rice. The requirement for the Murray-Darling Basin Authority to prejudge an action by the RIC in relation to water infrastructure as having complied with the Water Act is an additional requirement that does not currently exist. So I should correct myself and say, yes, there is an additional level of protection that is added by the requirement to predetermine the compliance with the act.</p> <p class="speaker">Janet Rice</p><p>To clarify, it depends on your definition of 'symbolic', then, as to it giving that extra certainty, but, essentially, other than that additional requirement of compliance, all of the measures that are in this amendment are just repeating things that are in the Water Act.</p> <p class="speaker">Nick Xenophon</p><p>My office sought advice from environmental lawyers about this amendment, and it does do useful things around the rights and enforcement of the Water Act. There may well be environmental lawyers who Senator Rice deals with as well, but I think it is a belt-and-braces approach in a meaningful way.</p> <p class="speaker">Linda Reynolds</p><p>The question is that amendments (1) and (2) on sheet EF114 be agreed to.</p><p>Question agreed to.</p> <p class="speaker">Carol Brown</p><p>I move opposition amendment (7) on sheet 8225:</p><p class="italic">(7) Page 23 (after line 10), after clause 41, insert:</p><p class="italic">41A Disclosure of interests</p><p class="italic">(1) The CEO must give written notice to the Board of any disclosure made by the CEO under section 29 of the <i>Public Governance, Performance and Accountability Act 2013</i> (which deals with the duty to disclose interests).</p><p class="italic">(2) Subsection (1) applies in addition to any rules made for the purposes of section 29 of the <i>Public Governance, Performance and Accountability Act 2013</i>.</p><p class="italic">(3) For the purposes of this Act and the <i>Public Governance, Performance and Accountability Act 2013</i>, the CEO is taken not to have complied with section 29 of that Act if the CEO does not comply with subsection (1) of this section.</p><p>The government moved its own amendments in the House to address concerns raised in the Rural and Regional Affairs and Transport Legislation Committee report on this bill. The Pastoralists and Graziers Association of WA argued that a board membership of three was too small, arguing that the size of the board and its composition should be similar to that found in private financial organisations in order to cover the range of qualifications.</p><p>In addition to the board size amendments, we have seen the government moving further amendments which clearly show the lack of proper consultation in the development of the current bill, and we urge all senators to support our amendments requiring the CEO to disclose any personal or acquired conflicts of interest. This amendment will strengthen the independence and transparency of the corporation.</p><p>Minister Ruston earlier made reference to the Clean Energy Finance Corporation, claiming that the RIC is established under the same legislative scrutiny as the Clean Energy Finance Corporation. If this is true, the government should have undertaken this amendment on their own to ensure that the CEO discloses any personal interest that she or he may have or acquire which would be in conflict with the proper performance of the CEO's duties.</p><p>Disclosing any conflicts of interest by the CEO is about transparency to ensure that decisions made by the CEO are made without personal influence or indeed external influence. Ensuring that the CEO discloses any conflicts of interest will reduce the risk of any potential for corruption and/or misconduct. For the minister's information, that is a part of the Clean Energy Finance Corporation. We hope that the government will consider this amendment, see that this is an amendment worthy of support and support the amendment before us now.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>
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