Boyce, Sen Sue (The ACTING DEPUTY PRESIDENT)

The ACTING DEPUTY PRESIDENT ( Senator Boyce ) (17:38): Pursuant to standing orders, I present documents listed on today's Order of Business at item 16 which were presented to the President, the Deputy President and Temporary Chairmen of Committees after the Senate adjourned on 23 and 25 November 2011. In accordance with the terms of the standing orders, the publication of the documents was authorised. The list read as follows— (a) Document certified by the President President's report to the Senate on government responses outstanding to parliamentary committee reports as at 23 November 2011 (received 25 November 2011) (b) Committee reports 1. Rural Affairs and Transport References Committee––Interim report––The impact of mining coal seam gas on the management of the Murray Darling Basin (received 30 November 2011) 2. Foreign Affairs, Defence and Trade References Committee––Interim and preliminary reports––Procurement procedures for Defence capital projects (received 30 November and 15 December 2011, respectively) 3. Parliamentary Joint Committee on Corporations and Financial Services–– Report, together with the Hansard record of proceedings and documents presented to the committee––Consumer Credit and Corporations Legislation Amendment (Enhancements) Bill 2011 (received 2 December 2011) 4. Economics Legislation Committee––Report, together with submissions received by the committee––Consumer Credit and Corporations Legislation Amendment (Enhancements) Bill 2011 [Provisions] (received 7 December 2011) 5. Joint Select Committee on Gambling Reform––Report, together with the Hansard record of proceedings and documents presented to the committee––Interactive and online gambling; Interactive Gambling and Broadcasting Amendment (Online Transactions and Other Measures) Bill 2011 (received 8 December 2011) 6. Committee of Senators' Interests—Report––Register of senators' interests, incorporating statements of registrable interests and notifications of alterations of interests of senators lodged between 6 August and 30 November 2011 (received 8 December 2011) 7. Joint Standing Committee on Electoral Matters—Report––Funding of political parties and election campaigns (received 9 December 2011) 8. Rural Affairs and Transport References Committee––Interim report––Biosecurity and quarantine arrangements: the management of the removal of the fee rebate for AQIS export certification functions (received 12 December 2011) 9. Standing Committee on Appropriations and Staffing––Annual report for 2010-11 (received 23 December 2011) (c) Government responses to parliamentary committee reports 1. Rural Affairs and Transport Legislation Committee––Report––Exposure draft and explanatory memorandum of the Illegal Logging Prohibition Bill 2011 (received 25 November 2011) 2. Legal and Constitutional Affairs References Committee––Report––Review of government compensation payments (received 29 November 2011) 3. Community Affairs References Committee––Report––Gene patents (received 6 December 2011) 4. Environment, Communications and the Arts References Committee––Report–– Forestry and mining operations on the Tiwi Islands (received 19 December 2011) 5. Joint Select Committee on Cyber Safety––Interim report––High-wire act – cyber safety and the young (received 20 December 2011) 6. Finance and Public Administration References Committee––Report––Native vegetation laws, greenhouse gas abatement and climate change measures (received 16 January 2012) 7. Finance and Public Administration References Committee––Report––Administration of health practitioner registration by the Australian Health Practitioner Regulation Agency (received 19 January 2012) 8. Finance and Public Administration Legislation Committee––Report––Annual report referred to legislation committee––No. 2 of 2009 (received 24 January 2012) 9. Economics References Committee––Reports–– Milking it for all it's worth: Competition and pricing in the Australian dairy industry (received on 3 February 2012) Impacts of supermarket price decisions (received on 3 February 2012) (d) Ministerial statement Minister for Broadband, Communications and the Digital Economy (Senator Conroy)––Australia network (received 23 November 2011) (e) Government documents 1. Aged Care Act 1997––Report for 2010-11 on the operation of the Act (received 25 November 2011) 2. Royal Australian Air Force Veterans' Residences Trust Fund––Report for 2010-11 (received 29 November 2011) 3. Australian Curriculum Assessment and Reporting Authority (ACARA)––Report for 2010-11 (received 29 November 2011) 4. Executive Director of Township Leasing––Report for 2010-11 (received 29 November 2011) 5. Native Title Act 1993––Native title representative bodies––Central Land Council– –Report for 2010-11 (received 29 November 2011) 6. Mid-year economic and fiscal outlook––2011-12––Statement by the Treasurer (Mr Swan) and the Minister for Finance and Deregulation (Senator Wong) (received 30 November 2011) 7. Australian Human Rights Commission––Report No. 47––Mr Heyward v Commonwealth of Australia (Department of Immigration and Citizenship) (received 1 December 2011) 8. Cotton Research and Development Corporation––Report for 2010-11 (received 2 December 2011) 9. Grape and Wine Research and Development Corporation––Report for 2010-11 (received 2 December 2011) 10. Freedom of Information Act 1982––Report for 2010-11 on the operation of the Act (received 2 December 2011) 11. Social Security Appeals Tribunal––Report for 2010-11 (received 7 December 2011) 12. National Offshore Petroleum Safety Authority––Report 2011: Second triennial review of the operational effectiveness of the Authority (received 8 December 2011) 13. Productivity Commission—Report No. 56—Economic structure and performance of the Australian retail industry— Report (received 9 December 2011) Government response (received 9 December 2011) 14. Australian Communications and Media Authority—Report for 2010-11 (received 12 December 2011) 15. Environment Protection and Biodiversity Conservation Act 1999––Australia State of the Environment Committee––Report 2011 (received 12 December 2011) 16. Indigenous Business Australia––Report for 2010-11 (received 13 December 2011) 17. Sugar Research and Development Corporation––Report for 2010-11 (received 13 December 2011) 18. Department of Finance and Deregulation––Consolidated financial statements for the year ended 30 June 2011 (received 13 December 2011) 19. Australia Business Arts Foundation Ltd––Financial statements for 2010-11 (received 14 December 2011) 20. Murray-Darling Basin Authority––Report for 2010-11 (received 15 December 2011) 21. National Health and Medical Research Council (NHMRC)––NHMRC Licensing Committee––Report on the operation of the Research Involving Human Embryos Act 2002 for the period 1 March to 31 August 2011 (received 15 December 2011) 22. Australian Statistical Advisory Council––Report for 2011-12 (received 19 December 2011) 23. Australian Livestock Export Corporation Limited (LiveCorp)––Report for 2010-11 (received 19 December 2011) 24. Dairy Australia Limited––Report for 2010-11 (received 19 December 2011) 25. Fisheries Research and Development Corporation––Report for 2010-11 (received 19 December 2011) 26. Gene Technology Regulator––Quarterly report for the period 1 July to 30 September 2011 (received 20 December 2011) 27. Australian Transport Safety Bureau (ATSB)––Report for 2010-11 (received 20 December 2011) 28. Australian Information Commissioner––Report for the period 1 November 2010 to 30 June 2011––Corrigendum (received 20 December 2011) 29. Board of the Australian Crime Commission––Report for 2010-11 (received 20 December 2011) 30. Snowy Hydro Limited––Financial report for the period 4 July 2010 to 2 July 2011 (received 16 January 2012) 31. Australian Sports Anti-Doping Authority––Report for 2010-11––Correction (received 16 January 2012) 32. Indigenous Education (Targeted Assistance) Act 2000––Report for 2009 (received 16 January 2012) 33. Private Health Insurance Administration Council––Report for 2010-11 on the operations of private health insurers (received 18 January 2012) 34. Australian Centre for Renewable Energy Board––Report for 2010-11 (received 19 January 2012) 35. Department of Finance and Deregulation––Certificate of compliance––Report for 2010-11 (received 25 January 2012) 36. National Capital Authority––Report for 2010-11 (received 25 January 2012) 37. Tax expenditures statement 2011 (received 31 January 2012) (f) Reports of the Auditor-General 1. Audit report no. 15 of 2011-12––Performance audit––Risk management in the processing of sea and air cargo imports: Australian Customs and Border Protection Service (received 30 November 2011) 2. Audit report no. 16 of 2011-12––Performance audit––Management of compliance in the small to medium enterprises market: Australian Taxation Office (received 8 December 2011) 3. Audit report no. 17 of 2011-12––Performance audit––Audits of the financial statements of Australian Government entities for the period ended 30 June 2011 and correction (received 15 December 2011) 4. Audit report no. 18 of 2011-12––Performance audit––Information and communications technology security: Management of portable storage devices (received 20 December 2011) 5. Audit report no. 19 of 2011-12––Performance audit––Oversight and management of Defence's information and communication technology: Department of Defence (received 20 December 2011) 6. Audit report no. 20 of 2011-12––Assurance report––2010-11 major projects report: Defence Materiel Organisation (received 20 December 2011) 7. Audit report no. 21 of 2011-12––Performance audit––Administration of grant reporting obligations: Department of Finance and Deregulation (received 24 January 2012) (g) Returns to order 1. Workplace Relations––Fair Work Amendment (State Referrals and Other Measures) Bill 2009––Bilateral intergovernmental agreements (motion of Senator Fisher agreed to 18 November 2009) (received 30 November 2011) 2. Environment––Tasmanian Forests Intergovernmental Agreement––Harvesting requirements––Statement and documents (motion of Senator Colbeck agreed to 3 November 2011) (received 6 February 2012) (h) Letters of advice relating to Senate orders 3. Letters of advice relating to lists of departmental and agency appointments and vacancies: Climate Change and Energy Efficiency portfolio (received 1 February 2012) Defence portfolio (received 3 February 2012) 4. Letters of advice relating to lists of departmental and agency grants: Climate Change and Energy Efficiency portfolio (received 1 February 2012) Defence portfolio (received 3 February 2012) Ordered that the committee reports be printed. The ACTING DEPUTY PRESIDENT: In accordance with the usual practice and with the concurrence of the Senate I ask that the government responses be incorporated in Hansard. The documents read as follows— Senate Rural and Regional Affairs and Transport Committee Government Response to the Senate Committee Report on the Exposure draft and explanatory memorandum of the Illegal Logging Prohibition Bill 2011 Senate Rural and Regional Affairs and Transport Committee November 2011 BACKGROUND The 2007Australian Labor Party made election commitments to restrict illegally logged timber imports. In particular, commitments were made to require disclosure at point of sale of species, country of origin and any certification; and identify illegally logged timber and restrict its import into Australia. Following the 2007 election, the Department of Agriculture, Fisheries and Forestry (the department) commissioned a number of integrated projects to inform the development of the policy. These projects are available at http://www.daff.gov.aufforestry/intemational. From the commissioned projects, the department developed a final Regulation Impact Statement (RIS), which assessed the costs and benefits for domestic business, individuals and the Australian economy of three regulatory options designed to restrict the importation of illegally logged timber into Australia. The RIS recommended a co-regulatory approach as the most effective means of fulfilling the government's election commitment. On 3 June 2010 the government approved a co-regulatory due diligence approach for implementing the government's illegal logging policy. During the 2010 election the government announced it would implement a policy that: restricts the importation of illegally logged timber products into Australia implements a code of conduct to ensure suppliers who first place timber into the Australian market carry out the proper tests to ensure wood coming into the country is legal implements a trade description for legally verified timber products and specify the circumstances under which it can be used. On 9 December 2010, the Minister for Agriculture, Fisheries and Forestry, the Hon. Joe Ludwig announced, in a media release, the government's intention to introduce legislation into Parliament in 2011. On 23 March 2011, Minister Ludwig referred the Illegal Logging Prohibition Bill to the Senate Committee on Rural Affairs and Transport for public inquiry. The Senate Standing Committee on Rural Affairs and Transport released a report on 23 June 2011 that included seven key recommendations. The Australian Government welcomes community interest in this complex issue. In this regard, the Minister for Agriculture, Fisheries and Forestry, Senator the Hon. Joe Ludwig, and the department have consulted with domestic timber producers, timber importers and retailers, Social Justice organisations, worker representatives and interested environmental Non-Government Organisations and the Construction, Forestry, Mining, and Energy Union in preparing its response to these recommendations. Government Response to the Committee ' s Recommendations Recommendation 1 5.19 The committee recommends the Government consider alternatives to provisions for timber industry certifiers and the certifier requirements in relation to them from those listed in the bill. The Government agrees with the recommendation. The revised Illegal Logging Prohibition Bill (2011) (the Bill) removes these provisions Recommendation 2 5.38 The committee recommends that importers provide a mandatory and explicit declaration of legality of product at the border and that such a requirement be incorporated into the bill. The Government agrees with the recommendation. The revised Bill addresses this recommendation through implementing a requirement for a declaration confirming due diligence for the importation of a 'regulated timber product'. This would ensure that importers of 'regulated timber products' affirm that they have completed due diligence processes in line with the requirements outlined in the proposed Act and confirm this at the border. Recommendation 3 5.39 The committee recommends that the Department of Agriculture, Fisheries and Forestry ensure that the declaration requirements are consistent, to the fullest extent possible, with those in the United States (US) Lacey Act and the European Union (EU) regulation and others that meet a similar standard. The Government agrees with the recommendation. The requirements in the revised Bill are consistent, to the extent possible, with measures being implemented by the US and EU. Recommendation 4 5.40 The committee recommends that the Department of Agriculture, Fisheries and Forestry in consultation with the Australian Customs and Border Protection Service adapt the current Customs declaration to incorporate the bill's declaration requirements. The Government agrees with the recommendation. The revised Bill makes it an offence yea regulated timber product is imported without making a declaration of compliance with the due diligence requirements of the Act through a Customs import declaration form. Recommendation 5 5.41 The committee recommends that the Department of Agriculture, Fisheries and Forestry give consideration to providing visibility to the declaration process and that transparency is assured by way of: A requirement that the importer regularly publish, or provide publication of, the declarations in a publicly accessible form; A requirement that at a minimum, an annual audit of the importer be undertaken to determine the legality of their timber; A requirement that the importer publishes, or provides for publication, a Report outcome of the audit; and A requirement on the part of the Commonwealth Government to undertake random audits of the importer declarations, and where warranted (based on risk assessment) undertake further investigation of the supply chain from forest to importer. The Government agrees inprinciple with the recommendation. The government will implement this recommendation in consultation with industry and other interested parties. The Government acknowledges the importance of transparency but will have regard to commercial-in-confidence issues when implementing this recommendation. The Government also proposes to publish an overview of the outcomes of audits undertaken to monitor compliance with the requirements of the Bill on the department's website. Recommendation 6 5.52 The committee recommends that regulations prescribe that importers and processors should demonstrate due diligence under one of the following: a) an internationally recognised third-party certification scheme, or b) an individual country initiative, or c) have in place a management system to ensure legal compliance. The Government agrees in principle with the recommendation. The Bill includes a requirement for importers and processors of raw logs to demonstrate due diligence. Similar to the EU due diligence model the department proposes a due diligence process under the Act will require three steps: risk identification risk assessment; and risk mitigation In the due diligence process the Government advises that a) an internationally recognised third-party certification scheme, b) an individual country initiative, or c) a management system to ensure legal compliance, could be used in steps of the risk assessment and to mitigate any identified risks. Recommendation 4 [sic] (should be 7) 6.21 The committee recommends that the Department of Agriculture, Fisheries and Forestry conduct a review of the bill's provisions five years after enactment. 6.22 The committee recommends that consideration be given in the five-year review to further periodic reviews. The Government agrees with the recommendation. The revised Bill includes a five year review provision and consideration will be given during this review to further periodic reviews of the legislation. Government Response to the Australian Greens Dissenting Report Recommendation 1 1.1 Illegal logging not only impacts on local communities through loss of resources and environmental damage, it also damages Australian businesses' ability to compete on a fair playing field. The Government notes this recommendation. No comment required Recommendation 2 1.2 The Greens support strong action on illegal logging but it is difficult to see how this bill will lead to a substantial improvement in the policing of illegal timber imports entering Australia. The Government notes this recommendation. The Government's illegal logging policy aims to restrict the importation of illegally logged timber and wood products. The revised Bill introduces a prohibition, and requires importers of regulated timber products to fulfil due diligence requirements that will be prescribed in regulations. Recommendation 3 1.3 Placing the onus on industry to self-regulate and self-monitor is a small step at a time when big steps are needed. The Greens do not support the exposure draft in its current form. Amendments to the bill should ensure: parity or stronger measures than those in place in the US and Europe against illegal logging, including a comprehensive definition of illegal logging that encompasses corruption, indigenous land rights and technical breaches of laws or codes; The Government agrees in principle to this recommendation. The Government believes the penalty provided in the revised Bill of up to five years imprisonment and/or equivalent penalty units is sufficient and consistent with other relevant Commonwealth legislation. To import 'regulated timber products' a i) declaration and ii) due diligence system is required, which is consistent with the U.S. Lacey Act and EU regulations, respectively. The Government considers the definition of illegal logging 'timber harvested in contravention of laws in force in the place (whether or not in Australia) where the timber was harvested' provides an adequate basis for establishing the legality of timber and wood products imported into Australia. a) a requirement on the governments of exporting nations to avoid corruption or lose the market; The Government does not agree to this recommendation. The Australian Government is not able to legislate actions to be undertaken by a sovereign country. b) the prohibition is immediate and regulations are enacted within three months of the legislation; this legislation has been on the cards for years so industry has had plenty of time to adjust and prepare for change; The Government agrees in part with this recommendation. The department agrees with the recommended timeframe for the prohibition. The prohibition element of the Bill will be enacted on commencement of the legislation. The Government believes that a period of three months to commence the regulations is an unrealistic time frame for industry to develop and implement any change to meet any new requirements. The original timeframe for the introduction of the regulations of two years after the commencement of the legislation will enable timber importers and processes of raw logs to establish systems and processes for due diligence. c) the prohibition is broadened beyond just the importation of timber to include all steps of the supply chain, similar to the US and EU regulations, so that all participants in the trade take responsibility; The Government does not agree to this recommendation. The intention of the legislation is to regulate the placement of legally logged timber and wood products onto the Australian market at two key points of entry, being the Australian border (for imported products) and domestic processing mills (for raw logs). Effective regulation at these two points will remove the need for further regulation down the supply chain. d) penalties for breaching the prohibition are broadened to include fines or forfeiture within the act rather than it being left to the courts; The Government agrees in principle to this recommendation. In the revised Bill, forfeiture provisions will apply when a conviction of an offence is found under the Act. The Bill will also include maximum penalties units for the prohibition offences to give further clarity to the community. 0 approval of certifiers is a rigorous process, clearly outlined in the act and that any process needs to include government oversight; The Government notes this recommendation. As the revised Bill removes this process, no comment is required. f) the declaration information to be as broad as the US and EU legislation. The Government agrees in principle to this recommendation. When establishing the requirements of the 'due diligence declaration' the department has considered the US and EU measures for consistency and the revised Bill provides for broad declaration requirements. Recommendation 4 1.4 One of the difficulties in scrutinising this legislation was the absence of regulations; there is no timeline for when the regulations may be prepared or come into effect. It is inappropriate to refer key components of the process framework to delegated instruments as this limits the parliament's ability to review and amend legislation. The Government does not agree to this recommendation. It is the government's intention that the prohibition will come into effect on commencement of the Act. The remaining elements of the Bill will come into effect in line with the regulations, which will be two years after the commencement of the Act. The regulations will be developed through consultation with key industry and environmental and social justice organisations. It is anticipated that an existing stakeholder working group will be the main vehicle for consultation on the overarching elements. It is also expected there will be sector based working groups of industry players. Recommendation 5 1.5 A chain of custody certification seems to be the most robust way to combat illegal logging. Ensuring that an independent body is responsible for certifying wood origin, type and licence to log the identified coupe then provides the foundation for certification to carry on to furniture makers, sawmillers and importers. The Government does not agree to this recommendation. The Government is of the view that effective regulation of illegally logged timber and wood products can be achieved at the border and processing mills (as proposed in recommendation 3(c)), and removes the need for further regulation down the supply chain. Additional requirements, such as chain of custody certification, will place an unnecessary cost burden on industry without achieving significant benefits in relation to the objectives of the legislation. Recommendation 6 1.6 Setting up such a process also opens the possibility of addressing the sustainability of logging. The current exposure draft is only assessing illegal timber. It does not cover logged products emanating from native forests containing rare or endangered species or where traditional owners have not given or do not maintain assent to the logging. The Government does not agree to this recommendation. As stated in the government's 2010 election commitment the policy intention is to restrict the sale of illegally logged wood in Australia, by introducing legislation that makes it an offence to import timber products into Australia that have been illegally harvested. Recommendation 7 1.7 Greenpeace in its submission identified 35 recommendations in 15 areas to improve the legislation; the Australian Greens support its call. The Government notes this recommendation. AUSTRALIAN GOVERNMENT RESPONSE The Senate Legal and Constitutional Affairs References Committee Report Review of Govern ment Compensation Payments, December MO INTRODUCTION The Government welcomes the Senate Legal and Constitutional Affairs References Committee's Review of Government Compensation Payments. It thanks the committee members for their work and their focus on redress schemes for people who were in care as children during the 20th century and other government discretionary payment schemes. On 16 November 2009, the then Prime Minister, on behalf of the nation delivered an Apology to the Forgotten Australians and former child migrants, as part of initiating the healing process. As part of the Apology, the Australian Government announced a range of initiatives to provide support to Forgotten Australians and former child migrants, collectively known as care leavers, including a new Find and Connect service. The Australian Government has committed $26.5 million over four years to deliver the new national Find and Connect Service. This new service will provide: A national website and single online access point to help care leavers find records held by past care providers and government agencies; A national 1800 telephone number for care leavers to call if they want to speak with trained staff to help them locate their personal records; A national network of specialised search and support services to help care leavers locate and access personal records and, where possible, reunite with family members; and Counselling support services specifically for care leavers, from appropriately trained and skills providers, to provide support for care leavers as they trace their families. The Government is designing this service in consultation with care leavers. It believes that, together with existing services, the Find and Connect service will contribute to an effective network of support that helps care leavers deal with the impacts of their past experiences in the care system. All children deserve to be cared for in a safe, loving environment, enabling them to achieve happiness and success throughout their lives. It is unacceptable and incomprehensible that they are given anything less. The Australian Government, together with State and Territory Governments and the non-government sector, has developed and begun implementing the National Framework for Protecting Australia's Children. RESPONSE TO RECOMMENDATIONS The committee made seven recommendations. The Government's response to the recommendations is provided below. Recommendation 1 The committee recommends that the Queensland, South Australian, Tasmanian and Western Australian Governments review their redress schemes relating to children in institutional care to ensure: a consistent and transparent approach to the quantum of compensation provided; consistent eligibility criteria for redress which avoid arbitrarily excluding applications for compensation based on where abuse occurred; and the application and assessment process for compensation appropriately reflects the traumatic experiences of care leavers. Recommendation 2 The committee recommends that the Queensland and Western Australian Governments consider applications for redress from care leavers who were unaware of the redress schemes which operated in those states prior to the closing dates for applications. Response to Recommendations 1 & 2 The Australian Government notes these recommendations. The Australian Government considers that these are matters for the Queensland, South Australian, Tasmanian and Western Australian Governments. Recommendation 3 The committee recommends that the New South Wales and Victorian Governments establish administrative schemes to provide redress to people who experienced abuse or neglect while in institutional or foster care in those states. Response The Australian Government notes this recommendation. Redress in New South Wales and Victoria is a matter for those State Governments. Recommendation 4 The committee recommends that the Australian Government pursue all available policy and political options, including through the Council of Australian Governments and other appropriate national forums, to ensure that: New South Wales and Victoria establish redress schemes for people who suffered abuse or neglect in institutional or foster care in those states; Queensland and Western Australia make provision to ensure continued receipt of redress claims; and greater consistency between the criteria applied under state redress schemes is achieved. Response The Australian Government notes these recommendations. Redress is a matter for each State Government to consider. Within the Council of Australian Governments (COAG) framework, the Australian Government raised these issues at a meeting of the Community and Disability Services Ministers' Conference on 11 September 2009. The Australian Government is continuing to work closely with State and Territory Governments to ensure that Forgotten Australians and former child migrants are able to access specialist support services and to improve access to mainstream health and welfare programs. The Australian Government will again raise these matters in appropriate COAG forums to ensure continued progress is made. Recommendation 5 The committee recommends that the Australian Government examine whether people who were placed in institutional or foster care in the Northern Territory or the Australian Capital Territory, during the periods that the Commonwealth directly administered those territories, suffered similar abuse and neglect to children placed in care in other jurisdictions. Response The Australian Government notes this recommendation. The Government notes that there has been no evidence presented to any of the relevant Senate Inquiries, including this current Inquiry, about time in institutional care in either territory by Forgotten Australians or former child migrants. The Australian Government announced a range of initiatives in the National Apology to Forgotten Australians and former child migrants on 16 November 2009 to assist care leavers wherever resident in Australia in ways other than providing monetary compensation. The Australian Government's national Find and Connect Service will be available to Forgotten Australians and former child migrants no matter where they were in care or where they now reside. The national Find and Connect Service will provide an Australia-wide, coordinated, family tracing and support service for Forgotten Australians and former child migrants to locate their personal records and to reunite with their families, where this is desired and possible. Find and Connect will also bring together historical resources relating to institutional care throughout Australia, including in the Northern Territory and the Australian Capital Territory. This information will be available through the Find and Connect website. The Australia Government has also developed and funds assistance provided to the Stolen Generations, such as through the Aboriginal and Torres Strait Islander Healing Foundation and Link Up family reunion services. Recommendation 6 The committee recommends that the Australian Government review 'waiver of debt' provisions contained in social security legislation and consider amendments to that legislation where current provisions could cause unfair and unjust outcomes for welfare recipients. Response The Australian Government is reviewing current debt waiver provisions under social security law to ensure they provide an appropriate balance between recovering amounts that exceed a person's entitlement and avoiding onerous and inequitable outcomes for customers. The Australian Government is actively engaging, and will continue to engage, the National Welfare Rights Network in ongoing discussions to make the system fairer. Recommendation 7 The committee recommends that the Department of Finance and Deregulation investigate the extension, in appropriate circumstances, of the Compensation for Detriment caused by Defective Administration scheme to Commonwealth Authorities and Corporations Act 1997 agencies and to third party providers performing functions or providing services on behalf of the Commonwealth. Response The Australian Government notes this recommendation. The Department of Finance and Deregulation is investigating the extension of the Scheme of Compensation for Detriment caused by Defective Administration to Commonwealth Authorities and Corporations Act 1997 (CAC Act) agencies and to third party providers performing functions or providing services on behalf of the Commonwealth. Additional Recommendations provided by the Australian Greens Recommendation 1 That the Australian Government develop a national standard for redress schemes. Response Redress is a matter for each State Government to consider. Recommendation 2 That the Australian Government develop and support a national service to provide information and support to all those affected by past government policies and practices (irrespective of whether Commonwealth, State or Territory) to access or pursue compensation, restitution or redress. Response The Australian Government announced a range of initiatives in the National Apology to Forgotten Australians and former child migrants on 16 November 2009 to assist care leavers wherever resident in Australia in ways other than providing monetary compensation. The Australian Government's national Find and Connect Service will be available to Forgotten Australians and former child migrants no matter where they were in care or where they now reside. The national Find and Connect Service will provide an Australia-wide, coordinated, family tracing and support service for Forgotten Australians and former child migrants to locate their personal records and to reunite with their families, where this is desired and possible. The Australian Government is continuing to work closely with State and Territory Governments to ensure that Forgotten Australians and former child migrants are able to access specialist support services and to improve access to mainstream health and welfare programs. The Australia Government also funds assistance for the Stolen Generations, through the Aboriginal and Torres Strait Islander Healing Foundation and Link Up family reunion services. Recommendation 3 That the Australian Government ensure that citizens affected by the past policies and practices of the Northern Territory or the ACT have access to appropriate compensation, restitution and redress in a timely fashion. Response The Australian Government notes this recommendation. The Government notes that there has been no evidence presented to any of the relevant Senate Inquiries, including this current Inquiry, about time in institutional care in either territory by Forgotten Australians or former child migrants. Further, evidence provided by the Northern Territory Government in a submission to the Senate Community Affairs Committee into the implementation of the Recommendations in the 'Lost Innocents: Righting the Record' and 'Forgotten Australians: A report on Australians who Experienced Institutional or Out-of-Home Care as Children' is that no British child migrants were placed in the Northern Territory. The Australian Government's national Find and Connect Service will be available in all states and territories for Forgotten Australians and former child migrants, no matter where they were in care. The Find and Connect Service will provide an Australia-wide, coordinated, family tracing and support service for Forgotten Australians and former child migrants to locate their personal records and to reunite with their families, where possible and desired. Find and Connect will also bring together historical resources relating to institutional care throughout Australia, including in the Northern Territory and the Australian Capital Territory. This information will be available through the Find and Connect website. The Australia Government also funds assistance provided to the Stolen Generations through the Aboriginal and Torres Strait Islander Healing Foundation and Link Up family reunion services. Recommendation 4 That the Australian Government establish a national reparations scheme for the Stolen Generations as outlined by The Australian Greens Stolen Generations Reparations Bill 2010. Response On 13 February 2008, the then Prime Minister Kevin Rudd offered the National Apology in a spirit of respect, and in recognition of the profound grief, suffering and loss inflicted on Stolen Generations. At the time it was acknowledged that words alone were not enough. While the Government does not support the establishment of a national reparations scheme for the Stolen Generations, we are working practically to assist members of the Stolen Generations to deal with the daily experience of various types of trauma, loss and grief and to help families and future generations to stop the cycle of trauma from continuing. After the Motion of Apology to Australia's Indigenous Peoples on 13 February 2008 the Government committed an additional $15.7 million to important initiatives such as Link Up family reunion services and Bringing Them Home counsellors for Stolen Generations' survivors. On 13 February 2009, the first anniversary of the Motion of Apology to Australia's Indigenous Peoples, the Government announced a further $13.8 million for the Link Up program to enable an extra 351 family reunions and around 100 'Return to Country' reunions. The Aboriginal and Torres Strait Islander Healing Foundation was established on 30 October 2009. The 2009-10 Budget provided $26 million in funding over four years for the Foundation to address trauma and aid healing in Aboriginal and Tones Strait Islander communities, mindful of the unique needs of members of the Stolen Generations. Recommendation 5 That the Australian Government develop and implement a comprehensive debt collection strategy to reduce the incidence of social security debts, provide fairer debt recovery methods and ensure that debts are not unfairly raised. Recommendation 6 That the Australian Government amend the Social Security Act to remove anomalies and unfair aspects of its debt waiver provisions along the lines recommended in the evidence presented by the National Welfare Rights Network. Response to recommendations 5 and 6 The Australian Government is reviewing current debt waiver provisions under social security law to ensure they provide an appropriate balance between recovering amounts that exceed a person's entitlement and avoiding onerous and inequitable outcomes for customers. The Australian Government is actively engaging, and will continue to engage, the National Welfare Rights Network in ongoing discussions to make the system fairer. Australian Government Response to Senate Community Affairs References Committee Gene Patents Report November 2011 Introduction On 11 November 2008 the Senate referred matters relating to the patenting of human genes and genetic materials to the Senate Community Affairs References Committee (the Senate Committee) for inquiry and report. The Senate Committee tabled its report (the Senate Gene Patents Report) on 24 November 2010. The terms of reference for the inquiry directed the Senate Committee to inquire into: The impact of the granting of patents in Australia over human and microbial genes and non-coding sequences, proteins, and their derivatives, including those materials in an isolated form, with particular reference to: (a) the impact which the granting of patent monopolies over such materials has had, is having, and may have had on: (i) the provision and costs of healthcare; (ii) the provision of training and accreditation for healthcare professionals; (iii) the progress in medical research; and (iv) the health and wellbeing of the Australian people; (b) identifying measures that would ameliorate any adverse impacts arising from the granting of patents over such materials, including whether the Patents Act 1990 should be amended, in light of any matters identified by the inquiry; and (c) whether the Patents Act 1990 should be amended so as to expressly prohibit the grant of patent monopolies over such materials. The Senate Gene Patents Report contains 16 recommendations directed, in part, to: establishing mechanisms for monitoring the implications of gene patents and the operation of the patent system; increasing legal requirements for the grant of a patent; improving patent law and practice concerning the exploitation of gene patents, including in relation to a new research defence to claims of patent infringement, Crown use, and compulsory licensing of patents; and introducing measures to assist in the interpretation and application of the Patents Act 1990. Recommendation 4 of the Senate Gene Patents Report also recommended that the Government provide a combined response to: the Senate Gene Patents Report; the 2011 Advisory Council on Intellectual Property's Patentable Subject Matter Report (ACIP PSM Report); the 2004 Australian Law Reform Commission's Report No. 99, Genes and Ingenuity: Gene Patenting and Human Health (ALRC 99 Report); and the review of Australia's patent system by IP Australia. The Government accepts this recommendation. This Government response addresses the recommendations of the above three reports. The review of Australia's patent system by IP Australia does not involve any public recommendations for Government response. However, the relevant outcomes of this review are outlined in the responses to the recommendations of the three reports. ALRC 99 Report On 17 December 2002 the then Australian Government Attorney-General, the Hon Daryl Williams MP, asked the Australian Law Reform Commission (ALRC) to inquire into and report on the laws and practices governing intellectual property rights over genetic materials and related technologies, with a particular focus on human health issues. The ALRC's report, Genes and Ingenuity: Gene Patenting and Human Health, (ALRC 99, 2004) was tabled on 31 August 2004. The terms of reference for the inquiry directed the ALRC to consider – with a particular focus on human health issues – the impact of current patenting laws and practices related to genes and genetic and related technologies on: the conduct of research and its subsequent application and commercialisation; the Australian biotechnology sector; and the cost-effective provision of healthcare in Australia. The terms of reference also requested the ALRC to consider what changes, if any, may be required to address any problems identified in current laws and practices with the aim of encouraging the creation and use of intellectual property to further the health and economic benefits of genetic research and genetic and related technologies. The ALRC 99 report contains 50 recommendations directed to: improving patent law and practice concerning the patenting of genetic materials and technologies, including through amendments to the Patents Act 1990 and changes in the practices and procedures of IP Australia, patent examiners and the courts; improving patent law and practice concerning the exploitation of gene patents, including in relation to a new research defence to claims of patent infringement, Crown use, and compulsory licensing of gene patents; ensuring that publicly funded research, where commercialised, results in appropriate public benefit, including through the adoption of appropriate patent practices; encouraging universities and other research organisations to raise the awareness of researchers about patenting issues and the commercialisation of research; ensuring that Australian research organisations and biotechnology companies are adequately skilled to deal with issues concerning commercialisation and the licensing of patented inventions; establishing mechanisms for monitoring the implications of gene patents for research and healthcare so that governments have the ability to intervene where gene patents are considered to have an adverse impact, either in specific cases or systemically; clarifying the application of competition law to the exploitation of intellectual property rights, including patented genetic materials and technologies; and clarifying the scope and practical application of exceptions to copyright infringement in relation to research. ACIP PSM Report In 2008 the Minister for Innovation, Industry, Science and Research, Senator the Hon Kim Carr, requested that the Advisory Council on Intellectual Property (ACIP) conduct a review of patentable subject matter, including the appropriateness and adequacy of the 'manner of manufacture' test as the threshold requirement for patentable subject matter under Australian law, and the historical requirement that an invention must not be 'generally inconvenient'. Instigation of the review was informed by recommendation 6-2 of the ALRC 99 Report. ACIP released its report on patentable subject matter (ACIP PSM Report) on 16 February 2011. The ACIP PSM Report contains 11 recommendations directed to various changes to the Patents Act 1990 including: introducing a statement of objectives; defining patentable subject matter requirements using clear and contemporary language; and removing some of the current exclusions to patentable subject matter and introducing a morality exclusion. The Government thanks the Senate Committee, the ALRC and ACIP for their reports. The Government's response to the recommendations of these reports is set out below. Government Response to Recommendations 1 Legend: The Senate Community Affairs Committee report, Gene Patents – November 2010 (SGP Report) The Advisory Council on Intellectual Property report, Patentable Subject Matter – December 2010 (ACIP PSM Report) The Australian Law Reform Commission report, Genes and Ingenuity: Gene Patenting and Human Health, (ALRC 99, 2004) – June 2004 (ALRC 99 Report) SGP Report Recommendation 1 3.156 The Committee recommends that the Government support and expand on the collection of data, research and analysis concerning genetic testing and treatment in Australia, in line with recommendation 19-1 of the 2004 Australia Law Reform Commission report Genes and ingenuity. ALRC 99 Report Recommendation 19–1 The Australian Health Ministers' Advisory Council (AHMAC) should establish processes for: (a) economic evaluation of medical genetic testing and other new genetic medical technologies; and (b) examination of the financial impact of gene patents on the delivery of healthcare services in Australia. Response The Government accepts these recommendations in principle. The report and the Government response to the Review of Health Technology Assessment in Australia (HTA Review), which had been conducted as a Better Regulation Ministerial Partnership, were released by the Minister for Health and Ageing and the Minister for Finance and Deregulation in February 2010. In implementing the recommendations of the HTA Review that were accepted by Government, the Department of Health and Ageing has established the Health Technology Assessment Access Point to coordinate the provision of comprehensive advice to Government regarding co-dependent technologies, such as where the cost-effective use of a drug may be dependent on the result of a genetic test, and to determine the appropriate methodology for assessing such technologies. The Government considers that the Medical Services Advisory Committee (MSAC) is the appropriate body to undertake evaluations of medical genetic tests (including their cost-effectiveness) based on available evidence. MSAC undertakes evaluations on eligible medical services on application from non-government bodies, on referral from Government, and as requested by the Australian Health Ministers' Advisory Committee (AHMAC). The National Health and Medical Research Council (NHMRC) can also provide advice on technical or ethical aspects of genetic testing if requested by MSAC to assist in its deliberations. The Government considers that there is insufficient need at this time to establish a specific process for examination of the financial impact of gene patents in the delivery of healthcare. The economic value and impact of patents continues to be an area of research interest both in Australia and internationally. A number of intellectual property organisations, including the World Intellectual Property Organization (WIPO), have recently included on their staff economists for this purpose. In Australia such research is undertaken by a number of universities and institutes including the Intellectual Property Research Institute of Australia (IPRIA). IP Australia also maintains a watching brief on developments in this regard. SGP Report Recommendation 2 3.157 The Committee recommends that the Government conduct a public consultation and feasibility study regarding establishing a transparency register for patent applications and other measures to track the use of patents dealing with genes and genetic materials. ALRC 99 Report Recommendation 9–1 IP Australia should develop and regularly update a searchable online database comprising patents and published patent applications. The database should: (a) be accessible to the public through IP Australia's website; (b) provide user-friendly access and search capabilities on a wide variety of bases; and (c) as soon as practicable, provide full-text searching of all complete specifications of published Australian patent applications and granted patents. Response The Government accepts Recommendation 9-1 of the ALRC 99 Report and notes that IP Australia has developed and implemented the AusPat search system to provide ready access to Australian patent information including full-text searching of complete specifications back to 1904 (commencement of the first Commonwealth Patents Act2). AusPat is a world standard database of patent applications enabling searches to be conducted across 28 different data fields including applicant/inventor name, technology, etc.. The functionality of the system caters for the novice to the advanced searcher including on-line support through a feedback mechanism. In addition the system includes an 'eDossier' facility which means that the public will be able to readily see any objections raised by the patent examiner and the responses, amendments, etc. submitted by the patent applicant to overcome those and result in grant of a patent. This facility provides access to patent application files open to public inspection (which occurs 18 months from filing) from 2006. The Government will continue to explore web-based technology to make patent data more readily accessible and understood by the Australian community as part of continuous improvement of existing capabilities. The Government accepts Recommendation 2 of the SGP Report as it relates to patent applications rather than how it relates to the 'use' of patents. The Government notes that the Intellectual Property Research Institute of Australia (IPRIA), which is partly funded by Government, has in the past and continues to conduct research on the use of patents. This includes research on patent enforcement and assignment. SGP Report Recommendation 3 4.137 The Committee recommends that the Senate refer the Patent Amendment (Human Genes and Biological Materials) Bill 2010 to the relevant Senate committee for inquiry and report. Response This recommendation is a matter for the Senate. SGP Report Recommendation 4 5.161 The Committee recommends that the Government provide a combined response addressing the Committee's inquiry into gene patents; the 2004 report on gene patents by the Australian Law Reform Commission; the review of patentable subject matter by the Australian Council on Intellectual Property (ACIP); and the review of Australia's patent system by IP Australia. The Committee recommends that the response be provided not later than mid-2011 or three months after the release of the findings of all reviews. Response The Government accepts this recommendation. SGP Report Recommendation 5 5.162 The Committee recommends that, at an appropriate time following the release of the ACIP review of patentable subject matter and the IP Australia review of the patent system, the Community Affairs References Committee be tasked with inquiring into the Government's response to, and implementation of, the recommendations of those reviews, as well as the recommendations of the Committee's report on gene patents. Response This recommendation is a matter for the Senate. SGP Report Recommendation 6 5.172 The Committee recommends that the Patents Act 1990 be amended so that the test for obviousness in determining inventive step is that a claimed invention is obvious if it was 'obvious for the skilled person to try a suggested approach, alternative or method with a reasonable expectation of success'. Response The Government accepts this recommendation in principle. The Government acknowledges the need to raise Australia's patent standard for inventive step (which is used to determine whether or not the claimed invention is obvious). The Intellectual Property Laws Amendment (Raising the Bar) Bill 2011 which has been the subject of extensive public consultations over a two year period provides for a number of changes to raise the standards for grant of a patent thereby realigning Australia's patent law with global trends regarding standards for patentability. The various changes proposed under the Bill will in combination strengthen the inventive step requirements and increase the quality of patents that are granted. The test “obvious for the skilled person to try a suggested approach, alternative or method with a reasonable expectation of success” is but one of a number of legal tests which can be used by examiners and the courts to determine obviousness. SGP Report Recommendation 7 5.173 The Committee recommends that the Patents Act 1990 be amended to remove the limitation that 'common general knowledge' be confined to that existing in Australia at the time a patent application is lodged (that is, that 'common general knowledge' anywhere in the world be considered). Response The Government accepts this recommendation. Amendments to implement this recommendation are contained in the Intellectual Property Laws Amendment (Raising the Bar) Bill 2011. The Bill has been the subject of extensive public consultations over a two year period and provides for a number of changes to raise the standards for grant of a patent thereby realigning Australia's patent law with global trends regarding standards for patentability. The various changes proposed under the Bill will in combination increase the quality of patents that are granted. SGP Report Recommendation 8 5.174 The Committee recommends that the Patents Act 1990 be amended to remove the requirement that 'prior art information' for the purposes of determining inventive step must be that which could reasonably have been expected to be 'ascertained' (that is, that the 'prior art base' against which inventive step is assessed not be restricted to information that a skilled person in the relevant field would have actually looked for and found (ascertained)). Response The Government accepts this recommendation. Amendments to implement this recommendation are contained in the Intellectual Property Laws Amendment (Raising the Bar) Bill 2011. The Bill has been the subject of extensive public consultations over a two year period and provides for a number of changes to raise the standards for grant of a patent thereby realigning Australia's patent law with global trends regarding standards for patentability. The proposed amendments would also remove the requirement that prior art for the purposes of assessing the inventive step of an invention is restricted to only that information that would be 'understood and regarded as relevant' by a skilled person in the art. The requirements that prior art be 'understood' and 'regarded as relevant' are implicit in the pre-existing tests for inventive step. The various changes proposed under the Bill will in combination increase the quality of patents that are granted. SGP Report Recommendation 9 5.175 The Committee recommends that the Patents Act 1990 be amended to introduce descriptive support requirements, including that the whole scope of the claimed invention be enabled and that the description provide sufficient information to allow the skilled addressee to perform the invention without undue experimentation. Response The Government accepts this recommendation. Amendments to implement this recommendation are contained in the Intellectual Property Laws Amendment (Raising the Bar) Bill 2011. The Bill has been the subject of extensive public consultations over a two year period and provides for a number of changes to raise the standards for grant of a patent thereby realigning Australia's patent law with global trends regarding standards for patentability. The various changes proposed under the Bill will in combination increase the quality of patents that are granted. SGP Report Recommendation 10 5.179 The Committee recommends that the Patents Act 1990 be amended to provide that an invention will satisfy the requirement of 'usefulness' in section 18(1) only in such cases as a patent application discloses a 'specific, substantial and credible' use; the Committee recommends that such amendments incorporate the full set of recommendations on this issue from the Australian Law Reform Commission's 2004 report, Genes and ingenuity (Recommendations 6-3 to 6-4). ACIP PSM Report Recommendation 5 Amend the Patents Act 1990 (Cth) so that the requirement of usefulness in paragraphs 18(1)(c) and 18(1A)(c) encompasses the requirement for utility that is currently an aspect of the manner of manufacture requirement, and is a ground for examination of a standard patent and an innovation patent. ALRC 99 Report Recommendation 6–3 The Commonwealth should amend the Patents Act 1990 (Cth) (Patents Act) to: (a) include 'usefulness' as a requirement in the examination of an application for a standard patent and in the certification of an innovation patent; (b) provide that an invention will satisfy the requirement of 'usefulness' only if the patent application discloses a specific, substantial and credible use; (c) require the Commissioner of Patents to be satisfied on the balance of probabilities that the requirement of 'usefulness' is made out in order to accept an application for a standard patent or to certify an innovation patent; and (d) include 'lack of usefulness' as a basis upon which an accepted application for a standard patent may be opposed, in addition to its current role as a ground for revocation. (See also Recommendation 8–3.) Recommendation 6–4 IP Australia should develop guidelines, consistent with the Patents Act, the Patents Regulations 1991 (Cth) and existing case law, to assist patent examiners in applying the 'usefulness' requirement. The guidelines should outline factors relevant to determining whether a use disclosed in a patent application is specific, substantial and credible to a person skilled in the relevant art. Response The Government accepts these recommendations. With regard to Recommendation 6-3(d) of the ALRC 99 Report, the Patents Act 1990 was amended in 2004 to include paragraphs 18(1)(c) and 18(1)(d) as grounds of opposition under section 59. The introduced grounds of opposition are that the claimed invention: must be useful (paragraph 18(1)(c)); and must not have been secretly used in Australia before the priority date of the claim by, or on behalf of, or with the authority of, the patentee or nominated person or the predecessor in title to the invention (paragraph 18(1)(d)). With regard to Recommendation 6-4 of the ALRC 99 Report, IP Australia has commenced work in developing such guidelines. The date for completion of the guidelines to implement this recommendation will depend on the timing of the legislative changes required to implement all other elements of these recommendations. Amendments to implement all other elements of these recommendations are contained in the Intellectual Property Laws Amendment (Raising the Bar) Bill 2011. The Bill has been the subject of extensive public consultations over a two year period and provides for a number of changes to raise the standards for grant of a patent thereby realigning Australia's patent law with global trends regarding standards for patentability. The various changes proposed under the Bill will in combination increase the quality of patents that are granted. SGP Report Recommendation 11 5.185 The Committee recommends that the Patents Act 1990 be amended to clarify the circumstances in which the Crown use provisions may be employed; and that the Government develop clear policies for the use of the Crown use provisions. The Committee recommends that the Government adopt the Australian Law Reform Commission's recommendations on this issue from its 2004 report, Genes and ingenuity (Recommendations 26-1 to 26-3) ALRC 99 Report Recommendation 26–1 The Australian Health Ministers' Advisory Council should develop a policy regarding the circumstances in which it may be appropriate for the Commonwealth or a State to exploit a patented invention under the Crown use provisions of the Patents Act 1990 (Cth) (Patents Act) for the purposes of promoting human health. Similarly, the Department of Health and Ageing should develop a policy regarding the circumstances in which it may be appropriate for the Commonwealth to acquire a patent for the purposes of promoting human health. Decisions about Crown use in specific cases must be made on their individual merits. Recommendation 26–2 The Commonwealth should amend the Patents Act to clarify that, for the purposes of the Crown use provisions, an invention is exploited 'for the services of the Commonwealth or of a State' if the exploitation of the invention by a Commonwealth or State authority (or by an authorised person) is for the provision of healthcare services or products to members of the public. Recommendation 26–3 The Commonwealth should amend the Patents Act to provide that, when a patent is exploited under the Crown use provisions, the remuneration that is to be paid by the relevant authority must be paid promptly and must be just and reasonable having regard to the economic value of the use. Similarly, the Act should be amended to provide that, when a patent is acquired under the Crown acquisition provisions, compensation must be paid promptly and must be just and reasonable having regard to the economic value of the patent. Response The Government notes these recommendations. The Advisory Council on Intellectual Property (ACIP) investigated and reported on the Crown use provisions (see 2005 ACIP Report, Review of Crown Use Provisions for Patents and Designs). The Government decided that there was insufficient evidence to support any legislative changes to the current provisions. As a result of the ACIP Review, the Minister for Innovation, Industry, Science and Research wrote to relevant Commonwealth, State and Territory Ministers in March 2009 to raise awareness of government rights and obligations under the provisions. IP Australia also developed a public information sheet highlighting the Crown's rights and obligations and the rights of intellectual property owners under the provisions. The Government does not see a need at present to develop a health-specific policy on the circumstances in which Crown use provisions should be exploited as the provisions are available for all Commonwealth, State and Territory services. The Government agrees that the circumstances in which a patented invention should be exploited pursuant to the Crown use provisions should be considered on a case-by-case basis. SGP Report Recommendation 12 5.190 The Committee recommends that the Government amend the Patents Act 1990 to clarify the scope of the 'reasonable requirements of the public' test, taking into account the recommendation of the Australian Law Reform Commission on this issue in its 2004 report, Genes and ingenuity (Recommendation 27-1); the Committee recommends that the Government review the operation of the competition based test for the grant of a compulsory licence, with particular reference to its interaction with the Trade Practices Act 1974. ALRC 99 Report Recommendation 27–1 The Commonwealth should amend the provisions of the Patents Act 1990 (Cth) relating to compulsory licences by: (a) inserting the competition-based test recommended by the Intellectual Property and Competition Review Committee as an additional ground for the grant of a compulsory licence; and (b) clarifying the scope of the 'reasonable requirements of the public test'. Response The Government accepts these recommendations. As the SGP Report notes, the Government introduced a competition-based test as an additional ground for the grant of a compulsory licence in the Intellectual Property Laws Amendment Act 2006. Specifically, the provision provides for a compulsory licence to be available as a remedy if a person has contravened any anti-competitive conduct provision under Part IV of the Competition and Consumer Act 2010. The Government will review the operation of the compulsory licence provisions of the Patents Act 1990 including measures to raise awareness of these provisions. SGP Report Recommendation 13 5.195 The Committee recommends that the Patents Act 1990 be amended to include a broad research exemption. ALRC 99 Report Recommendation 13–1 The Commonwealth should amend the Patents Act 1990 (Cth) (Patents Act) to establish an exemption from patent infringement for acts done to study or experiment on the subject matter of a patented invention; for example, to investigate its properties or improve upon it. The amendment should also make it clear that: (a) the exemption is available only if study or experimentation is the sole or dominant purpose of the act; (b) the existence of a commercial purpose or objective does not preclude the application of the exemption; and (c) the exemption does not derogate from any study or experimentation that may otherwise be permitted under the Patents Act. Response The Government accepts these recommendations. Amendments to introduce an exemption from infringement for acts done for experimental purposes are contained in the Intellectual Property Laws Amendment (Raising the Bar) Bill 2011. The Bill has been the subject of extensive public consultations over a two year period and provides for a number of changes to raise the standards for grant of a patent thereby realigning Australia's patent law with global trends regarding standards for patentability. The proposed amendments include a broad research exemption as well as an exemption for acts connected with obtaining regulatory approval (such as the conduct of trials to provide data necessary for obtaining regulatory approval). The exemption is technology neutral applying to research in any technology field and regulatory approval of any technology. The various changes proposed under the Bill will in combination increase the quality of patents that are granted and provide the sought after certainty for researchers. SGP Report Recommendation 14 5.197 The Committee recommends that, to assist courts and patent examiners with the interpretation and application of the Patents Act 1990, the Government consider amending the Act to include anti-avoidance provisions. Response The Government does not accept this recommendation. The Government has considered the submissions and examples put forward to the Senate inquiry and in the SGP Report relating to this recommendation. The Government is of the view that existing measures including: the ability for third parties to make submissions during examination of a patent application (section 27 of the Patents Act 1990), pre-grant opposition (Chapter 5 and 9A Part 3 of the Patents Act 1990), re-examination (Chapter 9 and 9A Part 2 of the Patents Act 1990), internal quality audits, and external administrative and judicial processes, provide for compliance and quality. These measures will be enhanced further with improved access to patent information through the new eDossier system. The eDossier provides on-line, free of charge, public access to relevant documents and correspondence on the patent application prosecution file. The improved access to this information will increase the transparency of the patent system and enable members of the public to address any concerns they may have about perceived misuse of the system through these existing measures. Furthermore, the Intellectual Property Laws Amendment (Raising the Bar) Bill 2011 which has been the subject of extensive public consultations over a two year period provides for a number of changes to raise the standards for grant of a patent thereby realigning Australia's patent law with global trends regarding standards for patentability. Specifically, the Bill seeks to change the burden of proof to 'balance of probabilities' for all patentability criteria which with the addition of a statement of objectives to the Patents Act 1990 (in accordance with Recommendation 15 of the SGP Report and Recommendation 1 of the ACIP PSM Report) will further assist the courts and patent examiners with the interpretation and application of the Patents Act 1990. The various changes proposed under the Bill will in combination increase the quality of patents that are granted. SGP Report Recommendation 15 5.198 The Committee recommends that, to assist courts and patent examiners with the interpretation and application of the Patents Act 1990, the Government consider amending the Act to include objects provisions. ACIP PSM Report Recommendation 1 Include a statement of objectives in the Patents Act 1990 (Cth) describing the purposes of the legislation. Recommendation 2 The statement of objectives to be included in the Patents Act 1990 (Cth) should describe the purposes of the legislation as being to provide an environment that promotes Australia's national interest and enhances the well-being of Australians by balancing the competing interests of patent rights holders, the users of technological knowledge, and Australian society as a whole. Response The Government accepts these recommendations. The Government recognises that a statement of objectives in the Patents Act 1990 would provide a clear statement of legislative intent. The Government will develop legislation to give effect to these recommendations and its intention that patents should not lead to patients being denied reasonable access to healthcare. The legislation will be the subject of the same considered and comprehensive public consultation process as the Intellectual Property Laws Amendment (Raising the Bar) Bill 2011 including public exposure of the legislation drafting instructions and the draft legislative provisions. SGP Report Recommendation 16 5.202 The Committee recommends that the Government establish a patent audit committee. Response The Government notes this recommendation. The Government notes that the objective of the patent audit committee is to provide assurance to Government that the patent system is working as intended. The Government notes that the Advisory Council on Intellectual Property (ACIP) which is comprised of expert members appointed by the Minister for Innovation, Industry Science and Research already has the powers to undertake quality reviews where directed by the Minister and to co-opt temporary members with expertise in the relevant subject area of a review. The Government will consider varying ACIP's membership to ensure industry, research and community/consumer interests are sufficiently represented. ACIP can be tasked with providing advice to the Minister on matters such as: whether the patent system appropriately balances economic considerations with the needs of the community (including benefits to the community); emerging technologies and access issues; and compulsory licensing. The Government also notes that any such reviews would be in addition to existing avenues to assure the quality of individual patents in Australia including substantive patent examination, re-examination, pre-grant opposition procedures, third party notification under section 27 of the Patents Act 1990, the administrative and judicial review system, and IP Australia's internal quality audits and transparency in the prosecution of patent applications through the eDossier facility (which provides on-line, free of charge, public access to relevant documents and correspondence on the patent application prosecution file). The Intellectual Property Research Institute of Australia (IPRIA) also has an active and varied research program looking at various topical patent issues, including issues of quality. ACIP PSM Report Recommendation 3 Define patentable subject matter in the Patents Act 1990 (Cth), for the purposes of both a standard patent and an innovation patent, using clear and contemporary language that embodies the principles of inherent patentability as developed by the High Court in the NRDC case and in subsequent Australian court decisions. Recommendation 4 Amend the Patents Act 1990 (Cth) to enhance the clarity of the patentability requirements, and to remove overlap of the patentable subject matter provision with the provisions on novelty, inventive step and usefulness. ALRC 99 Report Recommendation 6–2 The responsible Minister should initiate an independent review of the appropriateness and adequacy of the 'manner of manufacture' test as the threshold requirement for patentable subject matter under Australian law, with a particular focus on the requirement that an invention must not be 'generally inconvenient'. Response The Government accepts these recommendations in principle, and will develop legislation to define patentable subject matter using clear and contemporary language. The Government recognises the important role of patents in commercialising health research and the need to provide industry with certainty within the patent system. The development of this legislation will be subject to considered and comprehensive public consultation. This will enable an opportunity to consider benefits and impacts on the health sector. The legislation drafting instructions and the draft legislative provisions will be subject to the same considered and comprehensive public consultation process as the Intellectual Property Laws Amendment (Raising the Bar) Bill 2011. The Government has already acted on Recommendation 6-2 of the ALRC 99 Report which has resulted in the ACIP PSM Report. The 'manner of manufacture' test has served the Australian intellectual property system well to date, but the Government recognised that as part of continuous improvement and international harmonisation it would be appropriate to review the test. However, due to the high degree of overlap between 'manner of manufacture' and other criteria for patentability, in order to be effective the scope of the review was broadened to encompass 'patentable subject matter'. The terms of reference for the review were to conduct a review of patentable subject matter, including the appropriateness and adequacy of the 'manner of manufacture' test as the threshold requirement for patentable subject matter under Australian law, and the historical requirement that an invention must not be 'generally inconvenient'. The ACIP PSM Report is the result of extensive public consultation over a two and a half year period including written submissions and public forums. The Government recognises the complexities of providing incentives for creating innovations, enabling further innovation and cost effective access to innovations. Any changes must therefore have full regard to all these. This is particularly important with respect to health-related innovations where understandably there is strong public concern about affordable access to healthcare. It is also important to note that the Intellectual Property Laws Amendment (Raising the Bar) Bill 2011 which has also been the subject of extensive public consultations over a two year period provides for a number of changes to raise the standards for grant of a patent thereby realigning Australia's patent law with global trends regarding standards for patentability. The higher standards for demonstrating novelty, inventive step and usefulness will provide for patenting of inventions that demonstrate a more substantial level of inventiveness and thereby raise the overall quality of patents granted in Australia. In that regard the changes proposed under the Bill will deal directly with broad and speculative patents which are understandably of public concern. The Bill also has provisions to provide researchers and innovators with the freedom to undertake research and regulatory approval activities without fear of infringing patents. All these proposed changes to the Patents Act 1990, in combination with existing safeguards of Crown use and compulsory licences, increase clarity over patentability requirements, provide incentives for creating innovations and making them available and establish mechanisms for responding to anti-competitive behaviour. The Government will also continue to monitor international developments through its membership of various fora including the World Intellectual Property Organization (WIPO) and World Health Organization (WHO), and international and domestic patent-related jurisprudence to ensure that the balance of interests continues to be maintained. ACIP PSM Report Recommendation 6 Retain the specific exclusions set out in sub-sections 18(2) and 18(3) of the Patents Act 1990 (Cth). Response The Government accepts this recommendation. ACIP PSM Report Recommendation 7 Repeal section 50 of the Patents Act 1990 (Cth), and the corresponding grounds for revocation of an innovation patent contained in section 101B of the Patents Act 1990 (Cth). Response The Government accepts this recommendation having regard to the response in relation to Recommendations 8, 9 and 10 of the ACIP PSM Report. ACIP PSM Report Recommendation 8 Include in the Patents Act 1990 (Cth) a patentability exclusion as permitted by Article 27(2) of the TRIPS Agreement. Recommendation 9 Amend the Patents Act 1990 (Cth) so as to exclude from patentability an invention the commercial exploitation of which would be wholly offensive to the ordinary reasonable and fully informed member of the Australian public. Recommendation 10 Amend the Patents Act 1990 (Cth) to provide the Commissioner of Patents with an explicit power to seek advice, from any person the Commissioner considers appropriate, to assist the Commissioner in applying the general patentability exclusion proposed in ACIP Recommendation 8 and in ACIP Recommendation 9. ALRC 99 Report Recommendation 7–1 The Patents Act 1990 (Cth) should not be amended: (a) to exclude genetic materials and technologies from patentable subject matter; (b) to exclude methods of diagnostic, therapeutic or surgical treatment from patentable subject matter; or (c) to expand the existing circumstances in which social and ethical considerations may be taken into account in decisions about granting patents. Rather, social and ethical concerns should be addressed primarily through direct regulation of the use or exploitation of a patented invention. Response The Government accepts Recommendation 7-1 (a) in principle and (b) in full but not (c) of the ALRC 99 Report in recognition of the more recent proposals in the ACIP PSM Report. The Government recognises the need for the patent system to reflect contemporary community expectations and therefore accepts Recommendations 8, 9 and 10 of the ACIP PSM Report but notes that the specific amendments to the Patents Act 1990 will need to be consistent with Australia's international obligations. The Government will develop legislation to give effect to these recommendations. The legislation will be subject of the same considered and comprehensive public consultation process as the Intellectual Property Laws Amendment (Raising the Bar) Bill 2011 including public exposure of the legislation drafting instructions and the draft legislative provisions. ACIP PSM Report Recommendation 11 Amend the Patents Act 1990 (Cth) to require the Commissioner of Patents to be satisfied that an invention is a patentable invention before accepting an application for a standard patent or certifying an innovation patent. ALRC 99 Report Recommendation 8–3 The Commonwealth should amend the Patents Act to require patent examiners to be satisfied on the balance of probabilities when assessing all statutory requirements for patentability that are relevant at the stage of examination. (See also Recommendation 6–3.) Response The Government accepts these recommendations. The amendments to give effect to these recommendations are contained in the Intellectual Property Laws Amendment (Raising the Bar) Bill 2011. The Bill has been the subject of extensive public consultations over a two year period and provides for a number of changes to raise the standards for grant of a patent thereby realigning Australia's patent law with global trends regarding standards for patentability. The various changes in combination will increase the quality of patents granted in Australia. ALRC 99 Report Recommendation 5–1 IP Australia should: (a) assess the impact of patent fees on the actual term of Australian patents; and (b) periodically review the structure and quantum of patent fees to ensure that fees are set at levels appropriate to discourage patent holders from maintaining patents that lack real commercial value. Response The Government accepts this recommendation. IP Australia sets fees consistent with: achievement of the following agency Outcome as agreed with Government: Increased innovation, investment and trade in Australia, and by Australians overseas, through the administration of the registrable intellectual property rights system, promoting public awareness and industry engagement, and advising Government; the Australian Government Cost Recovery Guidelines 2005; the Financial Management and Accountability Act 1997; and other Government policies and international obligations. IP Australia employs a fee schedule structure where the renewal fees increase with the age of the patent and thereby discourage renewal of patents with no or little remaining commercial value. In developing the fee schedules, IP Australia takes into consideration a range of issues including the mean age of Australian patents, consistency in cost of like services across other intellectual property rights, international benchmarking and equality of access for patent holders of different economic means. IP Australia completed a review of its fee structure in July 2010, having last reviewed its fees in 2006. It will continue to conduct regular reviews of its fee structure and will take all the relevant issues into account including assessing the impact of fees over the period of Australian patents as well as the need to consider disincentives for behaviour that could reduce innovation. ALRC 99 Report Recommendation 6–1 Patent applications relating to genetic materials and technologies should be assessed according to the same legislative criteria for patentability that apply to patent applications relating to any other type of technology. Response The Government accepts this recommendation noting Australia's obligation under the World Trade Organization's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to maintain technology-neutral patentability criteria. The Government is pursuing a number of changes to raise the standards for grant of a patent thereby realigning Australia's patent law with global trends regarding standards for patentability. These changes are contained in the Intellectual Property Laws Amendment (Raising the Bar) Bill 2011 which has been the subject of extensive public consultations over a two year period. The various changes proposed under the Bill will require more evidence that the invention can do what it claims to do and increase quality of the patents granted in Australia. ALRC 99 Report Recommendation 8–1 To ensure the ongoing competence of Australian patent examiners in examining patent applications, IP Australia should enhance its efforts to provide examiners with education and training in areas of technology relevant to their particular specialty. IP Australia should review and update its education and training programs regularly so that new developments can be incorporated as required. Response The Government accepts this recommendation. The Government recognises the importance of the skills of patent examiners in ensuring quality of decision making in the grant of Australian patents. To that end IP Australia has an active program of continuing professional training and development. Opportunities are available for examiners in the form of internal and external training courses, part-time university study and attendance at seminars, conferences (including international conferences), industrial visits and placements. The programs are subject to periodic reviews and improvements. In the 2009-10 financial year, IP Australia spent 3.4% of its expense budget on staff training and development. On average, $5,900 was spent per patent examiner on training and development. IP Australia also continues to recruit new staff with knowledge and experience in developing technologies. IP Australia requires all patent examiners to have tertiary qualifications. As at early 2010, 53% of patent examiners employed by IP Australia had postgraduate tertiary qualifications with 80% of these being science-based. ALRC 99 Report Recommendation 8–2 IP Australia should develop examination guidelines, consistent with the Patents Act 1990 (Cth) (Patents Act), the Patents Regulations 1991 (Cth) and existing case law, to explain how the criteria for patentability apply to inventions involving genetic materials and technologies. Response The Government accepts this recommendation. The Government agrees that there should be clear examination guidelines for how the criteria for patentability apply to inventions for all technologies, including genetic materials. IP Australia has examination guidelines to give effect to this recommendation and these are contained in the publicly available Australian Patent Office Manual of Practice and Procedure which is a controlled document under its externally certified ISO 9001 quality management system. The Government believes the current examination guidelines provide appropriate guidance on how these criteria apply to inventions involving genetic materials and technologies. IP Australia will continue to provide appropriate guidance as the law develops, and will update the examination guidelines as appropriate in consultation with stakeholders. ALRC 99 Report Recommendation 9–2 Information about patent litigation should be readily accessible to the public. To this end: (a) the Commonwealth should amend the Patents Act 1990 (Cth) (Patents Act) to require courts exercising jurisdiction under the Act to give written notice to the Commissioner of Patents when a legal proceeding to challenge or enforce a patent is commenced, and when a decision or judgment is given in any such proceeding; (b) the Commissioner of Patents should include information about any such notice in the file of a patent and make the information readily available, for example in the Official Journal of Patents and in the patents database on IP Australia's website; and (c) courts exercising jurisdiction under the Patents Act should amend their Rules of Court, as necessary, to give effect to this Recommendation. Response The Government accepts this recommendation noting however that a change to the Patents Act 1990 is not necessary. Section 139 of the Patents Act 1990 and provisions contained in Rule 34.42 of the Federal Court Rules already require parties to provide information to the Commissioner of Patents. The Commissioner places this information on the file for the patent in question and this information is accessible using the e-Dossier facility in AusPat which allows online, public access to patent files. Also, the Federal Court has implemented an internet inquiry system called 'Federal Law Search' which provides this information for patent-related proceedings. IP Australia will continue to work with the Federal Court to improve the existing notification process and visibility of proceedings via AusPat and the Federal Court's Federal Law Search system. ALRC 99 Report Recommendation 10–1 Courts exercising jurisdiction under the Patents Act 1990 (Cth) (Patents Act) should continue to develop their practices and procedures for dealing with patent matters in order to promote the just, efficient and cost effective resolution of patent disputes. Response This recommendation is a matter for courts exercising jurisdiction under the Patents Act 1990. ALRC 99 Report Recommendation 10–2 Courts exercising jurisdiction under the Patents Act should continue to develop procedures and arrangements to allow judges to benefit from the advice of assessors or scientific advisors in litigation involving patents over genetic materials and technologies. Response This recommendation is a matter for courts exercising jurisdiction under the Patents Act 1990. ALRC 99 Report Recommendation 11–1 The Australian Research Council (ARC) and the National Health and Medical Research Council (NHMRC) should review the National Principles of Intellectual Property Management for Publicly Funded Research (National Principles) to ensure that publicly funded research, where commercialised, results in appropriate public benefit. (See also Recommendations 12–1 and 17–2.) Response The Government accepts this recommendation. The National Health and Medical Research Council (NHMRC), in collaboration with the Australian Research Council (ARC) are convening a review of the Principles of Intellectual Property Management for Publicly Funded Research. The review will include consultation with interested stakeholders. ALRC 99 Report Recommendation 11–2 The ARC and NHMRC should develop guidelines to assist organisations receiving public funding for research in complying with the National Principles. The guidelines should, among other things: (a) provide guidance on what is meant by 'public benefit'; (b) assist organisations in determining whether it is appropriate for particular research results to be commercialised; and (c) identify a range of approaches to the exploitation of intellectual property and the circumstances in which they might be used. Response The Government accepts this recommendation. The Government supports the development of guidelines to assist organisations receiving public funding for research in complying with the Principles of Intellectual Property Management for Publicly Funded Research (National Principles), and supports such guidelines including the elements in the recommendation. The guidelines will be developed in consultation with interested stakeholders. The Government notes that both the Australian Research Council (ARC) and the National Health and Medical Research Council (NHMRC) require compliance with the National Principles as an integral part of receiving ARC and NHMRC funding. Until December 2010 for the ARC this was facilitated though the Funding Agreement signed between the ARC and the Administering Organisation, and was required as part of any Multi-Institutional or Collaborative Agreement signed by the Administering Organisation with other parties involved with ARC funded research. From January 2011 compliance continues to be required and will be included in both the Funding Rules and the Funding Agreement. Currently for NHMRC, compliance is facilitated through the Deeds of Agreement signed between NHMRC and the Administering Institution. It is the responsibility of the Administering Organisation or Institution to provide further guidance and facilitate the mechanics of protecting intellectual property and/or commercialising research where appropriate. ALRC 99 Report Recommendation 11–3 In exceptional circumstances, where the public benefit would clearly be served by broad dissemination of the results of publicly funded research, the ARC and the NHMRC should consider attaching conditions to the grant of funding. These conditions might include a requirement that research results be placed in the public domain, or that a patented invention be widely licensed. Response The Government accepts the recommendation in principle. The Government notes that the Australian Code for the Responsible Conduct of Research and the National Principles of Intellectual Property Management for Publicly Funded Research include guidance on the dissemination of research findings and management of intellectual property. Compliance is a condition under which ARC and NHMRC funding is awarded. Where suitable, strategies for achieving impact from publicly funded research should be assessed on a case by case basis and publication should be consistent with appropriate IP management. Cooperative Research Centres (CRCs) are also required to comply with this code. NHMRC believes that the results of government-supported health and medical research should be made widely available so that both the research community and the public are able to derive maximum benefit from these outputs. The ARC has always been supportive of the broad dissemination of research and in 2011 has introduced a new component to Funding Rules which will allow up to two per cent of awarded ARC funding (total or non-salary) to be used for publication and dissemination of Project outputs and outreach activity costs. NHMRC has introduced a policy that requires all published outputs arising from NHMRC-supported research projects to be deposited in an open access institutional repository within 12 months of the date of publication. Similarly, the ARC strongly encourages publication in publicly accessible outlets and the depositing of data and any publications arising from a Project in an appropriate subject and/or institutional repository. In addition, the ARC has introduced from 2011 new guidelines against which Final Reports will be evaluated including the need to justify why any publications from a Project have not been deposited in appropriate repositories within 12 months of publication, and the need to outline how data arising from the Project has been made publicly accessible where appropriate. ALRC 99 Report Recommendation 11–4 Research organisations should ensure that their policies on intellectual property ownership cover research undertaken by visiting researchers, students and staff—whether undertaken solely within the organisation or jointly with other bodies. (See also Recommendation 17–4.) Response The Government accepts this recommendation in principle noting that its implementation is a matter for research organisations. ALRC 99 Report Recommendation 12–1 The Australian Research Council and the National Health and Medical Research Council, in implementing Recommendations 11–1 to 11–3, should recognise the public benefit in ensuring the wide dissemination of research tools. Response The Government accepts the recommendation in principle. The Government notes that the Australian Code for the Responsible Conduct of Research, jointly published by the ARC, the NHMRC and Universities Australia, includes guidance on the dissemination of research findings including manage research data and materials, how to publish and disseminate research findings, including proper attribution of authorship, how to conduct effective peer review and how to manage conflicts of interest to promote integrity in research, and manage intellectual property. Compliance with the Code is a condition under which the ARC and the NHMRC funding is awarded. As noted, the ARC has a number of guidelines, requirements and funding opportunities available to support wide dissemination of research outputs. ALRC 99 Report Recommendation 14–1 Research organisations should continue to take steps to raise the awareness of researchers in health sciences and biotechnology about intellectual property issues and the commercialisation of research, and should provide relevant advice to researchers as required. Response The Government accepts this recommendation in principle noting that its implementation is a matter for research organisations. The Government notes that the Australian Code for the Responsible Conduct of Research, jointly published by the Australian Research Council (ARC), the National Health and Medical Research Council (NHMRC) and Universities Australia, includes guidance on the responsibilities of institutions. This includes the promotion of responsible conduct of research, the establishment of good governance and management practices, provision of training for researchers, promotion of mentoring and ensuring researchers have a safe working environment, and management of intellectual property. Compliance with the Code is a condition under which the ARC and the NHMRC funding are awarded. ALRC 99 Report Recommendation 14–2 Universities should ensure that students undertaking degrees in health sciences or biotechnology are made familiar with intellectual property issues and the commercialisation of research. Response The Government accepts this recommendation in principle noting that its implementation is a matter for individual universities. ALRC 99 Report Recommendation 14–3 The responsible Minister should initiate a review of the grace period provisions in the Patents Regulations 1991 (Cth) (Patents Regulations) to examine: (a) whether they are well understood by the research community; and (b) how they have affected the commercialisation of Australian research in Australia or overseas. Response The Government accepts this recommendation. IP Australia completed a review of the grace period provisions and the final report was published (Review of Patent Grace Period, August 2005). This review was in response to a Government commitment to review the grace period provisions two years after they were introduced (on 1 April 2002). The report recommended that no changes to the grace period provisions were required. Since this review, the Government has identified some aspects of the drafting of the current grace period provisions that create uncertainty as to the requirements for use and scope of these provisions. Relevant amendments to remove this uncertainty are being pursued through the Intellectual Property Laws Amendment (Raising the Bar) Bill 2011. The Bill which has been the subject of extensive public consultations over a two year period provides for a number of changes to raise the standards for grant of a patent thereby realigning Australia's patent law with global trends regarding standards for patentability. The various changes proposed under the Bill will require more evidence that the invention can do what it claims to do and increase quality of the patents granted in Australia. The Government continues to engage in international fora in relation to a harmonised approach to grace periods. The Government will continue to monitor national and international developments and jurisprudence to ensure the grace period provision continues to serve the needs of the public and innovators. ALRC 99 Report Recommendation 14–4 Research organisations should ensure that their researchers are fully informed about the operation of the grace period provisions in the Patents Regulations, particularly in relation to: (a) the effect of publication before filing a patent application; and (b) the effect of publication on the patentability of their inventions in countries that do not have equivalent provisions. Response The Government accepts this recommendation in principle noting that its implementation is a matter for research organisations. ALRC 99 Report Recommendation 15–1 IP Australia should develop examination guidelines, consistent with the Patents Act 1990 (Cth), the Patents Regulations 1991 (Cth) and existing case law, to explain how the criteria for patentability apply to inventions involving stem cells and related technologies. Response The Government accepts this recommendation. IP Australia has developed examination guidelines to give effect to this recommendation and these are contained in the publicly available Australian Patent Office Manual of Practice and Procedure (available at: http://www.ipaustralia.gov.au/pdfs/patentsmanual/WebHelp/Patent_Examiners_Manual.htm) which is a controlled document under its externally certified ISO 9001 quality management system. These guidelines will need to take account of any outcomes from the 2010 review of the Research Involving Human Embryos Act 2002 and the Prohibition of Human Cloning Act 2002. ALRC 99 Report Recommendation 15–2 As part of the independent reviews to be conducted under the Research Involving Human Embryos Act 2002 (Cth) and the Prohibition of Human Cloning Act 2002 (Cth), the responsible Minister and the National Health and Medical Research Council should require an examination of the exploitation of intellectual property rights over stem cells when considering the establishment of a National Stem Cell Bank. Response This recommendation is no longer relevant. The 2005 Legislation Review of the Research Involving Human Embryos Act 2002 (and the Prohibition of Human Cloning Act 2002) recommended the establishment of a National Stem Cell Bank. The Government subsequently rejected this recommendation after commissioning a Report on Options for the Establishment of a National Stem Cell Bank (2007) and deciding that such a bank could not be justified for a number of reasons, including because the science is at an early stage and it would duplicate resources available overseas e.g. UK Stem Cell Bank. The National Health and Medical Research Council (NHMRC) will maintain a watching brief on developments in this area. ALRC 99 Report Recommendation 17–1 Biotechnology Australia, in conjunction with its member departments, should collaborate with the peak national bodies with an interest in technology transfer from the public sector: (a) to further develop and implement programs to assist technology transfer offices in research organisations in commercialising inventions involving genetic materials and technologies; and (b) to develop strategies to ensure widespread participation of technology transfer offices in these programs. Response The Government accepts this recommendation in principle, noting that Biotechnology Australia no longer exists. The Advisory Council on Intellectual Property (ACIP) is currently conducting a review, titled Collaborations between the Public and Private Sectors: The Role of Intellectual Property, into how intellectual property acts as an enabler or disabler in collaborations between the public and private sectors. The Government will respond to the recommendations of this review in due course. The Australian Government has facilitated a number of collaborations between public and private entities such as through Commercialisation Australia, the Australian Research Council (ARC), the National Health and Medical Research Council (NHMRC) and Cooperative Research Centres (CRCs) and will monitor this issue. ALRC 99 Report Recommendation 17–2 The Australian Research Council (ARC) and the National Health and Medical Research Council (NHMRC), in implementing Recommendation 11–1, should recognise the importance of clear ownership of intellectual property resulting from collaborative or jointly funded research. Response The Government accepts this recommendation and recognises the importance of clear ownership of intellectual property resulting from jointly funded research. The Government notes that: the Australian Research Council (ARC) and the National Health and Medical Research Council (NHMRC) funding agreements currently require that institutions have policies and procedures in place for the management of intellectual property; and, where there is a requirement for matching funding by partner organisations, ARC funding agreements require that institutions not allow a research project to commence, nor funding to be expended, until the institutions and their collaborating partner organisations have entered into a written agreement that, among other things, includes arrangements for managing intellectual property. Within the relevant ARC Funding Rules and Funding Agreement documentation, the ARC is explicit that the ARC does not claim ownership of any intellectual property in a Proposal or a funded Project. The Government agrees that the ARC, the NHMRC and Cooperative Research Centres (CRCs) should review those requirements in the light of the outcomes of the review of the National Principles of Intellectual Property Management for Publicly Funded Research which is currently being scoped. The review will include consultation with stakeholders. The Government notes that the Australian Code for the Responsible Conduct of Research, jointly published by the ARC, the NHMRC and Universities Australia, includes guidance on establishing agreements for collaborations, managing conflicts of interest, access to research materials and intellectual property. In implementing Recommendation 11-1 of the ALRC 99 Report, review of the National Principles, the Principles currently state that, 'The ARC and the NHMRC do not wish to hold a stake in direct ownership of IP nor do they intend to benefit directly from commercial outcomes of the research funded through their financial support' and 'Recognising the Common Law rights of research institutions as employers, the ownership and the associated rights of all IP generated by the NHMRC and the ARC supported research will initially be vested in the research institutions administering the grants'. ALRC 99 Report Recommendation 17–3 The ARC and NHMRC, in implementing Recommendation 11–2, should: (a) provide guidance on ensuring clear ownership of intellectual property resulting from collaborative or jointly funded research; and (b) identify a range of approaches to ensuring clarity of ownership. Response The Government accepts this recommendation in principle, noting that while it is not appropriate for the Government to provide legal advice to third parties, it is common for issues of intellectual property ownership to be negotiated as part of contractual processes. However, the Government notes that the Australian Code for the Responsible Conduct of Research, jointly published by the Australian Research Council (ARC), the National Health and Medical Research Council (NHMRC) and Universities Australia, recommends that organisations involved in joint research projects ensure that an agreement is reached with the partners on the management of the research including issues relating to intellectual property. The Government also notes that with regard to Recommendation 11-2 of the ALRC 99 Report, the ARC continues to require compliance with the National Principles of Intellectual Property Management for Publicly Funded Research (National Principles) as an integral part of receiving ARC funding through Funding Rules and Funding Agreements. As noted above, this includes the requirement that compliance with the National Principles must be part of any Multi-Institutional or Collaborative Agreement signed by the Administering Organisation with other parties involved with ARC funded research. The Government also notes that the Australian Council on Intellectual Property (ACIP) is currently conducting a review entitled Collaborations between the Public and Private Sectors: The Role of Intellectual Property. ALRC 99 Report Recommendation 17–4 Research organisations should ensure that their policies and practices address the problems of ownership of intellectual property resulting from collaborative or jointly funded research. (See also Recommendation 11–4.) Response The Government accepts this recommendation in principle noting that its implementation is a matter for individual research organisations. The Government further notes that the National Principles of Intellectual Property Management for Publicly Funded Research would apply to research organisations where their research is government funded. ALRC 99 Report Recommendation 17–5 Biotechnology Australia, in conjunction with its member departments, should collaborate with the peak national bodies with an interest in technology transfer from the public sector to develop model materials transfer agreements for use by research organisations, along the lines of the models developed by the United States Association of University Technology Managers. (See also Recommendation 22–2.) Response The Government accepts this recommendation in principle, noting that Biotechnology Australia no longer exists. The Government will investigate options for developing model materials transfer agreements for use by research organisations. A proposed process for developing model agreements will involve stakeholder consultation. ALRC 99 Report Recommendation 18–1 Biotechnology Australia, in conjunction with its member departments, and in consultation with state and territory governments and other stakeholders, should: (a) develop further programs to assist biotechnology companies in commercialising inventions involving genetic materials and technologies; and (b) develop strategies to ensure widespread participation of biotechnology companies in these programs. Response The Government accepts this recommendation in principle. Although not specifically directed at biotechnology, these initiatives are available to biotechnology companies: Australia's Innovation Agenda, Powering Ideas: an Innovation Agenda for the 21st Century, was released on 12 May 2009. It sets a 10-year reform agenda to make Australia more productive and more competitive. Powering Ideas takes a holistic approach to developing a 10-year vision for the national innovation system (NIS) as it builds on the review of the NIS, other reviews, and investigation and policy work undertaken throughout 2008-09. Powering Ideas outlines actions taken to boost Australia's innovation system, as well as new proposals to improve innovation within the research, business and public sectors including reforms to the governance of the innovation system. It sets innovation priorities and strengthens coordination: to improve skills and expand research capacity; to increase incentives for innovation in business, government and the community sector; and to boost domestic and international collaboration over the next 10 years.; The R&D Tax Credit, which replaces the R&D Tax Concession from income years starting on or after 1 July 2011, supports business R&D and targets small innovative firms, including in the biotechnology sector. Legislation implementing the new program passed the Australian Parliament on 24 August 2011. The legislation awaits Royal Assent. The new R&D Tax Credit has two key components: (i) a 45 per cent refundable tax credit (equivalent to a 150 per cent concession) will be available to firms with an aggregated turnover of $20 million per annum; and (ii) a 40 per cent non-refundable tax credit (equivalent to a 133 per cent concession) will be available to all other firms. The new R&D Tax Credit is a broad-based and market-driven package. It increases the base rate of government assistance for R&D conducted by businesses of all sizes, with no limit to the amount of R&D expenditure for support. The new measure is simple, predictable and adopts the international practice of using a well-understood tax credit to support business R&D. To be available from 1 January 2014, a new element to the R&D Tax Credit, Quarterly Credits, will be open for small and medium enterprises (SMEs) in anticipation of receiving a tax offset under the R&D Tax Credit. Quarterly credits will further improve cash flow of SMEs and provide an added incentive to invest in R&D; Commercialisation Australia is a competitive, merit-based assistance program offering funding and resources to accelerate the business building process for Australian companies, entrepreneurs, researchers and inventors. Commercialisation Australia offers not only a range of funding options, but multi-layered networking opportunities to help applicants achieve business success; and The Innovation Investment Fund program targets new companies at the seed, start-up and early expansion stages of development to assist them to grow rapidly and to build upon their research and development capability. This is achieved by providing capital and business assistance from venture capital fund managers. Of the 13 current fund managers, three are specifically targeted at biotechnology while another six have an interest in the sector. ALRC 99 Report Recommendation 19–2 AHMAC should examine options for using government funding and purchasing power to control the cost of goods and services that are subject to gene patents and used in the provision of healthcare. Response The Government does not accept this recommendation The Government does not see a need at present for additional mechanisms to address the cost of medical goods and services. The Government has existing funding mechanisms, the Medicare Benefits and Pharmaceutical Benefits Schemes, which are aimed at providing Australians with access to appropriate and affordable and cost-effective medical services and medicines. ALRC 99 Report Recommendation 19–3 Where particular gene patent applications, granted patents or patent licensing practices are considered to have an adverse impact on medical research or the cost-effective provision of healthcare, Commonwealth, state and territory health departments should consider whether to exercise any existing legal options to facilitate access to the inventions. These options should be exercised only with appropriate legal or patent attorney advice, and include: (a) challenging a patent application or granted patent by initiating proceedings to oppose a patent application; requesting re-examination of a patent; or applying for revocation of a patent under the Patents Act 1990 (Cth) (Patents Act) (see Chapter 9); (b) making a complaint to the Australian Competition and Consumer Commission where evidence arises of a potential breach of Part IV of the Trade Practices Act 1974 (Cth) (see Chapter 24); (c) exploiting or acquiring a patent under the Crown use and acquisition provisions of the Patents Act (see Chapter 26); or (d) applying for the grant of a compulsory licence under the Patents Act (see Chapter 27). Response The Government accepts this recommendation in principle and notes that the National Health and Medical Research Council (NHMRC) has the capability to provide technical advice on the expected impact of patents and patent practices on medical research and the provision of healthcare. In line with the responses to Recommendations 19-1 of the ALRC 99 Report, the Government considers that the Medical Services Advisory Committee (MSAC) is the appropriate body to undertake economic evaluation of new health-related technologies. With regard to Recommendation 19-3(c), the Advisory Council on Intellectual Property (ACIP) undertook a review of the use of Crown use provisions (see ACIP Report Review of Crown Use Provisions for Patents and Designs), following which the Minister for Innovation, Industry, Science and Research wrote to relevant Commonwealth and State Ministers in March 2009 to raise awareness of government rights and obligations under the provisions. IP Australia also developed a public information sheet highlighting the Crown's rights and obligations and the intellectual property owners' rights under the provision. ALRC 99 Report Recommendation 19–4 The proposed Human Genetics Commission of Australia (HGCA) should monitor the application of intellectual property laws to genetic materials and technologies, where these may have implications for medical research or human health, both generally and in specific cases. The HGCA should liaise with and provide advice to AHMAC, health departments, and other stakeholders about ways to facilitate access to inventions, in accordance with Recommendation 19–3. Pending the establishment of the HGCA, AHMAC should establish a mechanism to perform these functions. Response The Government notes this recommendation. In response to the Human Genetics Commission of Australia (HGCA) recommendation in the Australian Law Reform Commission/Australian Health Ethics Committee Report, Essentially Yours: The Protection of Human Genetic Information, the Human Genetics Advisory Committee (HGAC) has been established as a principal committee of the National Health and Medical Research Council (NHMRC). HGAC advises the CEO of the NHMRC on high-level technical and strategic issues in human genetics, and on the broad social, ethical and legal implications of human genetics and related technologies. The Australian Health Ministers' Advisory Council (AHMAC) and other government stakeholders can request advice from HGAC via the NHMRC CEO. However, detailed monitoring of the application of intellectual property laws to genetic materials and technologies is outside HGAC's Terms of Reference and the National Health and Medical Research Council Act 1992. The Crown use provisions were reviewed by the Advisory Council on Intellectual Property (ACIP) and their report issued in 2005 (see 2005 ACIP Report, Review of Crown Use Provisions for Patents and Designs), following which the Minister for Innovation, Industry, Science and Research wrote to relevant Commonwealth and State Ministers in March 2009 to raise awareness of government rights and obligations under the provisions. IP Australia also developed a public information sheet highlighting the Crown's rights and obligations and the intellectual property owners' rights under the provisions. The Government also supports a review of the operation of the compulsory licensing provisions of the Patents Act 1990 (see response to Recommendation 12 of the SGP Report and Recommendation 27-1 of the ALRC 99 Report) to ensure that the provisions are achieving their intended purpose as a safeguard to facilitate access to innovations where the reasonable requirements of the public are not being met. The review will also include measures to raise awareness of these provisions. ALRC 99 Report Recommendation 22–1 Biotechnology Australia, in conjunction with its member departments, should develop and implement programs to assist research organisations and biotechnology companies in licensing and commercialising inventions involving genetic materials and technologies. The programs should be developed in collaboration with state and territory governments, peak national bodies with an interest in licensing and commercialisation of intellectual property, and other relevant stakeholders. (See also Recommendations 17–1 and 18–1.) Response The Government accepts this recommendation in principle, noting that Biotechnology Australia no longer exists. The Government notes that there are existing government and private sector initiatives that encourage the commercialisation of innovations from public sector research and biotechnology companies, as set out in the responses to Recommendations 17-1, 17-2 and 18-1 of the ALRC 99 Report. ALRC 99 Report Recommendation 22–2 AusBiotech Ltd, as the peak industry body in the biotechnology sector, should develop model agreements and interpretative guidelines for patent licences involving genetic materials and technologies. The model agreements should be developed in collaboration with Biotechnology Australia, state and territory governments, and other relevant stakeholders as a non-binding model of desirable licensing practices. (See also Recommendation 17–5.) Response The Government accepts this recommendation in principle, noting that Biotechnology Australia no longer exists. The Government will investigate options for developing model agreements and interpretative guidelines for patent licences. A proposed process for undertaking these investigations will involve stakeholder consultation. ALRC 99 Report Recommendation 22–3 AusBiotech Ltd should consider whether additional industry initiatives are necessary or desirable to facilitate the licensing of patent rights over genetic materials and technologies. Response This recommendation is a matter for AusBiotech Ltd. ALRC 99 Report Recommendation 24–1 The Commonwealth should amend s 51(3) of the Trade Practices Act 1974 (Cth) (Trade Practices Act) to clarify the relationship between Part IV of the Act and intellectual property rights. Recommendation 24–2 The Australian Competition and Consumer Commission (ACCC) should develop guidelines to clarify the relationship between Part IV of the Trade Practices Act and intellectual property rights. The guidelines should address: (a) when the licensing or assignment of intellectual property might be exempted under s 51(3) or might breach Part IV; and (b) when conduct that would otherwise breach Part IV might be authorised under Part VII of the Trade Practices Act. The guidelines should extend to the exploitation of intellectual property rights in genetic materials and technologies, including patent pools and cross-licensing. Response The Government notes the recommendations to amend section 51(3) of the Competition and Consumer Act 2010 (CCA) and for the Australian Competition and Consumer Commission (ACCC) to subsequently produce guidance material. As the agency responsible for the enforcement of the provisions of the CCA, the ACCC produces a wide range of publications that deal with its functions and the legislation for which it is responsible. If subsection 51(3) of the CCA is amended to change the application of the competition laws to intellectual property in the future, the Government will ask the ACCC to consider issuing relevant guidance. ALRC 99 Report Recommendation 24–3 As the need arises, the ACCC should review the conduct of firms dealing with genetic materials and technologies protected by intellectual property rights, to determine whether their conduct is anti-competitive within the meaning of Part IV of the Trade Practices Act. Response The Government notes this recommendation. The Australian Competition and Consumer Commission (ACCC) is an independent statutory authority charged with the responsibility for enforcing the Competition and Consumer Act 2010 (CCA). Relevantly, subsection 29(1A) of the CCA prohibits the Minister giving directions to the ACCC about its performance of functions or exercise of powers under Part IV (prohibition of anti- competitive conduct) of the CCA. The ACCC publishes guidelines on its enforcement and compliance policies, which are available on its website – www.accc.gov.au. The Government expects that if any concerns arise, the ACCC will consider these issues in the same way as it would all suspected breaches of the CCA. ALRC 99 Report Recommendation 24–4 Commonwealth, state and territory health departments, and other stakeholders, should make use of existing complaint procedures under the Trade Practices Act where evidence arises of conduct that may breach Part IV and have an adverse impact on medical research or the cost-effective provision of healthcare. Response The Government accepts this recommendation in principle. The Government notes that concerned parties should use the Australian Competition and Consumer Commission's (ACCC's) existing complaints mechanisms to raise any concerns that conduct is occurring which may breach the competition provisions of the Competition and Consumer Act 2010. ALRC 99 Report Recommendation 25–1 If evidence arises that the prices of patented genetic materials and technologies have adversely affected access to healthcare services in Australia, the responsible Minister should consider whether to: (a) refer the matter to the Productivity Commission for a study or inquiry pursuant to the Productivity Commission Act 1998 (Cth); or (b) direct the Australian Competition and Consumer Commission, or another body, to conduct an inquiry pursuant to Part VIIA of the Trade Practices Act 1974 (Cth). Response The Government notes this recommendation. Part VIIA of the Competition and Consumer Act 2010 provides for price inquiries where, in the view of the Minister, competitive pressures are not sufficient to achieve efficient prices and protect consumers. The Government will consider the need for such an inquiry if this evidence arises. ALRC 99 Report Recommendation 28–1 The Commonwealth should amend the Copyright Act 1968 (Cth) (Copyright Act) to provide that research with a commercial purpose or objective is 'research' in the context of fair dealing for the purpose of research or study. Response The Government does not accept this recommendation. The issue of whether the term 'research' in sections 40 and 103C of the Copyright Act 1968 can include a commercial purpose has not been specifically considered by the courts. The wording in the provisions does not currently exclude research with a commercial purpose from the scope of the fair dealing exception. The reasoning of cases examining these provisions confirms that the terms 'research' and 'study' should be interpreted with their ordinary meanings. The ordinary meaning of 'research' connotes a broad meaning that does not distinguish whether the purpose is of a commercial or private nature. The current wording of the Copyright Act 1968 does not exclude research with a commercial purpose from falling under the fair dealing exception. Until a contrary finding is made under case law the Government sees no need for legislative amendments to be made to the Copyright Act 1968. ALRC 99 Report Recommendation 28–2 The Commonwealth should amend the Copyright Act to provide that, in relation to databases protected by copyright, the operation of the provisions relating to fair dealing for the purpose of research or study cannot be excluded or modified by contract. Response The Government does not accept this recommendation. The operation of the provisions relating to fair dealing for the purpose of research or study in relation to databases protected by copyright is a subset of the broader issue of the exclusion or modification by contract of the fair dealing exceptions. The views of the Australian Law Reform Commission (ALRC) are noted and provide valuable assistance to the Government. However, the Government does not propose to examine this broader issue at this time. ALRC 99 Report Recommendation 28–3 Prior to the implementation of art 17.4.7 of the Australia–United States Free Trade Agreement—which includes a prohibition on the circumvention of access control measures—the Australian Government should assess the need for an exception for researchers engaging in fair dealing for the purpose of research or study in relation to databases protected by copyright. Once the prohibition has been implemented, the Australian Government should periodically review the impact of the anti-circumvention provisions on the practical exercise of fair dealing for the purpose of research or study in copyright works. Response The Government notes this recommendation. The Government notes the views expressed by the Australian Law Reform Commission (ALRC) that the Government should assess the need for an exception to circumvention for researchers engaging in fair dealing for the purpose of research and study in relation to databases. However, the ALRC indicated that there did not appear to be any significant problems being experienced by Australian researchers in this regard. The then Australian Government Attorney-General, the Hon Philip Ruddock MP, gave a reference to the House of Representatives Standing Committee on Legal and Constitutional Affairs to inquire into, and report on, possible additional exceptions to the technological protection measures liability scheme. The Committee concluded its inquiry in March 2006. The Committee did not recommend an exception to allow circumvention by researchers engaging in fair dealing for the purpose of research and study in relation to databases. In accordance with the Australia-United States Free Trade Agreement, amendments to the Copyright Act 1968 set out the criteria for determining additional exceptions. Amongst other matters, proponents of an exception must credibly demonstrate that there is an actual or likely adverse impact on their non-infringing activities. Future reviews to determine the need for any additional exceptions will provide the opportunity for those affected by the liability scheme to demonstrate that the need exists for an exception to allow circumvention of technological protection measures for research and study in relation to databases. ———————— 1 Given the overlap and similar areas covered by many of the recommendations, the Government has provided a single response to multiple recommendations of the reports where appropriate. 2 Patents Act 1903 (Cth). Australian Government Response to the Senate Environment, Communications and the Arts References Committee Report: Forestry and mining operations on the Tiwi Islands Recommendation 1 The committee recommends that, as a matter of urgency, relevant Federal and Northern Territory agencies work with the Tiwi Land Council and Tiwi Islanders to: undertake an urgent assessment of the ongoing economic viability of the plantations and if a model or models of management are found to be economically viable, assist in the preparation of business plans necessary to support their successful execution; and consider the provision of infrastructure support, especially for the port facilities, if it will assist in the economic viability of the plantations. Response In 2009, Indigenous Business Australia (IBA) and the Indigenous Land Corporation (ILC) commissioned P5yry Forest Industry Pty Ltd to conduct a viability assessment for the Tiwi Forestry Project. The Poyry Report findings were released in January 2010 and found that the project is viable. In March 2011, the IBA Board approved, subject to satisfactory completion of due diligence, an equity investment of $5 million in the Tiwi Forestry Project via IBA subscribing for cumulative preference shares in Tiwi Plantations Corporation Pty Ltd. In addition, support from the Aboriginals Benefit Account totalling $6 million was provided in early 2010 through the ILC to administer a grant for land and environmental management activities relating to the maintenance of the plantation. This program delivers the following environmental management activities: fire planning, fire consultation, fuel reduction burning, wildfire suppression and fire education; joint research with CSIRO on fire/carbon dynamics; control of woody weeds, especially Acacia mangium wildling control, annual mapping and control; water resource planning by development of a Tiwi Islands Water Management Plan; protection of rare, endangered and vulnerable flora and fauna on the Tiwi Islands by Red Goshawk surveys and monitoring; eradication of the Tropical Fire Ant (Solenopsis geminate)—monthly inspection of nests, training and information sharing with representative from CSIRO; coastal surveillance patrols; and development of Cadet Ranger program at Tiwi College. The construction of the port was initially grant funded through the Aboriginals Benefit Account. The Government considers that ongoing investment into the Tiwi forestry operation should be sourced from commercial investors. The Tiwi Land Council has advised that it has received an insurance payment resulting from damage sustained from Cyclone Carlos in early 2011 which, together with private investment already sourced, will be used towards repairing the island's port infrastructure. The Tiwi Land Council has advised that harvesting is scheduled for the 2012/13 financial year. Recommendation 2 The committee recommends that, consistent with the view of Oakton and the Land Council, that the Department of Families, Housing, Community Services and Indigenous Affairs should work with the Tiwi Land Council and other major stakeholders to develop guidelines for the distribution of money to traditional owners. Response Under the Aboriginal Land Rights (Northern Territory) Act 1976, Land Councils are generally responsible for the distribution of money to traditional owners. The Tiwi Land Council has advised that it undertakes the following actions in relation to the distribution of money to Tiwi landowners: requires all landowning groups to develop budgets that reflect general landowner benefits prior to distributions being made; analyses budgets and benefits by the Strategic Economic Planning Group and the Tiwi Land Council Independent Audit Committee; monitors distributions through private accountants and requires regular audit of statements; sets investment criteria for Tiwi landowners that receive significant revenues from commercial activities; and receives monthly statements from Tiwi landholder corporations and monitors distributions. Recommendation 3 The committee recommends that the Tiwi Land Council and the business entities of the Tiwi people work to ensure that those business entities operate in the most e icient and transparent manner possible. Response Under the Aboriginal Land Rights (Northern Territory) Act 1976, the functions of a Land Council include, 'assisting Aboriginals to carry out commercial activities in any manner that will not cause the Land Council to incur financial liability or enable it to receive financial benefit'. The Tiwi Land Council has advised that it undertakes the following actions: engages external commercial lawyers to assist where appropriate; monitors agreements and corporate relationships that business entities enter into by assisting and supporting Tiwi commercial entities; requires minimum standards of audit and compliance among Tiwi corporations and investors; convenes a Strategic Economic Planning Group of skilled members, with transparent access to all corporate arrangements and Tiwi Land Council files, protocols and processes; requires Indigenous corporations work towards a majority of skilled directors on corporate boards; developed a Tiwi training program and sourced capable lecturers for delivery of governance training from the Australian Institute of Company Directors; the Australian Forestry Institute, and through the Tiwi Employment and Training Board; supports training that is consistent with Tiwi commercial business requirements; has developed and identified training of junior members for leadership roles through Tiwi College, and engaged in developing programs for this purpose; retains external auditors (KPMG Chartered Accountants) to measure effectiveness and diagnose structural flaws and capacity of education and training sub-committees; and retains external auditors (ISO 14001) for land and resource management sub-committee. The Tiwi Land Council has advised that it has documented the links between the operations of the Land Council and external commercial entities operating within its region. The relevant documents disclose: the shares and interests held in commercial entities; joint programs, projects and activities between Tiwi landowners and commercial entities monitored by the Tiwi Land Council; the benefits to Aboriginal people planned and contemplated through the commercial activities; governance compliance and conditions of audit and annual financial statements required of all commercial undertakings; landowner consultation and regular meeting schedules between Tiwi landowners and investors; scrutiny and due diligence requirements assisted through the Macquarie Bank Pro Bono Guiding Panel comprising business appraisal, corporate structuring, legal and other senior skilled Macquarie personnel providing a continuing oversight of projects and detailed interrogation of all Tiwi corporate proposals; and the Macquarie Bank Pro Bono Panel also assists the Strategic Economic Planning Group established 2009. Recommendation 4 The committee recommends that the Tiwi Land Council and the business entities of the Tiwi people initiate new communication strategies to ensure that their structures, roles and activities are more widely understood by the Tiwi people. Response The Tiwi Land Council has advised that it has responded to the Senate Inquiry's recommendation to initiate new communication strategies to ensure that the Land Council's structures, roles and activities are more widely understood by the Tiwi people through the following initiatives: displaying and putting up notices regarding Tiwi Land Council meetings and decisions made at those meetings at many public sites; providing information booklets to the Tiwi people in relation to proposals to be considered and acted upon by the Tiwi Land Council (such as township leasing and forestry operations); providing and distributing DVDs of meetings and discussions held for cultural, commercial and dispute resolution purposes; verbal communication (both formally and informally) between Tiwi Land Council members and the Tiwi people in general; printing in excess of 100 copies of all minutes of Tiwi Land Council meetings for distribution; publicising the availability of all Annual Reports since 1978 at all six on-island offices of the Tiwi Land Council; providing opportunities for the Tiwi people to provide feedback, comments, or complaints via suggestion box, email, verbally and written and actively considering such feedback, comments, or complaints at Tiwi Land Council meetings; holding meetings for the Tiwi people to provide information and the opportunity to ask questions; and re-designing the Tiwi Land Council website with links and information brochures including all monthly publications. Government Response to the Minority Report Recommendations Recommendation 1 That, as a matter of priority, relevant Federal and Northern Territory agencies work with the Tiwi Land Council and Tiwi Islanders to: a) Undertake an adequately resourced research project to determine the most appropriate process for rehabilitating the plantation area; and b) Consider the provision of financial and technical support to ensure the full range of employment and rehabilitation opportunities is explored and that ongoing management of the area is undertaken. Response Support from the Aboriginals Benefit Account totalling $6 million has been provided through the ILC to administer a grant for land and environmental management activities relating to the maintenance of the plantation with a particular focus on training and employment. The Tiwi forestry operation is managed by a skilled workforce of seventeen Tiwi employees including twelve forestry graduates or Tiwi apprentices in training. These activities include weed and feral animal control, nursery propagation of plants for the revegetation of old mineral sand and mining sites, propagation of plants and food, control of coastal erosion, monitoring of water quality and biodiversity, fencing and site protection for threatened species including the Red Goshawk. The work will also include any remediation works required on the Tiwi forestry lease should the commercial operations cease. The ILC program delivers the following benefits to Aboriginal people living on the Tiwi Islands: knowledge and skills gained in weed and pest surveillance, prescribed burning practices, fire management strategy/program, coastal patrols, feral weed and animal control, natural resource planning and community awareness and education; and work undertaken by Tiwi Rangers to ensure that forestry operations are carried out in an environmentally sensitive manner, including monitoring of the Red Goshawk which is on the on Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) and Northern Territory threatened bird species list. Recommendation 2 That the Federal Environment Minister ensures that all existing environmental requirements are met. Response The Department of Sustainability, Environment, Water, Population and Communities is working with the Tiwi Land Council to ensure that existing environmental obligations under the EPBC Act are met. This will continue to be achieved through close monitoring of the project conditions. The Tiwi Land Council has provided a draft Rehabilitation Management Plan to the Department of Sustainability, Environment, Water, Population and Communities for consideration. Subject to approval, Tiwi Land Council will seek access to the $1 million bond posted by Sylvatech Ltd (the original proponent) to carry out the necessary survey and research to implement rehabilitation requirements. Four hundred and fifty thousand dollars was required to be paid by Sylvatech Ltd in the three calendar years 2009 to 2011 to the Tiwi Land Council for offset projects which included control of feral animals, control of priority weeds, development and implementation of ecologically sensitive burning regimes, and monitoring of threatened flora species. This work has recommenced with environmental funding provided through the Aboriginals Benefit Account. Plantation Management Partners (the operations staff employed by Tiwi Plantations Corporation Pty Ltd to manage the plantation) maintains AS/NZS ISO 14001 accreditation. The AS/NZS ISO 14001 standard establishes a structured approach to planning and implementing environment protection measures and provides for monitoring of environmental performance. The Tiwi forestry operation is audited against this ISO standard twice a year—once by an independent auditor and once by internal audit. The independent findings of the December 2010 audit record that the Environmental Management System operated by Plantation Management Partners complies with the requirements of ISO standard. The independent auditor records that the management and staff of Plantation Management Partners, Tiwi Plantation Corporation, Tiwi Land Council and interested parties on the Tiwi Islands all expressed understanding and commitment to environmental protection in balance with socio-economic needs. The internal audit completed on 25 August 2011 found that the Tiwi forestry operation remains compliant with the requirements of the ISO standard. Recommendation 3 That there should be no further clearing of native vegetation for additional plantations on the Tiwi Islands. Response The Tiwi Land Council has advised that there are no plans for additional plantations to be established on the Tiwi Islands. The Australian Government notes that establishing any additional plantations on the Tiwi Islands is a business decision for the relevant Tiwi landowners. The Tiwi islands are Aboriginal land held by the Tiwi Land Trust under the Aboriginal Land Rights (Northern Territory) Act 1976. Decisions over the use of Aboriginal land must be consented to by, the relevant Tiwi landowners as a group and ratified by the Tiwi Land Council. Any future plantation development may require consideration under the EPBC Act before it can proceed. Recommendation 4 That the remediation plan to address environmental damage in breach of the EPBC conditions for the project should be made available for public comment before its implementation. Response The Australian Government supports this recommendation. Recommendation 5 That the actual and potential hydrological impacts of the plantation operations be assessed, with specific attention to the management of erosion and other associated land management issues. Response On 12 August 2001, the then Minister for the Environment and Heritage approved the Tiwi Forestry Project pursuant to section 133 of the EPBC Act The impacts of the plantation were considered in the environmental impact assessment of the project conducted as part of the statutory approval process. Mitigation measures, including erosion and sediment controls, were also taken into account when the original approval was granted. Condition 4 of the EPBC Act approval required the proponent to submit a plan for the responsible Minister's approval dealing with, amongst other things, erosion and sediment control. This plan has already been approved. An annual report on compliance against all EPBC Conditions, including Condition 4 continues to be provided regularly to the Department of Sustainability, Environment, Water, Population and Communities. In addition, an annual erosion survey is carried out. The Department of Sustainability, Environment, Water, Population and Communities will continue to monitor closely the effectiveness of the erosion and sediment controls. Recommendation 6 That the Commonwealth establish a full forensic financial inquiry into logging and plantation operations on the Tiwi Islands to uncover the details of a) The extent of taxpayer money that has been spent on infrastructure and support for this project, b) The reasonable market value for the 40,000 tonnes of Red Tiwi logs, c) The circumstances surrounding the export of native hardwood logs, where they were exported, to whom, at what rate of return, d) What profit (if any) was received by Pirntubula on behalf of the Tiwi Traditional Owners from the export of native hardwood logs, and e) Which other companies or interests received profits from these exports. Response The Tiwi Land Council has provided the following advice in relation to this recommendation. a) The Aboriginals Benefit Account provided a grant of $4 million dollars in 2004 for the original wharf facility. The Aboriginals Benefit Account provided a grant of $6 million in early 2010 through the ILC to administer a grant for land and environmental management activities relating to the maintenance of the plantation. b) Forty thousand tonnes of Red Tiwi remain stored at Port Melville. The current market value of these logs is minimal as the age of most of these logs is in excess of five years. c) Logs were exported from 2004 to 2007 into Asian markets including Indonesia, Malaysia and China. A number of markets were trialled such as plywood veneer, sawlog for flooring and furniture. Characteristics of a hard, high density Australian eucalypt made it a difficult product for Asian manufacturers to process. The hardwood logs yielded a negative return in the order of $600,000. It should be noted the logs were sold under 'CRP arrangements (meaning the seller was responsible for the freight to market). In 2006-07, shipping rates out of Australia were pushed to record levels as a result of the mining boom. It should also be noted that the logs were sold in $US which meant the return in $AUD was severely affected by the strengthening SAUD. d) No profits were made or received. The sale of hardwood logs yielded a negative return. e) Entities known to be involved with the sale of these logs were Pentarch Forest Products for Marketing and Shipping and Pensyl Pty Ltd (owned by Great Southern) for operational costs. Recommendation 7 That the Commonwealth provide training and support in governance to develop capacity and decision-making processes on the Tiwi Islands, with particular attention to the inclusion of women and fiduciary issues. Response The Northern Territory Land Councils are independent statutory authorities and are responsible for meeting their legislative responsibilities under the Aboriginal Land Rights (Northern Territory) Act 1976. Land Council administration costs are met through payments made from the Aboriginals Benefit Account. The Tiwi Land Council 2009-10 Annual Report records (at pages 21 - 22) that the Strategic Economic Planning Group was established in 2009 at the request of the Tiwi Land Council Managers to provide guidance and advice to the Tiwi leaders in relation to corporate enterprises on the Tiwi Islands. Membership includes Mr. Ray Allwright, CEO of Tiwi Enterprises, Mr. Roger Smith, CEO of Tiwi Plantations Corporation, Mr. Craig Phillips, Director of Plantation Management partners, Mr. Mike Baxter, owner operator of Melville Lodge Fishing Resort, Mr. Guy Reynolds, Executive Director, Macquarie Bank and Mr. Brian Clancy, Secretariat. The group met three times during the 2009-10 financial year. The Tiwi Land Council 2009-10 Annual Report records (at page 22) that one role1 of the Strategic Economic Planning Group is to ensure Tiwi participation by: assisting Tiwi personally seeking to create or participate in business opportunities to be 'business ready' and suitably skilled and motivated to undertake this roles; assisting in providing full access to appropriate training, support programs and services; contributing at a strategic level in the development and implementation of appropriate financial and workforce strategies to ensure good business governance and the ongoing development of organisational capabilities; providing assistance, mentorship and attitudinal leadership to ensure that Tiwi build the knowledge, skills and abilities necessary to keep their businesses operating effectively and efficiently; encouraging quality management practices, continuous improvement, innovation and the adoption of best business and health & safety practices; assisting to safeguard against fraud, corruption or unscrupulous practices; assisting in preserving the commercial nature of business activities to ensure that they are operated in a purely business-like manner without social activities or other objectives diluting their focus; assisting to ensure that business profits are correctly distributed, rather than filtering into private pockets or arms-length shareholders; and assisting with securing grants and/or business loans as required. In the Senate Inquiry report, the Committee reserved its position in relation to the inclusion of women in the decision-making process. The Committee did not make a recommendation as it had not (at 4.77): … had an opportunity to address all of the cultural matters [to which] this relates, nor seek wider input on these mailers, evidence from anthropological experts or others.' The Tiwi Land Council has advised that the Tiwi landowners continue to draw women into decision-making about land whilst maintaining male line ownership inheritance. This approach is reflected in landowner consultative forums and landowner meetings which are both well attended by local women. These fora provide a platform for feedback, advice and recommendations to be made to the Tiwi Land Council. The Minister for Families, Housing, Community Services and Indigenous Affairs has written to the Tiwi Land Council requesting that the level of involvement by women in the Land Council be given further consideration. Recommendation 8 That the Commonwealth facilitate a comprehensive planning process to direct future economic and community development on the Tiwi Islands. Response The Northern Territory Land Councils are independent statutory authorities and are responsible for meeting their legislative responsibilities under the Aboriginal Land Rights (Northern Territory) Act 1976. Land Council administration costs are met through payments made from the Aboriginals Benefit Account. The Tiwi Land Council 2009-10 Annual Report (at pages 21—22) sets out the objectives, strategy and role of the Strategic Economic Planning Group. These are detailed below. The Objectives of the Strategic Economic Planning Group are to: stimulate and support the sustainable advancement of the Tiwi economy for the benefit of current and future generations; create employment opportunities and to increase participation of Tiwi people in the economy; guide and assist the Tiwi in ultimately becoming independent of welfare and government; and assist the Tiwi Education Board and the Tiwi Islands Training and Employment Board in improving educational, training, participation and employment outcomes. The strategy of the Strategic Economic Planning Group is to: identify and foster the development of commercially viable projects and business opportunities which have a financial benefit to the people and economy of the Tiwi Islands; increase the participation of Tiwi individuals and Tiwi owned or partnered businesses within the Tiwi economy; and attract high quality non-Tiwi business partners who have the proven expertise to sustain self funded and commercially viable business operations on the Tiwi Islands. One role of the Strategic Economic Planning Group is to develop new business opportunities by: evaluating potential new business opportunities by analyzing business models and strategies; conducting appropriate background checks and reviewing compliance issues and risk; ensuring that proposed business partners are suitably skilled, financed and motivated; ensuring that a proposed new venture is suitable and in harmony with the overall needs and objectives of the Tiwi; helping to identify, develop and maximise Tiwi employment opportunities within new and existing businesses; making recommendations to and seek approvals from Tiwi landowners, community leaders and the Tiwi Land Council; and closing new business deals by coordinating requirements, developing and negotiating contracts, integrating contract requirements with business operations. ————— 1The Tiwi Land Council 2009-10 Annual Report records (at pages 21-22) that the Strategic Economic Planning Group has two roles. These include, developing 'new business opportunities' and facilitating 'Tiwi participation'. Refer to the Government's response to Recommendation 8 below for discussion on the 'new business opportunities' role. Government Statement of Response This statement is the Government's response to the Joint Select Committee on Cyber-Safety's interim report High-Wire Act: Cybersafety and the Young. Introduction The Australian Parliament established the Joint Select Committee on Cyber-Safety (JSCC) in early 2010 as a part of the Government's commitment to investigate and improve cybersafety measures. The Committee's inquiry is based on the Terms of Reference finalised in November 2010. In summary, these require that the JSCC inquire and report on: the online environment in which Australian children currently engage cybersafety risks, such as exposure to illegal content and breaches of privacy responses to current cybersafety risks, such as regulation and enforcement opportunity for cooperation between stakeholders dealing in cybersafety issues examining how new technologies may present opportunities and economic benefits ways to support schools in dealing with cyberbullying incidents analysing information on world's best practice safeguards the merit of establishing an Online Ombudsman other matters on cybersafety referred by the Minister for Broadband, Communications and the Digital Economy or either House of Parliament. The JSCC undertook a range of consultation activities in order to investigate these Terms of Reference, including roundtable discussions, public hearings, school forums and online surveys. The committee tabled an interim report High-Wire Act: Cybersafety and the Young on 20 June 2011 containing thirty two recommendations. Key messages of the report The High-Wire Act report provides an overview of current cybersafety concerns, such as defming the 'online environment' and the concept of cybersafety. It outlines the roles of current stakeholders in the cybersafety field. The report also describes the Committee's concerns with educational strategies, law enforcement issues and cybersafety approaches undertaken by Australian and international governments, industry and non-government organisations. The report's recommendations relate to options for improving the safety of the online environment. In particular, they reflect the key messages that were received through the consultation process: that better education, knowledge and skills would assist young people in participating online with confidence and a sense of control; that privacy in an online environment needs to be improved through tighter provisions; that research into emerging technologies and the interactions of young people online is required; and that parents, carers, teachers and all those who engage with young people need to gain an understanding of the online environment and its benefits and risks. Addressing the issues raised in the report requires a multifaceted approach. Australian governments, schools, families and communities all have a responsibility to provide safe online environments and teach children how to use technology in positive and productive ways that will support 21st century learning and living, both in and out of school. The Government understands there is a need for strengthening an understanding of cybersafety issues and promoting the safety of children online, and is actively pursuing measures to address these issues. Government Cybersafety Initiatives The Australian Government is committed to improving the cybersafety of Australian children and young people. The Government's Cybersafety Plan was established in May 2008 with funding of $125.8 million committed over four years to combat online risks and help parents and educators protect children from inappropriate material. Measures include increased funding towards cybersafety education and awareness raising activities, content filtering and law enforcement. The Australian Government has also established a Consultative Working Group on Cybersafety (CWG) to bring together representatives from industry, the community and the government with a close involvement in cybersafety issues faced by children. The CWG's role is to provide advice to government to ensure properly-developed and targeted programs and policy initiatives are undertaken. Examples of Australian Government cybersafety initiatives include: the Youth Advisory Group which provides advice to government on cybersafety issues from a young person's perspective the Teachers and Parents Advisory Group (TAP) that provides a forum where members can share ideas on how to protect children online and promote cybersafety messages the Cybersafety Help Button which provides internet users, particularly children and young people, with easy online access to cybersafety information and assistance available in Australia the development of an Easy Guide to Socialising Online which provides information and step by step instructions about how to use the safety features of popular social networking sites, search engines and online games the Cybersmart website which provides a single access point for cybersafety advice across a range of target audiences the Cybersmart Outreach program which provides free Professional Development programs for teachers in schools and universities focusing on teaching students to have safe and positive online experiences funding for the Alannah and Madeline Foundation to conduct a national pilot of an approach to cybersafety for Australian schools (eSmart) the revised and nationally endorsed National Safe Schools Framework to assist in creating learning environments that are free from bullying and harassment the Bullying. No Way! website that provides information for parents, students and teachers on strategies to address bullying, harassment and violence the Think U Know Internet safety program that delivers interactive training to parents, carers and teachers through primary and secondary schools across Australia using a network of accredited trainers $2.3 million for ongoing research into the changing digital environment to identify issues and target future policy and funding. A key component of this ongoing work is surveying the changes in levels of cybersafety awareness and behaviour. The Government is also looking at building upon its current cybersafety initiatives to address serious issues which arise when engaging online. This includes mechanisms to strengthen the existing co-operative arrangements with social networking sites. The responses to the recommendations take into account existing government activities on cybersafety and cybersecurity issues and are provided in the context of the inquiries on related issues such as the House of Representatives' Standing Committee on Communications report Hackers, Fraudsters and Botnets: Tackling the Problem of Cyber Crime. The responses also reflect the Governments announcement that it will develop a Cyber White Paper. In developing the White Paper the government will examine the full spectrum of cyber issues such as better coordination of awareness raising activities, development of skills, more centralised reporting of cyber incidents and a more coherent approach to cyber education. Public consultation for the Paper commenced mid-September 2011, and many of the topics that will be explored in this consultation are relevant to the Committee's recommendations. Government Response on Individual Recommendations of the Report Recommendation 1 That the Minister for School Education, Early Childhood and Youth consider the feasibility of assisting preschools and kindergartens to provide cyber-safety educational programs for children as part of their development activities. Government Response The Australian Government accepts this recommendation in principle, pending the outcomes of the Cyber White Paper process which will conclude in mid-2012. The Australian Government through the Department of Education, Employment and Workplace Relations (DEEWR), will write to the Directors General and Chief Executive Officers of the education authorities to refresh awareness and encourage take-up of all Australian Communications and Media Authority (ACMA) programs, including Cybersmart for Young Kids. The Government supports the ACMA's Cybersmart for Young Kids program. This is an ideal program for the Australian Government and education authorities to support and expand access to preschools and kindergartens. In addition, the Government has provided $3 million to the Alannah and Madeline Foundation for a national pilot of its eSmart cybersafety initiative which addresses cyberbullying in schools. The Victorian Government has announced the eSmart program will be rolled out in Victorian schools and the Queensland Government has also announced that the eSmart program will be rolled out to all its state government schools. Recommendation 2 That the Minister for Broadband, Communications and the Digital Economy invite the Consultative Working Group on Cybersafety, in consultation with the Youth Advisory Group, to develop an agreed definition of cyber-bullying to be used by all Australian Government departments and agencies, and encourage its use nationally. Government Response The Australian Government accepts this recommendation. The Safe and Supportive School Communities (SSSC) is a Working Group of the Australian Education, Early Childhood Development & Youth Senior Officials Committee (AEEYSOC). The Working Group includes nominated representatives of all Australian education jurisdictions - all state, territory and federal education departments as well as national Catholic and independent schooling representatives. The SSSC working group has developed the following definition of cyberbullying: "Bullying is repeated verbal, physical, social or psychological behaviour that is harmful and involves the misuse of power by an individual or group towards one or more persons. Cyberbullying refers to bullying through information and communication technologies." The Department of Broadband, Communications and the Digital Economy (DBCDE) has invited the Consultative Working Group on Cybersafety (CWG), the Youth Advisory Group (YAG) and the Teachers and Parents Advisory Group (TAP) on cybersafety to provide comment on this definition. CWG comments will be forwarded to the SSSC for further consideration. The definition will be discussed and agreed by state and territory governments through AEEYSOC. The definition of cyberbullying agreed through these consultation processes will be promoted nationally via government programs and resources such as the Cybersafety Help Button the Easy Guide to Socialising Online and the Cybersmart website. Recommendation 3 That the Minister for Broadband, Communications and the Digital Economy and the Minster for School Education, Early Childhood and Youth work with the Ministerial Council for Education, Early Childhood Development and Youth and the Australian Communications and Media Authority to investigate the feasibility of developing and introducing a cyber-safety student mentoring program in Australian schools. Government Response for Recommendations 3 and 28 The Australian Government accepts these recommendations in principle pending the outcomes of the Cyber White Paper process which will conclude in mid-2012. The ACMA piloted a Cybersmart student mentoring program in March this year. Students were trained and then guided to develop and deliver their own presentations and workshops building on content from the Outreach program's interne safety awareness presentations. The pilot program was well received. DEEWR will seek AEEYSOC agreement that education authorities work with the ACMA to investigate the feasibility of expanding the ACMA student mentoring pilot. The Government notes that ultimately the implementation of any student mentoring programs is a matter for state and territory, independent and non-government education authorities. Recommendation 4 That the Australian Government consider amending small business exemptions of the Privacy Act 1988 (Cth) to ensure that small businesses which hold substantial quantities of personal information, or which transfer personal information offshore, are subject to the requirements of that Act. Government Response The Australian Government notes this recommendation. The Australian Law Reform Commission Report (ALRC) 108, For Your Information: Australian Privacy Law and Practice (R39-1 at page 1358 — Volume 2) recommended that the Act be amended to remove the small business exemption. The Government will take the Committee's recommendation into account when it is considering the ALRC's recommendation to remove the small business exemption. Recommendation 5 That the Australian Privacy Commissioner undertake a review of those categories of small business with significant personal data holdings, and make recommendations to Government about expanding the categories of small business operators prescribed in regulations as subject to the Privacy Act 1988 (Cth). Government Response The Australian Government notes this recommendation. The Government will consider this recommendation in conjunction with its deliberations on recommendation 4 above. Recommendation 6 That the Office of the Privacy Commissioner examine the issue of consent in the online context and develop guidelines on the appropriate use of privacy consent forms for online services and the Australian Government seek their adoption by industry. Government Response The Australian Government supports this recommendation in principle. The Government agrees that guidelines would be useful and notes that it has previously supported the ALRC recommendation 19 — 1 (i.e. develop and publish further guidance about what is required of agencies and organisation to obtain an individual's consent under the Privacy Act 1988) as part of its stage one response. Recommendation 7 That the Australian Government amend the Privacy Act 1988 (Cth) to provide that all Australian organisations which transfer personal information overseas, including small businesses, ensure that the information will be protected in a manner at least equivalent to the protections provided under Australia's privacy framework. Government Response The Australian Government notes this recommendation and will consider this recommendation in conjunction with its deliberations on recommendations 4 and 5 above. Further, the draft Australian Privacy Principle (APP) 8 will provide a framework for the regulation of cross-border disclosures of personal information. Before a cross-border disclosure can occur, the draft APP 8 imposes minimum obligations on an organisation to take such steps as are reasonable in the circumstances (for example, by imposing contractual obligations) to ensure that the overseas recipient does not breach the draft APPs. In addition, an organisation will remain accountable for the acts and practices of the overseas recipient, unless an exemption applies. Recommendation 8 That the Office of Privacy Commissioner, in consultation with web browser developers, Internet service providers and the advertising industry, and in accordance with proposed amendments to the Privacy Act 1988 (Cth), develop and impose a code which includes a 'Do Not Track' model following consultation with stakeholders. Government Response The Australian Government notes this recommendation. As part of its stage one response to the ALRC recommendations, the Government has announced that it supports the development of binding and mandatory codes. It will be a matter for the Commissioner to consider whether a code is necessary. Recommendation 9 That the Australian Government amend the Privacy Act 1988 (Cth) to provide that an organisation has an Australian link if it collects information from Australia, thereby ensuring that information collected from Australia in the online context is protected by the Privacy Act 1988 (Cth). Government Response The Australian Government notes this recommendation. The Government will consider this aspect as part of the stage one response to the ALRC recommendations currently being undertaken. Recommendation 10 That the Australian Government amend the Privacy Act 1988 (Cth) to require all Australian organisations that transfer personal information offshore are fully accountable for protecting the privacy of that information. Government Response The Australian Government notes this recommendation. The Government will consider this aspect as part of the stage one response to the ALRC recommendations currently being undertaken. Recommendation 11 That the Australian Government consider the enforceability of provisions relating to the transfer of personal information offshore and, if necessary, strengthen the powers of the Australian Privacy Commissioner to enforce adequate protection of offshore data transfers. Government Response The Australian Government notes this recommendation. The Government will consider this as part of the stage one response to the ALRC recommendations currently being undertaken. Recommendation 12 That the Australian Government continue to work internationally, and particularly within our region, to develop strong privacy protections for Australians in the online context. Government Response The Australian Government accepts this recommendation. The Government has been and will be continuing to work with appropriate international bodies including in particular regional bodies to further privacy protections. The Government actively participates in the work of the Organisation for Economic Cooperation and Development (OECD) and Asian Pacific Economic Council (APEC) on international privacy issues. Australia has played a leading role in the development of the APEC Cross-Border Enforcement Arrangement (CPEA), which allows participating privacy regulators to share information and provide assistance in relation to privacy matters that have a cross-border aspect. The APEC CPEA commenced in July 2010 and the privacy regulators of Australia, Canada, New Zealand, Hong Kong China, and the United States are currently participants. The Office of the Australian Information Commissioner (OAIC) continues to foster strong ties with other privacy authorities in the region via the Asia Pacific Privacy Authorities group. Recommendation 13 That the Attorney-General, as a matter of priority, work with State and Territory counterparts to develop a nationally consistent legislative approach to add certainty to the authority of schools to deal with incidents of inappropriate student behaviour to other students out of school hours. Government Response The Australian Government accepts this recommendation in principle. The Government notes that state and territory government and non-government education authorities currently bear legal responsibility for the duty of care of their students. This includes ensuring that appropriate measures are in place so that students can learn in a safe and supportive school environment, and in some instances this responsibility may extend beyond school hours. DEEWR will investigate the feasibility of this recommendation further with state and territory education authorities. Recommendation 14 That the Minister for School Education, Early Childhood and Youth propose to the Ministerial Council of Education, Early Childhood Development and Youth Affairs: to develop national core standards for cyber-safety education in schools to adopt a national scheme to encourage all Australian schools to introduce `Acceptable Use' Agreements governing access to the online environment by their students, together with the necessary supporting policies, and to encourage all Australian schools to familiarise students, teachers, and parents with the ThinkUknow program, and the Cyber-Safety Help Button and other resources of the Australian Communications and Media Authority to promote the cyber-safety message. Government Response The Australian Government accepts this recommendation, pending the outcomes of the Cyber White Paper process which will conclude in mid-2012. The Government, through DEEWR, will consult with the AEEYSOC to seek agreement to address these issues, by building on work underway through the National Safe Schools Framework and agreeing to promulgate key cybersafety messaging through existing and expanded ACMA and Australian Federal Police (AFP) activities. The SSSC working group promotes key messaging through activities of the annual National Day of Action Against Bullying and Violence and is working directly with the ACMA to include cybersafety as a key element of these activities. The Government notes that in regards to Information and Communication Technology (ICT) policies the state and territory education authorities have primary responsibility for decisions about design, purchase, distribution and the use of educational hardware and software to meet the specific needs of their schools. In regard to Acceptable Use Agreements, the National Safe Schools Framework articulates the importance of safety and wellbeing policies and procedures and states that "a responsible technology usage agreement should be in place" in all schools. The Government will continue to promote cybersafety resources and assistance through the Cybersafety Help Button. The Help Button provides internet users with a 'one-stop shop' for access to cybersafety information and advice. It offers counselling, reporting and educational resources to assist children deal with online risks including cyberbullying, unwanted contact, scams and fraud, and offensive or inappropriate material. Since the Cybersmart portal's launch in June 2009 the School Gateway area of the site has received more than 600,000 views. Since May 2011 there have been 7,000 downloads of Cybersmart teaching resources. The portal links to other cybersafety resources such as ThinkUKnow, the Help Button, Stay Smart Online and relevant state and territory policies. The Ministerial Council for Education, Early Childhood Development and Youth Affairs funded Bullying. No Way! Website is being refreshed to provide key messaging, current information and best practice resources. The rebuilt Bullying. No Way! website will be officially launched on the National Day of Action Against Bullying and Violence on 16 March 2012. Recommendation 15 That the Minister for School Education, Early Childhood and Youth and the Minister for Broadband, Communications and the Digital Economy consider extending the Australian Communications and Media Authority's Connect-ED program and other training programs to non-administration staff in Australian schools including school librarians, chaplains and counsellors. Government Response The Australian Government supports this proposal in principle, but it will need to be considered against competing priorities in the budget context. The ACMA's online professional development program, Connect.ed, was designed in consultation with cybersafety experts, teachers and students to specifically meet the needs of practising teachers. Connect.ed currently consists of four modules that guide teachers in how to integrate an effective cybersafety process and policy into their school. Recommendation 16 That the Minister for Tertiary Education, Skills, Jobs and Workplace Relations and the Minister for Broadband, Communications and the Digital Economy work together to ensure that sufficient funding is available to ensure the Australian Communications and Media Authority can provide the necessary training for professional development of Australian teachers. Government Response The Australian Government accepts this recommendation in principle, pending the outcomes of the Cyber White Paper process. The Government supports the recommendation that Ministers continue to work together to ensure professional development training for teachers is made widely available in the face of growing demand and interest. The Government notes significant funding was provided in the 2008-09 Budget and in December 2009 for expanded outreach activities. Under the Government's Outreach program, the ACMA offers a range of programs to meet the professional development needs of Australian teachers including the Professional Development for Educators face-to-face workshops, online professional development program Connect.ed and internet safety presentations. The programs are available for all teachers across Australia and count towards professional development accreditation. Since the Outreach program's inception in January 2009, over 45,000 teachers have already attended a professional development workshop or presentation with a further 2,800 teachers having registered to do Connect.ed. Recommendation 17 That the Minister for Tertiary Education, Skills, Jobs and Workplace Relations and the Minister for Broadband, Communications and the Digital Economy encourage all Australian universities providing teacher training courses to ensure that cyber-safety material is incorporated in the core units in their curriculums. Government Response The Australian Government accepts this recommendation in principle, pending the outcomes of the Cyber White Paper process. While the Australian Government funds Australian universities, they are autonomous institutions and are able to make decisions on pre-service teacher training course content to suit their own individual needs and industry requirements. Guidance on course content and graduate outcomes will be articulated through the National Professional Standards for Teachers, a key facilitation reform under the Smarter Schools - Improving Teacher Quality National Partnership. It will include the expectation that graduate teachers will be able to "use ICT safely, responsibly and ethically" (Standards 4.5) in both learning and teaching. The ACMA is currently delivering a teacher training course across Australian universities on Cybersafety. Thirty-three of the 45 universities with a dedicated faculty or school of education have registered or completed the ACMA's program since it was launched in June last year. The ACMA has worked closely with universities to raise awareness of the importance of incorporating cybersafety in their teacher training courses. The ACMA's Pre Service Teacher program which consists of a lecture and tutorial for final year student teachers has been well received by universities across Australia. Consideration could be given to expanding this program to include first, second and third year students as well as the Vocational Education and Training and Technical and Further Education sectors. Recommendation 18 That the Minister for School Education, Early Childhood and Youth establish a position similar to Queensland's 'reputation management' position to provide nationally consistent advice to teachers who are being cyber-bullied by students about the role and processes of the Australian Communications and Media Authority, law enforcement agencies and Internet service providers in facilitating the removal of inappropriate material. Government Response The Australian Government accepts this recommendation in principle. The ACMA provides advice to teachers on this issue through its Cybersmart program. With the increase of teachers reporting to Outreach trainers that they have been cyberbullied by students, the ACMA in 2010 incorporated a component on this issue in its Outreach presentations and the Cybersmart portal. The Cybersmart program focuses on equipping teachers with the skills and knowledge to help students stay safe online. The Government is working with states and territories through the Safe and Supportive Schools Community to improve accessibility to resources for teachers that will be provided via the Bullying. No Way! website rebuild. The Government notes that school principals are responsible for the wellbeing of the whole school community and for ensuring that all members of that community, including teaching staff, are safe, supported and respected. The implementation of policies such as the 'reputation management' model is a matter for state and territory governments.. Recommendation 19 That the Minister for School Education, Early Childhood and Youth and the Minister for Broadband, Communications and the Digital Economy investigate funding a national, online training program for teachers and students that addresses bullying and cyber-bullying, and is validated by national accreditation. Government Response The Australian Government supports this proposal in principle, but it will need to be considered against competing priorities in the budget context and the outcomes of the Cyber White Paper process. The Government currently funds several multi-platform training programs for teachers and students that addresses bullying and cyberbullying. As articulated in the response to Recommendation 17, the National Professional Standards for Teachers includes the expectation that teachers will develop and employ practical strategies to promote the safe, responsible and ethical use of ICT in learning and teaching. Teachers will be able to use the range of support materials currently being developed by the Australian Institute for Teaching and School Leadership alongside resources from agencies such as the ACMA to develop student awareness and understanding of appropriate ICT practice. In addition, the ACMA's current Connect.ed program provides teachers with information and guidance on a broad range of cybersafety issues, such as cyberbullying, sexting, privacy and digital reputation, and offers effective strategies and resources to assist in keeping students safe when they go online. Connect.ed is accredited or endorsed by State and Territory Education Departments and counts towards continuing professional development for teachers. Recommendation 20 That the Minister for School Education, Early Childhood and Youth invite the Ministerial Council of Education, Early Childhood Development and Youth Affairs to formulate a cooperative national approach to the development of a whole-of-school community approach to cyber-safety, and to provide all schools with the necessary information and strategies to measure the effectiveness of their cyber-safety policies. Government Response The Australian Government accepts this recommendation, pending the outcomes of the Cyber White Paper process. Australian communities have a responsibility to provide safe online environments and teach children how to use technology in positive and productive ways. The Government is currently working collaboratively with education authorities through the SSSC Working Group to ensure schools are learning environments where every student and school community member is safe, supported, respected and valued. The National Safe Schools Framework is the nationally endorsed key safe school policy document that all schools are encouraged to adopt with a "whole of school" approach and commitment. The Frameworks resource manual includes a school audit tool which helps schools to objectively assess the effectiveness of existing safe school policies and to identify and address any gaps. In the Australian Curriculum students will develop understandings about cybersafety through the ICT competence general capability which will have students learn to apply appropriate social and ethical protocols and practices to operate and manage ICT when investigating, creating and communicating ideas and information at school, at home, at work and in their communities. This will be reinforced through the teaching of ICT as a key aspect of the Australian Curriculum: Technologies learning area. Recommendation 21 That the Attorney-General work with State and Territory counterparts to invite all Australian Police Forces to develop a range of online courses to provide training in cyber-safety issues for all ranks, from basic training for recruits and in-service and refresher courses for more senior members. Government Response The Government accepts this recommendation in principle. pending the outcomes of the Cyber White Paper process. The Government agrees that it is essential for Australian Police Forces to receive appropriate training to effectively investigate online crimes and deal with cyber-safety issues. A range of work is currently underway to address the need for appropriate training, including through the National Cyber Crime Working Group (NCWG), which was established by the Standing Committee of Attorneys-General (SCAG) in May 2010. The NCWG is comprised of representatives from police and justice agencies in each jurisdiction, the Australia New Zealand Policing Advisory Agency (ANZPAA), the Australian Crime Commission and CrimTrac. The NCWG noted the work of ANZPAA in developing the following products: an online training calendar for specialist technology investigators education and training guidelines for technology crime investigators and digital evidence practitioners. The NCWG is also working with ANZPAA to undertake a scoping study to assess law enforcement capabilities across jurisdictions in relation to cyber crime for consideration by Police Ministers. In addition, the AFP conducts Technology Enabled Crime Awareness Training, which is mandatory for all AFP staff. The training program aims to give staff a greater awareness of the concept of technology enabled crime, the impact it has on law enforcement, and how members can more efficiently and effectively investigate such crimes. The AFP also runs a more advanced training program for e-crime investigators that provides participants with the ability to extract sound forensic digital evidence. Recommendation 22 That the Attorney-General work with State and Territory counterparts to initiate a mandatory training program for judicial officers and all relevant court staff addressing cyber-safety issues, to ensure they are aware of these issues, and of emerging technologies. Government Response The Government accepts this recommendation in principle, but notes that it is not possible for the executive Government to specify mandatory training for judicial officers. The AFP runs an education and awareness program for the legal fraternity. Workshops have been run with Victorian judges and barristers of the NSW Bar. A workshop for NSW Supreme Court judges is scheduled for late September. The AFP's High Tech Crime Operations works closely with the Judicial Colleges in each jurisdiction when designing and delivering these workshops. The AFP has also commissioned the building of an eCourt facility at the AFP's Canberra Headquarters. The eCourt is designed to place the AFP at the forefront of electronic evidence presentation and provide the legal fraternity with the tools and education they need to address the challenges of complex electronic evidence. It is due to become operational in September 2011. The NCWG is also considering existing arrangements for judicial and legal practitioner training throughout Australia, to determine whether a national or State-based approach is preferred and consider the need for guidelines in this area. Recommendation 23 That the Attorney-General in conjunction with the National Working Group on Cybercrime undertake a review of legislation in Australian jurisdictions relating to cyber-safety crimes. Government Response The Government accepts this recommendation in principle. The Government recognises the importance of effective and comprehensive offences relating to online criminal activity, including conduct directed at children. The Government will refer this recommendation to the NCWG for its consideration of whether any review of relevant legislation in Australian jurisdictions is necessary. The Commonwealth has enacted comprehensive legislation to protect children from online sexual exploitation. The Criminal Code sets out a range of offences directed at use of a carriage service, such as the internet, for child pornography material, using a carriage service to procure a child for sexual purposes or using a carriage service to 'groom' a child for sexual activity. In 2010, the Commonwealth Parliament passed the Crimes Legislation Amendment (Sexual Offences Against Children) Act, which extended the coverage of child pornography offences, improved the operation of the grooming and procuring offences, introduced new offences for using a carriage service for indecent communications with a child or for sexual activity with a child. The Act also introduced a new aggravated offence directed at a child pornography network. These amendments ensure that Commonwealth offences reflect contemporary offending and that internet-related child sexual exploitation is comprehensively covered in light of rapidly changing technologies and the anonymity that the Internet provides. These reforms followed a comprehensive review of Commonwealth child sexual exploitation legislation. The Criminal Code also criminalises the use of a carriage service to make threats, or to menace, harass or cause offence. These offences target the kind of behaviour that underlies serious cases of cyber bullying and cyber stalking. In 2010, the NCWG considered whether new nationally consistent offences were necessary to combat this kind of conduct. It was agreed that that existing offences are adequate and no further work is currently required on a national basis. Recommendation 24 That the Australian Communications and Media Authority facilitate the development of and promote online self assessment tools to enable young people, parents/carers and teachers to assess their level of awareness and understanding of cyber-safety issues. Government Response The Government accepts this recommendation in principle, pending the outcomes of the Cyber White Paper process. The Government notes that it currently provides a number of targeted self assessment tools on the ACMA's Cybersmart portal. At present the Cybersmart program has a number of self-assessment tools developed for parents, teachers and students. For example: the students' technology audit on the Schools' Gateway "How Cybersmart am I" quiz on Cybersmart kids and teens pages "Your child's online safety" quiz for parents. The ACMA will continue to monitor the take-up and responses to these tools and update these as appropriate. Recommendation 25 That the Consultative Working Group on Cybersafety investigate possible improvements to the information provided to parents at the point of sale of computers and mobile phones. Government Response The Government accepts this recommendation in principle, pending the outcomes of the Cyber White Paper process. The CWG is working closely with the Government to consider options for providing information to parents at the point of sale of computers and mobile phones. The Australian Mobile Telecommunications Association (AMTA), a member of the CWG, is working with DBCDE to investigate the provision of information about cybersafety resources, e.g. the Cybersafety Help Button, at the point of sale for mobile devices. AMTA will also investigate the possibility of pre-loading cybersafety material on mobile devices. Recommendation 26 That the Minister for Broadband, Communications and the Digital Economy negotiate with mobile phone companies to increase affordable access to crisis help lines, with a view to ensuring greater accessibility by young people seeking assistance. Government Response The Government accepts this recommendation in principle. The Government has provided financial assistance over three years to Lifeline to increase the capacity of the organisation to respond to more calls and to support free calls from mobiles. As of 1 July 2011, mobile phone calls to Lifeline from anywhere in Australia are also available free of charge under an agreement with Telstra, Optus and Vodafone Hutchison Australia. Kids Helpline provides a free online counselling service for young people aged between five and twenty five. The Helpline is promoted through a number of channels, including the ACMA's Cybersmart initiative, and it is a prominent feature in the Cybersafety Help Button. Kids Helpline is a service provided by Boystown. The Government will continue to work with AMTA and the Communications Alliance on the issue of accessibility to crisis help lines. The Government also notes that during 2010 and 2011 the ACMA has been examining a wide range of issues related to the regulatory framework for telephone numbers including the cost of calls from mobile phones to freephone (180) and local rate (13/1300) numbers which many organisations use to provide crisis help and to provide other key community services. The ACMA is currently considering responses to the numbering work program and is expected to release a directions paper in late 2011 that examines changes needed to improve the efficiency and effectiveness of the numbering arrangements, including the issue of how calls from mobile phones to freephone and local rate numbers are charged. Recommendation 27 That the Minister for Broadband, Communications and the Digital Economy invite the Consultative Working Group on Cybersafety, in conjunction with the Youth Advisory Group, continue to advise Government on enhancing the effectiveness of cyber-safety awareness campaigns including targeted media campaigns and educational programs. Government Response The Government supports this recommendation in principle, pending the outcomes of the Cyber White Paper process. The CWG and the YAG were established in 2009 as part of the Government's Cybersafety Plan. The CWG and the YAG have provided advice to Government on a range of cybersafety issues and informed key initiatives including the Cybersafety Help Button, the TAP and the Easy Guide to Socialising Online. DBCDE will continue to facilitate consultation with these groups to enhance the effectiveness of cybersafety campaigns and programs. Recommendation 28 That the Minister for School Education, Early Childhood and Youth consult with the Minister for Broadband, Communications and the Digital Economy to develop measures to introduce: youth leadership courses enabling students to mentor their school communities about cyber-safety issues, and courses on cyber-safety issues for parents/carers and other adults are developed in consultation with young people and delivered by young people. Government Response The Australian Government accepts this recommendation in principle, pending the outcomes of the Cyber White Paper process. Please see response to Recommendation 3. Recommendation 29 That the Minister for Broadband, Communications and the Digital Economy facilitate a cooperative approach to ensure all material provided on cyber-safety programs is accessible through a central portal, and that a national education campaign be designed and implemented to publicise this portal, especially to young people. Government Response The Government accepts this Recommendation in principle, pending the outcomes of the Cyber White Paper process. The Cybersafety Help Button provides internet users, particularly children and young people, with a 'one-stop shop' for access to counselling, reporting and educational resources to assist children deal with online risks including cyberbullying, unwanted contact, scams and fraud, and offensive or inappropriate material. The Cybersafety Help Button is available from the DBCDE website (www.dbcde.gov.au/helpbutton), and promoted through the ACMA's Cybersmart website and many other sites. The Cybersafety Help Button is expanding to include a new section called Cybersafety Resources which contains a comprehensive range of cybersafety information, educational programs, research and events. The expanded Cybersafety Help Button will be promoted widely through organisations represented on the CWG member organisations, and education networks. The ACMA's Cybersmart website is a key source of cybersafety advice and information for teachers, parents, librarians and students of all ages, from kindergarten through to university. As well as its own substantial body of resources, this web portal links to other cybersafety program providers such as ThinkUKnow, Stay Smart Online, the Cybersafety Help Button, and state school cybersafety websites and resources. It also links to the Kids Helpline for online counselling advice. The portal has seen large volumes of traffic with more than 1,138,050 visits to date. Promotion of the portal is a primary consideration for the ACMA and it will continue to explore mechanisms for expanding its reach to difficult-to-reach audiences, such as young people and people with disabilities. Recommendation 30 That the Minister for Broadband, Communications and the Digital Economy encourages industry including the Internet Industry Association, to enhance the accessibility to assistance or complaints mechanisms on social networking sites; and develop a process that will allow people who have made complaints to receive prompt advice about actions that have been taken to resolve the matter, including the reasons why no action was taken. Government Response The Government accepts this recommendation in principle. DBCDE is working with the CWG and a number of social networking sites to assist in developing mechanisms to streamline complaints processes and their resolution. The Cybersafety Help Button and the Easy Guide to Socialising Online are two government projects that have been developed specifically to improve accessibility to reporting abuse and complaints assistance mechanisms for social networking sites. A significant number of social networking sites (and online game sites) participate in the Cybersafety Help Button initiative and Easy Guide to Socialising Online initiative. The Internet Industry Association (IIA) has been consulted on this Recommendation. The IIA and its members indicated that they are committed to ensuring that users of social networking sites should have an understanding of acceptable behaviour, as well as access to visible and effective complaints handling mechanisms. They have also offered to work with industry, in particular social networking sites, to develop recommendations and best practice guidelines for the lodgement and resolution of user complaints. Recommendation 31 That the Minister for Broadband, Communications and the Digital Economy invite the Consultative Working Group on Cybersafety to negotiate protocols with overseas social networking sites to ensure that offensive material is taken down as soon as possible. Government Response The Government accepts this recommendation in principle. The issue of establishing a protocol with overseas social networking sites is currently being pursued through the CWG, of which leading social network sites are members. Recommendation 32 That the relevant Ministers in consultation with service providers consider how costs may be reduced for law enforcement agencies collecting evidence against online offenders. Government Response The Government accepts this recommendation in principle. The Government will work with service providers and the States and Territories to reduce costs for law enforcement agencies in collecting evidence against online offenders. Under the Telecommunications Act 1997 (Cth), agencies must compensate service providers on a no profit/no loss basis for help given by service providers. List of Abbreviations APEC Asian Pacific Economic Council ANZPAA Australia New Zealand Policing Advisory Agency ACMA Australian Communications and Media Authority AEEYSOC Australian Education, Early Childhood Development & Youth Senior Officials Committee AFP Australian Federal Police ALRC Australian Law Reform Commission Report AMTA Australian Mobile Telecommunications Association APP Australian Privacy Principle CWG Consultative Working Group on Cybersafety CPEA Cross-Border Enforcement Arrangement DBCDE Department of Broadband, Communications and the Digital Economy DEEWR Department of Education, Employment and Workplace Relations ICT Information and Communications Technologies IIA Internet Industry Association JSCC Joint Select Committee on Cyber-Safety NCWG National Cyber Crime Working Group OAIC Office of the Australian Information Commissioner OECD Organisation for Economic Cooperation and Development SSSC Safe and Supportive School Communities SCAG Standing Committee of Attorneys-General TAP Teachers and Parents Advisory Group Australian Government Response to the Senate Committee on Finance and Public Administration — Native Vegetation Laws, Greenhouse Gas Abatement and Climate Change Measures January 2012 Australian Government Response to the Senate Committee on Finance and Public Administration —Native Vegetation Laws, Greenhouse Gas Abatement and Climate Change Measures The Australian Government is committed to promoting sustainable land management. The Australian Government is supporting this outcome through the implementation of legislation and a mix of policies, programs and consultative natural resource forums. The Australian Government will continue to take an active role to support resilient, protected and productive landscapes with respect to Commonwealth matters. The Australian Government notes that management of native vegetation is primarily a state and territory responsibility. The Australian Government acknowledges the important role that land managers play in managing private land and bringing about environmental outcomes. Much of our nation's wealth comes from our environment through agriculture, forestry and fisheries, and tourism underpinned by healthy and resilient landscapes. This response addresses the three recommendations made by the Senate Committee as well as additional recommendations made by Government Senators. The Australian Government notes the dissenting report by the Australian Greens Senator. Recommendation 1 The committee recommends that COAG re-examine the native vegetation legislation and its 2006 recommendations with a view to establishing a balance between maximising agricultural production and best practice conservation. The Australian Government disagrees with the recommendation as it has recently undertaken a review of the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act). The Australian Government agrees with the policy intent of establishing a balance between maximising agricultural production and best practice conservation. On 24 August 2011 the Australian Government announced significant reforms to Australia's national environmental law, including its response to an independent review of the EPBC Act by Allan Hawke AC, and a consultation draft Australian Government Biodiversity Policy. The reforms outline better environmental protection focusing on whole regions and ecosystems and faster environmental assessments. The reforms set out a new national approach to the protection of Australia's environment and biodiversity which will be better for the environment, better for business and mean better cooperation between government, industry and communities. Further information on the reforms including the Australian Government's response to the independent review is available at: www.environment.gov/epbc/refomi. The EPBC Act is the Australian Government's primary legislation establishing a national approach to a wide range of environmental protection and biodiversity conservation matters. The Australian Government notes that the EPBC Act does not directly regulate most native vegetation or contain greenhouse gas abatement measures. It does on occasion affect native vegetation clearing resulting from agricultural production, but only where that clearing is the result of a change or intensification of land use and is likely to have a significant impact on matters protected under the EPBC Act. The EPBC Act was drafted to be the primary vehicle for implementing the principles of ecologically sustainable development at the Australian Government level, giving effect to the 1992 Intergovernmental Agreement on the Environment. The objects of the Act include: "To provide for the protection of the environment, especially those aspects of the environment that are matters of national environmental significance; To promote ecologically sustainable development through the conservation and ecologically sustainable use of natural resources; and To promote the conservation of biodiversity." Consideration of the principles of ecologically sustainable development in decision making under the EPBC Act does not require equal weighting to be given to environmental, social and economic factors, but it does require that they all be taken into account. The Australian Government will also continue to work to ensure biodiversity conservation and sustainable agriculture production are considered in the relevant regulatory arrangements. The Australian Government is working with state and territory governments on the National Framework for the Management and Monitoring of Australia's Native Vegetation review. Australia's Native Vegetation Framework recognises the importance of agricultural production and integrates the improvement of productive capacity as well as ecosystem resilience into its goals. Recommendation 2 The committee recommends that the Commonwealth initiate, through the Natural Resource Management Ministerial Council, a national review to assess the impact of various native vegetation legislative and regulatory regimes, particularly those at the state level. In undertaking such a review, the following issues should be specifically addressed: the liability of landholders complying with native vegetation laws for the payment of rates or taxes for land that is not available for productive use; the right of landholders to manage competing environmental objectives over land where restrictions have been imposed, for example the management of noxious weeds and pests in protected native vegetation areas; the institution of inexpensive, accessible, timely and independent administrative appeals processes against decisions of enforcement agencies or officials regarding the granting of permits or institution of regulatory regimes over private land; the application of state-wide regulations where there are distinct and notable variations in both the environmental conditions and objectives across regions within states; the burden of these laws on newer farming areas and communities as opposed to more established ones; and the imposition of caveats by state authorities which prevent or restrict the existing use of land when converting title from leasehold to freehold. The Australian Government agrees with the general policy intent of recommendation 2 and recognises that sustainable land management requires work across all jurisdictions. The Australian Government notes that management of native vegetation is primarily a state and territory responsibility. The former Natural Resource Management Ministerial Council requested all jurisdictions review the National Framework for the Management and Monitoring of Australia's Native Vegetation and the National Strategy for the Conservation of Australia's Biological Diversity (1996). Australia's Biodiversity Conservation Strategy 2010-2030 was released in 2010. The consultation draft of Australia's Native Vegetation Framework (2010) aims to ensure native vegetation across the Australian landscape is managed in an ecologically sustainable way in recognition of its enduring environmental, economic, social, cultural and spiritual values in a changing climate and will serve to inform policy across all jurisdictions. This framework will be finalised under new Ministerial arrangements. As noted in relation to recommendation 1, the Australian Government has recently released a consultation draft of the Australian Government's Biodiversity Policy which is available at: www.environment.gov/epbc/refonn. The Australian Government notes that the Senate Inquiry found that the regulatory burden imposed through native vegetation regulation impacts on the cost and ability of doing business for land managers. The Department of Agriculture, Fisheries and Forestry through the Australian Bureau of Agricultural and Resource Economics and Sciences is undertaking a survey of land managers and conducting case studies to increase the understanding of the drivers and barriers to native vegetation management on private land. This analysis will help clarify the extent to which potential barriers (such as the regulatory impact on the cost of doing business) and the possible drivers (such as stewardship and other programs designed to support practice change) are impacting on native vegetation management decisions. The outcomes from the survey and case studies will enhance our understanding of the variation in vegetation management across regions and fanning enterprises, including possible correlations with the economic and social conditions experienced by land managers. Recommendation 3 The committee recommends a review of best practice in relation to stewardship initiatives across the country with a view to re-orienting future regulatory activities. The Australian Government agrees with the policy intent of the recommendation. The Australian Government views best practice conservation, supporting resilient ecosystems and sustainable agriculture as priorities. The Australian Government acknowledges that Commonwealth, state and territory legislation provides critical, long-term protection for our natural assets. The role of government is to strike a balance between regulation, market-based instruments and the other mechanisms based on their effectiveness, the level of public benefit and the capacity of stakeholders. Regulatory approaches can in some circumstances be complemented by appropriate non-regulatory measures. The Australian Government supports the use of incentives schemes as tools to complement regulatory approaches to conservation; however, these schemes do not replace legislative requirements and regulatory measures. The Australian Government also recognises that effective biodiversity conservation under a changing climate will require integration of on-reserve and off-reserve conservation and cooperation with private land managers to ensure a landscape scale approach to maximise ecological resilience. Caring for our Country is a key Australian Government initiative that supports land managers to protect Australia's natural environment and sustainably produce food and fibre through incentive payments, market-based instruments and extension activities. The goal of Caring for our Country is to achieve an environment that is healthier, better protected, well managed, resilient, and provides essential ecosystem services in a changing climate. Caring for our Country supports land managers to undertake stewardship activities through the National Priority Area: biodiversity and natural icons. This includes the programs: Environmental Stewardship Program (aiming to conserve nationally threatened species and ecological communities), and Sustainable Farm Practices which includes activities to support landscape scale conservation. The types of activities funded under this priority area include stewardship payments, payments for on ground works where there is a high public benefit, capacity building and information dissemination. From 2011-12, the Australian Government will invest an additional $84.2 million over four years in a new round of the Environmental Stewardship Program. The Environmental Stewardship Program is a voluntary, market-based initiative that engages land managers to actively manage areas of native habitat on private land to reduce critical threats to biodiversity. The program targets specific matters of National Environmental Significance listed under the EPBC Act for which an improvement in their condition and extent can be effectively achieved through the actions of private land managers. Commonwealth initiatives also include capacity building and information dissemination to enable landholders to make decisions as stewards of Australia's natural capital. Information dissemination falls into two categories: measuring our landscape and information for land managers to enable improved decision making. Information is vital for determining trends in the natural environment, as well as the implications of change and the effectiveness of policy interventions. The Australian Government is addressing the need for improved environmental information through the new National Plan for Environmental Information. The Australian Government also works with state and territory governments on a range of collaborative processes to improve the national environmental information base including the National Vegetation Information System and work towards an integrated Environmental Information System. Additional Comments and recommendations from Government Senators Government Senators therefore support the essence of the recommendations. The Natural Resource Management Ministerial Council (NRMMC) should review state native vegetation laws with a view to: Ensuring, where practical, that the laws are sufficiently flexible in each state to allow farmers to offset clearing where that leads to an equal or enhanced environmental outcome introducing into each state a cheap and quick mechanism for merits review of decisions to refuse permission to clear land Ensuring that native vegetation policies encourage and allow for effective weed and pest control Devising a strategy to ensure that the land is not effectively 'locked up' and left without maintenance Ascertaining whether farmers can access affordable technology to assist farmers to manage native vegetation — for example, satellite imagery Establishing uniform protocols across the states to guiding enforcement and investigative procedures Establishing training for Government officers carrying out these duties Making available helpful and relevant information to the public to assist landholders to understand processes and aims of the laws Reviewing incentive based programs available to landholders, such as environmental stewardship programs or access to sustainable agriculture grants, that allow landholders to earn income for protecting high quality native vegetation to ensure that policy settings across governments assist farmers to deliver environmental outcomes Ensuring native vegetation laws reflect scientific data regarding the best means to ensure enhancement of our natural environment while also enhancing productivity at the same time. Senator Helen Polley, Senator for Tasmania Senator Doug Cameron, Senator for New South Wales The Australian Government agrees with the policy intent of this recommendation and will pursue action in conjunction with recommendations 2 and 3. Australian Government Response to the Senate Finance and Public Administration References Inquiry into Inquiry into The administration of health practitioner registration by the Australian Health Practitioner Regulation Agency (AHPRA) 1. Introduction The Australian Government welcomes the report of the Senate Finance and Public Administration References Committee on the administration of health practitioner registration by the Australian Health Practitioner Regulation Agency (AHPRA). The National Registration and Accreditation Scheme (NRAS) for health professions commenced on 1 July 2010 and is the result of a consensus agreement between the state, territory and Commonwealth governments, through the Council of Australian Governments, to align the previously disparate state and territory registration schemes for health practitioners. The Health Practitioner Regulation National Law Act 2009 (Old) (known as the National Law), as applied in each state or territory, provides for the full operation of the NRAS. Oversight of the operation of the scheme is provided jointly by state, territory and Commonwealth Health Ministers through the Australian Health Workforce Ministerial Council (the Ministerial Council). Under the NRAS there is a national registration board for each participating health profession. Members of a national board are appointed by the Ministerial Council and are independent in the implementation of their responsibilities. The national boards are led by the health professions and are responsible for determining the practice standards for the professions and assessing all applications for registration. The national boards are supported in their role by the Australian Health Practitioner Regulation Agency (AHPRA), an independent statutory agency which administers the receipt and processing of applications for registration and maintains a public register of registered health practitioners. 2. Committee recommendations The committee made ten recommendations. Five of these recommendations were directed to AHPRA and five to the Commonwealth. This response addresses the recommendations that were addressed to the Commonwealth, being recommendations 3, 6, 8, 9 and 10. As AHPRA is a statutory agency constituted under state and territory legislation, and operates independently of the Commonwealth, the Commonwealth is unable to respond on behalf of AHPRA. 3. Government Senators' minority report recommendations The Government senators disagreed with the findings of the majority report, recognised the enormity of the task and noted that it was unsurprising that some problems arose. The Government senators' minority report noted the overwhelming support from all sectors for this reform and focussed on the action taken to address the issues that have arisen during the transition process. In their minority report Government senators made a further four recommendations directed to AHPRA. This response does not address the minority report recommendations as the Commonwealth is unable to respond on behalf of AHPRA. 4. Australian Government Response The Australian Government Minister for Health and Ageing is a member of the Australian Health Workforce Ministerial Council (AHWMC)/Standing Council on Health (SCoH), which sets the general policy direction for the national scheme. The Australian Government cannot provide an undertaking that the AHWMC/SCoH will act on recommendations. Decisions of the AHWMC/SCoH are made by consensus. Response to Committee recommendations directed to the Commonwealth Recommendation 3 6.17 The committee recommends that the Commonwealth Government seek the support of the Australian Health Workforce Ministerial Council to undertake a regular review of the registration of overseas trained health practitioners. Response: The Australian Government notes this recommendation. The Australian Government will raise this matter within the AHWMC/SCoH for discussion in the context of all health practitioners. The Commonwealth will seek to have an update from AHPRA on this issue included in the regular updates to AHWMC/SCoH. With regard to overseas trained doctors, registration of overseas trained practitioners is a matter for the Medical Board of Australia (MBA) and is regulated under state and territory legislation. Three reviews of the registration of overseas trained doctors are currently in progress. On 8 November 2010 the MBA announced its intention to work with the Australian Medical Council (AMC) to determine the terms of a review of the implementation of assessment pathways for overseas trained doctors, including overseas trained specialists. On 12 November 2010 the Ministerial Council gave a direction to the Australian Health Workforce Advisory Council (AHWAC) to obtain independent advice regarding the assessment requirements for fellowship of each of the medical specialist colleges, in relation to the recognition of qualifications and management of assessment processes for overseas trained doctors, particularly those from countries with health care systems similar to Australia. Further advice on this investigation will be available once it is complete. In addition, the House of Representatives Standing Committee on Health and Ageing is conducting an inquiry into and report on Registration Processes and Support for Overseas Trained Doctors. More information on this inquiry can be found on the Australian Parliament House website at www.aph.gov.au /house/committee/haa/overseasdoctors/index.htm The need for further consideration on this issue will be determined once these reviews have been conducted. Recommendation 6 6.22 The committee recommends that the Commonwealth Government seek the support of the Australian Health Workforce Ministerial Council to identify and establish mechanisms to improve the accountability of AHPRA to the Parliaments of all jurisdictions and the Australian public. Response: The Australian Government notes this recommendation. As the committee has noted, AHWMC has already established mechanisms to improve the accountability of AHPRA. At its meeting on 17 February 2011, AHWMC agreed the following. Additional monitoring of AHPRA will be introduced. AHPRA will be required to report to future meetings of Health Ministers. Ministers also agreed that AHPRA will provide regular reports to AHWMC and the AHMC Chair, WA Health Minister, Dr Kim Flames, will commence immediate frequent discussions with AHPRA management to ensure registration processes are on track. In addition, the Ministerial Council is required under the National Law to table the AHPRA Annual Report in each parliament of Australia. Recommendation 8 6.26 The committee recommends that the Commonwealth Government seek the support of the Australian Health Workforce Ministerial Council to amend the National Law to provide AHPRA.with a discretion to grant a grace period where a health practitioner faces deregistration as a result of administrative error by AHPRA. Response: The Australian Government does not support this recommendation. The National Law (Division 9 S107 and S108) already provides for a grace period of one month. The current grace period on registration renewals is not intended to allow for administrative errors, rather it is for practitioners who do not apply to renew before their registration expires. The National Law also provides for extensions to a practitioner's period of registration where the practitioner has applied for registration but the application has not been dealt with. In cases where a health practitioner was deregistered as a result of administrative error by AHPRA, AHPRA has resolved this issue by introducing a special administrative procedure which allows continuity of registration to be established for health practitioners who faced administrative difficulties in renewing their registration. AHPRA has implemented improvements in the management of phone, web and counter enquires through the additional allocation of resources in the state and territory offices, and this has led to marked improvements. In addition to this the AHPRA website has been improved making it easier to use, streamlining and simplifying the renewal process. Recommendation 9 6.28 The committee recommends that the Commonwealth Government seek the support of the Australian Health Workforce Ministerial Council to amend the National Law to provide further practising classifications for practitioners in academic institutions and for those who practise in a limited manner. Response: The Australian Government notes this recommendation. The National Law specifies categories of registration including Limited Registration for practitioners who may be teaching or undertaking research, completing postgraduate training or supervised practice or working in an area of need and Provisional Registration for practitioners who wish to complete a period of supervised training. The specific requirements for Limited and Provisional Registration are articulated in registration standards, which are developed by the National Boards and approved by the Ministerial Council. It is possible for the standard requirements applying to the registration of practitioners under the various categories of Limited and Provisional registration to be modified by Boards (with the approval of the Ministerial Council) under the existing provisions of the National Law. In addition, under the scheme, all registration standards are to be reviewed every three years or earlier if necessary. Recommendation 10 6.30 The committee recommends that the Commonwealth Government seek the support of the Australian Health Workforce Ministerial Council to implement a review of the mandatory notifications requirements and in particular take into account the Western Australia model of mandatory reporting. Response: The Australian Governments notes this recommendation. During the development of the National Law, an extensive consultation process was undertaken to allow organisations and individuals the opportunity to comment on all provisions, including mandatory reporting requirements. In addition to this extended consultation the National Law was debated in states and territories in parliamentary processes. In August 2009, Health Ministers confirmed their commitment to a high level of public interest protection. On 27 August 2009, the AHWMC released a communiqué (http://www.ahmac.cov.au/site/media releases.asox) confirming its commitment to a high level of public interest protection within the new scheme. Health Ministers noted that the new national provisions relating to mandatory reporting, student registration, criminal history and identity checks, strong community member representation on national boards, the ombudsman arrangements and easier public access to make complaints all supported this commitment. Health Ministers did not accept the recommendation that mandatory reporting requirements be removed from the legislation. The Scheme has been in operation for only a year and as such limited data is available to enable assessment of the impact of the mandatory reporting provisions of the National Law. However the Government notes the concerns expressed during the inquiry. The need to review the mandatory reporting regulations is best determined once adequate data becomes available. Government Response to the Senate Finance and Public Administration Legislation Committee Annual reports (No. 2 of 2009) September 2011 Recommendation 1 The committee recommends that the Australian Industry Development Corporation ensure that its next annual report fulfils the requirements of section 8 of the Freedom of Information Act 1982. Response The subsequent Annual Reports (Reports) of the Australian Industry Development Corporation (AIDC) comply with the Committee's recommendation. The Reports provide information on procedures for Freedom of Information requests to AIDC and on the relevant categories of documents. The Reports also note that because the Corporation is in the wind down phase there are no decision-making powers that affect the public. The wind down was completed by a Proclamation repealing the Australian Industry Development Corporation Act 1970 on 22 April 2011. Recommendation 2 The committee recommends that where a Commonwealth authority or company pays for the services of a 'related entity' company, the annual report should include an explanation of the decision-making process to engage that company. Response The Committee's recommendation is agreed. The Commonwealth Authorities (Annual Reporting) Orders 2011 and the Commonwealth Companies (Annual Reporting) Orders 2011 respectively provide for the annual reports of Commonwealth authorities and wholly-owned Commonwealth companies to disclose the decision making processes undertaken for approval of individual or aggregate transactions of at least $10,000 (GST inclusive), where a director of the Commonwealth entity is also a director of the other entity that provides the good or service or receives the grant. For the purposes of the annual reports these provisions are to apply from the 2012-13 GOVERNMENT RESPONSE TO THE SENATE ECONOMICS REFERENCES COMMITTEE'S 2010 REPORT MILKING IT FOR ALL IT'S WORTH — COMPETITION AND PRICING IN THE AUSTRALIAN DAIRY INDUSTRY. The Senate Economics References Committee's (the Committee) 2010 inquiry, Milking it for all it's worth — competition and pricing in the Australian dairy industry, was the first of two inquiries in relation to Australia's dairy industry completed by the Committee since 2010. In November 2011, the Committee released its report into The impacts of supermarket price decisions on the dairy industry. The Government would like to thank the Committee for the time and effort it has put into both inquiries. This Government response deals explicitly with the recommendations outlined in the Committee's 2010 final report from the Milking it for all it's worth — competition and pricing in the Australian dairy industry inquiry. The issues raised in the 2010 inquiry have largely been re-examined in the 2011 inquiry. The Government has tabled a separate response to the Committee's 2011 inquiry: The impacts of supermarket price decisions on the dairy industry. Response to recommendations Recommendation 1: The Committee recommends that the Government requests that the National Competition Tribunal reviews the effectiveness of section 46 of the Trade Practices Act in preventing price discrimination and consider reinstating anti-price discrimination provisions, particularly to protect those parties participating in industries dominated by multinational corporations. The Government notes the recommendation The Government's response to Recommendation Five made by the Senate Economics References Committee in its 2011 inquiry into The impacts of supermarket price decisions on the dairy industry (2011 Dairy Inquiry) provides a detailed response to this recommendation. The Government agrees in principle to the recommendation The Government's response to Recommendation Two made in the 2011 Dairy Inquiry provides a detailed response to this recommendation. Recommendation 2: The Committee recommends that contracts with farmers should offer a clear, consistent formula for milk pricing with unambiguous conditions. Recommendation 3: The Committee recommends that the Government requests the Australian Competition and Consumer Commission to use its information-gathering powers, and draw on its work for its recent report on grocery pricing, to provide more accurate estimates of the proportions of the retail price of milk that reflect (i) the costs and (ii) the profits, of farmers, processors and retailers and requests that the results of that review be published by 30 September 2010. The Government notes the recommendation The Government notes that during the 2011 Dairy Inquiry, a significant amount of information relating to the dairy supply chain was presented to the Committee for its consideration. As outlined in the response to Additional Recommendation Four in the 2011 Dairy Inquiry, the Government is of the view that at this point in time, another Australian Competition and Consumer Commission (ACCC) inquiry into the supermarkets would not necessarily be beneficial. However, the Government will work with the dairy industry to provide clear information on industry cost structures including input costs and farm-gate prices in each of the dairy regions across Australia. Recommendation 4: The Committee recommends that the Government requests the ACCC to undertake monitoring of the pricing practices within the dairy chain with a view to establishing whether predatory pricing or misuse of market power is occurring. The Government notes the recommendation The Government notes its response to Recommendation Five and Additional Recommendation Four in the 2011 Dairy Inquiry. The Government considers it unacceptable for businesses to engage in any conduct in breach of our competition or consumer laws. The ACCC, as the independent regulator responsible for the investigation and enforcement of these laws, is actively monitoring issues in the supermarket sector and is equipped to take action should evidence arise of a breach in the Competition and Consumer Act 2010 (the Act). The Government notes the ACCC's media release of 22 July 2011, in which it states that it considers there is no evidence that Coles has acted in breach of the Act (formerly the Trade Practices Act 1974) in relation to milk discounting and that it will continue to monitor conduct within the dairy industry and grocery sector for signs of anti-competitive behaviour_ The Government is confident that the ACCC will take appropriate action in relation to these issues should evidence emerge in future. Recommendation 5: The Committee recommends that the Productivity Commission reviews and evaluates the effectiveness of the national competition policy and requests that it publish its report by 30 April 2011. The Government notes the recommendation In 2005, the Productivity Commission (Commission) concluded a major inquiry into the impact of the National Competition Policy (NCP) and related reforms, with the release of its inquiry report Review of National Competition Policy Reforms. The inquiry covered both the broad economic effects of the NCP and changes to specific industries. The Commission found that implementation of NCP has delivered substantial benefits to the Australian community, which overall have outweighed the costs. In terms of deregulation and competition, the Commission concluded that the deregulation of the dairy industry, while entailing some transitional costs, has significantly benefited consumers in the form of lower drinking milk prices on average and an expansion in the range of dairy products available. It also noted that while some dairy fanners chose to exit the industry, deregulation has encouraged farmers to adopt innovative practices and technologies to increase production and profitability. Recommendation 6: The Committee recommends a moratorium on further takeovers and mergers in the milk processing industry until the Productivity Commission has published its report on the effectiveness of the national competition policy. The Government notes the recommendation The Government is committed to providing a robust and effective competition and consumer law, backed by appropriate and proportionate sanctions that can be effectively enforced by the ACCC as the independent regulator. In relation to mergers and acquisitions, the Government's Competition and Consumer Legislation Amendment Bill 2011, which has recently passed the Parliament, clarifies the operation of the merger and acquisition laws in relation to 'creeping acquisitions'. The Government considers that the existing framework provided by section 50 of the Act, which prohibits mergers or acquisitions that would substantially lessen competition, works well and is consistent with international practice. The existing framework for mergers and acquisitions will continue to apply to this sector. To impose a moratorium on mergers or acquisitions not otherwise prohibited by the Act would not have a meaningful effect on competition, may prohibit mergers or acquisitions which might be beneficial to competition and may be unnecessary and counterproductive for the industry. As indicated in the Government's response to Recommendation Five in the 2011 Dairy Inquiry, the Government believes that the competition provisions of the Act should not be reviewed until the ACCC has had the opportunity to further test the law in the courts. Recommendation 7: The Committee recommends that the Trade Practices Act be amended to reinstate specific anti-price discrimination provisions and inhibit firms achieving market power through takeovers or abusing market power and that 'market power' be expressly defined so that it is less than market dominance and does not require a firm to have unfettered power to set prices. A specific market share, such as, for example, one third (based on international practice), could be presumed to confer market power unless there is strong evidence to the contrary. The Government notes the recommendation The Government is committed to providing a robust and effective competition and consumer law, backed by appropriate and proportionate sanctions that can be effectively enforced by the ACCC as the independent regulator. In particular, since coming into office, the Government has legislated to clarify the misuse of market power prohibitions. The Government notes the CEO of the ACCC, Mr Brian Cassidy's recent comments that 'some judicial interpretation and rulings on the substantially changed section 46 is needed before it is possible to say whether the changes have been effective or something else needs to be done'1. The Government believes that a review of this provision of the Act should not be considered until the ACCC has had the opportunity to further test the amended law in the courts. The Government notes its response to Additional Recommendation One made in the 2011 Dairy Inquiry which relates specifically to anti-competitive price discrimination. In addition, as indicated in the Government's response to Recommendation Five in the 2011 Dairy Inquiry, the Government believes that the competition provisions of the Act should not be reviewed until the ACCC has had the opportunity to further test the law in the courts. ————— 1 Cassidy, B. Senate Hansard, Economics References Committee - Impacts of supermarket price decisions on the dairy industry - Thursday 6 October 2011. Recommendation 8: The Committee recommends that the ACCC conducts further study into the implications of increasing shares of the grocery market being taken by the generic products of the major supermarket chains. The Committee recommends that the terms of reference of any such inquiry include not just the current and future impact on prices paid by consumers but also the needs of Australia in terms of food security and economic and environmental sustainability, as well as the economic viability of farmers and processors. The Committee requests that the findings of these reviews be reported by 30 April 2011. The Government notes the recommendation The Government notes its response to Additional Recommendation Four made in the 2011 Dairy Inquiry. The Government supports the issue of working towards food security and the future sustainability of the dairy industry. It notes that the development of the National Food Plan will provide a strategic and integrated approach to food policy development and implementation and will be developed through a green and white paper process. This will help ensure a long-term and whole-of-government focus, and a considered and consultative approach to food policy. In developing the National Food Plan, the Government is working closely with the Standing Council on Primary Industries to help ensure the strong commitment to the national strategy by all states and territories. The Government also notes recent comments by the ACCC Chairman, Mr Rod Sims, in relation to the sale of private label products by supermarkets, and in particular that 'This vertical integration in the supply chain needs close scrutiny to ensure the supermarkets do not misuse their market power under Section 46.'2 Given that the ACCC has indicated it is actively monitoring these matters, the Government does not consider it is necessary at this time to direct the ACCC, under the prices surveillance provisions of the Act (Part VITA), to inquire into the implications of increasing shares of the grocery market being held by generic products. ————— 2 Sims, R. Some perspectives on competition and regulation Melbourne Press Club (10 October 2011). Recommendation 9: The Committee recommends the Productivity Commission considers, in its review of national competition policy, the appropriateness of separating the functions and powers of the ACCC with the effect that separate agencies are responsible for the approval of mergers and the assessment of whether concentration is subsequently excessive. The Government notes the recommendation Noting the Government's response to Recommendation Five, the Government considers that the ACCC, as the expert, independent competition regulator, is the agency best placed to consider all aspects of the competitive effects particular of mergers and acquisitions. Recommendation 10: The Committee recommends that the topic of competition and pricing in the dairy industry be again referred to the Senate Economics References Committee in May 2012 to assess whether progress has been made or whether tougher and more interventionist measures need to be adopted. The Government notes the recommendation The Government notes that since the release of this report, the Committee has further investigated the issues of competition and pricing in the dairy industry in its inquiry into The impacts of supermarket price decisions on the dairy industry, with the final report released in November 2011. The Committee made a range of recommendations in its final report to this inquiry and the Government has tabled a separate response addressing each of those recommendations. Recommendation 11: The Committee recommends that the Federal Government commissions an independent report into the main impediments to the establishment of new processors owned by farmer cooperatives and how these impediments could best be overcome and requests that the report be tabled by 30 April 2011. The Government notes the recommendation The Government believes that the establishment of new processors and their corporate structure is a matter for industry and outside the scope of Government intervention. The Government believes that the establishment (or otherwise) of cooperatives is a business decision best left to industry members. The Government notes previous decisions of cooperative shareholders (such as Australian Co-operative Foods Limited in 2008) to sell the enterprise to corporate entities. Recommendation 12: The Committee recommends that the Government reviews the collective bargaining provisions of the Trade Practices Act with a view to strengthening that framework to create a more equitable balance of power between the negotiating parties and requests that it report by 30 April 2011. • The Government notes the recommendation The Government's response to Recommendation Six made in the 2011 Dairy Inquiry provides a detailed response to this recommendation. The Government notes the recommendation The Government's response to Recommendation Six made in the 2011 Dairy Inquiry provides a detailed response to this recommendation. Recommendation 13: In reviewing the collective bargaining provisions the Committee requests that the Government considers the effectiveness of any existing alternative dispute resolution mechanisms and investigates: allowing collective bargaining groups to merge to address imbalances in bargaining power; the introduction of a requirement that the ACCC facilitate the timely appointment of a mediator should a party to a negotiation require such assistance; and the introduction of a requirement that cooling off periods be mandatory in contracts between dairy farmers and processors. Recommendation 14: The Committee recommends that the Government addresses the issues of food security and the future sustainability of the dairy industry at a federal level. The Committee suggests to the Government that this review be facilitated through the Primary Industries Ministerial Council to ensure it receives the commitment and attention required. The Committee recommends that any review include the role of the ACCC and federal, state and territory agricultural departments in ensuring Australia's food security. The Government agrees in principle to the recommendation The Government supports initiatives to maintain and improve food security and the sustainability of Australian food production, including of the dairy industry. As a demonstration of this support, the Government is developing a National Food Plan. The National Food Plan will be a strategic and integrated approach to food policy development and implementation and will be developed through a green and white paper process. This will help ensure a long-term and whole-of-government focus, and a considered and consultative approach to food policy. In developing the National Food Plan, the Government is working closely with the Standing Council on Primary Industries to help ensure the strong commitment to the national strategy by all states and territories. The Food Processing Industry Strategy Group, established by the Minister for Innovation, Industry, Science and Research early in 2011 to develop a strategic plan for the processed food manufacturing sector, is also analysing the strengths and weaknesses of the industry, as well as long term opportunities to enhance its long-term competitiveness and sustainability. As indicated in the Government's response to Recommendation Three in the 2011 Dairy Inquiry, the future sustainability of the dairy industry across Australia depends to a large extent on its ability to remain competitive in a global dairy market. Research and development also contributes to its competiveness and sustainability. The Government works with the dairy industry through the provision of matched funding to undertake research, development and extension activities. Recommendation 15: In the light of the Tasmanian experience the Committee recommends that where industry bodies are encouraging increased production, all agencies involved in those bodies have regard to issues of long term sustainability in the context of long term trends. They should identify the source of increased demand, adopt cautious language and indicate the degree of uncertainty around any projections. The Government notes the recommendation The Government encourages all organisations preparing information for the use of rural industries to be mindful of the need to adopt cautious language and to indicate the degree of uncertainty around any projections. For example, the Department of Agriculture, Fisheries and Forestry ABARES outlines its key assumptions and, where appropriate, identifies risk factors when presenting its forecasts. ABARES is particularly mindful of presenting its forecasts and explaining key factors underlying these forecasts in a cautious manner. Recommendation 16: The Committee recommends that the Australia and New Zealand Food Regulation Ministerial Council acts to ensure that labelling on dairy products adequately and accurately informs consumers about the provenance, manufacturer and contents of the product. The Government notes the recommendation Most packaged dairy products for retail sale are required to be labelled under the Australia New Zealand Food Standards Code with information which includes, in general: the name and address of the supplier; any applicable advisory and warning statements; a mandatory declaration of certain substances (such as allergens); an ingredients list; date marking; directions for use and storage where required for health or safety reasons; a nutrition information panel; and a statement concerning the country of origin. The Government also notes that the Australian Consumer Law, applicable in all Australian jurisdictions, prohibits misleading and deceptive conduct and false or misleading representations throughout the economy — including in relation to dairy product labelling. The Government will refer this recommendation to the Legislative and Governance Forum on Food Regulation for consideration. GOVERNMENT RESPONSE TO THE SENATE ECONOMICS REFERENCES COMMITTEE'S 2011 FINAL REPORT ON THE IMPACTS OF SUPERMARKET PRICING DECISIONS ON THE DAIRY INDUSTRY The Senate Economics References Committee's (the Committee) 2011 inquiry into The impacts of supermarket price decisions on the dairy industry is the second inquiry into Australia's dairy industry completed by the Committee since 2010. In 2010, the Committee released its report: Milking it for all it's worth — competition and pricing in the Australian dairy industry. The Government would like to thank the Committee for the time and effort it has put into both inquiries. This Government response deals explicitly with the recommendations outlined in the Committee's 2011 final report on The impacts of supermarket price decisions on the dairy industry. The 2011 inquiry has re-examined many of the issues raised in the 2010 inquiry and provides a new set of recommendations. However, as indicated in the Government's response to the Committee's first interim report, the Government has also tabled a separate response to the Committee's 2010 inquiry: Milking it for all it's worth — competition and pricing in the Australian dairy industry. Responses to recommendations Recommendation 1: The committee urges processors to make their pricing structures for sourcing drinking milk: Reflect the volume they estimate they require to meet their total commitments; Offer more stability in prices rather than changing frequently; and Not be dependent on the final retail sales of branded vs private label milk. The Government agrees in principle to the recommendation This is a commercial matter for industry and the Government encourages all participants in the dairy industry to be transparent in their transactions along the supply chain. The Government acknowledges that in some instances, if processors are encouraged to provide more stable prices to farmers, they could set a fixed price which minimises their risk but which may be less profitable for fanners. Recommendation 2: The committee recommends that contracts with dairy fanners should offer a clear, consistent formula for milk pricing with unambiguous conditions. The Government agrees in principle to the recommendation While the Government recognises that this is a commercial matter for industry, it encourages the development of contracts with a consistent formula for milk pricing and unambiguous conditions. Recommendation 3: The committee recommends that the Government commission a study of the dairy industries in Queensland, New South Wales and Western Australia. The study should focus on the future sustainability of the dairy industry in each of these states and their capacity to meet future local consumer demand. The report of the study should also examine possible policy options and be tabled in the Senate. The Government agrees in principle to the recommendation The future sustainability of the dairy industry across Australia depends to a large extent on its ability to remain competitive in a global dairy market. Research and development also contributes to its competiveness and sustainability. The Government works with the daily industry through the provision of matched funding to undertake research, development and extension activities. The Government provides around $18 million annually to Dairy Australia to undertake these activities, which include survey work to better understand the nature of all regional markets and the factors influencing the productivity of individual dairy farmers. Dairy Australia produces a comprehensive study of the Australian dairy industry in its annual Situation and Outlook report. This report includes regional outlooks for all dairying regions and is updated quarterly. The Government will work with the dairy industry to provide clear public information on industry cost structures including input costs and farm-gate prices in each of the dairy regions across Australia. Recommendation 4: The committee recommends that the ACCC review its approach to publicly releasing information about its investigations with a view to providing greater general information about its current enforcement activities and relevant issues of particular public concern. The recommendation is subject to the proviso that such action would not deny procedural fairness to the parties involved or threaten the integrity of the ACCC's investigations. The Government agrees in principle to the recommendation The ACCC is an independent statutory authority responsible for enforcing the Competition and Consumer Act 2010 (the Act) and other relevant legislation. As observed by the Committee, the degree to which the ACCC can be transparent depends on many factors. It is important that the ACCC balance the provision of public information about its enforcement activities with the need to observe procedural fairness and to ensure that adequate protection for the commercial affairs and the reputations of individuals and corporations is provided. The Government notes the comments of the Chairman of the ACCC, Mr Rod Sims, on 27 August 2011 when he stated that in its 'enforcement and compliance work, the communication effort is central — the ACCC needs to explain what it is and is not doing, and whyl.' The Government supports transparency where possible and appropriate; however, ultimately, the degree to which the ACCC discloses information relating to its investigations is a matter for the ACCC. —————— 1 Sims, R. ACCC: Future Directions The Law Council Competition and Consumer Workshop 2011 (27 August 2011). Recommendation 5: The committee recommends that the Government initiate an independent review of the competition provisions of the Competition and Consumer Act 2010. The Government notes the recommendation The Government believes it is important that Australia's competition laws provide a strong, robust framework that guards against anti-competitive conduct, but otherwise leaves businesses free to act as they see fit. The Government considers it unacceptable for businesses to engage in any conduct in breach of our competition or consumer laws. The Government is committed to ensuring the ongoing effectiveness of these laws. Since coming into office, the Government has legislated to clarify the misuse of market power prohibitions and has criminalised hard-core cartel conduct under the Act. The Parliament has also recently passed the Competition and Consumer Legislation Amendment Bill 2011 to clarify the operation of the merger and acquisition laws in relation to 'creeping acquisitions' and the Competition and Consumer Amendment Bill (No. 1) 2011 to target anti-competitive price signalling and information disclosures — initially in the banking sector. Additionally, the Government welcomes recent comments by Mr Sims, where he expressed an intention for the ACCC to take action 'even where the law is not completely clear'2 and notes the CEO of the ACCC, Mr Brian Cassidy's comments that 'some judicial interpretation and rulings on the substantially changed section 46 is needed before it is possible to say whether the changes have been effective or something else needs to be done'3. The Government recognises the concerns raised by some participants in the dairy industry, but is mindful of the ACCC's media release of 22 July 2011, in which it states that it considers there is no evidence that Coles has acted in breach of the Act in relation to milk discounting and that it will continue to monitor conduct within the dairy industry and grocery sector for signs of anti-competitive behaviour. The ACCC, as the independent regulator responsible for the investigation and enforcement of our competition and consumer laws, will continue to actively monitor issues in the supermarket sector and is equipped to take action should evidence arise of a breach in the Act. The Government believes that the competition provisions of the Act should not be reviewed until the ACCC has had the opportunity to further test the law in the courts. It is only after the laws have been suitably tested that any weaknesses in the law can be appropriately identified. Recommendation 6: The committee recommends that the Government review the effectiveness of collective bargaining laws and arrangements for agricultural industries, with a view to strengthening that framework to create a more equitable balance of power between the negotiating parties and to otherwise improve their operation. The Government notes the recommendation The Government notes that the collective bargaining framework in the Act is being actively used by agricultural industries, with approximately a quarter of all collective bargaining authorisations involving collective bargaining by primary producers. The Government considers that the collective bargaining arrangements in place under the Act are generally operating effectively for dairy farmers and recognises that collective bargaining can enhance the welfare of Australians where it increases productivity and efficiencies for the businesses involved in the arrangement, resulting in benefits to Australian businesses, consumers and the economy more generally. In light of this, the Government considers that it would be premature to conduct a review of the collective bargaining arrangements at this time. ————— 2 Sims, R. Senate Hansard, Economics Legislation Committee Estimates, Wednesday 19 October 2011. 3 Cassidy, B. Senate Hansard, Economics References Committee - Impacts of supermarket price decisions on the dairy industry - Thursday 6 October 2011. Government Senators Recommendation 1: Government Senators recommend that the Government takes steps to promote awareness of options for agricultural industries to develop more effective collective bargaining arrangements. The Government agrees in principle to this recommendation The Government supports the provision of information that promotes awareness of options for more effective collective bargaining arrangements. When new collective bargaining provisions were introduced in 2007, the Government undertook a significant information and awareness campaign targeted at industry sectors that could benefit from the new arrangements. The ACCC plays a key role in educating businesses on their rights and obligations under the Act, including the collective bargaining arrangements through its education and outreach activities. Specifically, the Government notes the ACCC, through its Education and Engagement Managers, works closely with small businesses and their representatives, including those in rural and regional areas, to disseminate information and assist them understand the Act and the role of the ACCC. To assist outreach with the small business sector the ACCC has also established a Small Business Consultative Committee which meets biannually and includes representation from the agriculture sector. The ACCC has also produced a number of publications specifically for small businesses and provides articles for inclusion in industry journals, magazines, association publications/newsletters and mainstream media. The ACCC has direct engagement through participation in conferences and events organised by industry associations and community organisations. The ACCC is available for broader liaison activities, including meetings with local industry groups to explain the ACCC's role and function. The ACCC publishes a Guide to Collective Bargaining Notifications and Streamlined Collective Bargaining for Small Business publication as sources of advice on collective bargaining for a number of industries, including the dairy industry. The ACCC's Infocentre also offers further information on collective bargaining arrangements and is available on 1300 302 502 or via www.accc.gov.au. The Government notes that, for the dairy industry, another avenue for promoting awareness and developing capacity may be through Dairy Australia's regional development programs. These programs, which are well supported by local dairy farmers, are located in the eight dairy regions throughout Australia (Gippsland, Western Victoria, Murray Region, Tasmania, Subtropical, New South Wales, South Australia and Western Australia) and focus on issues relevant to each of these regions. The Government encourages the ACCC, and other relevant bodies, to continue to promote awareness amongst dairy farmers of the collective bargaining arrangements in public forums and through working with industry groups. Recommendation 7: The committee recommends that the Government initiate the following: A review of the effectiveness of Produce and Grocery Industry Code of Conduct and mediation process undertaken though the Produce and Grocery Code Ombudsman. The review should include a consultation process regarding options to strengthen the Code, including that it captures entire supply chain relationships, and whether a revised Code should be made a prescribed mandatory industry code under the Competition and Consumer Act 2010. A consultation process on the need for a new statutory office to address issues regarding supply relationships in the grocery sector, and the role, powers, coverage and governance regarding such an office. The Government notes the recommendation The Produce and Grocery Industry Code of Conduct (the Code) is a voluntary industry code of conduct administered by the Produce and Grocery Industry Code Administration Committee (the Code Committee). The Government, through the Department of Agriculture, Fisheries and Forestry provides secretariat support to the Committee. The Code covers vertical transactions within the produce and grocery industry supply chain and guides the conduct of businesses within the industry. The objects of the Code are to: promote fair and equitable trading practices amongst industry participants; encourage fair play and open communication between industry participants as a means of avoiding disputes; and provide a simple, accessible and non-legalistic dispute resolution mechanism for industry participants in the event of a dispute. The Code is intended to cover all participants (except consumers) in the Australian produce and grocery industry, including growers, processors, wholesalers, distributors and retailers. The Government subsidises a mediation service for dispute resolution. The Code is an industry owned code and therefore it is appropriate that industry review the effectiveness of the Code. The Government is willing to continue to engage with industry about the operation and effectiveness of the Code and would consider facilitating an industry-Government partnership to review the Code. The Government has recently conducted an extensive consultation process with a wide range of stakeholders as part of the development of the National Food Plan. In this process elements of industry proposed the need for a new statutory office. The Government has listened carefully to those views and will respond accordingly through the drafting and release of a Green Paper as part of the development of the National Food Plan. The work underway through the Food Processing Industry Strategy Group and the Senate's Select Committee on Australia's Food Processing Sector may also provide further input for consideration by the Government into these issues. ADDITIONAL RECOMMENDATIONS: SENATOR XENOPHON, SENATOR WILLIAMS, SENATOR HEFFERNAN, SENATOR MADIGAN, SENATOR MILNE Going 'Down Down': The long-term viability of the Australian dairy industry Additional Recommendation 1: Amend section 46 of the Competition and Consumer Act 2010 to effectively prohibit anti-competitive price discrimination. Consideration should be given to relevant legislation in place in the United States and United Kingdom, and the reintroduction of an 'effects test' as per section 49 of the Trade Practices Act 1974. The Government notes the recommendation The Government is committed to providing a robust and effective competition and consumer law, backed by appropriate and proportionate sanctions that can be effectively enforced by the ACCC as the independent regulator. The then Trade Practices Act 1974 contained an explicit prohibition from 1974 to 1995 on specific types of price discrimination which had the effect of substantially lessening competition. The repeal of the former section 49 of the Act, which prohibited anti-competitive price discrimination, was recommended by the Swanson Committee4, the Blunt Cornrnittee5 and the Hilmer Committee6. The inquiries raised various concerns, including that the former prohibition: caused price inflexibility; reduced price competition; was contrary to economic efficiency; and had not been of assistance to small business. The Hilmer Committee noted that price discrimination generally enhances economic efficiency, except where such conduct would contravene sections 45 (anti-competitive agreements) or 46 (misuse of market power).'7 The prohibition was subsequently repealed in 1995. Its repeal was subsequently endorsed by the Dawson Committees.8 As indicated in the Government's response to Recommendation Five, the Government believes that the competition provisions of the Act should not be reviewed until the ACCC has had the opportunity to further test the law in the courts. ————— 4 Trade Practices Act Review Committee (1976). 5 Trade Practices Consultative Committee, Small business and the Trade Practices Act (1979). 6 National Competition Policy Review (1993). 7 Ibid, p79. 8 Review Of the Competition Provisions of the Trade Practices Act (2003). Additional Recommendation 2: Amend the Competition and Consumer Act 2010 to provide for a general divestiture power whereby the ACCC could, in appropriate cases, apply to the Courts for the breakup of monopolies or dominant companies that engage in conduct that undermines competition. The Government notes the recommendation The Government is committed to providing a robust and effective competition and consumer law, backed by appropriate and proportionate sanctions that can be effectively enforced by the ACCC as the independent regulator. Currently, section 81 of the Act provides that divestiture can only be ordered by a court, upon application by the ACCC or any other person, if a merger or acquisition within three years has resulted in a substantial lessening of competition within a market. The Government notes that the two most recent comprehensive reviews of Australian competition law — the Hilmer and Dawson Committees, recommended against extending the application of the divestiture power within the Act. The reviews noted that a general divestiture power would create considerable uncertainty for business. A divestiture power would also place a significant obstacle in the way of foreign investment and domestic company growth to achieve international standards of efficiency and competitiveness. Both reviews concluded that the many disadvantages of providing a general divestiture power outweighed the possible advantages of such a power. As indicated in the Government's response to Recommendation Five, the Government believes that the competition provisions of the Act should not be reviewed until the ACCC has had the opportunity to further test the law in the courts. Additional Recommendation 3: That the ACCC undertake a full investigation into whether Coles has engaged in misleading or deceptive conduct as a result of an advertising campaign that may have created the impression that prices are coming down across the supermarket when only a percentage of products have in fact been reduced. The Government notes the recommendation The Government considers it unacceptable for businesses to engage in any conduct in breach of our competition or consumer laws. The ACCC, as the independent regulator responsible for the investigation and enforcement of these laws, is actively monitoring issues in the supermarket sector and is equipped to take action should evidence arise of a breach in the Act. The Government notes the statements by Mr Cassidy, during Senate Estimates on 19 October 2011, that the ACCC is monitoring the situation and that if it finds that there is misleading behaviour it will take action9. The Government is confident in the capability of the ACCC to enforce the law. ————— 9 Senate Hansard, Economics Legislation Committee Estimates, Wednesday 19 October 2011. Additional Recommendation 4: That the Federal Government give a direction to the ACCC under the Competition and Consumer Act 2010 to formally monitor pricing behaviour by the supermarket chains and along the supermarket supply chain. The Government notes the recommendation The Government understands that there are concerns about the behaviour of some of the major market players towards suppliers in the grocery sector. The Government notes that in 2008, the ACCC examined pricing practices at the grocery retail level and the factors influencing the pricing of inputs along the grocery supply chain in its inquiry, Report of the ACCC inquiry into the competitiveness of retail prices for standard groceries. In this report, the ACCC concluded that the grocery retailing market is `workably competitive'. The report also noted the positive impact that ALDI has had on grocery prices competition. Since the release of the report, Costco has also entered the Australian market and the expansion of ALDI has led to further price competition. Additionally, the Government also notes that the Senate's Select Committee on Australia's Food Processing Sector is conducting an inquiry into aspects of the supermarket supply chain. As part of its terms of reference, the Committee will examine the competitiveness and future viability of Australia's food processing sector in global markets and the impact of Australia's competition regime and the food retail sector, on the food processing sector. The Government also notes that the ACCC, as the independent regulator responsible for the investigation and enforcement of these laws, is already actively monitoring issues in the supermarket sector and is equipped to take action should evidence arise of a breach in the Act. The ACCC has also indicated it will continue to monitor the supermarkets for signs of anti-competitive behaviour as part of its normal operating activities. Additional Recommendation 5: That the Federal Government establish an Office of the Australian Small Business and Farming Commissioner. The Government notes the recommendation On 20 May 2011, the Minister for Small Business released a paper to generate comments on options for providing small businesses with a low cost, speedy dispute resolution mechanism that does not duplicate existing services. Option Four of this paper considered the introduction of a Small Business Advocate or Commissioner to offer independent representation of small business interests and concerns within the Australian Government. There were 49 submissions received from a range of stakeholders which included leading industry and small business associations. No submissions were received from the farming or produce and grocery industries. In light of the submissions received, the Government is carefully considering its role in small business dispute resolution. The Government also notes its response to Recommendation 7 in relation to the consideration of the need for a statutory office through other existing consultation processes. Additional Recommendation 6 That the Federal Government develop a mandatory industry code of conduct under the Competition and Consumer Act 2010 dealing with relationships between industry participants along the supermarket supply chain. Such a code should also include the major supermarket chains. The Government notes the recommendation The Government refers to its response to Recommendation 7. The Government is willing to continue to engage with industry about the operation and effectiveness of the existing voluntary Produce and Grocery Industry Code of Conduct and would consider facilitating an industry-Government partnership to review the Code. Additional Recommendation 7 That the Federal Government extend the Australian Consumer Law framework dealing with unfair contract terms to business to business agreements involving small businesses and farmers. The Government notes the recommendation The Government introduced laws dealing with unfair contract terms which took effect at the Commonwealth level on 1 July 2010 and have been in place in the laws of all jurisdictions from 1 January 2011, as part of the Australian Consumer Law. The Government notes that these provisions have only been in place for a short period of time and that, should extension of the provisions be considered in the future, careful consideration would need to be given to the costs and benefits of doing so.