Australian Greens
Minority report
Background
The Australian Greens introduced the Low Aromatic Fuel Bill
because petrol sniffing is a serious health and community issue that requires
action. For many years now, the main strategy has been to ask retailers to
voluntarily replace regular unleaded petrol with low aromatic fuel in affected
communities. This voluntary roll-out of low aromatic fuel has been very
successful in many areas. As the committee notes in chapter three of its
report, the many stakeholders who have cooperated in this achievement are to be
congratulated.
However, it has been known for many years that the approach
is failing in some areas. The Senate Community Affairs committee in 2009
recognised the need for a legislative response to target areas where the
voluntary roll-out had not succeeded in preventing access to sniffable petrol.
At that time, the committee noted that some retailers were
resisting the sale of low aromatic fuel. The committee's unanimous report
stated:
Given the continuing resistance to Opal fuel by some
retailers across all jurisdictions in central Australia, the committee
recommends that the Commonwealth government complete, as a matter of priority,
the necessary work to determine whether legislation is both possible and
practicable.
If these retailers do not voluntarily agree to supply Opal
within 6 months, and if it is established that there are no legal impediments
to the implementation of Commonwealth legislation, the Commonwealth government
should immediately commence the drafting of legislation to mandate the supply
of Opal fuel within the petrol sniffing strategy zone.
Six months passed and nothing was done. It is now over three
years since that report, and petrol sniffing continues to plague some
communities, while others have been freed of this scourge. The Australian
Greens have introduced the current bill because the government failed to act on
the committee's 2009 unanimous recommendation.
Constitutional powers
There are several constitutional powers upon which
legislation to extend the availability of low aromatic fuel could rely. The
committee's report draws on submissions by two Sydney-based organisations with
legal expertise, the Gilbert + Tobin Centre of Public Law and Jumbunna
Indigenous House of Learning, that recommend that the powers upon which the bill
draws should be broadened to include the territories power and the races power.
The Australian Greens understand the desire to ensure that
the legislation is as comprehensive in scope as possible.
Nevertheless, both the territories and races powers are ones
which the Australian Greens believe are ones that should be approached with
caution, and used only when clearly necessary. We have regularly opposed the
use of the territories power to impose top-down solutions on unwilling
communities. The Australian Greens would want to consult with legal advisors
and community representatives from affected areas in the Northern Territory and
elsewhere, on their views about relying on other constitutional powers.
We also note that some complications may arise from the
reliance on broader constitutional powers. Mr Brennan from the Gilbert + Tobin
Centre of Public Law supported reliance on other powers, but nevertheless
commented:
How far does the Parliament wish to go in regulating people
or entities other than a trading corporation? I submit that the Bill would move
well beyond its present design if it was extended, for example, to ‘persons’
and made referable to the Territories power and the races power. My understanding
of the purpose of legislating in relation to LAF is to discourage retail fuel
suppliers from resisting or subverting the rollout, based on evidence that a
small number of suppliers have not responded positively to non-legislative
encouragement. However, it is a very different thing to legislate generally for
the criminalisation of conduct by individuals in relation to fuel, an area
which is in any case, I understand, already regulated by legislation at the
State and Territory level. In my submission it also complicates the issues
surrounding reliance on the races power as well as raising questions about
effectiveness, community acceptance and viable enforcement.
For those reasons, I recommend that if the constitutional
basis to the Bill is extended to incorporate reliance on the Territories power
and the races power, the targets for legal regulation be confined to a
commercial, business or retail setting...
This approach may entail attention to the definition of
‘supply’ so as to confine it to a commercial supplier. Alternatively or in
addition it may require careful wording of the entities referred to in the
counterpart provisions to ss 8, 10 and 12 proposed above.[1]
The Australian Greens are willing to consider these issues.
We note however that there was no definitive evidence received to indicate that
either distributors, or retail outlets refusing to stock low aromatic fuel,
were not corporations within the meaning of the bill. Thus we believe that the
bill, as presently drafted, could be used to address known cases of the refusal
of retailers to stock low aromatic fuel.
Other concerns with the drafting of the bill
The committee makes two further recommendations:
that the government consider whether legislation should
define more narrowly the fuels to which the bill would apply, but accepts that
there should be capacity to regulate the management of premium fuel in some
circumstances
And:
that there be further examination of the wording of the
explanatory memorandum, consultation and exemption clauses, to ensure that fuel
manufacturers are properly included, and the bill does not have unintended
consequences in the event of supply bottlenecks or disruption.
The Australian Greens would support consideration of
amendments to either bill or explanatory memorandum to address these
recommendations. In particular, we would want to ensure that manufacturers are
fully included in consultation processes. BP Australia, as manufacturer of low
aromatic fuel, has been a significant player in the success of this initiative.
We acknowledge their vital role, and would want to ensure their future
engagement in actions targeting petrol sniffing.
'Continuing to consult' or a lack of commitment?
The fifth recommendation of the current report is
that the Australian Government continue to consult with the
relevant state and territory governments on the possibility of national
legislation to mandate the supply of low aromatic fuel to ensure that there is
agreed and coordinated action to address petrol supply.
The Australian Greens note that formal consultation with
state and territory governments on the possibility of national legislation did
not commence until months after the bill was introduced into the Senate, and
only days before the committee conducted its hearings in Alice Springs. This
does not reflect 'continued consultations': it is a late and begrudging
decision to commence them.
Having started late, the Commonwealth has also apparently
pre-judged some of the issues. Minister Snowdon, in his letter to relevant state
and territory ministers, stated: 'It is difficult to understand how
Commonwealth legislation will have a greater impact than local state or
territory legislation'.[2]
The Australian Greens are unaware of any substantial evidence, either before
the current inquiry or elsewhere, to support this perception. It also ignores
the fact that community representatives, who the Minister says he wants to see
'acting together against petrol sniffing', are often the same people supporting
a national legislative response.
Furthermore, the bill recognises the importance of community
engagement. The bill states that, in determining whether to designate a low
aromatic fuel area, the Minister must have regard to 'whether people
living in the area have expressed their concerns about sniffing fuel' and
whether they 'have expressed the view that their wellbeing will be improved if
the area is designated as a low aromatic fuel area'.[3]
The current government appears to lack a proper sense of
urgency around petrol sniffing:
- It has been known for some time that there is a potential fuel
supply bottleneck that could affect the roll-out. However, it now appears that
a new distribution facility in the Northern Territory will not be ready until
mid-2013.
- The government has commissioned two evaluations relevant to the
roll-out, with the main one being conducted over a time-frame in excess of
three years. Furthermore, it was nearly a year after the Senate committee's
2009 report was tabled before that evaluation contract was even commenced.
- When the committee became aware that there was data being
gathered by the Northern Territory about sniffing, but that the data was not
being shared, it pursued this with the government, as the committee's report
notes in chapter two.[4]
Incredibly, as of 18 September this year, the matter had still not been
resolved.[5]
The government appears to be dragging its heels on both legislation
and evaluation.
Conclusion
The bill introduced by the Australian Greens does not in
itself cause anything to take place. It is enabling legislation. It gives the
government the capacity, within a specified consultation framework, to resolve
issues that are hampering the prevention of petrol sniffing.
The committee's report states that 'any legislative action
to mandate the supply of low aromatic fuel needs to consider storage and supply
issues, complement voluntary roll-out, and prioritise designated petrol
sniffing strategy zones'. The Australian Greens do not understand how these
points are relevant to the recommendation that the bill not be passed:
- This bill does consider storage and supply issues: it
requires the minister to consult on these matters, explicitly setting as one of
the criteria: 'the availability of low aromatic fuel in relation to the area'.
- This bill does complement voluntary roll-out. Where
voluntary roll-out is succeeding, no action need be taken under the bill, and
the voluntary scheme could remain in place.
- This bill can prioritise petrol sniffing strategy zones. The
Minister, in consultation with the communities and other stakeholders affected
by the legislation, determines what areas might be declared under the bill.
These could well be the current strategy zones.
In short, on the very criteria that the committee identify
in the report, the bill can and should proceed.
Recommendation 1
Subject to consideration of the issues identified in
recommendations 1 to 4 in the committee's report, the bill should proceed.
Senator Rachel Siewert
Western Australia
Navigation: Previous Page | Contents | Next Page