Legislative Council

4511

LEGISLATIVE COUNCIL

Wednesday 22 November 2006 ______

The President (The Hon. Dr Meredith Burgmann) took the chair at 11.00 a.m.

The Clerk of the Parliaments offered the Prayers.

AUDIT OFFICE

Report

The President announced the receipt, pursuant to the Public Finance and Audit Act 1983, of a performance audit report of the Auditor-General entitled "Major Infectious Disease Outbreaks—Readiness to Respond: NSW Health", dated November 2006.

Ordered to be printed.

QUESTIONS AND ANSWERS PAPER

The Hon. CATHERINE CUSACK [11.04 a.m.]: I move:

That, during the present session and notwithstanding anything contained in the standing or sessional orders, and unless otherwise ordered, the Clerk is to publish a Questions and Answers Paper, printed and circulated to members, on each of the following dates:

Thursday 30 November 2006, Thursday 7 December 2006, Thursday 14 December 2006, Thursday 21 December 2006, and Thursday 2 January 2007.

Question—That the motion be agreed to—put.

The House divided.

Ayes, 23

Mr Breen Mr Gay Mrs Pavey Mr Brown Ms Hale Mr Pearce Dr Chesterfield-Evans Mr Jenkins Ms Rhiannon Mr Clarke Mr Lynn Mr Ryan Mr Cohen Mr Mason-Cox Dr Wong Ms Cusack Reverend Dr Moyes Tellers, Mr Gallacher Reverend Nile Mr Colless Miss Gardiner Ms Parker Mr Harwin

Noes, 17

Ms Burnswoods Ms Griffin Mr Roozendaal Mr Catanzariti Mr Hatzistergos Ms Sharpe Mr Costa Mr Kelly Mr Tsang Mr Della Bosca Mr Macdonald Tellers, Mr Donnelly Mr Obeid Mr Primrose Ms Fazio Ms Robertson Mr West

Question resolved in the affirmative.

Motion agreed to. 4512 LEGISLATIVE COUNCIL 22 November 2006

STANDING COMMITTEE ON LAW AND JUSTICE

Reference

Motion by the Hon. John Della Bosca agreed to:

1. That, in accordance with section 68 of the Motor Accidents (Lifetime Care and Support) Act 2006, the Standing Committee on Law and Justice be designated as the Legislative Council committee to supervise the exercise of the functions of the Lifetime Care and Support Authority of New South Wales and the Lifetime Care and Support Advisory Council of New South Wales under the Act.

2 That the terms of reference of the committee in relation to these function be:

(a) to monitor and review the exercise by the authority and council of their functions,

(b) to report to the House, with such comments as it thinks fit, on any matter appertaining to the authority or council or connected with the exercise of their functions to which, in the opinion of the committee, the attention of the House should be directed, and

(c) to examine each annual or other report of the authority or council and report to the House on any matter appearing in, or arising out of, any such report.

3. That the committee report to the House in relation to the exercise of its functions under this resolution at least once each year.

4. That nothing in this resolution authorises the committee to investigate a particular participant, or application for participation, in the Lifetime Care and Support Scheme provided for by the Motor Accidents (Lifetime Care and Support) Act 2006.

CARLTON UNITED BREWERIES SITE

Production of Documents: Order

Motion by Ms Sylvia Hale agreed to:

That under Standing Order 52 there be laid upon the table of the House within 14 days of the date of the passing of this resolution any document, created since 1 January 2005 and not previously provided to the House, in the possession, custody or control of the Premier, the Premier’s Department, the Minister for Planning, Infrastructure and Redfern-Waterloo, the Department of Planning, The Cabinet Office, NSW Treasury, or the Treasurer relating to the development of the Carlton United Breweries site and any document which records or refers to the production of documents as a result of this order of the House.

TABLING OF PAPERS

The Hon. Henry Tsang tabled the following papers:

(1) Annual Reports (Statutory Bodies) Act 1984—Reports for the year ended 30 June 2006:

Art Gallery of New South Wales Trust Australian Museum Trust Legal Aid Commission of New South Wales

(2) Anti-Discrimination Act 1977—Report of the Anti-Discrimination Board of New South Wales for the year ended 30 June 2006.

(3) Administrative Decisions Tribunal Act 1977—Report of the Administrative Decisions Tribunal for the year ended 30 June 2006.

Ordered to be printed.

COMMITTEE ON THE OFFICE OF THE OMBUDSMAN AND THE POLICE INTEGRITY COMMISSION

Reports: Phase Two of an Inquiry into section 10 (5) of the Police Integrity Commission Act 1996

Inquiry into Scrutiny of New South Wales Police Counter-terrorism and Other Powers

Ten Year Review of the Police Oversight System in New South Wales

The Hon. Jan Burnswoods tabled, on behalf of the Chair, the following reports:

(1) Report No. 12/53, entitled "Phase Two of an Inquiry into Section 10 (5) of the Police Integrity Commission Act 1996— Together with Transcript of Proceedings and Minutes", dated November 2006. 22 November 2006 LEGISLATIVE COUNCIL 4513

(2) Report No. 15/53, entitled "Report on the Inquiry into Scrutiny of New South Wales Police Counter-Terrorism and Other Powers—Together with Committee Minutes", dated November 2006.

(3) Report No 16/53, entitled "Ten Year Review of the Police Oversight System in New South Wales", dated November 2006.

Ordered to be printed.

The Hon. JAN BURNSWOODS [11.15 a.m.]: I move:

That the House take note of the reports.

Debate adjourned on motion by the Hon. Jan Burnswoods.

BUSINESS OF THE HOUSE

Withdrawal of Business

Private Members' Business item No. 171 outside the Order of Precedence withdrawn by the Hon. Penny Sharpe.

BUSINESS OF THE HOUSE

Postponement of Business

Business of the House Notice of Motion No. 2 postponed on motion by the Hon. Greg Pearce.

BUSINESS OF THE HOUSE

Suspension of Standing and Sessional Orders

The Hon. DON HARWIN [11.12 a.m.]: I move:

That standing and sessional orders be suspended to allow a motion to be moved forthwith that Private Members' Business item No. 166 outside the Order of Precedence, relating to a further order for papers regarding a desalination plant, be called on forthwith.

Very briefly, I have moved this contingency motion on behalf of the Hon. Melinda Pavey, who would like to contribute briefly to the debate about why this matter needs to be brought on forthwith.

The Hon. MELINDA PAVEY [11.23 a.m.]: I seek urgency to bring on this motion. There are perhaps only two sitting days of Parliament remaining. It is urgent that we get to the bottom of many of the issues facing Sydney's water supply. Warragamba Dam is about 40 per cent full. We need to know what will happen in relation to groundwater and what is happening with the desalination plant. The Government is overdrawing from the Shoalhaven area. We need to examine documentation to find out the overall plan.

The Hon. Amanda Fazio: Point of order: The honourable member should know by now that she should speak only to urgency, not to the substantive matter. I ask you to remind her of that.

The PRESIDENT: Order! I remind the member that she must address only the urgency of the matter at this stage.

The Hon. MELINDA PAVEY: The matter is urgent because the House is about to rise and we need these documents to find out what is happening with Sydney's water.

Motion agreed to.

Order of Business

Motion by the Hon. Melinda Pavey agreed to:

That Private Members' Business item No. 166 outside the Order of Precedence be called on forthwith. 4514 LEGISLATIVE COUNCIL 22 November 2006

DESALINATION PLANT PROPOSAL

Production of Documents: Order

The Hon. MELINDA PAVEY [11.24 a.m.]: I move:

That under Standing Order 52 there be laid upon the table of the House within 14 days of the date of the passing of this resolution, the following documents, which have not previously been laid upon the table of the House, in the possession, custody or control of the Premier, the Premier’s Department, The Cabinet Office, the Metro Water Directorate, the Treasurer, NSW Treasury, the Minister for Water Utilities, the Minister for Energy, the Department of Energy, Utilities and Sustainability, the Minister for the Environment, the Department of Environment and Conservation, the Minister for Planning, the Department of Planning, the Minister for Local Government, the Department of Local Government, Sydney Water and the Sydney Catchment Authority created since 9 November 2005:

(a) any documents relating to development consent or planning proposals for a desalination plant, a desalination pilot plant, testing or planning for a desalination plant,

(b) any document which details any payment made as a result of a desalination plant, a desalination pilot plant, testing or planning for a desalination plant,

(d) any document relating to water restrictions or other demand management measures,

(e) any document relating to the recruitment or sourcing of the Sydney Water Managing Director, or the Department of Energy, Utilities and Sustainability Director-General (or acting Director- General), and

(f) any document which records or refers to the production of documents as a result of this order of the House.

It is no secret that the Australian Labor Party has mismanaged Sydney's water over the past 12 years. It is relying on short-term plans to get to the election, deferring the need to make a decision on a new large-scale source of supply. The Government has artificially inflated dam levels in order to keep its dam levels above the critical trickle point of 40 per cent when it was meant to access groundwater at Kangaloon and Leonay. It did so by pumping more than 110 billion litres of water from the Shoalhaven and prematurely including its deep-water storage projects in the dam levels. The Opposition has quite responsibly dealt with the Government and the crossbench to try to limit the amount of work for the Government. The Opposition does not want unnecessary documentation, just some basic facts. Anything that it has called for in this call for papers is post the date of the previous call for papers. Mr Ian Cohen has foreshadowed a Greens amendment to further tighten the call for papers to stop any unnecessary paperwork it may involve.

Mr IAN COHEN [11.26 a.m.]: I move:

That the question be amended as follows:

No 1. Omit "14 days" and insert instead "21 days".

No. 2: Omit "the Minister for Local Government, the Department of Local Government,".

No. 3: Omit paragraph (c) and insert instead:

(c) any document which refers to the use or planned use of transfers from the Shoalhaven, or any groundwater or aquifers in the Sydney catchment area such as those located at, but not limited to, Kangaloon and Leonay,

There has been reasonable discussion on this issue. The amendment attempts to narrow the focus so there is no waste.

Amendment agreed to.

Motion as amended agreed to.

BUSINESS OF THE HOUSE

Suspension of Standing and Sessional Orders

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [11.28 a.m.]: I move:

That standing and sessional orders be suspended to allow a motion to be moved forthwith that Private Members' Business item No. 141 outside the Order of Precedence, relating to the Single Parliament (Referendum) Bill, be called on forthwith. 22 November 2006 LEGISLATIVE COUNCIL 4515

This is an urgent matter because the bill seeks to have a referendum question put at the 2007 State election. The question to be put is:

Are you in favour of the Parliament of NSW passing legislation that provides for the replacement of the Legislative Council and the Legislative Assembly with a single Parliament consisting of 50 members and elected from 10 electorates by proportional representation?

This matter is urgent because we do not have true representative democracy in New South Wales. At the last election the Australian Labor Party polled 42.6 per cent of the first preference vote in the lower House and was awarded 61 per cent of the seats. That is not democracy. The Government has 100 per cent of the power with 42.69 per cent of the vote. The people need to decide whether they want better democracy. The election is upon us.

If the referendum is passed and the proposal for the single Parliament is implemented, then the 23 per cent of people who at the last election did not vote for either of the major parties would be fairly and properly represented. The reason for having two Houses is that the lower one is a rubber stamp for the Executive. If there were a genuinely democratic Chamber, one House would be enough. The matter is also urgent because of the recent High Court decision on the WorkChoices legislation. That decision has cleared the way for a major electoral reform in Australia. My proposal is in a way a precursor to a move to regional government, and a discussion of these matters would be most timely. I commend the motion for urgent consideration of the bill to the House.

Motion negatived.

LIEUTENANT-GOVERNOR'S SPEECH: ADDRESS-IN-REPLY

Second Day's Debate

Debate resumed from 24 May 2006.

The Hon. PENNY SHARPE [11.30 a.m.], in reply: I wish to thank all honourable members for their contributions to the debate, and I commend the motion to the House.

Motion agreed to.

Presentation

The PRESIDENT: I have ascertained it to be the pleasure of Her Excellency the Governor to receive the Legislative Council's Address-in-Reply to His Excellency the Lieutenant-Governor's Opening Speech at Government House on this day at 3.30 p.m.

Motion by the Hon. John Della Bosca agreed to:

That the House proceed on this day, at 3.15 p.m., to Government House and there at 3.30 p.m. present to Her Excellency the Governor the Address-in-Reply to the Speech His Excellency the Lieutenant-Governor had been pleased to make to both Houses of Parliament on opening the session.

BUSINESS OF THE HOUSE

Postponement of Business

Government Business Orders of the Day Nos 2 to 9 postponed on motion by the Hon. John Della Bosca.

JAMES HARDIE FORMER SUBSIDIARIES (WINDING UP AND ADMINISTRATION) AMENDMENT (TRUST FUNDS) BILL

Second Reading

That this bill be now read a second time. 4516 LEGISLATIVE COUNCIL 22 November 2006

Regardless of the great significance of this bill, and noting that it has already been read in the other place by the Premier, I seek leave to incorporate the second reading speech in Hansard.

Leave granted.

It is nearly two years since the New South Wales Government joined the ACTU, Unions New South Wales and Bernie Banton in signing the non-binding Heads of Agreement with James Hardie Industries NV for compensation for the victims of James Hardie's asbestos. On 1 December last year, I signed the historic 40-year Final Funding Agreement to secure compensation for asbestos victims.

Today, it seems the last significant hurdle to the funding payments commencing has been overcome. Earlier today, accompanied by Bernie Banton, Greg Combet and Mark Lennon of Unions New South Wales I signed the Amended and Restated Final Funding Agreement with James Hardie.

Last year, in his Second Reading Speech on the James Hardie Former Subsidiaries (Winding up and Administration) bill 2005 and cognate bills my distinguished colleague the Attorney General said that he did not wish to dwell on the history of this matter because the bills were about the future. That is also true of this bill today.

I do, however, wish to make some remarks about what has occurred since the Final Funding Agreement was signed in December 2005. That Agreement was conditional upon a number of matters, including the passage of the bills I mentioned as part of the deal this Parliament upheld. Importantly, it was also conditional on neither James Hardie's funding contributions nor the income of the Special Purpose Fund being taxed.

We were not seeking a special deal for James Hardie, simply the same taxation position as other Australian asbestos defendants. This tax outcome was essential to the affordability of the arrangements because there would not be enough money to pay asbestos victims if the Commonwealth taxed the funds. In June of this year, the Australian Taxation Office ruled that James Hardie could claim tax deductions for its funding contributions under the so-called "black hole" legislation.

However, the Australian Taxation Office also ruled that the Special Purpose Fund was not a charity, a ruling that put the entire Agreement in jeopardy. The New South Wales Government does not accept the correctness of this ruling. The Fund's application for charitable status was supported by the unqualified advice of the Honourable Roddy Meagher QC, a former judge of the New South Wales Court of Appeal and one of Australia's foremost legal authorities on charities and trusts.

The Australian Taxation Office's ruling could only be described as a triumph of form over substance. They did not accept that paying compensation to asbestos victims is for the public benefit. They did not even accept that paying compensation to asbestos victims is for the benefit of the victims themselves. Nor did they accept that the Fund should pay the amount of damages determined by the courts. Instead, the Tax Office thought that victims should have to prove all over again to the Fund what loss and damage they had suffered.

Nobody with even the smallest sense of justice could accept those propositions—and we did not. Instead we spent the past five months seeking an alternative legal structure that would meet the ATO's concerns while still delivering justice for the victims.

On November 8 2006, the Australian Taxation Office issued a series of private binding rulings in relation to an amended structure for the Fund achieving the same tax outcome as under the charity structure. Unfortunately, however, they are considerably more complex. What was one relatively simple issue under the original Final Funding Agreement has now become eight complex issues involving months of additional uncertainty and considerable extra costs for the New South Wales taxpayer. Thankfully this unhappy story is now at an end with the Prime Minister and the Federal Treasurer finally giving their support to the private binding rulings issued on 8 November 2006, an assurance to which we will certainly hold the Commonwealth Government.

I turn now to the bill itself. As a preliminary matter, I note that the Act defines the Final Funding Agreement to be the agreement entered into on 1 December 2005 as in force from time to time. The Amended and Restated Final Funding Agreement that I signed earlier today is therefore now the "Final Funding Agreement" for the purposes of the Act and the bill.

The amendments in the bill can be grouped into four areas. First, most of the provisions in the bill are designed to support the implementation of the amended structure agreed today. That amended structure involves maintaining the current charitable fund and creating a discretionary trust in respect of the income of the charitable fund. The bill therefore confirms that the existing trust deed establishing the Special Purpose Fund may be amended to establish the discretionary trust fund. The bill confirms that the Special Purpose Fund continues to be a validly constituted charitable trust and the trustee of the Special Purpose Fund will also be the trustee of the discretionary fund.

The bill then makes a number of consequential amendments to Part 4 of the Act arising from the fact that there will now be both the Special Purpose Fund and the discretionary fund. The second area addressed by the bill is confirmation that certain provisions in Part 3 of the Act take effect despite anything to the contrary in the constitution of the relevant company or liable entity. These amendments are made for completeness only and are in the nature of statute law revision.

The third area addressed by the bill is a transitional provision to support the Interim Funding Deed. The Government negotiated the Interim Funding Deed with James Hardie to secure interim funding for Amaca so it can continue to pay claims. The transitional provision will ensure that the Interim Funding Deed is not affected by the winding up and administration provisions of the Act. It will also ensure that the Deed is not affected by the administration provisions which currently apply to Amaca under the James Hardie Former Subsidiaries (Special Provisions) Act 2005.

The fourth, and final, area addressed by the bill is the issue of dealing with the remaining research funds held by the Medical Research and Compensation Foundation. Members might recall that, when it set up the Foundation James Hardie contributed 22 November 2006 LEGISLATIVE COUNCIL 4517

3 million dollars to fund medical research into asbestos-related diseases. Most of this funding is still held by the Foundation. However, once today's Agreement is fully implemented there will be no other work for the Foundation to do. It will no longer own the liable entities and it will have no management or oversight role in respect of them.

In these circumstances, it does not seem appropriate to maintain the Foundation only to distribute medical research funding. The bill therefore provides for the trust administered by the Foundation to be terminated. The Foundation will need to pay any of its creditors first, including any remaining grants which have already been awarded.

The bill then requires the balance of the trust assets to be transferred to one or more asbestos medical research providers prescribed by the regulations. There are at least two important initiatives under way in this area currently: the Asbestos Diseases Research Foundation, being established at Concord with funding from the New South Wales Government and James Hardie; and the National Research Centre for Asbestos-Related Diseases in Perth. These are the sorts of bodies that might be suitable recipients of the remaining trust funds in the Foundation and the New South Wales Government wants to ensure all research funding is put to the best and most productive use possible.

One of the next steps for the Government is to nominate its two directors to serve on the Asbestos Injuries Compensation Fund board.

James Hardie will appoint three directors of the board, including the Chairperson who will form the majority directors. The Government's directors will participate in the decision-making of the board as minority directors.

It only remains for me to pay tribute to those who have made this historic achievement possible. I thank my colleagues Bob Carr, Bob Debus and John Della Bosca. I thank the Government's team led by one of the State's most outstanding public servants, Leigh Sanderson, Deputy Director-General of The Cabinet Office.

I thank Brian Wilson, Managing Director of Lazard, who provided excellent financial advice to the New South Wales Government. I thank Gilbert and Tobin for their equally excellent legal advice in particular Tony Tobin, Mark Goldsmith, James Lewis, Elizabeth Grinston and Shirley Logan. I thank Ken Fowlie of Slater and Gordon, who very capably advised Greg Combet and Bernie Banton.

Above all, I pay tribute to the victims' groups and the union movement and in particular two extraordinary Australians Bernie Banton and Greg Combet. They never wavered even when James Hardie seemed to have made good its escape.

With today's agreement the last significant hurdle to the implementation of these arrangements is being overcome and the passage of this bill will fulfil one of the conditions to commence the Final Funding Agreement. It has been a long and difficult journey. But we kept faith with the victims and together we have been able to right a monstrous wrong. This is a bill of the utmost importance and I thank the House for giving it the priority it deserves. The James Hardie victims have waited long enough and the time for justice has arrived. I commend this bill to the House.

The Hon. MICHAEL GALLACHER (Leader of the Opposition) [11.33 a.m.]: On behalf of the Opposition I speak to the James Hardie Former Subsidiaries (Winding up and Administration) Amendment (Trust Funds) Bill 2006. Those who have paid attention to the debate that has accompanied the progression of this matter through the courts and the public arena over a number of years will know that finally we are getting to a point where those long-suffering workers who have been afflicted with mesothelioma can see light at the end of the tunnel in their fight for a fair deal by way of compensation for their ordeals. This measure recognises the plight that has afflicted them for so many years.

It is important to recognise the role of government regarding this issue, and in particular the sterling performance of the Commonwealth Government in ensuring that this matter was brought to a head. Prime Minister John Howard and Treasurer Peter Costello have done an outstanding job in ensuring that this matter finally comes to fruition. It has been the Federal Government that has provided the financial imperatives to make the system operative. The Federal Government will lose millions of dollars of tax revenue. Prime Minister John Howard and Treasurer Peter Costello recognised that they needed to make those concessions to ensure afflicted workers are looked after. It is important that all members of this House recognise the leadership role of the Federal Government. It is worth recognising also that the New South Wales Government did play a role in this matter.

The Hon. Greg Pearce: They messed it up three or four times.

The Hon. MICHAEL GALLACHER: The Hon. Greg Pearce notes that the New South Wales Government made a mess of this matter three or four times. I do not think now is the time to rake over those old coals. It is important that we celebrate the resolution of the matter. Thank goodness the Federal Government intervened and ensured the tax measures are in place to make this measure work. Had it not been for the Federal Government, Prime Minister Howard and Treasurer Costello showing leadership, we could be going into 2007 with continuing uncertainty for the victims of this product.

It is important to put on record that, whilst the Federal Government will forgo millions of dollars in revenue that could have been used to provide much needed infrastructure and relief provided by the Federal 4518 LEGISLATIVE COUNCIL 22 November 2006

Government, the New South Wales Government, apart from indulging itself in hyperbole about what it has done, will spend not one cent in relation to this issue. I acknowledge that it has played a good supporting role, but at the end of the day it has fallen to the Federal Government to provide the glue to make this proposal happen.

I have acknowledged the contributions that others have made to this debate. This House, when Bernie Banton was in attendance, commended his leadership in representing affected workers and families. It is also important to place on record the congratulations of at least members on this side of the Chamber of James Hardie board members, and in particular Meredith Hellicar, who was not chair of the company when all of these compensation issues arose but has assumed the role of a responsible corporate citizen to ensure that the matter came to finality.

The Federal Government is doing its bit in forgoing income, and the board of James Hardie, with Meredith Hellicar at the helm, is ensuring that James Hardie is doing the right thing by ensuring funding is provided. The aim has been to bring this matter to finality as quickly as possible so that the families of deceased and surviving victims do not continue to suffer the frustrations that they have for far too long. I conclude by congratulating the Federal Government on its intervention and by recognising the State Government for its supporting role.

Reverend the Hon. FRED NILE [11.38 a.m.]: The Christian Democratic Party is very pleased to support the James Hardie Former Subsidiaries (Winding up and Administration) Amendment (Trust Funds) Bill 2006. As honourable members would know, I was one of the main members of this House constantly raising this issue to achieve justice for the victims of products produced by James Hardie. I, together with others honourable members, congratulate Bernie Banton, who continued to keep this issue before the public, which helped to maintain pressure on the James Hardie company and also, finally, on the Federal Government.

Even though various agreements were signed, a question mark remained over taxation. On 8 November this year the Australian Taxation Office issued a series of private binding rulings on an amended structure for the fund to achieve the same tax outcome as under the charity structure. Unfortunately, these rulings were very complex, which led to months of further discussion to clarify the Australian Taxation Office ruling. Finally the Prime Minister, the Hon. John Howard, and the Federal Treasurer, the Hon. Peter Costello, have given their support to the private binding rulings issued on 8 November this year, which will ensure that the fund will benefit future victims of asbestos-related diseases. Unfortunately, we know it can take up to 40 years for the disease to be identified in various individuals. We are very pleased that we are debating the bill, and we give it our full support.

Reverend the Hon. Dr GORDON MOYES [11.41 a.m.]: I support the Leader of the Christian Democratic Party on the James Hardie Former Subsidiaries (Winding up and Administration) Amendment (Trust Funds) Bill 2006. The main object of this bill is to amend the James Hardie Former Subsidiaries (Winding up and Administration) Act 2005 to provide that the special purpose fund [SPF] envisaged by the final funding agreement can be amended to allow income derived from funds in the SPF to be subject to a discretionary trust. It has been a long time coming, but sufferers of asbestos-related diseases have finally been served with justice. It is with much pleasure that I commend the bill to the House, which we hope will provide financial assistance to the thousands of persons across the State affected by asbestos-related diseases. However, we would not consider the bill in this House today if Bernie Banton had not resolved to see justice done for asbestos victims. I pay special homage to Bernie. I am thrilled that we have finally seen the light at the end of the tunnel for him and the many others whom he represents. He has sacrificed so much for this cause.

As honourable members would know, on 1 December 2005 the New South Wales Government and James Hardie companies entered into an agreement to secure funding for asbestos-related personal injury claims against liable entities of the James Hardie corporate group. Legislation was passed in this House to give effect to this agreement. I spoke to it at the time. However, the special purpose fund established under this agreement, though a designated charitable trust in New South Wales, was not considered a charitable trust by the Australian Taxation Office [ATO]. It is extremely difficult to change the Act and regulations governing the ATO: It cannot be done simply at the behest of the Treasurer or even the Prime Minister.

I had the privilege of sitting on a special committee under the chairmanship of Mr David Gonski, an outstanding leader in the New South Wales community, to seek ATO changes to tax matters. It was a long, protracted and extremely difficult procedure. After many negotiations, the ATO made a binding private ruling to the trustee of the special purpose fund, that the trustee will not be liable to pay income tax on its own income if 22 November 2006 LEGISLATIVE COUNCIL 4519

the income is subject to a discretionary trust of which the special purpose fund trustee is also the trustee. This was a major breakthrough indeed. Thus the bill confirms that the special purpose fund trust deed may be amended to establish a discretionary trust over income derived from the funds. This means that tax breaks on the billions set aside by James Hardie for asbestos victims finally have been implemented. The fund will now be able to provide care and compensation to the victims of James Hardie asbestos products. We certainly wish Meredith Hellicar and her board every success, because this works only if the company is successful.

The Hon. Dr Arthur Chesterfield-Evans: She should be in gaol!

Reverend the Hon. Dr GORDON MOYES: If the company is making a profit then those who have been injured in this way will be supported. I personally thank the Prime Minister for hearing Bernie Banton's plea back in July.

The Hon. Dr Arthur Chesterfield-Evans: Meredith Hellicar should be in gaol!

Reverend the Hon. Dr GORDON MOYES: We invited Bernie to speak on his plight for asbestos sufferers at our monthly Christian Focus on Society in July. Later that same day he was to meet with the Prime Minister. We publicly prayed with Bernie immediately prior to his meeting with the Prime Minister, and today is witness to the fact that those prayers were heard.

The DEPUTY-PRESIDENT (The Hon. Amanda Fazio): Order! People in the adviser's area will be quiet.

Reverend the Hon. Dr GORDON MOYES: As members of the Christian Democratic party we took the opportunity to use our contact with the Prime Minister and the Treasurer to seek justice for sufferers of asbestos-related diseases. We thank God that this has now been finalised.

The Hon. ROBERT BROWN [11.45 a.m.]: I support the James Hardie Former Subsidiaries (Winding up and Administration) Amendment (Trust Funds) Bill. A large number of members of the Shooters Party reside in the Illawarra and Newcastle areas. They were areas not only of heavy industry, but, generally speaking, heavy and hot industries that, together with shipbuilding, used tonnes and tonnes and tonnes of that filthy stuff. As I said in my inaugural speech, when I was a 16-year-old apprentice, just about 40 years ago—I hope that is not prophetic—we would throw balls at each other made of this stuff, then shake out our overalls the following morning in the apprentices change room. With the grace of God, perhaps I do not have mesothelioma or any asbestos-related disease. It is good to see someone like Bernie Banton standing up and fighting for the rights of people who have been dusted. I applaud the State Government, the Federal Government and even James Hardie. I acknowledge the interjection of the Hon. Dr Arthur Chesterfield-Evans on Reverend the Hon. Dr Gordon Moyes, but if there were no James Hardie there would be no money to pay for the damage it caused. Everyone is to be congratulated.

Ms LEE RHIANNON [11.47 a.m.]: Today Hardie's workers and their families are one step closer to justice and proper compensation. After six years of campaigning, James Hardie will finally be made to pay in excess of $4.5 billion into a fund to compensate current and future Australian victims of its asbestos products. We are debating the James Hardie Former Subsidiaries (Winding up and Administration) Amendment (Trust Funds) Bill because of the hard work of many organisations, many unions and many asbestos victims. The Greens congratulate all those involved in this long campaign, from the asbestos awareness groups, victims and their families led by Bernie Banton to the Australian Council of Trade Unions [ACTU] and especially Greg Combet; the Construction, Forestry, Mining and Energy Union; the Australia Metal Workers Union and other unions; to Barry Robson and members of the Asbestos Diseases Foundation, the Australian Plaintiff Lawyers Association, the New South Wales Government negotiating team and also those within the Australian Labor Party who have pushed for this result.

However, I remain concerned about the tax breaks, but it is a breakthrough. I know that the uncertainty of victims and their families waiting for an outcome has put many of them under too much pressure. This is one aspect of the history of our country that has been very ugly: it has shown the mean side of corporate Australia. The ACTU estimates that every third domestic dwelling built before 1982 contains asbestos, which reminds us how serious this issue is and why we need to have a fund to compensate victims well into the future.

Let me state for the record that it was revealed at the Jackson inquiry that from as early as the 1930s James Hardie had knowledge of the dangers of asbestos. For almost half a century, James Hardie knew of the 4520 LEGISLATIVE COUNCIL 22 November 2006

consequences but went ahead with business as usual. The company did nothing to protect workers. Other speakers who have participated in this debate have recounted stories that many of us have heard about and we have seen graphic footage of workers shaking out their clothes after working in asbestos dust that we know to have been so lethal. We know that the company knew how lethal asbestos dust was, but no warnings or directions were placed on Hardie fibro until 1978. The company continued to use asbestos in cement sheets until the mid-1980s.

Although it has been discussed previously, I emphasise the importance of stating on the record that at each point James Hardie knew how serious the health risk was. At every turn the company tried to dodge its responsibilities but the strength of the campaign held the corporate giant to account. It was a difficult campaign but people were vigilant and consequently we have this legislation before the House. That is due to the hard work of many people in the union movement and in the wider community. From 1937 the James Hardie group structured its operations so that the manufacture and supply of asbestos products was undertaken by subsidiary companies. Once the heat was on, from 1995 until 2000 James Hardie worked to strip assets from its subsidiary companies to dodge liability for the companies' years of dangerous conduct.

In 2001 James Hardie restructured once again and moved to the Netherlands—one of only two countries with which Australia does not have a treaty to enforce civil court judgments. That shows the extent to which at every turn James Hardie attempted to dodge its responsibilities. James Hardie's actions should go down in history as some of the most immoral actions in Australia's corporate record. This catastrophe needs to be discussed in detail. The lessons need to be learned and laws need to be put in place so that it can never recur. The legislation passed today should ensure that regular payments will be made over a minimum 40-year life of the amended final funding agreement. This is important because asbestos-caused diseases are far from over. Many asbestos-related diseases take more than 20 years to be detected. It is expected that 53,000 people will be affected by asbestos-related diseases by 2020.

It can only be described as disappointing that James Hardie continued to hold off paying compensation until it received a tax break. The Greens regard that also as immoral. The company caused the problem, knew about the problem, caused the injuries, stress, hardship and deaths, and is responsible. But now the company has moved a portion of that responsibility over to the public. The Greens just hope that this taxation deduction deal does not set a precedent for companies to obtain tax breaks when they are forced to compensate for dangerous practices. James Hardie originally wanted a special fund to be set up as a charity. A fund that is set up to compensate workers and victims is not a charity and should not be regarded as a charity. Compensation is not a donation that companies make out of the goodness of their hearts or that workers and victims have to ask for politely. It is a legal and moral right that companies must fulfil when they put profits above the health and safety of their workers.

This should not be seen as a precedent for companies to obtain tax breaks or to be rewarded for compensating workers who have been injured or killed owing to their gross negligence, which was the case with James Hardie. Today is a day of celebration for asbestos victims, unions and community members who have been involved in the campaign. After hard work and a victory, people certainly deserve to celebrate. After six years of struggle, the victims of James Hardie are one step closer to receiving some measure of justice. I reiterate my congratulations to all those who have been involved.

As this is one of the last debates in which I will participate during the Fifty-third Parliament, I wish Meredith Burgmann, Jan Burnswoods and John Ryan, who will not return to this House in 2007, all the best for their post-parliamentary life. Although we have had our disagreements, I acknowledge the contributions made by those three members to the work of this Parliament and many key social issues. Eight years ago the Greens supported Meredith Burgmann and voted for her to be the President of this House. I acknowledge that on the majority of occasions she has been fair and objective and has delivered her rulings with considerable clarity. I remember thinking when she first took the job as President that it was a shame, because she has ability. I sometimes feel that that ability is locked up when one takes on the role of President or Speaker. She would have demonstrated great ability as a Minister. I do not understand the internal workings of the Australian Labor Party. It was not to be.

When many of us think of Jan Burnswoods, we think of her expertise in editing reports for committees. She has an incredible knack of picking up all the problems. One wonders who will step into her shoes. But what we will remember Jan for was her work concerning the equal age of consent. There was certainly a wide campaign against that reform, but to her credit she brought that most important reform before this House. I think that Jan Burnswoods and Meredith Burgmann would agree with me when I say that they are not too keen on the 22 November 2006 LEGISLATIVE COUNCIL 4521

Greens. It is a shame the way that politics play out because obviously the Labor Left and the Greens have a great deal in common.

The Hon. Michael Costa: What a slander on the Left!

Ms LEE RHIANNON: I should have added "up to a point"! There are electoral pressures. I acknowledge the interjection of the Treasurer in defence of the Labor Left. Once again, the Labor Left must be embarrassed. I find it amusing that I am able to joke with Minister Della Bosca about the Popular Front, but when it comes to the Labor Left, the relationships are fraught with tension.

I will miss John Ryan a great deal. I think that John has been the most eloquent speaker we have had in this Parliament. I am not being rude to members because I include myself when I say that I do not think we have great speakers in this current Parliament, but John is eloquent, articulate and passionate about key issues. I congratulate him on the work he has done on issues concerning disabilities and home buyers as well as many other issues.

The Hon. John Della Bosca: You are right.

Ms LEE RHIANNON: I acknowledge the interjection because I really think that John has brought a great deal to this Parliament both in terms of delivery and content. The Liberal Party is the poorer for losing him. I wish the three members to whom I have referred all the best in their post-parliamentary life.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [11.56 a.m.]: It amazed me that asbestos companies happily went on, knowing the harm they had done, when occupational health information had been available basically since the 1930s. Thousands of people have died of asbestos-caused diseases and thousands more will die. Many of us are still at risk, whether we know it or not. As a child, I blew away the dust as my father cut the fibro to build the backyard sheds and I slid on a little surfboard type of sled down a pile of white stuff that had an unpleasant dusty smell and taste. To this day I do not know whether it was asbestos or not, so we all have been put at some risk by the totally immoral behaviour of James Hardie.

James Hardie followed the lead of the tobacco industry—which was that once a company knows that its product kills people, it simply denies it as long as is possible and then uses its supernormal profits to buy a large number of other companies. The tobacco industry split up into printing and packing divisions and junk food divisions and split into entities in different countries to make it harder for people to sue them. Tobacco companies denied all liability alleged in lawsuits and basically kept on fighting until the plaintiffs either went broke or died. The asbestos industry nurtured the tobacco industry model and followed suit. James Hardie split into different subsidiaries providing building products and registered the company in the Netherlands—a country that does not have a civil action extradition agreement with Australia—and almost got away with it.

Apart from some government pressure, what actually forced James Hardie to compensate were union bans, which looked as though they would spread internationally, and boycotting of James Hardie products, which also looked as though it would be applied internationally. James Hardie was pressured into paying compensation, and the pressure came from beyond Parliament. As I keep saying, we have to recognise that in an era of globalisation, parliaments are losing their sovereignty because they are tied to small areas of land. Even after James Hardie had been pressured, even after the company had agreed to do something and even after the Netherlands Government began to wonder about an extradition agreement that would render the company liable for the harm it had caused in Australia, the company was reluctant to pay compensation. Even then, James Hardie approached the Australian Taxation Office for a tax deduction and, goodness gracious, succeeded.

The extraordinary part of that is that for all the harm that James Hardie caused, the taxpayer will throw in tax deductibility to the extent of 33 per cent of the compensation that will be paid. If an individual kills one person, the individual goes to gaol. This Parliament spends its life racking up the penalties for that type of offence. An entity that kills thousands of people claims a 33 per cent tax deduction and everyone says what a fine person the corporate leader is. I note that Reverend the Hon. Dr Gordon Moyes commented what a good person Meredith Hellicar is. In my opinion, corporate officials should be held responsible for what they have done and should go to gaol.

Why should people who run corporations not be responsible for what they do when people from the wrong end of town are responsible for what they do? The bill cleans up the corporate entity structures at the State level in order to enable people such as Bernie Banton to get compensation. Congratulations to Bernie on 4522 LEGISLATIVE COUNCIL 22 November 2006

his extraordinary efforts, as he walks around carrying his oxygen cylinder, in fighting for himself and for people who have health problems caused by asbestos companies. It is sad that this bill is necessary. What we really need is a society that demands higher standards of behaviour than that exhibited by James Hardie. Further, we need higher standards of sanction on corporations that behave as James Hardie has behaved. The bill provides for the clean-up of corporate entities and enables asbestos sufferers to get their compensation, and as such is obviously a bill to be supported.

Pursuant to sessional orders business interrupted.

QUESTIONS WITHOUT NOTICE

______

REED GROUP LIQUIDATION AND THE ENTRANCE ROADWORKS

The Hon. MICHAEL GALLACHER: My question without notice is directed to the Minister for Roads. Is the Minister aware that the Reid Group has gone into voluntary liquidation, and will that impact on further works on The Entrance Road? Given that since 1995 the Government has promised to upgrade The Entrance Road and has failed to complete the job, what impact will the collapse of that business have on the completion of work that it was contracted to do?

The Hon. ERIC ROOZENDAAL: The Government has committed a massive 69 per cent increase in funding for roads on the Central Coast—a total of $73.1 million to be spent on upgrading and maintaining roads on the Central Coast in 2006-07. Of that amount $48.6 million has been committed for road development, $8 million for traffic management, $1 million for road safety initiatives and $15.5 million towards maintenance. An amount of $20 million has been allocated to upgrade The Entrance Road to four lanes at Erina and Wamberal. This includes $12 million towards widening The Entrance Road between Ocean View Drive and Tumbi Road, $8 million to complete widening between Terrigal Drive and Carlton Road, and $1.4 million to reconstruct The Entrance Road, Bateau Bay. In addition, $500,000 has been allocated for intersection improvements between Wyong Road and Coral Street, Long Jetty and $500,000 has been allocated to plan widening between Carlton Road and Ocean View Drive.

In addition, $22.6 million has been allocated towards safety improvements on the Pacific Highway, including $10 million to start stage one of the upgrade from Tuggerah to Wyong to a dual carriageway between Anzac and Mildon roads and $9 million to construct stage one of the Lisarow to the F3 upgrade, widening it from north of Dog Trap Road to the roundabout at Chittaway Road, including upgrading of the Dog Trap Road intersection, and $3 million for planning stage two of the upgrade from Lisarow to the F3, from Glen Road to Burns Road.

The Hon. Michael Gallacher: That has nothing to do with the question I asked about the Reid Group.

The Hon. ERIC ROOZENDAAL: It is important to elucidate the many projects that the Government is doing on the Central Coast. An amount of $500,000 has been allocated for planning stage three of the upgrade from Lisarow to the F3, and $100,000 for preliminary planning for upgrading Sparks Road between the Pacific Highway and the F3. On Avoca Drive, another import road, $5 million has been allocated to start widening Avoca Drive to four lanes between The Entrance Road and Sun Valley Road, and $500,000 has been allocated for the planning of the upgrade of Sun Valley Road to Bayside Drive. It can be seen that the Iemma Labor Government is substantially increasing funding for Central Coast roads as it upgrades the road network.

SYDNEY ROADS AND PUBLIC TRANSPORT

The Hon. KAYEE GRIFFIN: My question is addressed to the Minister for Roads. Will the Minister provide the House with further information on the Government's efforts to improve road and public transport efficiency in Sydney?

The Hon. ERIC ROOZENDAAL: I thank the honourable member for her ongoing interest in this important matter. The Iemma Labor Government is getting on with the job of improving traffic flow in and around Sydney and increasing public transport efficiency. Yesterday I provided the House with information regarding the Government's latest initiatives to upgrade Victoria Road and improve traffic flow on certain road corridors by addressing traffic hot spots. These initiatives are part of the Iemma Labor Government's 22 November 2006 LEGISLATIVE COUNCIL 4523

$660 million Urban Transport Statement—a package of new and accelerated programs to address Sydney's present and future transport needs. I am pleased to further advise the House that as part of this package the Government is allocating more than $20 million to support a suite of measures to get better traffic movement on central business district [CBD] streets under the enhanced CBD Bus Strategy.

It is anticipated that bus travel times in the Sydney CBD will be cut by up to 13 minutes, building on efforts already under way to improve CBD bus performance by reducing congestion and improving travel times. Key features of the Sydney CBD Bus Strategy include: the introduction of standardised bus lane operating hours on all current CBD bus lanes from 6.00 a.m. to 10.00 a.m. and 3.00 p.m. to 8.00 p.m.; a new mid-city interchange precinct around Town Hall, in the vicinity of the Queen Victoria Building and Park Street, including enhanced bus stop facilities on Park Street and York Street; a streamlined and more legible CBD bus network concentrating on George and Elizabeth streets, eventually removing buses from Castlereagh Street; a new bus layover facility on the apron of the Domain Car Park, reducing the layover of buses north of Park Street; the introduction of two-way bus lanes in Park Street between George and Elizabeth streets; the rationalisation of bus stops on George and Elizabeth streets to optimise bus flows; and new and extended bus lanes and bus lane hours in George, Liverpool, Elizabeth and Phillip streets.

A CBD working group, including the City of Sydney council and key stakeholders, will oversee the implementation of this important strategy. The Government has investigated a number of options, including light rail, for the CBD, and decided that the best results are achieved by improvements to the current bus network and traffic management. Light rail has all the constraints of heavy rail and none of the flexibility of buses. I am advised that existing light rail proposals would remove only 20 per cent of buses from the CBD and would require strict quarantining of both George and Castlereagh streets. That would likely have a negative impact on existing traffic and passenger movements into and within the CBD. Bus options can also be introduced at substantially less cost to taxpayers.

The Iemma Labor Government has also committed a further $100 million to fast track bus priority work on strategic bus corridors across Sydney. This comes on top of the $135 million already committed to improving strategic bus corridors and builds on our existing efforts to improve bus travel times and reliability, and encourage more public transport use. The Bus Priority Program will bring forward works on strategic corridors, including: dedicated red bus lanes on approaches to congested intersections; dedicated bus bypass lanes, such as those designated "Left Turn Only, Buses Excepted"; bus pre-emption signals; and the conversion of unrestricted lanes to transit and no-stopping lanes. The Iemma Labor Government is heading in the right direction to improve road and transport facilities in Sydney. The $660 million Urban Transport Statement is about getting on with the job of improving traffic flow and increasing public transport reliability.

FARM WATER ACCESS COMPENSATION

The Hon. DUNCAN GAY: My question without notice is directed to the Minister for Primary Industries. Given that the Government has constantly argued that when farmers are short of water they must go out into the market and buy it, why is that when the Government is itself short of water, as is the case this year in the Murray and Murrumbidgee rivers, the Minister thinks he can just take that water back from farmers without paying any compensation? Does the Minister have such low regard for farmers that he thinks he can just steal this resource from them when no other industry in New South Wales would accept such a decision? Will the Minister consider offering compensation to those irrigators that he has robbed?

The Hon. IAN MACDONALD: That is a misleading, erroneous and ridiculous question by the Deputy Leader of the Opposition. He knows quite well that there are obligations—

The Hon. Michael Gallacher: You said the same thing about my roads question.

The Hon. IAN MACDONALD: The Deputy Leader of the Opposition knows that under water-sharing plans there are obligations defined between the various parties that utilise water in the State.

The problem with the current circumstances—and I have tried to explain this to the Deputy Leader of the Opposition on several occasions—is that we have very low inflows into our dams in New South Wales, on the back now of the fifth year of drought. I note the views of the Treasurer relating to the drought.

[Interruption] 4524 LEGISLATIVE COUNCIL 22 November 2006

The plain fact of the matter is that we had to take some action to hold back water due to the very low volumes of water in our dams at the moment.

The Hon. Duncan Gay: But you did not instantly make that decision.

The Hon. IAN MACDONALD: The Deputy Leader of the Opposition referred in his question to theft.

The Hon. Duncan Gay: You are a criminal. You stole it!

The Hon. IAN MACDONALD: There is no water in the dams to steal. I said to irrigators that as soon as water is available, in other words, when we get one more normal sequence of inflows, we would restore their water allocations. We cannot leave water that is not there.

The Hon. Duncan Gay: Why did you sell it? You are a criminal!

The Hon. IAN MACDONALD: The Deputy Leader of the Opposition is making a nonsense of this issue. Has he read the comments of Dick Thompson over the past few days? He should read the words of Dick Thompson. He said in the papers that Snowy Hydro—

The Hon. Duncan Gay: You are a crook and a liar.

The PRESIDENT: Order!

The Hon. IAN MACDONALD: There is simply not enough water for these allocations. It is totally unfortunate that we have this drought. I cannot make it rain!

[Interruption]

Reverend the Hon. Fred Nile: Point of order: The Minister cannot make it rain but he can support the National Day of Prayer next Sunday to break the drought.

The PRESIDENT: Order! There is no point of order.

The Hon. IAN MACDONALD: I can certainly do that.

The Hon. Duncan Gay: Point of order: The Minister is misleading the House. Everyone knows that he is an agnostic.

The PRESIDENT: Order! There is no point of order.

The Hon. IAN MACDONALD: That does not mean to say that one does not cover every chance! I will be there with you on Sunday, Fred.

[Interruption]

Why should I calm down? The Deputy Leader of the Opposition is being offensive. His comments are very offensive. [Time expired.]

The Hon. DUNCAN GAY: I ask a supplementary question. Why did the Minister sell water that he did not have?

The Hon. IAN MACDONALD: The Deputy Leader of the Opposition would know that certain commitments were made at the commencement of the water year. At the beginning of the water year the department allocates water on what it calls minimum inflows.

The Hon. Duncan Gay: Answer the question! Every time you tell a lie you stutter, and you stutter a lot.

The Hon. IAN MACDONALD: I am trying to explain this to the Deputy Leader of the Opposition. I am talking about the minimum inflow sequence. When there is enough water in the dams the department 22 November 2006 LEGISLATIVE COUNCIL 4525

makes a number of allocations across the State. Unfortunately, we have a drought. We had the worst minimum inflow sequence in August, September and October—in fact, for the whole six months since April—of about 35 per cent. We looked at the inflow in the past two months and assessed this whole issue. We believe we should have got far more rain and everyone knows that we should have got far more rain. The decision was made on 15 October to wind back some of those allocations, but it could not be implemented because there was no water. We cannot send water down a river when there is no water.

The Hon. Duncan Gay: Why did you sell it? You sold something you did not have. You are a thief.

The Hon. IAN MACDONALD: We have a one in 100 year drought. We are doing the best we can in the circumstances; there is no question about that. I indicated to irrigators that currently we are assessing assistance measures. We have spent nearly $250 million on this drought. If the Federal Government gave New South Wales its $3 billion share of GST revenue this Government could more than double that amount.

BEACON HILL HIGH SCHOOL SITE

Ms SYLVIA HALE: I direct my question to the Treasurer. Why is Landcom, of which the Treasurer is a shareholder Minister, proposing to demolish the solidly built Beacon Hill High School and dispose of that public land? Given that there are increasing numbers of young children and a shortage of public land and facilities in the area, has the Government considered alternative public uses for the facility? Will the State Government place an immediate moratorium on the Beacon Hill High School site and, as a matter of urgency, meet with representatives of the community, including parents, who will be affected by the permanent loss of the school?

The Hon. MICHAEL COSTA: The honourable member ought to know, or she does know, that this question should be directed to the correct portfolio Minister—the Minister for Education and Training—who has made a number of statements relating to Beacon Hill High School. Landcom's involvement came after the decision had been made. Landcom, appropriately, is doing what it is best qualified to do.

MAJOR INFECTIOUS DISEASE OUTBREAKS RESPONSE READINESS

The Hon. CHRISTINE ROBERTSON: I address my question without notice to the Minister for Health. What is the latest information on the readiness of NSW Health to respond to major infectious disease outbreaks in light of the release today of the report of the Auditor-General on the issue?

The Hon. JOHN HATZISTERGOS: In April 2006 the Audit Office of New South Wales commenced a performance audit of the readiness of New South Wales to respond to major outbreaks of infectious diseases. The final report, which is entitled "Major Infectious Disease Outbreaks: Readiness to Respond—NSW Health" was released today. It is most timely in a climate of global concern regarding the threat of bio-terrorism, the emergence of the H5N1 strain of avian influenza, and severe acute respiratory syndrome, otherwise known as SARS. The report of the Audit Office acknowledges that preparing for such outbreaks is a major task.

It also acknowledges that NSW Health has demonstrated a strong commitment in preparing the New South Wales public health system for these emergencies by undertaking many planning and preparedness initiatives. These initiatives include: the development of plans for responding to major infectious diseases; the creation of a dedicated New South Wales web site on influenza pandemic preparedness; the development of innovative surveillance systems for early detection of infectious diseases; the development of systems to monitor and track critical health resources during an emergency; strategies to deploy items effectively from the State and national medical stockpile; successful involvement in two statewide and two nationwide infectious disease emergency simulation exercises; conducting statewide workshops on planning for major infectious diseases; the development of NetEpi, a web-based outbreak reporting tool; the establishment of systems for communication with medical practitioners; and the development of plans to respond to the surging demand for diagnostic tests and laboratory personnel. The report of the Audit Office states:

The public health system is well organised to respond to an emergency incident ... with a clearly defined and control structure ... in place for health emergencies.

The report notes that we must "balance the cost of over-preparedness and additional capacity that may never be used, against the very significant consequences of under-preparation". Despite our accomplishments there is no room for complacency. The Audit Office makes a number of recommendations in the report. The 4526 LEGISLATIVE COUNCIL 22 November 2006

recommendations include: establishing a timeline to finalise all emergency and contingency plans; building on influenza pandemic plans to address the emergence of new infectious diseases; continuing to develop distinct plans with local health services areas to manage emergency staff needs, isolation facilities, intensive care units, hospital beds and medical supplies; and continuing to encourage and participate in national simulation exercises. These recommendations are accompanied by a detailed response from NSW Health that describes how we intend to implement the recommendations.

Although this performance audit focused on the public health sector's readiness for a major infectious disease outbreak, it must be said that Health is not alone in this endeavour. Preparing for, and responding to, these types of emergencies must be done within a whole-of-government framework. For this reason, the Premier established the New South Wales Pandemic Taskforce in late 2005 to provide oversight of this process and produce a New South Wales whole-of-government pandemic plan. The task force comprises more than 20 State government agencies, and a number of working groups have been established to refine plans around key pandemic planning areas.

Health services cannot be separated from critical infrastructure in responding to an influenza pandemic. For example, the proper functioning of hospitals depends upon continuing supplies of water and electricity, waste collection, sewage disposal and the continued functioning of telephone and other communications services. Planning within a whole-of-government framework will ensure that due consideration is given to the crucial importance of maintaining these services during a pandemic. The role of the health sector is to continue to ensure that these non-health issues are included in disaster contingency plans for health facilities and that these contingency plans are formulated within the performance management framework advocated in the Audit Office report.

GREY NURSE SHARK SURVEYS

The Hon. JON JENKINS: My question is directed to the Minister for Primary Industries. The Minister is aware that a grey nurse shark study was carried out in June 2003, from which came the famous finding that only 500 grey nurse sharks remain in the wild. The Minister will also be aware that a second study was carried out in August 2003. When did the Minister first become aware that the second study was conducted? Did the Minister direct or authorise that the second study be expunged from all scientific and public documentation issued by NSW Fisheries? Did the Minister direct or authorise that records, documents or any mention of the second study be withheld from Parliament in response to the numerous calls for papers regarding grey nurse sharks? If the Minister did not give this authorisation or direction, who did?

The Hon. IAN MACDONALD: I am aware that a study was done earlier that year. It was a full study conducted in co-operation with the diving fraternity in New South Wales. The information I have is that a second attempt was made in August but, if I recall correctly, there were weather problems at a number of sites and only part of the survey was undertaken. That is my understanding. I became aware of the second survey— which was not completed according to our scientists—after the Hon. Jon Jenkins raised questions in the House. I certainly have not asked for anything to be expunged from the record. I have asked the Hon. Jon Jenkins on numerous occasions to give me any evidence he has. I am still waiting for that evidence, which I hope to get at sometime in the future. I have seen quite an amount of material in relation to the survey. The view presented to me was that the second attempt was very limited and that no scientifically credible conclusions could be drawn from it. That is the situation, as I understand it. If the Hon. Jon Jenkins has further information in relation to this matter I would be glad to look at it and return to him with any responses that NSW Fisheries supplies to me.

The Hon. JON JENKINS: I ask a supplementary question. Will the Minister for Primary Industries undertake to investigate why this information was withheld from Parliament?

The Hon. IAN MACDONALD: I do not believe, on the information I have, that that was the process. The view of the scientific group within NSW Fisheries is that the survey was not complete.

The Hon. Melinda Pavey: Can you just give it to us anyway?

The Hon. IAN MACDONALD: I am quite happy to release that information at any time.

The Hon. Duncan Gay: Today?

The Hon. IAN MACDONALD: Yes, I am quite happy to release it today—it is no big deal—together with the information that I have received in relation to it. But I have not received the information upon which the Hon. Jon Jenkins has based his questions. 22 November 2006 LEGISLATIVE COUNCIL 4527

The Hon. Jon Jenkins: Why did they withhold that information from Parliament?

The Hon. IAN MACDONALD: I am not aware that they have withheld it from anyone in particular. The view of NSW Fisheries is that it was an incomplete survey that covered only a few of the sites. If my memory serves me correctly, 47 sites were selected for the original survey. Those sites were studied and the figures were calculated on that basis. My understanding, and the advice that I have received, is that only about nine sites were studied in the second survey. So the view was that the survey results were incomplete.

PARRAMATTA CHILDREN'S COURT CRIMINAL JURISDICTION CENTRALISATION

The Hon. CATHERINE CUSACK: My question is directed to the Minister for Justice, and Minister for Juvenile Justice. Was the Minister consulted by the Attorney General prior to the decision to centralise the bulk of juvenile criminal cases at Parramatta Children's Court? How many juveniles charged with serious property, theft and assault offences will be funnelled into Parramatta by this policy? What measures is the Government taking to ensure that shopkeepers and their customers and other owners of property situated along the one-kilometre route between Parramatta station and the Children's Court are not affected adversely by the influx of alleged offenders?

The Hon. TONY KELLY: Obviously the question requires a detailed response so I will take it on notice and provide an answer to the Hon. Catherine Cusack.

UNPAID WORK TRIALS

The Hon. PENNY SHARPE: My question is addressed to the Minister for Industrial Relations. What is the Government doing to help people who take up work over the holiday period know more about their rights and entitlements?

The Hon. JOHN DELLA BOSCA: People who take on work during the holiday period need to be wary of employers offering so-called "unpaid work trials". As a result of WorkChoices there is expected to be a spike in the number of unpaid trials this holiday season. Many young people finishing school for the year will choose to take on full-time or part-time work.

The Hon. Duncan Gay: Do I see a line of television ads about this?

The Hon. JOHN DELLA BOSCA: Is the Deputy Leader of the Opposition suggesting that we should do that? The Government should put him on as a communications consultant. Many young people will be entering the workforce for the first time and they need to be aware of their rights and entitlements. Under the fair and effective industrial relations system in New South Wales, workers can get help to recover unpaid wages. But under WorkChoices this is far more difficult. Each year the New South Wales Office of Industrial Relations helps young people with complaints about unpaid work trials. Those assisted this year included a Hurstville construction worker who had $322 recovered for five days work, a Sutherland waitress who had $157 recovered for nine hours work, a Sydney salesperson who had $92 recovered for one day's work, and a Lismore kitchen hand who had $85 recovered for five hours work.

Under the New South Wales system, employers must pay staff for all useful work performed, including work performed during a trial. Those who engage workers on an unpaid trial basis can be prosecuted. But under WorkChoices, employers can request young people to waive their seven-day consideration period and sign an Australian workplace agreement on the spot, making them vulnerable targets for the unscrupulous. A 2005 survey of young people conducted by the New South Wales Office of Industrial Relations found that more than 10 per cent had worked an unpaid trial at the start of their current job. Those who took part in an unpaid work trial were more likely to have had other bad experiences in the workplace, such as being expected to work unpaid overtime, being bullied or being forced to work in dangerous jobs.

It is more important than ever for all workers to know their rights before entering into a work contract, but this is especially so for young people. The New South Wales industrial relations system provides an awards safety net. It is backed by an active statewide inspectorate that ensures workers get their correct entitlements and employers can count on a level playing field. Importantly, new laws passed by the Iemma Government earlier this month will protect workers under 18 years of age from the ravages of WorkChoices. The laws ensure that they have the safety net of their wages and conditions maintained to at least the level provided by New South 4528 LEGISLATIVE COUNCIL 22 November 2006

Wales awards and legislation. The Iemma Government's commitment to helping the most vulnerable in the workplace is in stark contrast to that of the Opposition under Mr Debnam.

If elected next year Mr Debnam has pledged to give up the one million workers in this State who are currently protected by the fair and balanced New South Wales system. This means that all New South Wales families stand to be exploited by WorkChoices and have their wages, entitlements and lifestyles stripped away. The Iemma Labor Government is the only thing standing between Mr Howard and Mr Debnam and further attacks on hardworking New South Wales families. People who are being subject to unpaid work trials or who want more information about workplace conditions and entitlements can call the Office of Industrial Relations on 131628 or go to www.fairgo.nsw.gov.au for help.

DR SUMAN SOOD ILLEGAL ABORTION CONVICTION

Reverend the Hon. Dr GORDON MOYES: My question is directed to the Minister for Commerce, representing the Attorney General. Is the Minister aware that the banned abortion doctor Suman Sood has avoided a prison sentence for the first illegal abortion prosecuted in New South Wales in more than 25 years? Is the Minister aware that Dr Sood received a mere two-year good behaviour bond? Is the Minister also aware that the relevant judge considered that Dr Sood's offence was in the "lower level of seriousness" and thus there is a high likelihood that Dr Sood's sentence will not act as a deterrent to other abortion doctors? Will the Minister indicate whether any measures will be taken to redress the manifestly inadequate sentence handed down to this convicted abortionist, who caused the death of a child?

The Hon. JOHN DELLA BOSCA: I advise the honourable member that it is my understanding that a number of matters are being currently considered by the Attorney General. I will get details of those as promptly as possible and relay them to him and to the House.

MURRUMBIDGEE IRRIGATION LIMITED TOWN WATER SUPPLIES

The Hon. MELINDA PAVEY: My question is directed to the Minister for Primary Industries. Is the Minister aware that the towns of Finley, Berrigan, Wakool and Bunaloo all rely on Murray irrigation channels for their water supplies? Is the Minister further aware that Murray Irrigation Limited will be forced to close its irrigation supply system on 1 December 2006 because of a lack of water supply? What assistance is the Minister giving to Murray Irrigation Limited to secure town water supplies to Finley, Berrigan, Wakool and Bunaloo?

The Hon. IAN MACDONALD: The member has asked a good question. She is being responsible and it seems she is on the topic rather than jumping up and down, like her leader—

The Hon. John Della Bosca: She is obviously bucking for a promotion!

The Hon. IAN MACDONALD: Is that it? Well then, there is method in her madness. The Murray valley, along with many other southern inland valleys, is now experiencing extreme drought conditions. The inflows in the past five years from July 2001 to June 2006 and for the seven months to August are the lowest on record, and that is something that has escaped the mind of her leader. In fact, it is the same also with the Darling River. On 15 October I announced that the Government was unable to deliver the announced allocations for the Murray valley and, as a result, usage from all high security and general security licences would be restricted to 80 per cent. I made very clear that water would be recredited to accounts at the first opportunity. This unfortunate action is unprecedented in the Murray valley as a result of the catastrophic—

The Hon. Duncan Gay: What are you going to do?

The Hon. IAN MACDONALD: I will get there. I have four minutes to answer the question.

The Hon. Michael Costa: And you may be asked a supplementary question.

The Hon. IAN MACDONALD: Yes, because she is going so well she may ask a supplementary question, and quite clearly she will want me to elucidate. I am also advised that inter-valley trade from the Murrumbidgee into the Murray upstream of the Murrumbidgee junction will also be suspended. The Government had to revise that position on the back of further information received. The Government has contingency plans that it has been discussing with Murray Irrigation that will ensure supplies over the summer period for those towns. 22 November 2006 LEGISLATIVE COUNCIL 4529

BALMAIN HOSPITAL HEALTH SERVICES

The Hon. GREG DONNELLY: My question is addressed to the Minister for Health. What is the latest information on health services for older people at Balmain Hospital?

The Hon. JOHN HATZISTERGOS: This morning I had the pleasure of attending Balmain Hospital. The purpose of my visit was to see two innovative health services that are improving the quality of life for older people in Balmain and across the inner west. These programs have been developed at a cost of $1.173 million and are directed towards achieving a number of priorities set down in the New South Wales State Plan. They are: priority S1, improved access to quality health care; priority S2, improve survival rates and quality of life for people with potentially fatal or chronic illness through improvements in health care; priority S3, improved health through reduced obesity, smoking, illicit drug use and risk drinking; and priority F5, reduced avoidable hospital admissions.

The first program I visited was the Strength Training and Rehabilitation Outreach Needs Clinic, otherwise known as the STRONG clinic. The STRONG clinic has recently expanded into newly renovated premises, which I officially opened this morning. Staffed by dedicated exercise physiologists and nurses the facilities in the newly renovated, purpose built, gymnasium include 30 new state-of-the-art weight training and aerobic machines. Between 150 to 200 people a week train at the gymnasium, which integrates exercise as a treatment into mainstream medicine for older patients. Over six months, results of STRONG clinic clients show a 30 to 50 per cent increase in strength, which is maintained for years. This is matched by a measurable improvement in their quality of life, with a 30 to 50 per cent improvement in rates of sleep, endurance, balance and function with a corresponding fall in depression. I am always pleased to see preventive health programs such as this one that use early intervention to help older people to stay healthy, strong and independent, to give them better quality of life and to help them stay out of hospital.

I then visited the new Transitional Aged Care Program at Balmain Hospital. The program is providing more beds and community care for older people to rehabilitate them after a hospital stay so they can stay in their own homes and avoid residential nursing care. The new 14-bed Transitional Aged Care Unit is set up much like somebody's home, with a living room environment, a dining area, facilities for clients to prepare snacks and privacy for personal care and bathing. It combines occupational therapy, physiotherapy, care and support for older people after their acute and subacute care.

The program is designed to help elderly people return to health, regain life skills and care for themselves after a stay in hospital. It also adds to a 35-place community care program, which commenced in June 2006. The program is an innovative approach to the care of older people that can prevent admission to permanent residential care. Outcomes show that more than 40 per cent of people who join a program like this after being discharged from hospital are able to return home, where they choose to be. It is great to see so many of these older people getting the support they need, improving their quality of life and helping them regain their independence so they can return home. Finally, I pay tribute to all of the dedicated staff involved in providing vital health services such as these, including general manager Ann Kelly, Associate Professor Nalin Singh, who is in charge of the STRONG clinic, and Dr John Cullen, who is responsible for the Transitional Aged Care Program, as well as all of their enthusiastic and hardworking staff.

INTERNET PORNOGRAPHY

Reverend the Hon. FRED NILE: My question is addressed to the Minister for Transport, representing the Minister for Police. Has the former Professor of Child Development, Dr Freda Briggs of the University of South Australia, stated that there are more than 100,000 child pornography web sites on the Internet? Has she also claimed that one in three girls and one in seven boys experience sexual abuse by the age of 16 years? Have 90 per cent of 8 to 16 year-old children viewed pornography on line? Are adult paedophiles using Internet chat rooms to solicit unsuspecting children? What priorities has NSW Police given to this serious issue that affects New South Wales children? How many charges have been laid by the police for Internet crime in the past 12 months, especially for the seduction of children by adult paedophiles?

The Hon. ERIC ROOZENDAAL: I thank the honourable member for his question on this important matter. It is a detailed question and I will seek an appropriate response from the relevant Minister. 4530 LEGISLATIVE COUNCIL 22 November 2006

EMERGENCY CARE TASKFORCE

The Hon. MATTHEW MASON-COX: My question is directed to the Minister for Health. Is the Minister aware that senior specialists resigned from his Emergency Care Taskforce last Friday, warning that not one emergency department in New South Wales met staffing requirements, predicting that doctors would leave the system and that there would be an unsafe level of care? How many other doctors on the Minister's expert advisory committees are so disenchanted that they are about to walk out?

The Hon. JOHN HATZISTERGOS: It is good to see that the Hon. Matthew Mason-Cox is interested in supporting unionists. That is unusual for honourable members on the other side, but we like to see it. NSW Health and the Australian Salaried Medical Officers Federation have been in negotiation since April when the Industrial Relations Commission awarded a work-value salary increase to staff specialists of 14 per cent backdated to 1 July 2005. This increase is in addition to increases of 3 per cent in July 2004, 3 per cent in July 2005, 3 per cent on 1 July 2006 and 3 per cent in July 2007. The Industrial Relations Commission also increased managerial allowances by between $15,000 and $26,000.

The Hon. Robyn Parker: What about the hours they have to work—

The Hon. JOHN HATZISTERGOS: The Hon. Robyn Parker should listen to this. The substantial and warranted increases to entitlements and the clearer provisions of the new award have also provided the opportunity to roster emergency physicians to work at locations of greatest need, to have emergency physicians work clinical hours at times of greatest need, and to better plan and align non-clinical duties with the provision of face-to-face clinical services. Implementing these new award provisions has meant that some existing work practices will need to change in order to provide greater clinical coverage. In other words, there was more remuneration in return for additional clinical coverage.

The Hon. Robyn Parker is often going on about clinical coverage in hospitals. This award was about giving them additional remuneration in return for providing additional clinical coverage. I am surprised that the honourable member is so offended by the concept. Emergency physicians are the only specialty covered by the new shift work provisions, which include new penalty rates for evening, weekend and public holiday work— conditions not provided before. The Department of Health proposed that emergency physicians carry out face-to-face clinical work on at least four full shifts each week to maximise clinical time, whilst leaving adequate time, which is mutually agreed, for non-clinical duties, research and training of new physicians.

The Hon. Robyn Parker: Why aren't they happy then?

The Hon. JOHN HATZISTERGOS: That is a good question. I am advised that the Australian Salaried Medical Officers Federation and emergency physicians want to limit clinical duties to only three shifts per week. Discussions between the Department of Health and the Australian Salaried Medical Officers Federation about applying new award provisions to emergency physicians have been the subject of a number of private conferences before the Industrial Relations Commission. I met with the federation and emergency physicians on 7 November 2006 to hear their concerns. Following those discussions a further conference was held before the Industrial Relations Commission on 10 November 2006. I am advised that the Industrial Relations Commission has set out a framework for working through the issues and has specified that there should be no industrial action during this process. The department is committed to following the recommendations of the Industrial Relations Commission.

Emergency department performance continues to improve. In October our emergency departments achieved or exceeded four of the five national benchmark triage targets, with the other being very close to target. The emergency admission performance benchmark was exceeded, with 80 per cent of people requiring admission being admitted within eight hours. That excellent performance came despite the strong increase in emergency department activity over the past 12 months. Indeed, there has been a 6.5 per cent increase in emergency department attendances and an 8 per cent increase in admissions through emergency departments. NSW Health will be supported in its successful work to improve and sustain high levels of performance in the public hospital system, rather than being criticised when there are minor glitches in negotiating improvements where they are needed.

CROWN LAND RESERVE SYSTEM

The Hon. HENRY TSANG: My question is for the Minister for Lands. What is the Government doing to improve the Crown reserve system in New South Wales? 22 November 2006 LEGISLATIVE COUNCIL 4531

The Hon. TONY KELLY: As part of its plan for New South Wales's future, the Iemma Government is committed to improving sporting, recreational and tourist facilities on Crown lands for public use and enjoyment. A key objective of the State Plan was the aim to get more people using parks, sporting and recreational facilities. Part of this strategy is to deliver funding to ensure Crown reserves are maintained and improved for the public.

I am pleased to inform the House that the Iemma Government has provided $12.3 million this year to assist a variety of Crown reserves across New South Wales. Funding for the upkeep of these reserves is made available through the Public Reserves Management Fund. The funds are used for a range of purposes, including upgrading walking tracks, building new recreational amenities or accommodation, buying equipment and general maintenance.

Crown land reserves are a wonderful resource for the people of New South Wales. The Crown reserve system in New South Wales is an integral part of our way of life. From public reserves and caravan parks, to community halls and beaches, they provide the facilities, recreational opportunities, and the open space that many of us simply take for granted. Some of the highlights of this year's Public Reserves Management Fund budget include: $5.6 million for caravan park improvements; $4.3 million for improvements to State parks and iconic Crown reserves, to be allocated over four years; 1.25 million for reserves, local parks and walking tracks; and $502,000 for showground maintenance and improvements.

The Iemma Government focuses much of the grant money to our community reserve trusts, many of which are managed by volunteers. The Crown reserve system is greatly indebted to the tireless effort and dedication of over 3,500 volunteers managing some 769 reserves across the State. We are indeed very grateful to those who selflessly give up much of their time to perform this valuable community work—many of them for many, many years. The Iemma Government is backing their efforts with the support and funding they need to get on-ground works and improvements to the reserves under their control. In addition to the volunteers, the Iemma Government is working with councils across the State to improve high profile reserves such as the State's minor ports. This strategic, co-operative approach by the Iemma Government is also seen in recent initiatives to establish a number of regional Crown reserves in areas including Coffs Harbour, Shoalhaven, Albury, Port Stephens and the Tweed.

As part of its 10-year plan for the State, the Iemma Government continues to invest in our Crown reserve system. From supporting our volunteer trusts, to working with local councils, the Government is ensuring that the funding and resources are there to help improve and maintain our reserves across the State. Over the past decade millions of dollars have been directed to our trusts to get important on-ground works completed on Crown reserves. That has delivered a range of better facilities—from restored community halls and better kitchen facilities, to children's playgrounds and grandstands. The Iemma Government wants to build on that and continue to work with the community in maintaining and improving reserves. The greatest threat to that is the Opposition. With the Peter meter clicking over $25 billion, and counting, programs like the Public Reserves Management Fund would be stripped and diverted to pay for the Coalition's costly promises, if ever it came to office.

M5 EAST TUNNEL PORTAL EMISSIONS

Ms LEE RHIANNON: I direct my question to the Minister for Health. Considering the Roads and Traffic Authority [RTA] is pushing ahead and applying for approval to regularly emit portal emissions from the M5 East tunnel, despite significant concerns held by NSW Health and the Department of Environment and Conservation and the Department of Planning, will the Minister require that NSW Health put in a submission in response to the planning application so these concerns can be made public? Will the Minister require that NSW Health challenge the RTA's assessment of the health risks to local residents from particulate matter—such as PM10, PM2.5 and diesel emissions—in portal emissions set out in the RTA's planning application?

The Hon. Michael Costa: You would not know what that means.

Ms LEE RHIANNON: Yes, I do. It is the asbestos of the twenty-first century. You would not have a clue. Will the Minister use his powers under sections 5, 9 and 10 of the New South Wales Public Health Act to direct the RTA to desist from its plan to regularly release portal emissions from the tunnel on the basis the health of the public is likely to be endangered by the RTA's actions?

The Hon. JOHN HATZISTERGOS: I will take the question on notice. 4532 LEGISLATIVE COUNCIL 22 November 2006

PORT STEPHENS GREAT LAKES MARINE PARK SANCTUARY ZONES

The Hon. ROBYN PARKER: My question without notice is directed to the Minister for Natural Resources, Minister for Primary Industries, and Minister for Mineral Resources. Is the Minister aware of allegations raised by Lloyd Campbell from the Marine Parks Association that all mentions of a submission review time line with regard to the Port Stephens Great Lakes Marine Park have been removed from the New South Wales Marine Parks Authority web site? Will the Minister elaborate on claims he made on radio ABC North Coast that the new sanctuary zones have been "substantially changed"?

The Hon. IAN MACDONALD: Clearly, the time lines that were shown on the web site have not been followed strictly in relation to the Port Stephens marine park. There is no question about that. I made it clear, right from the beginning, that we would consider the submissions that have been presented to us. We received more than 2,400 submissions, some of which were more than a hundred pages thick. We have given the matter deep consideration since the closure date, 23 September 2006, to try to get it right—and we will get it right. In fact, I have had many discussions with stakeholders and we will get a great decision in relation to both marine parks. The decisions will be supportive of the productive capacity of the zones, both for recreational fishing and commercial purposes, as well as all of the other attendant industries that are in the area. In addition, we will ensure that fish stocks and habitats in those areas are protected for posterity, for future generations. We have been very clear about adopting this policy because we have the evidence that small safety zones can provide a very good base for protecting habitats and enhancing fish stocks. Very shortly the Cabinet will consider marine parks, and an appropriate announcement will be made at that time.

WINE INDUSTRY

The Hon. TONY CATANZARITI: My question is addressed to the Minister for Primary Industries. Will the Minister update the House on the State Government's efforts to promote the New South Wales wine industry and, as a result, enhance rural and regional economies?

Mr Ian Cohen: He's a big supporter of this matter.

The Hon. Duncan Gay: He's only beaten by Peter Black!

The Hon. IAN MACDONALD: I do not think I should be compared to the honourable member for Murray-Darling at all.

The Hon. Duncan Gay: No, but you're a close second.

The Hon. IAN MACDONALD: I do not think I will be seen in the near future drinking out of a cask as opposed to a glass. Despite the effects of the drought, during the last decade the New South Wales wine industry has experienced unprecedented expansion. Wine grape plantings have soared, winery numbers have grown substantially, and New South Wales wines are receiving much-deserved recognition in the form of wine show accolades. It may come as a surprise to many that during this serious drought our wine industry is enjoying something of a development and expansion purple patch. In fact, the area planted to wine grape vines has tripled in the last 10 years, and now totals nearly 40,000 hectares, despite five of the last 10 years being in drought. Those familiar with the New South Wales wine industry would be aware of its value to our resilient rural and regional communities. It is a $2 billion-a-year industry that supports 20,000 jobs. Nearly half a million bottles of wine leave Australian shores each day for overseas markets. Few people realise that we now export wine into 110 countries.

At home in 2005 more than one million domestic visitors enjoyed our wineries and spent more than $500 million in this State. However, the wine industry is not sitting idle and resting on its laurels; it is striving to improve on its achievements to date. The New South Wales Government is committed to ensuring that the wine industry continues to prosper, and that is why the State Government has joined forces with the New South Wales Wine Industry Association and News Limited to publish the New South Wales Fine Wines magazine, which promotes wines and boosts public awareness of our wineries and wine industry. I have invited many members to the tasting of our top 40 wines next Tuesday in Parliament House.

The Hon. Duncan Gay: That's only a morning tea for Blackie!

The Hon. IAN MACDONALD: I am sure the Deputy Leader of the Opposition will be striving to get there. The magazine was published in the Sunday Telegraph last weekend and featured more than 10 wine 22 November 2006 LEGISLATIVE COUNCIL 4533

regions from across New South Wales, as well as dozens of wineries. The aim was to introduce people from all walks of life to the New South Wales wine industry. The Sunday Telegraph reaches a staggering 1.8 million readers. Obviously, with this reach the magazine made a big impact. Apart from the readers, the real winners are the wine regions and the people they employ. The wine industry has strongly supported the State Government's initiative and acknowledges the Iemma Government's proactive approach to business development. For example, President of the Orange Region Vignerons Association, Justin Byrne, told the Central Western Daily on Tuesday 14 November that the magazine was a fantastic initiative. He said, "We really get a boost from these sorts of publications, and this one in particular has been a large effort by the Government." There is no doubt that the magazine will help lure tourists to our wine regions, and also have diners at Sydney restaurants asking for New South Wales instead of interstate labels.

The State Government is leading the way here, too, by providing only New South Wales wines on the Parliament House wine list. Isn't that fantastic! Although it had better get a riesling on the list fairly quickly. I encourage all members to enjoy these New South Wales wines specifically chosen for their enjoyment—in moderation of course. I point out that the State Government is also a significant contributor to the National Wine and Grape Industry Centre Winegrowing Futures Initiative, which is worth $30 million in research and development. We had a great hand in getting that money out of the Federal authorities. I am sure members of The Nationals appreciate all this.

DIEHARD CREEK CATCHMENT LOGGING AND WYTALIBA WATER SUPPLY

The Hon. Dr PETER WONG: My question without notice is directed to the Minister for Primary Industries. Why does the Minister allow logging to continue in Diehard Creek catchment and Mount Mitchell State Forest east of Glen Innes, despite Wytaliba rural community pleas that logging will destroy the community and the school's pure water supply? Why does he allow this destructive operation, when State Forest officers admit it is poor timber being cut to fulfil quotas? Will he listen to forest protesters, stop lobbying and protect the pristine water catchment during this severe drought?

The Hon. IAN MACDONALD: I have heard some nonsense from the Hon. Dr Peter Wong, but this is straight out of Mr Ian Cohen's repertoire.

The Hon. Duncan Gay: Every time you lie, you stutter.

The Hon. IAN MACDONALD: I am trying to get out a lot of information into four minutes. I have been interrupted by an amazing number of interjections, but I am enjoying it. Forests NSW has been involved in ongoing consultation with members of the Wytaliba community for a number of years. In the past month consultations about the current operations in Mount Mitchell State Forest have occurred. Consultations have focused on concerns about domestic water supply in the Hartleys Creek catchment as well as irrigation and stock water supply in the Diehard Creek catchment. I am advised that Hartleys Creek catchment has a mix of native forest and pine plantation. The State forest makes up 66 per cent of the total catchment, with the majority of the remaining area comprising Barool National Park. For the period 2001-05 no native forest harvesting took place in Hartleys Creek catchment. Up to 50 hectares of plantation harvesting will occur in the current program. Now we are getting to the heart of the problem. Only 1 per cent of the catchment is to be harvested in the current program. I am further advised that the current native forest harvesting in the Diehard Creek catchment will involve about 13 per cent of the catchment area.

For the period 2000-05 about 51 hectares of native forest have been harvested under integrated forests operations approval requirements. About 270 hectares of pine plantation have been harvested and re-established in Diehard Creek catchment with 36 hectares in the current year. I am advised that the regional manager of Forests NSW remains prepared to continue consultations with representatives of the community, as it has done repeatedly in the past. Harvesting operations in Mount Mitchell are managed under the environment protection licence issued to Forests NSW by the Department of Environment and Conservation. This licence protects water quality through measures such as drainage line buffers and appropriate drainage measures for roads, tracks and log dumps.

Mr Ian Cohen: What about the water supply?

The Hon. IAN MACDONALD: I remind honourable member that the Government is proud of its record on forests. Since 1995 more than 1.2 million hectares of former State forest has been added to the national park estate. Of the 1.2 million hectares, 543,000 hectares came from the State forests of the North Coast 4534 LEGISLATIVE COUNCIL 22 November 2006

alone. I am advised that across New South Wales only about 50 per cent of the native forest estate is actually available for harvesting. Due to environmental prescriptions, this area is reduced by a further 10 per cent. Honourable members should note that only a small percentage of that area is ever harvested in any one year.

[Interruption]

Mr Ian Cohen is trying to whip up an issue that would put further constraints on Forests NSW to meet its commitments under wood supply agreements that have lasted 20 years. That just goes to show that you can never give the Greens enough. Some 543,000 hectares from the north of the State have been included in the national park estate, yet Mr Ian Cohen wants more areas banned. Water is protected by the measures in place. The licence has been correctly issued, yet he continues to come in here whingeing for more.

TREASURY WEB SITE

The Hon. GREG PEARCE: In directing my question to the Treasurer, Minister for Infrastructure, and Minister for the Hunter, I note his attention to the contents of minor party web sites. I ask: Is he aware that the New South Wales Treasury web site, Working with Government, lists as awarded privately financed projects [PFPs] the police property portfolio and the Newcastle Community Health Centre? Was a contract signed with United Group Services Pty Limited for the management of the NSW Police property portfolio in March 2006, eight months ago? Is it a PFP? If so, why was the contract summary not tabled in Parliament in accordance with the Government's own contract disclosure guidelines? Is he aware that the Minister for Health has 'fessed up that the Newcastle Community Health Centre is not a PFP? Is his inability to make his own Treasury web site correct and to comply with his guidelines simply a matter of incompetence, or is it a concerted attempt to avoid scrutiny?

The Hon. Eric Roozendaal: This is the guy who was responsible for the airport tunnel!

The Hon. MICHAEL COSTA: I know he was responsible. I remember that he did the legals on that. Dennis Denuto is back!

The Hon. Eric Roozendaal: It was in the vibe!

The Hon. MICHAEL COSTA: It was in the vibe for sure when he did the legals on the airport tunnel. As the Hon. Greg Pearce ought to know, Government web sites are not party political web sites. The first point I make in response to his question is that they are Government web sites. I certainly do take an interest in political party web sites. Today I had a look at the Liberal Party web site, and it is full of inaccuracies. I note also that today the honourable member for Epping, Andrew Tink, said that there should not be a challenge to Peter Debnam. I think that is an extraordinary statement.

The Hon. Eddie Obeid: We do not agree with him.

The Hon. MICHAEL COSTA: I think he should stay. I think Labor's best opportunity at the next State election is to keep Peter Debnam as Leader of the Opposition. I look at political party web sites. In relation to the to PFPs, the portfolio Ministers have already answered those questions.

The Hon. JOHN DELLA BOSCA: I suggest that if members have further questions, they place them on notice.

DRINK SPIKING

The Hon. JOHN DELLA BOSCA: I provide an answer to a question without notice asked by Reverend the Hon. Dr Gordon Moyes on 19 October regarding drink spiking:

The Government is aware of the harmful practice of drink spiking, and has been actively addressing it for some time. Following the release of the Australian Institute of Criminology (AIC) report the Government created a multi-agency Drink Spiking Action Group. That action group is:

▪ improving police reporting and evidence gathering procedures in relation to drink spiking

22 November 2006 LEGISLATIVE COUNCIL 4535

▪ working with the liquor industry to educate hotel staff and patrons about drink spiking

▪ preparing information kits to educate the public—to enable potential victims to protect themselves, and to warn potential perpetrators that their behaviour is criminal, and they will be prosecuted.

In 2005, the national Standing Committee of Attorneys-General (SCAG) requested that the Model Criminal Law Officers' Committee (MCLOC, formerly MCCOC) review the criminal laws on drink spiking and bring forward options for a standardised national approach to drink spiking. The review includes development of standardised provisions to better cover cases where the spiking agent is alcohol. MCLOC is now finalising a report for consideration at the April 2007 SCAG meeting.

The NSW Government will seriously consider the recommendations made in the final MCLOC report, as part of an ongoing commitment to dealing with drink spiking in all its forms.

KINGSWAY FINANCIAL ASSESSMENT PTY LIMITED TENDER CONTRACT

The Hon. JOHN DELLA BOSCA: Yesterday the Hon. Greg Pearce asked me a question in relation to Kingsway Financial Assessment Services and about a tender in relation to that company. I had not heard of the company before the Hon. Greg Pearce asked the question yesterday. Kingsway Financial Assessment Services provides financial assessments under contract to the New South Wales Government. The primary objective of the service offered is to ensure that before a contractor is awarded a government contract, the contractor has the financial capacity to complete the work without becoming insolvent.

I am advised that Kingsway Financial Assessments won a competitive tender against 10 other providers in 2001. In September 2005, following another competitive selection process against four other providers, Kingsway was successful in winning the Government contract to provide financial assessment services for two years from 2005 to 2007, with the option of two one-year extensions. In the case of each tender, the process was undertaken under delegation from the State Contracts Control Board.

In case the Hon. Greg Pearce is considering embarking upon any further smear campaigns, I point out that no Minister was involved in the selection process. The tender panel comprised four senior officers from the Department of Commerce and an officer from agencies that were primary users of the previous contract⎯that is, the Department of Housing and the Roads and Traffic Authority. As part of the Department of Commerce's monitoring of its contractors' performance, the first customer satisfaction survey under the new contract has just been completed. Agencies that use the contract and had requested a minimum of three financial assessment reports were surveyed. The performance of Kingsway Financial Assessments Pty Limited was rated overall as very satisfactory.

I am advised that during 2005-06 no Department of Commerce pre-qualified construction contractors who had passed this assessment had failed financially. Further I am advised that the company provides similar services to the Victorian and Australian Capital Territory governments, the Australian Broadcasting Corporation and contractors to the Australian Department of Defence.

REED GROUP LIQUIDATION AND THE ENTRANCE ROADWORKS

The Hon. ERIC ROOZENDAAL: Earlier today the Leader of the Opposition, the Hon. Michael Gallacher, asked me a question in relation to the Reed Group. I am advised that the Roads and Traffic Authority [RTA] has a contract with the Reed Group to upgrade the Central Coast highway from Terrigal Drive to Carlton Road. A subcontractor to the Reed Group is understood to have entered into voluntary administration. The subcontractor was carrying out earthworks, drainage and road servicing work for the project. The RTA understands that the Reed Group is currently examining its arrangements to carry out the earthworks, drainage and road servicing components of the project.

I am advised that the RTA has not been informed of any changes to the timing of the project. Both the RTA and the Reed Group will continue to work together to ensure the project is completed as soon as is practicable. Currently work is continuing on the retaining walls and bridge as well as on access adjustments to private properties along this stretch of road. Work on stage one of Wamberal is not affected as this project is being constructed under separate contractual arrangements.

Questions without notice concluded. 4536 LEGISLATIVE COUNCIL 22 November 2006

DEER BILL

MOUNT PANORAMA MOTOR RACING AMENDMENT BILL

EDUCATION LEGISLATION AMENDMENT BILL

STATUTE LAW (MISCELLANEOUS PROVISIONS) BILL (NO. 2)

SYDNEY WATER MANAGEMENT AMENDMENT (WARRAGAMBA) BILL

CRIMES AND COURTS LEGISLATION AMENDMENT BILL

ABORIGINAL LAND RIGHTS AMENDMENT BILL

ADOPTION AMENDMENT BILL

Messages received from the Legislative Assembly agreeing to the Legislative Council's amendments.

NSW OMBUDSMAN

Report

The President tabled, pursuant to the Community Services (Complaints, Reviews and Monitoring) Act 1973 and the Ombudsman Act 1974, a report entitled "Report of Reviewable Deaths in 2005—Volume 1: Deaths of People with Disabilities in Care", dated November 2006.

Ordered to be printed.

[The President left the chair at 1.05 p.m. The House resumed at 2.30 p.m.]

JAMES HARDIE FORMER SUBSIDIARIES (WINDING UP AND ADMINISTRATION) AMENDMENT (TRUST FUNDS) BILL

Second Reading

Debate resumed from an earlier hour.

Mr IAN COHEN [2.30 p.m.]: I support the comments of Ms Lee Rhiannon, who led for the Greens on the James Hardie Former Subsidiaries (Winding up and Administration) Amendment (Trust Funds) Bill. It has been a six-year struggle, which must be very difficult for those people—

The Hon. Peter Primrose: It was 60 years.

Mr IAN COHEN: I thank the member for that correction. There has been a 60-year struggle by those affected by the terrible diseases that emanated from asbestos products and James Hardie's asbestos. Many members have acknowledged the role of Bernie Banton in a series of actions. Bernie has attended Parliament House a number of times and met with many members of Parliament, including me. Bernie encapsulates the bravery of the many thousands of victims of asbestos-related diseases: he has worked hard at a time in his life when it would be very understandable that he would step back and take things easy. Bernie has been seen in the media to be working hard to represent his fellow victims on this issue, a truly inspiring example to everyone. James Hardie has been dragged kicking and screaming through this situation.

As previous speakers have said, it is a sad state of affairs that James Hardie tried to move its head office to the Netherlands to avoid its financial and humanitarian responsibilities and it was rewarded with a tax deductibility. To be seen to have killed thousands of people and yet get a 33 per cent tax deduction is somewhat galling; nevertheless, a favourable result has been achieved. Many victims of asbestos-related diseases will receive just compensation. I join with the Greens and other members of this House in congratulating all of those who worked hard, including members of this Parliament, to reach this point of significant fruition. I hope that 22 November 2006 LEGISLATIVE COUNCIL 4537

the efforts undertaken here are reflected in other countries. Asbestos is still widely used in building industries throughout South-East Asia. Bans placed on the products are having some impact in Australia.

Unfortunately, that insidious product is still in our communities. Recently asbestos roofs on buildings in Sydney were treated. In South-East Asia it is still the building and roofing product of choice. Following my involvement in the tsunami in Sri Lanka, I wrote to the Minister for Foreign Affairs, Alexander Downer, about this matter. His reply assured me that no Australian aid would go to building projects that used asbestos. I hope that promise holds, and I hope that is a small step forward to stop the use of that insidious product. We know that the Bernie Bantons of this world have taken up this issue and not stepped back. I support the bill and hope it gives appropriate relief to the many sufferers of the effects of this insidious material.

The Hon. JOHN DELLA BOSCA (Minister for Finance, Minister for Commerce, Minister for Industrial Relations, Minister for Ageing, Minister for Disability Services, and Vice-President of the Executive Council) [2.36 p.m.], in reply: On behalf of the Government I thank all honourable members for their contributions to debate on the James Hardie Former Subsidiaries (Winding up and Administration) Amendment (Trust Funds) Bill. I thank the community activists for their hard work, including Bernie Banton, the people from the Asbestos Diseases Foundation of Australia, and a lot of good friends of mine who are involved in the various groups that campaigned for justice for the James Hardie victims. They recognised the role of organised labour, particularly some of the unions whose members are most affected by asbestos-related diseases. At the risk of exclusion, I will not name anyone in particular⎯they know who they are. Those activists have done a great job.

I will mention the contributions of a couple of people that resulted in the success of this bill. The contribution of the Leader of the Opposition about the tax arrangements and the role of the Commonwealth Government was colourful. I note the incredible commitment of the Premier in achieving this outcome, a huge commitment by him. I note also the commitment of the former Premier, Bob Carr. He was committed to this process from day one, against many people's advice that it might not be politically wise to introduce the Jackson commission and the related decisions that followed discussions between the Government and the then trust. I also acknowledge the fantastic work of the Attorney General to steer this legislation and the Jackson process. The Hon. Bob Debus has done great credit to his office and to Parliament in achieving this outcome. I thank also the public servants who were involved, including Ms Leigh Sanderson of the Cabinet Office. She did an incredible job, well and truly beyond the call of duty, in putting this package together. I commend the bill to the House.

Motion agreed to.

Bill read a second time and passed through remaining stages.

THREATENED SPECIES CONSERVATION AMENDMENT (BIODIVERSITY BANKING) BILL

In Committee

Consideration resumed from 21 November 2006.

The CHAIR: The Committee is resuming consideration of the Threatened Species Conservation Amendment (Biodiversity Banking) Bill. When we were previously considering this bill in the Committee of the Whole the Government amendments that were before us were not the most recent set that had been circulated and distributed. The Minister may withdraw the amendments he moved earlier and proceed with the correct amendments. Christian Democratic Party amendments Nos 1 and 2 will then not be in conflict with the Government amendments.

Government amendments Nos 1 to 5 withdrawn.

No. 1 Page 7, schedule 1 [6], proposed section 127A, lines 21and 22. Omit "the function of drafting guidelines for the operation of the scheme during a trial period". Insert instead "preparing a report that sets out suggested guidelines for the operation of the scheme during a trial period and examines options for applying the scheme to the clearing of native vegetation (within the meaning of the Native Vegetation Act 2003)".

No. 2 In CDP Amendment No. 1 (c-042) to be moved in Committee omit "the draft guidelines have" and insert instead "the report has".

4538 LEGISLATIVE COUNCIL 22 November 2006

No. 3 In CDP Amendment No. 1 (c-042) to be moved in Committee omit "those guidelines" and insert instead "the report of the joint committee".

No. 4 Page 7, schedule 1 [6], proposed section 127A, lines 33 and 34. Omit "guidelines referred to in subsection (3) (a) have not". Insert instead "report of the joint committee referred to in subsection (3) (a) has not".

No. 5 Page 7, schedule 1 [6], proposed section 127A. Insert after line 36:

(5) If a House of Parliament is not sitting when the joint committee seeks to provide its report to that House, the joint committee may instead present it to the Clerk of the House of Parliament concerned.

(6) Section 63C of the Public Finance and Audit Act 1983 applies in respect of the presentation of the report of the joint committee to a Clerk of a House of Parliament under this section in the same way as it applies to the presentation of documents in accordance with that Act.

Mr Ian Cohen: Madam Chair, I seek your indulgence. Because there was confusion last night I do not know whether I spoke in Committee to the Government's amendments. If I did not, I ask that I be given permission to put the Greens position on the record.

The CHAIR: The member may proceed.

Mr IAN COHEN [2.43 p.m.]: Government Amendment No. 1 seeks to downgrade the scope of the parliamentary committee from drafting guidelines for the operation of the scheme during the trial period to preparing a report that sets out suggested guidelines. This shows that the Government does not plan to take the committee seriously. Further, the amendment seeks to extend the scope of the trial period to examine options for applying the scheme to native vegetation. The Greens strongly oppose this potential extension of the biobanking scheme to the native vegetation regime. Government amendments Nos 2 to 5 are consequential on Government amendment No. 1. The Greens do not support these amendments.

Government amendments Nos 1 to 5 agreed to.

Christian Democratic Party amendments Nos 1 and 2 agreed to.

The Hon. RICK COLLESS [2.44 p.m.]: I move:

No. 2 Page 8, schedule 1 [6]. Insert after line 1:

127B Areas to which biobanking scheme applies

(1) The biobanking scheme applies in respect of the following areas only:

(a) the local government area of Cessnock City,

(b) the local government area of Lake Macquarie City,

(d) the local government area of Newcastle City,

(e) the local government area of Port Stephens.

(2) Despite anything to the contrary in this Part or in the Environmental Planning and Assessment Act 1979:

(a) a biobank site may be established only in an area to which the biobanking scheme applies, and

(b) a biobanking statement may be issued only in respect of development that is proposed to be carried out in an area to which the biobanking scheme applies, and

(c) an approval of a project under Part 3A of the Environmental Planning and Assessment Act 1979 may require the proponent to acquire and retire biodiversity credits only if the project is proposed to be carried out in an area to which the biobanking scheme applies.

For the benefit of honourable members, the original draft of amendment No. 2 included only three local government areas—Cessnock, Maitland and Newcastle. The second draft of amendment No. 2 also includes the local government areas of Lake Macquarie and Port Stephens. The Opposition is concerned about the complexity of this issue if it is automatically applied across the State. This amendment will restrict the application of this bill to the local government areas of Cessnock, Lake Macquarie, Maitland, Newcastle and Port Stephens. The Opposition originally proposed this amendment to exclude Lake Macquarie and Port Stephens.

Following discussions with other honourable members, it was obvious that it would have more support in this Chamber if those two local government areas were included in the amendment. That makes a lot of sense from the perspective of the trial period, as Lake Macquarie and Port Stephens contain large areas of high conservation value vegetation and high development pressures. I think it gives us an opportunity to establish how the biodiversity banking process will work on a smaller geographical area rather than initially applying it across the State. If there are further problems with it down the track, as I suspect there might be, it will be a 22 November 2006 LEGISLATIVE COUNCIL 4539

complex issue to attempt to untangle later. So we believe it makes a lot of sense to restrict it to that lower Hunter region where it will be of most benefit to the industry. I commend the amendment to the Committee.

Mr IAN COHEN [2.47 p.m.]: The Greens support this amendment, which proposes to limit the areas to which the biobanking scheme applies in the first two years to the local government areas of Cessnock city, Lake Macquarie city, Maitland city, Newcastle city and Port Stephens. The environment groups have given their support to this amendment. The lower Hunter region, which has a diverse environment and is a rapidly developing area, would provide adequate experience for this scheme. It would be a good way of focusing the trial. The Government made the point that if this amendment were adopted landowners in 99. 5 per cent of New South Wales and 147 of the State's 152 councils would be excluded from the biobanking scheme.

The Greens continue to oppose this scheme overall and believe that it is entirely appropriate to limit its impact in the trial period. That way, if it turns out to be a scheme that leads to a loss of biodiversity and to detrimental environmental outcomes, the damage will not be widespread across the State. It is unfortunate that the Hunter in a sense is to be the guinea pig for the trial. If the trial is to proceed it should not be spread across New South Wales. If it turned out to be disastrous it would be much easier to control the damage if the scheme were geographically limited. The Greens do not oppose this amendment but we hope that the Government treads carefully in relation to this issue.

The Greens have referred to many concerns about the biobanking bill. I acknowledge that this trial, which is quite a large-scale trial, is to be conducted in a controversial area involving major developments such as the Hunter Economic Zone, which has been the subject of a parliamentary inquiry. From the Greens perspective, that is a reasonable compromise and the best way in which to move forward. The Opposition is taking a reasoned and conservative approach to this scheme so that further down the track we do not have, as we had in recent years, disasters occurring, particularly in planning areas from which the Government finds it impossible to extricate itself. The Greens support this amendment.

The Hon. JOHN DELLA BOSCA (Minister for Finance, Minister for Commerce, Minister for Industrial Relations, Minister for Ageing, Minister for Disability Services, and Vice-President of the Executive Council) [2.49 p.m.]: The Government does not support Opposition amendment No. 2. The Environmental Liaison Office, on behalf of Greens groups, has indicated support for the amendment. Mr Ian Cohen has also indicated that the Greens in this place intend to support the proposition. He said explicitly that this is because the Greens want to restrict severely the operation of the biobanking scheme to a small number of local government areas.

But the amendment is opposed by many stakeholders, who, like the Government, want the two-year trial to be meaningful. As mentioned during the second reading debate, the local government areas named in the amendment—Newcastle, Lake Macquarie, Port Stephens, Cessnock and Maitland—cover a mere 0.5 per cent of the State. So, if this amendment were adopted, landowners in 99.5 per cent of New South Wales and 147 of the State's 152 councils would be excluded from the biobanking scheme. The Government believes that limiting the biobanking scheme to such a small area of the State would render the proposed two-year trial ineffective and make its results potentially meaningless. A successfully implemented trial of the biodiversity scheme will be based on the trading of credits so there must be enough interest and participation in both the demand and the supply sides of the market. This is unlikely to occur if the scheme operates in just 0.5 per cent of New South Wales.

As the bill stands, farmers across the State will be able to apply to have biobanking sites created on their land. This will give them a new opportunity to diversify their income by establishing a biobanking site and creating biodiversity credits that they can sell on the open market. The amendment, if adopted, will result in farmers in five local government areas only being able to access this scheme. In light of the implementation of the scheme's two-year trial, the Government believes the bill must apply across the State in order to give the scheme's participants the confidence they require and, more importantly, to allow for a full examination of the scheme's effectiveness.

The bill already includes adequate safeguards to ensure that any unanticipated problems, such as those to which Mr Ian Cohen referred, can be addressed both during and following the trial. These include safeguards such as ensuring that biobanking statements are conclusive in the case of development assessments so that development concerns will remain valid in all circumstances; making sure that landholders can terminate unwanted biobanking agreements when they have not sold their credits; ensuring that all offsets put in place by biobanking will certainly be more secure than those put in place under current arrangements; and making participation in the scheme entirely voluntary. The two-year trial will operate under the supervision of the joint 4540 LEGISLATIVE COUNCIL 22 November 2006

parliamentary committee and the ministerial reference group. During the implementation of the two-year trial of the scheme the Government believes the bill needs to apply across the State in order to give the scheme's participants the confidence they require and, more importantly, to allow for a full examination of the scheme's effectiveness. For this reason the Government opposes the Opposition's amendment.

Reverend the Hon. FRED NILE [2.52 p.m.]: The Threatened Species Conservation Amendment (Biodiversity Banking) Bill is very important. It is obviously experimental legislation involving a trial that a parliamentary committee will assess as to its effectiveness. Therefore, flexibility is important, and we should observe how the trial operates in different areas of the State. If the trial is restricted to a single area—namely, the Hunter Valley—it may undermine the purpose of the bill. The Christian Democratic Party does not support Opposition amendment No. 2.

The Hon. ROBERT BROWN [2.53 p.m.]: I can understand the Opposition's sense of caution. Reverend the Hon. Fred Nile described the bill as "experimental". I would have thought the trial would be better if it were conducted across a broad range of the State's various biospheres. I understand the Greens' opposition to the amendment because they are not that keen on the bill anyway. The trial must be tested fully. It seems to me that, subject to suitable controls—we would have to look into a crystal ball to see whether the Government would apply those controls—it would probably be a better trial, and would certainly give a better indication of how widely this experiment could be applied, if it were conducted over a broader range of areas across the State. If the trial is conducted in geographically adjacent areas—basically regions of the lower Hunter Valley—we may end up with too much of one particular type of biobanking application. Therefore, I am inclined not to support the amendment on the basis that we would have a better trial if it were conducted more widely.

Question—That the amendment be agreed to—put.

The Committee divided.

Ayes, 19

Mr Breen Mr Gay Mr Pearce Dr Chesterfield-Evans Ms Hale Ms Rhiannon Mr Clarke Mr Lynn Mr Ryan Mr Cohen Mr Mason-Cox Ms Cusack Mr Oldfield Tellers, Mr Gallacher Ms Parker Mr Colless Miss Gardiner Mrs Pavey Mr Harwin

Noes, 21

Mr Brown Mr Hatzistergos Mr Roozendaal Dr Burgmann Mr Jenkins Ms Sharpe Ms Burnswoods Mr Kelly Mr Tsang Mr Catanzariti Mr Macdonald Mr Costa Reverend Dr Moyes Mr Della Bosca Reverend Nile Tellers, Mr Donnelly Mr Obeid Mr Primrose Ms Griffin Mr Robertson Mr West

Question resolved in the negative.

Amendment negatived.

Mr IAN COHEN [3.02 p.m.], by leave: I move Greens amendments Nos 1 and 5 in globo:

No. 1 Page 8, schedule 1 [6], proposed section 127B, lines 32-39. Omit all words on those lines.

No. 5 Page 9, schedule 1 [6]. Insert after line 37:

127C Principles of biobanking assessment methodology

(1) When establishing the biobanking assessment methodology, the Minister is to have regard to the following principles:

(a) biodiversity values should be conserved across appropriate local and regional scales,

(b) all types of ecological communities should be adequately conserved, 22 November 2006 LEGISLATIVE COUNCIL 4541

(d) the regional conservation significance of a biobank site should be either equal to or greater than the regional conservation significance of the site on which a development is proposed,

(e) management actions should be deliverable and enforceable.

(2) The principles also apply in respect of any amendment to or replacement of the biobanking assessment methodology.

The Government moved amendments in the lower House that established principles of the biobanking assessment methodology. It is important that these principles are established because the methodology will be subject to amendment without parliamentary approval. Greens amendments Nos 1 and 5 augment the limited principles already in the bill. The proposed principles come from the Native Vegetation Act assessment methodology and are vital to ensuring biobanking is consistent with the native vegetation system.

The proposed principles are that biodiversity values should be conserved across appropriate local and regional scales, all types of ecological communities should be adequately conserved, any area conserved under the biobanking system must be viable in the long term, the regional conservation significance of a biobank site should be either equal to or greater than the regional conservation significance of the site on which a development is proposed and management action should be deliverable and enforceable. These principles are essential for biobanking to fulfil the promise to "maintain or improve biodiversity". I commend Greens amendments Nos 1 and 5 to the Committee.

The Hon. RICK COLLESS [3.04 p.m.]: The Opposition will not be supporting Greens amendments Nos 1 and 5 because it sees them as being far too proscriptive. There is a contradiction. The Minister said that landholders will be able to establish these biobanking sites, but most agricultural land of course is currently used for agriculture. If a landholder wanted to lock up a biobanking site—which I reiterate is mostly unlikely to happen—it will be agricultural land. Within a few years that land will revert to native vegetation very quickly if it is not managed. In that case a potential exists for those farmers to use that agricultural land as a biobanking site. Greens amendments Nos 1 and 5 essentially only look at locking up land with some sort ecological or biobanking benefit of regional conservation significance. Within a couple of years of land being locked up it will revert to a native vegetation state and would certainly have appropriate conservation significance. For those reasons, the Opposition believes it is too proscriptive, and the Opposition will not be supporting the amendments.

The Hon. JOHN DELLA BOSCA (Minister for Finance, Minister for Commerce, Minister for Industrial Relations, Minister for Ageing, Minister for Disability Services, and Vice-President of the Executive Council) [3.06 p.m.]: The Government is not prepared to support Greens amendments Nos 1 and 5. The proposed additional principles are unnecessary because the bill as currently drafted already sets out the general principles in proposed section 127C (1). While the Government has proposed it would be prepared to consider additional principles being added to the bill, Greens amendments Nos 1 and 5 are overly proscriptive.

Reverend the Hon. FRED NILE [3.06 p.m.]: The Christian Democratic Party does not support Greens amendments Nos 1 and 5. Native vegetation is a major sore point with farmers. We should make it clear that somehow native vegetation should be old growth native vegetation, and regrowth native vegetation should not be affected by the legislation. That is where all the controversy and heartache comes for farmers who are doing the right thing and then suddenly find the weight of the law on their shoulders. The Christian Democratic Party does not support these amendments.

Amendments negatived.

Mr IAN COHEN [3.07 p.m.], by leave: I move Greens amendments Nos 2, 3 and 4 in globo:

No. 2 Page 9, schedule 1 [6], proposed section 127B, line 15. Insert "in a Sydney growth centre" after "development".

No. 3 Page 9, schedule 1 [6], proposed section 127B, line 18. Insert "The value of the reduction must not exceed the value of the contribution." after "contribution.".

No. 4 Page 9, schedule 1 [6], proposed section 127B. Insert after line 37:

(11) In this section, a Sydney growth centre means a growth centre to which the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 applies.

These amendments will ensure that the relationship between environmental contributions and the reduction in biobanking credit purchase requirements, which is quite vague, is clarified to ensure that it will not be abused. Amendment No. 3 will add that the value of the reduction in credit requirement allowed following payment of 4542 LEGISLATIVE COUNCIL 22 November 2006

environmental contributions cannot exceed the value of that contribution. Amendment No. 4 will ensure that environmental contributions are only used to meet biobanking standards in Sydney growth centres. I commend Greens amendments Nos 2, 3 and 4 to the Committee.

The Hon. RICK COLLESS [3.08 p.m.]: The Opposition will also oppose Greens amendments Nos 2, 3 and 4 on the basis that they also are too proscriptive.

The Hon. JOHN DELLA BOSCA (Minister for Finance, Minister for Commerce, Minister for Industrial Relations, Minister for Ageing, Minister for Disability Services, and Vice-President of the Executive Council) [3.08 p.m.]: The Government does not support Greens amendments Nos 2, 3 and 4. The contribution scheme put in place across the State is in related provisions in the bill and should not be limited to growth centres.

Reverend the Hon. FRED NILE [3.08 p.m.]: The Christian Democratic Party does not support Greens amendments Nos 2, 3 and 4.

Amendments negatived.

Mr IAN COHEN [3.10 p.m.], by leave: I move Greens amendments Nos 6, 7 and 8 in globo:

No. 6 Page 11, schedule 1 [6], proposed section 127E, line 16. Insert "must contain the mandatory terms, and" after "agreement".

No.7 Page 11, schedule 1 [6], proposed section 127E, line 31. Insert "(in addition to the restrictions contained in the mandatory terms of the biobanking agreement)" after "site".

No. 8 Page 12, schedule 1 [6]. Insert after line 26:

127F Mandatory terms of biobanking agreements

For the purposes of section 127E, the mandatory terms of a biobanking agreement are terms that specifically prohibit the following activities being carried out on the biobank site:

(a) clearing of native vegetation (within the meaning of the Native Vegetation Act 2003),

(b) clearing of dead timber (standing or fallen),

(d) open cut mining,

(e) construction of new dwellings,

(f) grazing of livestock (except for the purposes of conservation management).

Given that the bill establishes a broad sketch of the operation of the biobanking scheme, it is important to set parameters to establish, without confusion, that activities that impact upon and damage biodiversity values cannot be permitted on biobanking sites. If this scheme is to work, as the Government claims it should work, there must be certain protection for the values harboured in an offset site. The amendments set out mandatory terms for biobanking agreement, ensuring that clearing of native vegetation, clearing of standing or fallen dead timber, forestry activities, open-cut mining, construction of new roads and new dwellings and grazing, except for conservation management, cannot be permitted on protected biobanking sites. These are reasonable asks. If activities such as those that I have listed above are not excluded from biobanking sites, that significantly undermines the entire scheme. I commend Greens amendments Nos 6, 7 and 8.

The Hon. RICK COLLESS [3.10 p.m.]: The Opposition will oppose the amendments.

The Hon. JOHN DELLA BOSCA (Minister for Finance, Minister for Commerce, Minister for Industrial Relations, Minister for Ageing, Minister for Disability Services, and Vice-President of the Executive Council) [3.11 p.m.]: The Government opposes the amendments. It is very important to deal with issues in relation to freestanding timber, as the amendments deal with, but the amendments as drafted would appear to rule out fire hazard reduction burning, and for that and other reasons the Government does not support the amendments.

Reverend the Hon. FRED NILE [3.11 p.m.]: The Christian Democratic Party does not support the Greens amendments.

Amendments negatived. 22 November 2006 LEGISLATIVE COUNCIL 4543

Mr IAN COHEN [3.11 p.m.]: I will not move Greens amendments 9 and 11 as circulated. While those amendments were superior to my amendment No. 10, I believe there is no support in the Chamber for them.

No. 6 Page 13, schedule 1 [6], proposed section 127F. Insert after line 13:

Note. Subsection (1) (e) applies in respect of any mining lease under the Mining Act 1992 that is granted over the land. This may include a mining lease granted over the subsoil of the land or over parts of the subsoil of the land.

No. 7 Page 15, schedule 1 [6], proposed section 127H. Insert after line 35:

Note. Subsection (2) (c) applies in respect of any mining lease under the Mining Act 1992 that is granted over the land. This may include a mining lease granted over the subsoil of the land or over parts of the subsoil of the land.

These amendments deal with the issue of subsurface mining leases. The amendments insert a note to clarify that the consent of holders of subsurface mining leases may also be obtained before a biobanking agreement is entered into in respect of the land the subject of the lease. This is only a technical amendment to clarify that a mining lease includes a subsurface lease.

The Hon. RICK COLLESS [3.12 p.m.]: The Opposition will not oppose the amendments. As the Minister pointed out, they are somewhat technical in nature and seek to reorganise the Environmental Planning and Assessment Act.

Mr IAN COHEN [3.12 p.m.]: Government amendments 6 and 7 come from lobbying by the Minerals Council. The amendments seek to facilitate the mining industry gaining access to biobank sites. The Greens are strongly opposed to the prospect of mining on biobank sites. This would clearly undermine the protection that would—and should—be offered such land. Whilst the Greens do not support these Government amendments, I think the amendments clarify the Government's focus through this bill, that is, to facilitate the activities of the mining industry, rather than the aim that the bill purports, that is, biobanking or protection of land.

Whilst we oppose these Government amendments, I think they send a clear message to the general community that the bill is orientated towards facilitation of industrial activity in these areas, rather than the priority purported by the bill, that is biobanking—I tend to call it biobashing. The amendments clearly support my argument. The amendments clearly show what side the Government is placing itself on, in what is a significant debate for future environmental protections. This is one of the measures that waters down those protections. As I stated last night when speaking on another matter, this is the trend of government. However, these amendments indicate a preference of the Government to listen to the Minerals Council of New South Wales, and they are not to be supported.

Amendments agreed to.

Progress reported from Committee and leave granted to sit again.

LIEUTENANT-GOVERNOR'S SPEECH: ADDRESS-IN-REPLY

Presentation

The House proceeded to Government House at 3.15 p.m., there to present to the Governor its Address-in-Reply to the Speech His Excellency the Lieutenant-Governor had been pleased to make to both Houses of Parliament on opening the session.

The House returned at 4.30 p.m.

The President reported that the Address-in-Reply to the Lieutenant-Governor's Speech had been presented, and that Her Excellency had been pleased to give thereto the following answer:

22 November 2006

President and Honourable Members of the Legislative Council,

It gives me much pleasure to receive your Address and to thank you for your expression of loyalty to Australia and the people of New South Wales.

4544 LEGISLATIVE COUNCIL 22 November 2006

I am also glad to have your assurance that earnest consideration will be given to the measures to be submitted to you.

I have every confidence that your labours will advance the general welfare and happiness of the people of this State.

MARIE BASHIR GOVERNOR

REPORTS OF THE INDEPENDENT LEGAL ARBITER

The Hon. GREG PEARCE [4.32 p.m.] I move:

1. That, for the remainder of the present session, where any document or documents returned to the House as a result of an order for papers under Standing Order 52 is referred to an independent legal arbiter for evaluation and report on the validity of a claim of privilege, and the report of the independent legal arbiter is lodged with the Clerk while the House is not sitting, the report is:

(a) on presentation and for all purposes deemed to have been laid before the House, and

(b) for all purposes deemed to be a document published by order or authority of the House.

2. That any document considered by the independent legal arbiter not to be privileged is authorised to be published by the Clerk by order or under the authority of the House.

3. That the tabling of the report of an independent legal arbiter and any documents considered not to be privileged be recorded in the minutes of proceedings of the House, when the House next sits.

The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [4.33 p.m.]: I move:

That the question be amended by inserting at the end:

4. Nothing in this resolution applies to an order for papers, on motion of Mr Cohen, agreed to by the House on 18 October 2006, and received by the Clerk on 1 November 2006.

The Hon. GREG PEARCE [4.33 p.m.]: I accept the amendment.

Amendment agreed to.

Motion as amended agreed to.

COMMITTEE ON THE HEALTH CARE COMPLAINTS COMMISSION

Report: Inquiry into Internal Complaint Handling in Private Health Practices

The Hon. Christine Robertson tabled, on behalf of the Chair, report No. 15/53, entitled "Inquiry into Internal Complaint Handling in Private Health Practices", dated November 2006.

Ordered to be printed.

The Hon. CHRISTINE ROBERTSON [4.34 p.m.]: I move:

That the House take note of the report.

Debate adjourned on motion by the Hon. Christine Robertson.

TABLING OF PAPERS

The Hon. Tony Kelly tabled the following papers:

Annual Reports (Departments) Act 1985—Reports for the year ended 30 June 2006:

Department of Juvenile Justice Department of Lands New South Wales Local Government Grants Commission

Ordered to be printed. 22 November 2006 LEGISLATIVE COUNCIL 4545

THREATENED SPECIES CONSERVATION AMENDMENT (BIODIVERSITY BANKING) BILL

In Committee

Consideration resumed from an earlier hour.

Mr IAN COHEN [4.34 p.m.]: I move:

No. 10 Page 21, schedule 1 [6], proposed section 127Q, lines 33-35. Omit all words on those lines. Insert instead:

by the public authority and that the development is required for an essential public purpose or for a purpose of special significance to the State.

This amendment will ensure that protected biobanking sites cannot be ruined by public authorities for any purpose. If a biobanking site has been protected in return for a development, the protection of that biobanking site into the future is paramount. As the bill currently stands, a public authority is allowed to clear or develop a biobanking site for any purpose, while a private landowner cannot clear or develop it. The Greens believe that public authorities should have to act in the same way as private landholders in safeguarding and protecting a biobanking site, yet we are willing to concede that there may be some circumstances when no alternatives are available and the development by the public authority is for an essential public purpose. For example, it might be needed for a rail line or some other important and recognised public infrastructure.

The Greens' amendment will still permit public authorities to develop a protected biobanking site, but only for an essential public purpose, or when a site is of special significance to the State. I understand that Opposition members are wise enough to support this amendment. They can see that a protected biobanking site should be developed only in rare and essential cases. Opposition members understand that public authorities should be accountable, particularly if a private landholder cannot develop a biobanking site under any circumstances. Disappointingly, I understand that the Government does not support this amendment. Perhaps it is not surprising that the Government likes to keep all its options open. The Government expects a developer to protect areas such as biobanking sites in return for development approval, but it does not require its own departments to justify the clearing of those protected biobanking sites.

The Greens believe that the benchmark for allowing a public authority to clear or develop a protected biobanking site should be that the development is for an essential public purpose rather than for any purpose. I believe the Greens amendment will ensure that this benchmark is used. I suggest to all honourable members that this is not an unreasonable amendment. I suggest to certain members on the crossbenches who were very quick to react to the Greens amendments that we recognise the right of State authorities to undertake developments that are deemed essential for public purposes, or developments that are of special significance to the State. As might be portrayed by some honourable members, the Greens are not shutting off that option as it applies to essential public infrastructure.

When the Roads and Traffic Authority decides on a particular route there is little legislative or judicial resistance to it. This amendment will retain the status quo. I hope that honourable members are not prejudiced and that they do not assume the Greens want to lock up these areas. Opposition members recognise that we are attempting to strike a balance so that areas that are given this status through the legislation are afforded the degree of protection they deserve and that is provided for in this biobanking legislation. I commend Greens amendment No. 10 to the Committee.

The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [4.38 p.m.]: The Government cannot support Greens amendment No. 10. This amendment would create unnecessary complexity because it would overlap with assessment requirements that are already operating under the Environmental Planning and Assessment Act 1979, including new part 3A. A duty requiring the Minister for the Environment to be satisfied that the development is unavoidable and that all alternatives have been considered crosses right across the top of the State's planning legislation and it is not appropriate. The role of the Minister for the Environment should be, and is, to focus on the potential impacts of biodiversity values at a biobanking site, rather than planning approvals.

The Hon. RICK COLLESS [4.39 p.m.]: As Mr Ian Cohen pointed out, Greens amendment No. 10 relates to public authorities. The Opposition does not believe more power should be concentrated in the hands of someone like Frank Ernest Sartor. The bill currently provides three threshold options or mutually exclusive options for the Minister consenting to a development by a public authority on a biobanking site. The 4546 LEGISLATIVE COUNCIL 22 November 2006

development can take place and the biodiversity values of the biobanking site can be destroyed if the development is required for an essential public purpose. It is clearly important that public infrastructure is built. However, as occurs when part of a national park is excised to build a new road, significantly more land is always reserved as an offset. When alienation of a biobanking site occurs there should be an offset for the loss of biodiversity values. The Opposition supports the amendment.

Question—That the amendment be agreed to—put.

The Committee divided.

Ayes, 19

Mr Breen Mr Gay Ms Rhiannon Dr Chesterfield-Evans Ms Hale Mr Ryan Mr Clarke Mr Lynn Dr Wong Mr Cohen Mr Mason-Cox Ms Cusack Mr Oldfield Tellers, Mr Gallacher Ms Parker Mr Colless Miss Gardiner Mr Pearce Mrs Pavey

Noes, 19

Mr Brown Ms Griffin Mr Roozendaal Dr Burgmann Mr Kelly Ms Sharpe Ms Burnswoods Mr Macdonald Mr Tsang Mr Catanzariti Reverend Dr Moyes Mr Costa Reverend Nile Tellers, Mr Della Bosca Mr Obeid Mr Primrose Mr Donnelly Ms Robertson Mr West

Pair

Mr Harwin Mr Hatzistergos

The CHAIR: Order! There being 19 ayes and 19 noes, the votes are equal. I cast my vote with the noes. The question is resolved in the negative.

Amendment negatived.

Mr IAN COHEN [4.48 p.m.]: I move:

No. 12 Page 22, schedule 1 [6], proposed section 127Q, line 29. Insert "or that is critical habitat" after "Act 1987".

The bill already prevents the development of biobanking sites by public authorities if the sites are in wilderness areas. Greens amendment No. 12 will add critical habitat to this exclusion. Although I am well aware that no critical habitat has been declared in terrestrial areas in New South Wales, despite the spiralling list of threatened and endangered species, we have to hope that action will be taken eventually to identify and protect areas of habitat that are critical to the survival of our most threatened flora and fauna. I commend Greens amendment No. 12 to the Committee.

The Hon. HENRY TSANG (Parliamentary Secretary) [4.49 p.m.]: The Government supports Greens amendment No. 12 to proposed section 127Q. The amendment addresses the situation of biobank sites⎯that is, all too critical habitats⎯in relation to development carried out by a public authority. It provides for the same arrangement as for wilderness areas.

The Hon. RICK COLLESS [4.50 p.m.]: The Opposition will not oppose Greens amendment No. 12.

Amendment agreed to.

The Hon. HENRY TSANG (Parliamentary Secretary) [4.50 p.m.]: I move: 22 November 2006 LEGISLATIVE COUNCIL 4547

No. 8 Page 24, schedule 1 [6], proposed section 127S. Insert after line 5:

(4) The maximum number of biodiversity credits that the holder of the mining authority or petroleum title may be required to retire under the direction is the number of biodiversity credits that have been created in respect of the biobank site.

The bill enables a mechanism to substitute new credits in the rare event that an approved mining activity will impact on an existing biobank site. The amended bill enables the Minister for the Environment to issue a direction for credits to be purchased and retired by the mining proponent to redress the loss of the biobank site and ensure that the improve or maintain outcome is retained. This amendment clarifies that the maximum number of biodiversity credits that can be required to be retired by the mining proponent is no more than the number of credits created in respect of that biobank site. The decision to use biobanking to also offset the mining impact is a separate decision to be made during the approval process for the mining project.

Mr IAN COHEN [4.51 p.m.]: The Greens do not support this Government amendment. It is similar to amendment Nos 6 and 7. This amendment has come about as a result of lobbying by the New South Wales Minerals Council. It seeks to facilitate the mining industry gaining access to biobank sites. The Greens are strongly opposed to the prospect of mining on biobank sites. It would certainly be the case that this would undermine protection that should be and would be offered to such land. Therefore, we do not support Government amendment No. 8.

The Hon. RICK COLLESS [4.52 p.m.]: The Opposition will not oppose Government amendment No. 8.

Amendment agreed to.

Mr IAN COHEN [4.52 p.m.], by leave: I move Greens amendment Nos 13 and 14 in globo:

No. 13 Page 36, schedule 1 [6], proposed section 127ZL, line 33. Insert "independent" after "on the basis of an".

No. 14 Page 36, schedule 1 [6], proposed section 127ZL. Insert after line 38:

(3) In subsection (2), an independent assessment means an assessment prepared by an employee of the Department, or by another person engaged by the Department (and not the applicant) to prepare the assessment, being in either case a person who is accredited in accordance with section 142B to prepare assessments for the purposes of this section.

These amendments will ensure that the biobanking methodology is applied independently by an employee of the Department of Environment and Conservation or by someone engaged by that department and not by the proponent of the development in question. This amendment is critical to ensure that the methodology is uniformly applied by individuals who are impartial and accountable to the New South Wales public. This is consistent with the application of the Native Vegetation Act assessment methodology. I ask that all honourable members consider the importance of maintaining a degree of impartiality when assessment is made of these types of sites, as I think their importance is agreed by all honourable members of this House.

I am sure all honourable members are reasonably well aware of the anomalies that arise in general planning matters when developers shop around for the appropriate individual or expert for a particular task, with the understanding of what the outcome will be. This amendment will significantly add to the strength of having the opportunity for impartiality which, in terms of accountability processes such as this, is absolutely vital to this process going ahead in a way that is acknowledged to be undertaking impartial activities of assessment on these sites.

The Hon. HENRY TSANG (Parliamentary Secretary) [4.54 p.m.]: The Government cannot support Greens amendments Nos 13 and 14 to proposed section 127ZL. The Government's objection is to the proposed requirement that only persons paid by the Department of Environment and Conservation should perform the site assessments. This is not workable. It would result in assessments being duplicated. The methodology to be used in the assessment is to be objective⎯that is, it will not rely on the subjective interpretation of one individual. The existing bill already includes strong safeguards. All users preparing the assessment will need to comply with the department's accreditation program as well as meet the fit and proper person test. Each application for a biobanking statement, including the assessment, will be reviewed by the Department of Environment and Conservation. 4548 LEGISLATIVE COUNCIL 22 November 2006

The Hon. RICK COLLESS [4.55 p.m.]: The Opposition will not support Greens amendments Nos 13 and 14. If this assessment is to be prepared by an employee or another person engaged by the department who will pay? I cannot see the department paying for it.

Mr Ian Cohen: The developer should pay the department.

The Hon. RICK COLLESS: If that were to happen, the same thing would occur: a developer would engage the contractor specifically. The person who prepares the report will know who the developer is and an area for corruption will still be available. It is important that a review of the report be carried out by the department on its completion, as pointed out by the Hon. Henry Tsang. That is the logical way to proceed. The Opposition will not support these Greens amendments.

Amendments negatived.

Mr IAN COHEN [4.57 p.m.]: I move Greens amendment No.15:

No. 15 Page 39, schedule 1 [6]. Insert after line 26:

127ZN Public exhibition of biobanking statement

(1) After the Director-General issues a biobanking statement, the Director-General must:

(a) cause notice of the decision to issue the biobanking statement to be published in the Gazette and on the website of the Department, and

(b) cause information relating to the biobanking statement to be made available for public inspection in the register of biobanking statements in accordance with the requirements set out in this Part, and

(c) in each of the notices referred to in paragraph (a), invite the public to make submissions to the Director-General about any material errors in the statement within a specified period (the submission period), being a period ending at least 28 days after the publication of the notices, and

(d) consider any submissions received during the submission period.

(2) After considering any submissions received during the submission period, the Director-General may decide:

(a) to confirm the issue of the biobanking statement, or

(b) to revoke the biobanking statement and require the application, or any part of the application, to be reassessed under section 127ZL.

(3) The Director-General is to cause notice of the decision to be given to the applicant and to be published on the website of the Department.

(4) The Director-General may revoke a biobanking statement under this section only if the Director-General is of the opinion that it is appropriate to do so because of a material error in the statement.

(5) A biobanking statement supplied to the Minister administering the Environmental Planning and Assessment Act 1979, or to a consent authority or determining authority under that Act, must not be acted on under that Act unless the Director-General has confirmed the issue of the biobanking statement under this section.

(6) For the purposes of subsection (5), a biobanking statement is acted on under the Environmental Planning and Assessment Act 1979 if:

(a) in the case of a statement that relates to a project to which Part 3A of the Environmental Planning and Assessment Act 1979 applies—the Minister administering that Act approves the project, or

(b) in the case of a statement that relates to development for which consent is required under Part 4 of the Environmental Planning and Assessment Act 1979—a consent authority grants development consent in respect of the development, or

(c) in the case of a statement that relates to an activity under Part 5 of the Environmental Planning and Assessment Act 1979—a determining authority approves the activity or commences carrying out the activity. 22 November 2006 LEGISLATIVE COUNCIL 4549

(7) Subsection (5) does not prevent the development from being approved, consented to or carried out in accordance with the provisions of the Environmental Planning and Assessment Act 1979 that apply in respect of the development if a biobanking statement is not obtained.

(8) Any person who is dissatisfied with the decision of the Director-General to issue a biobanking statement may appeal to the Land and Environment Court against the decision, but only on the ground of a material error in the statement.

(9) An appeal may be made by a person under this section no later than 28 days after notice of the Director-General's decision to issue the statement is published in the Gazette.

(10) If the Director-General revokes a biobanking statement, this section applies in respect of any biobanking statement that is subsequently issued after the reassessment of the application, or part of the application, in the same way as it applies in respect of the original statement.

(11) For the purposes of this section, a material error in a biobanking statement means a material error, or material omission, in or from a biobanking statement or the matter on which the statement is based (including a material error or omission in or from the assessment of the development concerned or the data used to conduct that assessment).

This amendment seeks to provide much improved public participation in development decisions involving biodiversity impacts. Currently the bill will prevent the Department of Environment and Conservation and any planning consent authority from taking into account public comment and independent local knowledge on threatened species and biodiversity. The bill as it stands contains no provision for biobanking statements to be publicly exhibited. In practice, the issue of these statements will replace the preparation and exhibition of a species impact statement upon which the community is currently invited to comment. It is imperative that biobanking statements be made open to review by the public. Agencies make mistakes, Ministers make mistakes, and no process is infallible.

The fact is that if the process is open to the public there is a greater degree of transparency and that could only help in this process. No process is infallible. As we are talking about a very experimental approach to threatened species protection, review by the public will make the operation of the scheme more rigorous, accountable and robust. The amendment would require the director general of the Department of Environment and Conservation to consider submissions pointing to errors in biobanking statements for 28 days after issuing a statement. This will ensure that errors in the application of the methodology or in the information collected can be uncovered and corrected. An appeal can be made to the Land and Environment Court based on an error of fact. I commend Greens amendment No. 15 to the Committee.

The Hon. HENRY TSANG (Parliamentary Secretary) [4.58 p.m.]: The Government cannot support Greens amendment No. 15. It requires a biobanking statement to be placed on public exhibition. This is an unnecessary duplication of existing practice, as development applications to which biobanking statements relate are likely to be required to be exhibited under the planning legislation. It would add 28 days of unnecessary delay. The provisions are necessary because the statement is placed on the public register of biobanking statements held by the Director General of the Department of Environment and Conservation. The Greens amendments relating to material errors are also unnecessary because they can be dealt with administratively, as the Minister has inherent power to amend biobanking statements and could do so if in the unlikely event it were shown there were material errors of fact.

The Hon. RICK COLLESS [4.59 p.m.]: The Opposition is completely opposed to this amendment. The mover talked about public participation in the process. We see this as something more dangerous and sinister. The amendment delivers greater potential for harassment of individuals going about their usual business. It creates the potential for environmental terrorist activities, as we have seen in recent times in western New South Wales with the property vegetation plan process. It is a disgrace that people who are legally going about their daily activities are harassed and terrorised by members of the public who can get those individuals' details from web sites. That is a matter that needs to be addressed in other legislation and prevented from happening by this bill. We oppose the amendment.

Amendment negatived.

Mr IAN COHEN [5.01 p.m.], by leave: I move Greens amendments 16 and 18 in globo:

No. 16 Page 54, schedule 1 [6], proposed section 127ZZB, line 22. Omit "Subject to the regulations, information". Insert instead "Information".

No. 18 Page 55, schedule 1 [6], proposed section 127ZZD, line 27. Omit "Subject to the regulations, information". Insert instead "Information". 4550 LEGISLATIVE COUNCIL 22 November 2006

A scheme that involves private financial transactions can become obscured from the public by privacy law, but biodiversity conservation is a public interest matter and it is important that the commodification of biodiversity, which this bill introduces, does not shut out the public from matters in which it has historically taken a keen and beneficial interest. These amendments ensure that information is made available for public inspection on the department's web site. The amendments omit the words "subject to regulations" so that the information will be available regardless of what is contained in regulations that are yet to be seen. I commend the amendments.

The Hon. HENRY TSANG (Parliamentary Secretary) [5.02 p.m.]: The Government is prepared to support Greens amendments Nos 16 and 18. The Government is strongly committed to establishing comprehensive public registers to allow the public to access information about biobanking.

The Hon. RICK COLLESS [5.02 p.m.]: The Opposition will not oppose the amendments.

Amendments agreed to.

Mr IAN COHEN [5.03 p.m.]: I move Greens amendment No. 17:

No. 17 Page 55, schedule 1 [6], proposed section 127ZZD. Insert after line 24:

(d) the data used to assess the application for the biobanking statement under the biobanking assessment methodology,

(e) the results of the application of the biobanking assessment methodology to the development.

This amendment simply seeks to clarify public access provisions that are already earmarked in the bill—that the register of biobanking statements includes information that will help demonstrate why the statement was issued, such as the data used to assess the application, the location of the development to which the biobanking applies and the results of the application of the biobanking assessment methodology to the development. I commend the amendment.

The Hon. HENRY TSANG (Parliamentary Secretary) [5.03 p.m.]: The Government does not support Greens amendment No. 17. Sufficient information will be placed on the public register, including the whole biobanking statement. If, during the operation of the scheme, it emerges that there are gaps in the information provided on the register, this can be dealt with through the regulations.

The Hon. RICK COLLESS [5.04 p.m.]: The Opposition will not support this amendment.

Amendment negatived.

Mr IAN COHEN [5.04 p.m.]: I move Greens amendment No. 19:

No. 19 Page 57, schedule 1 [6]. Insert after line 10:

127ZZH Special arrangements for creation of national parks and other reservations

(1) The fact that land is a biobank site does not prevent the land from being reserved under Part 4 or Part 4A of the National Parks and Wildlife Act 1974.

(2) On the reservation of a biobank site as a national park, historic site, state conservation area, regional park, karst conservation reserve, nature reserve or Aboriginal area under the National Parks and Wildlife Act 1974, the land concerned ceases to be a biobank site and the biobanking agreement applicable to the land is terminated.

The purpose of the amendment is twofold. Firstly, it allows private landholders to generate biobanking credits by voluntarily transferring their property or part of their property to the national parks estate, which was previously not possible under this bill. This is necessary because national parks are recognised as the most secure form of biodiversity conservation, and landholders should be acknowledged and rewarded for contributing their land to the public reserve estate. It also allows that land that is subject to a biobanking agreement can be acquired by the Minister for the Environment and protected in the national parks estate. Previously, there was confusion about whether it would be possible for biobank sites to become national parks, which is contradictory and nonsensical. I commend a very reasonable Green amendment No. 19 to the Committee. 22 November 2006 LEGISLATIVE COUNCIL 4551

The Hon. HENRY TSANG (Parliamentary Secretary) [5.05 p.m.]: The Government is prepared to support Greens amendment No. 19. The amendment will ensure that land that is a biobank site can subsequently be included in the reserve system in the future, if this is appropriate.

The Hon. RICK COLLESS [5.50 p.m.]: The Opposition also will support this amendment.

Amendment agreed to.

Schedule 1 as amended agreed to.

The Hon. HENRY TSANG (Parliamentary Secretary) [5.06 p.m.], by leave: I move Government amendments Nos 9 and 10 in globo:

No. 9 Page 62, schedule 2.1 [1], lines 4 and 5. Omit all words on those lines. Insert instead:

[1] Section 75JA

Insert after section 75J:

75JA Biobanking—special provisions

No. 10 Page 62, schedule 2.1 [1], line 6. Omit "subsection (4)". Insert instead "section 75J".

These are technical amendments. They do not represent any change in the substance of the bill. The amendments simply reorganise provisions of the Environmental Planning and Assessment Act 1979 as a result of amendments proposed to the Act by the Environmental Planning and Assessment Bill 2006.

Mr IAN COHEN [5.06 p.m.]: The Greens agree that these are administrative changes. We do not oppose them. They do, however, show the problems with drafting and redrafting of legislation in a rushed manner, as has been done with this bill. I am sure other errors will become evident in the future as a result of the ad hoc approach taken to the preparation of this bill, making the situation very messy indeed. Other than that, the Greens do not oppose these Government amendments.

Amendments agreed to.

Mr IAN COHEN [5.07 p.m.]: I move Greens amendment No. 20:

No. 20 Page 65, schedule 2.3 [1], line 21. Omit "section". Insert instead "sections 127ZN and".

This amendment is consequential on Greens amendment No. 15. The same argument applies to this amendment as applied to Greens amendment No. 15. I commend Greens amendment No. 20.

The Hon. HENRY TSANG (Parliamentary Secretary) [5.08 p.m.]: The Government does not support Greens amendment No. 20 to proposed section 127ZN. The amendment would give objectors third party merit appeal rights that are not currently available in equivalent situations under the current system under the Environmental Planning and Assessment Act 1979.

The Hon. RICK COLLESS [5.08 p.m.]: The Opposition opposes the amendment for the same reasons.

Amendment negatived.

Schedule 2 as amended agreed to.

Title agreed to.

Bill reported from Committee with amendments and report adopted.

The Hon. HENRY TSANG (Parliamentary Secretary) [5.10 p.m.]: I move:

That this bill be now read a third time.

The House divided. 4552 LEGISLATIVE COUNCIL 22 November 2006

Ayes, 20

Mr Brown Ms Griffin Ms Robertson Ms Burnswoods Mr Hatzistergos Mr Roozendaal Mr Catanzariti Mr Jenkins Ms Sharpe Mr Costa Mr Macdonald Mr Tsang Mr Della Bosca Reverend Dr Moyes Tellers, Mr Donnelly Reverend Nile Mr Primrose Ms Fazio Mr Obeid Mr West

Noes, 18

Mr Breen Mr Gay Ms Rhiannon Dr Chesterfield-Evans Ms Hale Mr Ryan Mr Clarke Mr Lynn Mr Cohen Mr Mason-Cox Ms Cusack Mr Oldfield Tellers, Mr Gallacher Ms Parker Mr Colless Miss Gardiner Mr Pearce Mrs Pavey

Pair

Mr Kelly Mr Harwin

Question resolved in the affirmative.

Motion agreed to.

Bill read a third time.

JOINT SELECT COMMITTEE ON THE THREATENED SPECIES CONSERVATION AMENDMENT (BIODIVERSITY BANKING) BILL 2006

Consideration of the Legislative Assembly's message of 17 October 2006.

Motion by the Hon. Henry Tsang agreed to:

1. That this House agrees to the resolution in the Legislative Assembly's message of Wednesday 18 October 2006 relating to the appointment of a joint select committee to inquire into and report on the implementation of the Threatened Species Conservation Amendment (Biodiversity Banking) Act 2006, with the following amendment, in which amendment the concurrence of the Legislative Assembly is requested:

Paragraph (2). Omit the paragraph, insert instead:

(2) That the functions of the committee will be:

(a) to prepare a report that sets out suggested guidelines for the operation of the scheme during a trial period and examines options for applying the scheme to the clearing of native vegetation (within the meaning of the Native Vegetation Act 2003),

(b) to evaluate the objectives of the scheme as set out in the bill as passed by both Houses,

(d) to report to both Houses on the operation of the trial within six months of the expiration of the trial period.

2. That the time and place for the first meeting be Thursday 23 November 2006 at 1.05 p.m. in the Waratah Room.

Message forwarded to the Legislative Assembly advising it of the resolution. 22 November 2006 LEGISLATIVE COUNCIL 4553

ENVIRONMENTAL PLANNING LEGISLATION AMENDMENT BILL

In Committee

Clauses 1 to 6 agreed to.

Ms SYLVIA HALE [5.24 p.m.]: I move Greens amendment No. 1:

No. 1 Page 3, schedule 1 [3], lines 10 and 11. Omit all words on those lines.

The purpose of Greens amendment No. 1 is to delete the proposed amendment to section 75B (1) in item [3] of schedule 1. The impact of item [3] of schedule 1 will be to enable the Minister to call in not only a specific development but a whole class of developments. It will allow classes of developments rather than individual developments to be declared to come under part 3A of the Act. If passed, the provision as it stands in item [3] of schedule 1 will have the effect of removing the need for the Minister to justify each development he wishes to call in.

The implications of calling in a development under part 3A of the existing Act are considerable in terms of loss of community involvement in the decision-making process. What we need to also consider in that context is the quantities of political donations that are made by proponents of part 3A developments and the general perception in the community that those donations have a very significant impact on whether the Minister allows the community to have a full involvement in the decision-making process or whether the Minister exercises his ministerial powers.

The really interesting feature of the bill is what constitutes a class of development. Does the provision in the bill mean that the Minister may call in every tollway or every motorway? Are mines a class of development? Can the Minister call in all mines, regardless of whether they are underground, open cut or wherever they are located? Does it mean that he may call in all apartment buildings, or all buildings over three or four storeys? Will he be able to call in all desalination plants as part of a class that can be called in by the Minister? The provision in the bill does not outline the scope of its operation. It is completely open slather based on what the Minister decides a class of development will be and whether or not he will call it in. A Minister may call in all developments that are proposed under State Environmental Planning Policy (Senior Living). The provision in the bill leaves all that open to the Minister.

I suppose the most topical and relevant application of the proposed provision at the moment would be whether the Minister determines to call in all nuclear power plants. Obviously there is a perception that the Federal Government is interested in locating approximately 25 nuclear power plants around Australia. Given the requirement for nuclear plants to be close to centres of population, close to power lines and, because they use a great deal of water, close to the coast, New South Wales is a likely site. Already on this morning's radio programs there was considerable discussion of where such nuclear power plants might be located. Port Kembla was nominated as one and Port Stephens was nominated as another.

The Hon. Duncan Gay: There is no water at Crookwell.

Ms SYLVIA HALE: One might say that one virtue of the drought is that there will be no possibility of a nuclear power plant being located at Crookwell.

The Hon. Duncan Gay: It does have virtue in it. We have great coal deposits in New South Wales. We do not need them. We need new power stations.

Ms SYLVIA HALE: That is the point. Is this not a lovely combination of circumstances? It would be possible to have a nuclear power plant, which everybody knows requires an enormous amount of energy, situated right next to the coalmines in the Hunter Valley. If the provision as it stands is passed, the Minister would be able to call in the coalmines and the nuclear plants. He also would be able to call in desalination plants while he was at it.

No doubt the Labor Government's reaction would be, "Shock, horror! Of course we would never condone any nuclear power plant", but what will happen if there is a change of government? Surely State Liberal policy would be consistent with the view of the Federal Liberal leader. Indeed we could see a Liberal 4554 LEGISLATIVE COUNCIL 22 November 2006

Minister calling in power plants to be determined. What must be remembered is that the amended provisions that are passed by this Parliament today will be available to be used by a government of any persuasion.

The Hon. Duncan Gay: Why don't you address the bill instead of fairyland?

Ms SYLVIA HALE: That is what the amendment is about, classes of development and that is its problem. It is so non-specific and open slather. There is absolutely no requirement on the Minister to justify any decision to call in a development. As I said earlier, these provisions could be applied to classes of development such as coalmines. The Minister could approve a number of new coalmines at once and could then approve a series of new coal-fired power plants in which to burn the extra coal from the extra coalmines, never mind that local communities or the local council might be fiercely opposed to them. The Minister could approve a class of shopping centres; maybe the Minister could approve all Stockland shopping centre development applications in one go. After all, that could be a class of development.

The Hon. Greg Pearce: That is not a class.

Ms SYLVIA HALE: Who determines what is a class of development?

The Hon. Duncan Gay: Address the amendment before the Committee.

Ms SYLVIA HALE: This amendment is about classes of development. I suggest that shopping centres could well be a class of development. The Minister could class developments by size and perhaps approve all three-storey buildings within certain areas of New South Wales. Councils would then have the task of assessing development applications taken out of their hands and the councillors could sit back and relax while the Minister takes care of it all. We know that the Government is keen on getting rid of that irritating red tape, otherwise known as "assessing projects on the merits", and giving proper consideration to each project. However, these provisions will allow the Minister to do away with all such considerations and the need to justify himself. That will allow him to group developments into one convenient package for his rubber stamp. If it is said, "Of course, he will not do that; of course that is not a class of development", why on earth would the Opposition support the provision? If the Opposition is saying that the Minister will not misuse the provision, the Opposition should vote against its inclusion in the bill. I commend Greens amendment No. 1 to the Committee.

The Hon. GREG PEARCE [5.31 p.m.]: As I indicated in my contribution to the second reading debate the Opposition opposes the bill. We do not believe that this Minister and this rotten Government can be trusted with these extra powers. We will not support the Greens amendments because we do not think it is our job at the moment to clean up this legislation and give this rotten Government even more power.

Mr IAN COHEN [5.32 p.m.]: I clarify the position expressed by the two members who have just spoken. I would have thought that the removal of the need to justify the developments would give rise to certain concerns among those who are not in the Government. I acknowledge the perspective of the Hon. Greg Pearce who said the Opposition does not have to protect or justify the Government's legislation. However, the Opposition, of course, represents the people of New South Wales. I understood the Hon. Greg Pearce to express in his contribution to the second reading debate a real concern about the inappropriateness of Minister Sartor accumulating so much power in New South Wales with regard to making decisions on major development, particularly those that fall under part 3A of the bill, and similar developments.

Some time ago the Minister addressed part 3A and claimed that he was talking up his personal power on these matters to protect the community against inappropriate development by local governments and organisations that were perceived, rightly or wrongly, to have been taken over or bullied by development interests. Things have changed significantly since he claimed the authority of part 3A. I ask that non-Government members acknowledge that part of their duty is to make a statement by supporting the amendment, to put on the record their concern about such an accumulation of power. I ask members to reconsider support for the amendment, which makes quite a clear statement about the fact that the Minister is being given too much power. He is a runaway in decision making about major infrastructure in New South Wales.

The Hon. HENRY TSANG (Parliamentary Secretary) [5.35 p.m.]: The Government opposes Greens amendment No. 1. The amendment proposes the deletion of item [3] of schedule 1 to the bill. The bill is intended to clarify that part 3A declarations can be made with respect to classes of development. For example, it may be appropriate to declare all development for the purposes of upgrading the Pacific Highway as being 22 November 2006 LEGISLATIVE COUNCIL 4555

subject to part 3A. Linking a declaration in respect of such a class of development would avoid the necessity of making separate part 3A declarations each and every time necessary upgrading works to the Pacific Highway are proposed.

Ms SYLVIA HALE [5.35 p.m.]: It is ludicrous that the Government should suggest that this measure is merely to obviate the administrative inconvenience of having to make separate declarations in relation to the upgrade of the Pacific Highway. Obviously this provision is in the Act for good, until such time as part 3A in its entirety is amended. To suggest that it is included in the bill for that one specific purpose is ridiculous. It is absurd to assume that the Committee would be taken in by such a clear and obvious deception. If the Minister were genuinely saying that it related only to the upgrade of the Pacific Highway, that sort of condition or proviso would be included in the bill. However, it has not been included. The Minister has open slather to call in entire classes of development. The power this provision will hand to the Minister is quite breathtaking. The amendment really is quite offensive. It is not good enough for the Opposition to say that it will not vote against the amendment because, at the end of the day, it does not support the bill at all.

Mr IAN COHEN [5.37 p.m.]: I remind honourable members, particularly those in the Opposition, about the highway inquiry. If I am correct, the Deputy Leader of the Opposition attended the Ballina hearing of that inquiry. Is that correct?

The CHAIR: Mr Ian Cohen, are you speaking to the amendment?

Mr IAN COHEN: Yes, I am.

The CHAIR: Then please proceed.

Mr IAN COHEN: It is worthwhile mentioning those at that hearing were seeking to redress a very heavy handed Government method of driving the process. They were not just greenies. They were representatives of The Nationals, farmers, and people whose families had lived on the land for generations. I ask that some consideration be given to the impact of the bill and that members view Greens amendment No. 1 a little differently.

Question—That the amendment be agreed to—put.

The Committee divided.

Ayes, 5

Mr Breen Dr Chesterfield-Evans Ms Rhiannon Tellers, Mr Cohen Ms Hale

Noes, 23

Mr Brown Mr Lynn Ms Robertson Mr Catanzariti Mr Mason-Cox Mr Ryan Mr Clarke Reverend Dr Moyes Ms Sharpe Mr Costa Reverend Nile Mr Tsang Mr Donnelly Mr Oldfield Mr West Mr Gay Ms Parker Tellers, Ms Griffin Mrs Pavey Mr Colless Mr Jenkins Mr Pearce Mr Primrose

Question resolved in the negative.

Amendment negatived.

Ms SYLVIA HALE [5.55 p.m.], by leave: I move Greens amendments Nos 2 and 3 in globo: 4556 LEGISLATIVE COUNCIL 22 November 2006

No. 2 Page 4, schedule 1 [7], lines 1–6. Omit all words on those lines.

No. 3 Page 4, schedule 1 [9], lines 10–19. Omit all words on those lines.

I am sure that all honourable members have been deluged with emails concerning amendments to the Environmental Planning and Assessment Act. They have caused a great deal of concern, particularly in the Hunter region, where they are perceived as enabling the Minister to weasel his way around proceedings in the Land and Environment Court in relation to Anvil Hill mine. Members will note that my amendments seek to delete items [7] and [9] of schedule 1, which relate to the giving of approval by the Minister to carry out a project, and which also relate to what information is required to be supplied to him by the director-general prior to his making a decision.

I am sure that yesterday members of Parliament received copies of a letter from the Environment Liaison Office, which is particularly incensed about these provisions. The Minister has gone all weak and sensitive about being called a liar, but there is no question about the fact that that is what he is. According to the letter from the Environment Liaison Office:

Frank Sartor, Minister for Planning, has misled both Parliament and the public on this Bill. He first claimed this bill was "housekeeping measure" when it clearly has a major impact on Planning in NSW. In response to anger from the community Minister Sartor moved amendments in the Lower House. He claimed these amendments would address community concerns. The amendments do no such thing.

The Minister claims that the principal amendment to proposed section 75J (2) (a) would address community concerns. As the Environment Liaison Office said, the amendments do no such thing. The letter continues:

None of the concerns that were raised by the community with the original incarnation of this Bill have been met. The amended bill would still remove the mandatory clause that environmental requirements must be complied with. The changes in the Lower House merely require the Director General of the Planning Department to prepare a "statement relating to compliance with environmental assessment requirements", which the Minister considers. The amendment does not state that the requirements have to be met.

Indeed, that goes to the heart of the duplicity that the community believes is associated with the bill. That is generally recognised. In its update on NSW Planning of 21 November 2006 Gadens Lawyers refers to the bill in the context of major projects, and states:

The Act currently provides that the Minister cannot approve the project (other than a critical infrastructure project) that would, but for Part 3A, be wholly prohibited by an environmental planning instrument (EPI).

The Bill would remove this restriction. Section (75J (3)) will instead provide only that the Minister may (but is not required to) consider the provisions of an EPI and that the Regulations may prevent approval of certain classes of projects (other than critical infrastructure projects) that are prohibited by an EPI. Otherwise—

and this point is emphasised—

… wholly prohibited development can be approved.

The advice continues:

The Act currently provides that the Minister may not approve a project until the environmental assessment requirements have been complied with. The amendments remove the express requirement for compliance with environmental assessment requirements and simply allow the Minister to approve a project upon receipt of the Director-General's report on the project.

This is the provision that the Minister described as "mere housekeeping". A story in today's edition of the Sydney Morning Herald reads:

Last night Mr Sartor angrily rejected the claims, telling the Herald the New South Wales Greens and the City of Sydney Council had been "obviously telling porkies".

In this instance it is the Minister who is lying, because he goes on to say:

The changes do not give the minister one extra iota of power. The bill is about simplicity and transparency in the operation of [planning laws]. Any suggestion otherwise is dishonest.

It is patently clear who is being dishonest. As I have said, Greens amendment No. 2 deletes item [7] of schedule 1 as it changes the conditions required for ministerial approval of a part 3A project. This item removes the requirement that a project must comply with the environmental assessment before the Minister can approve it. 22 November 2006 LEGISLATIVE COUNCIL 4557

Under this item, the Minister need only receive a report from the director general about compliance and the Minister then has the discretion to approve the project, even if the director general's report indicates that the environmental assessment requirements have not been met.

Members will notice that the Government has inserted new section 75J (2) (a) to require a statement relating to compliance with environmental assessment requirements to be included. It must not simply contain only the developer's environmental assessment and any comments by public authorities. However, the significant point is that there is absolutely no obligation on the Minister to refer to public submissions and there is no requirement that the director general's report be made public prior to the Minister making the decision. It does not matter what is in the director general's report because in all likelihood it will not be made public before the decision is made.

I suppose that most members will be familiar with the Anvil Hill mine case. Legal advice obtained by those involved in the case against the approval of the Anvil Hill mine indicates that this part of the bill will remove the underlying basis of that case. It is the requirement, as outlined in section 75J of the current Act, that underpins the Anvil Hill case and it is exactly that section that is being gutted by this bill. The Minister's assertion to the contrary is simply not credible; the words are there for all to see. Interestingly, in the debate in the lower House the Lord Mayor of Sydney, the member for Bligh, noted:

… the City of Sydney has legal advice that the declaration for the CUB [Carlton United Breweries] site was not properly made. The government has quickly moved to rectify that and these transitional provisions will ensure that this action cannot be legally challenged.

Anvil Hill is not the only project under threat. The Minister is also seeking to cover his tracks in relation to the Carlton United Breweries site. The Greens do not support giving the Minister the discretion to approve projects without the environmental assessment requirements being met.

The only way that we can assess the implications and the likely import of the bill's amendments is to put them in the context of what the Minister has done with his existing powers. What he has done with those powers under the relevant clauses is a good indicator of what he is likely to do when those powers are expanded. I suppose the case in point—it has been aired frequently in the House—is Sandon Point. Stockland plans to build 180 homes and a four-storey eight-unit block overlooking Thomas Gibson Park at Sandon Point. Some of the main issues regarding that extraordinarily contentious development, which I believe contributed directly to the election of a Greens candidate to the Federal Parliament, concern Aboriginal heritage, flooding, loss of native flora and fauna, land contamination, instability, loss of European heritage, and traffic. If the bill is passed without the Greens amendment, the Minister will be able to discount all environmental considerations like those that I have listed—for example, those pertaining to flora or fauna or even land contamination.

Stockland's current concept plan—which has been launched in conjunction with the Anglican Retirement Village Trust—for five times the area already developed is awaiting a decision from the Minister for Planning. The history of this development is extremely concerning, and it is not as though the Minister has not used his extra powers before. In 2005 the Minister for Planning established a review to overturn the findings of the commission of inquiry into Sandon Point. The Minister's announcement was one of the most spectacular acts of spin doctoring yet evidenced from this Government. His attempt to dress up the findings of the review as a win for the environment and for the local community was nothing short of claptrap. The review, conducted by Charles Hill, was a blatant move by the Government to alter and manipulate the findings of the commission of inquiry into Sandon Point in order to deliver an outcome better suited to the wishes of the developer, Stockland, and the Labor-dominated Wollongong City Council.

Sandon Point is a place of great environmental and cultural importance. It is the site of the 6,000-year-old Aboriginal burial ground and is the subject of a 20-year community campaign. The proposed development is so unpopular that the Government was forced to hold a commission of inquiry in relation to it in 2003. No-one was happy with that inquiry but it was viewed at the time as delivering recommendations that were an acceptable compromise between competing interests. The development was to proceed, but with significant changes. For example, the number of proposed houses was to be reduced in order to protect environmental values and Aboriginal heritage.

Under this bill "King Frank" would not even have to consider those environmental values. The bill can deliver environmental destruction. The Minister will not even have to green-wash his decision: he can just ignore all environmental considerations. Let us not forget that at one stage the new plan proposed by Stockland contradicted the Government's coastal protection policies. The bill will take to new heights the extent to which 4558 LEGISLATIVE COUNCIL 22 November 2006

the Government will distort and manipulate the State's planning system in order to deliver for its big donor mates. The bill's provisions ensure that no environmental considerations have to enter the picture. The Minister can ignore his own director general and any reports that he or she may produce.

This bill and its predecessor planning amendment bills represent the systematic undoing of 25 years of environmental safeguards and the dismantling of hard-won environmental processes that have been underpinned by a framework of legal rights designed to challenge rapacious development. The bill masquerades as housekeeping and minor reform, but every six months the Government brings in a bill to amend part 3A and each round of amendments gives the Government yet more powers and weakens the environmental aspects of the 1979 Act. The last round of amendments allowed the Minister to approve critical infrastructure and other major projects based on concept plans. In this round the Minister ensures that he does not have to give any consideration to environmental assessment. If we think about it, it really is frightening. Our most beautiful places in New South Wales can be developed. The environmentally sensitive places we are trying to preserve could become ghettos of the wealthy, thanks to these government provisions. Sensitive flora and fauna can be destroyed at will. The Government can salvage its guilty conscience through the nonsense known as biobanking.

This provision of the bill will allow the bulldozers to rip through any environmentally sensitive piece of land in New South Wales. The Property Council of Australia, of course, loves the legislation. The Property Council told the crossbenches to support it. Of course it likes it—no irritating non-human species shall stand in the way of its developments. The Minister can simply turn his mind away from all those other species with which we share the earth, and allow developments such as the one at Sandon Point to proliferate and destroy their habitat. It is not simply native flora and fauna; it is also Aboriginal and European heritage. The extent of the defoliation that is permitted under these amendments is extraordinary.

This bill amends the Environmental Planning and Assessment Act. Perhaps the name of the Act should be changed⎯perhaps the word "environmental" should be removed, because the Government's amendments have an impact on the environment. This bill delivers everything the major developers have asked for. Harry Triguboff said, "If you want to see trees, go to the Blue Mountains." Now the Government does not have to worry about trees at all. The 1979 Act came out of the green bans and the community wanting⎯indeed, demanding⎯to be involved in the planning process. It came out of a new green consciousness that started in Kelly's Bush, found its expression in the green bans and finally worked its way into law.

The Minister is bent on excising all such considerations out of the Act. The Minster is shutting the environment, the community and democracy out of the planning process. The Minister is chipping away at the environmental legacy of the Wran Government. All this Australian Labor Party Government is interested in is making money for big developers and big business. It is on a money drip and is addicted to developer donations. Imagine if the Government had to raise money from ordinary people, rather than the big end of town⎯no more lunches at Aria! I trust members of this House will support Greens amendment No. 2 and ensure environmental considerations continue to play a part of any planning process.

Greens amendment No. 3 deletes schedule 1 [9], which weakens environmental protection by no longer requiring the Minister to refuse an application that would be prohibited under an environmental planning instrument. Currently, the Minister may approve a project if environmental assessment requirements have been satisfied. Now all he is required to do is to consider the instrument but not necessarily be bound by it. This is undoubtedly a vast expansion of the Minister's discretion. The subsection reads in part that although the Minister is not required to take into account the provisions of any environmental planning instrument that would not apply to the project if approved, "the regulations may preclude approval for the carrying out of a class of project (other than a critical infrastructure project) that such an instrument would otherwise prohibit".

There is a suggestion that there may be a provision for the Minister not being allowed to approve certain developments in the regulation, but we have not seen the regulation. It has not been released. Who knows what its provisions will contain? Also, the Minister is the person who develops the regulations. He puts them together. The Minister will decide what restrictions he will abide by and what he will not. That almost after-thought reference to regulations is no protection whatsoever. I urge members in good conscience not to support the inclusion in the bill of the provisions that I have sought to omit.

The Hon. HENRY TSANG (Parliamentary Secretary) [6.05 p.m.]: Ms Sylvia Hale has made a long speech but I must clarify the difference between a declaration of a project and the determination of a project. Ms Sylvia Hale is incorrect in her assertion that the Carlton United Brewery site declaration is in any way impacted 22 November 2006 LEGISLATIVE COUNCIL 4559

by these amendments in the bill. Section 75J and 75J (3) relate to precondition to the determination of a project under part 3A. Ms Sylvia Hale is confusing the declaration of a project with a determination of a project.

The Government opposes Greens amendment No. 2. This amendment proposes the deletion of item [7] of schedule 1 to the bill. Item [7] of schedule 1 to the bill amends the provisions dealing with the preconditions to the Minister's determination powers for projects and concept plans. This amendment is designed to address comments made by Justice Jagot in the recent Land and Environment Court case Tugun Cobaki Alliance Inc v Minister for Planning and the Roads and Traffic Authority on 14 July 2006, which raised legal uncertainty about the circumstances in which applications for project approval can be determined. Therefore, the proposed amendment to section 75J (1) is not intended to change the robust environmental assessment which takes place for major projects.

Rather, the bill is intended to clarify the respective roles of the director general and the Minister for Planning in the assessment and approval process in light of the comments made in the Tugun case. In light of concerns raised in relation to this proposed amendment the Government has already moved amendments to the bill in the Legislative Assembly to reflect the appropriate roles of the director general and the Minister, and to ensure that environmental assessment requirements are expressly made a consideration in the determination of major project applications.

The Government opposes Greens amendment No 3. Section 75J (3) currently provides that the Minister cannot approve the carrying out of a project or approve a concept plan for a project if that project is wholly prohibited under an environmental planning instrument. Concern has been expressed in relation to the proper interpretation of "wholly prohibited" in this context. The proposed amendment in the bill is designed to provide greater certainty in this regard by providing that the Minister may take into account the provision of local environmental plans and regional environmental plans. The bill includes a further safeguard by providing that the regulations may preclude the approval of projects or classes of projects, for example, development in environmentally sensitive areas of State significance or sensitive coastal locations. The Government opposes Greens amendments Nos 2 and 3.

The CHAIR: Members should make their minds up quickly. Mr Ian Cohen.

Mr IAN COHEN [6.09 p.m.]: I will make my mind up as I make my mind up.

The CHAIR: If you are seeking the call—

Mr IAN COHEN: Madam Chair, it is a little oppressive to be rushed like that. You may not actually acknowledge the importance of our input; that may be your opinion. But when in the chair I would ask that you act with equanimity. Thank you.

The CHAIR: How dare you! If you want to seek the call, you stand up and seek the call. If two members are to'ing and fro'ing over who wants the call, it is perfectly in order for me to ask you to decide who is going to seek the call first. Now, you have sought the call and I have acknowledged you, so you may speak to the amendment.

Mr IAN COHEN: Thank you, Madam Chair. I support the amendments moved by Ms Sylvia Hale. I note that the environment groups are particularly concerned with the impact of this bill on the court challenge in relation to the Anvil Hill coalmine brought by Peter Gray. The court case challenges the adequacy of the environmental assessment of the proposed Anvil Hill coalmine. The environmental assessment failed to consider the impact of greenhouse gas emissions occurring as a result of the operation of the mine, despite the massive impact on climate change that that project will have.

Frank Sartor, the Minister for Planning, was called King Frank by Ms Sylvia Hale. I think it perhaps more appropriate to call him Emperor Sartorius, because that better fits the stature of the man. He has misled both the Parliament and the public on this bill. He claimed that this bill was a housekeeping measure, when it clearly has a major impact on planning in New South Wales. In response to anger from the community, Minister Sartor moved amendments in the lower House. He claimed those amendments would address community concerns. The amendments do no such thing.

The Tugun case was mentioned by the Parliamentary Secretary, the Hon. Henry Tsang. That is in the Tugun bypass area. There is massive community outpouring against the environmental and social disruption 4560 LEGISLATIVE COUNCIL 22 November 2006

caused by the Government on this issue. The Sandon Point issue was fully expressed by Ms Sylvia Hale earlier in the debate. That is a tragedy and a terrible abrogation of the Government's responsibility to the people, to indigenous rights and to the environment in New South Wales. Incidentally, this is a wonderful area. It has enjoyed a close association with the community for generations, and it is a great surfing point. It deserves to be maintained in a state that is environmentally sustainable. The development proposed by the industry, and supported by and working hand in glove with the Government, is an abomination of that site. What we are seeing here should, in the lead-up to the next State election, be the subject of a referendum on the activities of Frank Sartor. If that causes a great Labor victory, then obviously the Greens are totally out of touch with public sentiment. I doubt it.

The Hon. DUNCAN GAY (Deputy Leader of the Opposition) [6.12 p.m.]: The Opposition will not support these two amendments. This is a funny bill. I think it was a Greens member who said during the second reading debate that it is a bill of contrasts, with good and bad bits. We disagree with the Greens on this part, which is the subject of the amendments. Parts of the bill that the Greens amendments would seek to remove we think are some of the good bits. The Greens expressed concerns about the effect of the bill on the challenge to the Anvil Hill mine case. If you believed them, you would be concerned. Frankly, it is always a mistake to take them and their fellow travellers at face value without getting a second opinion. We have had second opinions on this matter, and we have legal opinions that what the Greens are saying is dramatically incorrect. Not only would these changes not stop the current case; they would not preclude further cases. In fact, the powers that go to the director general and the associated rights could equally be challenged in the same way as the case being prosecuted at the moment.

Over the past few years the mining industry—there is a great responsible mining industry in this State—has really lifted its game. Part of that has been due to pressure from the Greens, part is due to better planning instruments introduced by the Government, and part is due to the mining industry accepting its place in the community and acknowledging its responsibility to be proper citizens. The quantum leap in the mining industry in recent times is incredible, and the industry deserves a pat on the back. These people, who are doing the right thing, do not need to be put through unnecessary green tape. There certainly need to be proper safeguards to make sure they do the right thing, but they do not need extra layers of legislative provisions that make the system unworkable. In fact, the industry is very supportive of parts of the bill. The industry thinks the amendment proposed by item [28] of schedule 1 is a good one. I note that even the Greens, despite their concerns, do not want to remove that amendment from the bill. The industry is particularly appreciative of item [25] as well.

Another amendment that the industry believes is important for the industry is item [7] of schedule 1, and that is the subject of Greens amendment 2. As this industry group is better regulated and operating properly, it would be a backward step if the bill were to be passed without those component parts in it. I indicate the Opposition's very strong support for the items I mentioned in schedule 1 to the bill—items [28], [7] and [25]. Even though we have problems with the bill, we do not have a problem with those parts of it. If the bill is to get through, we would like those provisions to be components of the bill. To that end, the Opposition will oppose the Greens amendments.

Reverend the Hon. FRED NILE [6.16 p.m.]: Mr Ian Cohen said the provisions of the bill that the Greens seek to remove will affect the court case of Peter Gray⎯that is, the case against the Anvil Hill coalmine. I have a copy of a letter written by Mr Peter Gray to Mr Sartor in which he says:

To be blunt, I think you're still misleading the public, and I ask you to desist. Of course the amendments would not affect the case …

That is, the amendments proposed in the bill will not affect the case, and that is what the Minister says.

Ms SYLVIA HALE [6.17 p.m.]: The Minister says it will not affect the case! You would not trust the Minister as far as you could throw him!

[Interruption]

The CHAIR: Order! I remind members that interjections are disorderly at all times and that they should not be exchanging comments backwards and forwards across the Chamber.

Ms SYLVIA HALE: I find the position of Opposition members totally pathetic. On Tuesday 14 November Opposition members organised a rally outside the front of Parliament House. People assembled 22 November 2006 LEGISLATIVE COUNCIL 4561

there from Redfern, from the Block, from Putney, from Save our Suburbs, from the north and the south-west growth centres, and from a variety of other places. They got up there and they said, "Sack Sartor! We're fighting tooth and nail for your interests. We will do everything we can to stop this megalomaniac," or words to that effect. But, of course, when they get the opportunity to do anything, what do they do? They do nothing! They support the provisions of this bill. That is like what they did when part 3A was introduced. They are so mealy-mouthed that they are contemptible in their approach. The Parliamentary Secretary, the Hon. Henry Tsang, must have great difficulties reading what the provisions of the bill are, because a reading of them makes totally clear what the Minister is required to do with regard to the giving of approval for a project.

The Minister is to receive the application when a proponent makes an application for approval under this part, and the director general has given his or her report. Now that report must contain a statement relating to compliance with environmental requirements. But when it comes to deciding whether to approve the carrying out of a project the Minister may—the bill is at great pains to say this—but is not required to take into account the provisions of any environmental planning instrument that would not, because of section 75R, apply to the project, if approved. The bill could not say more clearly what it enables the Minister to do. It is evident to any right-thinking person that these provisions are totally unacceptable. Obviously, if the bill goes through unamended the repercussions for the Government in the Hunter area will be significant. I trust they are equally significant for the Opposition. The community will be outraged. The Greens and the Independents will benefit from that public outrage and indignation. I urge the Committee to support the amendments.

Question—That the amendments be agreed to—put.

The Committee divided.

Ayes, 5

Mr Breen Dr Chesterfield-Evans Ms Rhiannon Tellers, Mr Cohen Ms Hale

Noes, 25

Mr Brown Mr Kelly Ms Robertson Mr Catanzariti Mr Lynn Mr Ryan Mr Clarke Mr Mason-Cox Ms Sharpe Mr Colless Reverend Dr Moyes Mr Tsang Mr Donnelly Reverend Nile Mr West Miss Gardiner Mr Oldfield Mr Gay Ms Parker Tellers, Ms Griffin Mrs Pavey Mr Harwin Mr Jenkins Mr Pearce Mr Primrose

Question resolved in the negative.

Amendments negatived.

Ms SYLVIA HALE [6.28 p.m.], by leave: I move Greens amendments Nos 4 and 5 in globo:

No. 4 Page 5, schedule 1 [12] and [13], lines 1–13. Omit all words on those lines.

No. 5 Page 5, schedule 1 [15], lines 17–26. Omit all words on those lines.

Greens amendment No. 4 deletes from schedule 1 items [12] and [13] because they accelerate the approval process and reduce community involvement by allowing concept plans and approvals to carry out work to be considered together. Whereas the previous amendments related to projects, the amendments before the Committee deal with concept plans. It is really interesting to read the advice provided by major law firms to very large developers. The big law firms put out notes and advice in relation to much of the legislation that comes before this House. I was 4562 LEGISLATIVE COUNCIL 22 November 2006

particularly interested in the observations of Anthony Whealy who is a partner in Gadens Lawyers and is obviously a young hotshot in environment planning law and local government law. An article by him was published in the newsletter of the Royal Institute of Chartered Accountants. In part of that article he refers to object appeal rights in concept plan approvals. He states:

Further limiting appeal rights, s. 75L(b) of the EP&A Act prevents objectors from lodging an appeal where the Minister has issued a Concept Approval.

He describes concept approvals later on. He goes on to state:

This restriction would apply in relation to the application for Concept Approval itself, and in any subsequent development applications having the benefit of the original Concept Plan Approval.

The fact that applicants have appeal rights in respect of Concept Plan applications, whereas objectors do not, may prove a strong incentive to developers to seek Concept Plan approvals as a matter of routine.

Gadens points out that a proponent of a concept plan can lodge an appeal against a ministerial decision whereas an objector cannot. Obviously Mr Whealy believes that this is a strong reason for developers to make use of concept approvals. This is precisely what is being facilitated by the parts of the bill that the Greens seek to remove by amendments. Mr Whealy goes on to talk about concept plans:

The Concept Plan outlines the scope of the project and any development options and sets out any plan for the proposed staged implementation of the project. However, a detailed description of the project is specifically not required.

He then cites section 75M (2) of the Environmental Planning and Assessment Act. He goes on to state:

A concept approval would be advantageous where there are several routes, alternative sites or configurations available that need to be considered at an early stage so as to determine the most acceptable proposal.

Where approval to a Concept Plan is granted, there is no right of appeal for objectors (s. 75L of the EP&A Act). That is so even where the development would have otherwise been classified as designated development, and would have therefore ordinarily carried third party appeal rights.

Therefore, given the certainty a concept approval provides, and the flexibility it appears to allow, it has significant advantages for developers and the Government in public/private partnerships in marketing the proposal to financial lenders or the private sector.

What Mr Whealy is saying is that there is no right of appeal for objectors and that is an extremely attractive attribute of concept plans. What the Minister is trying to do by virtue of this bill is facilitate the use of concept plans. Mr Whealy goes on to refer to fast-tracking the exhibition process. He refers to the second reading stage of the passing of part 3A of the Environmental Planning and Assessment Act. He states:

During the Second Reading Speech, Planning Minister Craig Knowles made it plain that in terms of public participation, the process envisaged by the legislation would essentially be as follows:

1. Exhibition of the application and environmental assessments;

2. Submissions received will be sent to the applicant to respond to;

3. The proponent may then amend the application;

4. The Minister will then consult with other relevant government agencies and determine the application.

But then Mr Whealy's observations go to the very heart of the issue so far as concept plans are concerned. He states:

What is noticeable is that the applicant may amend the application after the exhibition period, without the need for re-exhibition of an amended application. Clearly this is advantageous to applicants as it will save time, and will eliminate formal public comment in relation to an amended application. In short, it gives the applicant a full right of final reply to all submissions received in relation to the application. Importantly, contentious aspects of proposals may be deliberately and strategically withheld by applicants, and then incorporated into the proposal as an amendment after the exhibition period closes. That would avoid public scrutiny and criticism of those amended aspects of a proposal.

I feel that the full import of Gadens advice has not really had the opportunity to penetrate the consciousness of the members of this Committee. I think it is well worth my while repeating Gadens advice because I am really concerned to ensure that members understand what is implicit in the Act as it stands. 22 November 2006 LEGISLATIVE COUNCIL 4563

The CHAIR: Order! It is not appropriate for the member with the call to reflect on other members in the Chamber.

Ms SYLVIA HALE: As I was saying, I am citing Mr Whealy's observations. He goes right to the heart of the matter. He states in relation to concept plans and the exhibition process:

I find that extraordinary. Supposedly the purpose of the Act is to involve the public in the planning process, allow members of the public to be aware of what is proposed and comment on it, as well as have some impact on the decision in relation to that proposal. But, as Mr Whealy made clear, it is completely envisaged in the Act that canny developers can withhold strategic and important information so that the information and the proposals are not subjected to public scrutiny; in fact, there may be no opportunity for public comment. You can add the controversial parts of the concept plan after the public exhibition has closed, so that the public does not know about it and cannot object. Under the bill, the Minister can at the same time approve the commencement of work without any further public input. That is a complete con on the public, and the Greens amendment deletes the additional power that is sought by the Minister.

What is offensive about concept plans is that the Minister, by declaring a concept plan that would involve a designated development—one of the few areas where there are third-party appeal rights—and approving it, the Minister can effectively sidestep all appeal rights. Greens amendment No. 5 deletes item [15] of schedule 1 to the bill, because it changes the conditions required for ministerial approval of a part 3A concept plan, so that compliance with the environmental assessment requirements may no longer be a condition.

The object of the amendment is very similar to Greens amendment No. 2, but rather than applying to just specific projects, it applies to concept plans. I note in the bill that there are similar weasel words about "forthcoming regulations" but, as I observed before, there is no indication of what those regulations will contain. The Minister will be responsible for developing those regulations and it will be within his power to determine just what he will and what he will not agree with. I commend Greens amendments Nos. 4 and 5 to the Committee.

The Hon. GREG PEARCE [6.42 p.m.]: The Opposition does not support Greens amendments Nos 4 and 5.

The Hon. HENRY TSANG (Parliamentary Secretary) [6.42 p.m.]: Madam Chair, I draw to your attention that the majority of the speech by Ms Sylvia Hale did not really relate to the bill or these amendments. However, the Government opposes Greens amendment No. 4. Item [12] of schedule 1 provides for a single application process where a proponent is seeking both concept plan approval and approval for part of a project; for example, approval for subdivision or demolition. This will operate in a similar way to staged approvals under part 4. The change will not only make it easier for proponents and the department by minimising duplication, thereby resulting in cost and time savings, but it will also reduce confusion during the public consultation stage as only one exhibition process will apply to the proposal. The Government opposes Greens amendment to item [13] 11 schedule 1. The amendment to section 750 (1) is not intended to change the robust environmental assessments that take place for major projects. The Greens amendment is opposed.

The Government opposes Greens amendment No. 5. Section 750 (3) currently provides that the Minister cannot approve the carrying out of a concept plan for a project if that project is wholly prohibited under an environmental planning instrument. The proposed amendments decide to provide greater certainty in this regard by providing that the Minister may take into account the provision of local environmental plans and regional environmental plans. The bill includes a further safeguard by providing that the regulations may preclude the approval of all classes of projects; for example, development in environmentally sensitive areas of State significance or sensitive coastal locations.

Amendments negatived.

Ms SYLVIA HALE [6.44 p.m.]: I move Greens amendment No. 6: No. 6 Page 6, schedule 1 [20], lines 24-30. Omit all words on those lines. 4564 LEGISLATIVE COUNCIL 22 November 2006

This amendment seeks to delete new section 75P (2) (c1), which reads:

A provision of an environment planning instrument prohibiting or restricting the carrying out of the project or that stage of the project under Part 4 (other than a project of a class prescribed by the regulations) does not have effect if the Minister so directs.

Again that provision reinforces the view that the bill is entirely about enhancing the Minister's power and allowing the Minister to approve developments and projects that would otherwise be unapprovable. Earlier I referred to the Carlton and United Brewery [CUB] example. I believe it is totally relevant to this amendment, because the bill sidelines provisions of an environmental planning instrument that would prohibit or restrict the carrying out of a project. It is relevant to consider this in relation to the CUB site and look at how the Council of the City of Sydney attempted to establish planning instruments and how that move has been totally thwarted. The Minister has called in a project and if this bill goes through the Minister will be totally empowered to approve that project, whether or not it complies with the planning instruments put in place by the council.

The Council of the City of Sydney commissioned independent studies to assist the council staff to create planning controls that would provide high quality and sustainable development on the CUB site. In the report to the Planning Development and Transport Committee on 5 March 2005, at pages 3 to 11, independent consultants recommended a parking rate of .57 per unit. That would allow about 1,000 extra cars to be accommodated in Chippendale. In a report to the Planning Development and Transport Committee on 9 September 2005, at paragraph 43(8), independent consultants recommended a floor space ration of 3.5:1 across the entire CUB site. Controls above that level were considered to be excessive. The report commented:

A previous report to the Central Sydney Planning Committee suggested an achievable floor space ration may be in the vicinity of 3.5:1 to 4:1. However, further design analysis has shown that a floor space ratio of 4:1 would result in acceptable urban design and amenity impacts.

The report to the committee clearly said that a development in excess of 4:1 would result in unacceptable urban design and amenity impacts. The report further stated:

While the importance of the site in a metropolitan perspective is understood and is not disputed an FSR of 4:1 for the site for a predominantly residential development is considered very dense and considered to jeopardise the achievement of an acceptable standard of residential amenity for future dwellings on the site.

Central Sydney Planning Committee members then asked council not to consider this report so that the committee could have time to further consider planning controls. So this report, which recommended no greater density than a maximum floor space ratio of 4:1, never came before council. The Minister has since called in the development under part 3A of the Act. If this bill goes through unamended and these amendments are not approved, the Minister can ignore all the planning work that has taken place so far. He can ignore any environmental instrument developed by the City of Sydney Council for the site and proceed to approve it in accordance with the developer's wishes. In today's Sydney Morning Herald Elizabeth Farrelly quite eloquently explained the problem relating to this site. She said:

The St Vincent's Hospital Caritas property and the Foster's brewery are two city sites that tell a single planning story. Caritas is Latin for charity, or love, or even mercy. But there's not a lot of it about in Darlo at the moment, where St Vincent's is proposing to flog heritage-listed, sandstone district Crown land for a 12-storey development. Not in Chippendale either, where Foster's is still chasing 40 storeys on its vast Broadway site.

In both cases there are compelling arguments in the affirmative. Each, though, is undone by the fleshy government snout that keeps nudging into the picture. "Conflict?" it snuffles. "What conflict? This is our trough we're schlurping from." Government trough, yes, which is our trough, too ...

The conflict on the brewery site, meanwhile, though differently flavoured, is comparably piquant. Foster's argues, rightly, that this is the site for density. Here, in Sydney's public transport hub (rump might be more apt) people drive six times less than standard Sydney suburbanites. And it's a brownfield site. Every dwelling here will save perhaps 10 times its own area in needless greenfield sprawl. That's all true.

Again, however, government determination to duck and weave, to slide through—

Reverend the Hon. Fred Nile: Point of order: We are interested in all this background material but none of it is relevant to the amendment we are dealing with. Ms Sylvia Hale is making a speech that is akin to a speech in a second reading debate on another bill. She is dealing with a site that we are not dealing with in Committee. The member should be asked to debate the amendment; she should not make a speech that is akin to debate on a second reading. The member is changing the whole procedure with which we deal with amendments in this Chamber. 22 November 2006 LEGISLATIVE COUNCIL 4565

Ms SYLVIA HALE: To the point of order: The amendment I am speaking to clearly relates to the provision of an environmental planning instrument prohibiting or restricting the carrying out of a project. I am talking about how environmental planning instruments can be ignored, and will be encouraged to be ignored, under the provisions of this bill. It is perfectly germane and relevant to my amendment. My amendment seeks to delete section 75P (2) (c1), which deals with environmental planning instruments.

The CHAIR: Order! All members are quite well aware of the amendment the member has moved. In ruling on the point of order I make two observations. First, the point made by Reverend the Hon. Fred Nile is valid, in that the speech the member is giving is more appropriate to debate on a second reading rather than to consideration of a specific amendment. Second, the material that the member was reading into Hansard is an article from today's Sydney Morning Herald, which is publicly available. Only brief extracts should be read from such articles; they should not be read onto the record verbatim. The member may now proceed.

Ms SYLVIA HALE: Madam Chair, I am not flouting your ruling in any way, but I had no intention of reading the entirety of Ms Farrelly's article onto the record. However, I think that parts of it are particularly relevant to the misuse by the Minister of part 3A of the Act and his abuse of environmental planning instruments. We are seeing in this bill an empowering of the Minister to ignore environmental planning instruments that have been developed, often at considerable expense, after they have gone through the process of public exhibition and public comment. Under this provision, which the Greens are seeking to delete, the Minister can just ignore the provisions of those instruments.

The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [6.55 p.m.]: The Government opposes this amendment.

The Hon. GREG PEARCE [6.55 p.m.]: For the reasons given previously, the Opposition does not support this amendment.

Amendment negatived.

Ms SYLVIA HALE [6.56 p.m.]: I move Greens amendment No. 7:

No. 7 Page 7, schedule 1 [23], lines 1–11. Omit all words on those lines.

Greens amendment No. 7 deletes item [23] from schedule 1 because it reduces environmental protection by excluding the application of any underlying prohibition or restriction on an environmental planning instrument for a part 3A project. The significance of what the bill would empower the Minister to do can only be appreciated if we take into account what the Minister has done. That provides the context for what we can see the Minister doing in the future. It is impossible to assess what the Minister has done in a glib and superficial way because, with planning, the devil is in the detail.

One needs to look quite specifically at how the Minister has used his power in the past as I believe that will be a very good indicator of how he will use it in the future. An example of that could well be Breakfast Point. On Monday 6 February there was a public meeting addressing the issues surrounding the proposed Breakfast Point concept plan. It was held at Massey Park Golf Club in Concord. Council representatives, including the mayor, the developer, Rosecorp, members of the Breakfast Point Resident Co-ordination Group, and 140 concerned members of the local community attended the meeting.

Residents attending the meeting were unhappy about a number of aspects of the concept plan, including an increase in intensity of land use; an increase in traffic; the impact on local amenities; the increase in parking demands; and the increase in residential dwellings. The proposed concept plan indicated changes from the existing control and proposed an increase of 208 dwellings on the site equating to over 50,000 square metres of additional floor area. That differed significantly from previous plans submitted by Rosecorp. Residents of Breakfast Point bought their properties based on the 2002 master plan and were now faced with decreasing values of their properties for the economic gain of Rosecorp.

Council and residents were united in their opposition to Rosecorp's new concept plan. The meeting unanimously called on Rosecorp to reject the concept plan and to continue to develop under the agreed 2002 master plan. Council then sent a submission to the Department of Planning about the proposed concept plan and project applications, which included submissions from local residents. Council's submission included a 4566 LEGISLATIVE COUNCIL 22 November 2006

comprehensive analysis of the proposed concept plan, the six project applications, and their accompanying environmental assessments.

The executive summary in the council's submission indicated that the concept plan, whilst increasing the amount of development and intensity of use on the site, fails to ensure commitments given under earlier processes and planning provisions. Indeed, the content of the proposed concept plan is totally unsatisfactory and does not address adequately the provisions of the Concord local environment plan No.1, the Breakfast Point master plan 1999, the Breakfast Point master plan 2002 or the Breakfast Point development control plan 2005.

The council's core concerns can be summarised as follows. The council was concerned that concepts and control plans that had been agreed to were being changed in the interests of Rosecorp, which is a significant financial contributor to the Labor Party. The concept plan dealt with only a certain section of the whole site. There was limited opportunity to enforce developer infrastructure commitments across the site and increased density—an additional 208 dwellings and 232 bedrooms—increased building footprints and building bulk. Public access through the site to the foreshore was reduced. There was reduced open space and a limited landscaping strategy, reduced view corridors and reduced infrastructure—for example, a waterfront activity precinct. Traffic movements to, from and through the site increased. Public access through precincts to future public transport stops was reduced or deleted. The result of the abandonment of prior controls is that the developments are deficient in respect of solar access and ventilation, and are not energy efficient.

The CHAIR: Order! I remind Ms Sylvia Hale of my previous ruling on a point of order. She should be speaking to the amendment before the Chair. It is reasonable that the member give some examples to support her amendment, but she should not give the level of detail that she is giving. That would be more appropriate in a second reading speech or in debate on a private member's motion. Ms Sylvia Hale may continue if she bears those comments in mind.

Ms SYLVIA HALE: I will certainly bear those comments in mind. The amendment enables the Minister, by order published in the Government Gazette, to amend an environmental planning instrument to authorise the carrying out of certain developments. How on earth can members appreciate the implications of amending an environmental planning instrument if they do not know what has happened in the past? I am referring to only one development—Breakfast Point—and detailing specifically how the Minister tampered with and trashed a range of planning instruments. Interestingly—

The CHAIR: Order! Is the member arguing with my ruling or is she speaking to the amendment? I urge her to speak to the amendment before the Chair.

Ms SYLVIA HALE: Fine. One of the council's major objections to the changes to environmental instruments related to the procedure adopted of combining a concept plan with a project application. In fact, that is what this bill permits. The council outlined a great many concerns—in fact, its submission in the case of Breakfast Point totalled some 219 pages. The relevant, and I think the significant, point is that, despite the extraordinarily detailed nature of the council's concerns, the Minister paid absolutely no intention whatsoever to its submission. And this is a Labor-controlled council.

The CHAIR: Order! I have advised Ms Sylvia Hale that it is reasonable to draw on examples to show why she believes her amendment should be supported. But she must not go into the level of detail that, as I said previously, would be appropriate in either a second reading speech or in debate on a private member's motion.

Ms SYLVIA HALE: As I was saying, the environmental planning instruments have been effectively trashed—

The Hon. Tony Kelly: Point of order: Madam Chair, I respectfully point out that it is within your leave to put the amendment to the vote if Ms Sylvia Hale continues to flout your ruling.

The CHAIR: I would prefer not to have to follow that course of action. I advise Ms Sylvia Hale to confine her remarks to the amendment before the Committee.

Ms SYLVIA HALE: It is very difficult for people to appreciate the full ramifications of what this bill will do unless we examine detailed cases. This is my final word on Breakfast Point: The Minister added insult to injury when he approved the Breakfast Point concept plan on 7 April without even notifying the council beforehand of his decision. The mayor was absolutely outraged. In this bill, and particularly in new section 22 November 2006 LEGISLATIVE COUNCIL 4567

75R (3A), the Minister wants to extend his powers even further. The Greens amendment will not remove the existing powers of the Minister that were so clearly a problem in the case of Breakfast Point. But it will prevent the Minister from taking on additional discretionary powers.

The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [7.05 p.m.]: The Government opposes Greens amendment No. 7, which proposes to delete item [23] of schedule 1 to the bill. Item [23] provides for concurrent project and rezoning determinations. This provision is very similar to the current powers of councils to undertake joint development applications and rezonings under part 4. These powers are used regularly by councils across the State, with spot rezonings exhibited at the same time as development applications.

The Hon. GREG PEARCE [7.06 p.m.]: For the reasons stated previously, the Opposition does not support Greens amendment No. 7.

Amendment negatived.

Ms SYLVIA HALE [7.07 p.m.]: I move Greens amendment No. 8:

No. 8 Page 7, schedule 1 [27], lines 30–32. Omit all words on those lines.

The bill will reduce environmental protection by authorising the formal amendment of environmental planning instruments by ministerial order to remove or modify any underlying prohibition or restriction in the instrument for an improved part 3A project. The amendment removes this provision.

The Hon. GREG PEARCE [7.07 p.m.]: The Opposition does not support the amendment.

The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [7.07 p.m.]: Greens amendment No. 8 deletes item [27] of schedule 1 to the bill, which is a minor technical amendment. The Greens amendment should be opposed.

Amendment negatived.

Ms SYLVIA HALE [7.08 p.m.]: I move Greens amendment No. 9:

No. 9 Page 11, schedule 1. Insert after line 8:

[41] Section 95 Lapsing of consent

Omit "building, engineering or construction work" from section 95 (4).

Insert instead "substantial building, engineering or construction work (other than surveying work or the clearing of vegetation)".

The amendment adds to the definition of commencement of work. In a recent decision in JMS Capital Pty Limited v. Tweed Shire Council Justice Lloyd found that very minor surveying works carried out more than 17 years ago constituted substantial commencement for a canal development consent granted in 1988. The basic facts in that case were not in dispute. A registered surveyor carried out some survey work on the land prior to the making of the development application in September 1988. Following the grant of the development consent, the surveyor then returned to the site and carried out a survey over several days in January 1989. That work, as I understand the evidence, involved the following:

(a) the survey traverses performed prior to the lodgment of the development application were repeated and this involved clearing each line of sight;

(b) although no new survey stations were placed, it was necessary to re-instate a lot of pegs and stakes and nailing pegs (for fixing levels) because many of these markers had been removed, presumably by trespassers.

That was the extent of the work undertaken more than 17 years ago—no work has been undertaken since—yet it was found in this very recent decision of JMS Capital Pty Limited v. Tweed Shire Council that the work met the requirement of commencement of work, and so the consent had not lapsed. The court ruled that there was evidence of a substantial commencement. The decision of the court, while it may be correct in law, has 4568 LEGISLATIVE COUNCIL 22 November 2006

delivered a perverse outcome. It was not the intention of the Act that such minor works would entitle a developer then to activate a consent nearly 20 years later. This has major consequences with any developer now able to achieve substantial commencement with little or no effort. A report prepared for a meeting of Tweed Shire Council on 26 September 2006 outlined the decision of the court and then recommended:

Council formally requests the Minister for Planning to review the legislation relating to commencement and lapsing of development consents given the current interpretation by the Courts of these procedures.

I move this amendment because of the need to remedy that situation. In support of this amendment I also refer to a publication entitled "Unwanted legacies of the Land and Environment Court of New South Wales", published by the City of Sydney Council in 2001. It has a very illuminating foreword written by the then Lord Mayor of Sydney, Councillor Frank Sartor, who lamented:

The last decade has witnessed increasing and widespread concern about the quality of our built environment. There has been frequent and well-documented dismay, not to mention outrage, from all sectors of society about the quality and appropriateness of a great many new developments, particularly in the Sydney region.

The irony of those words from the man who is now pushing this current grab for power through the Parliament should not be lost on anyone. The publication is relevant to the amendment because one of the unwanted legacies referred to in the Council of the City of Sydney's publication was the development of 2-8 Dixon Street, Sydney. One of the grounds on which council opposed the development was that consent was due to lapse in June 1998. The day before it lapsed footings for four columns were bored and one steel column was constructed. The council argued that this was a transparent device to maintain the consent because the work did not have developmental building approval and the column had been removed by the time the case went to court. The council, however, lost the case.

The then Lord Mayor, Frank Sartor, recognised that was a problem and he should now, as Minister for Planning, endorse this amendment and fix the problem. The intent of section 95 of the Environmental Planning and Assessment Act has been completely undermined. It must be restored to protect communities from development approvals hanging on—in the Tweed shire case for almost 20 years—after approval has been granted with the barest of bare lip services being given to substantial commencement.

The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [7.14 p.m.]: The Government opposes the amendment. Currently section 95(4) provides that consents do not lapse where building, engineering or construction work relating to the building subdivision or work has physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse, that is, five years. The proposed amendment makes the lapsing provision only apply where substantial building, engineering or construction work has physically commenced, and specifically excludes surveying work or clearing of vegetation for such works.

I am in two minds about this amendment. I am tempted to let it go through because I do not know whether the Greens realise what the ramifications of it would be. I remind them that 99 per cent of development applications relate to the ordinary Joe Blow trying to fix up his house, and this amendment would cut off an avenue for him as well. It does not just affect the big developers as the Greens would have us believe.

The Hon. GREG PEARCE [7.15 p.m.]: The Opposition is also opposed to this amendment and would be quite concerned if an amendment to something as important as the concept of substantial commencement were included in the bill, as the Greens would have it, after so little consideration. If there is to be an amendment to substantial commencement, it should be properly considered, and that is not the case with this amendment.

Ms SYLVIA HALE [7.16 p.m.]: Recently I attended the Local Government and Shires Association conference in Katoomba at which the JMS Capital Pty Limited decision caused great angst and indignation amongst councillors present. It is extraordinary that neither the Government nor the Opposition will support this amendment. Given that as Lord Mayor the Minister was outraged about 2-8 Dixon Street and that the JMS Capital Pty Limited development at Tweed Heads completely flouts the intention of the Act, it is ludicrous that no attempt will be made to remedy the situation. This is supposed to be a housekeeping bill directed at closing loopholes, tidying things up, making things more efficient so that they operate in a way that benefits the community as a whole. The Government has an opportunity to do just that, but of course the Government and the Opposition have revealed their true colours, as they have done consistently, and will not support the amendment. 22 November 2006 LEGISLATIVE COUNCIL 4569

Amendment negatived.

Ms SYLVIA HALE [7.18 p.m.]: I move Greens amendment No. 10:

No. 10 Page 19, schedule 1 [57]. Insert after line 20:

Commencement of work after consent

Section 95 (4), as amended by the amending Act, extends to a development consent granted before the commencement of that amendment.

Amendment negatived.

Schedule 1 agreed to

The Hon. GREG PEARCE [7.20 p.m.], by leave: I move Opposition amendments Nos 1, 2 and 3 in globo:

No. 1 Page 21, schedule 2 [4], lines 12–31. Omit all words on those lines. Insert instead:

[4] Section 34 Members of Planning Committee

Omit section 34 (3).

No. 2 Page 22, schedule 2 [11] and [12], lines 20–24. Omit all words on those lines.

No. 3 Page 24, schedule 2 [19], proposed clause 33, lines 20–25. Omit all words on those lines.

The intention of the amendment is to prevent the change to the Central Sydney Planning Committee membership and appointment process outlined in the bill. I will not want to speak to this amendment at length because I put most of my argument in the second reading debate. However, I want to clear up one issue, and that is in relation to the Government Architect. In my contribution to the second reading debate I spoke about the Government Architect being a member of the committee. What in fact has happened, I am assured by everyone involved, is that the Government Architect has been appointed as a matter of routine; indeed, the Minister's second reading speech assured us that the Government chooses to appoint the Government Architect as one of its appointments, and the Minister has advised that he has no intention of removing the Government Architect from that appointment.

That begs the question: Why have the amendment at all if the intention is to continue to have the benefit of the Government Architect as a member of the committee? There seems to be no good reason for the amendment. I note that councillors John McInerney and Shayne Mallard are in the Chamber. They are very concerned about this matter, as is the city council. I said in my speech to the second reading debate last night that the council had moved a motion, which was passed by 9 votes to 1, supporting the amendments that the Opposition is putting today. That motion was supported by Councillor Verity Firth of the Australian Labor Party, who I am told will be a candidate for the seat of Balmain in the 2007 elections. I am told also that Verity is President Burgmann's favourite niece. So she obviously has a great deal of sense, and her recommendation not to support the amendment, which gives more power to Minister Sartor, is noted. The other member of the committee is the director of the Department of Planning, and we support that continuing membership as well.

The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [7.21 p.m.]: The Government does not support the Opposition amendments as they would take us back to a complicated and barely workable provision such as we have in the City of Sydney Act for the appointment of independent and non-government members. The bill provides for a better mix of expertise for independent and senior Government members than the status quo proposed by the Opposition.

It is important to note that the Government-appointed Central Sydney Planning Committee [CSPC] members initiated these changes with a proposal for eight separate changes to the bill. Suggestions that these changes are an attempt to assert greater authority are simply incorrect. In fact, the Minister specifically did not include a number of changes requested by CSPC members as it was thought those might cause antagonism with the council. As was outlined in the second reading speech in the other place, the current legislation does not specifically nominate the Government Architect as a government member of the CSPC. The reason he is on the committee is that the Government chooses to appoint him. The Minister in the other place gave a specific assurance in the second reading speech that the Minister had no intention of removing the Government Architect as one of the Government nominees. The Government opposes the amendment. 4570 LEGISLATIVE COUNCIL 22 November 2006

Ms SYLVIA HALE [7.23 p.m.]: The Greens support the amendments. The Opposition's amendments are identical with circulated Greens amendments 11, 12 and 13. It really is ironic that the Central Sydney Planning Committee should comprise seven people, three of whom are elected councillors and four of whom are Government appointees. Clearly, the Government has the power virtually to direct what happens at those committee meetings. When Ms Jennifer Westacott was Director General of Planning she made a point of attending virtually every meeting of the planning committee. Since Mr Haddad has been director general, I understand he is yet to attend one meeting. No doubt this is because of the amount of work that the Department of Planning is now experiencing as bio-developers rush to ask the Government to declare projects to be major part 3A projects or to declare concept approvals.

One interesting point I have discovered from reading the Government's literature over a period of time is that, although developments being called in by the department are consuming so much of the director general's time, the average time the department takes to make a decision is seven months. Yet councils are berated because they do not come up with decisions on equally large projects within 40 days. That indicates the double standards adopted by the Government on so many matters. As I have indicated, circulated Greens amendments 11, 12 and 13 are identical with these Opposition amendments, and therefore we support them.

The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [7.25 p.m.]: I should mention that Reverend the Hon. Fred Nile has foreshadowed an amendment. I indicate that the Government will be supporting his sensible amendment. I understand that his amendment cannot be moved unless these Opposition amendments are defeated.

The CHAIR: Reverend the Hon. Fred Nile can move his amendment now. However, if he does and the Opposition amendments are carried, his amendment will lapse.

Reverend the Hon. FRED NILE [7.26 p.m.]: I move the Christian Democratic Party amendment:

Page 21, schedule 2 [4]. Insert after line 31:

(3) At least one of the senior State government employees appointed under subsection (1) (c) must be either the Director-General of the Department of Planning or a senior executive officer of the Department of Planning.

As I said earlier, and as has been picked up by the Hon. Greg Pearce, many red herrings have been raised regarding this bill, from cover to cover, and we have been given considerable misleading information. For instance, we were advised that the Government was ruthlessly scrapping the Government Architect and the Director General of the Department of Planning as members of the planning committee. So we all assumed that they were on the planning committee—until I read the City of Sydney Act of 1988, No. 48. Surprise! Surprise! The Government Architect is not mentioned anywhere in that Act. He may be appointed by the Minister, and he may have been able to attend meetings in the past, but apparently he has not attended. Minister Sartor has indicated in advice to me that he has no objection to the Government Architect being appointed at some time. The Minister has discretion to appoint the Government Architect or another person, as is provided for in the bill as follows:

The Minister administering Part 4 of the Planning Act is to obtain the concurrence of the Minister administering the Public Works Act 1912 before appointing a senior State government employee under subsection (1) (c) if the employee is appointed because of his or her expertise in architecture or civic design.

I would imagine that could provide for appointment of the Government Architect, or perhaps another person with the same qualifications or with even greater expertise or knowledge if that is required for the planning of the city of Sydney.

The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [7.28 p.m.]: Now that Reverend the Hon. Fred Nile has moved his amendment, I point out that the Government welcomes it, because it clarifies the ongoing important nexus between the Department of Planning and the Central Sydney Planning Committee. It ensures that one of the Government representatives is either the Director General of the Department of Planning or a member of the executive of the Department of Planning. This amendment addresses some perceived concerns on this matter, and it is supported by the Government.

Question—That Opposition amendments Nos 1 to 3 be agreed to—put.

The Committee divided. 22 November 2006 LEGISLATIVE COUNCIL 4571

Ayes, 18

Mr Breen Mr Gay Ms Rhiannon Dr Chesterfield-Evans Ms Hale Mr Ryan Mr Clarke Mr Lynn Mr Cohen Mr Mason-Cox Ms Cusack Ms Parker Tellers, Mr Gallacher Mrs Pavey Mr Colless Miss Gardiner Mr Pear ce Mr Harwin

Noes, 23

Mr Brown Mr Hatzistergos Ms Robertson Dr Burgmann Mr Jenkins Mr Roozendaal Ms Burnswoods Mr Kelly Ms Sharpe Mr Catanzariti Mr Macdonald Mr Tsang Mr Costa Reverend Dr Moyes Dr Wong Mr Della Bosca Reverend Nile Tellers, Mr Donnelly Mr Obeid Mr Primrose Ms Griffin Mr Oldfield Mr West

Question resolved in the negative.

Opposition amendments negatived.

Christian Democratic Party amendment agreed to.

Schedule 2 as amended agreed to.

Schedule 3 agreed to.

Title agreed to.

Bill reported from Committee with an amendment and report adopted.

Third Reading

The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [7.37 p.m.]: I move:

That this bill be now read a third time.

The House divided.

Ayes, 22

Mr Brown Mr Hatzistergos Mr Roozendaal Ms Burnswoods Mr Jenkins Ms Sharpe Mr Catanzariti Mr Kelly Mr Tsang Mr Costa Mr Macdonald Dr Wong Mr Della Bosca Reverend Dr Moyes Mr Donnelly Reverend Nile Tellers, Ms Fazio Mr Obeid Mr Primrose Ms Griffin Ms Robertson Mr West

Noes, 18

Question resolved in the affirmative.

Motion agreed to.

Bill read a third time.

[The President left the chair at 7.40 p.m. The House resumed at 8.30 p.m.]

TABLING OF PAPERS

The Hon. Michael Costa tabled the following papers:

Annual Reports (Statutory Bodies) Act 1984⎯Reports for the year ended 30 June 2006:

Aboriginal Housing Office NSW Food Authority—Volumes 1 and 2

Ordered to be printed.

SUPERANNUATION ADMINISTRATION AMENDMENT (TRUST DEED SCHEMES) BILL

Second Reading

The Hon. MICHAEL COSTA (Treasurer, Minister for Infrastructure, and Minister for the Hunter) [8.30 p.m.], on behalf of the Hon. John Della Bosca: I move:

That this bill be now read a second time.

I seek leave to incorporate the second reading speech in Hansard.

Leave granted.

The Superannuation Administration Amendment (Trust Deed Schemes) Bill amends the Superannuation Administration Act 1996 to enable additional classes of persons to be admitted as members of trust deed superannuation schemes established under section 127 of the Act. The bill also retrospectively validates past ministerial approval of trust deed amendments that would otherwise be invalid. The Superannuation Administration Act 1996, which facilitates the legal and legislative framework under which the Energy Industries Superannuation Scheme and the Local Government Superannuation Scheme are established, requires the two schemes' trust deeds to be consistent with the requirements of a regulated fund under the Commonwealth's Superannuation Industry (Supervision) Act 1993.

Section 127 of the Superannuation Administration Act 1996 currently only allows specific classes of employees, rather than persons, to be admitted into the schemes. Despite this limitation the trust deeds of the two schemes have been amended over the years, consistent with Commonwealth superannuation law provisions, to admit spouses and local government councillors as members of the schemes. The proposed amendments to the Superannuation Administration Act 1996 will validate the existing membership of spouses of members of the respective schemes. The proposed amendments will also enable the Local Government Superannuation Scheme to accept councillors as members of the scheme. Councillors will not be classified as employees entitled to compulsory employer contributions to superannuation. The Local Government Act 1993 at section 251 (1) specifically excludes councillors being deemed as an employee of a council "for the purposes of any Act".

Consistent with Commonwealth superannuation law, provision has been made to include de facto partners as one of the categories of persons who can, subject to the schemes' own trust deed requirements, become members of the schemes. The Commonwealth's Superannuation Industry (Supervision) Act 1993 at section 10 defines spouse to include de facto partners. The definition of "de facto partner" has been drafted with reference to the Property Relationships Act 1994. The effect of this is that same-sex partners of members who are otherwise entitled to or who are receiving benefits under the schemes can, subject to the respective schemes' trust deeds, be dealt with as the spouse of such persons. The schemes' existing trust deeds define "spouses" to include same-sex partners.

Optional membership applies only to the accumulation divisions of the Local Government Superannuation Scheme and the accumulation divisions of the Energy Industries Superannuation Scheme. "Optional" spouse members have been accepted into both schemes since 1998 and "optional" local government councillor members have been accepted into the Local Government Superannuation Scheme in a limited capacity since June 2004. In 2004 local government councillors were admitted as optional members of the Local Government Superannuation Scheme to enable those councillors to make post-tax contributions to superannuation. The proposed legislative amendments are not aimed at seeking to admit a wide category of persons into the schemes, for example, the general public. I commend the bill to the House.

The Hon. GREG PEARCE [8.33 p.m.]: The Superannuation Administration Amendment (Trust Deed Schemes) Bill allows for extension of certain superannuation trust deeds and to permit local government councillors and other persons to have the benefit of the trust deed schemes. The Opposition does not oppose the 22 November 2006 LEGISLATIVE COUNCIL 4573

bill. The Superannuation Administration Act 1996 is the principal Act. It provides for the Treasurer, as the Minister administering that Act, to approve the preparation of trust deeds providing for superannuation schemes for the benefit of various employees. The object of the bill is to amend the principal Act to provide for other people who are not necessarily employees to also have the benefit of trust deed schemes. As I mentioned earlier, those persons include local government councillors and spouses or de facto partners of persons who otherwise have the benefit of a trust deeds scheme under the Superannuation Administration Act 1996. The bill also validates the prior extension of trust deed schemes to persons who are covered by this bill. As I say, the amendments do not have any great significance for the Opposition. The Opposition does not oppose the bill.

The Hon. MICHAEL COSTA (Treasurer, Minister for Infrastructure, and Minister for the Hunter) [8.35 p.m.], in reply: I thank the Hon. Greg Pearce for his contribution to the debate. I commend the bill to the House.

Motion agreed to.

Bill read a second time and passed through remaining stages.

LEGAL PROFESSION FURTHER AMENDMENT BILL

Second Reading

The Hon. MICHAEL COSTA (Treasurer, Minister for Infrastructure, and Minister for the Hunter) [8.36 p.m.], on behalf of the Hon. John Della Bosca: I move:

That this will be now read a second time.

The Government enacted the Legal Profession Act 2004 in December 2004 and commenced it on 1 October 2005. The Act is a major milestone in the regulation of the Australian legal profession, recognising and providing for a national profession. The Standing Committee of Attorneys-General developed the national legal profession scheme and model legislation in consultation with legal profession regulators and the profession. The scheme removes many of the barriers to increased efficiency and competition in the legal profession. The model provisions are designed to achieve greater consistency and uniformity in legal profession regulation in order to facilitate legal practice across State and Territory boundaries, and to standardise consumer protections across jurisdictions. All other jurisdictions are now working steadily towards implementing the updated model bill. I seek leave to have the remainder of my second reading speech incorporated in Hansard.

Leave granted.

The national framework is expected to be operational in mid-2007.

A joint working party reporting to the Standing Committee of Attorneys-General has been monitoring the implementation of the model bill, and has settled amendments to the original model bill as issues have arisen during implementation. Standing Committee of Attorneys-General Ministers approved amendments to the model bill in July 2006. The updated model bill was publicly released in late August, following further drafting refinements. The Legal Profession Further Amendment Bill amends the Legal Profession Act 2004 to maintain uniformity with the updated national model. The bill also makes a number of minor amendments requested by the legal profession regulators to improve the processes of administering the legislation. The bill also abolishes the Legal Profession Advisory Council. Following the significant revision of the model bill that has been undertaken by the national joint working group this year, I am confident that these changes will improve the current system, and I am hopeful that any further amendments, particularly in the next two years, can be kept to a bare minimum.

I now turn to some specific amendments contained in this bill. Schedule 2 to the bill contains amendments to bring the Act into line with the model bill. These include, first, amendments to extend the period in which a person may request an itemised bill and/or apply for assessment of legal costs. The period in which a person may request a costs assessment will increase from 60 days to 12 months, with a provision allowing out-of-time applications to be considered in special circumstances. Second, the bill includes amendments to extend costs disclosure to a person who is liable to a law practice to pay all or part of the legal fees in a matter, where that person is not himself or herself the client of the relevant law practice. One circumstance where this might arise is where parents pay for the legal fees in a matter in which their child is the law practice's client.

Third, the bill includes amendments to clarify that a person who is liable to pay legal costs, but who is not a client of a law practice, may apply for the assessment of the legal costs that the person is liable to pay. One example where these changes are relevant is where borrowers are required, under a mortgage contract, to pay the legal costs of their lender in preparing the mortgage documentation. In that case, borrowers will have a right to seek assessment of the legal costs of the law practice that advised the lender in the transaction. Fourth, the bill includes amendments to regulate the practice of foreign law in Australia, particularly in relation to professional indemnity insurance, so that disclosure must be made to an Australian registered foreign lawyer's clients where that lawyer does not have professional indemnity insurance that covers legal practice in Australia. Fifth, the bill contains amendments to provide greater powers for managers or receivers to require the production of information relating to the affairs or a law practice by third parties. 4574 LEGISLATIVE COUNCIL 22 November 2006

The bill also makes the following amendments to the Act to streamline its administration. First, it contains amendments to revise the role and procedures of the Legal Profession Admission Board in connection with the admission of persons to the legal profession, including removing the power of the board to refer issues relating to the suitability of persons for admission to the legal profession to the Supreme Court, prior to making a determination. Second, the bill contains amendments to revise the procedures for payments from and repayments to the Public Purpose Fund. Third, the bill contains amendments to repeal transitional provisions concerning barristers of the Australian Capital Territory. These provisions are no longer necessary now that the Australian Capital Territory has enacted the national model legislation, and Australian Capital Territory barristers are now required to hold separate practising certificates.

Fourth, the bill contains amendments to the Administrative Decisions Tribunal Act 1997 in relation to the qualifications for appointment of a person as the divisional head of the Legal Services Division of the Administrative Decisions Tribunal, so that the appointee may be a judicial officer who does not hold a current practising certificate. Fifth, the bill contains other amendments of a minor, consequential or ancillary nature. Finally, the bill will also abolish the Legal Profession Advisory Council. The advisory council is an advisory committee that meets on an ad hoc basis to advise the Attorney General on the role and function of the legal profession.

With the move to a national scheme of legal profession regulation, there is no longer a role for a State-based advisory group. The National Legal Profession Joint Working Party now performs this function. The joint working party consists of representatives from each State and Territory, and four representatives from the Law Council of Australia. I take this opportunity to recognise the contribution that the council has made to the regulation of the legal profession in this State over its 12 years of operation. I also thank all council members and executive officers that have served the Attorney General and his predecessors so ably. I commend the bill to the House.

The Hon. DAVID CLARKE [8.38 p.m.]: The Legal Profession Further Amendment Bill is part of a continuing process initiated by the Standing Committee of Attorneys-General of bringing the legal profession in Australia's separate States and Territories into line with a national model and code. This is a process that is sensible and inevitable because of the growing outreach of Federal legislation and the synchronisation of legislation between the States and Territories. It is a process that has evolved through a natural progression. Similarly it is the case with the development of the legal profession throughout Australia, which is evolving along the lines of a national model.

The bill amends both the Legal Profession Act 2004 and the Administrative Decisions Tribunal Act 1997. It is not opposed by the Coalition. Specific amendments to the Legal Profession Act 2004 include removal of the power of the admission board to refer to the Supreme Court the issue of whether an applicant for admission to the legal profession is a fit and proper person to be admitted, and also the board's power to refer to the Supreme Court an application by a person for an early consideration as to whether something disclosed by the person will adversely affect an assessment by the admission board as to whether the person is a fit and proper person to be admitted. A mechanism will still be in place whereby an applicant will be able to appeal to the Supreme Court against an adverse decision of the admission board.

The bill clarifies that the admission board is entitled to be represented and heard at appeals to the Supreme Court against the board's decisions. The amendments make clear that the admission board, in determining applications for admission to the legal profession, must refuse the application unless it is satisfied that the applicant is both eligible for admission and a fit and proper person to be admitted. If the board does not make its decision within the time specified it is taken to have refused the application. There is an extension of time by which an application for the grant of a local practising certificate must be determined to cover the period during which the application can be subject to investigation and consideration.

The procedures for payments in and out of the Public Purpose Fund are revamped so as to enable supplementary amounts to be payable from the fund to beneficiaries for underpayments and to require repayment of amounts overpaid. In additional, costs incurred by the admission board in an appeal to the Supreme Court against a decision of the board are payable from the fund. The Legal Profession Act 2004 is amended so as to abolish the legal Profession Advisory Council, whose purpose had been to review and advise on the structure and functions of the legal profession in New South Wales and to advise on any proposed regulations referred to it by the Attorney General. This change is in recognition of the fact that the Law Society of New South Wales and the Bar Council of New South Wales effectively fulfil the advisory role originally designated for the Legal Profession Advisory Council.

The requirement for barristers from the Australian Capital Territory to be granted local practising certificates is deleted, because it is no longer necessary, due to the national regulation of the profession. The Legal Profession Act is amended to ensure that its terminology is consistent with that used in the Uniform Civil Procedure Rules 2005 and also to align the Act more closely with legal profession model legislation, as approved by the Standing Committee of Attorneys-General. The Administrative Decisions Tribunal Act 1997 is amended to provide that the deputy president, who presides over the Legal Services Division, must be a lawyer but need not be appointed from the barrister and solicitor members of the division. As I indicated earlier, the 22 November 2006 LEGISLATIVE COUNCIL 4575

Coalition does not oppose the bill. It will streamline the legal profession in New South Wales in unison with the continuing streamlining of the legal profession in other Australian jurisdictions as they evolve into a national model and code. This process is good for the legal profession and also good for the consumer public.

The Hon. MICHAEL COSTA (Treasurer, Minister for Infrastructure, and Minister for the Hunter) [8.43 p.m.], in reply: I thank honourable members for their contributions to the debate. I commend the bill to the House.

Motion agreed to.

Bill read a second time and passed through remaining stages.

RURAL LANDS PROTECTION AMENDMENT BILL

Second Reading

The Hon. MICHAEL COSTA (Treasurer, Minister for Infrastructure, and Minister for the Hunter) [8.43 p.m.], on behalf of the Hon. Tony Kelly: I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The Rural Lands Protection Bill 2006 introduces practical changes to the Rural Lands Protection Act 1998 to simplify administrative requirements of boards, while ensuring that strong financial accountability and reporting is maintained.

These changes will streamline the financial and reporting obligations of the State Council and the 47 rural lands protection boards across New South Wales.

Streamlining these requirements will mean that boards will find it far less onerous to meet their financial and auditing responsibilities.

I would like to remind the House that rural lands protection boards and their predecessor organisations have been protecting rural lands in New South Wales since 1863.

The role of boards has expanded considerably since then, of course, and they now deliver services that are vital to many thousands of rural landholders.

These days, the services that the boards undertake are numerous.

For instance, they are at the frontline in responding to animal health emergencies. Boards play a crucial role in managing endemic diseases and controlling exotic disease outbreaks. They are also an essential information resource for landholders seeking advice about animal health.

Boards are also in the frontline for dealing with pest emergencies and implementing major pest control campaigns. Such campaigns minimise the risk of economic loss arising from pest outbreaks.

Further, boards manage travelling stock routes and reserves, and stock movement and identification. And significantly for these times, they assist with drought management and natural disaster relief.

The rural lands protection board system is unique among other states and territories in that they are at the forefront of NSW's emergency response capability. Boards are funded through landholder rates.

In this capacity, boards are essential for protecting rural lands.

The bill before the House today had its origins in a comprehensive review of the Rural Lands Protection Act in 2004.

This was a five-year statutory review required under section 248 of the Act.

The review was comprehensive and included stakeholders such as NSW Farmers' Association, representatives of ratepayers, NSW Treasury and The Cabinet Office among others.

Extensive consultation was undertaken and over 190 submissions received. As a result of this process, wide-ranging recommendations were made to amend the Act.

The purpose of this Rural Lands Protection Bill 2006 is to put in place the first of those recommendations. 4576 LEGISLATIVE COUNCIL 22 November 2006

The other important recommendations made by the review group will be the subject of a subsequent Bill once there has been further consideration.

Before I discuss the changes to be made by this Bill, I would like to note that when the boards' auditing and reporting obligations commence, a change to the regulations will also be made to remove boards from the Public Authorities (Financial Arrangements) Act 1987.

It is reasonable that under the new arrangements, boards no longer have access to financial products or services that are available to public authorities, which are subject to statutory reporting obligations.

Instead, boards will be restricted in the manner in which they can invest their money to investments that are approved by their Minister, in consultation with the Treasurer. It is further proposed, that boards be restricted from accessing Treasury Corporation Loans.

State Council has been advised that until such time as those changes are formally made to the Regulations, boards will not be permitted to access T-Corp loans.

Turning then to the provisions of this Bill, I note that overall, it puts forward practical and sensible amendments to the financial accountability requirements of the boards and State Council.

At present, boards and State Council are subject to sometimes onerous auditing and reporting requirements.

The bill addresses these requirements and proposes less burdensome, but equally accountable and transparent financial reporting requirements.

At present, all the boards are subject to the requirement to prepare annual reports and submit them to State Council, and this will not change.

However, State Council must also prepare an annual report, and has just four months after the end of its financial year, that is, by 30 April, to do so, under the requirements of the Annual Reports (Statutory Bodies) Act 1984.

The situation with State Council and boards is unusual in that each board is required to submit their audited financial statements to State Council.

State Council then prepares an annual report that refers to reports received from boards, and a report as to whether the auditing of boards' financial reports has been satisfactory.

Extending the period in which State Council is required to complete its annual report to eight months will provide adequate time in which to complete this task. State Council's annual report will now be due by 31 August, not 30 April.

The first amendment in this bill then is to ease the tight time constraints for financial reporting by State Council.

The second group of amendments in the bill addresses the streamlining of the financial reporting and auditing requirements to which the boards are subject.

Since 1998, the State Council and all the boards have been subject to the requirements of the Public Finance and Audit Act 1983.

The statutory review group acknowledged that the compliance burden on boards in satisfying the requirements of the Public Finance and Audit Act was significant.

All boards have been affected by increases in audit and accounting costs but, in particular, boards with relatively low numbers of ratepayers have been most adversely affected.

By making the changes proposed in the bill, boards will be relieved of the reporting requirements under the Public Finance and Audit Act.

However, the amendments proposed in this bill will ensure that high levels of accountability in financial reporting and auditing are maintained, as is appropriate for statutory bodies.

The bill provides that detailed accounting records are to be prepared and maintained by rural lands protection boards.

This means that the boards will be required to keep accounting records that substantiate their financial transactions and their financial position.

Further, they will have to prepare annual financial reports that comply with Australian accounting standards and fairly present their financial position and operations.

As well, strict time requirements will be imposed on the boards for preparation and reporting on financial statements. Boards will be required to submit their annual financial reports to their auditors within three months of the end of the financial year.

In turn, auditors must complete their audits within six weeks after a financial report has been submitted to them, and send a copy to the board and to the State Council.

These new financial recording reporting and recording requirements reflect best practice accounting standards. They will also ensure robust and effective financial reporting by the boards.

22 November 2006 LEGISLATIVE COUNCIL 4577

The next area of change in the financial management of the boards is the introduction of new auditing arrangements.

At present, State Council and the boards may be subject to performance audits of all or any of their activities by the Auditor-General under the Public Finance and Audit Act.

The review found that there had been significant increases in auditing and accounting costs for boards. It also compared boards with other statutory authorities, which revealed that boards' compliance costs were relatively high when considered as a percentage of total expenditure.

Finally, the review group noted that two audits of the board system in accordance with the Public Finance and Audit Act did not disclose any adverse findings.

In light of these findings, the review group concluded that boards should be removed from the requirements of the Public Finance and Audit Act, and that more cost effective audit arrangements should be implemented.

The amendments outlined in the bill provide not only for better cost effectiveness, but also for high standards of financial accountability in auditing.

Boards will be able to appoint an independent auditor to audit their financial records, subject to State Council's approval. The bill provides that only appropriately qualified auditors may be appointed and sets out persons who are disqualified from appointment.

Auditors must be registered company auditors, and State Council must approve both their appointment, and their removal.

Audits must comply with standards and pronouncements of the Commonwealth Auditing and Assurance Standards Board or such other standards as prescribed by the regulations.

Auditors will have wide powers to carry out their work. They will be able to inspect and access a board's accounting or other relevant records and obtain the information necessary to carry out the audit.

Importantly, auditors will be able to direct a board or staff member to provide information or answer a question that may be relevant to an audit.

An auditor appointed by a board will be required to prepare not only a general purpose auditing report, but also a report on the conduct of the audit. This is an additional compliance measure that will allow auditors to highlight any problems with the conduct of the audit.

By specifying what information must be included in a report, consistency in auditing is ensured across all boards.

Should a board fail to appoint an auditor, or an auditor's office becomes vacant, the Auditor General will be authorised to undertake the audit of the board's financial report.

The Government acknowledges the significant accounting and reporting burden placed on boards at present.

It is clear, , that the bill implements sensible changes to ease this auditing and reporting burden on boards and to provide a more cost effective reporting regime.

The Government is fully committed to ensuring that as statutory authorities, boards remain transparent in their activities, and properly accountable to their stakeholders.

The bill introduces a set of useful and practical amendments to the Rural Lands Protection Act and, at the same time, ensures high levels of transparency and accountability in the conduct of boards' financial reporting.

The effect of these amendments will allow the 47 rural lands protection boards across New South Wales to operate more efficiently, and in turn, enhance the protection of our rural lands.

The changes in the bill will be welcomed by ratepayers and the general community.

I commend the bill to the House.

The Hon. DUNCAN GAY (Deputy Leader of the Opposition) [8.44 p.m.]: The Opposition will not oppose the Rural Lands Protection Amendment Bill. I note that the Minister for Natural Resources, Minister for Primary Industries, and Minister for Mineral Resources is not in the Chamber. It is not surprising to have a bill in his portfolio debated in his absence⎯this is certainly not the first time that has happened, but I suspect it might be the last. The bill endeavours to amend the accounting and auditing obligations of the rural lands protection boards [RLPBs] and the State council.

[Interruption.]

The DEPUTY-PRESIDENT (The Hon. Christine Robertson): Order! I remind members that interjections are disorderly at all times.

The Hon. DUNCAN GAY: I had not acknowledged the interjection; it was just wasting time—white noise in the background. As I said, the bill endeavours to amend the accounting and auditing obligations of the 4578 LEGISLATIVE COUNCIL 22 November 2006

rural lands protection boards and the State council. The Government claims that these changes will ensure responsible financial reporting for boards in accordance with the current Australian standards, but at a significantly lower cost. It is commendable that the bill will streamline the financial and reporting obligations for the State council and the 47 rural lands protection boards in New South Wales. I find it a delicious irony that the Minister brings in a bill to streamline the accountancy procedures for the rural lands protections boards when he has already made a farce of their salaries.

The rural lands protection boards faced a similar situation to local government employees. The employees of local government were on State awards, as are the rural lands protection board employees. Under this brave new world of the Labor Government, when it took over the boards and put their anti-John Howard laws in place, the employees went from the control of local government, or the control of the rural lands protection boards, to the control of the Government. The Minister for Local Government, Kerry Hickey, introduced a regulation and changed that arrangement, so that the people who worked for local government could continue to do so. But the Minister for Primary Industries, the Hon. Ian Macdonald, was not prepared to do that. Minister Macdonald, the leader of the hard Left in the Labor Party, was going to be a factional warrior and carry on the Minister for Industrial Relations' war against John Howard. That meant that those employees were no longer employees of the local rural lands protection boards but became employees of the State council, through a roundabout system.

That has meant a huge extra cost burden on rural lands protection boards. I note that the Treasurer is in the Chamber. He has many faults, but one of the good things about him is that he is diligent, and claims to be diligent when it comes to wasting money. I tell the Treasurer that his Leftie mate has ensured the biggest waste of money through this regime. It is incredible that that has been put on the rural lands protection boards for their staff just because this left-wing warrior wants to fight the class war and have a go at John Howard. The Treasurer has a friend and colleague from the Hunter Valley, who is very fast in acting in these things, the Minister for Local Government, Kerry Hickey. He was able to see that there was a problem in local government and he made a small change that overcame that problem.

That is the irony I see in this sensible bill. If the bill does what it claims it will do it will remove some of the impediments with the auditing and accounting obligations. Now the Minister has done that he must take the next step to enable RLPBs to employ their own staff. They would still come under the charter of the State Government. If the Minister took the same steps that were taken by the Minister for Local Government he would be doing RLPBs a huge favour. The Opposition does not oppose this bill.

The Hon. MICHAEL COSTA (Treasurer, Minister for Infrastructure, and Minister for the Hunter) [8.49 p.m.], in reply: I thank honourable members for their contributions to debate on this bill and commend it to the House.

Motion agreed to.

Bill read a second time and passed through remaining stages.

BUSINESS OF THE HOUSE

Suspension of Standing and Sessional Orders

Motion by the Hon. Dr Arthur Chesterfield-Evans agreed to:

That standing and sessional orders be suspended to allow a motion to be moved forthwith that Private Members' Business item No. 168 outside the Order of Precedence, relating to the Sale of Goods and Warehousemen's Liens (Bulk Goods) Bill 2006, be called on forthwith.

Order of Business

Motion by the Hon. Dr Arthur Chesterfield-Evans agreed to:

That Private Members' Business item No. 168 outside the Order of Precedence be called on forthwith.

SALE OF GOODS AND WAREHOUSEMEN'S LIENS AMENDMENT (BULK GOODS) BILL

Second Reading

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [8.52 p.m.]: I move:

That this bill be now read a second time.

22 November 2006 LEGISLATIVE COUNCIL 4579

I seek leave to incorporate my second reading speech in Hansard.

Leave granted.

The Sale of Goods and Warehousemen's Liens Amendment (Bulk Goods) Bill 2006 addresses potentially serious implications for producers who, in good faith, have placed their product in the hands of a third party for storage purposes. Every country representative in this place would be familiar with grain storage facilities as they are a common sight in most communities. These large concrete structures dominate the landscape, and are often located adjacent to main highways or railways.

Following consultation with a group of farmers who were facing the loss of around $150,000 worth of grain held in bulk storage, the Member for Tamworth, Mr Peter Draper, raised their concerns in the Parliament in October 2005 and called on the Government to amend grain storage agreements to reflect title ownership of the produce by the farmer.

This call was prompted by the collapse of Liverpool Plains-based Creasy Grain Enterprises in August 2005. Afterwards, the administrator, Ferrier Hodgson, told six-grain producers, who had 1,000 tonnes of sorghum and barley stored in the company's Premer silos, that they could no longer claim ownership to their grain. This antiquated stance was based on a 1933 court case involving Chapman Bros v Verco Bros. and Company Limited and Another over the ownership of bagged grain.

The court ruled that, as ownership of the mingled grain could not be determined, the owner of the storage facility was deemed to be the owner of the grain. Lawyers acting for Ferrier Hodgson revived this precedent, leaving the six Premer producers potentially out of pocket.

At the time of the group's collapse, it had debts of more than $23 million. Despite initial assurances that their grain would be returned, the farmers were later told that they no longer held title to the grain. Growers whose grain was held by Creasy launched a legal challenge against Ferrier Hodgson to win back their rights. The matter, however, was never fully tested in the court system and was settled out of court for $97,000, representing the then market value of the grain plus a proportion of legal costs.

The matter settled without either party admitting liability. However, it was unclear whether the growers would have been successful in their campaign to win back their produce had it been completed through the court system, and it was perhaps the high level of publicity that the case had generated which prompted Ferrier Hodgson to make the settlement.

While the result was excellent news for the farmers, who stood to lose their grain from a dispute that should have never arisen in the first place, the risk remains that other farmers could find themselves in similar circumstances should there be another collapse.

Mr Draper first raised this issue in the Parliament in October 2005 and he later received written notification from the Attorney General, Bob Debus, that the Government would "closely examine the question of grain ownership and the practicalities, legal and otherwise, of farmers recovering an interest in grain that has been delivered to a silo".

Following this reassurance little progress was made towards securing farmers against similar action to the Ferrier Hodgson debacle. In the interests of preventing more farmers from being robbed of what is rightfully theirs, Mr Draper drafted this bill.

The bill was introduced by Mr Draper in the other place on the 14th November, and was passed unanimously on the 16th November and I am honoured to have carriage of the bill in the Legislative Council.

Given the broad impacts of the ongoing drought in New South Wales, there is a significant risk that more agriculturally dependent businesses, including storage facilities, may be forced into receivership through difficult market conditions.

Such circumstances could create a similar situation as occurred with Creasy, tangling other farmers up in a legal battle over product ownership.

Australia has one of the most variable rainfall climates in the world. The likelihood of the drought continuing into the near future is high. Over the long term, farmers experience about three good years and three bad years out of 10. With the current weather patterns continuing to affect temperature and rainfall in New South Wales, the risk of drought-induced financial difficulties for rural business remains significant.

The bill will clarify ownership of bulk goods, such as grain, wine or other goods, that are produced by individuals but are stored in a communal facility. Bulk goods are goods that have been deposited by their owners into storage with goods of the same kind that are owned by others.

As such, the goods of one owner become intermingled with the goods of another—for example, with grain or wine.

The bill will prevent farmers from going through the legal minefield that the Premer grain growers had to endure. Their case was long and protracted and was finally settled out of court but there is no legal precedent to stop the antiquated 1933 ruling being used again.

Under section 21 of the Sale of Goods Act 1923, where there is a contract for the sale of unascertained goods, no property in the goods is transferred to the buyer unless and until the goods are ascertained. Currently the storage of goods in bulk facilities is considered unascertained.

The goods become ascertained only once they have been separated from the bulk. In the case of grain, this is when it is loaded on a truck for delivery. Schedule 1 inserts into the Sale of Goods Act 1923 a new section 25A that generally follows the provisions of section 10A and section 20B of the United Kingdom's Sale of Goods Act 1979. 4580 LEGISLATIVE COUNCIL 22 November 2006

The bill will amend the Sale of Goods Act 1923 to ensure that a purchaser of goods to be delivered from a bulk storage can, by paying for them, obtain a proprietary right to the goods before they are separated out from the bulk. It will also amend the Warehousemen's Liens Act 1935 to ensure that an owner of goods delivered into bulk storage retains a proprietary right to those goods after they have become part of bulk storage.

Schedule 2 inserts new section 9A into the Warehousemen's Liens Act 1935 to reflect the approach taken in schedule 1 in respect of the Sale of Goods Act 1923.

The bill will remove the uncertainty facing our farmers in these difficult times of drought. Mr Draper has consulted with the honourable member for the Northern Tablelands and the honourable member for Dubbo, who all share concerns that unless the bill is passed by Parliament, farmers may face further legal disadvantage in the future.

This is a fine example of how the Independents in Lower House and Minor Parties such as the Australian Democrats in the Upper House can and do work together to help our constituents.

I share the Honourable members concerns and I am pleased to have carriage of this bill in the Upper House. The Member for Tamworth and I urge both sides of the House to consider the positive implications of this bill and vote accordingly.

Farmers are facing considerable hardship from what is now being dubbed the worst drought in 1,000 years. They need to be protected against any unnecessary legal disputes. The bill is an excellent solution that will prevent future situations that may be similar to that faced by the Premer farmers in the Creasy incident. On behalf of the Member for Tamworth and the grain growers who have been affected by the collapse of Creasy Grain Enterprises, I commend the bill to the House.

The Hon. DAVID CLARKE [8.54 p.m.]: The Coalition does not oppose the Sale of Goods and Warehousemen's Liens Amendment (Bulk Goods) Bill.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [8.54 p.m.], in reply: I thank the Hon. David Clarke for his contribution to the bill and commend it to the House.

Motion agreed to.

Bill read a second time and passed through remaining stages.

BUSINESS OF THE HOUSE

Suspension of Standing and Sessional Orders

Motion by the Hon. Dr Arthur Chesterfield-Evans agreed to:

That standing and sessional orders be suspended to allow a motion to be moved forthwith that Private Members' Business item No. 160 outside the Order of Precedence, relating to the Freedom of Information Amendment (Open Government—Disclosure of Contracts) Bill 2006, be called on forthwith.

Order of Business

Motion by the Hon. Dr Arthur Chesterfield-Evans agreed to:

That Private Members' Business item No. 160 outside the Order of Precedence be called on forthwith.

FREEDOM OF INFORMATION AMENDMENT (OPEN GOVERNMENT—DISCLOSURE OF CONTRACTS) BILL

Second Reading

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [8.56 p.m.]: I move:

That this bill be now read a second time.

On 4 May 2000 I gave notice of the introduction of the Government (Open Market) Competition Bill in the Legislative Council. The bill was introduced and had its first and second readings on 9 May 2002. The Legislative Council debated the bill in June, August, and September 2002. The Legislative Council also debated amendments to the bill on 5 September, whereupon it passed and was forwarded by the Clerk of the Parliaments for presentation to the Legislative Assembly. Ms Clover Moore, MP, introduced the bill in the other place on 17 September 2002. On prorogation of the Parliament on 31 January 2003 the bill lapsed and proceeded no further. 22 November 2006 LEGISLATIVE COUNCIL 4581

The bill that was reintroduced in 2003 was almost identical to the original bill except for the definition of a public authority. The earlier definition listed types of entities such as the Government, statutory bodies representing the Crown, and so forth. In the Committee stage in 2002 I moved an amendment to change the definition to that used in the Ombudsman Act 1974, but was unsuccessful. That attempted amendment has been incorporated in the 2003 bill. Ms Clover Moore gave notice of motion for the bill in the Legislative Assembly on 7 May 2003 and introduced it in that House on 22 May 2003. On 3 July 2003 the Legislative Assembly referred the bill to the Public Accounts Committee for consideration and report. When that committee reported in October 2004 it made four recommendations, which are as follows:

RECOMMENDATION 1: That the Committee advises the Legislative Assembly of its view that Premier's Memorandum 2000- 11 should be reinforced as the standard for compliance by agencies in relation to disclosure of government contract information.

RECOMMENDATION 2: That the Audit Office conduct a compliance review of Premier's Memorandum 2000-11, in its 2004-05 program as a means of establishing a baseline of agency compliance with the provisions of the Memorandum.

RECOMMENDATION 3: That the Committee advises the Legislative Assembly of its view that there are sufficient current checks and balances in place through agencies issuing grants to satisfy auditing conditions and address any breaches of funding agreements.

RECOMMENDATION 4: That the outcomes of the Grants Administration Review be referred to New South Wales' government agencies for consideration as a model for grants administration.

On 1 December 2005 the honourable member for Bligh, Ms Clover Moore, introduced this bill in the other place and it passed through that House on 26 October 2006. There were a number of amendments to the bill. What we have before us is the second print of the bill with those amendments. I turn now to the substance of the bill. In her second reading speech on 1 December 2005 in the other place, Ms Moore said:

In New South Wales we already have voluntary guidelines, issued by the Premier's Department, referred to as the Premier's Memorandum 2000-11, for public agencies to disclose the terms of major contracts with the private sector. This bill takes the important step of legislating to make those guidelines mandatory and to give them the force of law. I note that the Auditor-General's report to Parliament recommends that. Locating the new legislative provisions within the Freedom of Information Act is consistent with the underlying philosophy that the public has a right to access information. It is also consistent with the approach taken in other jurisdictions. Members of the public have a right to request specific documents on demand, and the Government is obligated to comply unless it can be clearly demonstrated that it is against the public interest to release the information.

This bill further promotes the objectives of the Freedom of Information Act by putting additional obligations on government agencies to publish summaries of major contracts with the private sector—making them more accessible to the public, and facilitating individual requests for specific documents. The bill includes new "commercial in confidence" definitions, to limit the scope for exemptions and clarify the obligations of government agencies. Strengthening the existing freedom of information obligations and incorporating the existing administrative guidelines ensures that this approach is practical and workable for government, and complies with the Auditor-General's recommendations. While this bill proposes modest and achievable reforms, at the same time it also represents a very significant move to improve public accountability and public confidence in the delivery of major infrastructure projects in New South Wales.

As I mentioned previously, in the course of the debate in the other place the Government proposed a number of amendments to the original bill, which were agreed to. The main changes to the bill as a result of these amendments were as follows. First, State-owned corporations are excluded from disclosure requirements. Under the original Premier's memorandum, disclosure by State-owned corporations was optional. The memorandum said it:

…. may be implemented by those State Owned Corporations that include the guidelines in their statements of corporate intent by way of agreement between their shareholding Ministers and boards.

The initial private member's bill extended disclosure requirements to all State-owned corporations but the Government removed this provision. The Government stated that it was not prepared to extend the mandatory disclosure provisions to State-owned corporations at this point in time. However, the Government said that it would actively encourage disclosure from State-owned corporations. One can only hope that when the new disclosure requirements have been introduced and are working for government departments, with the obvious public benefits, disclosure will be extended to State-owned corporations.

Secondly, rather than having just two main categories of contracts in the initial bill—under and over $5 million—the amendments introduce a three-tier approach. The under or over $5 million division is retained but contracts under $5 million are broken down into two categories with different disclosure requirements. The contract must be published for contracts with a value of more than $5 million, while "particulars", as specified 4582 LEGISLATIVE COUNCIL 22 November 2006

in the bill, must be published for contracts under $5 million. Thirdly, local government is included. A new provision was added to the bill to permit local government agencies to comply with these disclosure requirements through regulations. In my original bill local government was also included.

I have spoken in the House on more than 30 occasions about the need for governments—in particular, this Government—to be more open and accountable. In December 2001 I organised a forum on the issue of open government that was attended by speakers from as far afield as Canada and New Zealand. The European information commissioner, who is Irish, also attended. My State and Federal colleagues have introduced similar legislation. The Australian Democrats' commitment to openness and accountability is reflected in the Federal Freedom of Information (Open Government) Bill, introduced by the Australian Democrats. My State colleague in South Australia the Hon. Ian Gilfillan introduced a bill entitled Freedom of Information (Miscellaneous) Bill.

The main problems with all freedom of information [FOI] regimes can be categorised as: first, a persistent culture of secrecy; secondly, prohibitive charges; thirdly, excessive use of exemptions, especially commercial in confidence and Cabinet in confidence; and, fourthly, a lack of independent oversight. New Zealand has led the way with its approach to the provision of government information to the public. New Zealand introduced the Official Information Act in 1982. It was widened in 1987 and revised in 1998, but not amended. The Chief Ombudsman of New Zealand, Sir Brian Elwood, spoke at the open government forum in December 2001 and praised the success of the legislation. He said the usual Chicken Little concerns about the sky falling in were made when the legislation was introduced—business said that it would collapse, the Government was not supposed to survive, and so on. None of this happened, and apparently everything works well. When the bill was revisited in 1998 it was not amended, which is highly significant.

I have argued for a long time that the paradigm of the freedom of information legislation in this country is wrong. The presumption is for non-disclosure unless there is a reason to disclose. The New Zealand legislation turns this around so that information is made available unless there is a good reason under the Act to withhold it. Merely claiming commercial in confidence or Cabinet in confidence is not enough. As the years of the Carr and Iemma regimes dragged on, it became more apparent that less and less important information was seeing the light of day. Requests for information are routinely denied, usually with the pathetic cry that the information is commercial in confidence or that it is a Cabinet document.

Most recently I tried to obtain a report by Ron Christie, the erstwhile Chief Executive Officer of the Olympic Roads and Transport Authority. The report, entitled "Long term strategic plan for rail", was an examination of Sydney's future transport requirements. I asked the Minister for a copy of the report and was told that it was a Cabinet document. The report is public property and should be available to all. In recent years in this place I have seen calls for the contracts on the M2 Motorway, the M5 East, the Fox Studios development, Luna Park, Sydney Markets and, more recently, Beacon Hill High School, among many others. All requests to make contracts public are denied initially, and honourable members must often use Standing Order 52 to winkle out information. Many committees of inquiry have been established merely because we could not get information from the Government. An enormous amount of time has been wasted chasing information.

Robert Cianfrano is a constituent who has been challenging the FOI laws for many years. He has been trying to get information regarding the sale of public assets, in particular the Sydney Markets site at Flemington and the Beacon Hill High School site. The level of obfuscation, delay, buck-passing and time wasting by government departments is staggering. Mr Cianfrano is forced regularly to challenge decisions not to release documents through the Administrative Appeals Tribunal. The Government fights these actions all the way, wasting taxpayers' money by hiding documents that should be publicly available as a matter of course.

On 16 November 2004 in this House I asked how much it had cost the Government to stop Mr Cianfrano getting the information he sought. The answer from the Premier's Department was that it did not pay the Crown Solicitor any fees for the work but the costs were covered by a "core legal services" arrangement between the two departments—once again, no answer and more obfuscation! Mr Cianfrano pursued the matter, and finally got documents showing the amount the Crown Solicitor had charged other agencies for his FOI requests. For the period from 1 July 2004 to 2 March 2006 the fees totalled $210,929. That is staggering. It is a scandal and an outrage that so much money is being wasted trying to keep the Government's failings secret.

The most recent debacle regarding the FOI legislation involves the sale of Beacon Hill High School. Sue Covey, a member of the Save Beacon Hill High School Committee, spoke to me in 2003 about the closure of the school. On 21 December 2004 the House passed a motion under Standing Order 52 that documents relating to the closure of Beacon Hill High School be tabled. Sue Covey had made numerous FOI applications 22 November 2006 LEGISLATIVE COUNCIL 4583

for the same documents dating as far back as 2003. She received a letter dated 18 September 2006 from the Director General of the Department of Education and Training, Dr Andrew Cappie-Wood, admitting that one document had not been provided under FOI and the Legislative Council resolution. This was a restructure proposal entitled "New Horizons: A Proposal to Restructure Secondary Education in the Northern Beaches District". It was an information document prepared by the department and released in early 2000.

The document, not surprisingly, recommended that Beacon Hill High School should not be closed. It was a beautifully produced, multi-coloured document—well laid out and containing graphic art images—that was obviously designed to be a public brief. It was obviously a well-developed, informative brochure intended for public distribution and involving high production costs. The non-disclosure of the document reveals the abject failure of FOI in New South Wales and the supposed document management systems about which I have asked a great many questions. It also demonstrates the Government's utter contempt for this House and the Parliament.

The document was an elaborate colour brochure—I have it in my hand. It was not a draft but a printed document designed to provide the public with information about the options. Not only did it disappear without a trace but it could not be found in response to a parliamentary resolution or under an FOI application. When the NSW Ombudsman examined the matter he merely said the closure process was not clear but, as the decision had been made to close the school, it was basically tough luck. That is the way FOI works in New South Wales, and it is totally unsatisfactory.

The document "New Horizons" only came to light when Sue Covey examined a development application, with it attached, for the Beacon Hill High School site that came before Warringah Council. In May 2000 a 29-page document was issued by the then director general, Ken Boston, called "The Northern Beaches District Strategy Analysis and Plan for Secondary Education". This plan did not include the retention of Beacon Hill High School. Basically, although a plan of analysis recommended retaining the school, when Parliament called for documents under Standing Order 52 the documents were not produced. If Parliament cannot succeed in getting papers, how can members of the public expect any guarantee of probity from the legislation? The legislation is fundamentally flawed. It works on the principle that secrecy is the baseline and any access to information is against the norm.

This bill, which discloses the Government contracts, is a small step towards open government in New South Wales. Clover Moore says she thinks it is a great step forward. I think people have to realise that there is still an immense amount of work to do. Simply putting up government contracts is not sufficient. Hopefully, in time the Government or, we can only hope, the Opposition, will realise that once the new regime is in place the sky will not fall in and that having documents available for the public actually engenders greater trust in the Government—something that is lacking in the present State of secrecy, which is New South Wales. Although this bill only makes modest progress, I commend it to the House.

The Hon. MICHAEL GALLACHER (Leader of the Opposition) [9.11 p.m.]: The Opposition supports the thrust and principles of the amendments set out in the Freedom of Information Amendment (Open Government Disclosure of Contracts) Bill. The bill amends the Freedom of Information Act by requiring that details of major contracts entered into between the Government and the private sector be published on the Internet within 90 days. It also defines certain matters regarding commercial-in-confidence provisions. The Coalition intends to go a long way further than debate on this bill. It is committed to far-reaching and overarching reforms of government, including, first, whole-of-government information delivery, second, New South Wales parliamentary processes and, third, reforms to the Freedom of Information Act.

The Coalition will bring New South Wales better into line with international best practice on information management and public access with the intention of opening up the workings of government to greater public scrutiny, in the interests of the people the Government serves, who deserve to be encouraged to better understand and involve themselves democratically in public policy. The Freedom of Information Act must be brought into the twenty-first century to encourage the proactive and collaborative release of information. The Opposition's reforms to improve whole-of-government information delivery will reduce the amount of information that is only available through reliance on the Freedom of Information Act.

The Coalition will improve the quality and quantity of information available through a range of avenues, including the Internet, annual and financial reports, and reports from government customer service agencies. It will conduct an audit of each department and statutory authority to identify which sets of information can be routinely posted on the Internet. The Coalition will require all agencies and public trading 4584 LEGISLATIVE COUNCIL 22 November 2006

enterprises to lodge contractual information, except for legitimate commercial-in-confidence information for significant projects, on public web sites. The to-be-established Freedom of Information Commissioner will independently determine where contract elements should remain confidential on the basis of commercial or other competitive confidentiality.

The Coalition will instigate a review of the Freedom of Information Act which will report within the first six months of a Liberal-National Coalition Government. The review will involve public hearings and it will invite public submissions. The intention of the review will be to bring the Act into the twenty-first century to encourage the proactive and collaborative release of information. The Coalition will create a proper appeals and evaluation process with the creation of an independent watchdog. The Freedom of Information Commissioner will create greater confidence in the conduct of the Freedom of Information Act by creating separate responsibility for the evaluation of the Government's freedom of information performance through the Freedom of Information Commissioner within the office of the NSW Ombudsman. The commissioner will also provide an appeal mechanism in respect of the availability of commercial contract information. It will report annually to Parliament on the conduct of the Act.

The Coalition will have a default position that the information should be made available, except in the face of legitimate exemptions, and that the Act is intended to lead to the production of information from relevant source documents, rather than strictly documents, which is the current approach. The Government's agency should be required to explain the reasons for any refusal to grant an application under the Act. With regard to that principle, the Coalition will consider the feasibility of reducing the period of time applying to the quarantine of Cabinet documents from freedom of information to less than the current 10 years. The shadow Minister for the Reform of Government, Ms Peta Seaton, outlined further reforms proposed by the Coalition to improve transparency in Government decision making during her reply to this bill in another place. The Opposition does not oppose this bill. It finds within it significant areas of consistency with its proposals to reform freedom of information and open government.

The Hon. MICHAEL COSTA (Treasurer, Minister for Infrastructure, and Minister for the Hunter) [9.14 p.m.]: The Government supports the bill.

[Interruption]

Ms LEE RHIANNON [9.15 p.m.]: The Treasurer can still grunt.

The Hon. Michael Costa: It was not a grunt.

Ms LEE RHIANNON: It was not a grunt? What was it, Treasurer?

The DEPUTY-PRESIDENT (The Hon. Christine Robertson): Order! I remind members that interjections are disorderly at all times.

Ms LEE RHIANNON: The Greens support the Freedom of Information Amendment (Open Government—Disclosure of Contracts) Bill. It is good we have such wide agreement on this bill, which has gone through the lower House, and we will have these changes. We will have a decent change in relation to freedom of information and access to what goes on between the Government and the private sector. The Government has decided to support this extremely minimal bill but it is not even a government bill. All the bill does is that it ensures that the public has access to information about contracts between the Government and the private sector, information that must be published on the Internet within 60 days, or two months, which is quite a long time.

The Hon. Greg Pearce: I know you could have done it better than the Hon. Dr Arthur Chesterfield-Evans but you cannot just do that.

Ms LEE RHIANNON: I am sure that when my colleague gives his speech in reply he will have some similar comments as he shares my concerns about how much time there is. Seriously this bill is totally minimal. We should also reflect on the fact that it is about a year ago that this State was in turmoil about the Cross City Tunnel.

The Hon. Duncan Gay: It is still in turmoil. 22 November 2006 LEGISLATIVE COUNCIL 4585

Ms LEE RHIANNON: Yes, I agree it is still in turmoil.

The Hon. Michael Costa: That is because of your bicycle lane.

Ms LEE RHIANNON: How is that for paranoia, when the Treasurer says a bicycle lane caused the Cross City Tunnel chaos? That is quite tragic. In all the chaos of the Cross City Tunnel there was a very clear reminder why the public needs to have information. Time and again as the story of the Cross City Tunnel unravelled we saw that the Government was not aware of the full details and consequences of the contract. I believe if there had been greater scrutiny a lot of the issues would not have arisen to the detriment of the public to the same degree. We also need to remember that public disclosure is already the case in many jurisdictions in the Australian Capital Territory, Victoria, New Zealand and Canada. Why cannot New South Wales have public disclosure? The Government should have legislated for it long ago but unfortunately the culture of this Government has become secretive. It finds it very difficult to move past that style of work. The Greens are pleased to support this bill. We will continue to do our own work on freedom of information. The Greens have been calling for a review of the whole legislation but such a review has not occurred for a decade, even though it has been called for by various authorities. It is a great tragedy that the Government has refused to conduct a review, because until we sort out how the public has access to information our democracy is greatly reduced.

Mr IAN COHEN [9.18 p.m.]: I support the Freedom of Information Amendment (Open Government—Disclosure of Contracts) Bill and the position taken by Ms Lee Rhiannon, who has led on this matter. This bill, which was moved in the Legislative Assembly by Clover Moore, seeks to require government departments to disclose major contracts with the private sector. It is a bill that moves in the right direction but does not go far enough. I understand that public disclosure of major government contracts with the private sector is common to other jurisdictions, such as Victoria, the Australian Capital Territory, and New Zealand. Adequate accountability mechanisms need to be built into the system. There needs to be public disclosure and public scrutiny. Where there is likely to be more public scrutiny, there may be more incentive for government departments to evaluate their decisions more rigorously before entering into arrangements with the private sector. We have seen numerous debacles involving this Labor Government and public-private partnerships. Closer scrutiny of those contracts may have prevented some of those debacles. I understand the bill is in part a response to the Cross City Tunnel experience.

The Greens have a strong record of supporting open government and public accountability. The people of New South Wales are all too familiar with the Government's attempts to stop access to information. My colleague Ms Lee Rhiannon has successfully passed the Freedom of Information Amendment (Improving Public Access to Information) Bill 2006 through this House, and the bill we are debating today continues to make some improvement to the Freedom of Information Act. I hope this trend continues and that further changes are made down the track to ensure greater government accountability and transparency. The video entitled "Bloopers" presented in Parliament House tonight is an indication of the state of New South Wales politics and why this bill is so necessary.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [9.23 p.m.], in reply: I thank honourable members for their contributions. I particularly note the Opposition's commitment to review the operation of freedom of information legislation in this State. If it has the opportunity I hope the Coalition will gravitate towards the New Zealand model, which reverses the onus of proof. Indeed, in New Zealand national interest is the only valid ground on which government contracts or government information may be kept secret. I think that excellent model goes far, far beyond the measures in this bill. However, the bill is encouraging. If the Coalition manages to win the election, it will need a lot of freedom of information power, because the public service culture at the moment is very much pro-government. The public sector tends to take its lead from its political masters, so for the Coalition to get any information from within the public service quite a culture change will have to occur. The Coalition will have to overcome that culture to be able to govern the State effectively. The bill is a moderate, but finite, contribution to freedom of information in New South Wales, and I commend it to the House.

Motion agreed to.

Bill read a second time and passed through remaining stages. 4586 LEGISLATIVE COUNCIL 22 November 2006

VICTIMS SUPPORT AND REHABILITATION AMENDMENT BILL

Second Reading

The Hon. MICHAEL COSTA (Treasurer, Minister for Infrastructure, and Minister for the Hunter) [9.23 p.m.], on behalf of the Hon. John Della Bosca: I move:

That this bill be now read a second time.

I seek leave to incorporate the second reading speech in Hansard.

Leave granted.

This Government has a proud record of supporting the needs of victims of crime. We have listened to victims and their support groups. We are responding by making some important changes in this Bill that will benefit victims of crime in NSW.

The main purpose of this Bill is to implement the key recommendations from the report of the statutory review of the Victims Support and Rehabilitation Act 1996 and the Victims Rights Act 1996. There will also be a change to the Crimes (Sentencing Procedure) Act 1999 concerning victim impact statements.

This Bill implements the majority of the report's recommendations. A small number of these recommendations have been changed or altered to take into account some of the concerns raised by stakeholders. It also contains a number of new reforms. The Victims Advisory Board and victims support groups have provided invaluable assistance in developing the changes contained in this Bill.

Victims Assistance Scheme

The report of the statutory review recommended that a scheme be established to allow victims of crime who are not eligible for statutory compensation to elect to be reimbursed for certain actual expenses up to a maximum amount.

Consultation with victims' groups has confirmed the need for such a scheme.

The Bill extends compensation to a new category of victims, who will be eligible to be reimbursed for certain prescribed expenses.

It will provide some financial relief for victims who currently fall under the threshold for statutory compensation for compensable injuries.

It will also allow victims to be reimbursed at an earlier stage for some of their expenses while their general statutory compensation claim (under section 14 of the Act) is determined.

The expansion of the scheme further emphasises the rehabilitation role of the Act. It is an important and practical way to assist victims to re-establish their lives in the aftermath of crime.

Eligible victims will be able to claim for actual expenses incurred as a result of an act of violence. These expenses must total at least $200 and cannot exceed $1,500.

The kinds of expenses that are recoverable will be set out in the Victims Support and Rehabilitation Regulation. So that Members can see what types of expenses will be covered by the scheme, the Regulation has been prepared and is set out in Schedule 4 of the Bill. The regulation will commence when the other provisions relating to the scheme commence.

The expenses to be covered by the expanded scheme include the provision of

• an ambulance service, • dental services, • physiotherapy, • domestic assistance during the victim's recovery from the act of violence, • cleaning of property (other than clothing or other wearable items), • security measures; and • the replacement of prescription glasses or prescription contact lenses.

The expanded scheme also contemplates that a victim may be eligible for compensation for prescribed expenses, but then may later wish to lodge a claim for general statutory compensation. This could be in circumstances where, for example, further medical evidence comes to light about a permanent disability that has resulted from the act of violence.

To prevent double dipping, the amount of any award for prescribed expenses will be deducted from a later successful award for general statutory compensation.

A person must lodge their application for prescribed expenses within two years of the act of violence. No leave can be given to accept a late application. 22 November 2006 LEGISLATIVE COUNCIL 4587

The process for applying for prescribed expenses will be simple. It is anticipated that once applications are received, they will be dealt with speedily. As a result no legal costs or other disbursements will be payable in relation to an application for prescribed expenses.

Where a person lodges an application for general statutory compensation, but is awarded prescribed expenses only, an assessor will have a discretion to award costs in special circumstances. This proposed section is designed to discourage applicants from lodging applications for general statutory compensation where there is a little prospect of receiving it. In the case of genuine applications for general statutory compensation, which are ultimately dismissed, the current law with respect to costs will continue to apply.

A victim will be able to have the amount of the prescribed expenses compensation award reviewed by the Director of Victim Services. Otherwise the usual review and appeal mechanisms applying to general compensation will apply.

Domestic violence and sexual assault victims

The Government is strongly committed to supporting victims of sexual assault and domestic violence. The Government has recently introduced a number of changes to the criminal law designed to protect women and children and send a message to perpetrators that their behaviour is totally unacceptable.

The Bill before the House contains further changes which will benefit victims of domestic violence and sexual assault. Previously a victim of domestic violence or sexual assault, in the absence of physical injuries, had to prove a psychological or psychiatric disorder before they were eligible to receive compensation or counselling under the Act.

The amendments in this Bill will improve access to compensation and counselling to victims of domestic violence and sexual assault who manifest psychological or psychiatric harm. In line with the common law, the requisite "harm" need not be permanent in nature, but must be more than merely transient or trifling.

This change recognises the unique nature of sexual assault and domestic violence offences and demonstrates the Government's commitment to supporting victims of these particularly traumatic crimes.

It also means that compensation assessors will generally be able to draw on existing documents relevant to the compensation claim, such as medical records, court records, counselling records and school reports to determine that there is an injury. This will remove the need for a victim to undergo additional psychiatric or psychological examinations. The process of applying for compensation will now be less traumatic for victims of sexual assault, including children.

The Bill also amends section 30 of the Act so that a compensation assessor will be able to consider other reports which the victim made to health professionals and other relevant agencies about the crime, not only reports they may have made to police. An assessor, when considering whether victims of sexual assault or domestic violence took reasonable steps to mitigate the extent of their injury, will also be required to have regard to the nature of the relationship between the victim and the offender.

The Bill narrows the definition of "domestic violence" to exclude instances of violence occurring in more remote re1ationships. While it has seldom occurred in practice, the report of the statutory review concluded that the use of the broad definition in the Crimes Act could lead to inappropriate compensation payments. For example, a victim who receives an injury inflicted by an ex-flat mate at a social event would, under the current law, automatically attract the minimum domestic violence award of $7,500. This type of relationship cannot properly be characterised as "domestic violence" for the purposes of compensation applications.

I emphasise that this change will not affect entitlements for victims of domestic violence in family settings or intimate relationships.

Family victims in homicide cases

The Government is always seeking appropriate ways to support the families of homicide victims. The Bill makes a number of changes which will directly benefit family victims in homicide cases.

The Bill makes a half sister or half brother eligible for compensation in homicide cases.

A person, including a victim's grandparent, who has incurred reasonable expenses for the funeral of a homicide victim will be reimbursed even if there is no "family victim" eligible for compensation. This amendment recognises that it is a traumatic time for the extended family and friends of a homicide victim. It is appropriate to extend this benefit to a person who organises and pays for the funeral of the primary victim.

In relation to an interim application for funeral expenses, the Bill provides that an assessor will be able to consider whether those expenses are "reasonable". Where it is considered that funeral expenses are excessive, all eligible family members may have to agree to the money being paid out of the $50,000 that is available for the family victim award.

The Bill amends the Crimes (Sentencing Procedure) Act 1999 to expand the categories of victims who are entitled, in homicide cases, to make a victim impact statement to include the homicide victim's grandparent, grandchild, half brother, half sister or fianc(e)é.

This amendment builds on the Government's commitment to ensuring that victims of crime, including family victims, have their voices heard in the court process at the time of sentencing.

Counselling

One of the main aims of the Act is to provide support and rehabilitation for victims through the provision of approved counselling.

4588 LEGISLATIVE COUNCIL 22 November 2006

There will be a number of changes to the counselling scheme which enhance the rehabilitative focus of the Act.

The Government is committed to processing an application for counselling within 48 hours. To make this possible in practice, victims of an act of violence will be able to apply for the initial two hours of counselling even if it has not yet been established that the person is a victim, provided the compensation assessor is satisfied that counselling may assist in establishing that they are a victim.

This change to the application process will give a counsellor the opportunity to assess the nature of any psychological or psychiatric harm before considering whether further counselling (up to a maximum of 20 hours) is needed.

As mentioned above, the Bill also changes the definition of "injury" to include psychological or psychiatric harm. Applicants for counselling who do not have a physical injury will benefit from this change, as it means that they will not need to provide that a psychological or psychiatric disorder exists before they are eligible for more than the initial 2 hours of counselling under the approved scheme.

The Bill also makes clear that a victim is entitled to apply for counselling even if an application for compensation was dealt with under the previous victims' compensation legislation (the Victims Compensation Act 1987).

The rules will contain further details about how the counselling scheme will operate and the rule making power has been expanded accordingly.

Other changes to the Victims Support and Rehabilitation Act

There are a number of other discrete changes to the Victims Support and Rehabilitation Act.

These include allowing a compensation assessor to adjourn a compensation application in matters where the applicant may be liable to pay restitution as a convicted offender. Compensation awarded to the applicant will be able to be set off against an existing or proposed restitution debt.

The Bill will also confirm that compensation is available to a victim even where the offender cannot be held criminally responsible for an offence because of age or mental illness or impairment.

The Bill clarifies the correct statutory path to follow when assessing the amount of compensation payable to a victim. It provides that the total amount payable for compensable injuries is the total amount arrived at after reductions are made under sections 19, 30, 31 or the Schedule of Compensable Injuries. This change is necessary in light of the (unreported) District Court decision in the matter of Appeal of Rice v Victims Compensation Fund Corporation.

Victims Rights Act 1996

The Victims Rights Act 1996 enacts the Charter of Victims' Rights and establishes the Victims of Crime Bureau and the Victims Advisory Board.

This Bill makes two changes to the Victims Rights Act arising from the recommendations in the statutory review.

The terms "mental illness or nervous shock" will be replaced with the term "psychological or psychiatric harm". This reflects modem legal and medical terminology for describing harm.

The Charter of Victims' Rights will be amended to incorporate the principles of multiculturalism that are contained in other legislation and form an important part of the policy of the State of New South Wales.

Commencement

Overall this Bill extends the benefits of the compensation and counselling schemes to a larger range of victims in a way which ensures the continuing viability of the Victims Compensation Fund.

This Bill will commence in stages. It is anticipated that the amendments to expand the compensation scheme to include prescribed expenses will commence in early 2007. This will give the Victims Compensation Tribunal the period of time necessary to prepare for the introduction of the expanded scheme. Most of the remaining provisions are expected to commence in December this year.

Review of Government services and grants

Finally, as I noted in the House on 18 October 2006, this Government is committed to listening to victims and improving the services we provide.

In the coming months, the Government will start reviewing services for victims in New South Wales in order to identify key areas of need and to improve coordination between agencies.

The review will involve looking at whether victims of crime have appropriate access to support services with the important emphasis on ensuring disadvantaged groups and people from rural and remote areas are properly supported. The aim will be to identify key gaps and areas for improvement.

The review will also look at the arrangements for the support of family members of homicide victims. A working group will be established to develop a set of principles and standards for supporting family members of homicide victims. The standards will cover a range of important issues such as quality, ethics, cultural sensitivity and timely provision of support. 22 November 2006 LEGISLATIVE COUNCIL 4589

Once the service review has been conducted, options for better service co-ordination and funding, including grants, will be developed.

The provisions in this Bill build on the Government's record of listening to victims of crime and responding to their support needs with sensitivity and respect.

I commend this Bill to the House.

The Hon. DAVID CLARKE [9.23 p.m.]: The Victims Support and Rehabilitation Amendment Bill 2006, which implements key recommendations from the report of the statutory review of the Victims Support and Rehabilitation Act 1996 and the Victims Rights Act 1996, is not opposed by the Coalition. Indeed the Opposition has been advocating, for years now, a better deal for victims of crimes of violence. How often it is that we see and hear of cases where victims have suffered such horrific injuries that their lives are irreversibly changed for the worse. No wonder there is a public perception in New South Wales that, whilst the Government is incapable of reining in crimes of violence and serving out punishments that fit the crime, there is on the other side of the ledger a failure to be properly focused in its concern for the victims of violent crime and their ongoing problems and suffering.

The general thrust of this bill will be to extend the rights of victims of crime to claim for psychiatric and psychological injury arising from acts of violence, to expand the number of those in a victim's family who can make applications for compensation, and to make allowance for the payment of expenses such as funeral costs or physiotherapy treatment. In specific terms, the bill inserts a proposed section 14A into the Victims Support and Rehabilitation Act 1996 to provide that the statutory compensation for which a primary victim is eligible includes statutory compensation for prescribed expenses. Prescribed expenses will be those that are set out in the proposed Victims Support and Rehabilitation Regulation and will include expenses for such items as ambulance services and physiotherapy, and will be limited to a maximum of $1,500, although the amount may be varied by the regulations.

Under the principal Act statutory compensation is capped at a maximum of $50,000, comprising compensation for compensable injuries received by the victim as a direct result of the act of violence and compensation for financial loss incurred by the victim as a direct result of any such compensable injury, and a claimant is not eligible to receive more than one award of statutory compensation in respect of the same act of violence. Under this bill a primary victim will not be prevented from being awarded statutory compensation presently provided for by section 14 as well as statutory compensation for prescribed expenses. However, provisions will be put in place to prevent double dipping. Currently the principal Act provides that an application for statutory compensation must be lodged within two years of the act of violence unless leave is given for lodgment after that period. As a result of this bill, that time period of two years cannot be extended if it is in respect to statutory compensation for prescribed expenses.

The bill amends the principal Act to clarify that the Act's reference to an offence in the definition of "act of violence" extends to conduct of a person that would constitute an offence were it not for the fact that the person cannot be held criminally responsible for the conduct because of the person's age or mental illness or impairment. The definition of "member of the immediate family" of a primary victim is extended to include half-brothers and half-sisters, thus enabling them to be awarded statutory compensation as family victims. Currently, payments can be made for approved counselling services for victims of acts of violence. Now, as a result of this amendment, an initial period of two hours counselling may be authorised if the compensation assessor is satisfied that counselling may assist in establishing whether or not the applicant is a victim. There will be a requirement that a compensation assessor, in determining an application for statutory compensation, must have regard to whether the act of violence concerned was reported to a relevant health professional, or practitioner, or a relevant agency.

At present the Act provides that, in determining an application for compensation, the assessor must have regard to whether the victim took reasonable steps, such as seeking medical assistance, to mitigate injury. Now, the Act will be amended so that, in determining whether reasonable steps to mitigate injury have been taken, the assessor will, in cases of acts of violence involving sexual assault or domestic violence, have regard to the nature of the relationship between the victim and the alleged perpetrator. This is a valuable provision because one could imagine many situations in which a victim is too frightened to seek, or is restrained from seeking, early or indeed any advice or treatment.

Overall, the Victims Support and Rehabilitation Amendment Bill 2006 is a step in the right direction, although a very modest step. A great deal needs to be done before the Government can seriously claim to have effectively provided the support and rehabilitation assistance that is required. The initiatives provided by this 4590 LEGISLATIVE COUNCIL 22 November 2006

bill are very small indeed. When the Coalition forms government in March next year the real process of genuine rehabilitation and serious support for victims of violence will finally get under way. Until that day arrives, the Coalition will have to be content with supporting the very modest advances contained in this bill.

Reverend the Hon. Dr GORDON MOYES [9.28 p.m.]: On behalf of the Christian Democratic Party I support the Victims Support and Rehabilitation Amendment Bill, the object of which is to amend the Victims Support and Rehabilitation Act 1996 and the Victims Rights Act 1996 to implement key recommendations from the statutory review of the legislation. The bill also implements recommendations arising from consultation with the Victims Advisory Board and key community groups. Before discussing the substance of the bill, I make a brief comment about the importance of civility and respect in our society. Clearly, this bill would not be necessary if all individuals acted in a way that paid regard to the rights of others. Those at the heart of this legislation have had their rights violated and, in many instances, the rights of their loved ones violated or stolen in a way that is often difficult to comprehend. Only people with a common experience are able to fathom the loss and despair felt by those who have lost a loved one because of violence within the home.

The Government is providing welcome support to people in these types of situations through this bill. The Bible asserts that we are to treat our neighbour in the same way that we would like to be treated. This simple but profound teaching, if heeded by all individuals, would revolutionise our communities and indeed our society. Civility, respect and honour are modes of behaviour that follow from this teaching. Clearly, the existence of this bill demonstrates that this teaching is lacking in families and social groups across New South Wales.

The bill represents an outstretched hand to victims of crime and may be considered as including watershed reforms in victim support and rehabilitation. The reforms in the bill have been long awaited and mainly come from the statutory review of victim rights legislation. In June 2004 the report of the statutory review of this legislation, including a review of the Victims Support and Rehabilitation Act 1996 and the Victims Rights Act 1996, made 20 recommendations on how the legislation could be amended. The report confirmed that the policy objectives of the legislation remain sound, but room for improvement was identified in a number of areas. These areas include compensation, counselling, compensable injuries, restitution, offender participation in the victims compensation process, and legislative responses to instances of sexual assault and domestic violence. The report played a pivotal role in the development of this legislation. Key victims groups have also played a crucial role in its development and they should be commended for their advocacy.

I shall touch on some of the salient aspects of the bill; my speech in no way refers exhaustively to the reforms brought about by the bill. One of the most revolutionary and commendable aspects of the bill is the introduction of what is known as the Victims Assistance Scheme. The establishment of this scheme was the first recommendation made by the statutory review back in June 2004. At present, in cases where a victim is out of pocket through an act of violence, victims can only recover expenses greater than $7,500. Any victim falling short of this threshold is not entitled to recover any expenses. That is unjust, and I am glad that the Government has revised the scheme so that people with expenses less than $7,500 can recoup a portion of those expenses.

In particular, this bill will allow eligible victims access to a modest amount of money for actual expenses incurred as a result of an act of violence. The expenses must total at least $200 and be not more than $1,500. The types of expenses that may be recouped will be listed in the Victims Support and Rehabilitation Regulation. Suffice it to say that these will include ambulance, dental, physiotherapy and cleaning costs related to the act of violence. The new scheme envisages that a victim may be eligible for compensation for prescribed expenses but may subsequently wish to lodge a claim for general statutory compensation. If such a claim is successful, the initial amount for the prescribed expenses awarded will be deducted from the amount awarded under general statutory compensation. This is to prevent double dipping.

I foresee that this scheme will be widely used. It offers a practical solution to some of the problems that victims face in the aftermath of crime. As indicated by the report, the likely cost of such a scheme is difficult to estimate. In 2004 it was estimated that around 500 claims were dismissed each year because they were below the $7,500 threshold for compensation, and in 2002-03 victims services received 7,000 applications for initial and further counselling. A significant percentage of these claimants could be expected to have incurred medical, dental or optical expenses.

Another important recommendation of the statutory review was to change the definition of "injury" in the Victims Support and Rehabilitation Act 1996. The bill adopts this recommendation. The definition of "injury" is expanded so that a person who has suffered psychological or psychiatric harm rather than a clinical 22 November 2006 LEGISLATIVE COUNCIL 4591

disorder will be eligible for counselling services. Of course, those diagnosed with a clinical disorder as a result of an act of violence will constitute a smaller proportion than those who have suffered either psychological or psychiatric harm from an act of violence. The benefit of the amendment to the definition of "injury" will be that those who are assessed as having suffered psychological or psychiatric harm will now be eligible for more than an initial two hours of counselling. This is important because approved counselling is one of the principal tenets of victim rehabilitation. Clearly, two hours is not a sufficient time frame to adequately deal with the extensive harm that a victim may suffer, and this has been recognised by the Government.

For many years I have worked with people who suffer post-traumatic stress syndrome—people such as bank tellers, who have been held up by robbers with guns, or service station attendants who have been robbed by people with hammers, knives or axes. It takes more than a couple of hours of counselling to get such victims back together. Under the scheme victims will be able to apply for an initial two hours of counselling even if it has not yet been established that the person is a victim. As indicated in the second reading speech, this change to the application process will allow a counsellor the opportunity to assess the nature of any psychological or psychiatric harm before considering whether further counselling up to a maximum of 20 hours is needed. This is an extremely important development.

The bill widens the reach of those entitled to compensation in the case of a homicide. For instance, half-sisters and half-brothers will now be eligible for compensation, and the grandparents of a victim may be compensated for reasonable funeral expenses if they are out of pocket. The bill will allow an assessor to consider an application for an interim award where funeral expenses are reasonable. In cases where funeral expenses are not considered to be reasonable, that is, they are considered to be excessive, agreement for payment out of the $50,000 family victim award will be required for all eligible family members.

The bill introduces a gamut of amendments in relation to the work of compensation assessors, including amendments that clarify the procedure for assessing a victim's compensable injuries. In effect, these amendments expand the factors on which assessors may draw to justify an amount of compensation. Of clear significance is the ability for victims of domestic violence and sexual assault to apply for monetary compensation for psychological or psychiatric harm. This represents a turning point in the assessment of compensation, highlighting the severity of both domestic violence and sexual assault. This type of violence is an affront to the sanctity of an individual's physical, emotional and spiritual persona and the Government must be commended for this development.

Further, assessors will be able to refer to medical records, court records, counselling records and school reports to determine that there is an injury. Previously, reliance was placed on whether a person had made a complaint to the police about the act of violence that was endured. Of course, not all victims make complaints to police. In cases of sexual assault, it is more likely they will turn to their doctor or counsellor than to the police. Because of fear or reprisal, many victims of violence are reticent to involve the police in seeking redress.

Importantly the bill will also require an assessor to have regard to the nature of the relationship between the victim and the offender when considering whether victims of sexual assault, domestic violence and child abuse have taken reasonable steps to mitigate the extent of their injury. The exact repercussions of this amendment are not clear. It can be the case that a victim of sexual assault within a marriage is reluctant to leave the offender and thus mitigate the extent of their injury because of the close emotional, physical and spiritual bond that exists between the victim and the offender. Clearly, in cases where the victim and the offender are unknown to each other, the victim will take a different approach.

I now turn to domestic violence. The Office of the Status of Women commissioned a study that estimated the annual cost of domestic violence in 2003 at $8.1 billion, with the largest cost factor being pain, suffering and premature mortality at $3.5 billion. Those figures come from a survey by Access Economics conducted in 2004. Other contributors to that cost were permanent loss of labour capacity, lost production due to absenteeism, property replacement, and altered household circumstances. Domestic violence in that study was limited to violence between adult partners living in intimate relationships, though the effect of that violence on children was also taken into account.

The costs were based on an estimated 408,100 victims of domestic violence, of which 87 per cent were women. It was also estimated that 263,800 children lived with victims of domestic violence, and 181,200 witnessed the violence. The cost category "second generational" was costed at $220 million, the lowest of the seven cost categories. As emphasised by the authors, and as mentioned by the Australian Institute of Health and 4592 LEGISLATIVE COUNCIL 22 November 2006

Welfare in a recent publication, that figure is high considering that it does not include the cost of direct child abuse. It reflects the negative and profound impact on children of witnessing partner abuse.

The bill refines the application of the law in relation to domestic violence, and has eventuated due to the potential for the word "domestic" to be misconstrued. Clearly, violence is not condoned in any way, shape or form. I never use the phrase "domestic violence"; it is simply violence against women. However, there is scope for compensation payments to be made when domestic violence is not strictly involved. For example, and as mentioned in the second reading speech, an inappropriate compensation payment could arise when a victim receives injury inflicted by a former flatmate at a social event. That scenario could be interpreted to involve a domestic situation due to the fact that the offender and victim had resided with one another at some point in time. The bill will now exclude instances of violence occurring in more remote relationships.

In the example given, although the relationship would be covered by the new definition, the fact that the offence occurred in a social setting at a time when the offender and victim were not living together would bring the example outside the new definition. The bill also provides that compensation will be available to a victim when an offender cannot be held criminally responsible for an offence due to age or mental illness. Clearly, in that type of scenario the victim should be given appropriate recourse and support regardless of whether the offender can be held legally accountable. I commend the Government for introducing the legislation. However, I draw attention to recommendation No. 6 of the report on the statutory review, which reads:

The categories of compensable injury should be expanded to include injury to or loss of a foetus, miscarriage as a result of violence, and associated injury to reproductive organs as a result of violence.

That was primarily urged to address the experience of, and the unique injuries suffered as a result of, domestic violence. The Women's Legal Resource Centre made a submission about the need to expand the categories of compensable injury to include injury to, or loss of, a foetus, miscarriage as a result of violence, and associated injury to reproductive organs as a result of violence. In its submission the centre states:

Many women experience domestic violence, often for the first time, when pregnant, and this violence is often directed to their stomach, back, and the unborn child, and results in significant injury which is not currently recognised in the schedule of injuries.

The report indicates that this point was also supported by the submission from the Law Society, which suggested that the categories of injury are too narrowly drawn and that consideration should be given to including further categories of compensable injury. Arguably, that would include the factors mentioned in recommendation No. 6. I will move amendments to implement recommendation No.6. We must do all we can to raise awareness that domestic violence is not on and that compensation should be available to all who are hurt.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [9.44 p.m.]: The Australian Democrats support the bill, although the changes are not extensive. It is important to support victims and it is worthwhile having a bill that deals with victim support. Generally victim support in this House is demonstrated by calls for longer sentences, as if the victims want longer sentences. The media generally deals with sentencing by asking a victim of crime outside the court "Were you happy with the sentence?" The general assumption is that the longer the sentence the happier the victim. But it is more complex than that. Some victims and their relatives would simply like revenge, but the majority of them would like to come to terms with why it is happening to them. My medical experience of people who are facing death or who have had some catastrophic injury is that they always ask, "Why did it happen to me?" The answer, "God works in mysterious ways" does not seem to satisfy them very much. We need a structure that provides a restorative approach to justice rather than a desire for revenge, which is found in some victims, some shock jocks and some legislation.

The bill changes the framework for victim support in a positive way. But justice should be used in a more restorative way, and taking victims into account as part of that restoration provides a great deal of scope for improvement. The bill is a step in that direction, and as such we support it. Some victims suffer psychological damage, which is hard to heal. Psychologists tell us that it requires huge amounts of counselling, which cannot possibly be dealt with by awarding sums of money that are available to pay for such counselling. The prevention of violence must be considered again. I had a concept for a department of peace, which would focus on social harmony as an objective in itself and restorative justice. Less violence would mean fewer victims, more money per victim and, therefore, a better culture for victims. I support the concept of victim support, but whether one introduces half- brothers or half-sisters to help victims or to make them eligible for victims compensation is another matter. 22 November 2006 LEGISLATIVE COUNCIL 4593

When my 17-year-old nephew was electrocuted—the mast of the boat in which he was travelling hit an overhead powerline—some of the people watching him hanging on to the forestay and falling into the water were immensely traumatised. One man who was sitting some way away from the powerline but knew it was there because his front porch was near it, tried to call out to the people on the boat. He felt immense guilt and trauma as he watched the mast of the boat move towards the electrical wire and saw the 17-year-old boy electrocuted and fall into the water dead, followed by attempts to resuscitate him. He blamed himself for not yelling and screaming, although he probably was too far away to have been heard. He was a stranger to the boy who was electrocuted and, therefore, would not be eligible for victims compensation under the bill. But we need a supportive framework, not money. That is another aspect we have to come to terms with if we are going to develop a society that looks at the more holistic restoration of physical and mental wellbeing that constitutes health. Although the bill is limited, we support it. I merely flag the wider possibilities.

Ms LEE RHIANNON [9.49 p.m.]: The Greens support the bill, which extends and improves the operation of victims compensation legislation in New South Wales. It puts in place a scheme under which all victims of crime can get some modest out-of-pocket expenses, regardless of the seriousness of the injury. It also allows for victim statements from grandparents and others who have been impacted by crime. We believe that this is a good outcome because it can help bring closure to people who suffer the consequences of crime. I take this opportunity to say a big thank you to John Evans and wish him all the best for his retirement. John's steady and considered advice has steered me, and I am sure most members, through the high and low roads of this House. I believe that when the history of this period in the Legislative Council is written it will record John Evans' key role. The call for papers provision is just one example of the way democracy has been protected and promoted in this House on John Evans' watch. Thank you, John, for all your advice. All the best to you and your family for your retirement.

The Hon. PETER BREEN [9.50 p.m.]: This bill is intended to implement the key recommendations of the statutory review of the victim support legislation and the Victims Rights Act. As the Director of Public Prosecutions, Nicholas Cowdery, said in a recent letter to the Sydney Morning Herald, the tide in favour of victims of crime is still in flood. This bill will ensure that the flood continues. While I am a strong supporter of the rights of victims who were largely neglected by the justice system until a decade ago, the fact remains that there are a number of glaring anomalies in the way victims compensation is awarded. None of the provisions in the bill address those anomalies. Yesterday in the House I asked a question about compensation of $50,000 paid to the family of standover man Michael Pestano. I asked the Minister whether he was aware that the family of Mr Pestano received this compensation, notwithstanding that Mr Pestano was engaged in unlawful activity at the time of his death. It seems extraordinary that the Victims Compensation Authority can award compensation to a person's family when that person was engaged in unlawful activity.

Similarly, on many occasions the late John Marsden complained about people who were witnesses for Channel 7 in that notorious defamation proceeding, witnesses whom John Marsden did not know from a bar of soap, receiving compensation from the Victims Compensation Authority simply on the basis of a story. The reality of victims compensation in New South Wales is that this is the only jurisdiction in Australia where people can get compensation based on a story. In every other jurisdiction in Australia there needs to be a conviction before a person other than a murder victim, or a person who is claiming as a result of another person's crime, can claim compensation. That issue should have been addressed in this bill.

During the review of the victims compensation legislation in 2000 I referred to a number of other examples of problems with victims compensation. I was a member of the parliamentary committee that reviewed the victims compensation legislation, and I pointed out to the committee that in my long career as a lawyer I had seen many examples of people exploiting the victims compensation legislation. There were examples of people who were serial claimants on the authority making claims based on stories, for which they received compensation. At that time it was difficult even to get information from the Victims Compensation Authority, except by way of subpoena, to find out just how many claims a particular applicant had made. The review of the legislation in 2000 promised that questions of serial claimants and claims based on unlawful activity would be looked at again, and still nothing has been done.

Most recently we had the case of Roseanne Catt. Detective Peter Thomas and her husband, Barry Catt, made false claims on the Victims Compensation Authority to the tune of $89,000. Those false claims are clearly illegal—they involve corrupt activity—but no steps have been taken by the authorities to recover that money or prosecute the people involved in the false claims. So there are matters relating to the Victims Compensation Authority that need to be addressed, but they are not addressed in the bill. To the extent that the bill supports the recommendations of the review, it is good legislation and should be supported by the House. However, I suggest 4594 LEGISLATIVE COUNCIL 22 November 2006

that serial claimants, unlawful claims and people who are the beneficiaries of unlawful activity receiving money from the Victims Compensation Authority are all matters that need to be addressed.

Reverend the Hon. FRED NILE [9.55 p.m.]: I place on record my support for the Victims Support and Rehabilitation Amendment Bill. During the time I have been in Parliament I have been an active campaigner for assistance for victims. In the early years the focus seemed to be on criminals and concerns about them, and the victims were neglected, forgotten. But in recent years there has been a change of climate, with a recognition of the need of victims, victims support groups and victims compensation. I am pleased to support this bill, which will expand the victims compensation scheme to introduce a new victims assistance scheme to give eligible victims access to a modest amount of money for actual expenses incurred as a result of acts of violence, for example, ambulance expenses, replacement of prescription glasses, contact lenses, living expenses while recovering and so on.

The bill allows a person, including a victim's grandparents, who has incurred reasonable expenses for the funeral of a homicide victim to be compensated for those expenses, even if there is no other family victim eligible for compensation. It also changes the definition of "injury" in the Victim Support and Rehabilitation Act 1996 so that a person who has suffered psychological or psychiatric harm, rather than a clinical disorder, will be eligible for counselling services. Finally, the bill allows victims of domestic violence and sexual assault, known as "offence-based injuries" in the legislation, to apply for monetary compensation for psychological or psychiatric harm.

We are pleased to support these positive proposals in the legislation. Reverend the Hon. Dr Gordon Moyes has circulated two amendments as a response to the submissions by the Law Society of New South Wales and the Women's Legal Resources Centre to the review of the Victims Support and Rehabilitation Act 1996. Those amendments relate to domestic violence resulting in miscarriage of a foetus. Compensation will be in the range of $12,000 for permanent decrease in but not loss of fertility, and compensation of between $18,000 and $28,000 will apply to another category relating to miscarriage of or injury to the foetus. I understand that the Attorney General is considering those amendments, and the Government will respond tomorrow. Hopefully, the Government will respond positively and accept those amendments. We are pleased to support the bill.

The Hon. HENRY TSANG (Parliamentary Secretary) [9.59 p.m.], in reply: On behalf of the Government, I thank John Evans for his service as Clerk of the Parliaments for more than 17 years. I commend the bill to the House.

Motion agreed to.

Bill read a second time.

Consideration in Committee ordered to stand as an order of the day.

TREES (DISPUTES BETWEEN NEIGHBOURS) BILL

Second Reading

The Hon. HENRY TSANG (Parliamentary Secretary) [10.00 p.m.], on behalf of the Hon. John Della Bosca: I move:

That this bill be now read a second time.

I seek leave to have my second reading speech incorporated in Hansard.

Leave granted.

The Trees (Disputes Between Neighbours) Bill 2006 is designed to provide a simple, inexpensive and accessible process for the resolution of disputes about trees between neighbours.

The bill establishes a separate statutory scheme giving the Land and Environment Court jurisdiction to make orders to remedy, restrain or prevent damage to property or prevent injury to any person as a result of a tree on adjoining land.

Honourable members may be aware that there is some background to this matter. The issue of disputes about trees in the urban environment was originally considered by the New South Wales Law Reform Commission in its report entitled "Neighbour and Neighbour Relations", Report No. 88, published in 1998. 22 November 2006 LEGISLATIVE COUNCIL 4595

The Law Reform Commission's report concluded that the common law of nuisance and abatement, which currently governs disputes between private parties about trees, does not provide an adequate dispute resolution process for people living in closely settled communities.

The bill draws upon the work undertaken by the Law Reform Commission, but adopts a different approach to that contained in a number of the commission's recommendations. The proposed legislation also reflects changes to the planning laws and other legislation that have occurred since the publication of the commission's report.

An exposure draft of the bill was released earlier this year for public comment and a number of changes have been made to the bill as a result of submissions received during this process.

I will now outline the principal provisions of the bill.

The proposed legislation limits the application of the common law of nuisance. An application for an order where a tree on adjoining land is causing damage or poses a danger may only be brought in the Land and Environment Court.

As an award of compensation may be ordered under the legislation, the appropriate jurisdiction for matters under the legislation is a court.

The Land and Environment Court, which is a specialist environmental jurisdiction, is the most appropriate forum for such disputes. The court's judges and commissioners have extensive experience with trees and vegetation and are regularly required to address provisions of legislation covering native vegetation, national parks and wildlife as well considering local planning instruments.

Commissioners of the Court hold relevant qualifications and experience. The court has recently advertised for acting commissioners with qualifications in arboriculture, ecology, heritage and engineering, all of which may be relevant to a dispute involving a tree.

When dealing with applications under the proposed legislation commissioners will sit alone or with other commissioners with relevant expertise. The court may also engage arborists as court appointed experts in certain circumstances.

As is the case with conflicts about dividing fences, the great majority of tree disputes will occur in built up metropolitan areas. The legislation therefore applies to trees situated in areas with certain zonings, such as areas designated as residential, township, industrial and business under an environmental planning instrument. This approach will ensure that vegetation covered by legislation relating to national parks, catchments, land clearing, native vegetation and other such matters is not caught by the provisions of the bill.

Certain other trees will not be covered by the legislation. The Crown Lands Act 1989 provides that the Minister may refer any matter arising out of the administration of the Act to a local land board for inquiry and report. Accordingly, if the tree situated on Crown land is causing problems, the Minister may refer the matter to the local land board.

Where a matter has been referred to a local land board under either the Crown Lands Act or the Western Lands Act 1901, the Land and Environment Court must not make an order unless the process provided for under the Crown lands legislation has been completed.

Trees on council land are also exempt from the operation of the legislation but only in the short term. It is appreciated that some councils have limited resources and that many already spend considerable time and money dealing with tree disputes.

However, local government should expect to be covered by the scheme in two years time, when a review of the legislation will take place. Unless the review reveals compelling reasons in support of an ongoing exemption, it is anticipated that local government will then be included.

In terms of the more practical aspects of the legislation, the bill requires an applicant to give notice of an application to certain persons, including the tree owner and any relevant authority that would be entitled to appear in the proceedings. The court may waive the requirement to give notice.

The bill provides that a relevant authority, such as a council or the Heritage Council, has a right of appearance before the court in any proceedings where the consent or authorisation of the authority would, in the absence of the legislation, otherwise be required.

Where the court is satisfied that the tree which is the subject of the application has, is, or is likely to cause damage in the near future or poses a risk of injury to a person, the court has jurisdiction to make a range of orders. These orders are designed to remedy or prevent damage, or prevent injury to a person, and may involve the trimming or removal of the tree, installation of root barriers and other such action.

The court may make orders, including:

- payment of costs associated with such orders;

- payment of compensation for damage to property;

- replacement of a tree; and

- authorising entry onto land for the purpose of carrying out an order. 4596 LEGISLATIVE COUNCIL 22 November 2006

Failure to comply with an order of the court may result in a maximum penalty of $110,000. The level of penalty recognises that more than one tree may be involved.

When deciding to make an order under the proposed legislation, the court must consider a number or factors, including:

- whether interference with the tree would usually require any consent or authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 and, if so, whether such consent or authorisation has been obtained;

- any environmental, historical, cultural, social or scientific value the tree may have;

- any contribution of the tree to the natural landscape and scenic value of the land on which it is situated or the locality concerned;

- any impact of the tree on soil stability, the water table or other natural features of the land or locality;

- factors that may have contributed to the damage (such as the neighbour's own tree roots);

- any steps the tree owner has taken to prevent damage to property or injury to a person; and

- such other matters as the court considers relevant.

The provisions that require the court to consider environmental factors prior to making an order are in recognition of the importance of urban trees as an environmental asset.

Urban trees play a proven environmental role in every urban society. They provide energy savings through lower cooling costs, reduce stormwater run-off, help reduce salinity and provide aesthetic and social benefits associated with being in proximity to nature.

The bill therefore recognises the environmental contribution of urban trees as a factor that the court must take into consideration in determining applications.

A number of submissions relating to the exposure draft bill raised concerns relating to trees blocking light and views.

The Government appreciates these issues are important to some members of the community. However, the Government is mindful that the proposed legislation pioneers new ground and at this stage does not consider it appropriate to address such concerns. They will be kept under review.

Other provisions in the bill give councils a discretion to carry out the work ordered by the court where the tree owner has not complied with the order. Where councils take such action they will be able to recoup reasonable costs associated with such work.

Orders made by the court relating to work to be carried out in relation to the tree that was the subject of the application will "run with the land". That is, where a person sells the land but has not carried out the orders and the applicant has given the new owner a copy of order, the purchaser of the property will be required to carry out the work.

The bill amends the Conveyancing (Sale of Land) Regulation 2005 to require a vendor to give a warranty regarding an application or order requiring work to be carried out in compliance with the Trees (Disputes Between Neighbours) Bill. The bill also amends the Environmental Planning and Assessment Act 1979 to provide for the inclusion of information regarding court orders made under the legislation on section 149 planning certificates.

The legislation will be commenced early in 2007 once the Land and Environment Court has established appropriate procedures.

I commend the bill to the House.

The Hon. GREG PEARCE [10.00 p.m.]: I lead for the Opposition in the debate on the Trees (Disputes Between Neighbours) Bill. The matters sought to be addressed by the bill are important. All honourable members know that disputes between neighbours can become very difficult to resolve. Unfortunately, trees have become one of the real hot spots when it comes to disputes between neighbours. The issue has a wide geographic spread. It is not just a matter that involves densely populated suburban areas, it also include semi-rural and other areas. The bill is a response to report No. 88 of 1998 by the Law Reform Commission, entitled "Neighbour and Neighbour Relations", which made various recommendations in an attempt to deal with the problems that are addressed by the bill.

The Law Reform Commission concluded that the existing common law approach, which is the current remedy for dealing with these types of disputes and was the subject of media fanfare and by the Government some time ago, is not the best way to deal with issues involved in neighbourhood disputes. I do not want to take up the time of the House repeating the arguments and analysis that can be obtained from a reading of the Legislation Review Committee's consideration of this bill or from the Law Reform Commission's report. Suffice it to say that this bill will enable proceedings to be brought before the Land and Environment Court to resolve disputes between neighbours relating to trees in urban areas. 22 November 2006 LEGISLATIVE COUNCIL 4597

The bill enables the owner of land to apply to the court for an order to restrain or prevent damage to the owner's property as a consequence of a tree situated on adjoining land. The bill applies only to land that is zoned residential and does not apply to rural residential, rural land, township or industrial land, and it does not apply to trees on land under council control. A number of exemptions will still be dealt with under the common law. There is no action in nuisance available as a result of damage caused by the tree to which the legislation will apply. Briefly stated, this bill provides for a new regime in the Land and Environment Court. In my former life as a solicitor, I spent some time practising in the Land and Environment Court. Even though the court has its system of commissioners and assessors who can examine matters, will that be the right forum for resolving the types of disputes sought to be addressed by the bill?

Given the limitations of the scope of the bill and the fact that it applies only to residential land, the issues of costs will come into consideration by parties as to whether they will seek an injunction in the Land and Environment Court. Therefore, it remains to be seen whether the new regime will be a useful solution to the problem. Another issue that was highlighted in the other place by the shadow Minister relates to the definition of "trees". The provisions of this bill could be interpreted as applying to hedges and other types of plant growth. There are some doubts about whether this legislation will produce a cost effective and rapid way of dealing with the types of disputes that all honourable members would be well aware of and whether it will open up all types of questions such as how neighbours deal with shade and visual definition between properties. The Opposition will not oppose the legislation, but it will be interested to observe the manner in which it operates. I am sure that other honourable members will have very interesting contributions to make to the debate tonight.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [10.06 p.m.]: Under the Trees (Disputes Between Neighbours) Bill disputes between neighbours about trees in urban areas will be able to proceed, and hopefully be resolved, in the Land and Environment Court. It is good that the Land and Environment Court has been defined as the court that will deal with matters arising from this bill because it has special expertise in the area of resolving what sometimes amount to quite serious disputes between neighbours. The bill enables an owner of land to apply to the court for an order to remedy, restrain or prevent damage to the owner's property, or to prevent injury, as a consequence of a tree situated on adjoining land.

Disputes over trees encroaching onto adjacent properties are nothing new in Australian suburbia. In 1998 the New South Wales Law Reform Commission published report No. 88, entitled "Neighbour and Neighbour Relations". The commission's report concluded that the common law of nuisance and abatement, which currently governs disputes between private parties about trees, does not provide an adequate dispute resolution process for people living in closely settled communities. A new process for dispute resolution over trees between neighbours where a tree has caused damage to an adjacent property, or is likely to cause damage in the near future, will be established under this bill.

The court may make such orders as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree concerned. Clause 10 also enables the court to make orders if a tree is likely to cause injury to any person and applies only to trees situated on land within residential, business and certain other urban zones under environmental planning instruments. It does not apply to trees situated on land that is vested in or managed by a local council. The Legislation Review Committee's report states that the issues it considered included:

Trespasses on personal rights and liberties [s 8A(1)(b)(i) LRA]

Restriction of action in nuisance: Proposed section 5

9. Proposed clause 5 provides that:

No action may be brought in nuisance as a result of damage caused by a tree to which this Act applies.

10. The common law of nuisance provides protection against physical damage to land or buildings. A remedy is available once damage or substantial interference has already occurred or where it is apparent that substantial damage or interference is a virtual certainty or is imminent. Nuisance also protects the less tangible interest of the enjoyment that a person normally derives from residing on land. An owner of land can either sue a neighbour for nuisance or apply for a Supreme Court order to stop the nuisance.

11. Traditionally, the common law of nuisance has been used to provide a remedy to a person who suffers damage or interference as a result of problems caused by neighbouring trees. Generally a person creates a nuisance on his or her own land, which then causes an interference with the rights of an adjoining landowner or occupier, for example, legal action has been successful where tree roots spread across a boundary and caused subsidence and damage to houses by drying out the soil on which the houses were built, and where overhanging branches caused fruit trees to be stunted. 4598 LEGISLATIVE COUNCIL 22 November 2006

12. The problems associated with bringing an action in nuisance for damage caused by a tree are outlined in the NSW Law Reform Commission's report:

Submissions argue that the rights of a person suffering from a neighbour's nuisance tree are hard to enforce. Many say that they had approached their neighbours about the nuisance tree, but to no avail. Other problems identified include that going to the Supreme Court to enforce rights is too expensive for most people, it can take a number of years to enforce a right, and councils generally will not help and have only limited powers. The report continues:

13. The bill provides a new system for dealing with damage to property or person caused by trees in urban areas, which is designed to mitigate problems identified by the NSW Law Reform Commission with bringing an action in nuisance.

14. While proposed section 5 provides that no action that may be brought in nuisance in relation to neighbouring trees to which the bill applies, it does not limit other common law actions ie. abatement and negligence.

This bill is a valuable adjunct to neighbourly harmony. I have been advocating for some time for some legislative framework in which we can consider the causes of disputes and sensible and realistic resolutions to those disputes. This bill is a step in the direction the Government should take more often.

Reverend the Hon. Dr GORDON MOYES [10.10 p.m.]: The Christian Democratic Party supports the Trees (Disputes Between Neighbours) Bill. The object of the bill is to enable proceedings to be initiated in the Land and Environment Court to resolve disputes between neighbours about trees in urban areas. Specifically, the bill enables an owner of land to apply to the court for an order to remedy, restrain or prevent damage to the owner's property, or to prevent injury, as a consequence of a tree situated on adjoining land. In his article in the Sydney Morning Herald entitled "A View to Kill For" in May 2006 Larry Wright explored the insidious phenomenon of tree poisoning within some of Sydney's wealthiest suburbs. The title of the article aptly describes the raison d'etre behind this practice⎯most, if not all trees within these areas are killed for an enhancement of the view. In most cases where a tree blocks a view of the harbour, the value of houses in the area affected can increase exponentially. The article quotes a real estate agent saying:

A view is a lovely thing to have but it can also increase a home's value by 40-60 per cent. Home owners and developers know the chances of being caught are pretty much zero and even if they are [caught], they'll only cop a tiny fine so they eliminate the trees blocking their view. Their property, which yesterday was worth a million, is suddenly worth $1.8 million.

Members keen to understand the spread of this problem and how the practice of tree poisoning occurs ought to read this article. It clearly and effectively describes the dark practice of tree killing across Sydney's most affluent suburbs. The manner in which trees are killed varies, including ringbarking and bark stripping. In many cases, poison is applied to the root area. For example, tree poisoners almost always work under cover of darkness. Typically they drill a number of two-centimetre diameter, 15-centimetre-deep holes diagonally down in the trunk. They then pour in weedkiller like Roundup, which contains the poison glyphosate, and plug the holes with cork, epoxy or cement. Once the poison has invaded the tree, it stops the root system taking water, starving the flow of nutrients and minerals. The roots and foliage wither and the trunk decays. Usually by the time a person has wondered what is happening to this tree is it already too late. Eventually the tree dies. If the poisoning can be detected very early, flushing the tree and surrounding soil with a hose and the water may flush out the poison and if you are lucky you will save it.

This description paints a sad picture—a slow and crippling death for plants that provide shade for the weary and fresh air for all to enjoy. Lamentably, this action is typical where greedy neighbours are involved, where lip-service is paid to respecting the tree owner's privacy. Obviously, though, tree killing is not relegated solely to areas of affluence, where the principal motivation for killing a tree is to derive a financial benefit. It could also occur in places where a tree has been the source of trouble through encroaching on a neighbour's property, such as the roots raising and breaking the concrete path next door or even cracking the brick walls of the house. Where trees are killed on private property, what action may be currently taken against tree vandals? In most cases, the identity of the tree vandal is not too difficult to surmise.

Who benefits from the death or removal of a tree? Obviously, it is the person on whose view the tree encroaches. However, unless a person has solid evidence against this person, legal action will be taken at peril. A citizen can initiate civil action against such a person, but because the burden of proof lies with the plaintiff, a simple suspicion though reasonable does not suffice to discharge the onus of proof. Where unsubstantiated claims are made against a person, grounds for defamation action can exist. Thus, where tree killing occurs at night, there is little chance that the offender will be caught and made accountable. 22 November 2006 LEGISLATIVE COUNCIL 4599

Tree disputes have often led to neighbours being at loggerheads. This area of contention led to the New South Wales Law Reform Commission considering the current state of the law, with a view to proposing recommendations. In report No. 88, entitled "Neighbour and Neighbour Relations", published in 1998, the commission indicated that the common law of nuisance and abatement, which currently governs disputes between private parties about trees, does not provide an adequate dispute resolution process for people living in closely settled communities. The commission made seven recommendations in total, one being that legislation can be enacted providing a new simple, inexpensive and accessible process in Local Courts, similar to the model under the Dividing Fences Act 1991 for the resolution of disputes between neighbours about trees.

Given that much of the responsibility for resolving tree disputes lies with local government, it is of importance to note what action the peak representative Local Government and Shires Associations have recommended. In 2005 the associations provided that the Environmental Planning and Assessment Act be amended so that the illegal removal of a tree results in sufficient penalties through the Land and Environment Court and the Local Court, including an appropriate minimum penalty. Further, the associations urged the State Government to review relevant legislation in order to redress anomalies and inconsistencies between the type and level of penalties levied for the removal of or injury to trees on public property and those on private property.

As indicated in the second reading speech, the instant bill draws upon the work undertaken by the Law Reform Commission, but takes a different approach to that contained in a number of the commission's recommendations. One example of different approach is that jurisdiction for resolving tree disputes will be given, under this bill, to the Land and Environment Court, rather than the Local Courts. It could also be said that aspects of the Local Government and Shires Associations' views have been heeded with the introduction of this bill. The Land and Environment Court is the appropriate forum for resolving disputes about trees.

Given that the court has judges and commissioners with extensive experience relating to issues dealing with national parks and wildlife, native vegetation, threatened and endangered species, it makes sense that this jurisdiction is given responsibility for arbitration of this area. It has been reported that the court has recently advertised for acting commissioners with qualifications in arboriculture, ecology, heritage and engineering, all of which may be relevant to a dispute involving a tree. Under the bill, the Land and Environment Court will be able to make orders to remedy, restrain or prevent damage to property or prevent injury to any person as a result of a tree on adjoining land. Failure to comply with such an order may result in a maximum penalty of $110,000 with compensation and costs.

One important aspect of this bill is that it will only apply where certain urban areas are concerned. Clause 4 indicates that the proposed Act applies only in relation to trees situated on land within residential, business and certain other urban zones under environmental planning instruments made under the Environmental Planning and Assessment Act 1979. Tree disputes arising within a rural context will need to be facilitated by the relevant council. The bill provides that the Act is to be reviewed to determine whether the policy objectives of the Act remain valid, whether the terms of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives. I am glad this review is being taken. I hope that the measures in this bill will be referred to as a last measure. Neighbours should take the time to deal face to face with each other rather than take each other to court. Community justice centres provide an excellent platform for the resolution of such disputes, where amicable conversation fails. The Christian Democratic Party commends the bill to the House.

Ms SYLVIA HALE [10.20 p.m.]: The Greens support the Trees (Disputes Between Neighbours) Bill. I foreshadow that I will move a number of amendments in Committee but they do not substantially change the intent of the bill. In urban communities, trees play an important role in the health of the biological ecosystem. They provide habitat for wildlife and create a more hospitable setting for many species, including our own. Not least of a tree's charms is its ability to reduce air temperature in summer. The roots bring water up from the ground, which is aspirated through the leaves, creating a cooling effect on the surrounding air. We need to preserve and grow our urban forests. I note that in this instance the Government has been consultative by releasing an exposure draft of the bill earlier this year for public comment and that a number of changes have been made to the bill as a result of submissions received during that process. If only the Government could follow that process more often.

The object of the bill is to enable the bringing of proceedings in the Land and Environment Court to resolve disputes between neighbours about trees in urban areas. The bill enables an owner of land to apply to the court for an order to remedy, restrain or prevent damage to the owner's property, or to prevent injury, as a 4600 LEGISLATIVE COUNCIL 22 November 2006

consequence of a tree situated on adjoining land. The bill comes out of an eight-year-old report by the New South Wales Law Reform Commission entitled "Neighbour and Neighbour Relations", which was published in 1998. The Law Reform Commission's report concluded that the common law of nuisance and abatement, which currently governs disputes between private parties about trees, does not provide an adequate dispute resolution process for people living in closely settled communities.

Therefore, the Government intends to make the Land and Environment Court the adjudicating court in tree disputes. With regard to the expertise of the court, the Greens can see why the Land and Environment Court has been chosen: it often deals with environmental impact statements and land disputes. In addition, the court has recently advertised for acting commissioners with qualifications in arboriculture, ecology, heritage and engineering, all of which may be relevant to a dispute involving a tree. The court may also engage arborists as court-appointed experts in certain circumstances. There should be some quality assurance measures incorporated to ensure that the arboriculturists used are of an acceptable standard. Given the nature of the risk, it may be easier for a less competent person to condemn a tree to eliminate any risk, including to themselves from legal action.

It is extremely important that the courts are informed by expert arborists, because there is actually little factual basis for the majority of disputes arising from a perception of risk. The statistics do not reflect a high level of risk in reality. People are not being injured or killed by neighbours' trees, and in New South Wales only one death has been caused by a tree in an owner's property in the past 10 years. A large number of disputes are baseless in reality. However, it is likely that there will be pressure to remove trees in order to resolve a disagreement rather than to address any quantifiable risk. A consistent approach to risk assessment would also provide a basis for evaluating the relative benefits of different responses to conflictive situations. Trees are valuable community assets and it should not be automatically assumed that any degree of risk, no matter how small, or any damage to neighbouring property automatically warrants their removal. It is relevant to note that ageing structures are more susceptible to tree damage.

Currently there is no methodology of quantifying the degree of risk presented by a tree being used in New South Wales. In the United Kingdom one methodology, known as quantified tree risk assessment, derives an index to determine whether a risk is acceptable. Although there is still an element of subjectivity, users of the methodology are certified. With professional guidance in assessing risk there would be, furthermore, an improved likelihood that any prescribed tree work will be referred to properly qualified arborists-tree surgeons, thereby reducing the risk that court-prescribed management actions themselves will cause future safety problems.

The Greens are, however, pleased to see that within suggested section 12, which deals with matters to be considered by the court, amongst other considerations the court is to consider whether the tree has any historical, cultural, social or scientific value; any contribution of the tree to the local ecosystem and biodiversity; any contribution of the tree to the natural landscape and scenic value of the land on which it is situated or the locality concerned; the intrinsic value of the tree to public amenity; and any impact of the tree on soil stability, the water table or other natural features of the land or locality concerned. Further, if the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or injure someone, the court must consider, as stated in the bill, "anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant".

So the court will not be able to easily order that the tree be removed without considering all those factors. If the tree is genuinely posing a danger, it can be trimmed or removed but the court would need to have expert advice from a tree expert prior to ordering that the tree be trimmed or removed. The court can also order that a tree be replaced and allowed to grow to maturity, which will ensure that where a tree must be removed no-one interferes with a replacement tree. The Greens believe the considerations required are very sensible, as, unfortunately, there are some people who really hate trees. Although some people call environmentalists "tree huggers", I would much prefer to be a tree hugger than a pathological tree hater. Some people seem to have a horror of falling leaves and falling bark, believe tree roots strangle their plumbing, and generally want to live in an overconcreted and overly neat world where nature, if any, is tightly marshalled into a lawn or confined to a pot.

The court needs to protect trees from such people, who may unreasonably claim that a tree is dangerous and should be removed just because they dislike a neighbour's tree overhanging their property. The Land and Environment Court is not exactly inexpensive. But the legislation does say that the applicant and landowner 22 November 2006 LEGISLATIVE COUNCIL 4601

must have tried to come to an agreement prior to any hearing. I assume this would involve any prior negotiations directly between the parties, or via their lawyers, or within a community justice centre, which is inexpensive and mediated by a qualified person. If no agreement is reached, one party may apply to the Land and Environment Court. That would probably most likely occur if a tree had caused damage or injury already and no settlement or compensation agreement had been reached.

A number of lands containing trees are exempted from the bill. Council-owned land is exempted. Therefore private occupants of land adjoining a council reserve may not have remedy against their council should they have a dispute about a tree affecting their property. However, according to the Minister, this will most likely change following a review of the Act in two years time. Section 4 (2) (b) provides that the Act does not apply to trees situated on any land of the kind prescribed by the regulations. The Attorney General or the Minister for Planning will have the power to exempt any land by regulation. We are used to the Minister for Planning awarding himself exceptional powers, and this would seem to be just another example of Minister Sartor exercising his power to make exemptions for one piece of land and not another. Perhaps this is to cover the Government where a tree on land owned by the Roads and Traffic Authority, the Sydney Ports Authority, or another government corporation or authority is the subject of a dispute with a neighbouring landowner.

Although Crown lands are exempted, where a tree situated on Crown land is causing problems the Minister may refer the matter to the local land board. Where a matter has been referred to a local land board under either the Crown Lands Act or the Western Lands Act 1901, the Land and Environment Court must not make an order unless the process provided for under the Crown lands legislation has been completed. Other parties can be included in the proceedings. The bill provides that a relevant authority, such as a council or the Heritage Council, has a right to appear before the court in any proceedings where the consent or authorisation of the authority would, in the absence of the legislation, otherwise be required.

One suspicion arises that the bill may be paving the way for the potential, after future review, for people to have the Land and Environment Court order the removal of trees on the basis of view. This, of course, would be strongly supported by developers and the real estate sector. Some people who buy expensive apartments overlooking water seem to think they have a right to a view and that a council should not plant trees that obstruct their multimillion-dollar vistas. In that respect the exemption of the council from this legislation may prevent claims being made against a council, although I note that there is no basis for any action based on loss of view. The only grounds are when a tree is causing or is likely to cause damage or injury. The Minister commented in his second reading speech:

A number of submissions relating to the exposure draft bill raised concerns relating to trees blocking light and views. The Government appreciates these issues are important to some members of the community. However, the Government is mindful that the proposed legislation pioneers new ground and at this stage does not consider it appropriate to address such concerns of trees blocking light and views. They will be kept under review.

Under this legislation councils will have the discretion to carry out the work ordered by the court where a tree owner has not complied with the order. Councils that take such action will be able to recoup reasonable costs associated with such work. What happens if a council fails to undertake the work? How can a court order be enforced? How does a council recover costs from, for example, a very low-income homeowner or mortgage defaulter? I ask the Minister to address these concerns in his reply. The Greens have a number of amendments to the bill but in general we support it.

Reverend the Hon. FRED NILE [10.30 p.m.]: The Christian Democratic Party supports the Trees (Disputes Between Neighbours) Bill. I add my support for the bill, which perhaps should be called the bill to promote peace and harmony between neighbours with troublesome trees. The bill enables the bringing of proceedings in the Land and Environment Court to resolve disputes between neighbours about trees in urban areas. In particular, it enables an owner of land to apply to the court for an order to remedy, restrain or prevent damage to the owner's property, or to prevent injury as a consequence of a tree that is situated on adjoining land.

The roots of large trees that are grown in suburban areas can move under pathways, pavements and walls, and they can affect the footpaths of next-door neighbours as well. These trees must be brought under control. They should not be poisoned by residents who want to protect their view of a river or the ocean. As we have seen in the media, in the middle of the night people poison the trees so they do not block their view. Some councils erect banners where the trees once were, to block the view. The best remedy would be to plant more trees. There is always controversy about trees, and questions have been raised about action that has been taken by government agencies and councils in relation to them. 4602 LEGISLATIVE COUNCIL 22 November 2006

Sydney City Council removed trees from the Domain, alleging that the trees were diseased and needed to be destroyed. I inspected some of the trees after they were cut down. They looked quite healthy. There was no sign of disease in the trunks of the trees. Perhaps the roots were diseased, but the trees themselves appeared to be healthy. How do we control public authorities that sometimes are quick to remove trees that they consider cause a problem, such as tree branches falling on pedestrians? In such cases councils could be sued for damages. They may consider that the safest option is to remove the trees. That is an extreme policy. The Government should also supervise councils in relation to the protection of trees in their community. The Christian Democratic Party is pleased to support the bill.

Mr IAN COHEN [10.33 p.m.]: I support the position taken by Ms Sylvia Hale, who led for the Greens, on the Trees (Disputes Between Neighbours) Bill. Trees in urban settings have multi- functions, such as aesthetic appeal, and shade and home to native birds and animals. One has only to look out at the Domain and the Royal Botanic Gardens to see the bats on the wing and the many possums that have an avid audience of tourists at night. On many occasions when I walk through the parks I stop and look at the amount of wildlife that is attracted to the native species. It is not unusual to see a magnificent display of bats at sunset. I know they create problems with their numbers and roosting, and that they impact on trees in the botanic gardens. However, they bring nature to the city and add to the quality of life of people in the city. Wherever we go it is important to recognise parklands and trees on private property.

I am also interested to note the number of sacred ibis that are in the city area. I understand that many councils take exception to them. The sacred ibis were once considered fragile, but they are quite adept at living in an urban environment. Whilst some councils are intent on controlling the numbers of sacred ibis, I ask the House and those concerned with controlling bird numbers to recognise that we are in a drought and that many of the birds are moving to the city as a refuge. Hopefully, as the climactic conditions change they will spread further afield. I have seen birds of prey hovering over Hyde Park, waiting for an unaware possum or perhaps a city rat to come into their sight. Trees can enhance the quality of life of people in city areas. Urban parklands are the lungs of the city aesthetically and realistically, and provide many services to humans.

Disputes about trees do arise. Ms Sylvia Hale and other speakers have referred to this issue. The disputes are often about matters of inconvenience, such as leaves in gutters, but sometimes the trees are causing a real nuisance or damaging neighbouring properties. The bill deals with this issue in a constructive manner. I am concerned about the degree of tree vandalism in many areas, particularly in coastal areas where trees are seen to inhibit the million-dollar views held dear by owners, developers and real estate agents. Views mean money. I have seen trees poisoned on the Glebe waterfront and at the south end of Bondi. Waverley Council has intelligently placed signs that clearly indicate that trees have been poisoned in the area. I understand that the signs, which carry a warning to people to report tree vandalism, remain in place until new trees have grown. Cargo containers, which are obviously difficult to move, are also used. I believe the way for councils to constructively and intelligently address this problem is to permanently erect a large sign or banner acknowledging that tree vandalism has taken place. The sign stays in place until more trees have grown to the point of maturity, when they take the place of the original trees. That is a long-term project.

This plan has been adopted in my area of Byron shire. At Clarks Beach I saw that trees had been poisoned. Together with other members of the local community, I convinced the council to erect a large sign, which has been in place for several years, while other trees were planted, took root and began to grow. It is often obvious who has perpetuated the crime of poisoning the trees, but little can be done against the individual poisoner because it is usually done surreptitiously at night. The erection of signs can resolve this problem. Every vandalised tree should be replaced by a large sign until new trees are allowed to develop. All along the coast we have a major problem with unregulated tree clearing. I commend the bill, which addresses such issues and other problems. Tree vandalism is a significant problem, particularly with the rise in value of coastal real estate and the pushing of views as an asset rather than a setting for trees. The wide open vista is treasured by particular landowners but it is not the best ecological solution to a balanced life on the coast. I support the bill and acknowledge the great importance of trees in the urban environment.

The Hon. HENRY TSANG (Parliamentary Secretary) [10.39 p.m.], in reply: I thank all honourable members who contributed to debate on the bill and I commend it to the House.

Motion agreed to.

Bill read a second time.

Consideration in Committee ordered to stand as an order of the day. 22 November 2006 LEGISLATIVE COUNCIL 4603

ADJOURNMENT

The Hon. HENRY TSANG (Parliamentary Secretary) [10.39 p.m.]: I move:

That this House do now adjourn.

TRUE GREEN BOOK LAUNCH

The Hon. GREG PEARCE [10.39 p.m.]: Tonight I bring to the attention of the House True Green, a useful and important publication that has just been released. The book was written by two good friends of mine—Kim McKay and Jenny Bonnin—and published by ABC Books. I attended the launch of the publication last Sunday at Mrs Macquaries Chair at Fleet Steps, where another good friend of mine, Ian Kiernan AO, Chairman of Clean Up Australia, launched the book. Many honourable members would know Ian for his valuable contribution to the community and, in particular, for his practical environmental solutions for members of the community.

The AC Nielsen poll published in the Fairfax newspapers on 7 November 2006 showed that almost two-thirds of Australians are now prepared to pay more to reduce greenhouse emissions and 91 per cent believe that global warming is a problem. I have been concerned for a long time about the future of the Earth and future generations and, in particular, global warming issues. In 1992 I had the good fortune to be part of the Australian delegation that went to the Earth Summit in Rio, where the climate change convention, the biodiversity convention, Agenda 21 and various other documents were signed by the world's leaders.

Ian Kiernan was one of the people who stimulated my interest in this area. Kim McKay, Ian's deputy chairman for a long time, is a co-founder of Clean Up Australia and also Clean Up the World, so I was pleased to see the new book written by Kim and Jenny Bonnin. True Green provides 100 everyday ways to contribute to a healthier planet. It also gives practical tips on what all Australians could do to minimise their environmental impact, whether in the home, at work, while shopping, travelling, in the garden, or in the community. So it is a very practical publication. The authors wanted to create a book to help all Australians understand that they can make a difference, with the opportunity to reduce our carbon emissions, some say by up to 40 per cent, by taking easy and practical steps.

The key to involving the community in environmental issues is to come up with practical, down-to-earth ways that we can employ in our daily lives to make a better contribution to the way in which we live. True Green includes 100 easy to follow tips using renewable energy to walking more, using the car less, and unplugging appliances that do not need to be on all day. Those are the sorts of things with which members of the community can identify to see how they can make a contribution without necessarily having to be part of an international debate over sometimes scientific and difficult issues such as climate change. I recommend this publication to all honourable members and direct them to the web site www.betruegreen.com. They might even think about acquiring this book. I commend Kim McKay and Jenny Bonnin for their serious work in getting this publication into the community and making practical suggestions as to the ways in which every citizen can help to address environmental issues.

EVANS HEAD OCEAN OUTFALL

Mr IAN COHEN [10.44 p.m.]: I note from media reports that the Environment Protection Authority [EPA] seems to be giving tacit approval for the development of an ocean outfall for treated effluent from the Evans Head sewage treatment plant [STP] some 800 metres to the north-east of the mouth of Evans River estuary, that is, about 500 metres off Air Force Beach at Evans Head. The proposed discharge will be within the New South Wales coastal zone as set out in NSW Coastal Policy 1997. In that policy document, goal 1.3.15 states:

A public inquiry into ocean sewerage outfalls and effluent re-use opportunities will be undertaken and results used in formulating future Government policy on ocean disposal of effluent.

Given that it is almost nine years since NSW Coastal Policy 1997 was put in place, where would one find the outcome of such a public inquiry and what is the Government's policy on ocean outfall disposal of effluent, particularly in view of section 6 of the Protection of Environment Administration Act 1991 and section 54A of the Coastal Protection Act 1979? There is firm community opposition to the discharge of treated effluent in the sea off the main surfing beaches in the area of Richmond Valley Council. Council has not met with its own section 355 reclaimed water committee to discuss its recent proposal for an ocean outfall. In fact, council has gutted that committee and community representatives hear about council decisions only after the fact. 4604 LEGISLATIVE COUNCIL 22 November 2006

The committee no longer has a consultative role, which flies in the face of advice from the Department of Environment and Conservation [DEC] that the community is to be consulted about matters of such importance. Some years ago community representatives raised the matter of an ocean outfall, but it was firmly rejected as an option by various State Government departments and council's consultants. I am interested to discover why that change of position in policy has occurred. Various options still exist for the disposal of treated effluent that have not been considered by council or the EPA, including the development of constructed wetlands at the STP site, which is highly contaminated, and other locations that will be affected by the Roads and Traffic Authority's Pacific Highway upgrade and that may be acquired as an offset for environmentally sensitive land that will be lost to the upgrade.

It is a pity that suggestions for a constructed wetland that had the support of award-winning specialists in this area have fallen on deaf ears. People working on the Byron Bay constructed wetland project visited Evans Head area and assessed the situation, but their calls to Richmond Valley Council for similar constructed wetlands seem to have fallen on deaf ears. I look forward to a timely response to the questions that have been asked. I am prepared to discuss any of these matters in the interests of finding a solution. Council continues to approve developments requiring new sewerage services for Evans Head, notwithstanding continuing pollution of Salty Lagoon in Broadwater National Park and the DEC requesting council to consider a moratorium on development, which is clearly being ignored.

I also note the shifting landscape with regard to compliance requirements under the STP licence. Council has a history of failing to listen to the community about environmental matters. For example, some years ago the community brought to the attention of council the fact that the State heritage-listed Evans Head memorial aerodrome was most likely contaminated. Council ignored those concerns but it now turns out that a significant problem has to be addressed.

State agencies should examine the Richmond Valley Council, and particularly the Evans Head situation. We could have state-of-the-art wetlands similar to those successfully developed in the Byron Shire Council area to resolve the pressing issues and to allow for balanced development. We should get away from the old out-of-sight, out-of-mind sewage outfall mentality gripping the council and create a situation that adds to the ecological value of that beautiful coastal community rather than detract from it.

HONOURABLE MEMBER FOR CAMDEN

The Hon. PETER PRIMROSE [10.49 p.m.]: I will briefly speak about some of the achievements of my local member, Mr Geoff Corrigan MP, the honourable member for Camden. He has achieved a significant amount since his election in 2003. Those achievements demonstrate that he has been working hard to deliver to the area its fair share of resources from the State Government. The Hon. Charlie Lynn and I both live in the electorate of Camden. The honourable member for Camden has delivered a number of significant capital works projects to the local community, including the new Camden Hospital midwife service, which provides a continuity of care with a dedicated midwife caring for the same women through antenatal, labour and postnatal care.

The honourable member for Camden has gained for us $122 million for the refurbishment of Campbelltown Hospital. We have new fire engines for Camden West, Cobbitty, Kemps Creek, Leppington, Lynwood Park and Wallacia. School security fences are very important to local communities, and the honourable member has ensured the allocation of $153,540 for a new security fence at Narellan Public School. In addition, he has been able to secure funding for new classrooms to reduce class sizes at Currans Hill and Harrington Park public schools, and $50 million for the Camden West sewage plant and the recycled water pipeline.

The honourable member has focused on and been committed to safer and better local roads. He has made improving local roads one of his top priorities. I will mention some of his road-related achievements that come to mind immediately. He has ensured the allocation of $15 million this year alone to extend Narellan Road to the Northern Road, $2.5 million for traffic lights at the intersection of Camden Valley Way and Raby Road, $1.5 billion for the Westlink M7, which bypasses 48 sets of traffic lights and cuts travel times and petrol costs, and $5 million for new traffic lights at the intersection of Horsley Road and Cowpasture Road North. There is still a lot more to be done, but the honourable member is very wise in telling our community that he is getting on with the job. The Opposition has made promises totalling $25 billion but it will be unable to fulfil them. The honourable member for Camden has a record of achievement. The Opposition's big promise so far is to sack 29,000 public servants. 22 November 2006 LEGISLATIVE COUNCIL 4605

In contrast, Labor has a strong record in public education. I will highlight some of the differences between Labor's record on public education and that of the former Coalition Government. In 1995 total school funding in this State was $4.2 billion. In 2006 it is $8 billion. That is an increase of 90 per cent. The average funding allocation for each student was $5,273 in 1995 compared to $10,158 now. That is an increase of 92 per cent. It is worthwhile saying for posterity that members of the Opposition in the Chamber are gobsmacked. They have been silent during this debate, unable to believe the effort that the hardworking honourable member for Camden has made for his local community and the resources that the Labor Government has committed to important policy areas such as public education. For example, in 1995 the salary of an experienced schoolteacher was $42,016 and it has now increased by 65 per cent to $69,000.

SMALL SCHOOLS

The Hon. ROBYN PARKER [10.54 p.m.]: Tonight I shall talk about small schools. Whenever I visit schools in my capacity as opposition Parliamentary Secretary for education I see inspirational teachers and wonderful things going on in classrooms. That is particularly true in small schools. There are some terrific small schools in rural and regional areas and some on the fringes of the Sydney Basin. I see teachers doing wonderful things, often in difficult circumstances. I refer not only to those teaching several grades at once but also to teaching principals, who must really stretch themselves under this rotten Labor Government.

This Government's record on education is a disgrace. I visited Marsden Park Public School a few weeks ago. It is a small school and the teachers are doing fantastic things. However, like many schools around the State, it has been very poorly maintained. The teaching principal wanted to explain the word "threadbare" to her year 6 students. She took them to the classroom next door and showed them the carpet. It was absolutely threadbare. That gave them a clear understanding of the word. She could also have shown them the hole in the wall that had been there for five years and some of the other maintenance problems in the school, including the toilet that needs fixing and the septic tank that has been leaking sewage onto the lawn for five years. The Government has repeatedly promised to fix it, but the affected area has simply been cordoned off so the children do not go tiptoeing through the "you know what" during the lunch break.

These small schools have teaching principals who do not get enough relief time to manage their schools; they get the same salary as a deputy principal at a larger school but end up working weekends to cope with the administration—but we still see wonderful things going on. I have been impressed with not only Marsden Park Public School but also Windsor South Public School, which also has maintenance problems. The school is using funding provided by the wonderful Federal Government through the Investing in Our Schools Program to upgrade computer rooms and to provide assessment support teachers for students with learning difficulties. Once again, Windsor South Public School has a teaching principal who does not have enough hours outside the classroom to administer the school.

I am pleased that the Liberal Party's Riverstone candidate, Kevin Connolly, who has a teaching background, will take up some of these issues. After 12 years of State Labor, the lies about school maintenance continue. After spending cuts of $23 million this year despite promises to increase maintenance spending, students and teachers cannot rely on Labor's promises to address the maintenance backlog in schools. The only consistency is the lies. The Auditor General's report released only last week indicates that the Labor Government has cut maintenance spending by $23 million rather than increase it by $30 million as promised. Last year the Auditor General noted a backlog of $116 million in school maintenance. That is the price of cracked walls, peeling paint and rotten carpet—and the price of a rotten, rotten Government.

Labor's spending on school maintenance fell from $187 million in 2004-05 to $164 million in 2005-06. No wonder there is threadbare carpet in a year 6 classroom. The Government's school maintenance spending is at bandaid level. The Auditor-General noted that the backlog of maintenance has barely changed, and still totals $114 million. Parents and students know that this lack of spending means that students and teachers continue to suffer in classrooms that in some cases are Third World standard. Labor's legacy is crumbling schools. After 12 years, we can expect only more Labor lies. It is time to stop the excuses. The Coalition calls on the State Labor Government to clear the maintenance backlog and make sure that students and teachers can work in the best physical surroundings possible. [Time expired.]

FEDERAL GOVERNMENT INDUSTRIAL RELATIONS WORKCHOICES LEGISLATION

DEATH OF MAVIS TERSTEEG

Ms LEE RHIANNON [10.59 p.m.]: Last week the High Court ruled 5:2 that the WorkChoices legislation is constitutional in the face of a joint challenge mounted by the New South Wales Government and 4606 LEGISLATIVE COUNCIL 22 November 2006

others. The effect of the High Court judgment is to call into question the power of the New South Wales Parliament to legislate industrial relations matters for Commonwealth constitutional corporations. In many respects this judgment rewrites the Commonwealth constitution, centralising power with a deeply conservative Federal Government. Every fair-minded Australian knows that, regardless of the High Court decision, WorkChoices is unfair. It is stacked in favour of business at the expense of the majority of people in our community.

The Greens believe WorkChoices is ideologically driven and ignores the power imbalance in the relationship between employers and employees. Without legal protections, business inherently has more power than individual workers. WorkChoices gives so-called market forces—that is to say, the greed of business owners and senior managers—greater scope to affect the wages, conditions and job security of Australian workers. We are already seeing the dramatic impact of WorkChoices on workers' rights and conditions. We hear stories in the newspapers, in public forums and from our friends about exploitative bosses doing over their workers at child care centres, at Spotlight, at the Cowra abattoir and at a Campbelltown juice bar.

Recently I visited a community assembly at Turrella, where an employer, Thompson Roller Doors, has exploited the WorkChoices legislation to attempt to force workers, against their will, onto Australian workplace agreements. I understand that the dispute has been resolved and that the employer has failed in his attempt—for the moment. The employer also tried to exploit the removal of unfair dismissal protections and sack a union member who complained to management about racism in the workplace. Another worker was sacked for putting in a lunch order for his mates who were engaged in protected industrial action to secure their right to have a collective agreement with the company.

WorkChoices offers these workers no choice but to stand up and fight for their rights. The Greens take the view that the New South Wales Government has a responsibility to use every means available to protect the maximum possible number of people in New South Wales from WorkChoices, regardless of the High Court judgment. We congratulate the Government on the amendments it has made to date to protect workers in New South Wales. But we are concerned that these moves are not enough to fireproof workers from WorkChoices following the High Court decision.

The Greens have given notice that next year we will introduce a private members' bill, the Protecting New South Wales Workers from WorkChoices Bill. We believe that this bill will offer a good model for protecting New South Wales public sector workers and many private sector workers from the WorkChoices net. The bill will amend the Corporations (Commonwealth Powers) Act to explicitly limit any reference of power, and amend the Local Government Act and the State-Owned Corporations Act to provide that all staff are to be employed by the general manager and by the chief executive officer respectively. The bill will require that tenderers of government services must offer wages and conditions that are no less than comparable to the State award.

Prime Minister Howard and the Liberal Party cannot be trusted by working people. In Federal Parliament the Prime Minister has handed the keys of the kingdom to business, while those who elected him suffer. In New South Wales Peter Debnam has promised to complete the job by cutting public service positions by 29,000 and handing over whoever remains under New South Wales industrial relations legislation to the WorkChoices regime. The High Court decision simply makes it more important than ever for the community to join working people and their unions to defeat the Howard Government and its extreme anti-worker legislation.

The Rights At Work campaign is co-ordinating community protests across the State on Thursday 30 November. Along with other Greens, I will be proud to be on the streets on that day. The New South Wales Government has rightly opposed WorkChoices. These rallies are critical. Given that much of the opposition to WorkChoices cannot occur in the New South Wales Parliament, I ask the Government: Will it permit its employees to attend the 30 November protests, together with thousands of others, to oppose the Howard Government and its laws?

Mavis Tersteeg died recently. She was a tireless worker for the campaign to save Johnsons River, which is under threat from the proposed Duralie coalmine. Mavis had an incredible ability to wade through enormous environmental impact statements and pursue matters to the Administrative Appeals Tribunal in order to save her beloved river. Mavis generated wide support for the campaign. I express my condolences to her husband, Tony, and to her family and friends. Mavis was a great fighter for the environment and for her community. [Time expired.] 22 November 2006 LEGISLATIVE COUNCIL 4607

DEATH OF THE HONOURABLE ERIC LANCE BEDFORD, A FORMER MINISTER OF THE CROWN

The Hon. JAN BURNSWOODS [11.04 p.m.]: Tonight I pay tribute to the late Eric Bedford, who died in July this year. Earlier this year my colleague the Hon. Kayee Griffin spoke eloquently about Eric, and a condolence motion was moved in the lower House. Eric was born in 1928 at Concord. He joined the Australian Labor Party when he was only 14, and worked very hard on a variety of campaigns for the party. Eric was elected to the New South Wales Parliament in 1968 and in 1976, when Neville Wran became Premier, he was appointed Minister for Education even though Ken Booth had been the shadow Minister for Education before the election.

I knew Eric Bedford when he was the Minister for Education. He was a particularly popular Minister. Some have suggested that he was simply the latest in a long line of education Ministers who found it easy to have a relatively cosy relationship with both the Department of Education and the New South Wales Teachers Federation. However, I believe we should stress, instead, that Eric was extremely easy to get along with and was very committed to his legislative program. Features of his period in office included establishing the first group of preschools in government primary schools and initiating a massive program of acquiring sites both to extend badly overcrowded inner-city schools—primary and secondary—and to build a range of new schools. Many high schools throughout Sydney had their genesis in this period. In 1980 Eric left the Education portfolio to go to Planning, and was replaced in Education by the late Paul Landa.

I renewed contact with Eric many years later when, in 1996, I became Labor's duty member of the Legislative Council for Port Macquarie. I discovered that Eric and his partner, together with a handful of others, were the heart and soul of the Camden Haven branch of the Australian Labor Party. I saw Eric's continuing contributions to the Camden Haven and Kendall areas and to the party that he joined all those years ago. I join the Hon. Kayee Griffin in paying tribute to Eric Bedford, and I pass my best wishes to those who are still fighting the good fight in the area where Eric and his family were active for so long.

Motion agreed to.

The House adjourned at 11.09 p.m. until Thursday 23 November 2006 at 11.00 a.m.