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LEGISLATIVE COUNCIL

Wednesday 7 September 2011

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The President (The Hon. Donald Thomas Harwin) took the chair at 11.00 a.m.

The President read the Prayers.

INDEPENDENT COMMISSION AGAINST CORRUPTION AMENDMENT BILL 2011

PUBLIC INTEREST DISCLOSURES AMENDMENT BILL 2011

Bills received from the Legislative Assembly, and read a first time and ordered to be printed on motion by the Hon. Duncan Gay, on behalf of the Hon. Michael Gallacher.

Motion by the Hon. Duncan Gay agreed to:

That standing orders be suspended to allow the passing of the bills through all their remaining stages during the present or any one sitting of the House.

Second reading set down as an order of the day for a later hour.

BUSINESS OF THE HOUSE

Formal Business Notices of Motions

Private Members' Business item No. 200 outside the Order of Precedence objected to as being taken as formal business.

DEATHS OF PAUL LOCKYER, JOHN BEAN AND GARY TICEHURST

Motion by the Hon. Jenny Gardiner agreed to:

1. That this House notes:

(a) the passing of ABC journalist Paul Lockyer, cameraman John Bean and helicopter pilot Gary Ticehurst while on assignment near Lake Eyre on 18 August 2011,

(b) the great contribution these men made to journalism and film-making and, in particular, to documentary-making and investigative journalism, and

(c) the extraordinary capacity of Paul Lockyer as a journalist who specialised in bringing important and often moving stories from regional Australia to the television screen in a balanced yet empathetic way.

2. That this House expresses its condolences to the families of these three outstanding Australians.

BUSINESS OF THE HOUSE

Formal Business Notices of Motions

Private Members' Business item Nos 235 and 236 outside the Order of Precedence objected to as being taken as formal business.

GOVERNMENT ADVERTISING BILL 2011

Second Reading

The Hon. MICHAEL GALLACHER (Minister for Police and Emergency Services, Minister for the Hunter, and Vice-President of the Executive Council) [11.08 a.m.]: I move:

That this bill be now read a second time.

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The Government is pleased to introduce the Government Advertising Bill 2011 to restore integrity to government advertising. Governments in New South Wales have long used advertising campaigns to deliver important messages to the community. Such advertising campaigns should always be designed to benefit the community; for instance, to encourage people to be healthier, to be safer on our roads, to protect our environment or to take part in civic activities.

The advertisements reach citizens in many ways, but principally through television, radio, the internet, newspapers and magazines. The people of New South Wales should be able to expect that each dollar spent on a campaign is spent for their benefit and not for the benefit of politicians or political parties. There have been examples in the past of political advertising designed to make people feel good about the Government of the day, sometimes featuring Ministers spruiking the achievements of their administration. In opposition the Coalition parties sought to improve the standards for government advertising, including through the introduction in the other place of the Government Publicity Control Bill 2007. However, the Government of the day opposed the bill.

The tendency to politicise government advertising has coincided with a rise in the amount of public money spent on it. The Auditor-General estimates that in the decade from 1999 to 2009 total annual expenditure on government advertising ranged from around $80 million to around $120 million. In round figures this put the cost of government advertising at $1 billion per decade. This Government will ensure that advertising spending is managed responsibly to ensure that it is for proper public purpose and this bill is a key way of achieving that.

The bill delivers the Government's commitment contained in its 100 Day Action Plan to introduce legislation to eliminate taxpayer-funded political advertising. It stops Ministers and government agencies spending funds on advertising unless the campaign complies with the new laws. The bill restores the integrity of advertising by the New South Wales Government by, one, prohibiting party-political material in government advertising; two, prohibiting advertising campaigns designed to benefit a political party; three, protecting the independence of heads of government agencies authorising advertising campaigns, ensuring they are free from interference by a Minister; four, providing a role for the Auditor-General to scrutinise government advertising campaigns; and five, making governing political parties liable to pay back the costs of advertising campaigns that breach these laws.

I will now turn to features of the bill. A wide range of government agencies need to comply with the provisions of the bill. They are set out in part 1 and include public service departments, statutory bodies representing the Crown, the New South Wales Police Force, the teaching service and the New South Wales Health Service. Other bodies may be prescribed by regulation. State-owned corporations, however, are not engaged in the types of businesses and activities that lend themselves to political advertising, so these corporations are not subject to the arrangements in the bill. Nonetheless, the Government will continue to monitor the advertising practices of State-owned corporations with a view to regulating them in future if there is a need.

A key concept in the bill is "government advertising campaign" which is set out in part 1. It provides that a government advertising campaign is the public dissemination of information about matters of government or public importance. The information is distributed under a commercial advertising agreement and paid for by or on behalf of a government agency. In practice, these are the types of advertisements that are seen and heard every day on commercial radio or television, on commercial news or entertainment websites and in newspapers. A government agency purchases time or space on a commercial advertising platform alongside other advertisers.

Part 2 provides that the Premier as Minister responsible may augment and detail the practices for government advertising through guidelines. The foundations of the guidelines to operate under the bill are in the existing New South Wales Government Advertising Guidelines published as Premier's Memorandum 2010-08. These guidelines have been revised a number of times in recent years in response to shortcomings identified by the Auditor-General. While these revisions have improved the integrity standards in principle, they have not been supported by compliance machinery. This bill rectifies this shortcoming by providing the incentives for compliance. Governing political parties will need to be on guard to ensure that the provisions of the bill are not breached—at the risk of having to pay back the cost of an advertising campaign that is prohibited under the new laws.

Clause 6 sets out those prohibitions concerning advertising campaigns. The first prohibition is that a government advertising campaign must not be designed to directly or indirectly influence support for a political party. Because the design of any advertising campaign involves subjective opinions, the bill provides that the 7 September 2011 LEGISLATIVE COUNCIL 5033

circumstances in which a campaign is taken to comply with these provisions may be set out in the regulations. The second prohibition for a government advertising campaign is that it must not contain the name or give prominence to the voice or image of a Minister, a member of Parliament or a nominated candidate for election to Parliament. Third, the name of any political party, its logo or slogan may not be in a government advertising campaign. There are times when such material must be communicated to the public of New South Wales by agencies involved in the conduct of elections, principally the Electoral Commission and the Electoral Funding Authority. Government advertising campaigns containing service announcements required for the purpose of a State election are not subject to the prohibitions in this clause.

The formal, apolitical process for developing each and every government advertising campaign will be established under this bill. The heads of government agencies will be responsible for independently managing and vouching for the integrity of the campaign. Further, they will not be subject to Ministerial control concerning any government advertising campaign. Clause 7 requires that the head of a government agency must ensure that a cost-benefit analysis is carried out for a proposed government advertising campaign likely to exceed $1 million, and a peer review is required if any proposed campaign is likely to exceed $50,000. The agency head must certify these steps have occurred prior to the government advertising campaign going to air, into print, or going live on the internet. In exceptional circumstances, such as a civil emergency or sudden health epidemic, the peer review or cost-benefit analysis may be undertaken and certified after the commencement of the campaign.

The Government recently took action to improve the integrity of parliamentary processes by introducing legislation that effectively means any future government will only be able to prorogue Parliament before a general State election from Australia Day. For consistency, clause 10 provides that most types of government advertising campaigns must not be carried out after the same date, that is, Australia Day before a general election. A limited number of non-contentious categories of advertisements are allowed, such as public health or safety matters, job advertisements and government tenders. As a further measure of independence of the machinery put in place by this bill, the Auditor-General will play a crucial role in monitoring government advertising campaigns and sounding the alert when the provisions in this bill are breached. The Auditor-General has been consulted in the design of these provisions.

Clause 14 specifically provides that the Auditor-General will carry out an annual performance audit of the activities of one or more government agencies in relation to their advertising campaigns. The Auditor-General will be required to determine whether an agency has carried out the campaign economically, efficiently and in compliance with the provisions in the bill and the advertising guidelines. When providing a performance audit report the Auditor-General may determine that the content or other elements of a government advertising campaign constitute a breach of the prohibited conduct provisions, that is, designing a campaign to favour a political party, including politicians in a campaign, or including party political slogans or references. An adverse finding by the Auditor-General will include the cost of the advertising campaign. Now to the enforcement provisions of the bill—

Dr John Kaye: Your favourite bit.

The Hon. MICHAEL GALLACHER: Of course; most certainly. These are provisions that at last give teeth to the ethical regulation of government advertising in New South Wales. If a government advertising campaign breaches the requirements of clause 6, the prohibitions on political advertising, the governing political party will be automatically liable to pay the costs of the campaign. This liability may arise irrespective of whether the particular advertising campaign has been the subject of an Auditor-General's report. The cost of the campaign may be recovered as a debt due to the Crown. Clause 13 of the bill provides that a governing party may apply to the Supreme Court to review its liability to pay the whole or part of the impugned campaign. In essence, the enforcement provisions of this bill provide for a rigorous and transparent process. Political parties have access to the courts to dispute their liability to pay back advertising campaign costs.

To conclude, the Government recognises the benefits of advertising as a tool to inform the people of New South Wales about important issues that affect the community, and that may affect them personally. Done properly, it is a cost-effective way of raising awareness and improving behaviour in areas of public safety, health and the engagement with public services. However, it is unacceptable when government advertising crosses the line into partisan politics and public money is used to promote a party of government or its Ministers. The integrity measures in this bill mean that governing political parties must take their hands off the levers that control the content of government advertising campaigns or face paying back the costs to the taxpayer. This reform is long overdue and I commend the bill to the House. 5034 LEGISLATIVE COUNCIL 7 September 2011

The Hon. LUKE FOLEY (Leader of the Opposition) [11.21 a.m.]: I indicate at the outset that the Opposition will move numerous amendments to the Government Advertising Bill 2011 in the Committee of the Whole stage that we believe will improve the bill. I note that the genesis of this bill was the private member's bill moved by the now Premier when he served as Leader of the Opposition in 2007. As Opposition Leader, Mr O'Farrell introduced the Government Publicity Control Bill 2007. He said then that his bill would:

... put transparency and some accountability into the process. They are designed to ensure that New South Wales taxpayers' funds are not misused by any government of any political persuasion for purposes that are simply designed to suit the party in power.

They are noble sentiments but now that Mr O'Farrell is the Premier and leads the Government his position has changed somewhat. The bill that the Leader of the Government has just introduced is a weaker version of the private member's bill moved by the member for Ku-ring-gai in the other place four years ago. Mr O'Farrell's rhetoric remains the same but the bill is substantially weaker than the private member's bill he sponsored in 2007.

I turn now to the provisions of the bill. According to the O'Farrell Government the Government Advertising Bill 2011 stops Ministers and government agencies spending funds on advertising unless the campaign complies with these proposed new laws. The bill seeks to do a number of things, including prohibiting party political material in government advertising, prohibiting advertising campaigns designed to benefit a political party, protecting the independence of heads of government agencies authorising advertising campaigns ensuring they are free from interference by a Minister, providing a role for the Auditor-General to scrutinise government advertising campaigns, and making governing political parties liable to pay back the costs of advertising campaigns that breach these laws.

The Government tells us that a government advertising campaign must not contain the name or give prominence to the voice or image of a Minister, a member of Parliament or a nominated candidate for election to Parliament. The heads of government agencies will be responsible for independently managing and vouching for the integrity of the campaign. Those heads of government agencies will not be subject to ministerial control concerning any government advertising campaign. These are all worthy objectives and I endorse them all. A wide range of government agencies will need to comply with the provisions of the bill. They are set out in part 1 and include public service departments, statutory bodies representing the Crown, the New South Wales Police Force, the teaching service and the New South Wales health service. Other bodies may be prescribed by regulation. State-owned corporations are not subject to arrangements in the bill because, we are told, they are not engaged in the types of businesses and activities that lend themselves to politicised advertising.

Part 1 of the bill provides that a government advertising campaign is the public dissemination of information about matters of government or public importance and the information is distributed under a commercial advertising agreement and paid for by or on behalf of a government agency. A government agency purchases time or space on a commercial advertising platform alongside other advertisers. Part 2 of the bill provides that the Premier, as Minister responsible, may augment and detail the practices for government advertising through guidelines.

Clause 6 of the bill sets out those prohibitions concerning advertising campaigns. Clause 7 requires that the head of a government agency must ensure that a cost-benefit analysis is carried out for a proposed government advertising campaign likely to exceed $1 million. A peer review is required if any proposed campaign is likely to exceed $50,000. Clause 14 specifically provides that the Auditor-General will carry out an annual performance audit of the activities of one or more government agencies in relation to their advertising campaigns.

Many parts of the bill are the same or extremely similar to the current government advertising guidelines. For instance, clause 7 requires that the head of a government agency must ensure that a cost-benefit analysis is carried out for a proposed government advertising campaign likely to exceed $1 million. The requirements for cost-benefit analyses and peer reviews for campaigns if a proposed campaign is likely to exceed $50,000 are part of the current guidelines, as is the requirement for the head of a government agency to provide a compliance certificate in relation to a campaign. However, I note that the requirement that a peer review panel include a reviewer independent of the public sector is in the current guidelines but is missing from this bill. I ask the Government to explain why a number of current guidelines have been included in this legislation but the particular provision to which I just referred has been excluded. Four years ago, Mr O'Farrell said:

This legislation is simple: ... It enables the Auditor-General to order a public authority to stop dissemination of government publicity in certain circumstances, and it may order that a political party pay back the amount of expenditure on government publicity for political purposes incurred by a public authority where that party is held to be responsible for the publicity.

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The bill before us does not do this. The member for Ku-ring-gai's 2007 private member's bill would have required the Auditor-General to review a campaign costing $200,000 or more. That is not in the bill before us. Indeed, this bill weakens the Auditor-General's role when compared with the role the Auditor-General was to have under the member for Ku-ring-gai's 2007 private member's bill. Clause 14 of the bill only provides that the Auditor-General carry out an annual performance audit of the activities of one or more government agencies in relation to their advertising campaigns. Unlike the 2007 private member's bill of the member for Ku-ring-gai, this bill does not make it clear who has responsibility for making a decision that there has been a breach or a prohibition and for taking cost-recovery action.

If it is not the Auditor-General, as promised by Mr O'Farrell in the past, we can only assume it is the head of a government agency. This bill states that the heads of government agencies will be responsible for independently managing and vouching for the integrity of an advertising campaign. The bill states they will not be subject to ministerial control concerning any government advertising campaign. Yet Ministers appoint the heads of agencies and approve pay increases, and there is plenty of ministerial control there. How would the head of an agency fare with his or her Minister if the head were to declare that the Liberal Party or The Nationals must pay for an advertising campaign? In the real world, the head of an agency would not be game to make the declaration.

The most obscene government advertising campaign that our country has ever seen was the Howard Government's $100 million-plus campaign spruiking the benefits of WorkChoices. That was the Australian record when it came to the expenditure of public funds to prosecute the case for a political party. It did not do the Coalition much good. The sum of $100 million is about the amount the New South Wales Government spent on all advertising campaigns for the whole of the last financial year. The Premier waxes lyrical about government advertising, but when this bill is held up to the light it falls short of his rhetoric, and it falls short of the provisions that were included in his 2007 private member's bill. As such, the Opposition will be moving a number of amendments at the Committee of the Whole stage to make the Government live up to the rhetoric of its leader. We believe those amendments will strengthen the bill and match the Premier's tough talk with real action.

Dr JOHN KAYE [11.33 a.m.]: I speak on behalf of The Greens in the second reading debate on the Government Advertising Bill 2011. Government advertising plays an important role in the functioning of the State. It is an important mechanism for disseminating public health information, information about law and order, information about maximising compliance with laws and regulations, information about encouraging the use of government products and services, assisting in the preservation of order in the event of a crisis or emergency, or in the recruiting of staff. These are all valid and important functions of the State, and they are important engagements of the State with the process of democracy. So no objection is being raised to those activities.

However, government advertising gets into trouble when it is used to promote a party of government. The 2009 Auditor-General's performance report on government advertising identified four campaigns. One was the New South Wales Public Sector Cadetship program, another was the Investing in a Better Future campaign, and two public health campaigns, one relating to the winter 2009 influenza campaign, and the other about tobacco legislation changes under the No Smoking in Cars with Children campaign. The Auditor-General gave a complete clean bill of health to the influenza and no smoking in cars campaigns, identifying that they complied with the government advertising guidelines operating at the time and that they were totally valid campaigns.

The Auditor-General raised concerns about the Public Sector Cadetship and the Investing in a Better Future campaigns. The Auditor-General noted that the Investing in a Better Future campaign was clearly misleading in that it implied that 160,000 new jobs were created in New South Wales, when in fact that figure related to the position Australia wide, with only a third of the positions being in New South Wales. The Auditor-General said the Public Sector Cadetship program used an inappropriate photograph of the Premier— inappropriate because the Premier had no role in such an activity. One would argue that no politician's photograph should be included in any government advertising because we get plenty of access to the public through our work and through the media.

The legislation before the House aims to stop the rorting of government advertising. However, this legislation fails to live up to the Coalition's election promises, and it fails to live up to the standards of the 2007 private member's bill of the then Opposition leader, now Premier. The Government Advertising Bill now before the House, a bill that was part of the Coalition's 100 Day Action Plan, in the first instance leaves the final decision on government advertising in the hands of the department and the agency heads, who will inevitably be 5036 LEGISLATIVE COUNCIL 7 September 2011

under pressure from their Ministers to use public funds to lend a helping hand to the Government. Secondly, the bill lacks sufficient oversight from an independent watchdog to make sure that the Government is not promoting itself using the public purse. Thirdly, the bill does not empower citizens to lodge complaints against government agencies suspected of using public moneys to provide electoral advantage to government parties. The Greens will be moving a number of amendments to make this bill at least as powerful as Mr O'Farrell's 2007 bill, and also to force the Government to live up to its own 2011 election promises.

The Government Advertising Bill 2011 requires a cost-benefit analysis for any campaign costing more than $1 million and peer review of spending of more than $500,000. However, it does not require that this work be carried out by an independent person. It could be conducted, for example, within the bureaucracy. The bill, in clause 6, also prohibits political advertising using the public purse. The prohibitions include that a government advertising campaign must not be designed so as to influence, directly or indirectly, support for a political party, and further provide that material in the advertising campaign "must not contain the name, or give prominence to the voice or any image, of a Minister, any other member of Parliament or a candidate nominated for election to Parliament".

The bill requires the relevant government agency head to issue a compliance certificate for each advertising campaign, to certify that it complies with the Act, regulations and guidelines, including not promoting a political party. The bill requires, in clause 9, that the head of agency is "not subject to the control of any Minister in the exercise" of the functions under this Act. The bill requires government parties to refund the cost of a campaign that is found to breach the prohibition on political advertising. That all sounds great. In theory, it all looks fine. But, when analysed, the legislation will fail to stamp out the rorts because it still leaves agency heads in control of providing the certificate, by clause 8; causing the cost-benefit to be performed, by clause 7; and determining whether to take debt recovery action, by clause 9 (1) (c).

While clause 9 does say that the agency head is not under the control of the Minister, the decision is still being made by a public servant who is ultimately accountable to the Minister and whose future largely depends on his or her ability to work with his or her Minister. Complaints about a campaign must be made by the same agency head who signed the compliance certificate. In effect, we are putting the fox's employee in charge of the henhouse. The Greens believe these actions should be independent of government. The bill does not provide a mechanism for an individual or public interest group to pursue an alleged breach of the prohibition on political advertising.

This legislation is weaker than Barry O'Farrell's 2007 bill and it breaks the Coalition's election promise. In 2007 as Leader of the Opposition the Premier introduced the Government Publicity Control Bill 2007. That bill aimed to separate decision-making from the bureaucracy by creating a much greater role for the independent Auditor-General, who would have been required to review any campaign spending over $200,000 and had the power to make an order to have an inappropriate campaign stopped. However, the current bill has been stripped of the most powerful elements of the 2007 legislation, making it largely toothless. During the 2011 State election campaign the Liberal-Nationals Coalition promised on its website "to introduce legislation to require approval of the Auditor-General for advertising campaigns." Interestingly, that statement is no longer on the website. Fortunately, the National Library of Australia—that great institution of record—took a snapshot of that portion of the Liberal Party's website on 25 March 2011.

The Hon. Dr Peter Phelps: Just like the BDS was removed from The Greens website.

Dr JOHN KAYE: It is still there. That snapshot shows clearly that the Liberal-Nationals Coalition promised "to introduce legislation to require approval of the Auditor-General for advertising campaigns". That promise is not part of the 2011 bill and has disappeared entirely. While the 2011 legislation allows the Auditor-General to embark upon an annual audit of one or more government agencies, it does not require the Auditor-General to approve all advertising campaigns, as the Coalition promised before the election. The Greens will move amendments to the bill to restore to the Auditor-General the powers contained in the Coalition's 2007 bill and to make the Coalition live up to its 2011 election promises. The Greens will move, first, to require the Auditor-General to review and approve any advertising campaign that spends over $200,000; secondly, to allow complaints to be lodged with the Auditor-General regarding an advertising campaign breaching the guidelines; and, thirdly, to give the Auditor-General responsibility for determining breaches of the guidelines or the Act, and the power to carry out cost recovery.

Let me be clear: The Greens amendments give the power to the Auditor-General rather than leaving it in the hands of the department head—the same department head whose job depends on their relationship with 7 September 2011 LEGISLATIVE COUNCIL 5037

the Minister and the Government, and who will sign the certificate to say the campaign complied. That is worse than putting the fox in charge of the hen house. I cannot think of a good analogy to describe this bill other than to say it is totally and completely non-functional. No individual can be expected—even the best of bureaucrats, and New South Wales is lucky to have some extremely fine bureaucrats who take their jobs seriously—to do what the bill proposes. We are stretching things beyond the limits of human behaviour to say to somebody, "You have to be your own auditor, your own police person, you have to dob yourself in and, by the way, when you dob yourself in, you are going to profoundly annoy the Government on whose favour your future promotion or continuation of your current job depends."

If we had a truly independent bureaucracy and were not suffering under the changes made by the Greiner Government when it politicised department heads, perhaps the proposal would work. However, this State has moved well beyond that point. Because of the introduction of the concept of the senior executive service this State no longer has department heads who can be fearless and frank to the point of dobbing in the Government party and themselves. That will not happen. This bill is largely meaningless. In opposition Mr O'Farrell and his Coalition were enthusiastic about holding the Government to account for using the public purse to promote the ruling party—one suspects because he was not in the ruling party at the time but, instead, was battling it. Now that Mr O'Farrell has the reins of power he has backed down, introducing legislation that is riddled with conflicts of interest that will make it difficult to stop the rorting.

The Greens will hold the Coalition to the promise it made in opposition to put an end to the abuse of public funds for political advertising. The Government Advertising Bill 2011 is nothing but a pale imitation of Mr O'Farrell's 2007 effort and of his party's 2011 election promise. Instead of allowing the Auditor-General to have the final say on big campaigns, Mr O'Farrell has handed over certification control and prosecution to his senior bureaucrats. Claims of independence from the Government are totally meaningless. The same senior bureaucrat who signs off on the campaign has responsibility for prosecuting the governing parties for a breach of the prohibition on political advertising. That would probably be the worst career move any bureaucrat could ever make. In effect, this bill invites senior bureaucrats, agency heads, within the Government to commit career suicide.

The agency head then is expected to continue to work with the Minister whose party has just been stripped of hundreds of thousands of dollars. This is not a Coalition or Labor problem; it is a human problem. Nobody will do it. No department head would put themselves in a position where they effectively bankrupt a political party in the lead-up to an election. It simply will not happen. The bill contains tough penalties for misusing the public purse, and The Greens welcome them, but they are utterly irrelevant. The only way they can be imposed under this legislation is if the agency head decides to take action against the party to whom their Minister belongs. Despite the pre-election promises and the model legislation introduced in opposition, the Coalition's political advertising bill is as ineffective as Labor's guidelines. The fox will remain well and truly in charge of the henhouse.

If Mr O'Farrell's commitments in opposition were anything other than posturing to score easy points against the then Labor Government—and they were easy points to score—he will have no choice but to accept The Greens amendments in Committee. The Labor Party has also foreshadowed moving amendments similar to those of The Greens, but they are largely based around introducing a government advertising committee that makes recommendations in respect of breaches of a particular campaign. Those recommendations include things such as the head of the government agency concerned stopping the campaign, ensuring the campaign is modified or expenditure is limited, or ruling that the governing party pays back the costs. However, Labor's amendments then state that the head of the government agency must comply with a recommendation of the government advertising committee. In effect, Labor is taking the Auditor-General out of the equation after Mr O'Farrell promised in 2007 and during the 2011 election campaign to include him but then failed to do so in the current bill. Effectively, Labor is substituting a government advertising committee for the Auditor-General.

Labor proposes that the government advertising committee consist of the Information Commissioner and two persons with knowledge or experience relevant to advertising. Certainly that strengthens the legislation and is better than just having the head of the agency making the decisions. Labor's amendments take the responsibilities that reside with the head of agency and pass them to a substantially independent committee. That independent committee will be appointed by the Minister—who I presume in this case is the Premier—and operate with expertise provided by the two independent members and the Information Commissioner. It is a step in the right direction. It is better than leaving the matter in the hands of the agency head, but it does not take it out of the hands of the bureaucracy. It does not bring into play a truly independent agent, like the Auditor-General. 5038 LEGISLATIVE COUNCIL 7 September 2011

There are real concerns about not involving the Auditor-General in this process. We are talking about substantial amounts of government funds. In 2009-10 the Labor Government spent $101.7 million on government advertising. Much of that work was important. For example, it related to important public health messages around the influenza campaign and tobacco. They are important contributions to the public debate and instituting them through government advertising is a sensible use of public money. I do not think anybody argues with that. However, as I observed at the outset, the problem remains the issue of the inappropriate use of the image of the Premier and of data to imply greater achievements by the Government than occurred in reality.

A concern with the December 2010 New South Wales Government advertising guidelines—and many of the appropriate uses defined in them are excellent and should be supported—is the possible inappropriate use of government funding to raise awareness of a plan or pending initiative reporting on performance in relation to New South Wales Government undertakings. That is a source of real concern. The previous speaker, the Leader of the Opposition, pointed out how the Howard Government spent more than $100 million promoting the goods and services tax, raising grave concerns that this was a profoundly political issue that should have been promoted by the party in government, not by the Government itself.

The Government has plenty of access to the airwaves to promote its planned or impending initiatives; it is inappropriate to use government advertising for that purpose. Those guidelines remain in force. Presumably after the legislation is passed the Government will introduce new guidelines. We wait to see what they are. The Greens will not oppose the legislation because it appears to be a step forward. We believe Labor's amendments will improve the bill as it stands but do not go far enough. I foreshadow that in Committee The Greens will move amendments that not only fulfil the Coalition promises made prior to the 2011 election but also will protect public funds from abuse through inappropriate government advertising.

The Hon. Dr PETER PHELPS [11.53 a.m.]: I have had a close and detailed association with government advertising, albeit at the Federal level, for many years. As chief of staff to the Federal Special Minister of State, I sat and observed the actions of the Federal Ministerial Committee on Government Communications between May 2000 and November 2007. I saw literally everything from Unchain My Heart to WorkChoices—the brilliant and the disastrous. I will explain how the Federal system worked. A Minister would suggest, or a department would suggest to the Minister, that there was a certain aspect of government that needed to be promoted in the community. It normally had to do with the rights and responsibilities of individuals, new legislation, new benefits or new impositions that required communication to the people of Australia. In the olden days perhaps you could have had a town crier or used the Government Gazette but in a modern age the most effective way to communicate with people is through advertising.

The Minister would bring a proposal to the Ministerial Committee on Government Communications, which was staffed by members of Parliament, political advisors, bureaucrats from the Department of Prime Minister and Cabinet and the home department of the proposing agency. Between them, they worked out and assessed the proposals put forward. They called for tenders, they assessed the tenders and ultimately they selected, on a collegiate basis—and with the emphasis on unanimity of decision-making—which campaign was to go ahead. Subsequently they would approve the various creative elements. It was a good system and it was a responsible system. But, listening to Dr Kaye, you can tell that he has never been in government and seen how bureaucrats work. I assure him that if a bureaucrat was unhappy with a proposal—

Dr John Kaye: Point of order: The Hon. Dr Peter Phelps speaks in complete ignorance of my history and is misleading the House about my work background.

The PRESIDENT: Order! That is not a point of order. Should the member wish to pursue the matter, he is aware of the forms of the House that are available to him. The member will not abuse the standing orders by making a debating point under the guise of a point of order.

The Hon. Dr PETER PHELPS: Dr Kaye has obviously never been around a table where advertising was discussed because if he had he would know that bureaucrats are quite happy to tell the Government that they do not believe a certain level of advertising is appropriate. This is the nature of the system we are proposing. It is a system whereby bureaucrats will not be in the position of seeking to impose fines on various political parties because that will be obviated from the start. The decision of the department to approve a process—to approve the system, to approve the agency and to approve the creative output—obviates the need for bureaucrats to come back subsequently and say, "No, it was out of order". That is the beauty of this system.

I was always startled, as was everyone who had anything to do with the Federal Ministerial Committee on Government Communications, by the brazenness of the New South Wales Labor Government's advertising 7 September 2011 LEGISLATIVE COUNCIL 5039

campaigns. They were the subject of much discussion and obiter dicta by various members of the committee. I refer to the vacuous "Teach Your Children Well" education campaign, which had cutesy visuals of rural and regional schools with the Teach Your Children Well song played over the top. There was absolutely no call to action. There was absolutely no new policy description. There was absolutely no call to arms at the end. It was totally vacuous. Amazement was expressed that the New South Wales Government would allow the Premier to appear in television commercials. It was absolutely unheard of. You did not have Ministers or the Prime Minister appearing in television commercials. We had the ridiculous "We Are Moving This State Forward" advertisements, which were glib propaganda. There were the infamous mock recruitment advertisements for police, teachers and nurses that were essentially spruiking the alleged achievements of the State Government. None of those advertisements would have been allowed under the unlegislated—I emphasise that point— Federal system.

We are told that the Government of New South Wales spent between $80 million and $120 million per year on advertising. That means that, bar the goods and services tax campaign, it was spending exactly the same amount as the Federal Government on advertising. For five million people, the New South Wales Labor Government was spending the same amount in dollar terms as the Federal Government was spending for 20 million people. Yet when any criticism of government advertising was made it was always about Federal advertising. And didn't the critics come out of the woodwork. Presumably there would be such an outcry over Federal Government advertising, one would have thought thousands would have written to complain about it. The 2005 Senate inquiry into government advertising received submissions from nine people, all professionally aggrieved leftists. A submission was received from Sally Young of the University of Melbourne, who conveniently forgot to mention that she was an ardent member—indeed, a board member—of the Fabian Society. Why would that society criticise the Federal Government of John Howard?

A submission was received from Joo-Cheong Tham, another tenured leftist, who wrote in another paper that it was okay for trade unions but not businesses to give money to political parties. Trade unions okay; businesses not okay. We can see where he is coming from. A submission was received from Graeme Orr, who had the nonsensical idea that advertising should be treated like pocket money. He literally used the words "pocket money". A submission was received from Professor Stephen Bartos, who failed to mention that he was a former member of the Australian Capital Territory branch of the Australian Labor Party. A submission was received from Harry Evans, Mr Professional Opinion, who made outrageous suggestions about advertising agencies charging lower fees for government advertising campaigns and then working on party political campaigns. He made the allegation of "corruption". It was errant nonsense.

The Hon. Adam Searle: I think you mean "arrant".

The Hon. Dr PETER PHELPS: It was errant as well as arrant. The ironically titled Democratic Audit of Australia—a body so radical the Australian National University had to dump it after a couple of years and knowing that no respectable university would pick it up it now finds itself ensconced at the uber-radical and chic Swinburne University—had a great deal to say about advertising, most of which was completely wrong. A 2006 report into political finance and government advertising, again undertaken by the Democratic Audit of Australia and authored by Sally Young and Joo-Cheong Tham, was farcical. In fact, I tried to get factual errors in the report changed. I wanted to help them. The milk of human kindness was flowing through my body, but it swiftly turned to sour cream when they rejected my advances to correct basic factual errors. The reason was because the Left never lets the truth get in the way of a good story. They had a story to tell, a fictitious fable, and they were determined to tell it no matter what.

Even the Federal Auditor-General was led astray. In the 1999 report into government advertising the Federal Auditor-General proposed some nonsensical recommendations to the effect that advertising should be "not liable to be misinterpreted as party political". Anything can be misinterpreted to be party political depending on how illogical one wants to be. I commend—and I do not say these words often—Petro Georgio, who had the foresight as a member of the Joint Committee of Public Accounts and Audit to point out that it was a farcical idea that one of the criteria of government advertising should be that it may not be liable to be misrepresented. I thank the Leader of the Opposition, the Hon. Luke Foley, for raising previous examples of changes of mind between Opposition and Government. Let us look at Labor Party policy before the 2007 Federal election. In October 2007, prior to the Federal election, Kevin Rudd said that government advertising was "a sick cancer within our system. It is a cancer on democracy." The Australian Labor Party platform in 2007 promised:

Labor will not support the use of government advertising for political purposes. Labor will introduce legislation to ensure:

• government advertising campaigns only occur after government policy has been legislated for by parliament;

• all government advertising and information campaigns provide objective, actual and explanatory information free from partisan promotion of government policy and political argument and in an unbiased and objective language;

5040 LEGISLATIVE COUNCIL 7 September 2011

• all advertising campaigns in excess of $250,000 are examined by the Public Service Commissioner, who will report to Ministers on whether the proposed advertising compliance with Auditor-General's 1998 guidelines on government advertising; and

• the cost of government advertising is minimised by the targeted use of media other than television advertising.

In November 2007 Kevin Rudd revised dot point three of the platform and said:

I can guarantee that we will have a process in place run by the Auditor-General … in terms of establishing the office of the Auditor-General with clear-cut guidelines to whom every television campaign is submitted for approval before that television campaign is implemented. You have my 100% guarantee that that will occur, 100% guarantee and each one of you here can hold me accountable for that.

In July 2008 Labor brought in new guidelines for government advertising, based on previously recommended guidelines drafted by the Auditor-General. The Federal Special Minister of State said:

In 2007 Kevin Rudd made an election promise that campaigns over $250,000 would be scrutinised by the Auditor-General. This election commitment is now met … the Auditor-General will provide a "health check" on the final product of a campaign before it is communicated.

However, throughout 2009 it became clear in testimony to the Senate estimates and the Joint Standing Committee on Public Accounts and Audit that the Auditor-General had to repeatedly intervene in advertising campaigns. This was because what was being proposed by the then Labor Government was not within the guidelines that had been laid down for such advertising. In 2008 the Labor Government had promised that it would review the guidelines before July 2010. Instead, in early 2010 the Labor Government commissioned a review of the entire advertising framework. In response to this report not only were the guidelines changed but the Auditor-General was removed from the vetting process. Kevin Rudd had given a 100 per cent guarantee. Suddenly the Auditor-General was gone. Talk about a change of mind.

The Labor Government commissioned a review and, of course, the Auditor-General was replaced by the Independent Communications Committee. That sounds awfully like the old Ministerial Committee on Government Communications [MCGC], which was heavily criticised by Senator Faulkner for seven long years. I had to sit and listen to him in estimates hearings rabbit on about the evil Ministerial Committee on Government Communications, yet as soon as he is booted from the Special Minister of State portfolio the new Minister creates a new version of it. That is an absolute disgrace, Labor. The Independent Communications Committee is made up of three former public servants on short two-year contracts appointed by the Secretary of the Department of Finance and Administration. In contrast, the Auditor-General, who is answerable to Parliament, is on a 10-year fixed term. Even more demonstrative of the hypocrisy of Labor, were the changes to the guidelines. In March 2010 the Auditor-General noted in a letter to the Federal Special Minister of State:

Principle 1 [of the guidelines] appears to allow a broader scope in determining suitable uses of government advertising campaigns, Principal 3 … provides less guidance in interpreting whether campaign materials promote party political interests, and Principle 4 … no longer requires a cost-benefit analysis to support the proposed campaign … These changes represent a general softening in the application of the requirements upon agencies.

I could go on further, and I think I will. The March 2010 guidelines included a specific change with the addition of the phrase "inform consideration of issues". This opened up the floodgates to virtually anything being advertised, not merely legislated programs, as was promised by Labor before the Federal election. To inform the public about the consideration of issues meant anything could be advertised. That was Labor Party policy, Labor Party platform. The other significant change was in relation to running an urgent campaign. It always has been recognised that a major natural or man-made disaster requires the urgent dissemination of information. Previously the Labor rules stated that scrutiny by the Auditor-General could be bypassed where:

The Cabinet Secretary can exempt a campaign from compliance with these Guidelines on the basis of a national emergency, extreme urgency or other extraordinary reasons the Cabinet Secretary considers appropriate.

However, Labor replaced the phrase "extraordinary reasons" with the much weaker "compelling reasons" and the only person who determines whether those reasons are compelling is Labor's Cabinet Secretary. So much for Mr Rudd's promises. So much for the Labor Party platform. So much for hypocrisy on the other side of politics. Let us go through the promises again. Labor promised: "Labor will only advertise legislated programs"— broken; "Labor will have the Auditor-General scrutinise all advertising before it goes to air"—broken; "Labor will stick with the Auditor-General's rules"—broken; "Labor's ads will be objective, factual and free from partisan promotion of government policy"—broken; and Labor will only bypass independent scrutiny of advertising in times of urgent national emergency"—broken. Labor has absolutely zero credibility on this issue. 7 September 2011 LEGISLATIVE COUNCIL 5041

The best example of Labor's zero credibility is the mining tax advertising cover-up. According to Senator Faulkner there was going to be sunlight and openness. But Senator Faulkner got booted to defence and out came the backroom boys. On 2 May 2010 Labor announced its big new tax on mining. The mining industry responded later that week with a simple one-page advertisement in newspapers that put its side of the story. In response, and before there was any television or radio advertising by the miners, on 10 May 2010 Wayne Swan wrote to Joe Ludwig requesting exemption from the normal vetting procedures so that he could run an advertising campaign countering the campaign run by the mining industry. Why was there the need for such urgency? Why was there a need to avoid scrutiny?

Approval for the campaign was granted by Senator Ludwig on Monday 24 May 2010. However, the notification of this exemption to Parliament—another promise from Rudd before the election—was not tabled until the following Friday, 28 May, despite the fact that the House of Representatives had been sitting all week. The only reason it was tabled on the Friday was because Senate estimates hearings were being held that sitting week and officials with responsibility for advertising were not scheduled to appear until Thursday morning. If Senator Ludwig had tabled the document earlier than Friday the Minister and his officials would have been questioned over why this campaign was so "compelling" and "urgent" that it required special exemption from the normal vetting procedures. It is a clear example of the Labor Government being caught in a backflip and trying to cover it up by dropping the announcement on the Friday after Finance estimates—the same day that it also tried to kill the story by making an announcement on Japanese whaling. How is that Government action on Japanese whaling going, Labor Party members? I would suggest not very well.

All of these things happened under the Rudd-Gillard Labor Government. Yet what did we hear from Sally Young, Joo-Cheong Tham, Grahame Orr, Stephen Bartos or Harry Evans between the fall of the Howard Government in 2007 and the end of 2010? Absolutely nothing. Where were these censorious harpies of indignant leftism? They were not to be heard—because it was never a serious academic argument; it was all about "get Howard". I recognise that this bill was an election commitment, but I remain of the view that I expressed in my inaugural speech:

The ethical do not need a written code of conduct and the dishonest will ignore it anyway ... Laws can punish the wicked but they cannot in and of themselves make men good.

That is absolutely true with respect to the Labor Party at a Federal and a State level. I am sure this Government will be different.

The Hon. PAUL GREEN [12.13 p.m.]: The Christian Democratic Party supports the Government Advertising Bill 2011 and acknowledges that it manages the Government's responsibility to ensure that public money is used for a proper purpose. We welcome the role of the Auditor-General in scrutinising the Government's advertising campaign and ensuring that public moneys are spent correctly. We look forward to the amendments being discussed in the Committee stage.

The Hon. MICHAEL GALLACHER (Minister for Police and Emergency Services, Minister for the Hunter, and Vice-President of the Executive Council) [12.14 p.m.], in reply: I thank members for their contributions, particularly the last two speakers.

The Hon. Lynda Voltz: Which one did you like best?

The Hon. MICHAEL GALLACHER: It is touch and go between the two of them. I look forward to debating the amendments in the Committee stage.

Question—That this bill be now read a second time—put and resolved in the affirmative.

Motion agreed to.

Bill read a second time.

In Committee

Clauses 1 and 2 agreed to.

The Hon. LUKE FOLEY (Leader of the Opposition) [12.17 p.m.], by leave: I move Opposition amendments Nos 1 to 8 in globo on sheet C2011-058D:

No. 1 Page 2, clause 3 (1). Insert after line 19:

Government Advertising Committee—see section 15.

5042 LEGISLATIVE COUNCIL 7 September 2011

No. 2 Page 5, clause 7. Insert after line 10:

(3) The head of a Government agency must ensure that a review of a Government advertising campaign of the agency is carried out by the Government Advertising Committee before the campaign commences if the cost of that campaign is likely to exceed $200,000.

No. 3 Page 5, clause 7, line 12. Omit "peer".

No. 4 Page 5, clause 7, line 13. Omit "peer".

No. 5 Page 5, clause 7. Insert after line 17:

(5) Every peer review that is carried out for the purposes of this section is to include a reviewer who is independent of the public sector.

No. 6 Page 7, clause 11. Insert after line 18:

(4) The Government Advertising Committee may make the following recommendations if the Committee is of the opinion that the content or other circumstances of a Government advertising campaign constitute a breach of the requirements of section 6 or regulations made under that section:

(a) that the head of the Government agency concerned immediately stop the campaign,

(b) that the head of the Government agency concerned ensure that the campaign is modified, or expenditure is limited, so that the campaign complies with section 6 and regulations made under that section,

(c) that a governing party pay the costs of the campaign in accordance with this section.

(5) The Government Advertising Committee may make a recommendation following a review under section 7 or following a determination by the Auditor-General on a performance audit.

(6) A recommendation is to be notified in writing to the Minister and the head of the Government agency concerned.

(7) The head of a Government agency must comply with a recommendation of the Government Advertising Committee under this section.

(8) A recommendation to stop or modify a Government advertising campaign does not:

(a) require a Government agency to stop payment to any person or body for work already done or services already provided for the purposes of the campaign, or

(b) affect any liability incurred by the Government agency under a contract for future work or services related to the campaign unless the contract for that work or services includes a termination provision.

(9) If any such contract is terminated in accordance with a termination provision:

(a) the termination does not affect a right acquired, or a liability incurred, before that termination by a person who was a party to the contract, as a result of the performance before that termination of any obligation imposed by the contract, and

(b) no liability for breach of contract is incurred by a person who was a party to the contract by reason only of that termination, and

(c) neither the Crown nor any member of the Government Advertising Committee incurs any liability by reason of that termination.

No. 7 Page 9. Insert after line 28:

15 Government Advertising Committee

(1) The Minister is to appoint a Government Advertising Committee.

(2) The Committee is to consist of the following members:

(a) the Information Commissioner,

(b) 2 persons who have knowledge or experience relevant to advertising.

(3) The Information Commissioner is to be the Chairperson of the Committee.

(4) Schedule 2 has effect with respect to the constitution and procedure of the Committee.

7 September 2011 LEGISLATIVE COUNCIL 5043

No. 8 Page 11. Insert after line 23:

Schedule 2 Constitution and procedure of Government Advertising Committee

(Section 15)

Part 1 General

1 Definitions

In this schedule:

appointed member means a person who is appointed by the Minister as a member of the Committee.

Chairperson means the Chairperson of the Committee.

Committee means the Government Advertising Committee.

member means any member of the Committee.

Part 2 Constitution

2 Terms of office of appointed members

Subject to this schedule and the regulations, an appointed member holds office for such period (not exceeding 3 years) as is specified in the member's instrument of appointment, but is eligible (if otherwise qualified) for re-appointment.

3 Part-time appointments

Members hold office as part-time members.

4 Remuneration

An appointed member is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the member.

5 Deputies

(1) A member may, from time to time, appoint a person to be the deputy of the member, and may revoke any such appointment.

(2) In the absence of a member, the member's deputy may, if available, act in the place of the member.

(3) While acting in the place of a member, a person has all the functions of the member and is taken to be a member.

6 Vacancy in office of member

(1) The office of an appointed member becomes vacant if the member:

(a) dies, or

(b) completes a term of office and is not re-appointed, or

(c) resigns the office by instrument in writing addressed to the Minister, or

(d) is removed from office by the Minister under this clause, or

(e) is absent from 3 consecutive meetings of the Committee of which reasonable notice has been given to the member personally or by post, except on leave granted by the Minister or unless the member is excused by the Minister for having been absent from those meetings, or

(f) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or

(g) becomes a mentally incapacitated person, or

(h) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable.

(2) The Minister may remove an appointed member from office at any time.

5044 LEGISLATIVE COUNCIL 7 September 2011

7 Filling of vacancy in office of appointed member

If the office of any appointed member becomes vacant, a person is, subject to this Act and the regulations, to be appointed to fill the vacancy.

8 Disclosure of pecuniary interests

(1) If:

(a) a member has a direct or indirect pecuniary interest in a matter being considered or about to be considered at a meeting of the Committee, and

(b) the interest appears to raise a conflict with the proper performance of the member's duties in relation to the consideration of the matter,

the member must, as soon as possible after the relevant facts have come to the member's knowledge, disclose the nature of the interest at a meeting of the Committee.

(2) A disclosure by a member at a meeting of the Committee that the member:

(a) is a member, or is in the employment, of a specified company or other body, or

(b) is a partner, or is in the employment, of a specified person, or

(c) has some other specified interest relating to a specified company or other body or to a specified person,

is a sufficient disclosure of the nature of the interest in any matter relating to that company or other body or to that person which may arise after the date of the disclosure and which is required to be disclosed under subclause (1).

(3) Particulars of any disclosure made under this clause must be recorded by the Committee in a book kept for the purpose and that book must be open at all reasonable hours to inspection by any person on payment of the fee determined by the Committee.

(4) After a member has disclosed the nature of an interest in any matter, the member must not, unless the Minister or the Committee otherwise determines:

(a) be present during any deliberation of the Committee with respect to the matter, or

(b) take part in any decision of the Committee with respect to the matter.

(5) For the purposes of the making of a determination by the Committee under subclause (4), a member who has a direct or indirect pecuniary interest in a matter to which the disclosure relates must not:

(a) be present during any deliberation of the Committee for the purpose of making the determination, or

(b) take part in the making by the Committee of the determination.

(6) A contravention of this clause does not invalidate any decision of the Committee.

(7) This clause applies to a member of a committee of the Committee and the committee in the same way as it applies to a member of the Committee and the Committee.

9 Effect of certain other Acts

(1) Chapter 2 of the Public Sector Employment and Management Act 2002 does not apply to or in respect of the appointment of an appointed member.

(2) If by or under any Act provision is made:

(a) requiring a person who is the holder of a specified office to devote the whole of his or her time to the duties of that office, or

(b) prohibiting the person from engaging in employment outside the duties of that office,

the provision does not operate to disqualify the person from holding that office and also the office of a member or from accepting and retaining any remuneration payable to the person under this Act as a member.

10 Personal liability

A matter or thing done or omitted to be done by the Committee, a member of the Committee or a person acting under the direction of the Committee does not, if the matter or thing was done or omitted to be done in good faith for the purpose of executing this or any other Act, subject a member or a person so acting personally to any action, liability, claim or demand.

7 September 2011 LEGISLATIVE COUNCIL 5045

Part 3 Procedure

11 General procedure

The procedure for the calling of meetings of the Committee and for the conduct of business at those meetings is, subject to this Act and the regulations, to be as determined by the Committee.

12 Quorum

The quorum for a meeting of the Committee is a majority of its members for the time being.

13 Presiding member

(1) The Chairperson (or, in the absence of the Chairperson, a person elected by the members of the Committee who are present at a meeting of the Committee) is to preside at a meeting of the Committee.

(2) The presiding member has a deliberative vote and, in the event of an equality of votes, has a second or casting vote.

14 Voting

A decision supported by a majority of the votes cast at a meeting of the Committee at which a quorum is present is the decision of the Committee.

15 Transaction of business outside meetings or by telephone

(1) The Committee may, if it thinks fit, transact any of its business by the circulation of papers among all the members of the Committee for the time being, and a resolution in writing approved in writing by a majority of those members is taken to be a decision of the Committee.

(2) The Committee may, if it thinks fit, transact any of its business at a meeting at which members (or some members) participate by telephone, closed-circuit television or other means, but only if any member who speaks on a matter before the meeting can be heard by the other members.

(3) For the purposes of:

(a) the approval of a resolution under subclause (1), or

(b) a meeting held in accordance with subclause (2),

the Chairperson and each member have the same voting rights as they have at an ordinary meeting of the Committee.

(4) A resolution approved under subclause (1) is, subject to the regulations, to be recorded in the minutes of the meetings of the Committee.

(5) Papers may be circulated among the members for the purposes of subclause (1) by facsimile or other transmission of the information in the papers concerned.

16 First meeting

The Minister may call the first meeting of the Committee in such manner as the Minister thinks fit.

The amendments deal with the creation and operation of a government advertising committee. As I said in the second reading debate, the Opposition notes that the bill introduced by the Government falls a fair way short of the private member's bill introduced by the member for Ku-ring-gai in 2007. The Opposition's amendments seek to strengthen the bill and give it some teeth so that it matches the private member's bill sponsored by Mr O'Farrell in 2007. We seek to give this bill teeth through the introduction of a government advertising committee.

Amendment No. 1 creates a government advertising committee. Amendment No. 2 requires the government advertising committee to review a government advertising campaign before it commences if the cost of that campaign exceeds $200,000. Amendments Nos 3 and 4 omit the word "peer" in two places. These are consequential amendments as a result of amendment No. 2. Omitting the word "peer" means that the words "reviews" or "review" catch both peer reviews and the review conducted by the new government advertising committee.

Amendment No. 5 requires that every peer review that is carried out includes a reviewer who is independent of the public sector. That is consistent with the current guidelines. Amendment No. 6 requires that 5046 LEGISLATIVE COUNCIL 7 September 2011

the legislation must provide that the head of an agency must comply with a recommendation of the government advertising committee. The government advertising committee can make the following recommendations: that the head of the agency immediately stop the campaign, modify the campaign, limit expenditure or ask that the governing party pay the costs of the campaign.

Amendment No. 7 deals with the appointment of members of the government advertising committee. The committee would consist of the information commissioner and two persons who have knowledge or experience relevant to advertising. The information commissioner would be the chair of the committee. The two other members would be appointed by the Minister. Amendment No. 8 outlines the constitution and procedure of the government advertising committee, which is consistent with other boards and committees within the New South Wales public sector. I commend the amendments to the Committee.

The Hon. MICHAEL GALLACHER (Minister for Police and Emergency Services, Minister for the Hunter, and Vice-President of the Executive Council) [12.21 p.m.]: On this occasion the Government opposes the Opposition amendments. The amendment that seeks to establish a government advertising committee does not improve the scheme proposed under this bill. A government advertising committee is not necessary—it would add an additional layer of process in the commissioning and review of government advertising, it would slow down the timely implementation of important government advertising and it would be costly to the State. Strong provisions already govern the integrity of government advertising. The provisions in the bill for peer review of campaign, cost-benefit analysis, certification of heads of agencies and reviews of campaigns by the Auditor-General provide robust safeguards for the government's advertising scheme. I remind honourable members that the Auditor-General was extensively consulted during the drafting of this bill. It is an important part of this process.

I reiterate my earlier comments. I note that the effect of amendment No. 6, in particular, but also amendments Nos 7 and 8, would be to impose a second tier of bureaucracy to vet advertising campaigns. The implicit message in this amendment is that heads of agencies cannot make clear and independent decisions concerning the requirements of the bill; that they are somehow being dictated to by their Ministers. The Premier has addressed this issue in the other place. He said that this Government respects the independence and the ethical standards of the public service. He further said that the Government expects the highest standards of integrity from the Executive and government agencies regarding advertising. The provisions of the bill are robust and achieve the required integrity for government advertising.

Dr JOHN KAYE [12.23 p.m.]: The Greens support the Opposition's amendments because they improve the bill. While I accept the argument of the Leader of the Opposition, I take issue with one thing he said. He said that his amendments would restore the legislation to that introduced into the lower House by Barry O'Farrell in 2007. That is not correct. The 2007 legislation introduced into the lower House by the now Premier, the then Leader of the Opposition, said that the Auditor-General would look at all campaigns over $200,000. Therefore, every campaign worth more than $200,000 would go off to the Auditor-General. In effect, the Opposition's amendments say that all campaigns over $200,000 go off to the government advertising committee, whose decision is then binding on the department head in the issuance of a compliance certificate. Opposition amendments Nos 1 to 8 establish an advertising committee that then plays the role that the Auditor-General played in the O'Farrell legislation. The question is: Is the Auditor-General or the government advertising committee in a better place to assess these matters?

Our view is that the Auditor-General is a superior choice because the Auditor-General is genuinely independent. The Auditor-General is an instrument of our society who genuinely stands apart from the government, who has demonstrated independence and capacity to criticise government, and who makes government sit up and take notice. A government advertising committee—a separate layer of bureaucracy, as the Leader of the Government says—would comprise the information commissioner and two persons with knowledge or experience. Those two persons would be appointed by the Minister, presumably the Premier in this case. We would have two Premier's appointees whose background is purely in the advertising industry. That does not make them independent. There is nothing in this legislation to stop the Premier from appointing two people with close ties to the party of government. However, The Greens believe that this is better than the current legislation. Therefore, we support the amendments.

I note that the Leader of the Government quoted his Premier. He said that this Government respects the independence of the bureaucracy—and good for it; that is what it ought to do. However, one should not write legislation that has a problem in it just because that problem will not come about because of good behaviour by the Government. This legislation will specifically regulate the behaviour of Government. It will specifically put 7 September 2011 LEGISLATIVE COUNCIL 5047

constraints around Government. One does not want to necessarily rely on morality. I refer to the contribution of the Government Whip during the second reading debate. He said that one cannot just rely on the morality of government to do the right thing. This legislation needs to be bulletproof.

The Hon. Dr Peter Phelps: You have to rely on the morality of public servants to administer it.

Dr JOHN KAYE: I acknowledge the interjection. Without these amendments and/or The Greens amendments, public servants are put in an appalling situation. Public servants are put in a situation where they are in huge conflict not just with their Minister but with their Minister's political party. They are creating that potential conflict which Labor's amendments will remove or at least ameliorate. That conflict is undeserved. There is no reason why that conflict should be put on them.

The Hon. Dr Peter Phelps: If you are going to make that allegation you should make that allegation.

Dr JOHN KAYE: I did not make that allegation.

The Hon. Dr Peter Phelps: It is implicit in what you said.

Dr JOHN KAYE: For those reasons The Greens support these amendments.

Question—That Opposition amendments Nos 1 to 8 [C2011-058D] be agreed to—put.

The Committee divided.

Ayes, 16

Ms Barham Mr Moselmane Mr Veitch Mr Buckingham Mr Primrose Mr Whan Ms Cotsis Mr Searle Ms Faehrmann Mr Secord Tellers, Mr Foley Ms Sharpe Ms Fazio Dr Kaye Mr Shoebridge Ms Voltz

Noes, 18

Mr Blair Mr Gay Mrs Mitchell Mr Borsak Mr Green Mr Pearce Mr Brown Mr Harwin Mr Clarke Mr Khan Ms Cusack Mr MacDonald Tellers, Ms Ficarra Mrs Maclaren-Jones Mr Colless Mr Gallacher Mr Mason-Cox Dr Phelps

Pairs

Mr Donnelly Mr Ajaka Mr Roozendaal Mr Lynn Ms Westwood Mrs Pavey

Question resolved in the negative.

Opposition amendments Nos 1 to 8 [C2011-058D] negatived.

Part 1 agreed to.

Clauses 5 to 7 agreed to.

Dr JOHN KAYE [12.36 p.m.], by leave: I move Greens amendments Nos 1 to 5 on sheet C2011-060B in globo.

No. 1 Page 5, clause 8, line 19. Insert ", the cost of which is in the opinion of the head of the agency not likely to exceed $200,000," after "Government agency".

5048 LEGISLATIVE COUNCIL 7 September 2011

No. 2 Page 5, clause 8. Insert after line 21:

(2) If the cost of a Government advertising campaign of a Government agency is in the opinion of the head of the agency or the Auditor-General likely to exceed $200,000, the campaign must not be commenced unless the Auditor-General has given an advertising compliance certificate for the campaign.

No. 3 Page 5, clause 8, line 23. Insert "or the Auditor-General" after "Government agency".

No. 4 Page 5, clause 8, line 34. Insert "or the Auditor-General" after "concerned".

No. 5 Page 8. Insert after line 6:

14 Auditor-General may determine complaints and take costs recovery action

(1) Any person may apply to the Auditor-General for a determination as to whether or not a proposed, current or past Government advertising campaign constitutes a breach of the requirements of section 6 or regulations made under that section or breaches the Government advertising guidelines.

(2) The Auditor-General may determine whether or not there is any such breach and must give notice in writing of the determination to the applicant and the head of the Government agency concerned.

(3) The Auditor-General may take action under section 11 to recover the costs of a Government advertising campaign if the Auditor-General determines (whether after a request under this section or otherwise) that the campaign constitutes a breach of the requirements of section 6 or regulations made under that section.

(4) This section is subject to section 13.

(5) This section does not apply to a Government advertising campaign that commenced before the commencement of this section.

These amendments fulfil a promise made by the O'Farrell Government and a promise in Mr O'Farrell's own legislation in 2007. In effect the amendments say that every government advertising campaign costing over $200,000 requires the concurrence of the Auditor-General before an advertising compliance certificate can be issued. I notice that the Hon. Paul Green said in his speech that he supported the legislation in its existing form because—I am paraphrasing him and he will no doubt correct me if I am wrong—all government advertising is being scrutinised by the Auditor-General. That is not correct. Under the bill the Auditor-General can scrutinise some government advertising campaigns as indeed he or she could do without the passage of this legislation and as he or she has done in the past. That scrutiny has occurred. I quoted from the 2009 performance report on four government advertising programs that occurred in the previous year.

The Greens amendments require the Auditor-General to look at every campaign over $200,000. That has the advantage of the Opposition's amendment in taking the burden off the head of the agency and making sure the head of the agency is not in unnecessary conflict with their Minister and the political party from which the Minister comes. Also, it goes beyond what Labor's amendment did and gets an independent set of eyes that are truly from outside government to look at government advertising programs costing over $200,000.

The Greens amendment No. 5 creates the power for any person to apply to the Auditor-General for a determination whether an existing, proposed or past government advertising campaign breaches the requirements of the legislation, the regulations or guidelines. It makes absolutely clear that an individual or an interest group can say: We think this particular piece of advertising breached either the legislation, by promoting a political party, or breached the guidelines, by not fulfilling one of the objectives. That individual can go to the Auditor-General and seek a determination. That is a section 13 determination, which is already within the bill itself. These two sets of amendments will strengthen the legislation. They will take the pressure off the government agency heads. They will create an independent overview of every piece of major government advertising, that is, over $200,000, and will fulfil the promises made by the O'Farrell Coalition when in opposition, both in their 2007 legislation and in their promises made in the lead-up to the 2011 election. I commend the amendments.

The Hon. MICHAEL GALLACHER (Minister for Police and Emergency Services, Minister for the Hunter, and Vice-President of the Executive Council) [12.41 p.m.]: The Greens amendments Nos 1, 2, 3 and 4 are opposed by the Government. There is no need to amend the bill to involve the Auditor-General in the issuing of compliance certificates for government advertising campaigns. The head of a government agency is the appropriate officer to sign-off on the compliance of any advertising campaign, as currently provided for in 7 September 2011 LEGISLATIVE COUNCIL 5049

the bill. Any proposed role of the Auditor-General at the front end of an advertising campaign would conflict with his powers and responsibilities, under clause 14 of the bill, to audit the performance of agencies in regard to advertising campaigns once those campaigns are underway or complete.

The Government is opposed to The Greens amendment No. 5. It is not the role of the Auditor-General to make legal determinations concerning any purported breach of the provisions of the proposed Act. Nor is it his role to take action to recover costs if there is a breach of the prohibitions under the proposed Act. The Auditor-General is not a debt collection agency. Under the bill as drafted, the Auditor-General undertakes the appropriate roles of auditing the performance of government agencies and holding the Government accountable. His office will carry out an annual performance audit of at least one government agency to determine whether it complies with the proposed Act. I remind honourable members that the Auditor-General was extensively consulted during the drafting of the bill.

Where there is a breach of the prohibitions in the proposed Act, the provisions for debt recovery from a political party are flexible, but robust. The question of who in government is responsible to recover the debt will depend on the particular circumstances of the alleged breach. Proceedings for recovery of a debt can be initiated by a representative of the Crown. This may include a Minister, the head of a department or a government officer with a finance or debt recovery function.

The Hon. LUKE FOLEY (Leader of the Opposition) [12.43 p.m.]: The Opposition will support these Greens amendments. We prefer that a government advertising committee be established; those amendments have been defeated. We believe an enhanced role for the Auditor-General will strengthen the bill that is before us. Therefore we will support these amendments.

Dr JOHN KAYE [12.43 p.m.]: The Leader of the Government says that the Auditor-General should not be a debt collection agency. Then he went on to say that it should be a Minister of the Crown, or an officer of the Crown or the agency head. That gets to the heart of what we are talking about here. The words of the Leader of the Government make it very clear: the inherent contradiction within the legislation, without The Greens amendments, is that—in the case of his Government—it would have to be a member of the Liberal Party or The Nationals who would have to proceed against their own political party in order to recover funding. I cannot see that being a good career move, for example, for the Leader of the House to proceed against The Nationals. Maybe he would like to proceed against certain elements within the Liberal Party, that is his call, but I cannot see that as something that would actually happen.

The Hon. Duncan Gay: I love the Liberal Party.

Dr JOHN KAYE: I acknowledge that interjection.

The Hon. Duncan Gay: I was a Young Liberal.

The Hon. Michael Gallacher: You were the only one of your kind!

Dr JOHN KAYE: The Ministers can have their conversation. The real issue here is that the Minister's remarks demonstrate that this legislation has a contradiction built into it, and The Greens amendment addresses that contradiction. The Minister said there is a conflict in the role of the Auditor-General in that he is the person who looks at the matter beforehand and the person who looks at it after. I accept that is an issue—except that that has been well and truly traversed by both the Coalition Government that was in office previously and the Labor Party when it was in office. I remind the Leader of the Government that his predecessors in the Greiner Government used the Auditor-General to audit a transaction that had not occurred—the sale of the State Bank, before that occurred. So that Government had the Auditor-General signing off on that proposal before it had occurred. In fact, from my recollection, the legislation to privatise the State Bank had the Auditor-General's involvement built into it.

Likewise, the previous Government, in its first electricity privatisation debacle, used the Auditor-General—in fact, used a report of the Auditor-General—before that happened. So, unfortunately, we have crossed that bridge; we now do use the Auditor-General beforehand. There is no question, from the Leader of the Government's own remarks, that there is need for an independent oversight body that is thoroughly independent of government. The Auditor-General is the best one available. I commend the amendments.

The Hon. Dr PETER PHELPS [12.46 p.m.]: I can understand The Greens wanting to move these amendments. What I cannot understand is the Labor Party supporting the amendments. In early 2010, Allan 5050 LEGISLATIVE COUNCIL 7 September 2011

Hawke, a respected senior bureaucrat, conducted a review of the appropriateness of having the Federal Auditor-General vetting government advertising campaigns. Allan Hawke came out unreservedly against that as an improper and illogical use of the Auditor-General when the Auditor-General subsequently had to conduct performance reviews.

Dr John Kaye: What year was that?

The Hon. Dr PETER PHELPS: Last year. The Federal Special Minister of State agreed with those recommendations and dissociated the Auditor-General from the pre-vetting of government advertising. That was a policy of the Labor Government after an official review, which was welcomed by the Government. It had had experience with the Auditor-General from 2007 to 2010 vetting government advertising. The Hawke review came in; the Government looked at it. The Hawke recommendations were unequivocal: that it should not be done by the Auditor-General. I could understand The Greens coming in here with these silly proposals. What I cannot understand is that the Labor Party could tell this Chamber that it will be supporting proposals that its Federal colleagues rejected overwhelming one year ago.

Dr JOHN KAYE [12.48 p.m.]: I thank the previous speaker for his erudite contribution. It is interesting that he quotes Allan Hawke's 2010 review to say why the Auditor-General should not be the person doing the audit of government advertising. It is an interesting question as to why, when he, the Government Whip, was standing as a candidate for this Chamber, stood on a platform that unequivocally said that the Auditor-General should be the final arbiter. That is what the current Government's platform leading to the election said. Now that he gets into government, he suddenly discovers that in 2010—prior to standing for the election, prior to putting up this policy for the people of New South Wales—there is evidence that the Government should not use the Auditor-General. That is a complete and utter reversal of positions. The Coalition went to the people and promised them that the Auditor-General would audit government advertising. Yet one of its senior candidates was in possession of information that that was the wrong thing to do.

The Hon. Dr Peter Phelps: Who?

Dr JOHN KAYE: You. The Hon. Dr Peter Phelps said to Allan Hawke in 2010 that it is completely inappropriate, yet he went to the polls presenting as a candidate for election on a policy he knew was wrong. There is something deeply and profoundly crazy about this. The Coalition has one policy in opposition and another one when it is in government. The Coalition supports the Auditor-General when it suits its cause, but the minute it realised its advertising campaign—not Labor's—would be subjected to genuine oversight it said, "Oh, no, we couldn't do that. In fact, we had a 2010 report that said we shouldn't do it." This is hypocrisy on a grand scale. If the Coalition thought it was wrong, it should not have introduced the 2007 legislation and particularly should not have gone to the 2011 election—all the way up to 25 March 2011, and possibly beyond—stating on its website that it would do this. Coalition members have one of two choices in voting on these amendments: either stand accused of being complete hypocrites or vote with us. There is no middle ground. This is their election promise; this is what they said they would do. The Coalition either votes for the amendments or breaks an election promise.

The Hon. Dr PETER PHELPS [12.51 p.m.]: While we are on the subject of hypocrisy, let us go to the subject of misleading the Chamber. Earlier Dr John Kaye asserted in this place that the boycott, divestment and sanctions policy was on The Greens website. I have just gone to The Greens website and I am happy to read out every last one of them.

Dr John Kaye: Point of order: I am totally happy to debate Mr Phelps' capacity to read a website.

The Hon. Dr PETER PHELPS: You asserted it.

Dr John Kaye: I am totally happy to have that debate. If he wants to say I have misled members, he should do so by way of substantive motion. I would welcome that.

The Hon. Duncan Gay: I think you say that.

Dr John Kaye: He should move a substantive motion on that matter. I understood that we were debating The Greens amendments Nos 1 to 5, which do not relate to what is or is not on The Greens website. For the member's edification: the boycott, divestment and sanctions campaign is not a policy and never was a policy. It is a resolution and I can show him where it is. 7 September 2011 LEGISLATIVE COUNCIL 5051

The CHAIR (The Hon. Jennifer Gardiner): Order! I ask members to address the amendments before the Chair.

The Hon. ROBERT BROWN [12.52 p.m.]: The Shooters and Fishers Party will not support Dr John Kaye's amendments. Apart from the Government's reasonable arguments, The Greens have a practice of trying to sneak backdoor clauses into legislation at every chance they get. The Greens amendment No. 5 states in part:

Page 8. Insert after line 6:

14 Auditor-General may determine complaints and take costs recovery action

(1) Any person may apply to the Auditor-General ...

That would open a can of worms. No thank you.

Dr JOHN KAYE [12.53 p.m.]: I thank the Hon. Robert Brown for his comments. If he had paid me the honour of being present when I moved the amendments, he would know exactly what I said. The Greens want to open up the process to any person or any agency. In fact, in New South Wales "person" also means a corporation. The amendment was to enable anyone to apply for a determination. There is nothing backdoor about The Greens amendments. We said very clearly that the intention of amendment No. 5 was to democratise the process of lodging a complaint. The Hon. Robert Brown might not like that, but to call it a backdoor amendment is a rather strange use of the English language.

The Hon. Dr PETER PHELPS [12.54 p.m.]: Let members remember this vote. If the Labor Party votes to support these amendments, it is a vote of no confidence in the Federal Labor Government's advertising policy. If Labor members vote to support The Greens amendments, they are voting no confidence in the Gillard Labor Government.

Question—That The Greens amendments Nos 1 to 5 [C2011-060B] be agreed to—put.

The Committee divided.

Ayes, 16

Ms Barham Mr Primrose Mr Veitch Mr Buckingham Mr Roozendaal Mr Whan Ms Cotsis Mr Searle Ms Faehrmann Mr Secord Tellers, Dr Kaye Ms Sharpe Ms Fazio Mr Moselmane Mr Shoebridge Ms Voltz

Noes, 18

Mr Blair Mr Gay Mrs Mitchell Mr Borsak Mr Green Mr Pearce Mr Brown Mr Harwin Mr Clarke Mr Khan Ms Cusack Mr MacDonald Tellers, Ms Ficarra Mrs Maclaren-Jones Mr Colless Mr Gallacher Mr Mason-Cox Dr Phelps

Pairs

Mr Donnelly Mr Ajaka Mr Foley Mr Lynn Ms Westwood Mrs Pavey

Question resolved in the negative.

The Greens amendments Nos 1 to 5 [C2011-060B] negatived.

Clause 8 agreed to. 5052 LEGISLATIVE COUNCIL 7 September 2011

Clauses 9 and 10 agreed to.

Part 2 agreed to.

Parts 3 and 4 agreed to.

Schedules 1 and 2 agreed to.

Title agreed to.

Bill reported from Committee without amendment.

Adoption of Report

Motion by the Hon. Michael Gallacher agreed to:

That the report be adopted.

Report adopted.

Third Reading

Motion by the Hon. Michael Gallacher agreed to:

That this bill be now read a third time.

Bill read a third time and returned to the Legislative Assembly without amendment.

[The President left the Chair at 1.04 p.m. The House resumed at 2.30 p.m.]

Pursuant to sessional orders business interrupted at 2.30 p.m. for questions.

QUESTIONS WITHOUT NOTICE ______

HUNTER WATER DIVIDENDS

The Hon. LUKE FOLEY: My question without notice is directed to the Minister for Finance and Services. How does the Minister justify the 50 per cent increase over the next two years in the dividend that Hunter Water will pay the Government in light of the commitment made by the Premier and Treasurer on 19 April 2011 to freeze dividends paid by water and energy utilities?

The Hon. GREG PEARCE: I thank the Leader of the Opposition for his question. I am pleased to see him in Parliament House instead of wandering around the Hunter scaring residents. He has been running a scare campaign in the Hunter. He is stuck in the past. Labor got its votes in the Hunter through fear and loathing. The Pol Pot of the Labor Party has been up in the Hunter running scare campaigns. If the member wants to ask these questions he should do some research first. Where is Eric today? Eric could have told him about the Hunter Water Plan and the capital program, which included $470 million for the Tillegra Dam. One of Labor's very few good decisions was to can the Tillegra Dam, to turn off the tap. Hunter Water is in the middle of its $700 million four-year infrastructure program. This year it is spending $133 million, which is exactly the amount it was on track to spend after taking out the Tillegra Dam funding. Surprise, surprise!

The Hon. Luke Foley: My question was about dividends.

The Hon. GREG PEARCE: I am getting to the dividends. The projected dividends under the New South Wales Liberal-Nationals Government are almost $9 million less than was projected under this mob when they were in government. The amount is $9 million lower than they expected to receive from Hunter Water. The Pol Pot of the Labor Party has been up in the Hunter running his scare campaign, counting the cards, telling lies and making up stories. He messed up not only on the infrastructure spend and the Tillegra Dam decision but also on the dividends. 7 September 2011 LEGISLATIVE COUNCIL 5053

STATE BUDGET AND PACIFIC HIGHWAY

The Hon. MELINDA PAVEY: My question without notice is addressed to the Minister for Roads and Ports. Will the Minister update the House on funding for the Pacific Highway in the 2011-12 State budget?

The Hon. DUNCAN GAY: I thank the Hon. Melinda Pavey for her question, which is important to those who travel the Pacific Highway, including people in the public gallery today. As part of the 2011-12 State budget the New South Wales Government is pleased to announce a $1 billion investment this year towards the upgrade of the Pacific Highway, arguably Australia's most important road link for transport and freight. Even in the face of a $5.2 billion budget black hole left by the former Labor Government, the New South Wales Liberals and Nationals are committed to working with the Australian Government to complete the Pacific Highway upgrade to dual carriageway. The Federal Minister for Infrastructure and Transport, Albo the Good—whom we like working with—will be delighted with the New South Wales Government's commitment to match the overall Australian Government funding for the highway of $468 million to 2013-14. Our commitment is consistent with the term of the current National Partnership Agreement for the Nation Building Program.

The additional $468 million increases the New South Wales Government's commitment to the Pacific Highway upgrade by 94 per cent from 2009 to 2014. This increase more than meets the $450 million contribution the Federal Government requested from New South Wales during the same period. Our funding commitment increases the jointly funded upgrade program to $4.84 billion, bringing the program to a clear 80 per cent Federal and 20 per cent State funding contribution. The Federal Government must have breathed a sigh of relief now that it is working with a good New South Wales Government that is true to its word, a grown-up Government that delivers results rather than countless spin and broken promises.

The Hon. Steve Whan: Grown up but not growing old.

The Hon. DUNCAN GAY: It is probably true what people say—that Mike Kelly does not like Steve Whan. We can understand why since our initial meeting with him. In 1996 the former State Labor Government promised to upgrade the entire length of the Pacific Highway to dual carriageway by 2006. State Labor then pushed the completion date of the Pacific Highway upgrade back to 2016. Those broken promises have extended the completion date of the Pacific Highway upgrade by a decade.

[Interruption]

It was your side that did this, mate. The Hon. Greg Donnelly has a problem with hearing and understanding. Labor has a problem with commitment. It cannot commit or keep its word. It makes a promise but does not stick to it. That is why Labor members are noisy. They do not like what I am saying. The Government makes a commitment, we stick to it and we honour our word. Labor's broken promises have extended the completion date of the Pacific Highway upgrade by a decade from the original promise of 2006 to the new completion date of 2016. To date only 51 per cent, or about 340 kilometres, of the highway has been upgraded to dual carriageway. The former Labor Government became experts at backflipping on funding promises to upgrade the Pacific Highway. In Eric Roozendaal's now infamous November 2008 mini-budget, State funding over the five years to 2013-14 for the Pacific Highway upgrade was reduced from $800 million to $500 million. [Time expired.]

POLICE RESOURCES

The Hon. PAUL GREEN: My question without notice is addressed to the Minister for Police and Emergency Services. On a recent visit to a police station I noted that police officers often were taken out of front-line duties to escort persons who had perhaps fallen short of the law from the police station to various facilities, such as hospitals, court and jail. Given these findings, will the Minister inform the House how he will seek to relieve this burden on front-line police and their limited resources? Will the Minister seek initiatives such as outsourcing this service to keep police officers on the front line?

The Hon. MICHAEL GALLACHER: The Hon. Paul Green has asked a very good question. For 16 years this issue went unchecked by a disinterested Labor Government. In country areas, particularly those further away from the metropolitan area, this mob opposite when in government showed no interest in policing and its impact on country towns. Shoalhaven is no different to other areas of country New South Wales. The Shoalhaven has larger numbers of police in its police stations, particularly in Nowra. But out in the bay and 5054 LEGISLATIVE COUNCIL 7 September 2011

basin areas—Huskisson, Sanctuary Point and those areas—the problems that the police are experiencing in those communities are no different from those in Walgett, Hay Plains and other areas in country New South Wales.

The Hon. Luke Foley: Are you going to give them a police station in the bay and basin?

The Hon. MICHAEL GALLACHER: Now we hear the little chirping voice opposite asking if we are going to give them a police station. When are you guys going to apologise for your mismanagement of the New South Wales Police Force? They just want to forget the 16 years—

The Hon. Luke Foley: Record police numbers.

The Hon. MICHAEL GALLACHER: Now he is saying "record police numbers". While the Opposition continues to chime on about record police numbers, people in the bay and basin, in Hay, in Dubbo and right around this State in country and regional areas have said for so long—

The Hon. Walt Secord: There are fewer police there.

The Hon. MICHAEL GALLACHER: We do not want to hear from the Hon. Walt Secord; he was the spin master responsible for this mess. When it comes to credibility in crisis look no further than the Hon. Walt Secord. The Government realises that we need to engage with front-line police and recognises that there is a problem. The Opposition does not want to hear this.

The Hon. Duncan Gay: Point of order: I am having trouble hearing the Minister's excellent answer because of the noise from Opposition members.

The PRESIDENT: Order! Opposition members will cease interjecting.

The Hon. MICHAEL GALLACHER: I return to the excellent question from the Hon. Paul Green. In his question he identified a significant problem with country police. It is not necessarily a problem with moving prisoners from point A to point B or with police being taken off front-line duties. Those guys opposite said it was not happening in New South Wales—we know that they just ignored it. The Hon. Paul Green and police have identified to me a problem with the structure of the New South Wales Police Force, where community-based policing is dead and where the value of policing a community under the previous Labor Government meant nothing; it was simply a case of moving police around.

There was no local knowledge and there was no relationship with the community. That is exactly why we have commenced dialogue with front-line police around New South Wales. We want to ensure that we can put forward a model for policing where not the Government but the community is the big winner. The first thing we have to do is admit that there is a problem. The former Labor Government was not prepared to admit it and members opposite are still not prepared to admit it. That is the problem—they do not know where they went wrong. [Time expired.]

FIRST HOME BUYERS

The Hon. ADAM SEARLE: My question is directed to the Minister for Finance and Services, representing the Treasurer. What does the Treasurer say to the 95,000 young families that will pay up to $20,000 more to buy their first home to fund the Government's big business subsidies and cash payments to move people across the street?

The Hon. GREG PEARCE: I thank the Deputy Leader of the Opposition for his question. Usually his questions have some thought behind them.

The Hon. Duncan Gay: I think finally they have a question time committee and someone else wrote the question.

The Hon. GREG PEARCE: Do you think they have a question time committee and someone else wrote that question? The Deputy Leader of the Opposition will have to learn not to take questions that are fed to him by someone else. He is a good barrister; he should know that. 7 September 2011 LEGISLATIVE COUNCIL 5055

The PRESIDENT: Order! The Deputy Leader of the Government will come to order.

The Hon. GREG PEARCE: Members opposite might not have noticed that we were elected with a thumping majority to go about fixing the problems that they created over 16 years in government. Those problems are so diverse that to fix them it is taking a team of incredibly hardworking Ministers, backbenchers, parliamentary secretaries, staff and public servants, who have been freed from the intimidation of Labor. One of the key problems facing the State—and there are many—is that the former Labor Government drove down new home construction to the lowest level in 30 years. People in New South Wales can no longer afford to buy a home and developers are not building homes.

Therefore, we have introduced a number of policies designed to encourage the construction of new homes. We are conducting a review of the planning system; we have introduced various policies to assist in home ownership, including the regional relocation grants; we have expanded the empty-nester policy; and we are now targeting the first home buyers policy on new homes. We want to ensure that we focus on building and delivering new homes for the people of New South Wales.

STATE BUDGET AND NEW SOUTH WALES POLICE FORCE

The Hon. CHARLIE LYNN: My question is directed to the Minister for Police and Emergency Services. Will the Minister advise how the budget contributes to the ongoing protection of front-line police?

The Hon. MICHAEL GALLACHER: This Government is determined to ensure that police have the very best equipment we can provide them to assist them in protecting the community. I am delighted to advise members about two important initiatives that were announced in the budget, which will enhance the current protections afforded to front-line police. The most important initiative is a commitment to replacing ballistic protective vests for New South Wales police. A working group has been established by the New South Wales Police Force to investigate replacement options for ballistic vests. It represents the fulfilment of an election commitment to replace overt body armour, commencing in 2011-12. A total of $2.5 million has been allocated for this project, which will progress as a matter of priority.

I am advised that specifications for the new ballistic vest have been determined and a procurement plan is being developed. Whilst it is likely that the majority of the existing vests will still provide a high level of protection for operational police, the safety of police must be our top priority, so the vests will be replaced. Sadly, when the Labor Party was in government it knew about the problems with the vests but did nothing. My sources within Labor tell me that the previous Minister for Police attempted to do something, but members will never guess—although they probably will—who was the block. It was Eric Roozendaal. I am told that the previous Minister for Police tried to get this commitment in the dying days of the decrepit Labor Government. But, no, Eric would not agree with it. He did not like the Police Force and he obviously did not like the former Minister for Police. It is evident that the police were left wanting by the former Government.

The Hon. Eric Roozendaal: Point of order: I take offence at being described as not liking the New South Wales Police Force. I am a strong supporter of the New South Wales Police Force. In fact, I bring to the attention of the House that under Labor—

The PRESIDENT: Order! That is not a point of order. The member will resume his seat.

The Hon. MICHAEL GALLACHER: He came so close. Be that as it may, despite what the Hon. Eric Roozendaal says, front-line police know—and they will know because I will tell them—that there was an attempt by the former Minister for Police to give them body armour. It was the Hon. Eric Roozendaal—

The Hon. Eric Roozendaal: Point of order: The only source that the Minister is using is obviously tomato sauce.

The PRESIDENT: Order! That is not a point of order. The member will resume his seat.

The Hon. MICHAEL GALLACHER: I am sure The Greens will welcome the next part of the budget because they have been strong advocates for this measure. A total of $551,000 has been provided for the maintenance of tasers. We want them to be working properly and effectively. This funding is for maintenance and technical support, training and replacement of redundant components. We will ensure that tasers currently on issue to front-line police are in perfect working order. In addition, we will ensure that all front-line police are effectively trained in how to use them. Since their rollout to front-line police— 5056 LEGISLATIVE COUNCIL 7 September 2011

The Hon. Eric Roozendaal: By Labor.

The Hon. MICHAEL GALLACHER: Dragged kicking and screaming, let the record show. Labor denied that there was a need for tasers and gave them to only a handful of cops. The New South Wales Liberals and Nationals said that tasers had to be available to front-line police in general duties and Labor said no. [Time expired.]

The Hon. CHARLIE LYNN: I ask a supplementary question. Will the Minister elucidate his important answer?

The Hon. MICHAEL GALLACHER: It is a shame that the Hon. Eric Roozendaal is prepared to interject on this issue. This was a period of shame when he was the Treasurer.

The Hon. Eric Roozendaal: Point of order: I refer to relevance. In addition, the Minister is making a personal attack on me. He knows full well that Labor issued tasers, bulletproof vests and extendable batons.

The PRESIDENT: Order! That is not a point of order.

The Hon. MICHAEL GALLACHER: Some people have very sensitive skin. Some people have a rash as a result of their sensitivity. I have detailed two important issues for police. The first is in relation to the tasers. I am sure The Greens want to ensure that the tasers are working effectively. The Greens want to ensure that tasers do exactly what they are intended to do, that they are working properly and that police have maximum training so when they deploy them they do so effectively. The Greens want to ensure that everything is being complied with. However, the Hon. Eric Roozendaal wants to complain about it. He should hang his head in shame over his handling of body armour. It was a disgrace that Labor allowed the use-by date to well and truly pass by in relation to body armour. As a result of the election of Barry O'Farrell as Premier the police finally have the protection they need.

CHICHESTER PIPELINE LEAD CONTAMINATION

Dr JOHN KAYE: My question is directed to the Minister for Finance and Services, who has responsibility for Hunter Water. When did Hunter Water inform the Department of Primary Industries that land in the curtilage of the Chichester pipeline was contaminated with lead?

The Hon. GREG PEARCE: I know a lot of things. I learnt some of them from the Hon. Eric Roozendaal—I learnt only a little bit from him, but he was very good. I know that when The Greens members come into the Chamber without their ties a leadership spill is on—another leadership spill. Usually only two of The Greens do not wear a tie, but today all three of them are not wearing a tie. Tonight will be a hectic night for The Greens.

The Hon. Duncan Gay: Lee was here today.

The Hon. GREG PEARCE: Lee Rhiannon was here? I miss Lee. Do we all miss Lee? I think Lee made a remarkable contribution in this House on behalf of her controller in North Korea.

Mr David Shoebridge: Point of order: It is fascinating to hear the Minister's digression on the sartorial splendour of The Greens but I ask him to answer the question, which was very direct.

The PRESIDENT: Order! I remind the Minister of the need for him to be generally relevant in his answers.

The Hon. GREG PEARCE: When Mr David Shoebridge says "please" what can one do but comply with his request? Hunter Water has acted to inform property owners adjacent to the Chichester trunk gravity main pipeline of the lead management issue. As part of this process, Hunter Water has sent letters to Shortland residents adjacent to the pipeline corridor advising them to limit access to the area and to be aware that there is lead present along the pipeline.

Dr John Kaye: When?

The Hon. GREG PEARCE: When? Whan? Hunter Water has undertaken a soil sampling and analysis program to determine the concentration of lead in the soil at representative points along the length of the 7 September 2011 LEGISLATIVE COUNCIL 5057

pipeline. Results show that generally there is an elevated concentration of lead in the soil underlying and adjacent to the pipeline. Around 30 kilometres of lead joints along the pipeline have already been replaced with welded steel. The replacement of another 10 kilometres of pipe is currently being undertaken. Hunter Water will soon commence removal of pipeline from this section and will undertake a clean-up of the area. The complete removal of the entire lead-jointed pipeline and remediation of the pipeline corridor will be considered as part of the long-term asset management plan for the pipeline.

Dr JOHN KAYE: I ask a supplementary question. Will the Minister elucidate his answer by saying when the land owners were warned of the existence of lead and when the Department of Primary Industries was told of the issue?

The Hon. GREG PEARCE: It was when Hunter Water told them.

MINING ROYALTIES

The Hon. STEVE WHAN: My question is directed to the Minister for Police and Emergency Services, representing the Minister for Energy and Resources. Does the Minister acknowledge that by increasing State mining royalties money will not be taken from the Federal Government but will be taken from mining communities that would have received infrastructure funding from the Federal Government's program?

The Hon. MICHAEL GALLACHER: Mr President, the member is seeking an opinion.

The PRESIDENT: Order! Is the Minister taking a point of order?

The Hon. MICHAEL GALLACHER: Point of order: I seek guidance from you in relation to the question. I believe it sought an opinion.

The PRESIDENT: Order! I will allow the question.

The Hon. MICHAEL GALLACHER: I will refer the question to the Minister in the other House, who will provide the Hon. Steve Whan with a suitable answer.

STATE BUDGET AND ILLAWARRA

The Hon. MARIE FICARRA: My question is addressed to the Minister for Finance and Services, and Minister for the Illawarra. Will the Minister update the House on how this year's budget is delivering for the Illawarra?

The Hon. GREG PEARCE: The 2011-12 budget is focused on improving services and providing the essential infrastructure required for the Illawarra region to grow. The Illawarra is vital to the health of the New South Wales economy. The investment in this year's budget shows the New South Wales Liberals and Nationals are committed to the success of the region. In Health we are investing $14.6 million for 82 more nurses in the Illawarra, Shoalhaven Local Health District and 110 more nurses in the South Eastern Sydney Local Health District, including five senior clinical nurse/midwifery educators and specialists to support nurses caring for their patients. A total of $800,000 is allocated for additional medical, nursing and allied health staff for renal dialysis services at Milton Ulladulla.

A total of $56 million has been allocated statewide to allow maintenance of 21 acute care beds at Wollongong Hospital. The capital program allocation for 2011-12 is $20.5 million, with $4 million of funding to commence planning for the Shellharbour Hospital expansion and car parking at Shoalhaven District Hospital at Nowra at an estimated cost of $10 million. An amount of $16.5 million has been allocated for the Illawarra and Shoalhaven Regional Cancer Centres and Wollongong Hospital Elective Surgery Unit. We are investing in education, with more than $540 million for local schools. This includes new gymnasiums at Bomaderry and Kiama high schools and upgrading Wollongong and Nowra TAFEs.

We are improving the Illawarra road network by investing $103 million in major projects, upgrades and maintenance, and to improve road safety. This includes $35 million for work on the Gerringong to Bomaderry upgrade of the Princes Highway. In public transport we are providing $10.5 million for the new train stabling facility at Wollongong for the Oscar trains and $1.5 million for community transport. Together with other statewide initiatives, this will keep the region moving. An amount of $106.2 million will be provided for disability services and $40.6 million for the Home and Community Care program to assist those most vulnerable 5058 LEGISLATIVE COUNCIL 7 September 2011

in our society. Additionally, $1.33 million has been provided for two new villas for people with high support needs in Wollongong and $900,000 for a new respite centre in Nowra. There is $708,000 to build a new group home in Warilla for people with a disability.

Further, $18.6 million has been allocated for public and community housing in the Illawarra, including $784,000 to commence seven homes for public and community housing in Russell Vale and $10 million to upgrade existing homes in the area. By focusing investment on both front-line services and core infrastructure in the 2011-12 budget, the Liberal-Nationals Government will make a real difference to the lives of residents and provide the facilities for the region to grow and prosper.

NATIONAL SCHOOL CURRICULUM

Reverend the Hon. FRED NILE: I direct my question to the Hon. Duncan Gay, representing the Minister for Education. Is the O'Farrell Government aware that the new Australian Labor Party national school curriculum will expunge more than 1,500 years of daily convention by replacing BC, Before Christ, and AD, Latin for "the year of our Lord", based on the birth of Jesus Christ, the Saviour of the world, with the likes of the meaningless BCE, BP and CE? Does the O'Farrell Government recognise the current dating system is a significant part of Western civilisation's historical heritage? What steps will the O'Farrell Government take to ensure future generations of New South Wales students will continue to be taught the full richness of Western civilisation and not an impoverished atheistic, socialistic engineering?

The Hon. DUNCAN GAY: I thank the honourable member for the question. It probably comes as no surprise to members in this Chamber that I am very much a BC/AD believer. I have to be very careful, with my surname, about how I say that. It is important that I correct the record in relation to a recent article in the press suggesting that there was no comment from Minister Piccoli or his office on the opinion piece last week about BCE, before common era, BP, before present, and CE, common era, replacing the historical terms BC, before Christ, and AD, Anno Domini, as set out in the Australian curriculum. Any advice on the curriculum, including the use of BC and AD, must come from the experts. As the Minister for Education has advised, it is inappropriate for him to get involved in the detail of the curriculum.

Everyone wants a piece of the curriculum, including former Premier Bob Carr and former Prime Ministers John Howard and Paul Keating. Frankly, the politicisation of the curriculum has to stop. It is not Minister Piccoli's role to micromanage what is in or out of the curriculum. The history curriculum should be based on the expert advice of the academics, the New South Wales Board of Studies and the Australian Curriculum, Assessment and Reporting Authority. More than 5,000 people have seen the Australian history curriculum. There have been consultations between the New South Wales Board of Studies and stakeholders, including the Catholic Education Commission and Christian Schools Australia. No stakeholder has raised this issue during that consultation. The draft history curriculum is available on the Board of Studies website. Individual history teachers from the Catholic, Anglican and Christian sectors have been involved in the consultations. I encourage everyone to provide their feedback to the consultation process.

Indeed, the recent debate in the press about the use of BC and AD is part of our wider concern about the national curriculum and it is important to get it right the first time. In New South Wales these terms have been used in history syllabuses for many years without serious contention. BCE and CE are meant to be neutral terms for numbering and ordering the years and, while they are used in the written syllabus, there is latitude for teachers to use whichever terminology they find appropriate in the classroom. If it were my decision, I would use BC and AD.

The Hon. Peter Primrose: You'd use pounds, shillings and pence too.

The Hon. DUNCAN GAY: Like the member, I grew up in that era. In the current New South Wales syllabus, for years 7 to 10 students a specific section allows students to learn about the terminology and concepts of historical time including BC/AD and BCE/CE. The new draft New South Wales syllabus includes the nationally agreed terminology used in the Australian Curriculum. In other words, it is a Federal issue and it is being decided in the national curriculum. [Time expired.]

ROAD MAINTENANCE CONTRACTS

The Hon. MICK VEITCH: My question is directed to the Minister for Roads and Ports. In his Budget Speech yesterday the Treasurer stated that road maintenance would be contestable. Does this contestability extend to road maintenance contracts held by local government entities for work they conduct on behalf of the State Government? 7 September 2011 LEGISLATIVE COUNCIL 5059

The Hon. DUNCAN GAY: The terms and conditions are still being worked up. My belief is that local government should be able to contest these contracts as well as others. Frankly, I think that many local government areas would win many of these contracts because the Hon. Mick Veitch and I both know numerous people in regional local government areas throughout New South Wales who do a terrific job. Given half a chance they would win many of these contracts. There are good local contractors—and I think of people like Divall's in Goulburn—who are going to come in and cream the socks off some of the big city guys—

The Hon. Jeremy Buckingham: Cream the socks?

The Hon. DUNCAN GAY: It is a country term. The member would not understand that; it is not in Chinese. One of the things we need to be careful of is the role of local government in these areas. This proposal will be put together properly, but it is my belief that, by and large, those local government areas will win. Some local government areas will beat other local government areas; we cannot protect against that because we want to get the best bang for our buck in New South Wales. But they will all be in there with a really good chance.

STATE BUDGET AND RURAL AND REGIONAL ROADS

The Hon. NIALL BLAIR: My question is directed to the Minister for Roads and Ports. Can the Minister update the House on funding for rural and regional roads in the 2011-12 State budget?

The Hon. DUNCAN GAY: I have been waiting for a question from the Opposition about rural and regional areas, and I thought that there would have been a question about the Department of Primary Industries from the "Mouth from the South", but there has been nothing. As part of the 2011-12 State budget the Government is pleased to announce a $4.2 billion investment in New South Wales's regional and rural road network. This funding equates to a $700 million increase from last financial year and a $1.1 billion, or 35 per cent, increase from 2009-10. Frankly, after 16 years of Labor indifference and neglect, the people and communities of country New South Wales are finally starting to see the benefits of good government— a Government that has the strategic nous to think outside the cities of Newcastle, Sydney and Wollongong. Unlike Steve Whan and Labor, we appreciate and understand the economic and social benefits that flow from strong transport and freight links between the city and the country.

As part of our ongoing commitment to regional and rural New South Wales, more than $2 billion will be spent on critical regional highways, including $1 billion for upgrade projects on the Pacific Highway; $627 million for major road upgrades in the Hunter region, including $570 million to continue construction of the jointly funded Hunter Expressway between the F3 at Seahampton and the New England Highway at Branxton; $246 million for the Hume Highway, to continue work on the Holbrook, Tarcutta and Woomargama bypasses to improve safety for motorists and local residents and enhance the efficiency of freight transport between Sydney and Melbourne; $160 million for the Great Western Highway, including $40 million to continue construction of the four-lane upgrades at Lawson; and more than $80 million for upgrades of the Princes Highway, including projects at Gerringong, Victoria Creek, South Nowra and Bega.

Hundreds of millions of dollars have also been allocated to vital road networks that help support the movement of freight in country New South Wales. For example, this financial year communities in the Barwon electorate will receive nearly $108 million in funding for their roads, including $5 million for the construction of passing lanes on the Newell Highway and $3.2 million for the replacement of Beemery Bridge over the Bogan River on the Kamilaroi Highway. Compared to the last financial year under Country Labor, the people of Moree, Narrabri, Coonabarabran, Cobar, Bourke, Walgett, Brewarrina, Warren, Coonamble and Gilgandra will receive an increase of nearly $11 million in allocated roads funding this year under a good Liberal-Nationals Government. Likewise, communities in the Murray-Darling will receive just over $97 million in funding this financial year, including $1.1 million for road works on the Silver City Highway and more than $1 million for pavement resurfacing on the Cobb Highway. This equates to an increase in allocated road funding from last year of $19.7 million.

The Hon. Penny Sharpe: That's pork-barrelling.

The Hon. DUNCAN GAY: The seat of Murrumbidgee will see $52.5 million in roads—an increase of $10.8 million from last year—including a $2 million upgrade of the Carrathool Bridge over the Murrumbidgee River. And all the Labor Party can say about all that is, "That's pork-barrelling." It is about— [Time expired.] 5060 LEGISLATIVE COUNCIL 7 September 2011

COMMUNITY SECTOR PAY EQUITY

Mr DAVID SHOEBRIDGE: My question is directed to the Minister for Finance and Services. Given that the budget makes no allocation to fund the Australian Services Union equal pay case, will the Minister now confirm that the Government has abandoned any commitment to fund equal pay in the community sector?

The Hon. GREG PEARCE: I am pleased to have the question. In fact, I was asking about this very issue yesterday, because we still have not been able to get a commitment from the Federal Government to provide any funding to meet any decision arising from the Australian Services Union case. The Premier, at our recent community Cabinet meeting, indicated that if there was a decision, our Government would pay its share of it. That is a public commitment by the Premier. In terms of moving forward through the budget process, the difficulties we have at the moment are: first, the Federal Government will not commit; and, second, the Australian Services Union is not progressing the matter in Fair Work Australia.

The Australian Services Union has repeatedly been asked to refine its case to indicate what it is after, and it has not done that. The result has been to push back a decision that originally was intended to be implemented when a decision in that case was made. Let us not beat about the bush; we expect there to be a decision. But it was originally intended to implement the decision in January, which would have meant that hardworking people in that sector would have received their pay rises in January. It has now been pushed out— and I am not quite sure where it has been pushed out to, but certainly it has been pushed out several months after that. The Australian Services Union and the Federal Government need to get off their high horses and backsides and actually deliver some solutions on this.

Mr DAVID SHOEBRIDGE: I ask a supplementary question. Could the Minister elucidate where in the current budget any allowance is made to fund the commitment? In further elucidation of the earlier answer, can the Minister indicate what, if any, fiscal allowance has been made for future budget years?

The Hon. GREG PEARCE: I refer to my previous answer.

PRINCES HIGHWAY FUNDING

The Hon. PENNY SHARPE: My question is directed to the Minister for Roads and Ports. Why has the Government reneged on its commitment to provide an additional $500 million to the Princes Highway?

The Hon. DUNCAN GAY: We have not. We will.

HOUSING STIMULUS PROGRAM AND SMALL BUSINESS

The Hon. MATTHEW MASON-COX: My question is addressed to the Minister for Finance and Services. Can the Minister update the House on the Federal Government's housing stimulus program and its effect on New South Wales small business?

The Hon. GREG PEARCE: I thank the honourable member for his question and his concern about this issue. This is yet another mess we have inherited from the former Labor Government. It is a joint Federal Labor and State Labor mess: funded by the Federal Government under the National Building Economic Stimulus Plan, and mismanaged by New South Wales Labor's housing program. The collapse of Perle Pty Ltd has had a significant impact on the many subcontractors who were engaged by it to carry out work on Housing NSW projects. They have been left out of pocket. Honest tradies and small businesses have been burnt by the Rudd-Gillard stimulus steam train. Rather than boost the economy, the housing projects led building companies and their suppliers down the path to insolvency.

In response to the many representations I have received, including from Mr Ryan Park, the member for Keira, I undertook a preliminary investigation into the New South Wales projects yet to be completed under the stimulus program. It was clear from my initial briefings with Housing NSW that I was not given all the information I needed, so I took steps to investigate the matter myself. What I found was that in respect of the 57 incomplete projects hundreds of subcontractors and small businesses had not been paid.

The PRESIDENT: Order! There is far too much interjection in the Chamber. I call the Hon. Walt Secord to order for the first time. 7 September 2011 LEGISLATIVE COUNCIL 5061

The Hon. GREG PEARCE: There were cost overruns already totalling $12 million on these incomplete projects and months of delays. Some sites are already more than a year overdue. Across all 57 sites, the cumulative delay totals 26 years. Among the representations I received, there were many in relation to the liquidation of one building company, Perle Pty Ltd. Despite being awarded more than $23 million worth of housing contracts, Perle is now in liquidation. In relation to Perle, I am not confident that the tenders awarded by Housing NSW to Perle were judicious. Housing NSW's financial assessment of builders such as Perle was not sophisticated. Nor was it ongoing. Contracts were entered into with companies such as Perle that simply could not handle the volume of work and the unrealistic timeframes set by the Gillard and Keneally governments.

I am also asking questions about the management of the building contracts by Housing NSW, most especially once it became aware, in the case of Perle, that Perle was experiencing financial difficulties. Subcontractors have claimed that they repeatedly notified Housing NSW that they were not being paid. Housing NSW continued to pay Perle, but the money was not passed on to the subcontractors or suppliers. I have asked the Director General of the Department of Finance and Services to engage the Internal Audit Bureau to investigate not only the procurement processes, but also Housing NSW's management of those contacts.

The investigation will consider the adequacy of financial assessments undertaken, whether appropriate procurement processes were followed, and the monitoring of the performance of Perle during the conduct of the contracts. The Internal Audit Bureau will determine whether Housing NSW appropriately and adequately managed the risks to those projects arising from the potential financial distress or insolvency of the contracted building firm. This is another regrettable episode indicating how Labor has let down subcontractors and small businesses that have not been paid.

TOORALE NATIONAL PARK

The Hon. ROBERT BORSAK: My question without notice is directed to the Minister for Finance and Services, representing the Minister for the Environment. Is it a fact that Commonwealth and State governments have reached agreement on preferred outcomes for each of Toorale's Warrego River infrastructure works? Can the Minister inform the House what decisions have been made in that regard? Will the Minister release the consultant's report, which analysed options for Toorale's water infrastructure?

The Hon. GREG PEARCE: That is a very good and detailed question, which I will take on notice and ask the Minister to provide an answer.

TAMWORTH HOSPITAL REDEVELOPMENT

The Hon. WALT SECORD: My question without notice is directed to the Minister for Police and Emergency Services, representing the Minister for Health. In light of yesterday's announcement of $3 million for Tamworth hospital for planning purposes, when will the Government provide the remaining funding for the promised $220 million upgrade?

The Hon. MICHAEL GALLACHER: I thank the member for his question. It is good that the member has asked what seems quite a sensible question. But it is important for members to understand where the Hon. Walt Secord is coming from when he asks questions. I have taken the opportunity to reflect on some of the questions he has asked in this House. He is setting himself up—

The Hon. Walt Secord: Point of order: The Minister is debating the question.

The PRESIDENT: Order! I remind the Minister of the need for him to be generally relevant in his answers.

The Hon. MICHAEL GALLACHER: Mr President, you can be assured that I will do absolutely everything I can to be generally relevant. The member who asked the question quite simply has taken on the role of the bucket master of this House.

The Hon. Eric Roozendaal: Point of order: The Minister has been speaking for well over a minute and has not come within a bull's roar of answering the question. He is just attacking the member who asked the question. I appreciate that the Hon. Walt Secord is giving the member for Tamworth a difficult time. But it should not be left to him. The people of Tamworth want to know where the hospital is— 5062 LEGISLATIVE COUNCIL 7 September 2011

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

The Hon. MICHAEL GALLACHER: The Hon. Walt Secord is taking it upon himself to be the dirt master of the Australian Labor Party.

The Hon. Eric Roozendaal: Point of order—

The PRESIDENT: Order! The Minister will resume his seat.

The Hon. Eric Roozendaal: The Minister is now two minutes into his answer and he is still attacking the member who asked the question. The Minister has not come within a bull's roar of actually answering the question. His answer is well and truly out of order. I ask you to direct him to answer the question and stop attacking the member who asked it.

The PRESIDENT: Order! I remind the Minister of the need for him to be generally relevant in his answers.

The Hon. MICHAEL GALLACHER: The series of questions that have been put on notice—

The Hon. Eric Roozendaal: Point of order: I do not know whether the Minister perhaps propped up the bar at lunch time, but he seems to have—

The PRESIDENT: Order! There is no point of order. The Hon. Eric Roozendaal will resume his seat.

The Hon. MICHAEL GALLACHER: If the Hon. Walt Secord's credibility-crisis mate wants to keep running defence for him, so be it. The fact is that questions put on notice by the Hon. Walt Secord are nothing more than a personal attack on members of the upper House.

The Hon. Eric Roozendaal: Point of order. My point of order relates to relevance. The diatribe from the Minister bears no relevance at all to the question asked. I ask that he be directed to either give a relevant answer or sit down.

The PRESIDENT: Order! I uphold the point of order. Unfortunately, the Minister's time for answering the question has expired.

STATE BUDGET AND DEPARTMENT OF PRIMARY INDUSTRIES

The Hon. RICK COLLESS: My question is directed to the Minister for Roads and Ports. Will the Minister update the House on funding for the Department of Primary Industries in the 2011-12 State budget?

The Hon. DUNCAN GAY: I have been waiting all week for a question on this, only I was expecting Steve Whan to ask it. After weeks of irresponsible scaremongering, reckless tweets and careless media releases, Labor's spokesperson for primary industries, Steve Whan, suddenly has emerged today from his cone of silence to sprout more fibs and fact-less figures. It came as no surprise to many of us here that, after preening his media profile for the past few weeks, Whan now considers himself to be quite the wordsmith. However, the Hon. Steve Whan forgot to mention that he also fancies himself as a skilled statistician. Perhaps when Mr Whan went to school he confused fractions with factions. Today, I refute once again the numbers that Whan has produced in yet another mistake-laden, attention-seeking media release. In the 2011-12 budget the New South Wales Liberal-Nationals Government is investing more than $1 billion in the Department of Primary Industries to deliver important services and programs for rural and regional communities across the State.

The Hon. Steve Whan: Answer the question.

The Hon. DUNCAN GAY: The member could have a say if he asked the question, but he has no ticker. Just be quiet, ticker-less Whan. Our 2011-12 budget includes $390 million across the agriculture, fisheries and biosecurity sectors of the Department of Primary Industries, including $190 million to protect valuable agricultural land, a $120 million investment in biosecurity and $90 million to be spent on New South Wales fisheries. As we have said on a number of occasions, there is absolutely no truth in Labor's spin that the 7 September 2011 LEGISLATIVE COUNCIL 5063

New South Wales Government would cut 25 per cent of the budget of the Department of Primary Industries. Yesterday my colleague Minister Hodgkinson was proud to announce that there will be no regional job cuts in the Department of Primary Industries.

I am proud to inform this House just how wrong Whan was. Whan was wrong when he claimed that the O'Farrell Government was cutting the staff of the Department of Primary Industries by an astounding 25 per cent; Whan was wrong when he claimed that the New South Wales Liberal-Nationals parties will always take their most loyal voters for granted; Whan was wrong when he claimed that the 25 per cent budget cuts would demonstrate comprehensively The Nationals' inability to represent rural and regional New South Wales because they are partnered up with their Liberal mates in the city; Whan was wrong when he claimed that the New South Wales Government would jeopardise New South Wales's biosecurity capacity; Whan was wrong when he claimed that one in three staff at a major Department of Primary Industries—

The Hon. Penny Sharpe: Point of order: The Minister continues to refer to members in this Chamber not by their correct titles. He does this repeatedly. I ask that he be brought to order.

The PRESIDENT: Order! I uphold the point of order.

The Hon. DUNCAN GAY: The Hon. Steve Whan was wrong when he claimed that one in three staff at a major Department of Primary Industries research facility will be thrown on the scrap heap. [Time expired.]

The Hon. Rick Colless: I ask a supplementary question. Will the Minister elucidate on how many more times Whan was wrong?

The Hon. DUNCAN GAY: I have several more I am disappointed to tell the House. The member was also wrong when he said one in three staff at a major Department of Primary Industries research facility would be thrown on the scrap heap as the O'Farrell Government prepares to unleash its horror budget. The member was wrong when his mate Mick Veitch claimed that this was a kick in the teeth for rural New South Wales.

The Hon. Eric Roozendaal: Point of order: I draw your attention to your previous ruling and ask the Minister to address all members by their appropriate titles.

The PRESIDENT: Order! I uphold the point of order.

The Hon. DUNCAN GAY: The member was wrong when his mate the Hon. Mick Veitch in the upper House claimed this is a kick in the teeth for rural New South Wales and a sign that the Liberals and The Nationals are already taking some of their strongest supporters for granted. How wrong this man was. Despite shamelessly claiming to be a champion for country communities and primary producers, this is the Country Labor Party that in Government closed 45 Department of Primary Industries offices, stations and research facilities since 1995, representing over 30 per cent of the total department.

While the former Labor Government had no plan, no vision and no strategy to improve and revitalise the Department of Primary Industries it carelessly axed more than 660 Department of Primary Industries and Industry and Investment jobs since 2004-05. What hypocrites. The Hon. Steve Whan and his Liberal mate Shane O'Brien—and I like Shane O'Brien and I worry about the company he is keeping. There is a story in the bush about dogs and fleas. [Time expired.]

The Hon. MICHAEL GALLACHER: If members have further questions they should put them on notice.

STATE BUDGET

The Hon. GREG PEARCE: Yesterday in answer to a question I indicated to the House that the Teachers Federation had welcomed the Government's budget. The Teachers Federation vice-president was quoted as welcoming over five years, as part of the 2011-12 budget, 900 new teachers, 200 literacy and numeracy teachers and 50 new school staff support officers as well as the $640 million to build new schools in Sydney, at Bass Hill and Oran Park, and to spruce up Cabramatta, Hurstville and Nepean.

I can further inform the House that I am advised that the Industrial Relations Commission has now ordered the Teachers Federation not to proceed with its illegal strike action tomorrow. That follows earlier 5064 LEGISLATIVE COUNCIL 7 September 2011

advice from Justice Marks on Monday when he told teachers that if they were serious they would be better off not breaching their legal contracts of employment but instead carrying out their activity on Saturday or Sunday when people would have an opportunity to participate if they wanted to without disrupting the people of New South Wales.

The Hon. Walt Secord: Point of order: The Minister said that was a supplementary answer but he was delivering a ministerial statement.

The PRESIDENT: Order! The Minister was giving a supplementary answer, not making a ministerial statement. However, he was coming close to discussing a matter that was not raised in the answer given yesterday. Does the Minister have anything further to add?

The Hon. GREG PEARCE: Not to that. I have something else.

The PRESIDENT: Order! Is it supplementary to an answer?

The Hon. GREG PEARCE: No.

Questions without notice concluded.

UNPROCLAIMED LEGISLATION

The Hon. Greg Pearce tabled a list detailing all legislation unproclaimed 90 calendar days after assent as at 6 September 2011.

INDEPENDENT COMMISSION AGAINST CORRUPTION AMENDMENT BILL 2011

Second Reading

The Hon. MICHAEL GALLACHER (Minister for Police and Emergency Services, Minister for the Hunter, and Vice-President of the Executive Council) [3.35 p.m.]: I move:

That this bill be now read a second time.

This bill is a further step in the series of measures that the Government is taking to restore confidence in public administration in New South Wales. The New South Wales Liberal-Nationals Government is committed to improving accountability and ethical standards in public administration. As part of that commitment, our 100 Day Action Plan promises to introduce legislation to strengthen the Independent Commission Against Corruption. A strong Independent Commission Against Corruption will proactively work to prevent corruption and fearlessly investigate allegations when they are made. The Independent Commission Against Corruption Amendment Bill 2011 will strengthen both the Independent Commission Against Corruption and the Inspector of the Independent Commission Against Corruption. The bill implements the recommendations from two reports released in 2010 by the Committee on the Independent Commission Against Corruption and which are supported by the Commissioner of the Independent Commission Against Corruption, as well as two more recent requests for amendments by the commissioner.

The bill amends section 14 of the Independent Commission Against Corruption Act to clarify the Independent Commission Against Corruption's powers to gather and assemble admissible evidence for the prosecution of a person for criminal offences in connection with corrupt conduct. This will facilitate the assembly of comprehensive briefs of evidence for the Director of Public Prosecutions to support prosecutions arising from corruption investigations. Amendments to sections 35 and 37 of the Act will streamline the process for the production of privileged documents to the Independent Commission Against Corruption, so that it is not always necessary for the person producing the documents to appear in person at the Independent Commission Against Corruption.

The bill will insert a new subsection into section 57B of the Act to permit the reports and findings of the Inspector of the Independent Commission Against Corruption to be published more broadly. These amendments will clarify that the inspector may communicate his findings and recommendations to the Commissioner of the Independent Commission Against Corruption, Independent Commission Against 7 September 2011 LEGISLATIVE COUNCIL 5065

Corruption officers, complainants and any other affected parties, for the purpose of resolving a complaint, or dealing with a matter. The inspector will also have broader powers to report on his activities to Parliament, under amendments the bill will make to section 77A.

The bill also provides that section 40 of the Surveillance Devices Act 2007 does not prevent the Independent Commission Against Corruption from providing information about its use of covert surveillance to the Inspector of the Independent Commission Against Corruption. The bill's amendment to section 104 of the Independent Commission Against Corruption Act will ensure that the original intent of subsection 104 (11) is preserved. Originally, the section provided that decisions of the Independent Commission Against Corruption Commissioner relating to the appointment, discipline and removal of staff of the Independent Commission Against Corruption may not be appealed to the Industrial Relations Commission.

It is important that the Independent Commission Against Corruption Commissioner have control over the appointment, discipline and removal of staff. Given the nature of the work of the Independent Commission Against Corruption, it should not be placed in the position of having to maintain the employment of a person in whom the commissioner has lost confidence. As part of our strategy to improve honesty and integrity in New South Wales, this bill will strengthen the Independent Commission Against Corruption. It is part of a series of measures that we are taking not only in the area of anti-corruption but also in other areas to restore public confidence in the administration of government and to deliver openness and transparency. I commend the bill to the House.

The Hon. ADAM SEARLE (Deputy Leader of the Opposition) [3.39 p.m.]: The Opposition does not oppose the Independent Commission Against Corruption Amendment Bill 2011. Much of the bill comes from the work of the Committee on the Independent Commission Against Corruption. The relevant provisions emerge as unanimous recommendations of that cross-party committee, chaired at the time by the member for Mount Druitt in the other place. Amendments to section 14 of the principal Act will make it clear that the commission has the power to gather, assemble and furnish evidence to the Director of Public Prosecutions for use in prosecutions after the discontinuation or completion of its investigation. This directly arises from the report of the Committee on the Independent Commission Against Corruption into proposed amendments to the Independent Commission Against Corruption Act. Report 10/54 dated September 2010 was addressed in the other Chamber by the then chair on 24 September 2010. The report, in part, states:

The Committee is recommending an amendment to the ICAC Act to clarify that the Commission may assemble evidence that may be admissible in the prosecution of a person for criminal offences in connection with corrupt conduct, both in the course of its investigations and after investigations have been completed.

That makes it clear the amendment is not aimed at a dramatic problem but to provide clarification for more abundant caution. However, it does raise the ongoing issue of whether the role of bodies such as the Independent Commission Against Corruption and the Police Integrity Commission is to investigate and expose corruption or to obtain prosecutions. The philosophy of the legislation, which has been supported by all sides of politics, is that the primary role of these bodies is to investigate and expose rather than to secure convictions. Having said that, it is obviously sensible that investigative bodies such as the Independent Commission Against Corruption can continue to collate evidence after formal investigations have been completed in order for it to be passed on to the appropriate authorities, in this case the Director of Public Prosecutions.

A number of amendments to the Act relate to the Inspector of the Independent Commission Against Corruption. These amendments also came out of the committee's work, in particular, the committee's Review of the 2008-2009 Annual Report of the Inspector of the Independent Commission Against Corruption. That report dated November 2010 was spoken to in the other place by the member for Mount Druitt on 26 November 2010. Recommendation 1 of the report proposed amendments to the Independent Commission Against Corruption Act to clarify that:

The Inspector of the Independent Commission Against Corruption may report to Parliament, as he considers necessary, on any abuse of power, impropriety, maladministration and other forms of misconduct on the part of the ICAC or its officers, regardless of whether or not these matters arise from the making of a complaint to the Inspector.

The Inspector may report to Parliament on any of his statutory functions, as considered necessary, and in doing so may utilise the special reporting provisions at section 77A of the Act.

Reports made by the Inspector under sections 57B(1)(b) and (c) in relation to complaints or matters that are not of a sufficiently serious or systemic nature to warrant being made to Parliament can be provided to complainants, affected parties and other relevant individuals, as considered necessary by the Inspector for the purpose of resolving the complaint or matter in question.

5066 LEGISLATIVE COUNCIL 7 September 2011

These essentially are the amendments contained in the bill in items [9] and [11] of schedule 1. These are clarifications of existing provisions. They first arose in the context of the Inspector of the Police Integrity Commission and his powers and also arose in recommendations made in November 2006 in a report by the Committee on the Office of the Ombudsman and Police Integrity Commission, chaired at the time by the shadow Attorney General, the member for Liverpool. In June last year the Department of Premier and Cabinet wrote to the Committee on the Independent Commission Against Corruption asking whether the reporting provisions should be altered. This eventually resulted in recommendations giving rise to this legislation. Recommendation 3 of the committee's 2008-09 annual report seems to be the origin of the proposed amendment in this bill at item [10] of schedule 1. This recommendation proposed amendments to the Surveillance Devices Act that:

… the prohibitions on the communication or publication of protected information should not be deemed to restrict the powers of the Inspector of the Independent Commission Against Corruption …

This, in essence, seems to be the amendment proposed in this bill to section 40 of the Surveillance Devices Act. Turning to other provisions in the bill, items [2] and [8] of schedule 1 provide that the commission allow a person summoned to appear before the commission to provide a document or other item to be excused from appearance if the material is produced. Some ancillary provisions flow from this. This brings the Independent Commission Against Corruption into line with other bodies such as courts and tribunals, which have been implementing similar procedures for some time. It is a more efficient and effective way to do this, when appropriate. Item [12] of schedule 1 deals with the position of staff appointed to the Independent Commission Against Corruption. It clarifies the case so as to make clear that the Industrial Relations Commission cannot deal with an unfair dismissal application by an officer of the Independent Commission Against Corruption whose employment is terminated by the commissioner. This is confirmation of a longstanding bipartisan position. Section 104 (11) of the Independent Commission Against Corruption Act provides:

None of the following matters, and no matter, question or dispute relating to any of the following matters, is an industrial matter for the purposes of the Industrial Relations Act 1996:

(a) the appointment of, or failure to appoint, a person to any position as a member of staff of the Commission,

(b) the removal, retirement, termination of employment or other cessation of office of a person in any such position,

(c) any disciplinary proceedings or disciplinary action taken against a person employed under this section.

This leaves commission employees in a situation comparable to special temporary employees who make up ministerial and Opposition staff for whom flexibility of employment is required by the nature of their employment. The Opposition supports the bill.

Reverend the Hon. FRED NILE [3.46 p.m.]: On behalf of the Christian Democratic Party I am pleased to support the Independent Commission Against Corruption Amendment Bill 2011, which has as its cognate bill the Public Interest Disclosures Amendment Bill 2011. The Independent Commission Against Corruption Amendment Bill strengthens the Independent Commission Against Corruption, particularly the role of the Inspector of the Independent Commission Against Corruption. I have been an active member of the Committee on the Independent Commission Against Corruption since its commencement. I am pleased that the hard work of the parliamentary committee examining issues and producing reports has resulted in these amendments. The committee sees the fruit of its labours embodied in this legislation. I acknowledge that the committee has had similar success in other matters.

The amendments in this bill are important. They will facilitate the Independent Commission Against Corruption in assembling comprehensive briefs of evidence for the Director of Public Prosecutions to undertake prosecutions arising from corrupt investigations. A major area of concern has been that the Independent Commission Against Corruption does a tremendous amount of work conducting investigations, surveillance and open and closed hearings. It often makes recommendations for charges to be laid and then the matter drops into a black hole and no action is taken by the Director of Public Prosecutions. The defence of the Director of Public Prosecutions has been that the material provided is not in a form or style that can be used in prosecutions or that the brief supplied is not sufficient to support a prosecution. That then leads to delays when quick action is required and employees in local government, RailCorp or other government entities who have been found guilty of corruption are not prosecuted.

I look forward to the application of this legislation in the hope that it will bring about successful prosecutions arising from the corruption investigations of the Independent Commission Against Corruption. The 7 September 2011 LEGISLATIVE COUNCIL 5067

bill strengthens the powers of the Independent Commission Against Corruption and highlights its relevance and importance. If after all its work no action is taken, why do we have the Independent Commission Against Corruption? Why spend millions of dollars financing the Independent Commission Against Corruption if we do not see any results? I agree that there must be results and I believe this legislation will ensure that will happen. The bill will also permit the Inspector of the Independent Commission Against Corruption's reports and findings to be published more broadly. During parliamentary committee hearings there was some debate about the powers of the Inspector of the Independent Commission Against Corruption, whether he can make reports public and how that can be done. Hopefully that area of confusion will be cleared up by this legislation.

The bill will also permit the Independent Commission Against Corruption to provide more information about its use of covert surveillance to the Inspector of the Independent Commission Against Corruption. That is not meant to stop the Independent Commission Against Corruption conducting covert surveillance but to ensure that the inspector can carry out his role of ensuring that the covert surveillance is carried out according to law. The legislation will also ensure that a decision to terminate the employment of an Independent Commission Against Corruption staff member by the commissioner cannot be the subject of unfair dismissal proceedings. I support that because I do not believe the commissioner should be forced to retain a staff member in whom he or she has lost confidence. The bill also will streamline the process for production of privileged documents so that it is not always necessary for the person producing the documents to appear in person at the commission.

As I said earlier, these amendments will implement the recommendations from two reports released in 2010 by the Committee of the Independent Commission Against Corruption and which are supported by the Independent Commission Against Corruption commissioner, as well as two more recent requests for amendments by the commissioner. I again congratulate the new O'Farrell Government in bringing this legislation so rapidly before the House as part of the Government's 100 Day Action Plan. I fully support the bill.

The Hon. TREVOR KHAN [3.51 p.m.]: I speak in support of the Independent Commission Against Corruption Amendment Bill 2011. The object of the bill is to amend the Independent Commission Against Corruption Act 1988 to strengthen, and clarify the ambit of, certain powers of the Independent Commission Against Corruption and the inspector of the commission. The bill makes it clear that the commission has power to gather, assemble and furnish evidence to the Director of Public Prosecutions for use in prosecutions after the discontinuance or completion of its investigations. Additionally, the bill broadens the powers of the inspector by enabling the inspector to report to Parliament at any time on any matter relating to the exercise of the inspector's principal functions under section 57B of the Act if the inspector considers a report to be in the public interest. The bill makes it clear that the inspector may provide a report or recommendation concerning any matter relating to the inspector's principal functions to the commission, an officer of the commission, a person who made a complaint or any other affected person if the inspector considers that the matter can be effectively dealt with by such a recommendation or report.

Additionally, the bill provides that section 40 of the Surveillance Devices Act 2007 does not prevent the use, publication or communication of protected information within the meaning of that Act for the purpose of the exercise of the inspector's functions under section 57B of the Act. The bill also permits a person who has been summonsed to appear at a compulsory examination or public inquiry for the purpose of producing a document or thing to produce the document or thing without appearing if excused from appearance by the commissioner, and for any document or thing so produced in accordance with the commissioner's direction to be privileged. The bill makes it clear that the Industrial Relations Commission cannot deal with an application under part 6, that is unfair dismissals, of chapter 2 of the Industrial Relations Act 1996 by an officer of the Independent Commission Against Corruption whose employment is terminated by the commissioner. Finally, the bill provides for the making of savings and transitional regulations and makes amendments of a savings and transitional or consequential nature.

I will just make a few brief comments on the background of this matter. Last year I served on the Independent Commission Against Corruption committee with Reverend the Hon. Fred Nile at various times, including the time when the committee was chaired by the Hon. Richard Amery. It was an unusual circumstance in that the Hon. Richard Amery was somewhat more dovish with regard to certain matters concerning the Independent Commission Against Corruption than I, which was taken as a somewhat unusual transposition of roles, taking into account what the Hon. Richard Amery did before he became a member in the other place. In that respect clearly the Independent Commission Against Corruption has an interesting balance of responsibilities with its role in simply investigating matters, including its educative role in relation to corruption, and its other role in providing information that may lead to a prosecution. 5068 LEGISLATIVE COUNCIL 7 September 2011

It is interesting to look at the role and the emphasis that various commissioners have placed on those competing priorities over a period. It is interesting to see at the present time the very forthright way in which Commissioner Ipp is taking on his roles and responsibilities, and I congratulate him for the approach he takes. I believe it is absolutely fundamental to the role of the Independent Commission Against Corruption that its capacity to undertake its work in providing proper briefs for the Director of Public Prosecutions must be strengthened at every turn. The public of New South Wales expects that where corruption is identified by the Independent Commission Against Corruption the Director of Public Prosecutions is provided with timely information with regard to any such corrupt activity and that, having been armed with that material, the Director of Public Prosecutions undertakes prosecutions as soon as possible.

If there is a failure to undertake that role efficiently and in a timely manner it reduces the confidence of the people of New South Wales in the overall governance of New South Wales. To that extent, this amendment is vitally important in assisting the people of New South Wales maintain their confidence that all of us in this Parliament are providing the appropriate tools to allow the Government of New South Wales, in its more general sense, to be undertaken effectively.

A further matter I refer to is that part of the Act that deals with the removal of the capacity of the Industrial Relations Commission to deal with unfair dismissal matters. We must recognise that the Independent Commission Against Corruption is a small and discrete body. It is a body that has a relatively small staff and undertakes a very specialist function. By its very nature the personnel who work in that organisation often have access to quite sensitive material, and one can clearly imagine circumstances in which an employee of the commission loses the confidence of the commissioner because of matters relating to the very material they are handling and the investigations they are undertaking.

One can further anticipate that if there were continued access to part 6 of chapter 2 of the Industrial Relations Act that matters that are vital to a continuing investigation by the Independent Commission Against Corruption may become revealed in the course of any application that may be brought before the Industrial Relations Commission. That may, therefore, seriously jeopardise an ongoing inquiry. I make the further point, which Reverend the Hon. Fred Nile also made, that if the commissioner has lost confidence in an employee of the commission, noting the small nature of the organisation and the very discreet work that it does, it is genuinely impossible to see how that person could continue in that organisation.

Therefore, it is fundamental to this legislation that the provisions dealing with the removal of the capacity of making an application under chapter 2, part 6, of the Industrial Relations Act 1996 be included. No suggested amendment should be capable of removing that part of the legislation. I concur with the words of Reverend the Hon. Fred Nile regarding the vital and effective work of the Independent Commission Against Corruption committee. Unfortunately, I am no longer a member of that committee—a matter that I much regret. Nevertheless, the committee undertakes important work and its secretariat staff provide vital assistance to committee members. I congratulate the staff and members of the committee on their effective and ongoing work.

Dr JOHN KAYE [4.01 p.m.]: The Independent Commission Against Corruption Amendment Bill 2011 contains a number of provisions that The Greens strongly support. They are provisions that will broaden the powers of the commissioner and the inspector and make the commission function more effectively. These provisions will also give the commission the ability to bring matters to the public's attention via the inspector's reports to Parliament and via the courts through the furnishing of evidence to the Director of Public Prosecutions and to take corruption matters to prosecution and, in some cases, to conviction. Like some other members of Parliament, I spent Saturday at the polling booths in the Illawarra.

The Hon. Catherine Cusack: But you're not from the Illawarra.

Dr JOHN KAYE: That is quite correct. I admire the Hon. Catherine Cusack's geographical capacity to understand that Sydney and the Illawarra are not the same area. I was down there proudly lending a hand to two very fine people, Jill Merrin and George Takacs, both of whom I think will shortly be announced as elected members of Wollongong council. They will make fine councillors. But we were there because of the entrenched culture of corruption on Wollongong council. I had the misfortune to spend the day on a polling booth next to a candidate who had been identified by the Independent Commission Against Corruption as having tolerated a climate of corruption. I do not intend to name that individual, but it appears that the people of Wollongong have rejected anybody who was associated with the previous council. 7 September 2011 LEGISLATIVE COUNCIL 5069

Removing corruption from all levels of government is essential to maintaining a successful modern society. Societies that have failed to deal with corruption appropriately and have endemic corruption end up in the same position as many Third World countries: they simply cannot conduct business. People find it difficult to live a rational, sensible life because they are constantly confronted by corruption. I have helped residents fight a number of developments when there was a perception that council officers were behaving corruptly. There was a sense that council officers were too close to the developers and were supporting and assisting them to get their development applications through council in a manner that could only suggest corrupt behaviour. Corruption is unfair, unjust and catastrophic in the long term once it gets hold of a society. The Independent Commission Against Corruption stands as an important instrument in preventing the spread of corruption in our society, and the commission deserves our support.

The recommendations of the Joint Standing Committee on the Independent Commission Against Corruption that were released last year point the way forward for sensible and positive amendments to the legislation, including broadening the powers of the commissioner to take evidence of a completed or abandoned investigation to the Director of Public Prosecutions. I agree with the Reverend Fred Nile and other speakers who said that it is important that corruption matters do not just end with an adverse mention in an Independent Commission Against Corruption report; where appropriate, they should end with a prosecution, and hopefully a conviction. An adverse mention in an Independent Commission Against Corruption report is not enough of a deterrent for those who would seek to behave similarly. Under the legislation, evidence gained by surveillance devices and protected information can now be used by the inspector. The provision regarding summonses is a sensible measure that states that if an individual is being summonsed for the purposes of producing a document or thing, and if that is the only purpose they are being summonsed for, at the discretion of the commissioner the production of that document or thing can be said to have occurred even if the individual does not show at the commission.

One aspect of the legislation that we do not agree with relates to the removal of the recourse of employees of the Independent Commission Against Corruption to chapter 2, part 6, of the Industrial Relations Act in respect of unfair dismissal. A number of previous speakers have addressed this issue and said it is important. The arguments largely come down to the fact that the Independent Commission Against Corruption is small, it is a specialist organisation and it handles sensitive material. Therefore, if the commissioner has lost confidence in an individual it is only appropriate to allow the commissioner to remove that individual without recourse to unfair dismissal provisions. On the surface, one has some sympathy for that argument. But upon further analysis it is apparent that the legislation is saying that it is okay to have lower levels of industrial protection for people purely because they work for the Independent Commission Against Corruption. If the commissioner has a genuine reason for losing confidence in an employee or for feeling that there is something wrong with an individual—perhaps they are a risk for the exposure of confidential or sensitive information, or are performing their job incompetently—then there are mechanisms in chapter 2, part 6, of the Act for removing that person. Unfair dismissal is not a blanket ban on dismissal but a blanket ban on unfair dismissal.

There is no reason why an employee of the Independent Commission Against Corruption should have fewer industrial rights than an employee of any other public sector organisation. The Minister produced no evidence in his second reading speech to suggest that this provision is addressing a particular problem. It increases the power of the commissioner counter to the rights of the individual. Therefore, I foreshadow that The Greens will move amendments in Committee to remove those two provisions, and I look forward to debating the matter with other members at that time. Save and except for that particular provision, The Greens support the bill.

The Hon. MELINDA PAVEY (Parliamentary Secretary) [4.10 p.m.], in reply: I thank members for their contributions to debate on the Independent Commission Against Corruption Amendment Bill 2011. I commend the bill to the House.

Question—That this bill be now read a second time—put and resolved in the affirmative.

Motion agreed to.

Bill read a second time.

In Committee

Clauses 1 and 2 agreed to. 5070 LEGISLATIVE COUNCIL 7 September 2011

Dr JOHN KAYE [4.11 p.m.], by leave: I move The Greens amendments Nos 1 and 2 on sheet C2011-059 in globo:

No. 1 Page 5, schedule 1 [12] (proposed section 104 (11A)), lines 1–6. Omit all words on those lines.

No. 2 Page 6, schedule 1 [14], proposed clause 32 of schedule 4, lines 1–5. Omit all words on those lines.

These amendments effectively remove new section 104 (11A), which restricts access to the chapter 2, part 6 provisions of the Industrial Relations Act 1996 that provide employees of the Independent Commission Against Corruption with protection against unfair dismissal. As I outlined in my contribution to the second reading debate, the arguments put forward to support new section 104 (11A) have three components. The first component is that it is a small organisation. That argument is not valid because access to part 6 of chapter 2 was agreed to for organisations above a certain size and the commission is above that size. Many other organisations are relatively small and about the same size as the Independent Commission Against Corruption and operate under those provisions.

The second argument had to do with the material the commission deals with. There is no question that the Independent Commission Against Corruption does deal with complex and detailed material. However, if an individual poses a risk in relation to disclosure or mishandling of that material there must be a reason for believing the individual poses the risk and that information should be dealt with in the same way as any other industrial employment matter. The evidence should be presented and the individual should go through the normal processes. The third argument relates to the Independent Commission Against Corruption being a special organisation and that if the commission wants to get rid of someone it cannot move them to another organisation. That is true, nevertheless an individual who is employed by the commission should have the protection afforded by chapter 2, part 6 of the Industrial Relations Act. Removing rights just because somebody works for a particular organisation is demonstrably unfair. It means a person has fewer rights because they work for that organisation. Therefore, we do not support the proposed insertion of new section 104 (11A) and consequently we also wish to delete the savings provision in clause 32. I commend the amendments to the Committee.

The Hon. MELINDA PAVEY (Parliamentary Secretary) [4.14 p.m.]: The Government will not support The Greens amendments. It is important that the Commissioner of the Independent Commission Against Corruption have control over the appointment, discipline and removal of staff. Given the nature of the work of the commission, it is important that it not be placed in the position of having to maintain the employment of a person in whom the commissioner has lost confidence. The bill's amendment to section 104 of the Independent Commission Against Corruption Act will ensure that the original intent of section 104, subsection (11) is preserved. Originally the section provided that decisions of the commission relating to the appointment, discipline and removal of staff of the Independent Commission Against Corruption may not be appealed to the Industrial Relations Commission.

When this provision was originally included in the legislation the drafting of the Industrial Arbitration Act 1940 meant that a proceeding to reinstate a dismissed employee could only be dealt with by making an award determining an industrial matter. The current wording of the Act is accordingly drafted to create exclusions from what is an "industrial matter". Changes to the Industrial Relations Commission's jurisdiction under the Industrial Relations Act 1996, giving it power to hear and determine an unfair dismissal claim, mean that changes are needed to section 104 (11) to bring it into line with the current industrial regime, and to clarify that the Industrial Relations Commission does not have jurisdiction to entertain unfair dismissal claims involving commission officers.

The Hon. ADAM SEARLE (Deputy Leader of the Opposition) [4.16 p.m.]: For the reasons already outlined in the second reading debate, the Opposition supports the Government on this point and will not be supporting The Greens amendments.

Reverend the Hon. FRED NILE [4.17 p.m.]: The Christian Democratic Party does not support the amendments proposed by The Greens. Obviously, anyone who is employed by the Independent Commission Against Corruption has to go through a most thorough investigation and checking of their credentials and background. For the commission then to lose confidence in a member of staff is a most serious matter. Even though Dr Kaye thought the reasons could be given to the Industrial Relations Commission, they may be of such a delicate nature that they cannot be provided in a public arena. The revelation of that material may also undermine ongoing and future investigations and even some of the methods the Independent Commission Against Corruption uses, such as surveillance techniques and the like. We do not support the amendments. 7 September 2011 LEGISLATIVE COUNCIL 5071

Mr DAVID SHOEBRIDGE [4.17 p.m.]: These are important amendments because they will give industrial rights to employees. The arguments that have been put forward opposing the amendments—that somehow it will lead to the disclosure of secretive information or expose the inner workings of the Independent Commission Against Corruption—can be readily answered by the Government when it is a respondent to one of these proceedings informing the commission of that fact. The Government can seek a non-publication order and in certain circumstances can seek to have the court closed if sensitive information is going to be considered in the course of the proceedings. There is an abundance of power in the Industrial Relations Commission to make those kinds of orders—to close the court, make a non-publication order and limit public access at any time if it is thought to be in the public interest or required to protect the workings of the Independent Commission Against Corruption. That is not a rational argument—

Reverend the Hon. Fred Nile: But it may not be granted automatically.

Mr DAVID SHOEBRIDGE: I note the interjection of the honourable member. I think that is casting aspersions on the common sense, sense of public duty and ability of members of the New South Wales Industrial Relations Commission. They are individuals who hold their duty to act in the public interest in the highest possible regard. If the Government can mount a cogent argument that there is information which, if allowed to get out into the public arena, would prejudice either an investigation or the modus operandi of the Independent Commission Against Corruption such that it would not be in the public interest to have that material disclosed, there is no doubt that the commission not only would be well seized of that argument and be able to deal with it, but would accept the argument and make appropriate orders to protect that kind of information.

Given that that is not an argument to oppose the amendments moved by Dr John Kaye, the only conclusion can be that the Government simply does not want to give those kinds of genuine employment rights to these employees. In the absence of those rights, the employees, rather disturbingly, could be dismissed at the whim of the commission. Employees without rights would be a poor outcome for the Independent Commission Against Corruption. It would also mean there would not be that kind of resilience in the employee-employer relationship, and that may make a number of employees less willing to stand up to an employer.

For example, if they thought there was some impropriety or inappropriateness in the way in which the Independent Commission Against Corruption was conducting its operations—and I am not suggesting there is— we want those employees to feel they can stand up in the face of an employer that they think is pushing them down a wrong path, an employer that they think might be involved in inappropriate conduct. We want to enable employees to do that, particularly in an organisation such as the Independent Commission Against Corruption. If we remove their right to seek review for dismissal, their right to seek a remedy under the Industrial Relations Act, we will not have those kinds of resilient employees, and we will have a less, rather than more, robust organisation. I commend the amendments.

The Hon. TREVOR KHAN [4.21 p.m.]: It is always interesting when Mr David Shoebridge speaks, because he accuses everyone else of lacking reasonableness and insight, and suggests a degree of prescience—for instance, by his indication that the Industrial Relations Commission will always act in an appropriate way. But, of course, he does not extend his suggestion of prescience to the reasonableness of others. For instance, he does not suggest that the commissioner, a person of very considerable judicial standing, will act reasonably and fairly and in accordance with proper procedure. He only applies prescience and reasonableness to that part of the argument that suits him. And when it does not so suit him, he argues that everyone else is motivated by some ill-intent.

Mr David Shoebridge: Point of order: The honourable member is deliberately misrepresenting and misconstruing my argument. I ask him to not misrepresent the arguments that have been put consciously.

The CHAIR (The Hon. Jennifer Gardiner): Order! That is not a point of order.

The Hon. TREVOR KHAN: Once again we have seen a sanctimonious attitude adopted by The Greens, who think they can tell the rest of us what we are doing wrong and take supposed points of order when they are just talking rubbish. The bottom line is that the Independent Commission Against Corruption is a fundamentally important organisation, and it needs appropriate powers—not the game playing that The Greens so foolishly and continuously engage in.

Dr JOHN KAYE [4.23 p.m.]: I seek clarification of the argument put by the previous speaker. Is he saying that a test for the level of reasonableness of an open tribunal—a tribunal of judges—and a belief that they would automatically behave reasonably, and we can have faith and confidence in their ability to come up with a sensible outcome, should be transferred to every single employer? 5072 LEGISLATIVE COUNCIL 7 September 2011

The Hon. Trevor Khan: Yes.

Dr JOHN KAYE: If that is the case why does the member not do what I think most Nationals and Liberal members really want and get rid of the Industrial Relations Commission entirely? It will not be needed, because the whole idea of having an open court is that we know that some employers behave in ways that are irrational and irresponsible and violate the rights of individuals. That is the whole point of having the Industrial Relations Commission in the first place. In saying that we are not fingering each and every individual employer; we are saying that is a phenomenon that is observed. I would like the Hon. Trevor Khan to clarify how it was he went from the observation of Mr David Shoebridge that the Industrial Relations Commission can be expected to behave in a way that is rational—because, it was implied, it is a court of law, does not have a vested interest in the outcome, and is proceeding in a way that is open, accountable and appealable—to comparing that standard with and translating it to an individual employer.

Question—That The Greens amendments Nos 1 and 2 [C2011-059] be agreed to—put.

The Committee divided.

Ayes, 5

Ms Barham Mr Buckingham Ms Faehrmann

Tellers, Dr Kaye Mr Shoebridge

Noes, 31

Mr Ajaka Mr Khan Mr Searle Mr Blair Mr Lynn Mr Secord Mr Clarke Mr MacDonald Ms Sharpe Ms Cotsis Mrs Maclaren-Jones Mr Veitch Ms Cusack Mr Mason-Cox Ms Voltz Mr Donnelly Mrs Mitchell Ms Westwood Ms Fazio Mr Moselmane Mr Whan Ms Ficarra Reverend Nile Mr Foley Mrs Pavey Tellers, Mr Gay Mr Primrose Mr Colless Mr Green Mr Roozendaal Dr Phelps

Question resolved in the negative.

The Greens amendments Nos 1 and 2 [C2011-059] negatived.

Schedule 1 agreed to.

Title agreed to.

Bill reported from Committee without amendment.

Adoption of Report

Motion by the Hon. Melinda Pavey agreed to:

That the report be adopted.

Report adopted. 7 September 2011 LEGISLATIVE COUNCIL 5073

Third Reading

Motion by the Hon. Melinda Pavey, on behalf of the Hon. Michael Gallacher, agreed to:

That this bill be now read a third time.

Bill read a third time and returned to the Legislative Assembly without amendment.

PUBLIC INTEREST DISCLOSURES AMENDMENT BILL 2011

Second Reading

The Hon. MELINDA PAVEY (Parliamentary Secretary) [4.36 p.m.], on behalf of the Hon. Michael Gallacher: I move:

That this bill be now read a second time.

The Government is pleased to introduce the Public Interest Disclosures Amendment Bill 2011, which will strengthen the protection of public sector whistleblowers and improve the public interest disclosures regime. The Government is committed to improving public sector administration. This bill is one of a range of measures that the Government is taking to restore confidence in public administration in New South Wales. The Public Interest Disclosures Act 1994 plays a critical role in maintaining the integrity of public administration in this State. It does this by protecting public officials who disclose wrongdoing in the public sector in accordance with the Act. The Act makes it a criminal offence to take detrimental action against a public official substantially in reprisal for making a public interest disclosure.

Recognising the importance of this Act, the Government delivered on its 100 Day Action Plan commitment to introduce legislation to strengthen the protection of whistleblowers. The bill improves the protections afforded to persons who make public interest disclosures and strengthens the capacity of the Ombudsman to oversight public authorities and resolve disputes. First, the bill expands the types of disclosures that can be made to the Chief Executive, Division of Local Government, Department of Premier and Cabinet regarding wrongdoing by local councils. Currently the Act permits public interest disclosures to be made directly to the chief executive only in relation to serious and substantial waste of local government money. As the Division of Local Government can investigate a range of other conduct by local councils, the Government considers that public officials should be able to disclose a wider range of wrongdoing directly to the head of that division and receive the protections under the Act.

To implement this the bill will also allow the chief executive to receive disclosures about corrupt conduct, maladministration and breaches of pecuniary interest obligations under the Local Government Act and a failure by councils to exercise functions properly in accordance with the Government Information (Public Access) Act 2009. The bill also will impose express statutory obligations on the heads of public authorities. These include responsibility for ensuring that the public authority has a public interest disclosure policy, that staff are aware of the policy and the protections of the Act, and that the public authority complies with the policy and its obligations under the Act. Placing these obligations in legislation will assist in emphasising the importance of top-down support for public officials who make public interest disclosures. It is proposed also to empower the Ombudsman to assist in resolving certain disputes that might arise from a public official making a public interest disclosure.

New regulation-making powers have been included in the bill for this purpose. To assist with prosecutions of offences of taking reprisal action against whistleblowers the bill will also clarify that responsibility for investigating and preparing a brief of evidence lies with the appropriate investigating agency. This will assist in providing proper briefs of evidence to the Department of Public Prosecutions for the prosecution of offences of taking reprisal action. The Department of Public Prosecutions will be responsible for prosecuting offences. The bill will also improve the feedback from agencies to whistleblowers about their concerns. Public authorities will be required to send a copy of the agency's policy to a person who has made a public interest disclosure and to acknowledge receipt of a disclosure within 45 days. This requirement will need to be included in the public authority's public interest disclosures policy.

Legislation passed last year established a Public Interest Disclosures Steering Committee in March. Currently its members are the Ombudsman as chairperson, the Director General of the Department of Premier and Cabinet, the Auditor General, the Commissioner for the Independent Commission Against Corruption, the 5074 LEGISLATIVE COUNCIL 7 September 2011

Commissioner for the Police Integrity Commission, the Chief Executive of the Division of Local Government in the Department of Premier and Cabinet, and the Commissioner of Police. The role of the steering committee is to provide the Premier with advice on the operation of the Act and recommendations for reform. The bill will include the Information Commissioner on the steering committee as public interest disclosures can be made to the Information Commissioner regarding a failure to exercise functions properly in accordance with the Government Information (Public Access) Act 2009.

The Government looks forward to working closely with the steering committee. It will give careful consideration to any suggestions for future enhancements to the Act which the steering committee may make. New annual reporting obligations on public authorities will commence on 1 January 2012. These reports will provide useful data to the Public Interest Disclosures Steering Committee and the Ombudsman for his new oversight role to analyse whether the Act is operating effectively to protect whistleblowers. The bill will also require each public authority to provide to the Ombudsman statistics regarding its compliance with the Act on a six monthly basis. This will facilitate increased oversight by the Ombudsman of public authorities' compliance with the Act. I commend the bill to the House.

The Hon. ADAM SEARLE (Deputy Leader of the Opposition) [4.42 p.m.]: The Opposition does not oppose the Public Interest Disclosures Amendment Bill 2011. The bill contains a number of what would be regarded as sensible and moderate changes to the law which are comparatively minor but nonetheless worthy. One of the changes is in schedule 1, item [2], which changes the term "protected disclosure" to "public interest disclosure". As the Parliamentary Secretary has pointed out, another amendment adds the Information Commissioner to the steering committee. Given that the Information Commissioner is responsible for improving access to Government information, it makes sense to us that the holder of that office should sit on the Public Interest Disclosure Steering Committee.

Schedule 1, item [5] requires public authorities to prepare quarterly reports for the Ombudsman on the authority's compliance with the Public Interest Disclosure Act. The bill contains a number of other sensible changes to require that each public authority's public interest disclosure policy requires that a person who makes a public interest disclosure to that authority is to be provided within 45 days of the person having made the disclosure with a copy of the policy and an acknowledgement of the receipt of the disclosure. The Opposition thinks this is a sensible and worthwhile change.

The bill clarifies the process for the referral of evidence of an alleged reprisal for a public interest disclosure to the Commissioner of Police, the Police Integrity Commission, the Independent Commission Against Corruption, the Attorney General and the Director of Public Prosecutions. The bill also expands the matters in respect of which the public interest disclosures may be sent to the local government investigating authority. The bill makes provision for the involvement of the Ombudsman in resolving disputes that arise from a public interest disclosure having been made by a public official. The bill clarifies responsibilities of the head of a public authority.

The Opposition notes that the amendments are not meant to come into effect until January 2012, which should address any concerns that may arise from the changes that the bill contains. The Opposition thinks these changes are sensible and incremental and in no way radical or harmful to the principle. Therefore, we support the bill.

Dr JOHN KAYE [4.44 p.m.]: The Greens support the Public Interest Disclosures Amendment Bill 2011. The history of whistleblowers, the important role they have played in exposing private enterprise and public enterprise ill-doings, and the consequences they can have for the public is well known. I refer to the abortion graft inquiry in Victoria, where police were exposed as being involved in abortions as a result of the whistleblowing of various police and Dr Bertram Wainer. I refer to the courageous whistleblowers in Queensland who exposed a climate of corruption. I refer to the courageous engineers who stood up and exposed the dangers created by shoddy engineering on the Challenger spacecraft that led to the fatal accident. Whistleblowers have played an important role throughout the history of private and public undertaking. However, the most alarming aspect of that history is the number of whistleblowers who have paid a high personal price for their actions.

The Public Interest Disclosures Act aims to New South Wales protect public sector whistleblowers and to ensure they can expose bad public practices and corrupt public practices without suffering personal reprisal. While the legislation is not perfect, it is best that we have it. This bill introduces some relatively noncontroversial, but important and effective, amendments to strengthen the legislation. It enables people to 7 September 2011 LEGISLATIVE COUNCIL 5075

make a broader range of disclosures in relation to local government. It includes a number of other sensible provisions so that whistleblowers can expose bad public administration and corrupt public administration. The Greens support the bill.

Reverend the Hon. FRED NILE [4.46 p.m.]: On behalf of the Christian Democratic Party I am pleased to support the Public Interest Disclosures Amendment Bill 2011, which is cognate and will work in tandem with the Independent Commission Against Corruption Amendment Bill 2011. I am pleased that the new Liberal-Nationals Government has fulfilled its commitment as part of the 100 Day Action Plan to introduce legislation to strengthen the protection for whistleblowers and the operation of the Independent Commission Against Corruption. The Public Interest Disclosures Amendment Bill contains a number of practical aspects that I believe will assist whistleblowers to come forward with information and have confidence that they will not have any reprisal action taken against them for so doing.

This bill will improve the objects of the Act to insert the words "corrupt conduct, maladministration, serious and substantial waste, government information contravention and local government pecuniary interest contravention". I believe the addition of those aspects to the object of the Act will improve its operation. Public authorities are to report to the Ombudsman for each six-month period to prevent chief executive officers from covering up genuine complaints about the operations of those authorities. This will open up the whole situation. Those reports will provide statistical information on the public authority's compliance with its obligation under this Act during the six-month period to which the report relates. The report is to be provided to the Ombudsman within 30 days of the end of the six-month period or by such later time as the Ombudsman may approve.

As members know, the shameful way in which Gillian Sneddon was treated has helped form the legislation. There has been a great deal of publicity about that case. Earlier this month the Supreme Court dismissed her action against the State but awarded damages of more than $400,000 in her favour against the former Speaker and the former Minister for Aboriginal Affairs, Milton Orkopoulos, who has been jailed as a paedophile. Ms Sneddon has been treated shamefully because of her sincere effort to bring to the attention of authorities what she knew to be occurring in Mr Orkopoulos's office involving teenage boys. She should be congratulated and given a medal for her brave efforts. She has been awarded damages, and I hope that she receives them. I ask the Government to confirm that the awarded damages will be paid to Ms Sneddon. In some cases an award for damages is made but the unsuccessful party says it does not have any funds to pay the damages.

This legislation will send a message to all employees of public authorities not to be frightened if they want to act as a whistleblower through the correct procedures and make information public. It also applies to staff of members of Parliament, as Ms Sneddon was. No area should be a no-go area. The same strict controls and protection should apply to all government bodies, members of Parliament and agencies of Parliament when employees believe that they must act and make public information on corruption. Staff of members of Parliament may feel that they are in a difficult and embarrassing position. They should not be frightened to provide information to the relevant authorities. The same should apply to all government bodies in New South Wales. I am pleased to support this bill.

The Hon. TREVOR KHAN [4.51 p.m.]: In speaking in support of the Public Interest Disclosures Amendment Bill 2011 I want to make a couple of observations. This bill is now before the House because of two people. The first, of course, as Reverend the Hon. Fred Nile has mentioned, is Gillian Sneddon in her campaign for justice for herself and other whistleblowers. The second person who must be congratulated is Reverend the Hon. Fred Nile. I was unable to get motions through this House to establish a committee inquiry. It was his ability to work through the issues that allowed this matter to go before the Committee on the Independent Commission Against Corruption and for hearings to take place. It is important to recognise that his experience and capacity to negotiate with both sides of the House led to this outcome. I believe that Reverend the Hon. Fred Nile had no idea that the hearings held by the Committee on the Independent Commission Against Corruption would proceed in the way they did. The crossbench, particularly Reverend the Hon. Fred Nile, had a reasonable expectation that Gillian Sneddon would have an opportunity to put her case to the committee and for us to learn from that experience.

Reverend the Hon. Fred Nile: Hear, hear!

The Hon. TREVOR KHAN: The then Labor Government used its numbers to prevent that from occurring. In a sense, that was an injustice. Stripping away politics, every member of this place knew that a tremendous injustice had been done to Ms Sneddon. A major shortcoming in the process had resulted in her 5076 LEGISLATIVE COUNCIL 7 September 2011

being badly treated. A person can have a cathartic experience from giving evidence and being able to put one's case free from the possibility of threats of litigation. Ms Sneddon may have had that experience if she had been able to give her evidence. Regrettably, because of the circumstances and perhaps the electoral cycle, Ms Sneddon was denied that opportunity until her civil case was heard in the Supreme Court.

Reverend the Hon. Fred Nile: There was only one vote in it.

The Hon. TREVOR KHAN: Often the committee was split. The then Coalition Opposition was frequently supported by Reverend the Hon. Fred Nile, although he maintained his independence on a variety of points. Sometimes he did not show his support with the Coalition. He ran an independent line that almost got us there on many occasions but we were generally defeated by Labor numbers. It is regrettable that Gillian Sneddon at the very least did not have the opportunity to give evidence. Without in any way belittling the role of Reverend the Hon. Fred Nile and the actions of Gillian Sneddon, I point to the evidence given before the committee by then Opposition leader Barry O'Farrell. He gave evidence on issues of public interest disclosure in a cogent way. The evidence he gave before the committee was identical to the intelligent and considered submissions he previously had made to the Independent Commission Against Corruption in relation to public interest disclosure. His evidence to the committee was not subject to criticism or harsh questioning and formed the basis of this legislation.

This legislation has been introduced early in the term of the O'Farrell Liberal-Nationals Government. The material upon which it is based was available to a previous Committee on the Independent Commission Against Corruption. Although I was not a member of that committee, my understanding is it recommended on an earlier occasion, not just last year, that its report be adopted. That material was available to the previous Labor Government, yet it never acted on it during its time in office. That is a matter of regret. It may have made a difference to all that occurred to Gillian Sneddon and circumvented many events that occurred during 2010. Regrettable as that may be, the two people who are to be congratulated on their differing roles in this matter are Gillian Sneddon and Reverend the Hon. Fred Nile. I thank them both for all that they did.

The Hon. MELINDA PAVEY (Parliamentary Secretary) [4.57 p.m.], in reply: I thank all members who contributed to the debate on the Public Interest Disclosures Amendment Bill 2011 and for their support of the bill. I particularly thank Reverend the Hon. Fred Nile and the Hon. Trevor Khan for revisiting an important part of the history of New South Wales. The events surrounding the Orkopoulos matter involving Gillian Sneddon have resulted in this bill, which provides greater protection to whistleblowers. The O'Farrell-Stoner Government has made a commitment to make an ex gratia payment to Gillian Sneddon to cover her costs. I commend the bill to the House.

Question—That this bill be now read a second time—put and resolved in the affirmative.

Motion agreed to.

Bill read a second time.

Leave granted to proceed to the third reading of the bill forthwith.

Third Reading

Motion by the Hon. Melinda Pavey, on behalf of the Hon. Michael Gallacher, agreed to:

That this bill be now read a third time.

Bill read a third time and returned to the Legislative Assembly without amendment.

CROWN LAW OFFICERS LEGISLATION AMENDMENT (RETIREMENT AGE) BILL 2011

Second Reading

The Hon. DAVID CLARKE (Parliamentary Secretary) [4.59 p.m.], on behalf of the Hon. Michael Gallacher: I move:

That this bill be now read a second time.

7 September 2011 LEGISLATIVE COUNCIL 5077

The object of the Crown Law Officers Legislation (Retirement Age) Bill 2011 is to increase the retirement age of the following statutory offices from 65 to 72: the Deputy Director of Prosecution and Solicitor for Public Prosecutions, requiring amendment to the Director of Public Prosecutions Act 1986; Crown Prosecutors, Senior Crown Prosecutors and Deputy Senior Crown Prosecutors, requiring amendment to the Crown Prosecutors Act 1986; and Public Defenders, Senior Public Defenders and Deputy Senior Public Defenders, requiring amendment to the Public Defenders Act 1995.

The Crown Law Officers Legislation Amendment (Abolition of Life Tenure) Act 2007—hereinafter referred to as the 2007 amending Act—introduced fixed-term appointments and compulsory retirement for a range of statutory officers in New South Wales. These officers were the Director of Public Prosecutions, the Deputy Director of Public Prosecutions, the Solicitor for Public Prosecutions, Crown Prosecutors, Senior Crown Prosecutors, Deputy Senior Crown Prosecutors, Public Defenders, Senior Public Defenders, Deputy Senior Public Defenders and the Solicitor General. However, the 2007 amending Act introduced different retirement ages for different officers, imposing a retirement age of 72 for the Director of Public Prosecutions and the Solicitor General and 65 for the other officers affected.

While it is recognised that there is some value in ensuring that the statutory officers in question be required to retire at a particular age, it is considered that it should be 72 to ensure consistency across all officers, including judicial officers, with judges and magistrates also required to retire at 72. A number of transitional issues have been identified which need to be addressed by appropriate savings and transitional provisions to ensure that those people who were appointed with life tenure before 1 November 2007 are not forced to retire at any particular age. The 2007 amending Act set 1 November 2007 as the date on which a retirement age of 65 was imposed on the affected officers.

The increase in the retirement age to 72 will apply to anyone appointed to any of the affected offices since 1 November 2007 who would currently be forced to retire at 65. People appointed to any of the affected offices since 1 November 2007 will either have a seven-year term or a term of less than seven years if they were within seven years of 65 years of age at the time of appointment. These people will now be able to seek reappointment until the age of 72. If any of these people have been appointed for a term of less than seven years, to ensure that their term did not extend beyond the date on which they reached 65, the amendments provide that they will now be taken to have been appointed for a full seven years. The Director of Public Prosecutions was consulted on the proposed increase in compulsory retirement ages from 65 to 72 and supported the proposed amendments. I commend the bill to the House.

The Hon. ADAM SEARLE (Deputy Leader of the Opposition) [5.03 p.m.]: I lead for the Opposition on the Crown Law Officers Legislation Amendment (Retirement Age) Bill 2011. The Opposition does not oppose the bill. The object of the bill is to increase the retirement age from 65 to 72 years for the holders of certain statutory offices under the Director of Public Prosecutions Act 1986, the Crown Prosecutors Act 1986 and the Public Defenders Act 1995. I will not list the individual officeholders as the Parliamentary Secretary has already done so. The bill amends the 2007 bill introduced by the former Attorney General John Hatzistergos, which had as its prime object the removal of what was referred to as lifetime tenure for various Crown law officers.

In 2007 the then Opposition said it agreed that life tenure should be abolished. The only argument that could be seriously mounted against that was that removing life tenure may somehow impact upon the independence of the various officeholders concerned, but that was not accepted by Parliament in 2007. The reasons for not accepting that approach were well set out in a report prepared by the Hon. Greg James, QC, at the request of the then Attorney General, which I will not quote. The 2007 amendments established a compulsory retirement age for the Director of Public Prosecutions and the Solicitor General of 72 years of age. That was said to be appropriate because it was the retirement age for judges and the retirement ages should be consistent. Both officeholders were also members of the Judicial Pension Scheme and those offices therefore do not appear in this legislation.

The 2007 Act introduced a compulsory retirement age of 65 for Crown Prosecutors, Deputy Senior Crown Prosecutors and Senior Crown Prosecutors. That was to restore the position under the Crown Prosecutors Act, which ensured a turnover of prosecutors at an appropriate time, accorded with superannuation considerations and had been supported by stakeholders in consultation with the Hon. Greg James, QC. The legislation also imposed a retirement age of 65 years for the Deputy Director of Public Prosecutions and the Solicitor for Public Prosecutions, which restored the retirement age for those offices that had been contained previously in the Director of Public Prosecutions Act. 5078 LEGISLATIVE COUNCIL 7 September 2011

The 2007 provisions also introduced a retirement age of 65 years for Public Defenders, which reinstated the position that existed prior to 1990. By introducing a retirement age of 65 the 2007 legislation was reinstating a previously existing situation. During the debate at that time the then Attorney General made a couple of interesting points. First, he pointed out that very few prosecutors or defenders worked after they reached the age of 65 and, secondly, that those who wanted to work beyond 65 could do so on temporary appointments. That suggests that the number of people who would be affected by this legislation would indeed be quite small and could be accommodated even under existing arrangements. However, the Opposition does not oppose the bill.

There is perhaps some merit in acknowledging that generally our community is ageing and that there is now a widespread expectation that people will continue to work for longer in the future. There are now government incentives, including within the taxation system, to encourage people to do so. In that context it appears to be less reasonable to arbitrarily cut off people's employment at 65 years of age for the offices subject to this bill. It is quite clear in the case of highly skilled officers and barristers that their skills as advocates do not magically disappear as soon as they turn 65 or, indeed, 66. It is also the case that attaining the age of 65 does not have the automatic consequences that it once did for persons in the public sector, given there are public sector superannuation arrangements. For those reasons, despite this bill not affecting huge numbers of people, it seems, on the face of it, to be a bill that is appropriate not to oppose.

The Hon. NIALL BLAIR [5.07 p.m.]: I support the Crown Law Officers Legislation Amendment (Retirement Age) Bill 2011. I acknowledge that it is good that the Opposition also supports this bill. I acknowledge the analogy of the Leader of the Opposition that people may be able to work longer these days and that maybe the changes in this bill reflect that. Maybe 72 is the new 60, because I think 40 is the new 30— not that I would know about those ages, or 40 anyway, but I look forward to those days. The amendments in this bill will raise the compulsory retirement age from 65 to 72 for a variety of statutory officers and will make the retirement age of those officers the same as applies for the Director of Public Prosecutions, judges and magistrates.

The Leader of the Opposition said that, according to the current arrangements, if some of those officers, particularly the Deputy Director of Public Prosecutions, want to continue working after the age of 65 they can do so by taking a temporary appointment. However, I believe it would be better and would provide more security for these officers to have the ability to continue in their employment in a permanent capacity. The ages for all these officeholders should be the same, given the important and multifaceted roles that they play in our legal system. We need only highlight one example to show how sensible these amendments are. That is, as I have mentioned, the Deputy Director of Public Prosecutions.

It makes little sense for people such as the Deputy Director of Public Prosecutions to be forced to retire seven years earlier than the Director of Public Prosecutions and judges. The deputy director exercises many of the same functions as the Director of Public Prosecutions and the deputy director is currently paid the same amount as a District Court judge. Why then should we have a situation in New South Wales that treats the deputy director as if he or she cannot work until the same age as the director or a judge? There is little if any logical justification for different retirement ages and this bill goes a long way towards rectifying the obvious anomaly that we have in New South Wales.

The bill is about creating consistency for all these officeholders. It is also about removing the other barriers that some of these officeholders may face if they want to continue to work after the age of 65 up until 72. I acknowledge that the Leader of the Opposition has said that the people affected by this bill may be small in number, however—

Mr David Shoebridge: However they're long in the tooth.

The Hon. NIALL BLAIR: Long in the tooth. It is fantastic that we are acknowledging these changes to provide that consistency. Many of our great officeholders have a lot to offer well past the age of 65. It is not an expiry date or a use-by date. If it is their choice to continue working in a permanent role up until the age of 72 then the changes in this bill will allow that to happen. I am sure that the officeholders will make a great contribution up until the day they wish to retire or the age of 72, whichever comes first. I commend the amendments to the existing legislation and this bill to the House.

Mr DAVID SHOEBRIDGE [5.11 p.m.]: The Greens support the Crown Law Officers Legislation Amendment (Retirement Age) Bill 2011. It is a good, practical measure from the Government to extend the 7 September 2011 LEGISLATIVE COUNCIL 5079

retirement age to create uniformity. Those key office-bearers who are often engaged in the litigation process should have the same retirement age as the judges who are deciding the matters brought before them by the Director of Public Prosecutions, the Crown prosecutors and the public defenders. The uniformity of retirement age just makes sense. Not only that, it goes some way towards removing an unnecessary piece of aged-based discrimination on the statute book.

There is a good argument to remove any statutory retirement age for these office-bearers. The Greens would welcome the Government undertaking to review that and to consider whether the removal of statutory retirement ages for these officeholders is merited. Obviously there are different arguments for judicial officers but Crown prosecutors, the Deputy Director of Public Prosecutions and public defenders all have other accountability measures. Given those other accountability measures, some consideration of removing any retirement age would be meritorious and a consultation process and review that considered this issue would be supported by The Greens. Uniformity of retirement age is a good thing. Removing this unnecessary piece of age discrimination is a good thing. There is no doubt that many of these public servants have an enormous amount of valuable experience that they can bring to their task and bring to their public service between the ages of 65 and 72. The Greens welcome this new legislation.

The Hon. MARIE FICARRA (Parliamentary Secretary) [5.13 p.m.]: It gives me great pleasure to support the Crown Law Officers Legislation Amendment (Retirement Age) Bill 2011. As previous speakers have said, this bill aims to amend the Director of Public Prosecutions Act 1986, the Crown Prosecutors Act 1986 and the Public Defenders Act 1995 to increase the retirement age for the holders of certain statutory offices from the age of 65 to 72.

As we now witness increases in life expectancy of Australians it makes little sense to force people to retire at ages when they can still be working and contributing to society. Whether it is in the medical profession, the private legal profession or politicians themselves, people from so many walks of life are remaining active for a far greater number of years. Whereas people used to retire at a standard age in years gone by, nowadays people understand that perhaps working part time or working longer into their adulthood is a positive thing to do psychologically, physically and mentally. It is good to have the flexibility to be able to do so. It is good to see bipartisan support for this sensible bill before the House.

The Australian Institute of Health and Welfare reports that life expectancy for Australians a little over 100 years ago was about 55 years for men and 59 for women. This has changed dramatically with better control of infectious diseases, most of which have been eradicated. Public hygiene has improved and living standards have increased, especially in the earlier part of the twentieth century. Indeed, coming from a background of pharmaceuticals, it is quite interesting to see the longevity of Australians. We are one of the longest-living and healthiest nationalities. That is a great thing. It is not all due to pharmaceuticals. I think it is due to our lifestyle, our multicultural community with its wonderful eating habits, and better education in how to be productive for longer years. Indeed, I am married to a public health physician who lectures me constantly and sends me studies on epidemiology and the latest findings in medical journals.

Even in my own family, my mother-in-law is 95 years old and very active. She does her cryptic crossword and her Sudoku. She has the Sydney Morning Herald anagram done every day before morning tea at Waterbrook Lifestyle Resort. My mother-in-law was a mathematics teacher. She has been contacted by Professor Mary O'Kane, the New South Wales chief scientist and chief engineer, to be interviewed by her department which is trying to promote the study of mathematics to our schoolchildren and to encourage people to become mathematics teachers. So Alice Carless is still very active at the age of 95. I am sure that many legal officers would be in the same position—not quite to the age of 95 but perhaps into their seventies and eighties.

The Australian Institute of Health and Welfare reports that further increases in life expectancy have occurred since the 1970s as a result of reductions in mortality for the over fifties. The latest figures show that a baby boy born in the year 2006 is expected to live to almost 79 years of age and a girl is expected to live to almost 84 years of age. I can say that the pharmaceutical industry would consider those ages to be fairly conservative in its projections of productivity into the future. As a society we need to recognise these changes by ensuring that people can continue to work not only for the benefit of everyone in the community, but also to ensure that as individuals people can remain independent and valued members of this great State regardless of their profession. I commend the bill to the House.

The Hon. JOHN AJAKA (Parliamentary Secretary) [5.19 p.m.]: I support the Crown Law Officers Legislation Amendment (Retirement Age) Bill 2011. The bill will rightly correct the strange situation that exists 5080 LEGISLATIVE COUNCIL 7 September 2011

at the moment with Crown prosecutors and public defenders, amongst others, being required to retire at 65 whilst the people they work and interact with on a daily basis, namely, the judiciary and the Director of Public Prosecutions, are not required to retire until they reach 72 years of age. I was pleased to hear from the Hon. Adam Searle that the Opposition does not oppose this bill.

I thought it might be of use to members to go back to 17 October 2007 when the Crown Law Officers Legislation Amendment (Abolition of Life Tenure) Bill 2007 was being debated in this Chamber. I refer in particular to an amendment that I moved to the bill which sought to increase the retirement age of 65 nominated by the bill to 72 years of age. Hansard recorded that I stated the following at that time:

Deputy Directors of Public Prosecutions exercise the same functions as Directors of Public Prosecutions—for example, determining that no bill of indictment is found. They are paid the same salaries as District Court judges and they appear as counsel in appeals to the High Court and the Court of Appeal. It therefore follows that they should have the same compulsory retirement age as Directors of Public Prosecutions. Many prominent barristers—and I have known a lot in my 30 years in legal practice—are older than 65. They have incredible skills and a huge amount to offer the community. Setting the compulsory retirement age at 65 years will deny many highly qualified applicants eligibility for nominated office. A number of members in this place are older than 65.

The then Attorney General, the Hon. John Hatzistergos, in opposing the amendment I moved, said:

As I said in my speech in reply to the second reading debate, my preference is for all officers to have a statutory retirement age of 65. However, on the advice of the Hon. Greg James QC, the age was lifted to 72 for the Director of Public Prosecutions and the Solicitor General. This mirrors the retirement age for judges as both these officers have status as judges under the judicial pension scheme. The retirement age of 65 years was appropriate for most of these officers prior to 1990.

I then said:

The crucial point is that senior Crown officers should have the same retirement age as the Director of Public Prosecutions and judges. They have the same skills and the same amount to contribute. With respect, the Attorney General's assertion that people continue in office until age 72 only because of superannuation requirements misses the point. We will lose seven years of skill and experience from officers who are told to retire when they still have much to contribute. It is a complete waste of all the skills that they have acquired at government and taxpayers' expense to tell them at age 65, "We've got no more use for you so you should leave; we want you gone." I cannot understand that. I urge the members to give serious consideration to these amendments. We have lost the previous amendment, so we do not have tenure, there will be fixed terms, but at least maintain the retirement age at 72. I thank the members of the Government for listening.

Sadly, of course, the record shows that the amendment was lost and the Government of the day insisted on setting the retirement age at 65. Presumably the previous Government considered in 2007 when it made these amendments that having different retirement ages for various classes of statutory officers made sense and reintroducing the fixed retirement age of 65 that was repealed in the early 1990s was justifiable. However, it should be obvious to anyone that what was appropriate in relation to retirement ages of 20, 30 or 40 years ago is not appropriate now. Increases in life expectancy have led to substantial changes in the way that governments deal with retirees. The age at which people can access the age pension is increasing over the next few years and there is an expectation that people will work longer. We need to ensure that we can facilitate this by not imposing inappropriate retirement ages.

On this basis, it is considered appropriate for judges to retire at 72. What possible justification can there be for forcing Crown prosecutors, for instance, to retire at 65? This bill will ensure that in those statutory offices where it is considered there should be a retirement age it is consistent amongst the officers in question. I congratulate the Attorney General on bringing this bill forward. I believe it repairs what was sadly omitted in 2007 when we had the opportunity to ensure the retirement age was 72 years. I commend the bill to the House.

The Hon. DUNCAN GAY (Minister for Roads and Ports) [5.24 p.m.], in reply: I thank all honourable members for their contribution, fine as they were. I do wonder at the Hon. John Ajaka, who everyone knows is the best Parliamentary Secretary I have ever had—

The Hon. Charlie Lynn: And the most recent.

The Hon. DUNCAN GAY: And the most recent. I wonder at his comment that there are a number of members in this House who are over 65. I was having a problem finding a number of members over 65.

The Hon. John Ajaka: I was quoting what I said in 2007. It was a historical quotation.

The Hon. DUNCAN GAY: That is a terrific save. Well done! I commend the bill to the House. 7 September 2011 LEGISLATIVE COUNCIL 5081

Question—That this bill be now read a second time—put and resolved in the affirmative.

Motion agreed to.

Bill read a second time.

Leave granted to proceed to the third reading of the bill forthwith.

Third Reading

Motion by the Hon. Duncan Gay, on behalf of the Hon. Michael Gallacher, agreed to:

That this bill be now read a third time.

Bill read a third time and returned to the Legislative Assembly without amendment.

ADJOURNMENT

The Hon. DUNCAN GAY (Minister for Roads and Ports) [5.26 p.m.]: I move:

That this House do now adjourn.

MALIGNANT MESOTHELIOMA

The Hon. PETER PRIMROSE [5.26 p.m.]: I wish to bring to the attention of the House a recent research report in the Medical Journal of Australia entitled "Increasing incidence of malignant mesothelioma after exposure to asbestos during home maintenance and renovation". The seven co-authors reviewed all cases of malignant mesothelioma diagnosed in Western Australia from 1960 to the end of 2008. This is a universally fatal disease. The authors categorised the types of asbestos exposure into seven categories: those who had been asbestos miners and millers from Wittenoom; all other asbestos workers; residents from Wittenoom; home maintenance and renovators; other people exposed but not through their occupation; people with unknown asbestos exposure; and no known asbestos exposure.

They found that of the 1,631 people in Western Australia diagnosed with malignant mesothelioma, in 87 cases the condition was attributed to asbestos exposure during home maintenance and renovation. They also found an increasing trend in this category for both men and women. In the last four years of the study, from 2005 to 2008, home renovators accounted for 8.4 per cent of all men and 35.7 per cent of all women diagnosed with malignant mesothelioma. They also found that the latency period for people exposed to asbestos during home renovation was significantly shorter than for all other exposure groups.

There have been three waves in the increasing incidence of malignant mesothelioma since the early 1960s. The first involved workers who had mined or milled raw asbestos or manufactured asbestos products. The second wave involved workers who used asbestos products in industry. There is now increasing concern about the third wave, involving people diagnosed with mesothelioma after short-term or low-level exposure to asbestos in the home or workplace.

Over the next 30 to 40 years, more than 14,000 Australians are expected to develop deadly mesothelioma. Many of these people will be home renovators. Sadly, many of the people exposed will have been exposed as young children, present in the house while their parents worked on renovations. This is happening now. No-one knows the exact number of homes in Australia containing asbestos cement or other asbestos products, but in one survey 63 per cent of homes in the Australian Capital Territory were found to contain asbestos. Asbestos is estimated to be in 70 per cent of homes built before 1965.

Today, large numbers of people in our community are either doing home renovations, visiting other people who are renovating, or going to buildings such as shops where renovations are taking place. Renovating is a common activity—just visit any hardware store on a weekend. Renovations are growing and they are everywhere. As I suspect is the case with most members in this House, I have drilled and sawn various parts of a number of houses that I have lived in over the past 20 or so years. There was often dust. As it was our home, my family was often present. None of us can treat this as something abstract; it is personal. While there is a code of practice for the safe removal of asbestos, it is directed at owners of large buildings or professional asbestos 5082 LEGISLATIVE COUNCIL 7 September 2011

removalists. The code is not directed at small operators, individual tradespeople or home renovators. A national survey of potential asbestos exposure found that most people take no precautions to reduce their exposure to asbestos fibres or dust in their homes.

So what does all this mean for public policy? The first and obvious need is to get the message out to small business and home renovators about the risks they are taking, and the precautions that they need to observe. The public education campaign needs to be consistent, widespread and prolonged. It needs to be coordinated, resourced and promoted through all levels of government, in particular local government. Next, the obvious location for warnings and information in multiple community languages is where home renovators buy their material.

I am aware that the large retail hardware chains have already been asked to participate in warning the public. If they fail to do so, I will be one of those making sure that the public is well aware of their dereliction of responsibility, and I will be urging others to join me. I sincerely hope that the large retailers show goodwill regarding the health of their customers. There are a number of other matters and proposals that I do not have time to detail. The first is that we need to establish a State repository for asbestos waste. We need a system of asbestos safety certificates implemented as part of the normal process of conveying and development approval. And, finally, those who manufactured asbestos have a legal duty of care to warn home owners of the risks of asbestos exposure during home renovations.

HOMOPHOBIC BULLYING

The Hon. TREVOR KHAN [5.31 p.m.]: On 22 September 2010 a young man was seen to jump from the George Washington Bridge into the river below. One week later, on 29 September, the body of 18-year-old Tyler Clementi was recovered from the Hudson River. What brought this young man to a point of such despair that he would jump from that bridge? We know that Tyler was a student and a talented violinist who attended Rutgers University. There he lived in a residential college with a range of other students. In some media reports Tyler was described as "shy and self contained". He was just three weeks into his university career at the time of his death.

Tyler was gay, a fact not disclosed to other students in his residential college, although others, including his roommate at the residential college, clearly knew or suspected he was. Sadly, as it turned out, on the evening of 19 September 2010 Tyler asked his roommate to give him some time alone in the room they shared. His roommate agreed but, using another student's computer, accessed through Skype a webcam he had set up on his own computer in the room he shared with Tyler. The roommate then streamed the video live, and at the same time broadcast to his followers on Twitter feed details of the encounter between Tyler and another young man, "outing" Tyler in the process and humiliating and embarrassing him. Two evenings later, the roommate again used Twitter to "out" Tyler. It was the next day that Tyler took his life.

It would be easy to simply discount this sad incident as another example of the tragedies that beset youth, whether straight or gay, but the facts reveal that Tyler's despair is an all too common event. There is a frightening story of harassment and self-harm amongst gay, lesbian, bisexual and transgender youth in western society. A study undertaken at Latrobe University last year, the results of which are contained in a report entitled "Writing Themselves In 3", reveals some of the frightening facts that confront gay, lesbian, bisexual and transgender youth in Australia. For instance, more than 60 per cent of gay, lesbian, bisexual and transgender youth report being verbally abused because of homophobia; 18 per cent, that is, almost one in five gay, lesbian, bisexual and transgender youths, say they have been physically abused because of their sexuality; schools are the most likely place where gay, lesbian, bisexual and transgender youth experience abuse; almost 70 per cent, that is, more than two in every three, gay, lesbian, bisexual and transgender youths, experience other forms of abuse, including exclusion and malicious rumours.

The most frightening thing arising from these statistics is the effect of that abuse, whether it is verbal or physical, upon the youths who have suffered the abuse. For instance, almost double the number of gay, lesbian, bisexual and transgender youths who experience homophobic verbal abuse, that is, about 40 per cent, consider some form of self-harm compared with those who have suffered no verbal abuse; of those who have suffered physical abuse, the number who consider self-harm is three times higher, that is, over 60 per cent, than those who have suffered no physical abuse; twice the number of gay, lesbian, bisexual and transgender youth who suffered verbal abuse, attempt suicide compared with those who have suffered no verbal abuse; and 4½ times the number of gay, lesbian, bisexual and transgender youths who had experienced physical assault attempt suicide compared with those who have suffered no such abuse. 7 September 2011 LEGISLATIVE COUNCIL 5083

How can we not react to these statistics? How can we allow young people in our society to suffer this abuse, knowing the results can be so tragic? The fact is that young men and women, just like Tyler Clementi, are taking their lives in this country because they feel frightened, abused and unloved. In the wake of the terrible news of Tyler Clementi's death—and, I should add, the deaths of several other young gay, lesbian, bisexual youths at around the same time—two young Australian students sought to do something about this problem. Katherine Hudson, a 17-year-old student from Burwood, and Scott Williams, a student at the University of Western Sydney, joined forces to bring the "Wear It Purple" movement to Australia. Wear It Purple day was held last Friday, 2 September, and it is estimated that students from 200 different schools and universities wore purple to recognise the destructive impacts that homophobic bullying has on the lives of gay, lesbian, bisexual and transgender youths. I take this opportunity to commend Katherine and Scott for their work.

GOVERNMENT LEGISLATIVE PROGRAM

The Hon. LYNDA VOLTZ [5.36 p.m.]: Today I express my dismay at the lack of ticker shown by the Manager of Opposition Business in the House of Representatives in regard to the legislative program of the Federal Government. The Federal Manager of Opposition Business has stated:

The carbon tax legislation is an enormous structural change. The Government's desire to rush this change through Parliament just highlights its desperation.

And what do we find raising the ire of Christopher Pyne? It is that the Federal Government expects a vote on that legislation in the lower House in mid-October. That is a period of seven weeks, four of which are sitting weeks, and the Government expects Mr Pyne and his crew of naysayers to pass legislation. Senator Chris Evans has said:

The Government is determined to pass key legislation by Christmas. We will allow adequate time for debate but we will not allow the Opposition to use delaying tactics.

I have to warn Mr Pyne that he may not wish to pursue this line lest he feel the wrath of his colleagues from New South Wales, who know a thing or two about how long it should take to deal with legislation. A good example is the Industrial Relations Amendment (Public Sector Conditions of Employment) Bill 2011. It was brought on as a matter of urgency on a Thursday afternoon by the Coalition although it was outside the order of precedence.

I do not want the Federal member for Sturt, Mr Pyne, to be accused of being a bit precious. Indeed, some have accused him of being a bit of a prancing poodle, which is very unkind. But he is obviously a sensitive soul so I should forewarn him of the unkind words that members of his own party may throw at him if he continues to follow this reckless path. Whilst he may not believe that in the Federal Chamber four sitting weeks is enough time to debate that legislation, in the New South Wales Legislative Council, where the public sector conditions of employment legislation was introduced, Coalition members believe four hours is more than enough time to debate legislation that fundamentally changes the wages and conditions of 320,000 public servants in this State and removes the role of the Industrial Relations Commission. Some of his colleagues had much to say on the length of debate. The Hon. Duncan Gay said:

On giving instructions for a speech, Franklin D. Roosevelt famously said, "Be sincere; be brief; be seated."

The Hon. Trevor Khan said:

This motion is designed to ensure that our time and resources are not wasted unnecessarily by lengthy contributions. Many other places have accepted the need to control the length of time that people speak.

... However, the simple reality is that we have a responsibility to the people of New South Wales to resolve matters in an efficient and effective manner, and this motion will achieve that.

The Hon. Matthew Mason-Cox said:

It was simply a pathetic, 30-hour demarcation dispute between the left wing of the Labor Party and The Greens ...

The Hon. Dr Peter Phelps said:

Much has been made in this place of the suggestion that the recent debate was the first successful application of the gag in 105 years. However, that motion was moved only in response to the most egregious abuse of parliamentary procedures in more than 170 years. In more than 170 years no person in this place had spoken for more than 4¾ hours, yet in this Parliament, not one but two members spoke for almost six hours.

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Christopher Pyne will do well to heed the remarks of Senator Chris Evans, who perhaps expressed his views in a far more polite manner than have Christopher Pyne's party colleagues. Lest Christopher Pyne invoke the wrath of his party colleagues, the following is an example of what he can expect should he resort to delaying tactics in the Federal parliamentary Chamber. In this Chamber the Hon. David Clarke said:

… but what did the Opposition set out to do during a recent debate? It set out to avoid a democratic vote being taken in this House. Members opposite can be sanctimonious and cute, but that is what they set out to achieve. This place may as well have been surrounded by thugs with guns preventing members of Parliament from voting. The Opposition set out to achieve by delay and time-wasting what thugs would try to achieve by using guns to prevent members of Parliament voting in this Chamber. The objectives are exactly similar.

My advice to Mr Pyne is: Be afraid, be very afraid.

COMMUNISM IN AUSTRALIA

The Hon. Dr PETER PHELPS [5.41 p.m.]: Recently, Senator Lee Rhiannon made the following observation in the Australian Senate:

Over recent months, there has been a revival of cold war rhetoric and McCarthyism style politics with the intent to discredit my work and in turn that of the tens of thousands of Australians who have joined socialist and communist parties. By far the majority of these people were motivated by altruistic values and a desire to serve the best interests of Australia and all humanity.

What a load of codswallop. Communists were not social democrats or small "l" liberals in a hurry; they were murderous thugs who had given their allegiance to Stalin's tyranny and were working tirelessly to undermine Australian democracy. As admitted by Mark Aarons, a person well versed in communism in Australia:

The Soviet Union provided substantial funding and directed the CPA's political strategies for its first 45 years. Communists owed a higher loyalty to Moscow, proclaimed in the interests of the "workers of the world". This led some communists to betray Australia by spying for soviet intelligence.

Historians such as Stuart McIntyre, David McKnight, Andrew Moore, Raymond Evans and Drew Cottle have all sought to downplay this aspect of Australian communism. Like Comrade Rhiannon, to them the radicals were small in number and the reaction against them was, in their view, an overreaction. But that belies the ambitions of the communists, all of whom held an unswerving allegiance to Moscow and, if they had had their way, would have welcomed the imposition of a Stalinist regime upon the nation. The mythology of the Left is that communism would bring peace and freedom, but all practical examples prove otherwise. The dictatorship of the proletariat is still a dictatorship.

When a society is constructed by the imposition of force, those best placed to impose force are the ones who rule. The poets, artists, playwrights or human rights lawyers do not win; it is the piggy-eyed, thick-necked, mouth-breathers who emerge at the top of the pile. Why is this relevant today? Why is this not past history? When the Communist Party of Australia was dissolved in the early 1990s, it did not die. Its members were instructed to join the Australian Democrats, The Greens and the Left of the Labor Party. While the contagion killed the Democrats just as surely as it killed the Nuclear Disarmament Party in the 1980s, it thrived in The Greens. The broad membership of The Greens—quaint folk in Birkenstock sandals and hemp shirts clutching their healing crystals and banging their heads on wind chimes—was taken over by a well-organised communist cadre. From there, the parasitic element used the Greens Party to install its preferred candidates in positions of power. The end result was the elevation of former Senator Kerry Nettle and current Senator Lee Rhiannon.

Communist Party funds, which were substantial due to the receipt of Moscow's largesse and the various benefactions of bourgeois fools who joined the Communist Party of Australia, were transferred to the body called the Search Foundation. That sounds like a nice name, but let us look at the people who make up its board: President Rob Durbridge, who joined the Communist Party of Australia in 1973; Sonia Laverty, who was a member of the Communist Party of Australia; Brian Aarons of the famous communist Aarons family, who worked for the Communist Party in various capacities in the 1970s and 1980s; and Chris Elenor, who joined the Communist Party of Australia in 1975. As difficult as it may be to believe, the Search Foundation held a meeting today in Parliament House. The flyer that was delivered to all our offices states:

Financing the transformation to a zero carbon economy ... Ann Pettifor speaking tour

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Climate Workshop for MPs

Wednesday 7 September, 10-11am Parliament House Macquarie St, Sydney

Sponsored by: Luke Foley ... [and] John Kaye

A communist front organisation is sponsored by Luke Foley. I keep an open mind about Comrade Foley. He strikes me as having a sort of refreshing candour and an enticing naiveté, so he may have been suckered in. However, it strikes me as unbelievable that Dr Kaye—a man on the record in this place as declaring two of his favourite songs to be The Internationale and The Red Flag—would have been unaware of these communist links. The Search Foundation must be added to the tenured radicals in Australia's universities—former communists who attached themselves to the teat of State funding. The names have changed but the agenda remains the same. A Trabant can be painted, but it remains a Trabant.

As for Rhiannon's claims about McCarthyist rhetoric, let the record clearly show that if the Venona Decrypts have not vindicated McCarthy at least they have offered some mitigation for his excesses. As Lenin said, what is to be done? We do not want to hear the communists talk at climate workshops for members of Parliament. If the communists want to say something, they can say sorry for the murder of the Romanovs, for the extermination of the Kulaks, for the Ukrainian famine and Lysenkoism, for the show trials of the 1930s and the gulag system, for the Molotov-Ribbentrop pact, for the Katyn Forest massacre, for stealing atomic secrets and the defamation of Whittaker Chambers, for the Korean War, for the invasion of Hungary, for the invasion of Czechoslovakia, for the defence of Pol Pot, and for the suppression of Solidarity. For all those murdered on the Berlin Wall, they should say sorry. [Time expired.]

THE GREENS COUNCILLORS

Mr DAVID SHOEBRIDGE [5.46 p.m.]: It is terrific to see that The Greens' representation in local government continues to go from strength to strength. The 2008 local council elections in New South Wales delivered a record 75 Greens councillors in New South Wales municipalities from Bega to Byron and Waverley to Orange. It is pleasing that following the recent elections in Wollongong on 3 September two more Greens councillors join that number. Congratulations to Jill Merrin and George Takes, two terrific grassroots campaigners who ran a strong local campaign for a wonderful result on a budget that was a fraction of that run by the Liberal Party in Wollongong. With the vote declared today, Jill and George will now take their place on the newly elected Wollongong City Council—joining, of course, four Labor Party members, four Liberal Party members and three Independents, including an Independent mayor.

These councillors, in the best traditions of local government, will work together on building consensus. It is wonderful that Wollongong has broken the Labor two-member ward gerrymander that brought the council into disrepute. A high burden is placed on these newly elected councillors to take Wollongong in a different direction and to open it to genuine integrity and grassroots and community participation. The two Greens councillors will begin their five-year term with those commitments to the people of the Illawarra in mind. It was wonderful also to see on Monday 5 September another Greens mayor, with Lyle Kennedy elected as the first Greens Mayor of Ashfield. Lyle joins Greens mayors in two adjoining municipalities: Fiona Byrne in Marrickville and Rochelle Porteous in Leichhardt. A strong Greens connection in Ashfield, Marrickville and Leichhardt shows a real community of interest and respect for what The Greens bring to local government in those municipalities.

Of course, they join other Greens mayors across New South Wales, Murray Matson in Randwick and Jan Barham in Byron Bay. A record five councils are now headed by Greens mayors across New South Wales. Having The Greens on council means the local community can expect at least one, perhaps two or maybe more strong advocates for open and accountable planning decisions. It means that the local environment will take centre stage in council thinking, rather than being an afterthought. Having The Greens on council puts residents at the heart of decision-making by encouraging direct participation in subcommittees and through active engagement with residents in council decision-making.

Another remarkable factor when we look at the success of The Greens in local government is that once an area elects a Greens councillor they almost always elect a Greens councillor again, and we see the number of Greens councillors increase over time in the municipalities where they are elected. In 2011 we have a record 76 Greens councillors across New South Wales, and at the same time we have a record five Greens mayors in 5086 LEGISLATIVE COUNCIL 7 September 2011

New South Wales. The Greens are looking forward with real enthusiasm to the local council elections in 2012 to continue to grow The Greens representation at the local level and to deliver grassroots sustainable and ethical government across local councils in New South Wales.

BOYCOTT, DIVESTMENT AND SANCTIONS CAMPAIGN

Reverend the Hon. FRED NILE [5.51 p.m.]: I wish to speak on a serious development: the boycott of Jewish businesses, particularly of the Max Brenner chocolate and coffee shop in Melbourne's QV Centre. In July members of the Socialist Alternative organisation demonstrated at the Max Brenner coffee and chocolate store because they said the Jewish-owned franchise company had aided the Israeli army—a claim that I reject totally. Thirteen men and six women were taken into custody after an altercation with police, and 16 were charged and bailed. The charges included assaulting police, riotous behaviour, besetting the premises and trespass. Jewish Labor member of Parliament Michael Danby called the protest "stupid". He is reported as saying in the Herald Sun:

These people are prejudiced fanatics who should look into their own soul. ... While 1,500 people are murdered in Syria, they launch their own sad little attack on a chocolate shop because it has stores in Israel.

I condemn these protests. I am very disappointed in The Greens. Information I have received indicates that The Greens New South Wales State Council has agreed to back a series of military, trade and services boycotts of Israel through the boycott, divestment and sanctions movement. The Greens New South Wales Senator Lee Rhiannon said:

Delegates from our Greens local groups across New South Wales announced proposals as a way to support Palestinian self determination and to help bring peace to the people of Israel. We are hoping that the Greens backing of the BDS movement will win more Australian support for this action.

I condemn the Social Alternative organisation and I condemn The Greens, a recognised political party, for putting their support behind these attacks on legitimate businesses operating in New South Wales and in other States. I commend the Hon. Walt Secord, a member of this place, who has called on the Minister for Police and Emergency Services to provide assurances regarding the protection of businesses with Israeli links in light of recent boycott, divestment and sanctions protests. The Hon. Walt Secord, a former Australian Jewish News journalist, asked a series of questions in this House, including what measures the Government was taking to protect businesses and patrons affected by actions such as the demonstration outside the Max Brenner shop. He also asked about the status of two arrests on that evening and whether the Government had plans to respond to similar incidents. The Hon. Walt Secord is reported as saying:

With the BDS gaining support the New South Wales Government and the police Minister must ensure that companies with an Israeli connection are protected and not unfairly targeted.

... BDS is part of a worldwide attempt to isolate Israel, to boycott Israeli products, creativity, programs and culture. It has reached Australia and that is of concern. I vehemently oppose the BDS campaign.

I commend the Hon. Walt Secord for taking a strong stand in this regard. We all recall what happened to the Jewish people in Germany prior to World War II with the first attacks on Jewish businesses. Jewish businesses were targeted, big "Js" were written on the windows, and stormtroopers stood in front of the shops stopping anyone from entering to conduct business. This then escalated to physical attacks on the shops, with windows smashed and so on. I am not suggesting that that will happen in Australia—I sincerely hope it will not—but when you target legitimate businesses in this way, tempers flare and anything can happen. I believe everybody should step back from the boycott, divestment and sanctions campaign. It should be scrapped. We should become involved in dialogue, not confrontation that will damage the unity and harmony of our nation.

Question—That this House do now adjourn—put and resolved in the affirmative.

Motion agreed to.

The House adjourned at 5.56 p.m. until Thursday 8 September 2011 at 11.00 a.m.

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