14400
LEGISLATIVE COUNCIL
Wednesday 6 June 2001 ______
The President (The Hon. Dr Meredith Burgmann) took the chair at 11.00 a.m.
The President offered the Prayers.
FIRST HOME OWNER GRANT AMENDMENT BILL
CRIMES LEGISLATION AMENDMENT (EXISTING LIFE SENTENCES) BILL
Bills received.
Leave granted for procedural matters to be dealt with on one motion without formality.
Motion by the Hon. Michael Egan agreed to:
That these bills be read a first time and printed, standing orders be suspended on contingent notice for remaining stages, and the second reading of the bills be set down as orders of the day for a later hour of the sitting.
Bills read a first time.
LEAVE OF ABSENCE
Motion by the Hon. Richard Jones agreed to:
That leave of absence be granted to the Hon. Alan Corbett until the adjournment of the House for the winter recess.
NATIONAL PARKS LAND CLEARING
Motion by the Hon. Ian Cohen agreed to:
1. That, under Standing Order 18, there be laid on the table of the House by 5.00 p.m. on Tuesday 19 June 2001, and made public without restricted access, all documents in the possession, custody and power of,
(a) the Department of Land and Water Conservation,
(b) the Minister for Land and Water Conservation,
(c) the National Parks and Wildlife Service,
(d) the Minister for the Environment,
(e) TransGrid, and
(f) the Minister for Energy,
in relation to the recent clearing or overclearing of land in the Brindabella, Namadgi and Kosciuszko national parks, Bago State Forest, Bimberi nature reserve and associated land in the Brindabella Valley, committed by TransGrid or their contractors.
2. That an indexed list of all documents tabled under this resolution be prepared showing the date of creation of the document, a description of the document and the author of the document.
3. That anything required to be laid before the House by this resolution may be lodged with the Clerk of the House if the House is not sitting, and unless privilege is claimed, is deemed for all purposes to have been presented to or laid before the House and published by authority of the House.
4. Where a document required to be tabled under this order is considered to be privileged and should not be made public or tabled:
(a) a return is to be prepared and tabled showing the date of creation of the document, a description of the document, the author of the document and reasons for the claim of privilege, 6 June 2001 LEGISLATIVE COUNCIL 14401
(b) the documents are to be delivered to the Clerk of the House by 5.00 p.m. Tuesday 19 June 2001, and:
(i) made available only to members of the Legislative Council,
(ii) not published or copied without an order of the House.
5. (1) Where any member of the House, by communication in writing to the Clerk, disputes the validity of a claim of privilege in relation to a particular document, the Clerk is authorised to release the disputed document to an independent legal arbiter, for evaluation and report within five days as to the validity of the claim.
(2) The independent legal arbiter is to be appointed by the President and must be a Queen’s Counsel, a Senior Counsel or a retired Supreme Court judge.
(3) A report from the independent arbiter is to be lodged with the Clerk of the House, and:
(i) made available only to members of the Legislative Council,
(ii) not published or copied without an order of the House.
BILLS UNPROCLAIMED
The Hon. Carmel Tebbutt tabled a list of all legislation not proclaimed 90 calendar days after assent as at 5 June 2000.
PETITION
Woy Woy Policing
Petition expressing concern about the proposed loss of general duties police officers from Woy Woy Police Station and praying that the House seeks the assistance of the Minister for Police to reinstate those police officers, received from the Hon. Michael Gallacher.
UNIVERSITY OF SYDNEY: DISALLOWANCE OF BY-LAW
The PRESIDENT: The question is, That the motion proceed forthwith. Precedence agreed to.
Reverend the Hon. FRED NILE [11.09 a.m.]: I move:
That under section 41 (1) of the Interpretation Act 1987, this House disallows the University of Sydney Amendment By-Law 2001 published in Government Gazette No. 93, dated 1 June 2001, pages 3042-3044. I thank the House for allowing me to move this disallowance motion and for allowing honourable members to express their views on this important matter. This Parliament passed the University of Sydney Act, which established the university. In addition, elected representatives from both the Legislative Assembly and the Legislative Council are members of the university's senate. I have moved this disallowance motion so that members of the Legislative Council can express their views on this matter. No matter how it is described, the objective of the by-law is to sack the highly respected and esteemed Chancellor of the University of Sydney, Dame Leonie Kramer. I have moved this motion in my own right, not at the request of any person, including Dame Leonie Kramer. I believe that an act of injustice is occurring and that the House should disallow this by- law and allow the senate—where there are obviously differences of opinion—to resolve this matter in an adult manner, calmly and fairly. This by-law should not be used as an axe over the head of the chancellor. If this disallowance motion is defeated the anti-chancellor faction in the senate will move a no confidence motion at the next two senate meetings, which will automatically sack Chancellor Dame Leonie Kramer, who was democratically elected, unopposed, in 1999. I understand that Dame Leonie Kramer has indicated that she is willing to resign in her own time—the date given to me at a briefing this morning by Mr Burrows was March 2002. The question is whether this House should pre-empt the normal transition of events that would bring about a happy resolution rather than a bloody resolution if this disallowance motion were defeated. If Dame Leonie Kramer resigns in March 2002 it will allow a transition to a new Chancellor of the University of Sydney. Honourable members who vote against this disallowance motion and who support the by-law will, in effect, take part in overturning the democratic process whereby, in open elections, Dame Leonie Kramer was 14402 LEGISLATIVE COUNCIL 6 June 2001 elected Chancellor of the University of Sydney. She was elected as deputy chancellor in 1989 and held that position until 1991. She was first elected as chancellor in 1991, she was re-elected in 1995 and she was re- elected unopposed in 1999. Members of the Australian Democrats and members of other parties who pride themselves on our democratic processes—as I hope some members of the Labor Government do—know that Dame Leonie Kramer was democratically elected as chancellor and should be allowed to complete her term of office or, if she wishes, resign at a time of her own choosing.
If this disallowance motion is defeated and Dame Leonie Kramer is finally sacked it will cause massive damage to the reputation of the University of Sydney. Honourable members have already heard reports of the impact of the debate in the senate and about divisions in fund-raising efforts by various members. Corporate funding and donations and other sources of income are an important part of modern universities; it assists them to operate in a competitive environment. If the chancellor is sacked it will affect the attitude of potential students. Currently the University of Sydney is one of the few universities that is flooded with applications by students—an acknowledgment by students of the high standard and efficiency of the university, and the chancellor plays a very important part in that reputation. Dame Leonie Kramer has played an important part in that reputation for virtually her lifetime through her involvement as a staff member, as deputy chancellor and then as chancellor.
If my disallowance motion is defeated, I can only imagine the climate and atmosphere at the next two senate meetings when someone moves a no confidence motion in the chancellor and it is voted on. How on earth do people who are backing this by-law think that it will calm down the environment at the university and the senate? I believe it would create even further harm and hurt not only Dame Leonie Kramer but also other members of the senate. I do not want the reputation of the university damaged. I am a former student of the university. I appreciated the university, accepting me as an adult matriculation student. I left school at 15, but I was allowed to study at the university, where I passed philosophy 1 and ancient history 1. That gave me a tremendous amount of self-confidence, and that enabled me to continue with further studies. I appreciate the University of Sydney opening up its heart and doors to me. I do not want anything done to harm the university or the reputation of Dame Leonie Kramer.
Dame Leonie Kramer acts in an honorary capacity and receives no salary, as far as I know. I understand that she works virtually every day at the university. She gives her heart and soul to the university. She is an outstanding female academic in Australian history. I am sure the President and other female members of this House are aware of how difficult it was in the early 1950s and 1960s for women to achieve prominent positions in the academic world at the university. Dame Leonie Kramer broke through what people often call the glass ceiling at the university. She served as chair from 1968 to 1989; she served as a fellow of the senate from 1969 to 1974, and then later in 1989. She served as a senior lecturer and associate professor of the University of New South Wales from 1958 to 1968, before moving to the University of Sydney. Even though she has made those great achievements as a woman, obviously some other women do not appreciate her because she does not perhaps fit into the label of a radical feminist. Despite that, radical feminists must admire her tenacity, ability and achievements.
The most difficult question is: Why has this regulation been brought before the Parliament by a faction opposing the chancellor? This morning I had a briefing from Mr Burrows, who supports her retention, and a briefing by others who feel that she should move on. I have still not been provided with a clear answer as to why we are facing this situation. A number of lies and untruths have been published in the newspapers. I read that she was criticised for not giving an honorary doctorate to the retiring Governor-General, Sir William Deane. I understand the reason for that was because he had already received an honorary doctorate from the University of Sydney. If that is the case, the media has certainly been beating up stories to try to create support for moving Dame Leonie Kramer from her position. Dame Leonie Kramer's strong style of leadership has also been criticised. Even though the chancellor has a figurehead role and chairs the senate, she is still expected to give leadership. I am sure that if the chancellor were an insipid, weak person people would argue that she should be removed because she is a weak leader. It seems strange to me that she has been attacked because she is exercising her strong leadership abilities.
I have been a member of the council of the University of Wollongong—it is equivalent to the senate of the University of Sydney—for four years. I have learnt through that role that the person with the responsibility of running the university is the vice-chancellor. The vice-chancellor really is the chief executive officer of the university. The position of chancellor is an honorary, unpaid position and the occupant serves as chairman of the senate, when it meets, and of various committees. What are the real reasons for overthrowing a democratic election? There are no clear answers. There are many suspicions. It has been raised in the media that the action 6 June 2001 LEGISLATIVE COUNCIL 14403 is because of Dame Leonie Kramer's conservative views, especially her support for our current Commonwealth Constitution, often described as a constitutional monarchist's position.
I strongly support our Commonwealth Constitution because it has worked so effectively, and I see no valid criticism in Dame Leonie Kramer holding a similar, strong position. Obviously, that has alienated people with republican views, particularly those in the Australian Labor Party, which has adopted a republic as party policy. Apparently, members of the ALP, either appointed by the Government or appointed by this House, constitute a large group within the university senate. Dame Leonie Kramer has been criticised for her conservative values. The Student Representative Council [SRC] said that in its open letter to the Daily Telegraph which was printed in the 4 June issue. The SRC said:
This chancellor imposes her convictions on others, impinging on the rights of students to express their dissent.
We know of no attempts by Dame Leonie to suppress student dissent. The students went on to say:
The chancellor is an inappropriate figurehead, being out of touch with the values and standards of most students.
I am sure if the Student Representative Council were to elect the chancellor, we would have not Leonie Kramer but probably some sort of pot-smoking, radical, swinging chancellor. I am sure that the university in the long run needs someone like Dame Leonie Kramer. I received another suggestion from Associate Professor Robin Woods, who says that this move is designed to change the relationship between the chancellor and the senate. Associate Professor Robin Woods said in her letter to me of 31 May:
In my view it is important to preserve a degree of separation of the powers of the Senate and the Chancellor. Chancellors of the university of Sydney should be free in all circumstances to discharge their duty to the University of Sydney.
I would appreciate it if you could intervene in this matter. I have suggested that as an alternative the Academic Board of the University of Sydney, which represents the wider academic community of the University, could be a suitable body from whom to seek advice.
I leave the matter in your hands.
Yours sincerely,
Associate Professor Robin Woods AM
I have not approached the Academic Board of the University of Sydney, but that is something that the senate should consider when, hopefully, this by-law is defeated and the disallowance motion is carried. The senate could then conduct further negotiations and discussions with the Academic Board and also with the management of the university, which, through the vice-chancellor and the academic heads and full-time staff of the university, run the university. I do not seek to suggest that the senate is unimportant, but in many ways it rubber stamps proposals that are thoroughly worked out by the management of the university.
I say that because the senate meets once a month and obviously cannot control every detail that affects the university. Therefore, the senate must place a degree of trust in the recommendations and motions brought to it, in the main, by the vice-chancellor. So let us not be manipulated in this controversy. Let us disallow this regulation and let the senate, as mature adults, resolve its differences. There are differences of opinion, but they can be resolved. I will be calling for a division on the vote on this disallowance motion. I trust that all members of the House will support the motion and thus allow the university to resolve its internal affairs without involving the Parliament of New South Wales.
The Hon. JOHN HATZISTERGOS [11.24 a.m.]: Four issues are raised by this debate. First, why has the university senate acted in the way it has? Second, what processes have been adopted, in light of the concerns raised, to resolve the current impasse between the chancellor and the majority of the senate? Third, what is the legality of the steps that have been taken by the senate? Fourth, what are the consequences from here? Let me make it clear from the outset that when I was selected by this House to represent it on the senate of the University of Sydney I indicated to the Minister that I had some high regard for Dame Leonie Kramer. I said that only from material I had read and from a peripheral knowledge of her at times when I was a student at the university. Indeed, in the first year, as I observed the operations of the senate, I had no particular cause for unease at the way things were being handled, although there was an autocratic style in the way that she conducted the business of the senate. What particularly concerned me, however, were events that occurred approximately 12 months ago. I was concerned when this Parliament received the fourth volume of the Auditor-General's report of 14404 LEGISLATIVE COUNCIL 6 June 2001 its review of chief executive officer contracts. As part of that review, universities were examined to ascertain whether legislative requirements, policies and practices had been complied with. As part of the review, all of the universities had their vice-chancellors' contracts reviewed. Unbeknown to me at that time, the Chancellor of the University of Sydney, notwithstanding the clear provisions of the Public Finance and Audit Act, refused to provide the contract of the vice-chancellor of the university to the Audit Office. The University of Sydney was alone in taking that view. As a consequence that university was the subject of adverse criticism at pages 7 and 35 of the report presented by the Auditor-General to this Parliament.
Those concerned about fundraising for the university should consider the consequences of an adverse Auditor-General's report in relation to that particular issue and in relation to various other control issues of which the university had charge. Mr Burrows, who spoke to Reverend the Hon. Fred Nile this morning, was the chairman of the finance committee at the time that those reports were being presented to this House. I was concerned about the impact of those comments on fundraising and I wanted to know what occurred. Consequently, at the senate meeting which took place on 11 September I asked what had occurred, how it came to be that there was an Auditor-General's report of that nature, and why there was a refusal to present the vice- chancellor's contract to the Audit Office. We are not talking about some terrorist organisation; we are talking about the Audit Office of New South Wales.
The Hon. Greg Pearce: Point of order: The Hon. John Hatzistergos is giving the House details of the proceedings of a meeting of the senate of the University of Sydney. I am not aware that those matters are in the public arena. Therefore, I ask that the honourable member produce evidence to establish whether those matters are in the public arena, to ensure that he is not breaching the privilege of the senate of the University of Sydney.
The Hon. JOHN HATZISTERGOS: The matter has been widely canvassed in the media and so on. There is no big issue about it. Dame Leonie Kramer wrote a letter to the Sydney Morning Herald on 22 May about this very issue.
The PRESIDENT: Order! The House must accept the word of the member that the matters are in the public domain.
The Hon. JOHN HATZISTERGOS: At that meeting the chancellor informed the senate, and me in response to a question, that the university did not fall under the Public Service Act and accordingly she was not obliged to provide that information to the Auditor-General. This view she repeated in the Sydney Morning Herald of 22 May 2001. That view is clearly wrong. It is a view that I cannot accept. I will not subscribe to a policy whereby the university is obfuscating or frustrating the Auditor-General's Department in its proper review functions. This was not the end of the problems of the university; this was the beginning. Subsequently, I wanted to ascertain what notice the university had had of these adverse comments being made about it, and what opportunity it had to correct the record or to take action to prevent those adverse comments occurring.
I communicated with the Auditor-General's Office to find out what notice the university had been given. I found out that on 15 August 2000 Mr Henderson of the Audit Office advised the university that adverse comment would be made with respect to the university's failure to provide the vice-chancellor's contract. I also found out that on 17 August 2000 the chancellor was informed of Mr Henderson's comments and that all other universities had co-operated with his review, and that that fact had been notified to her. That very same day there was a meeting of the finance committee of the university. Nothing was said to the finance committee on that day about the fact that the university was to be adversely criticised in the report to Parliament. Let those who talk about fundraising and problems with fundraising explain away the problems that the university has when it goes out into the public with an Auditor-General's report that makes comments of such a critical nature. One could think we had something to hide. At a meeting I asked the chancellor why the contract was not provided. I was told that there was nothing in it that should concern me, apart from a relatively small amount of money that the vice-chancellor was being paid. I was told that it was not the business of the Auditor-General. A lot of people happen to disagree with that statement. At no stage following any of these events was the senate or the finance committee informed of those matters. Mr Burrows, who was chairing the finance committee and also the remuneration subcommittee, repeatedly requested a copy of the contract of the vice-chancellor—the same contract that the chancellor would not provide. A numbers of meetings were held, and I do not intend to go through them all, but on numerous occasions Mr Burrows asked for a copy of the contract. That resulted in the finance committee carrying a resolution requiring the production of that contract and information relating to the vice-chancellor's current remuneration package, including performance loadings 6 June 2001 LEGISLATIVE COUNCIL 14405 and bonuses. That information finally came in the form of a letter on 29 November 2000, which was presented to the senate on the first occasion on 4 December 2000. I mention these facts because they are important. Three months prior to that—just after the Olympics—several fellows received calls to the effect that we should renew the vice-chancellor's contract. I asked, "What is the contract of the vice-chancellor? Where is the contract of the vice-chancellor? What is he currently receiving and what is his remuneration?" We had no information.
Reports were presented to the senate asking us to agree to a process so that we could renew the vice- chancellor's contract. No information was given to us as to our obligations. I was considerably uneasy about the process, the way in which this matter was being advanced, and the fact that the chancellor, at a number of meetings, said that we had obligations to renew the vice-chancellor's contract. She wanted us to sign off on a contract and palm off the remuneration package to a small committee. However, she would not give me a commitment that that committee would report back to the senate about the proposed remuneration package.
Honourable members can go on about this matter as much as they like, but that is where the lack of trust started. That is where we were headed. This process began with the Auditor-General's report and negotiations were held in relation to the contract. Towards the end of the year there was clear frustration about the process. When we finally received the letter from Mr Prosser, director of financial services, about the remuneration package—the letter was tabled at a senate meeting—we found out that the package was in the vicinity of $700,000 to $730,000. Honourable members should remember that the chancellor told me the only thing that was in the contract was the relatively small amount that the vice-chancellor was receiving.
What was the Auditor-General looking for? He was not interested in the amount of remuneration. He wanted to find out whether the senate had signed off on the benefits that the vice-chancellor was receiving. The contract did not provide for anything like bonuses to be paid to the vice-chancellor. At the end of that year we found out that not only bonuses and performance loadings were paid to this vice-chancellor, but that those things had never been authorised under the contract or signed off by the senate. That is where the lack of confidence started. There was frustration as a result of the obfuscation of the Auditor-General and in relation to the senate seeking information. We could not proceed further as information was being received drip by drip.
Honourable members might say, "Why did you have to go down that path? Why could you not have had a discussion with the chancellor? Why could you not try to resolve this issue amicably?" I will tell honourable members about some of the events. We held many private and confidential meetings with the chancellor. Before this matter became a media circus, 19 fellows of the senate endorsed a request to the chancellor telling her to retire. Nothing happened. She took four months to tell us in response to that request that she would not go. She said that she needed time to think about it. She had four months to think about it and she then said that she would not go. Now she is telling us that she will go in the first few months of next year.
What will the senate do if this motion is knocked over? Will we, in a state of paralysis, continue to hold meetings at which important decisions are not resolved by the senate as this issue is constantly being raised? The vice-chancellor's renewed contract to which we are committed has still not been resolved. The issue relating to the Museum of Contemporary Art, the property of the university, has still not been resolved.
The Hon. John Johnson: I move:
That the honourable member's speaking time be extended.
I move that motion in the knowledge that the honourable member is the representative of this House on the senate. The House is entitled to know the facts.
The PRESIDENT: Order! There is no provision for one member to seek to extend the time for speaking of another member. However, the member himself can seek leave to continue speaking. The Hon. JOHN HATZISTERGOS: I seek leave to extend my speaking time. The Hon. Patricia Forsythe: What additional time is the honourable member seeking? Is he seeking an additional five or 10 minutes? The Hon. JOHN HATZISTERGOS: I will speak for about five minutes.
The PRESIDENT: Order! The honourable member sought leave to continue speaking. Leave remains until it is taken away. 14406 LEGISLATIVE COUNCIL 6 June 2001
The Hon. John Jobling: I refer to the business of the House as it relates to disallowance. Is the honourable member speaking on behalf of the Government, as Leader of the Government in this case?
The Hon. Ian Macdonald: No, I will be doing that.
The Hon. John Johnson: The Parliamentary Secretary is not a member of the senate of the university.
The PRESIDENT: It might help if the member asked for an extension for a specific amount of time.
The Hon. JOHN HATZISTERGOS: I seek an extension of five minutes.
Leave granted.
I refer honourable members to a meeting which took place on 12 March 2001, at which the senate considered this question. In February, before this matter was taken up by the media, we attended meeting after meeting in an attempt to achieve an amicable solution to this problem. At the meeting on 12 March the vice- chancellor was specifically asked about what happened. He was asked whether there were any discussions with the chancellor about her future plans. He indicated that he did not dispute the assumption that he had had a conversation with the chancellor when he reiterated to her the question of retirement in accordance with the senate's expressed preferences. That conversation with the chancellor is recorded as follows:
The chancellor said that she found the situation distressing and asked for patience until she could make a proper decision regarding the university and herself, which was a matter of timing. She understood that this was unsatisfactory and she regretted the fellows were unhappy and that the issue of her retirement had become a public matter. In response to an invitation to raise any issues that she wished to discuss, the chancellor said that there were forward commitments that she was reluctant to break. She suggested that she and the VC could meet especially in light of advice and the media interest.
As I said earlier, it took us until May to get an answer from the chancellor that she was not going to go. After that we then set up the by-laws committee to establish what process should be followed. This process is not the one that we wanted to pursue. We would have preferred it if the chancellor had gone herself. She should have accepted the fact that we had a broad cross-section of representatives—staff representatives, students, parliamentary representatives, representatives appointed by the Minister, and general staff representatives. Some distinguished people were among those representatives.
We are not talking about some Labor cabal; we are talking about a broad cross-section of senior people in this State who had asked the chancellor to go. She refused to respond to those sorts of requests. We had no choice. We cannot continue operating in this way—being in continual paralysis; holding meeting after meeting; and being hijacked in this fashion with decisions not being able to be taken. People ask, "Has process been followed in this matter?" We have received legal advice from Mr Alan Robertson, SC, and we have received advice from Mallesons. The vice-chancellor received his own legal advice from Baker and McKenzie, which indicated that there was a legal basis for the way in which we proceeded. That is the way in which we have chosen to act as it is consistent with the Act.
There was some suggestion that perhaps we should have an inflated majority, for example 75 per cent. Mind you, in Dame Leonie's case it would not matter what the inflated percentage was. You would need about a 95 per cent majority to be able to save her. In this instance we were advised that we could not do it because the University of Sydney Act does not allow for votes beyond an ordinary majority of the votes of the fellows. Accordingly, we asked ourselves what proper safeguard could be employed. We chose to have two successive no confidence motions. In other words, a group of fellows could not turn up at one meeting and, on the basis of a temporary majority, turf out the chancellor. They would actually have to be able to maintain that majority at two ordinary meetings—not special meetings—of the senate. That would ensure some proper safeguard for the position of chancellor. Similar provisions operate at Cambridge University and at the University of Melbourne. The Hon. Patricia Forsythe: Never used. The Hon. JOHN HATZISTERGOS: We hope we, too, never have to use it, but we have not been confronted with chancellor who will not go, who will not accept the fact that 19 out of 22 members of the senate asked her to go. Anyone else would have accepted the tap on the shoulder and moved out. What will she achieve if she remains? She says she is going to stay until the beginning of 2002. For what purpose? How many forward commitments does she have? What does it matter, to send a person as chancellor of the university to various functions representative of no-one? One does not have to be Einstein to work out that by her behaviour in this process this woman has lost the confidence of the senate. 6 June 2001 LEGISLATIVE COUNCIL 14407
Associate Professor Arnold and the Dean of the Faculty of Medicine, Professor Stephen Leeder— people who could hardly be described as raging radicals—say she must go. The response to this is: let us leave this indecision and instability to continue. The time has come for the university to be allowed to get on with the job that I am sure it is capable of doing. The time has come to knock over this disallowance motion. As I said, it would be extraordinary if the motion were carried. It would be the first time Parliament ever interfered in the affairs of a university.
The Hon. PATRICIA FORSYTHE [11.39 a.m.]: It is ironic that as we debate this disallowance motion today the University of Tasmania has just completed a reform process to put that university on corporate governance lines, at a time when it has reduced its senate from about 24 to 17 members and has taken away a number of appointed positions, including members of Parliament. We would have greater confidence in the direction we are taking if the university had embarked on a broader process. The issues for me are not the problems that we face today. They relate to the ad hoc way we are dealing with this rule and the way the university senate has embarked on the process. This is, without any doubt—and indeed it is acknowledged—a rule change that is based around the dismissal of an individual rather than based in broad principles. We do our best when we ground our decisions in principles rather than in an ad hoc response to a problem, as this is, by seeking to sack an individual.
I turn now to the issues and the reasons that the Opposition will support the motion today. Let me say by way of background that I do not know Dame Leonie Kramer; I have met her perhaps only four times in my life. I have had two telephone conversations with her in the past three weeks, for obvious reasons. I owe no personal allegiance to Dame Leonie Kramer. I do not believe that this is some sort of conspiracy by republicans against monarchists. Most people know that I am a proud advocate of Australia being a republic. I regard all those things as red herrings, as irrelevancies, but there are some simple principles.
I have mentioned the name of the chancellor, but this issue is not about the person, it is about principles and about the position of chancellor. Today we are being asked to change the rules after a person has accepted appointment as chancellor for a fixed four-year term. The senate does not like the decisions that have been taken and seeks to rewrite the rules. This would be like the Government rewriting the rules to get rid of members of the crossbench who have been elected to this place for a fixed term because it does not like the complexion of the Legislative Council.
The Hon. John Hatzistergos: Do we do that?
The Hon. PATRICIA FORSYTHE: No, we do not. When we did change some terms of appointment— The Hon. Helen Sham-Ho: It is the same as what the Deputy Leader of the Opposition said about the life sentencing legislation. The Hon. PATRICIA FORSYTHE: No, that does not deal with an individual; it deals with a broader classification. This is a question of shifting the goalposts. If one has to make these decisions one does it at the time a person is appointed to a position. Let me refer to the issue of the simple majority, because that is of great concern to members on this side of the House. It is proposed that by a simple majority the chancellor may be dismissed. That of itself causes problems. The Hon. John Hatzistergos, who is a member of the senate, said that the senate took advice on the two-thirds majority. It would satisfy some people that there is a safeguard in the system, because the simple majority is 11 people. Of that 11, four are appointed by the Minister and two are elected by Parliament, leaving six members who are not elected to the university process. Many people are concerned that the position of chancellor could be exposed to the whim of the senate, and, more particularly, to political influence from outside. As I said, it is interesting that Tasmania, in its modernisation and new approach, has removed parliamentary representatives from the senate. It is important that we keep this in mind, because if a university should ever be beholden to the political whim of the day, the autonomy of that university would suffer. I will return to that shortly. Not everybody is in support of the position taken within the university, as the Hon. John Hatzistergos suggested. I cited correspondence from an academic who expressed concern that going down the path of the simple majority would compromise the chancellor's independence in dealings with the senate and make him or her beholden to a particular group. The Hon. John Hatzistergos says it is for this reason that the university has not enacted such a by-law in the past 150 years. We must never allow a situation to develop where a chancellor, because of this by-law, could be beholden to a particular group, and that would be a potential outcome if this by-law is endorsed. 14408 LEGISLATIVE COUNCIL 6 June 2001
The other issue that concerns the Opposition is the haste in which the law was made. We know, from the timetable that was admitted this morning, that the by-law committee was convened at 7 a.m. on a Friday to agree on the by-law, and it went to the senate the following Monday. Numerous people from inside the university have phoned me to say that in the past such a by-law would have been widely canvassed with the academic group and students and staff generally. It would certainly not have been proposed on a Friday morning and voted on the following Monday. The haste with which the law was made has raised suspicions about the whole process. It has been the basis of many of the emails, telephone calls and correspondence that I have received from people within the university expressing their concerns.
I have thought long and hard about university autonomy. I have a strong commitment to universities. I play a role in the alumni foundation of my university, and I believe strongly in the role and autonomy of universities. As a vice-chancellor from another university said to me this week, usually it is not a question of the university getting what it wants. He said there is usually considerable argy-bargy between universities and officials of the Department of Education and Training before a by-law is made, before the regulation appears in the Government Gazette. At the end of the day it is often the result of compromise. To suggest that this is challenging the autonomy of the university is absolute nonsense. In a letter to the Minister for Education and Training dated 28 May the Chancellor of Charles Sturt University wrote:
If such an amendment were to be made to the By-law of The University of Sydney, then an unfortunate precedent would be set for the other universities in this State, with the attendant risks of demeaning the Office of Chancellor and destabilising the governance of a university through the capricious actions by vested interests.
The vice-chancellor is not concerned that the Parliament or, indeed, the Minister, had perhaps chosen not to accept the by-law as proposed by the university. He is not saying that this is an attack on the university's autonomy. He is saying that if we go down the path of making this law he believes that other vice-chancellors will regard it as a destabilising influence in terms of the governance of a university. As we know, once one university has a by-law in place there is a tendency in this State to make the by-laws of all the universities remarkably similar. The vice-chancellor of Charles Sturt University is saying that that university does not want this by-law in place.
At the end of the day we have a shifting of the goalposts. A decision has been made to change the terms of the chancellor's appointment after she has accepted the appointment. If the position of chancellor is to be changed, it should be changed at the time the person takes up the appointment. We have the potential for a simple majority when at least six members of the senate are appointed, not elected. The law has been hastily made, while many people have said that there should have been time for consultation, as always occurred in the past and as is the precedent of the University of Sydney. The autonomy of the university is at issue— [Time expired.]
Ms LEE RHIANNON [11.49 a.m.]: The Greens do not support the disallowance motion. This debate goes to the heart of the democratic processes in this State. The Greens believe that independent governance of our universities is fundamental to our democracy, and that there is a need for greater transparency and accountability in the running of our universities. The key to these processes being put into place is the right of our universities to determine their own destiny. It is crucial that this Parliament respect the independence of the University of Sydney.
Records going back 30 years indicate that this Parliament has never overturned a by-law drawn up by a university in this State. I understand that it is generally held that a by-law of a university has never been overturned. As a member of the council of the University of New South Wales I have some appreciation of the complexities of running a university. However, whatever problems exist at any level in our universities, there is no justification for this disallowance motion. Problems within the senate are best solved by the senate. This House has no place interfering with the running of Sydney university.
From the contribution of the Hon. John Hatzistergos and from what I have heard from other representatives on the senate of the University of Sydney, it is clear that the senate is in a state of paralysis. All this House should do is wish the senate all the best in solving its dispute. We have no place in blocking the attempts of the senate to deal with the problems with which it is confronted. This motion reflects poorly on the mover, Reverend the Hon. Fred Nile, who again has shown that he will go to extreme lengths, in this case attempting to use the Parliament to interfere in the operation of the senate to shore up support for his conservative outlook. The Greens will vote against this motion. 6 June 2001 LEGISLATIVE COUNCIL 14409
The Hon. HELEN SHAM-HO [11.51 a.m.]: The motion moved by Reverend the Hon. Fred Nile states:
That under section 41 (1) of the Interpretation Act 1987, this House disallows the University of Sydney Amendment By-law 2001 published in Government Gazette No. 93, dated 1 June 2001, pages 3042-3044.
I am in a difficult position in terms of how to vote on this motion because it involves many issues. I am a graduate of the University of Sydney so I think it is a great university. Historically, it was the first university established in New South Wales. The name of our State is at stake if the university is not governed properly. At the end of his speech Reverend the Hon. Fred Nile used the words "without involving Parliament", and that is exactly what Ms Lee Rhiannon said. It is a sad day when we have to interfere in the governance of the university. We should respect its independence. First, this motion is unnecessary and, second, the Parliament should not be involved in the governance of the university. However, in a sense I am glad that Reverend the Hon. Fred Nile moved the motion because it has enabled honourable members to voice their views on an important issue.
The amendment made to the University of Sydney by-law will allow the senate to remove the chancellor after passing a motion of no confidence at two consecutive meetings. Currently, section 10 (1) of the University of Sydney Act 1989 gives the senate the power to elect a chancellor of the university, and section 10 (2) states that the term of the chancellor is not to exceed four years. The university senate has the power to elect a chancellor, but until now it has not been able to dismiss a chancellor. The ability for a university's governing body to remove a chancellor is not totally unprecedented; although no other university in New South Wales has the power to remove a chancellor, the University of Melbourne has this provision in its by-law. Removing a chancellor is a very serious matter and it should be debated in this House. That is why I am pleased that the honourable member moved this motion. Crossbench members had an opportunity to hear the contrasting views of two senate members, Mr Peter Burrows and Ms Renata Kaldor, in two separate meetings, both of which I attended. Mr Burrows felt that the amendment to the by-law has been put through in haste and has been motivated by personal vindictiveness. He feels that there has not been due process and that the chancellor has not been given procedural fairness. As the Hon. John Hatzistergos said, there have been many meetings with the chancellor, and I believe that legal advice has already been sought. The view of Ms Kaldor is quite different. She believes that the senate cannot function properly without this amendment being approved. She also pointed out that 17 members of the senate signed a letter of no confidence in the chancellor. In my view this is the crux of the issue: The senate feels that it can no longer function with the current chancellor, and that is why it is urgent that the by-law be approved. As Ms Kaldor stated in a meeting with members of the crossbench, the senate has not been able to deal with any other business for a long time now— since August last year—although the matter was made public by the media only in March this year. Like most universities in Australia, the University of Sydney is self-governing. However, it is subject to the Parliament under the University of Sydney Act 1989. Once the senate has voted on an amendment to the by-law the Governor of New South Wales must give her assent, the Minister for Education and Training must approve the by-law and it must sit in the Parliament for 14 days until it becomes law. On 14 May this year 13 members of the university senate voted for an amendment to the by-law which allows the senate to remove the chancellor. This amendment passed as only five members voted against the amendment, with three members absent. As honourable members already know, both the Governor of New South Wales, Professor Marie Bashir, and the Minister for Education and Training, the Hon. John Aquilina, have given their approval to the senate's amendment to the by-law. I am personally fond of the chancellor of the University of Sydney, Dame Leonie Kramer. I admire her strength of character and her intellectual capacity. As honourable members know, I have had a long association with her as we are both signatories to the monarchist cause. At all times during this period I have had the highest regard and respect for her. She has a commitment to the university and she has convictions. However, it is clear that the University of Sydney senate has become dissatisfied, unhappy and frustrated with the chancellor's management style. It is apparent that this amendment has been moved by the senate members as a last resort. Ms Kaldor said that the senate does not want to embarrass, intimidate or do anything to the chancellor. As I said, for months the senate has been frustrated in its efforts to gain information from the chancellor on various issues. A recent much-publicised controversy has been the renewal of Professor Gavin Brown's position as vice-chancellor of the university. The chancellor requested that the senate renew Professor Brown's contract while refusing to tell the senate what salary the vice- chancellor received. This resulted in criticism from the Auditor-General in Parliament, as mentioned by the Hon. John Hatzistergos. 14410 LEGISLATIVE COUNCIL 6 June 2001
I believe that transparency in decision making is essential in ensuring that public institutions remain accountable. It is clear that the university senate has lost confidence in the chancellor's ability or style to chair the senate in a manner appropriate to its functions. I have had experience as a parliamentary representative on three university governing bodies and I have worked with four chancellors who have all been very co-operative.
Pursuant to sessional orders business interrupted.
QUESTIONS WITHOUT NOTICE
______
FIREFIGHTERS DEATH AND DISABILITY INSURANCE
The Hon. MICHAEL GALLACHER: My question without notice is to the Minister for Industrial Relations. When was the last time he met with firefighters to discuss death and disability cover? What action has he taken to address the issues that have been raised by firefighters?
The Hon. JOHN DELLA BOSCA: The honourable member's question should have been addressed to the Minister representing the Hon. Bob Debus, who is the Minister responsible for employment of firefighters. I will refer the question to the Minister for his answer.
The Hon. MICHAEL GALLACHER: I wish to ask a supplementary question. Will the Minister give an undertaking to arrange a meeting with representatives of the Fire Brigades Employees Union as a matter of urgency?
The Hon. JOHN DELLA BOSCA: Further to the answer I have given already, it is a matter for the Minister responsible for the employment of firefighters. The Minister has carriage of the management of discussions that have been taking place between the Government and the fire brigades.
GENERAL RECREATIONAL FISHING LICENCES
The Hon. AMANDA FAZIO: My question is directed to the Minister for Fisheries. What information is available about the implementation of the recreational fishing licence?
The Hon. EDDIE OBEID: The New South Wales Government is managing this State's fisheries in a sustainable way so that future generations can continue to enjoy this community-owned resource. We have also taken steps to ensure that this resource can be shared more equitably between commercial fishers and anglers. Since 1998 recreational freshwater fishers have contributed $2.5 million a year to better freshwater fishing through the freshwater licence. The Carr Government reintroduced this licence fee at the request of anglers.
I am pleased to advise the House that there has been a great response to the new recreational fishing licences, which were introduced on 23 March. In this financial year alone, 177,862 licences have been sold. This has contributed $4.1 million to this State's recreational fishing trusts, which are overseen by anglers. In the two months following 1 March when licences for saltwater fishing went on sale, more than 95,000 people bought licences. More than 52,000 anglers opted to buy one-year licences while more than 11,000 people bought three- year licences in the same period. Nearly 5,000 people took the convenient option and bought their new licences over the phone. I thank recreational fishers for their support of the New South Wales recreational fishing licence. The outstanding awareness of this new licence is due to this Government's extensive educational campaign in the lead-up to the introduction of the licence. Indeed, New South Wales Fisheries staff reported that over the Easter break the compliance rate among North Coast holiday-makers, even at that early stage, was as high as 80 per cent. This included anglers and their families who were holidaying from other States. This means that interstate tourists are hearing our message and they also are supporting our efforts to create better recreational fishing in New South Wales. Freshwater fishers are also showing great responsibility. Over the Easter break New South Wales Fisheries staff in the far west of the State did not find one angler who was without a licence. Yet despite these terrific results the Coalition complains that educating anglers is a waste of money. This Government is not burying its head in the sand hoping that the problem of managing our fisheries will go away. Money raised by the new recreational fishing licence is already helping to better protect this important resource. 6 June 2001 LEGISLATIVE COUNCIL 14411
I am pleased to inform the House that funding has been approved for further education of anglers and will include the purchase of $46,000 worth of advisory signs at boat ramps and favourite fishing spots. The signs will provide anglers with information on the licence, bag and size limits and other regulations. The sum of $60,000 has been approved for stage 1 of the expansion of the highly successful fish care volunteers program. Until now the fish care volunteers program has only been available to freshwater areas, where 65 enthusiastic anglers are working with the local communities.
Despite the misinformation that has been spread by the Opposition, the introduction of the fishing licence has not led to a fall in Government funding for New South Wales Fisheries. Without commenting on the budget for the next financial year, I can say that the Government has increased its funding for fisheries conservation management every year for the last six successive years. In fact since this Government came into office in 1995, the Fisheries portfolio has been given more resources than ever before. In the Coalition's last budget, they provided a paltry $18 million to manage the resource and to protect fish habitats. [Time expired.]
MARKET IMPLEMENTATION GROUP DIRECTOR FUNCTIONS
The Hon. DUNCAN GAY: I direct a question without notice to the Treasurer. Why have certain functions under the Electricity Supply Act 1995 been transferred by regulation to the Director of the Market Implementation Group [MIG] when the contract for MIG expires in less than a month? Will the Minister for Energy have any role to play after the delegation of these functions to the Director of the Market Implementation Group? Will the Market Implementation Group continue to work for the Government beyond the end of June this year?
The Hon. MICHAEL EGAN: I thank the Deputy Leader of the Opposition for his question. I must admit that I do not know the answer to it, so I will refer it to my colleague the Minister for Energy.
The Hon. Duncan Gay: You should. You are one of the shareholders.
The Hon. MICHAEL EGAN: But I am not the Minister for Energy. It is a different role. That is a good question. I must compliment the House because it seems to me that today members finally understand the new sessional orders and the types of questions they are entitled to ask. That is a good question and I will get a good answer to it.
MANNING DISTRICT POLICING
The Hon. JOHN TINGLE: My question without notice is addressed to the Treasurer, representing the Minister for Police. Is it a fact that a community meeting attended by more than 360 people was held at Taree on 1 May to discuss a crime wave in the Manning district? Did that meeting call for the strengthening of the police presence in Taree and rostering to make sure that adequate police are on duty at night and on weekends? Will the Minister consider asking the Commissioner of Police to visit Taree to investigate the real police strength and the expressed concerns of the community and, if necessary, adjust strength and rostering to meet the proper policing needs of the area?
The Hon. MICHAEL EGAN: The Hon. John Tingle was going well until right at the end and then he started to engage in argument. As it was just in the last couple of words, I will let it pass this time, but he should be careful. The honourable member's question was in three parts and my answers are: first, I do not know; second, I do not know, third, I will ask the Minister. I will also refer the other two parts of the question to the Minister for a reply.
BUSINESS BRIEFINGS PROGRAM
The Hon. TONY KELLY: My question without notice is addressed to the Treasurer. How successful has the business briefings program been?
The Hon. Michael Gallacher: That is argumentative, but I guess that depends on how you look at it.
The Hon. MICHAEL EGAN: The question is asking for an opinion. Madam President, I am not inclined to answer that question. I will not take a point of order but I am not inclined to answer the question until the honourable member rephrases it in accordance with the standing orders. 14412 LEGISLATIVE COUNCIL 6 June 2001
CITY WATCH PROGRAM
The Hon. Dr PETER WONG: My question is directed to the Treasurer, representing the Premier. Is it a fact that the Premier indicated in a ministerial statement on 27 March, in relation to improving police and community co-operation, that the Community Relations Commission will "immediately" commence the City Watch Program, which is intended to bring the police and local businesses together to develop solutions to local crime? Can he explain why as of today, some ten weeks later, there has not been one City Watch meeting? Why has the City Watch membership not been finalised? How can he reconcile use of the word "immediate" with the fact of a nine-week delay?
The Hon. MICHAEL EGAN: I will happily refer the Hon. Dr Peter Wong's question to the Minister for Police, who, I believe, is the appropriate Minister to supply details.
BUILDING THE FUTURE
The Hon. PATRICIA FORSYTHE: My question without notice is addressed to the Special Minister of State, representing the Minister for Education and Training. What action was taken by the Department of Education and Training to advise schools and parents and citizens associations of the correct address for the receipt of Building the Future submissions, following publication of the incorrect post office box address in the original document provided by the department?
The Hon. JOHN DELLA BOSCA: The Hon. Patricia Forsythe's question sounds like it is a very good question. On the surface of it I am sure that if the facts she has presented are correct, then action would have been required, and I am sure that the department and the Minister took that action. I will obtain the detail from the Minister's office and provide it to the honourable member.
LIGHTNING RIDGE OPAL MINING SAFETY COURSE
The Hon. RON DYER: My question is directed to the Minister for Mineral Resources. What action has been taken to improve safety for mine workers in far-western New South Wales?
The Hon. EDDIE OBEID: The safety of all mineworkers, whether they are placed in large operations or work for themselves, is a priority. This Government has provided nearly $14 million for a five-year program to improve mine safety across New South Wales. This is already benefiting those working in the Lightning Ridge opal fields.
Lightning Ridge produces 90 per cent of the world's black opal. Last financial year opal production was worth $39 million to our State. Since 1995 all new mineral claim workers have been required to complete an opal mining safety course. The course is part of the requirements that opal miners must meet for the claim to be granted by the New South Wales Government.
This Government's specific opal mining safety course is a significant step towards improving mine safety at Lightning Ridge. Lightning Ridge has more than 6,000 current mineral claims held by some 3,000 individual miners. Today I am pleased to advise the House that our safety courses have reached a significant milestone. Just last month the 2,000th opal miner successfully completed the Lightning Ridge safety course. This is a major achievement in improving safety in remote mining communities.
The opal mining safety course covers topics such as mine establishment, ground control, legislation, the mining environment, electrical installations, and ventilation and underground surveying. The course offers the benefits of improving knowledge and increasing safety awareness, and has a positive influence on the safety performance of mineworkers. I am pleased to be able to place on record that the course has been an outstanding success in addressing mineworker safety in the remote mining region of Lightning Ridge.
M5 EAST TUNNEL VENTILATION
The Hon. PETER BREEN: My question without notice is addressed to the Minister for Fisheries, representing the Minister for Transport and Roads. Can the Minister inform the House whether he has taken advice about the possibility of legal action over his failure to install filtration in the M5 East emission stack? If the Minister has taken such advice, can he say whether that advice includes an estimate of the cost of legal proceedings? 6 June 2001 LEGISLATIVE COUNCIL 14413
The Hon. Jan Burnswoods: Point of order: Given that General Purpose Standing Committee No. 5 is part way through an inquiry into this matter, I believe that the member's question anticipates the committee's report. It also contravenes the rule relating to questions about proceedings of committees.
The Hon. PETER BREEN: To the point of order: The question relates to certain papers that are before the House. It is not intended to be directed to any proceedings of the committee, which I understood were concluded. The question also relates to a bill that has already been dealt with by this House. In those circumstances I suggest the point of order is not appropriate.
The Hon. Jan Burnswoods: Further to the point of order: The proceedings of the committee are not yet complete, and obviously the committee has not yet reported to this House. Therefore the question infringes paragraph 3 (b) of the new sessional orders relating to questions without notice.
The PRESIDENT: Order! Paragraph 3 (b) of the new sessional orders relating to questions without notice clearly provides that questions must not refer to proceedings in committee not yet reported to the House. The question needs to be rephrased if the member wishes to ask it.
AQUATIC RESERVES
The Hon. JENNIFER GARDINER: My question is addressed to the Minister for Fisheries. What action is to be taken following the public meeting at Lake Macquarie last Monday evening in relation to the proposed aquatic reserve, at which the honourable member for Swansea said that the Minister's discussion paper on aquatic reserves was "clearly flawed" and "inadequate"? Will the Government agree to withdraw and rewrite the discussion paper?
The Hon. EDDIE OBEID: I congratulate my colleague the Hon. Milton Orkopoulos on doing what every member should be doing, that is, meeting with the community and having their public views put on record for an issues paper.
The New South Wales Government has committed to looking at aquatic reserves. We have consulted with all the communities in each area where aquatic reserves will be established. The Hon. Jennifer Gardiner cannot have it both ways. The Government is fulfilling its promise to look at aquatic reserves and nominate aquatic reserves. At all times we have said that we will consult with the community. We will listen to what the community has to say, and we will make our decisions following that consultation.
I congratulate the 300 recreational fishers who turned up at the meeting and expressed a point of view, because that is what it is all about. We will listen to what the community and the scientists have to say, and of course we will make an informed decision after all those issues have been canvassed. Along with our recreational fishing, environmental assessments and everything we do in the fisheries sector, we will consult with the community. It is the community's resource, and they are entitled to their say. That is exactly what Milton Orkopoulos did—he consulted with the community. Members of the community have a view; we have asked them to put their views to the department, and we will consider the issue when those views have been fully expressed. Once again I congratulate Milton Orkopoulos and any other members who work with their local communities to get the public view on record about issues belonging to those communities. The Hon. Michael Gallacher: That was not the public view; that was his view. The Hon. EDDIE OBEID: No, it is the view of 300 recreational fishers— The Hon. Michael Gallacher: No. He said it was clearly flawed. It was his view, not that of the 300 fishers. He said you were wrong. He said it was inadequate. The Hon. EDDIE OBEID: Milton Orkopoulos called that meeting, and that was the view expressed by the community. You haven't got any idea about consultation. Your government never consulted. EXCAVATION WORK CODE OF PRACTICE The Hon. JOHN JOHNSON: My question without notice is directed to the Minister for Industrial Relations. Will the Minister inform the House what has been done to protect construction industry workers involved in excavation work? 14414 LEGISLATIVE COUNCIL 6 June 2001
The Hon. JOHN DELLA BOSCA: I thank the Hon. John Johnson for his question and his ongoing interest in safety in the construction industry. The code of practice for excavation work was developed to prevent injuries to those engaged in excavation work on construction sites, and it provides a practical guide on the planning, preparation and conduct of excavation work.
WorkCover New South Wales followed up on the launch of the code in March 2000 by undertaking a strategically targeted intervention program. The program, which was devised to gauge industry's level of compliance with the code of practice and to raise awareness and application of the code's provisions, commenced with a series of seminars held in locations across New South Wales between April and July 2000.
During November and December 2000, WorkCover New South Wales inspectors visited 148 construction sites where excavation work was taking place and interviewed 192 contractors and subcontractors. The sites were assessed for compliance with the code of practice, and 181 copies of the code and supplementary information packs were distributed.
A questionnaire aimed at capturing industry feedback in regard to the code of practice was also distributed. During the field work stages of the program 195 notices were issued, of which only 64 were for unsafe practices directly related to excavation work itself. The remaining 131 notices were issued for a range of other matters, including electrical safety, induction training and workers compensation compliance. In follow-up visits to the noncompliant sites WorkCover found that only five had yet to comply with the code. Further enforcement measures were put in place in respect to those sites. The completed questionnaires received by WorkCover to date indicate that the code of practice for excavation work is reasonably easy to follow and use, and it produces much safer excavation sites in the construction industry.
ROYAL NORTH SHORE HOSPITAL KIDNEY TRANSPLANTS
The Hon. Dr ARTHUR CHESTERFIELD-EVANS: My question is to the Treasurer, representing the Minister for Health. Will kidney transplants at the Royal North Shore Hospital cease, affecting the provision of kidney transplants for one-fifth of the New South Wales population? What level of public consultation has been conducted to make such a decision? Is the closure contrary to the aims of the metropolitan services group?
The Hon. MICHAEL EGAN: I will happily refer this question to my colleague the Minister for Health. The Hon. Dr Arthur Chesterfield-Evans is always behind the play. I would have thought it would be impossible for anyone who has followed the news in recent days to suggest that there has been no consultation. The Minister for Health has concluded probably the most extensive round of consultation that this country has ever seen.
The Hon. Eddie Obeid: After recreational fishing!
The Hon. MICHAEL EGAN: I don't know because I'm not as familiar with that. I was going to make a comment that would be accurate but would be hurtful to the honourable member, so I will stop there.
OCCUPATIONAL HEALTH AND SAFETY REGULATIONS
The Hon. DON HARWIN: My question is directed to the Minister for Industrial Relations. Did the Minister state in this House on 29 March that the old Occupational Health and Safety Regulations were to be retained for a further three months beyond their planned replacement on 31 March? What action has the Minister taken to introduce these new regulations on or before 30 June?
The Hon. JOHN DELLA BOSCA: I recognise that there has been a long process of consultation about the Occupational Health and Safety Regulation 2001, one that predated my time as Minister, but I have been involved in a number of consultations since I became Minister. WorkCover's drafting process commenced in April 2000, following the initial period of public comment. A revised draft of the regulation was released for a further period of comment on 1 November with a view to its implementation at the earliest opportunity in 2001. WorkCover has distributed more than 12,000 information packages to ensure a proper understanding of the new regulation and has conducted public seminars in many metropolitan and country centres, from Lismore in the north to Albury in the south. In response to the release of the revised draft, WorkCover received 138 written submissions covering both the new regulation and the accompanying code of practice concerning workplace consultation. Overall the submissions were more focused on specific provisions and implementation issues in response to the first period of public comment. 6 June 2001 LEGISLATIVE COUNCIL 14415
In preparation for the regulation, WorkCover initiated a three-tiered approach to the development of information to support it, which included information sheets, guidance material and codes of practice. A tripartite steering group is guiding the development of this material. On 27 March, as the honourable member said, I announced a deferral of the implementation of the new regulation to enable the guidance material and package to be further refined. As any further answer to the question would involve me making a government announcement, I will leave the matter to the curiosity of honourable members for later in the proceedings.
The Hon. DON HARWIN: I ask a supplementary question. When does the Minister intend to introduce these new regulations?
The Hon. JOHN DELLA BOSCA: I am unable to answer that question without making a government announcement. I will ask for the indulgence and patience of honourable members until the near future.
BUSINESS BRIEFINGS PROGRAM
The Hon. TONY KELLY: My question without notice is to the Treasurer. Will the Treasurer provide details of the business briefings program?
The Hon. MICHAEL EGAN: The Business Briefings program was initially launched in October 1998. The program is designed to inform visiting missions, delegations and investors of the strengths of the New South Wales economy and the State's key competitive advantages. Briefings are held in Grosvenor Place at the level 34 Trade and Investment Centre. The presentation is a highly flexible one, and easily customised to meet the needs of specific target audiences through the inclusion of industry-specific and bilateral trade information. For example, briefing slides have been translated into Mandarin for presentation to Chinese-speaking audiences.
For the past 11 months business briefings were formally presented to 83 delegations from 30 countries with more than 1,000 delegates in attendance. Throughout the Sydney 2000 Olympic Games business briefings were held twice daily at the New South Wales Trade and Investment Centre. The briefings attracted members of both the domestic and the international business communities and focused on business, trade and investment opportunities in New South Wales. Since January this year the program has hosted delegations from countries including the United Kingdom, Japan, China, Singapore, India, South Africa and Spain. The fundamental role of the Department of State and Regional Development is to develop the strength of the New South Wales economy and encourage investment. I urge all honourable members, if they are aware of domestic and international delegates visiting Sydney, to take advantage of the facilities.
DHARAWAL COMMUNITY RESERVE TRUST
The Hon. IAN COHEN: My question is directed to the Minister for Juvenile Justice, representing the Minister for the Environment. Will the Minister inform honourable members of the status of the Dharawal Community Reserve Trust? Did the term of the trust expire nearly 12 months ago? Has the trust had any management during that period? Will the Minister transfer the Dharawal reserve to the National Parks and Wildlife Service as part of the Dharawal reserve State recreation area?
The Hon. CARMEL TEBBUTT: I am not sure if this question should be directed in the first instance to the Minister for the Environment or to the Minister for Land and Water Conservation. I undertake to ascertain the appropriate Minister from whom I will seek a response as soon as possible.
ELECTRICITY CHARGES
The Hon. RICK COLLESS: My question is to the Treasurer. Did the Government place advertisements in newspapers at the time that the contestable electricity market commenced operations, which stated:
South eastern Australia will have a single integrated market which promises cheaper electricity and a more reliable supply for the benefit of all electricity customers.
What action has been taken to ensure that contestable customers will continue to enjoy cheaper electricity? Have contestable customers now been offered new contract prices that are up to 200 per cent more expensive than previous contracts? 14416 LEGISLATIVE COUNCIL 6 June 2001
The Hon. MICHAEL EGAN: If any customer has been offered a new contract at a price 200 per cent higher than a previous contract, I ask the honourable member to supply me with the details of the electricity price that the customer was paying before the reforms in 1995. In 1995 the wholesale electricity price was approximately $53 per megawatt hour. In real terms today that would equate to about $65 per megawatt hour. I would be very surprised if anyone in New South Wales is paying anything like that.
The introduction of the contestable electricity market, together with the oversupply in New South Wales, resulted in electricity prices going from $53 per megawatt hour to a price very much lower than that. Of course, that price was not sustainable. Recently, wholesale prices have returned to more sustainable levels, largely because the mismatch between supply and demand has been sorting itself out. The current prices are about $40 per megawatt hour. That is, in nominal terms, a significant reduction on the $53 per megawatt power that people were paying back in 1995, and an even more significant reduction in real terms because, as I pointed out, in real terms the 1995 price was about $65 per megawatt hour. So the prices that people are paying now, both nominally and in real terms, are much lower than the prices that existed prior to the introduction of the reforms.
The Hon. Duncan Gay: We have given you material that says that is wrong, and you have not answered us.
The Hon. MICHAEL EGAN: You have not given me material that shows that is wrong.
The Hon. Duncan Gay: We have. We gave you material on Molong during the last session.
The Hon. MICHAEL EGAN: Show me what those firms were paying in 1995, before the reforms were introduced. The other point I would make is that New South Wales electricity prices are still considerably below those in the other States. They are much below prices in Victoria and South Australia. One of the great scandals of Australian government in the past five years was the failure of the South Australian Government to proceed with an interconnector between New South Wales and South Australia. The South Australian Government did that because it wanted to ram up the price it got for its privatised electricity industry. It got a few more hundred million dollars, probably $500 million more than it would have had it not constrained supply. As a result, South Australian businesses are paying not $40 per megawatt hour—as businesses are in New South Wales—but $80 per megawatt hour. The only way that prices are going in South Australia is up. Not only are they paying $80 per megawatt hour, but they are constantly suffering brownouts and blackouts. Of course, there will be an election in South Australia about six months before it is due, simply because Mr Olsen cannot bear to put up with another summer of the people of South Australia having to suffer the consequences of the scandalous decision that Government made some years ago not to proceed with the interconnector with New South Wales. That is one of the greatest public policy scandals that I have seen in my lifetime, and certainly the greatest I have seen in my time as Treasurer of New South Wales.
SYNCHROTRON RESEARCH FACILITY
The Hon. JAN BURNSWOODS: My question without notice is to the Treasurer, and Minister for State Development. Can the Minister spell synchrotron and explain what one is?
The Hon. Duncan Gay: I think the question is out of order.
The Hon. MICHAEL EGAN: Why?
The Hon. Michael Gallacher: It seeks a scientific opinion.
The Hon. Jennifer Gardiner: It makes the imputation that the Treasurer cannot spell.
The Hon. John Jobling: Well, if he cannot spell synchrotron, he will not find it in the dictionary he is looking at.
The Hon. MICHAEL EGAN: I have not found it in the dictionary, but I think from memory it is spelt phonetically: S-Y-N-C-H-R-O-T-R-O-N. I can indeed tell the House what one is. I cannot say that I fully understand the technical details of it, but I understand the significance of a synchrotron. It is a very sophisticated research facility. In fact it is a giant particle accelerator which produces x-rays with special qualities such as extreme brightness and short wavelengths. 6 June 2001 LEGISLATIVE COUNCIL 14417
The Hon. Michael Gallacher: It sounds like you.
The Hon. MICHAEL EGAN: Yes, it does, doesn't it? It is very kind of you to say that.
The Hon. Michael Gallacher: Extreme brightness.
The Hon. MICHAEL EGAN: I am starting to like you a bit more day by day. Opposition members finally are cottoning onto the new sessional orders and are asking questions that are in order. This brilliant light source allows matter to be "seen" at the atomic scale, permitting improved scientific and technological research. Synchrotron facilities play an increasingly important role in basic research in a growing number of industries, including biotechnology, photonics, mining, agriculture and environmental science. I would like to advise the House that the New South Wales Government has made a formal bid to the Federal Government to establish a synchrotron at the Australian Nuclear Science and Technology Organisation [ANSTO] site at Lucas Heights in Sydney. The Government has been working with our universities and the research and innovation industries on this bid. We believe we have a compelling business case for locating the facility in Sydney. The Lucas Heights site offers sufficient space and a stable foundation for this facility; proximity to likely users; research synergies generated by its proximity to the ANSTO facility; and ready accessibility from Sydney airport.
The Hon. Duncan Gay: Have you spoken to Genevieve Rankin about this?
The Hon. MICHAEL EGAN: I saw Genevieve Rankin last night.
The Hon. Duncan Gay: She is one of your persuasion.
The Hon. MICHAEL EGAN: No, she is not. She is not a member of the Australian Labor Party.
The Hon. John Della Bosca: She left us ages ago.
The Hon. Michael Gallacher: Along with Peter Woods.
The Hon. MICHAEL EGAN: Peter Woods was expelled prior to his joining the National Party. The Victoria and Queensland governments also have submitted bids for this project. However, because of the fact that Lucas Heights is an established research site, more than $11 million could be saved by constructing the synchrotron there. Similarly, opportunities to make use of existing services and staff at Lucas Heights could cut annual operating costs of the synchrotron by some $2 million.
The Hon. Duncan Gay: That is a very good idea.
The Hon. MICHAEL EGAN: It is an excellent idea. In addition, over half of the Australian users of synchrotron facilities are based in New South Wales or the Australia Capital Territory. That is a very significant factor, I believe. Denis Wade—perhaps I should call him Professor Denis Wade—Chair of the New South Wales Innovation Council and Managing Director of Johnson & Johnson Research, will be assisting the New South Wales Government in its bid to secure this important investment. It makes sense for this facility to be built in New South Wales. I think ANSTO is an ideal location for it. [Time expired.]
THREDBO AND PERISHER VALLEY LOCAL GOVERNMENT VOTING RIGHTS
The Hon. MALCOLM JONES: My question is to the Minister for Mineral Resources, representing the Minister for Local Government. Is it the fact that citizens living in Thredbo and Perisher Valley do not have full voting rights in local government elections? What action will the Minister take so that in future locals are given the right to participate? The Hon. EDDIE OBEID: I will seek an answer to the honourable member's very important question and come back to the House with an appropriate answer. HIH INSURANCE The Hon. JAMES SAMIOS: My question is to the Special Minister of State. Did the Motor Accidents Authority recommend that the Australian Prudential Regulatory Authority [APRA] appoint an inspector to monitor HIH Insurance, or appoint its own inspector to monitor HIH Insurance, following its meeting with APRA last year? 14418 LEGISLATIVE COUNCIL 6 June 2001
The Hon. JOHN DELLA BOSCA: I think I have already given an answer to this question. The account that I gave to the House recently indicated that the Motor Accidents Authority and APRA had had a number of meetings, and that on one occasion the Motor Accidents Authority had indicated contemplation about putting an inspector into HIH Insurance to look at the business from a compulsory third party point of view.
I think I said to the House on Thursday 31 May that the Manager of the Motor Accidents Authority advised me on 6 November that the authority was concerned about the ability of FAI and CIC to meet their long-term liabilities in relation to compulsory third party policies issued prior to the joint venture. As I said in the House on that day, the Motor Accidents Authority was advised by a senior officer of APRA that APRA would prefer it if the Motor Accidents Authority did not make such an appointment at that time.
HORSERACING INDUSTRY OCCUPATIONAL HEALTH AND SAFETY
The Hon. JANELLE SAFFIN: I direct my question without notice to the Special Minister of State, and Minister for Industrial Relations. Will the Minister inform the House what occupational health and safety improvements have been made in the horse racing industry?
The Hon. JOHN DELLA BOSCA: As a result of concerns raised by the Australian Workers Union with WorkCover's consumer services industry reference group, a special working party has been established to address safety issues relevant to the thoroughbred racing industry. That working party, which is chaired by the chief executive officer of the New South Wales Thoroughbred Racing Board, will examine the approach to occupational health and safety in the industry and the resources which need to be developed to ensure that employers are able to meet their obligations under occupational health and safety legislation.
WorkCover's consumer and business services industry team is working with the consumer services industry reference group to assist the working party. Other members of the working party include representatives of the New South Wales Thoroughbred Racing Board insurance organisation, the Australian Jockey Club, the Australian Workers Union, the New South Wales Jockeys Association, the Australian Trainers Association, the New South Wales Country Racing Council and the Sydney Turf Club. The working party has already begun its deliberations and a plan of action has been developed. That will involve a program comprising two stages—an awareness raising stage followed by a series of seminars.
The object of this initiative is to ensure that participants in the thoroughbred racing industry are acquainted with occupational health and safety legislation and are educated in the relevant requirements and how they can be complied with. Additionally, the consumer and business service industry team is working with industry to assist it to meet its occupational health and safety obligations and to address safety concerns—for example, lighting on racetracks. The team also continues to address complaints as they arise and investigate injuries in the industry.
NO-TAKE MARINE RESERVES
The Hon. RICHARD JONES: I ask the Minister for Fisheries: Have 115 of Australia's leading marine scientists now backed the scientific consensus statement on no-take marine reserves signed by 161 of the world's leading marine scientists? Is it the considered scientific view that large no-take marine reserves have spillover effects when the size and abundance of exploited aquatic species increase in areas that are adjacent to reserves, and that reserves have increased populations regionally of allowable exports? Do marine reserves benefit both marine populations and those who wish to exploit marine resources, including both commercial and recreational fishers? What are the Minister and the Department of Fisheries doing to explain to fishers, both recreational and commercial, the urgent need for and the tremendous benefit of large no-take marine reserves?
The Hon. EDDIE OBEID: The Hon. Richard Jones has a commitment to protecting this important natural resource. No doubt the New South Wales Government is also committed to conserving marine biodiversity and the ecologically sustainable use of marine resources. One of the main tools available to conserve marine biodiversity is marine protected areas. Marine protected areas are coastal, estuarine or oceanic areas that are managed to conserve biological diversity. They may range from small, highly protected areas that focus on ecological community protection to large, multiple-use areas that include complex ecosystems and habitats.
The New South Wales system of marine protected areas comprises three distinct types, namely, marine parks, which are large areas designed to conserve biodiversity and zoned to allow a range of uses; aquatic 6 June 2001 LEGISLATIVE COUNCIL 14419 reserves, which are generally smaller areas designed to conserve biodiversity as well as meeting specific fisheries management objectives, such as habitat protection; and marine extensions of national parks or nature reserves. The establishment of a representative system of marine protected areas in New South Wales is well under way. Each type of marine protected area can incorporate a range of zones from sanctuary zones, where no harvesting is allowed, to general use zones, where a range of activities are permitted, provided that they are ecologically sustainable.
Sanctuary zones would normally be applied only in areas with sensitive natural features, high conservation value and natural or cultural significance. Other restrictions might also apply in sanctuary zones, for example, restrictions on the use of anchors to protect corals and other fragile organisms. Currently, 15 locations in New South Wales are reserved as sanctuary zones. Sanctuary zones enable marine communities to exist with minimum disturbance. Passive uses, such as diving and observation, are normally permitted. These highly protected areas would serve as reference areas for approved studies by scientists who want to compare disturbed and undisturbed sites.
Sanctuary zones in aquatic reserves rely on the same underlying principles as those proposed for marine parks, but as aquatic reserves are smaller in area and are developed for a range of specific management objectives, they are not generally created as pure sanctuary areas. Of the 22 proposed aquatic reserve sites included in the consultation paper released by New South Wales Fisheries on 8 May, only Cabbage Tree Bay at Manly is proposed for declaration as a total sanctuary area. In many instances sanctuary zones will not be needed to meet the specific management objectives for reserves.
For example, recreational line fishing is unlikely to impact heavily on seagrass beds and mangroves in estuaries, so reserves declared specifically to protect nursery habitats need not stop line fishing. In such reserves the management of harmful activities, such as anchoring or hauling, may be all that is required. Sanctuary zones have a place in protecting sensitive areas but they are not the only way to protect delicate marine ecosystems. All management options need to be considered.
INSURANCE COMPANIES REGULATION The Hon. JOHN RYAN: My question without notice is directed to the Special Minister of State. Has the Minister in the past two years received any representations from HIH Insurance or FAI regarding the regulation of the insurance industry, either in the context of the Wallis inquiry or proposals by the Australian Prudential Regulatory Authority for new solvency standards, or in some other context? If so, what was the nature of those representations? The Hon. JOHN DELLA BOSCA: When the new Motor Accidents Authority legislation was being debated, negotiated and discussed, I met on a number of occasions with all insurers and prospective insurers in the Motor Accidents Authority scheme. On a number of occasions—I would say on at least five or six occasions during that time—I am sure, but I cannot specifically nominate, representatives of FAI and CIC were in the room. On a number of occasions I received representations in the general sense that they were amongst a group of insurers putting their point of view in relation to the Motor Accidents Authority scheme at meetings which I attended. I refer to the specific question of whether written representations have been made to my office or to the Motor Accidents Authority. I will have to take that component of the honourable member's question on notice and advise him subsequently as I have no specific recollection of receiving any representations in relation to those matters from HIH or any of its subsidiaries. However, I am happy to have the files and records examined and I will provide the honourable member with an answer to that component of his question. Members of the Opposition must understand, as members on the crossbenches and Government members understand, that the collapse of HIH appears to be as a result of an inaccurate valuation of assets and liabilities, bad underwriting decisions and lines of business other than compulsory third party insurance. As I have previously explained to this House, the Motor Accidents Authority has no power or authority to regulate the prudential position of general insurers across all lines of business. That is the responsibility of the Australian Prudential Regulatory Authority. COBHAM JUVENILE JUSTICE CENTRE REHABILITATION PROGRAMS The Hon. IAN WEST: My question without notice is directed to the Minister for Juvenile Justice. Will the Minister advise the House what benefits detainees at the Cobham Juvenile Justice Centre derived from their recent participation in a drama production? 14420 LEGISLATIVE COUNCIL 6 June 2001
The Hon. CARMEL TEBBUTT: The question of the Hon. Ian West relates to the importance of the rehabilitation of young detainees at Cobham Juvenile Justice Centre. A large number of young detainees find it difficult to relate to or empathise with others, especially adults and authority figures. Many act compulsively and have difficulty managing their emotions. Many have left school early. One of the major problems young offenders face is a lack of self-esteem. Programs to improve the self-esteem and confidence of detainees is a major part of the approach of the Department of Juvenile Justice to rehabilitation. Improved self-esteem plays a major part in breaking the cycle of reoffending.
As in all other detention centres, education and training play a major role in improving the self-esteem of detainees at Cobham. Cobham detainees have access to a comprehensive structure of rehabilitative and training programs aimed at building self-esteem and confidence. The in-centre school is fully attended and the detainees want to be part of these programs. That is a very positive sign. The programs include lessons specially targeted at boosting self-esteem; a course in anger management for detainees; reinforcement of cultural needs, where appropriate, by visits from Aboriginal elders, or specialists in the application of other cultural values and conditions; the provision of trade training; and recreational activities designed to widen experiences and put detainees in contact with suitable role models.
The Department of Juvenile Justice is always looking at new ways of stimulating young offenders, of building teamwork in a meaningful way and providing an outlet for creativity. Cobham recently provided an example of such a program. I was fortunate to see it at the rehearsal stage. Ten detainees took part in a highly imaginative and innovative production in front of an especially invited audience. Over three nights the centre presented a play entitled Wild Knights. It was the result of a partnership involving the Department of Juvenile Justice, Western Sydney Health and the Erth, a visual and physical artistic performance and production company. It was a bold initiative. The plot involved a team of 10 hand-picked detainees—the Wild Knights— who were on a mission to find the keys to end human suffering and restore law and order in a troubled world.
The Hon. Duncan Gay: The Wild Knights—10 Michaels!
The Hon. CARMEL TEBBUTT: I have to say, the 10 performers had little in common with Michael Knight, except for the spelling of the name. The performers developed their scripts; they wrote the music and lyrics. The music was professionally arranged and produced, and has been recorded on CD. The standard of performance surprised everyone—staff, professional entertainers and the audience alike. That in itself made the project worthwhile. However, it also achieved its main aim, which was to boost the self-confidence and self- esteem of the 10 detainees who took part. The detainees learnt valuable lessons in teamwork, communicating their feelings in a reasonable way, co-ordination and performance. I am advised that it has also resulted in a tangible boost in the morale of other detainees at Cobham.
The Department of Juvenile Justice works in partnership with other government and non-government bodies. I acknowledge the part played by the Hugh Street Youth Health Centre in Penrith in initiating and carrying through the production. It came up with the concept and arranged funding support, particularly through the New South Wales Ministry for the Arts and the Australia Council. I look forward to reporting to the House on further such initiatives in the future. PARRAMATTA CENTRAL BUSINESS DISTRICT SAFETY The Hon. ELAINE NILE: I direct my question without notice to the Treasurer, representing the Minister for Police. Is it a fact that aggressive beggars, drug addicts and hoodlums are destroying business and frightening shoppers in Sydney's second-largest central business district, Parramatta, as reported in the Daily Telegraph? What action is the Government taking to investigate the reports of intimidation of businesspeople? What action is the Government taking to support the safety audit and action plan of the council? The Hon. MICHAEL EGAN: I shall refer the Hon. Elaine Nile's question to the Minister for Police for a considered reply. AUSTRALIAN PSYCHOLOGICAL SOCIETY WORKERS COMPENSATION CONSULTATION The Hon. GREG PEARCE: My question is to the Minister for Industrial Relations. When did the Government last consult with the Australian Psychological Society on workers compensation? What action is being taken to ensure consultation with the society on these issues? The Hon. JOHN DELLA BOSCA: As most honourable members who have turned their minds to the issue are aware, WorkCover is going through a process of consultation to determine a set of medical guidelines 6 June 2001 LEGISLATIVE COUNCIL 14421 to be utilised for the purposes of establishing impairment and other issue within the workers compensation system. It is a matter of public record that those committees have been meeting over the past few days. They consist of highly qualified practitioners in a wide variety of fields of medicine who are examining existing guidelines. Most honourable members are aware of the American Medical Association guidelines, the fourth and fifth editions, which are two of the important global standards being used to develop a set of guidelines for WorkCover's purposes. As I said, those committees have been meeting. All manner of medical and professional associations have been asked to, and indeed have, put views before them. If I were to go any further in my answer or observations in reply to the honourable member's question, I would have to anticipate matters that will be before the House very shortly, so I conclude my answer.
The Hon. GREG PEARCE: I seek to ask a supplementary question. Has the Minister consulted with the Australian Psychological Society on workers compensation?
The Hon. Jan Burnswoods: Point of order: I thought when the last question was asked, and I think even more now given the Minister's comments, that the question is out of order because it anticipates debate.
The Hon. Greg Pearce: To the point of order: The question does not anticipate any sort of policy issue. I asked whether the Minister has consulted . It is a simple question, yes or no.
The Hon. JOHN DELLA BOSCA: No, I have not.
The Hon. Jan Burnswoods: Further to the point of order: The Hon. Greg Pearce, as usual, is very confused. I did not take a point about a policy issue, I took a point about a bill before the House.
The PRESIDENT: Order! The question was in order in that it asked whether a specific meeting had taken place. It came close, however, to discussing a bill that was likely to be before the House in a reasonable time. However, in reference to the specific question about a meeting, the question was in order.
BUILDING AND CONSTRUCTION INDUSTRY LONG SERVICE PAYMENTS SCHEME
The Hon. JOHN HATZISTERGOS: My question without notice is directed to the Special Minister of State. Will the Minister inform the House about the performance of the long service payments scheme for the building and construction industry?
The Hon. JOHN DELLA BOSCA: I thank the honourable member for his longstanding interest in building and construction industry long service payments. The most important aspect of the payments scheme is that it is meeting its objective of providing a portable long service benefit to workers in an industry that is largely itinerant and casual. More than $245 million in benefits has been paid to workers since the commencement of the scheme in the 1970s, and another $300 million is held in investments waiting for workers to make claims. In the 10 months to 30 April, in this financial year, over 7,100 payments have been made to workers, totalling $30 million. Currently, more than 280,000 workers are registered in the scheme and over 30,000 employers are on the record. The scheme is the largest of similar schemes that now exist throughout Australia. It has industry-wide support and the benefits provided are at the forefront of the various schemes.
A national reciprocal agreement allows industry employment in other States and the Australian Capital Territory to count towards accrual of a long service benefit. The agreement effectively provides a national benefit for workers in the industry who move between States. National reciprocal arrangements consequently provide a further benefit for workers, and they serve as a model of national co-operation. The New South Wales scheme provides to workers in the building and construction industry long service benefits that workers in other industries take for granted. The scheme fully protects an important component of worker entitlements notwithstanding the economic circumstance of the industry and financial viability of individual employers. It also provides opportunities for workers to take additional holidays or a break in employment, as well as providing a safety net of moneys when times get tough in the industry.
The latest actuarial investigation of the scheme shows not only that the scheme is financially secure but also that the levy rate to fund the scheme can continue at the current low level as has been maintained since July 1997. The Long Service Payments Corporation, as the administrator of the scheme, is seen by the industry and its membership as fair, friendly and professional. The corporation provides statewide access and assistance by way of a 1300 telephone hotline service for the cost of a local call from anywhere in the State, with nearly 100,000 calls received each year. It also provides a face-to-face service across the State by a small and mobile 14422 LEGISLATIVE COUNCIL 6 June 2001 field force providing education, advisory services and audit services. I assure the House that the portable long service payments scheme for the building and construction industry is delivering its intended outcomes and should continue to do so for many years to come.
The Hon. MICHAEL EGAN: If honourable members have further questions, I suggest they put them on notice. I do have some good news: For the first time in 216 years the Times in London has editorialised in favour of the election of a Labour government. The Times is following the trend here because last week, for the first time in its history, the Sydney Morning Herald applauded a Labor budget. That is a first in the history of the Sydney Morning Herald and in the history of the Australian Labor Party, either federally or in New South Wales. It is a great achievement.
Questions without notice concluded.
[The President left the chair at 1.03 p.m. The House resumed at 2.30 p.m.]
UNIVERSITY OF SYDNEY: DISALLOWANCE OF BY-LAW
Debate resumed from an earlier hour.
The Hon. HELEN SHAM-HO [2.30 p.m.]: Before debate was interrupted for question time I was saying that I have served on three university governing bodies with four chancellors whom I have found to be co-operative. In my experience it is impossible for university councils or governing bodies to work for the good of the whole university unless there is open communication and co-operation between the chancellor and members of the governing body, which in this case is the senate. Before I conclude my remarks, I wish to emphasise that if I do not support the motion moved by Reverend the Hon. Fred Nile it is nothing personal against Dame Leonie Kramer, who is a fantastic lady. She deserves the highest honours and she has done tremendous work for the whole of her life. We recognise that she did that for the community as well as for the university. I know that Ms Renata Kaldor and the senate wanted to honour her for her work and the commitment she has made to the University of Sydney. However, it is in relation to the issue of respecting the self- governance of the university and the perceived proper functioning of the senate that I cannot support the motion moved by Reverend the Hon. Fred Nile. I hope that the senate will resolve the matter in a proper manner.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [2.31 p.m.]: This situation is very unfortunate. I am a former student of Dame Leonie Kramer. When she was a professor of Australian literature at the university, I was studying there. I have great respect of her scholarship, perception and humanity. She summed me up rather more astutely than I would have liked by saying, "You are quite a good student but really should do a lot more work. You do just enough to get by, don't you?" I said sheepishly, "Yes, that's about the size of it." Some unpleasant allegations have been made, particularly relating to the Auditor-General and the vice- chancellor's contract. I understand that Dame Leonie Kramer suggested that the Auditor-General should not look at the contract, presumably on the basis that the university is federally funded and because the university is not part of the New South Wales public service. I gather that the senate took offence at this in the sense that Dame Leonie Kramer did not tell the senate that she had been asked about the contract by the Auditor-General and was making a decision, as she saw it, on a simple administrative matter. However, the senate thought that the matter was important enough for the senate to have been told. Perhaps Dame Leonie Kramer was wrong but certainly one can see her point of view. I gather that Dame Leonie Kramer went through a process of checking with people whether they thought the vice- chancellor was doing a good job. It seems that he is, but one could argue about the transparency of the process. There may very often be—and there is no doubt that there is in relation to this matter—issues of style and personalities involved. It seems reasonable to think that Dame Leonie Kramer is conservative, somewhat imperious and perhaps autocratic; she is certainly uncompromising in what she believes, as well as being astute, motivated, ethical and of sound judgment. On all reasonable criteria the university is doing very well: It is attracting students and research grants, and it has prestige. The point has been made by the Hon. Patricia Forsythe that this motion concerns an ad hoc change to regulations. There has not been an overall examination of the university's regulations and this is the one regulation that is sought to be changed. Obviously the university wants to be able to fire as well as hire because usually those powers go together. One might criticise the university for not having fixed the regulations at a less controversial time but of course one tends not to notice the flaws in regulations and by-laws until they become a problem. One usually discovers flaws at a point when one wishes that they had been fixed at a non-controversial time. 6 June 2001 LEGISLATIVE COUNCIL 14423
The point was also made by the Hon. Patricia Forsythe that changing the hiring and firing rules during the agreed term is shifting the goalposts during the game. On the other hand, if a certain standard of behaviour is expected as part of the awarding of the chancellorship, then it cuts both ways. The deciding factor for me in this issue is that this Parliament should not interfere in the governing of the university. In a sense the university is governed by its senate and if the senate wishes to change its by-laws for whatever reason, I do not think that this Parliament should interfere with that decision. For that reason I will be opposing this disallowance motion. I do so with some regret because of my respect for Dame Leonie Kramer and because I regret some of the consequences of the change in regulations. But in the end this Parliament has to leave the university to run itself. If the university wishes to change its by-laws this Parliament should let it.
The Hon. IAN MACDONALD (Parliamentary Secretary) [2.37 p.m.]: The Government opposes this disallowance motion. So far as this House is concerned, this is not a debate about the future of the Chancellor of the University of Sydney; it is a debate about the independence of universities within our democracy. We prize academic freedom very highly. That academic freedom rests in part on the freedom of universities to decide their own structure, function, policies and priorities. The decision-making structures of universities are established by Acts of Parliament. For approximately 150 years we have trusted the University of Sydney to make its by-laws independently of political interference. To change that now would be to create a dangerous precedent in relation to all universities in New South Wales.
The Hon. Patricia Forsythe should take that matter into account in her manipulation of this issue to support the interests of the Opposition. To change the way that universities have operated would be equivalent to saying that we no longer trust universities to behave independently. The only test that should be placed on a by-law by universities is whether the regulation is lawfully made. Following receipt of the by-laws, the Minister for Education and Training sought advice from the Solicitor General on whether the amendment was illegal. The Solicitor General is the State's foremost authority on administrative law.
Reverend the Hon. Fred Nile: We are not a rubber stamp.
The Hon. IAN MACDONALD: The Parliament has the power. Reverend the Hon. Fred Nile says that this Parliament is not a rubber stamp. Although this Parliament definitely has the power to overturn the regulation made by a university, I and the Government argue that regulations of a university should be overturned only if they conflict with the law. In this case the Solicitor General has examined the regulation and has found that it does not conflict with the law. The Solicitor General is this State's foremost authority on administrative law. The following advice was received from the Solicitor General:
The proposed amendments are authorised by section 10 (2) [of the University of Sydney Act] and are not inconsistent with the act.
Therefore, the regulation withstands the test of legality. The by-law falls within the meaning of that Act. As a result, on 30 May 2001 the New South Wales Governor approved an amendment to the University of Sydney by-law relating to the offices of chancellor and vice-chancellor. The amended by-law was then gazetted on Friday 1 June 2001.
It is important to note that universities are essentially independent and autonomous institutions operating within broad legislative parameters set by the Parliament. These arrangements provide substantial powers to universities to manage their administrative and educational concerns in the best interests of the institution. It would be an extraordinary step for the Parliament to interfere with their by-law making powers. I am advised that over the last 30 years the Governor has not rejected a legally constituted by-law. That is as far back as the records of the Department of Education and Training go, but it is likely that it has never happened. In fact, Reverend the Hon. Fred Nile is taking an historical step in his endeavours to overturn the ability of a university to lawfully make a by-law under the Act.
The Hon. Patricia Forsythe: Go and ask some of the vice-chancellors what they do before they get the laws in here. The Hon. IAN MACDONALD: The Hon. Patricia Forsythe's support for Reverend the Hon. Fred Nile's motion strikes at the heart of the autonomy of universities. In effect, she says that universities' proper, lawful decision making can be overturned by this Parliament. That is preposterous; in fact, it undermines the independence of universities. The matter is clear cut. I know that some members opposite and Reverend the Hon. Fred Nile might have residual feeling for Dame Leonie Kramer, but that is absolutely irrelevant. Universities have the power to make by-laws, and we should stay out of their affairs. If we are to protect the 14424 LEGISLATIVE COUNCIL 6 June 2001 autonomy of universities—an important aspect of our democratic culture—it is important that they continue to hold their by-law making powers unfettered. I know that the Hon. John Ryan strongly supports me on this. I am sure he must be finding it difficult to listen to certain statements made in this House in relation to this issue.
The Hon. John Jobling: Point of order: Madam President, I ask you to clarify whether the Hon. Ian Macdonald is speaking to this matter on behalf of the Minister or on his own behalf, because it affects the time for which he is allowed to speak.
The Hon. IAN MACDONALD: I am speaking on behalf of the Government.
The PRESIDENT: Order! My understanding is that the Parliamentary Secretary is speaking on behalf of the Government. Hence, he is taking the place that a Minister would normally take and, therefore, is entitled to speak for 15 minutes.
The Hon. IAN MACDONALD: It is important that honourable members on the crossbench be given an opportunity to make their contributions. The only test to place on whether to proceed with the by-law is whether the university is acting in accordance with the Act—not whether we like the impact of whatever is going on at the university, and whether we like the individuals affected. The only matter we consider in this Chamber is whether the university acts in accordance with the Act.
Reverend the Hon. Fred Nile: Who said?
The Hon. IAN MACDONALD: That is my view, and it is also the Government's view. Advice received from the State's foremost authority on administrative law, the Solicitor General, indicates that the university is acting in accordance with the Act. Matters of internal politics are for the university's senate, not for Parliament. On our understanding, the senate has made a clear-cut decision that political views in relation to this matter are totally irrelevant. Parliament cannot override the lawfully constructed decisions of the senate.
The Hon. IAN COHEN [2.43 p.m.]: I support the comments of Ms Lee Rhiannon in this debate. Whilst I appreciate the position of the Opposition in relation to the disallowance of a university by-law, I also respect Reverend the Hon. Fred Nile's right to bring the matter before the House, regardless of whether he gains the support of the House. The by-law deals with the issue of the removal of University of Sydney Chancellor Dame Leonie Kramer. As reported in the media, last month the university senate passed a by-law allowing the senate to remove a chancellor after passing a motion of no confidence at two consecutive meetings. From conversations I have had outside this House and from the debate today I am convinced that prior actions were completed and considerable processes were undertaken prior to the passing of that by-law. The senate wishes to remove Dame Leonie Kramer due to her management style and refusal to disclose to the senate details of the vice-chancellor's $705,000 salary package.
The Hon. Ian Macdonald: It is $730,000. The Hon. IAN COHEN: I stand corrected. However, it is a salary package in excess of $700,000. I understand also that various other allowances may form part of that package. Whilst I do not cast aspersions in relation to the salary package, there is a need for transparency. Many people may believe the package to be excessive, and the senate should therefore be given the opportunity to investigate all aspects of it. The Solicitor General has given legal advice that the by-law is authorised by section 10 (2) of the University of Sydney Act and that it is not inconsistent with the Act. On 30 May the Governor approved the amendment to the by-law. The by-law is a legal instrument that can be disallowed by Parliament, as Reverend the Hon. Fred Nile is attempting to do. As the by-law is an expression of the will of the senate and is entirely reasonable, it should not be disallowed. It has been brought in only as a measure of last resort to deal with what appears to be an intolerable situation—that is, that the chancellor has lost the confidence of the senate The Auditor-General has sought to find out whether the senate had signed off on particular benefits. Clearly, grave concern has been expressed about the failure to give details of the contract. I do not believe it is fair to suggest that certain people oppose the chancellor's particular style or her philosophical attitudes. As Reverend the Hon. Fred Nile said, the students would like to vote for a pot-smoking swinger, or suchlike. I believe that is an accurate reflection of what the honourable member said. It is totally separate to the issues at hand. We have heard of meetings of the senate, we have heard of letters, and we have heard of 19 members asking the chancellor to retire. We have heard that the chancellor will have four months to think about her 6 June 2001 LEGISLATIVE COUNCIL 14425 position, and that perhaps she will retire next year. I believe it is quite reasonable that, whichever way we view the debate and the issues as they are emerging within the university—and we are all free to have our personal opinion about that—we acknowledge that disallowances have occurred in this House on various issues and legislation has been made to fit. I know it depends on the way one views this issue. However, with respect to democracy and transparency, it is important that Parliament respects the independence of the university, and the problems of the senate should be resolved by the senate. As a member of the Greens I cannot support the motion of disallowance moved by Reverend the Hon. Fred Nile.
The Hon. MALCOLM JONES [2.48 p.m.]: The University of Sydney, under the leadership of Dame Leonie Kramer and Vice-Chancellor Gavin Brown, is by any measure a raging success. It has received the most research grants and it is still number one when it comes to student preferences. Arguments have prevailed regarding procedural compliance, not necessarily compulsory compliance. These small issues are not worth the early termination of the appointment of such a distinguished person. Dame Leonie Kramer has worked pro bono for 10 years, and she was re-elected in 1999 unopposed. There is conflict between the senate and the chancellor on only a few issues—issues of compliance. She is a distinguished person who has agreed to retire in March 2002. The senate offered to accept her retirement in June 2001. We are therefore looking at only nine months of tolerance.
That the governance of the university can be unsettled by so few issues is more a criticism of the ability of the senate to manage. Dame Leonie Kramer has clearly demonstrated her ability to manage. Therefore, the tolerance and wisdom of the senate to cope must be considered. It appears that the management of the university does not support a vote of no confidence in the chancellor. I understand that there has been very little consultation with academics, general staff or students but with only those on the senate, and that is where there is conflict. The university is now supposedly rendered ungovernable.
The Auditor-General has basically an accounting role. Confidential documents such as executive contracts of employment and remuneration are not usually available to auditors, certainly not in the private sector. I remind honourable members that the university receives Federal funding, not State funding. Where is the compulsion, therefore, to comply with the Auditor-General of this State? After a couple of difficult meetings, however, the documents were provided. In relation to a no-bonus consideration in the chancellor's contract, I remind honourable members that the vice-chancellor presides over the best university in Australia, and it is not unreasonable for him to be paid a bonus. Is that a reason to sack such a distinguished person? Surely the senate is capable of working around issues that cannot be easily resolved. The university should not be ungovernable because the issues outlined by the Hon. John Hatzistergos cannot be resolved. What is the underlying motive, when logic and commonsense do not add up? There are always underlying unstated motives.
Could the answer be that the Australian Labor Party has someone waiting in the wings to move into this prestigious role? If so, I hope that it takes place well into 2002, and not as a result of this unfortunate by- law. The Hon. Helen Sham-Ho said that vindictiveness may be a reason for the sacking. That may be so. The Hon. John Hatzistergos mentioned fundraising. Withholding a successful vice-chancellor's terms and conditions for a short period—a couple of months—will not deter fundraising for the most successful university in Australia. The length to which the senate has gone to sack this well respected dignitary is far more harmful than withholding confidential and personal documents for a couple of months. The Hon. JOHN TINGLE [2.53 p.m.]: I will speak briefly on this matter because I feel a great deal of discomfort and unease about even taking part in this debate today. I have had the privilege of knowing Dame Leonie Kramer and have had quite a bit to do with her in my time, both as a subject for my radio programs and in other areas. My admiration for her is quite unbounded. She is one of the wisest people I have ever met. She is certainly an icon in her chosen fields and a towering figure, whichever way you look at her, in any of the roles she has played. The way that this matter has been dealt with in the public arena is immensely regrettable. The whole question has been cluttered by emotional arguments, media hype and some pretty snide and sniggering reporting in some sections of the media. All sorts of red herrings were drawn across our path: that this is a debate between Republicans and monarchists; that it is a plot to put Paul Keating in as chancellor; that it is the conservatives and the radicals fighting each other; or that it is an Australian Labor Party claque that has taken over the senate. I dismiss them all because they are irrelevant and that is not the question we should be asking ourselves today as we decide whether to support this motion. We should note that this issue has been going on for a long time—since at least last August, I have been told. Quite frankly, knowing as much as I do about Dame Leonie Kramer, it is a wonder to me that she has not already told the senate what they can do with their job because she is, above all things, a dignified and determined person. But she has decided not to do that, so we have come to this impasse today. 14426 LEGISLATIVE COUNCIL 6 June 2001
Like other speakers, I believe that the role of Parliament is not to govern the University of Sydney or to interfere in its governance by second-guessing the senate. Whatever honourable members think of the way the senate resolution was passed, and the way this by-law was put into place, there is no question whatever that Dame Leonie Kramer has not, in any technical sense, committed any kind of crime. Apparently she has occasionally done things which have not pleased the senate and things which, from my point of view, were not done wisely—she could have handled them a little better. We have had briefings from both sides today and I have had a great deal of correspondence and phone calls from people on this issue.
In his motion Reverend the Hon. Fred Nile said that we should disallow this by-law so that, as he put it, the senate could resolve the situation like mature adults. If I thought they were capable of doing that I would support the motion, but it is quite obvious to me, from simple observation, that that unfortunately will not happen. It should happen, but it will not. After a lot of agonising, it comes down to a simple question: Whose interest should predominate—the chancellor or the university? I have to vote for the university, so I cannot support the motion.
The Hon. RICHARD JONES [2.56 p.m.]: Honourable members are not here to debate whether Dame Leonie Kramer is a good chancellor, or any such matters. We are here to talk about almost a separation of powers between this Chamber and the university to allow the university to set its own regulations. Regulations like this exist in other universities. For example, at the University of Melbourne the chancellor may be removed by a single absolute majority resolution of the governing body. The chancellor of Cambridge University holds that office until its senate, which comprises holders of a Master of Arts degree or higher, votes otherwise in a ballot. Regulations such as this are not unusual. Honourable members should be aware that the senate is the governing body of the University of Sydney and that stakeholders are entitled to expect the senate to make decisions about the governance of the university other than where the authority has been expressly delegated to other office bearers or bodies. I have received information today from Renata Kaldor, who states:
It is a mechanism that allows all members of the senate, including the chancellor and deputy chancellor, to be fully apprised of all the relevant issues, to be prepared to consider and discuss those issues, and to be able to be heard in relation into them [the bylaw].
She also states:
It is regrettable this bylaw has been introduced in circumstances of open debate about the position of chancellor.
But that does not in any respect diminish the need for the senate of the University of Sydney to ensure the integrity of its decision-making processes and its authority as a governing body.
It is a matter of democracy. The senate should control the university—it is the governing body of the university—but there has been a clash. Honourable members are not here to debate whether Dame Leonie Kramer should be sacked, because that has nothing to do with us. Essentially it is to do with the senate and the senate must make the decision. The by-law is not unreasonable and I do not believe that it is appropriate for us to disallow it. I hope that the university's senate makes the right decision, whichever way it goes. The Hon. Dr PETER WONG [2.58 p.m.]: I have no doubt that many honourable members share, to a certain extent, the sentiments behind the disallowance motion of Reverend the Hon. Fred Nile. The amendment to the by-laws of the University of Sydney was, in this instance, carried out for the sole purpose of removing the chancellor, Dame Leonie Kramer, from office. I also accept the arguments of the Opposition that the chancellor was appointed for a term and, therefore, on the surface the amendments to the by-laws appear to be retrospective. The Unity party believes that any retrospectivity is, in principle, undesirable. I also note that proponents of both arguments acknowledge that chancellor Dame Leonie Kramer is a highly respected person who has worked tirelessly for the University of Sydney. Honourable members have heard two sides of the debate today, but I believe it is common ground that: first, the senate of the University of Sydney, rather than the chancellor alone, is empowered by law to govern the university; second, it is not appropriate for this Chamber to interfere with the workings of the senate, including its wish to change its by-laws, no matter what our personal feelings may be; third, perhaps the chancellor acted in an autocratic way which resulted in the present impasse; and finally, most honourable members of this Chamber wish that the chancellor would retire gracefully, at a time agreeable to both parties, thus preventing someone who has dedicated many years of her life to the university suffering a loss of dignity as a result of the amendments to the by-laws of Sydney University. Perhaps, as mentioned by the Hon. Patricia Forsythe, the whole of the by-laws of the University of Sydney need reform to bring them into the twenty-first century. I share the concern of the Hon. Patricia Forsythe 6 June 2001 LEGISLATIVE COUNCIL 14427 that if any chancellor can be removed after an expression of no confidence at two ordinary senate meetings, there is real danger that the chancellor may be held hostage to factional views of the senate. I personally do not believe that in this instance the senate acted vindictively or irrationally. I believe also that the Hon. John Hatzistergos acted honourably. Therefore, I would respect the wish of the majority of the members of the senate of the University of Sydney, and will not support the motion of disallowance moved by Reverend the Hon. Fred Nile.
The Hon. DUNCAN GAY (Deputy Leader of the Opposition) [3.00 p.m.]: I will support the motion moved by the Hon. Fred Nile. The governance and administration of the University of Sydney has been a problem for some years. Frankly, the problems are not related solely to the personality of the chancellor or the vice-chancellor or to funding by the Federal Government. The problems of this university will not be fixed by disallowance of the by-law and the removal of one member from the university senate. The problems will remain. Members who think that the withdrawal of one person from the senate will provide an instant panacea to the problems of the University of Sydney are kidding themselves.
One of the major flaws in the arrangements is the dual responsibility for universities: the Federal government provides the overwhelming proportion of the funding while the State government provides the legislation for the establishment and operation of the university, its governance and its day-to-day administration. University staffs are often employed under State awards. The University of Sydney has considerable endowments from the private sector and substantial holdings of city and rural real estate, for example, Challis House in Martin Place, Sydney, and three major rural holdings in Moree left to it by the Livingstone family. The benefactions have not been well administered, and on a number of occasions the New South Wales Auditor-General has qualified the university's annual accounts. It had nothing to do with the chancellor in those cases. Such qualification has happened before on a number of occasions.
The university senate, which is its peak governing body, is too large and the methods of election and appointment are cumbersome and factionalised. This has been the situation regardless of which party has been in government in New South Wales. Appointments to the senate by the State government are an obvious form of patronage and, although some of those appointed have acted in the best interests of the university and its teaching and research programs, most have been the representatives of the government at the time. An excellent example of this is the way in which the current Premier mishandled the provision of facilities for the university's music faculty. It ebbed back and forth between relocation to the site at the old Gladesville mental home and the conservatorium. The result has been an enormous over-budget expenditure at the conservatorium, and the Gladesville site continues to languish. The regulation to deal with the current chancellor is an example of poor ad hoc policy and administration decision-making processes. It has been happening for a long long time, and this knee-jerk reaction will not fix one problem that is facing the University of Sydney. I say that as the parent of a recent graduate from the University of Sydney. Reverend the Hon. FRED NILE [3.03 p.m.], in reply: I thank all honourable members who have participated in the debate—those who support the disallowance motion and those who oppose it. I think it is good that we have debated the matter, no matter what the outcome of the vote. This is a very important matter, and we should not act as a rubber stamp. We should not, as did Pontius Pilate, wash our hands of the matter and say, "It has nothing to do with us," if there are two adverse senate meetings in the two months following the debate in this House today. Nor should we stand aside while Brutus assassinates Julius Caesar. We have responsibilities as members of this Parliament. Why do we have disallowance procedures relating to regulations under university Acts? Members who think it has nothing to do with us should ask why there is provision for regulation to be reviewed by this House and why this House has power to disallow a regulation. I am sure that former members of the Legislative Council had in mind that there would be times like this, when this House should examine not only the lawful purpose of the by-laws—which is the Government's strong argument—but also the intent of the by-laws. The Hon. Ian Macdonald, on behalf of the Government, emphasised that this House could disallow a regulation only if there was some question about its legality, that is, whether it is lawful. It so happens that the law company Minter Ellison, in its letter of 31 May 2001, raised that very question. I quote from the letter:
The validity of the amendment
Mr Bathurst advises, and we agree, that there is a real issue as to the validity of the amendment to the By-law. The issue arises from the apparent inconsistency between the amendment and the provisions of section 10 and clause 2 of Schedule 1 of the University of Sydney Act 1989. It is very doubtful that the amendment is consistent with the Act. 14428 LEGISLATIVE COUNCIL 6 June 2001
Should we simply disregard that legal opinion? It may not be the final word on the issue, but it must be considered by the Government if it is basing its stand solely on the question of the legality and lawfulness of the by-law.
The Hon. Ian Macdonald: We rely on the Solicitor General.
Reverend the Hon. FRED NILE: Yes. But that advice can be questioned. As a consequence, further matters may need to be taken into account. The implication is that this matter could go before the courts, to be decided not by the Solicitor General or Attorney General, but by a judge of the court. Honourable members who support the by-law, and would oppose the disallowance motion, should take that factor into account. As I have said, it is far better for the senate to act in a much more mature way to resolve differences within the senate, rather than set up this procedure. The only reason that this by-law is before the House is that it is a procedure to get rid of the chancellor by means of two votes of no confidence of two successive meetings following the debate in this House today. That is the purpose of the by-law. Those who would pretend that this is just an administrative change to University of Sydney by-laws are fooling themselves and attempting to fool this House in a debate on such an important matter.
The other issue put forward by the Hon. John Hatzistergos, the Hon. Helen Sham-Ho and other members is that the university senate is paralysed. The Hon. Helen Sham-Ho said that the senate cannot function. That puzzled me. I served for four years on the university senate called the Council of the University of Wollongong. An agenda is prepared, motions are moved and debated and voted upon, with the chancellor acting as chair. In some cases, if there is an equal vote, the chancellor may have a deciding vote. But to say that the senate of the University of Sydney is paralysed is ridiculous. If that were true, that would be an adverse judgment on the members of the senate. That body should be able to operate. After all, it consists of a large number of members and is chaired by the chancellor. As the chancellor herself has said, what some honourable members have said about her is almost beyond imagination: that is, that one person could exercise such dramatic power over intelligent individuals such as lawyers and others who have the ability to argue and present their cases. It is ridiculous to assert that the senate cannot function and is paralysed.
If it is paralysed and cannot move, I have a solution: members of the senate should resign, and those with the power to elect the senate should elect a new senate, which would then be allowed to function and operate. They should not sack the chancellor because of their ineptness and inability to make the senate and university function. I can think of matters that caused great tension at the University of Wollongong and caused great disagreement with the chancellor, who was supporting policies coming from the vice-chancellor. Those matters were debated, they were resolved by vote, and business continued. I imagine a number of universities have difficult issues that require debate and where strong feelings prevail in the senate body. Eventually those questions are resolved. To say in this debate that the senate is paralysed is to raise the red herring that the Parliament has no option but to allow the by-law.
The Greens referred to the democratic process that should be followed in relation to this matter. What about the democratic election process? The Greens made a big fuss about elections and about people being elected. The election of the chancellor was legitimate. In fact, it could be said that three elections have been held—in 1991, 1995 and 1999. What possible argument could be put forward to overthrow a democratically elected chancellor? If the chancellor wishes to shorten her term she has a right to do that by resigning early. The Greens should reconsider their position in relation to this matter. If, at some future date, a Coalition government has six nominees on the senate and there is a chancellor that the Greens support, this by-law could be used to axe that person. Honourable members have to take into account the past, the present and the future. Such a by-law might be a dangerous weapon in the hands of any future senate, regardless of the influence that this Parliament might have on members of that senate. Some criticism was made by the Hon. John Hatzistergos of the audit, the contracts and so on. The honourable member put forward his point of view. My point of view is that Dame Leonie Kramer was jealous of the independence of the university. This matter has nothing to do with her. What could she gain from it? She has great pride in the University of Sydney and its academic and financial independence. I can understand her initial reluctance not to jump just because the Auditor-General sent her a memorandum or a letter. She might have made a technical mistake and she might be open to criticism, but we have to assess a person's motive. There was no attempt to deceive and she is not attempting to benefit financially. I believe that she was acting in the best interests of the university. I am not sure whether or not copies of the contract will be produced, but there are student representatives on the Senate. Concern might have been expressed at that stage 6 June 2001 LEGISLATIVE COUNCIL 14429 about the fact that this issue could have been reported on the front page of the Sydney Morning Herald, which is what happened. Some consideration might have been given to protecting the vice-chancellor, who, as I said earlier, is an executive officer and a key person in this matter.
Would it have benefited the vice-chancellor and the university to have these matters debated in public, and open to ridicule through the media, which is eventually what happened? I am trying to establish what was in the mind of the chancellor. I am arguing that her motives were to protect the financial and academic independence of the university. The Hon. Dr Arthur Chesterfield-Evans said in debate that we should not interfere in this matter. He said that all it involved was a simple change of by-laws. He has overlooked the malicious intent of the by-law, which should not be overlooked.
The Hon. John Johnson: Malicious?
Reverend the Hon. FRED NILE: The malicious intent of the by-law is to sack the chancellor. That is the purpose of this debate today. Government members cannot ignore that. If we vote to support this disallowance motion the status quo of the University of Sydney will not be preserved.
Question—That the motion be agreed to—put. The House divided. [In division] The Hon. John Ryan: Has Madam Defarge brought her knitting today? The Hon. Jan Burnswoods: Point of order: I recently referred to the increasingly sexist behaviour of members of the Liberal Party in this Chamber. Madam President, I draw your attention yet again to the apparent sense of humour of, and the repetition of sexist behaviour by, the Hon. John Ryan. I thought better of him. The Hon. John Ryan: To the point of order: For anyone to suggest that I would say anything sexist is really stretching a point. It is the problem of the honourable member if she is not aware of the literary allusion. My statement was certainly not intended to be sexist. If she finds my statement offensive, I will happily withdraw it. The PRESIDENT: Order! As interjections are disorderly at all times, there is no point of order. However, I warn members again that sexist and unpleasant remarks are not welcome. Ayes, 14 Mr Colless Mr Harwin Mr Pearce Mrs Forsythe Mr M. I. Jones Mr Samios Mr Gallacher Mrs Nile Tellers, Miss Gardiner Reverend Nile Mr Jobling Mr Gay Mr Oldfield Mr Ryan Noes, 20 Mr Breen Mr Johnson Ms Tebbutt Ms Burnswoods Mr R. S. L. Jones Mr Tingle Dr Chesterfield-Evans Mr Kelly Mr Tsang Mr Cohen Mr Macdonald Dr Wong Mr Dyer Ms Rhiannon Tellers, Mr Egan Ms Saffin Ms Fazio Mr Hatzistergos Mrs Sham-Ho Mr Primrose
Pairs Mr Lynn Mr Della Bosca Mr Moppett Mr Obeid Dr Pezzutti Mr West
Question resolved in the negative. Motion negatived. 14430 LEGISLATIVE COUNCIL 6 June 2001
BUSINESS OF THE HOUSE
Suspension of Standing and Sessional Orders
Motion by the Hon. Richard Jones agreed to:
That standing and sessional orders be suspended to allow a motion to be moved forthwith that Private Members' Business item No. 95 outside the Order of Precedence, relating to a disputed claim of privilege concerning documents related to the M5 East ventilation stack, be called on forthwith.
Order of Business
Motion by the Hon. Richard Jones agreed to:
That Private Members' Business item No. 95 outside the Order of Precedence be called on forthwith.
M5 EAST TUNNEL VENTILATION
Return to Order: Claim of Privilege
Debate resumed from 5 June.
The Hon. PETER BREEN [3.23 p.m.]: I support this motion. The Clerk has an opinion from an arbiter, Sir Laurence Street, in which Sir Laurence analyses various documents produced by the Roads and Traffic Authority relating to the M5 East emission stack. Sir Laurence lists those documents that do not attract the benefit of legal professional privilege. The House has already taken the trouble to get the opinion of Sir Laurence. It seems to me it would be disrespectful not to allow the House the opportunity of reading that opinion, of drawing conclusions about it and then of making decisions about the documents.
These documents are very important, not so much from our point of view as members of the House but from the point of view of members of the community who are very concerned about the M5 East emission stack and why the Government seems to fail to understand the importance of installing electrostatic precipitators. If the documents were available for members of the community to look at in one place, they would have the opportunity to see some of the issues—and I agree they do not see all of the issues objectively—and this House would be able to fulfil its role of accountability and of assisting in the process of government. Therefore, I urge honourable members to support the motion.
The Hon. PETER PRIMROSE [3.24 p.m.]: I also wish to be extremely brief on this matter. I understand it will be dealt with relatively quickly. I want to make the point that these are hardly secret matters. The documents have been available to all members. I have made the effort to read the documents, and any suggestion that in any way, shape or form this material needs to be tabled in order for members to be able to peruse it has no substance.
Motion agreed to.
STANDING COMMITTEE ON SOCIAL ISSUES
Report: A Matter of Priority—Report on Disability Services: Second Report
Debate called on, and postponed on motion by the Hon. Jan Burnswoods.
STANDING COMMITTEE ON LAW AND JUSTICE
Report: Review of the Exercise of the Functions of the Motor Accidents Authority and the Motor Accidents Council: Second Report Debate resumed from 27 February. The Hon. RON DYER [3.26 p.m.]: This is the second report of the Standing Committee on Law and Justice in relation to its role in supervising the exercise of the functions of the Motor Accidents Authority [MAA] and the Motor Accidents Council [MAC]. Section 210 of the Motor Accident Compensation Act provides that a committee of the Legislative Council is to be charged with responsibility of supervising the 6 June 2001 LEGISLATIVE COUNCIL 14431 exercise of the functions of the Motor Accidents Authority and Motor Accidents Council. In November 1999 the House appointed the Standing Committee on Law and Justice to undertake this task. The committee has decided to exercise its review function by conducting a public hearing with the chair of the Motor Accidents Council, the General Manager of the Motor Accidents Authority and other senior MAA staff at least annually—as a minimum. The first such hearing was on 8 May 2000, and the committee's report was tabled in the House on 20 June 2000.
The second hearing was held on 11 December 2000. As with the first hearing, I wrote to a range of organisations and individuals inviting them to nominate questions they would like the committee to raise at the hearing. Detailed responses were received, especially from the New South Wales Bar Association and the Law Society of New South Wales. Stakeholder questions were then conveyed to the MAA for written response. The questions provided and the MAA's responses are included in the committee's report. In this way, key organisations and individuals with an interest in the operations of the MAC and the MAA had an opportunity to assist the committee to perform its review functions. This second report consists of the transcript of the 11 December 2000 hearing, together with written answers to questions on notice provided by the MAA.
The focus of the hearing was on two documents. First, the MAA's 1999-2000 annual report and, second, a document entitled, "Report on the First Year's Operation of the New Scheme", prepared by the MAA. Chapter 1 of the committee report concerns the follow-up questions arising from the first hearing held on 8 May 2000. Chapter 2 focuses on information contained in the report on the first year of the new scheme. Chapter 3 examines questions arising from the MAA annual report. Chapter 4 consists of more general questions submitted by stakeholders and the MAA's responses, and chapter 5 records the evidence arising from the MAA's answers to those questions.
The new scheme is still in its early days, and it will be some time before the full effects of the new scheme become clear. The committee is also looking forward to receiving further information from the MAA over the months ahead about the methodology to be adopted to report to the committee on insurer profit margins each year, as required under section 28 of the Motor Accidents Compensation Act 1999. It is premature for the committee to express any firm views about the operation of the new scheme at this stage. However, one thing is clear: the annual cost of obtaining a green slip in New South Wales has been reduced markedly.
The average annual premium for a Sydney metropolitan passenger vehicle dropped from $441 in June 1999 to $345 in September 2000. Had the Government not introduced the new Act, the MAA estimates that the premium would now be greater than $480. The average annual premium in September 2000 represented only 37 per cent of average weekly earnings, compared to 48 per cent in the last year of the old scheme. Although it is too early in the scheme's operation for many conclusions to be drawn, there are two matters on which the committee has decided to include recommendations in this report.
The first recommendation relates to accountability and the provision of publicly available information about the performance of the scheme. The committee was very pleased by the level of detail and information contained in the MAA's report on the first year of the new scheme. However, the committee is concerned that the performance information was not included in the MAA's annual report itself. The annual report, which is required to be tabled in Parliament according to statute, is the appropriate place for key performance information about the scheme to be provided. Alternatively, the Motor Accidents Compensation Act 1999 could be amended to include a statutory requirement for the tabling each year of a report on scheme performance. Without such amendment, the provision of reliable information to the Parliament about scheme performance remains dependent upon the goodwill of the MAA.
The second recommendation concerns the MAA's program of rehabilitation grants, with particular reference to the brain injury rehabilitation program. The committee was surprised that the MAA underspent to the amount of $871,109 in rehabilitation grants during 1999-2000, and that the amount allocated for rehabilitation grants will be further reduced during 2000-01. The committee is only too aware of the need for services in the community for persons with an acquired brain injury. In view of this level of need, the committee recommends that the MAA reconsider its existing policy of only allocating rehabilitation grants for research and capital works and not for recurrent funding.
Finally, I again draw the attention of the House to the Federal Government's inaction on taxation reform to facilitate structured settlements. This is the first issue discussed in chapter 1 of this report. Despite the best efforts of the MAA and professional groups representing lawyers, doctors and insurers, the Commonwealth Government has yet to make a decision on reform. The committee will continue to follow-up this issue. For the 14432 LEGISLATIVE COUNCIL 6 June 2001 benefit of honourable members, I recall that my predecessor in office as chair of the committee, the Hon. Bryan Vaughan, who is no longer a member of the House, devoted considerable attention to the issue of promoting the acceptance of structured settlements. Until such time as the Commonwealth Government treats payments made under structured settlements on a tax-effective basis, it is unlikely that there will be a growth in acceptance of the structured settlement system. I know from professional practice, although it is some decades ago now, that in some cases the capital sum available to people who were given lump sum amounts either by way of a verdict or a settlement, dissipated after a few years and they found themselves back on social security. That is a most unfortunate position for them to be in, and it is a less than ideal position from the point of view of government in that it was intended that the capital sums those people were given in a verdict or a settlement would keep them for the rest of their lives. But notwithstanding that, given that the sum they were granted was dissipated in various ways, those people are back on social security payments, so it is not an ideal outcome from the point of view of governments either. It must be remembered that not everyone is professionally experienced in handling money, particularly large sums of money. That being the case, structured settlements make a great deal of sense. On behalf of the committee I can say that we will renew our efforts at the appropriate time in an endeavour to convince the Commonwealth Government that payments made under structured settlements should be treated in a tax- effective manner. The committee trusts that the report will be useful in informing the House, members of Parliament generally and others with an interest in the motor accidents compensation scheme about current issues and the way the MAC and the MAA are exercising their functions. As mentioned earlier, prior to the hearing on 11 December last year I wrote to a range of organisations and individuals inviting them to nominate issues or questions they would like the committee to raise at the hearing. Detailed responses were received. On behalf of the committee I thank those individuals and organisations that responded. Certainly, the Law Society of New South Wales and the Bar Association were prominent in that regard, although that is by no means an exhaustive statement of the organisations which are entitled to be thanked. I thank the General Manager of the MAA, Mr David Bowen, and his staff for their co- operation and assistance with the hearing and the provision of detailed written answers to the committee's questions. The Hon. JOHN RYAN [3.37 p.m.]: I endorse the comments of the committee chair with regard to the procedures and the presentation of the report to the House. The report is a little different from reports that are traditionally produced by parliamentary committees, because it largely presents the evidence and allows the evidence to speak for itself. The committee has not attempted to evaluate the evidence and make conclusive comments except for three recommendations that appear at the end of the report, which I thoroughly endorse and which are unlikely to be controversial. The procedure adopted by the committee—allowing community groups and other interested parties within the motor accidents insurance scheme to suggest questions to the committee, which we were then able to put to the various stakeholders for answers—appears to adequately canvass the important issues and allow people to get relevant information that they will find helpful in assessing whether the scheme is working for the people of New South Wales. I note the comments of the chair in which he observed, as the committee was told, that the average cost of premiums had dropped from $441 to $345. I agree with the chair that there has been a drop in premiums; as to whether that drop in premiums has sustained the Government's promise to reduce premiums by $100 for motorists has yet to be seen. It also remains to be seen whether consumers are getting what they pay for, because in return for a substantial drop in premiums—anyone would concede that there has been a fall in premiums—it needs to be understood that that drop in premiums has occurred as a result of a substantial drop in the level of protection offered by the scheme. Most people do not assess whether protection is adequate until they are involved in an accident. It will be interesting to obtain feedback from people who have made claims under the scheme on how they felt they were treated and whether they felt that the reduction in premium and sacrifice of their level of protection was appropriate. Notwithstanding that the facts are contained in the report for people to read for themselves, it needs to be said that over the next few months a matter of controversial debate will be the Government's intention to establish an insurance protection scheme. One wonders whether there will be decisions made by the Government to undermine the substantial reduction in premiums that may well evaporate by the extent to which the Government chooses to levy insurance policies. It will also be interesting to observe the decisions that will be made by the Government in the future about collecting embedded GST tax, stamp duty and so on. I now address two issues that are of concern to me. Anyone who attended the committee hearings would know that I have something of an obsession about the issue of insurer profits. I believe this is an 6 June 2001 LEGISLATIVE COUNCIL 14433 important matter. One of the critical questions is whether or not consumers are getting fair value for money. Although premiums have been reduced, on the face of it there appears also to have been a substantial reduction in payouts by insurance companies. I will read to the House a relevant paragraph from the report that refers to the financial performance of the scheme:
The MAA reported to the Motor Accidents Council in November 2000 that in the first twelve months of the scheme insurers reported $1.4 billion gross premium income. In the same period, insurers made payments of $14.6 million on claims and ANFs under the new scheme.
Taken at face value, there would appear to be a very substantial difference between gross premium income and payouts. Without hesitation I point out that the issue is a little more complicated than that, but I will read more of the report:
In asserting that insurers are ahead by $1.385 billion, the Bar Association has not taken into account the claims costs which must be met in the future for all claims related to accidents occurring in the first accident year of the new scheme. The premiums collected for an accident year must fully fund all claims relating to accidents occurring in that year.
I agree with that statement. Of course it is necessary for the premiums collected in each year to fully fund the claims that are made. It is necessary to have the amount accurately assessed, and I think it is fair to say that $14.6 million is highly unlikely to be the final cost of those claims. Nevertheless, as honourable members discovered from some other answers, when the MAA was asked for a greater breakdown the response was that consultant actuary, Adrian Gould from Taylor Fry Actuaries, "has estimated that the ultimate cost of claims relating to accidents in the first year of the scheme will be $1.148 billion in fully inflated and undiscounted terms". Essentially that indicates that $14.6 million is just the start and that nearly $1 billion in claims is yet to be realised. Undoubtedly there will be additional claims that are realised but what we really do not know is whether the amount of the claims will reach $1.148 billion.
The truth is that there has not been enough accident data under this or any other scheme to work out the level of profit in a year with any degree of certainty. It will be interesting for me as the scheme progresses to work out whether or not actuaries have overcalculated the amount of premium that will be required to fund claims. If that proves to be the case, it will mean that the cuts to the scheme were too harsh or that the premiums paid by the motorists are far too high: only one or the other can be true. The pity is that it will probably take from six to 10 years to work out the full answer to the question. But as each year progresses a better indication of what the answer is should be able to be obtained.
I agree with the remarks of the chairman of the committee: At the moment it is too early to say what the position is, but let it be said that some attention will be paid to that issue as time passes. Certainly, while I am a member of the committee I will be asking questions and making sure that that area is fully researched. In the conclusion of its report the committee has made a recommendation for the provision of more information on this issue.
I also point out a matter on which I have written independently to the Special Minister of State. It relates to parents whose child dies as a result of a motor vehicle accident. Honourable members might recall when we passed the motor vehicle insurance legislation we provided that in order to qualify for non-economic loss, it is necessary for an individual to demonstrate that he or she has suffered a 10 per cent level of impairment. In that regard parents whose child has died have a difficulty. Everyone would appreciate that such parents would have a great level of grief and a great deal of impairment, but that impairment is very difficult to assess. Given the fact that parents have to continue with many of their duties, particularly if they have other children, demonstrating that level of impairment will be difficult and controversial. I will read to the House one of the questions that came from the Law Society that illustrates the point by reference to hypothetical facts:
A parent loses one of two young children in the motor vehicle accident. By virtue of the need to continue caring for the remaining child the parent is unable to prepare the child's lunch, drive the child to school and supervise the child's homework of an evening. However, the parent is only able to perform these tasks with the use of anti depressant medication and spends a number of hours each day in the deceased child's room crying. The parent is unable to return to work. The level of grief and bereavement is persistent. On the Bar Association's understanding of the relevant guidelines, the limited level of functionality demonstrated by the parent would be sufficient to ensure that there was no award for non economic loss. That is a real problem. I understand that the MAA has considered this issue and believes that the best way to sort it out is by legislative amendment of the scheme to provide that any parent losing a child is deemed to have suffered a loss that has resulted in a level of impairment above 10 per cent. The Parliament may even deem a level of award for such a parent because assessing the quantum of an award would be very difficult as well as fraught with controversy. Deeming is a compassionate and sensible solution to the problem, which is in need of 14434 LEGISLATIVE COUNCIL 6 June 2001 urgent resolution. Within the past two months I recall hearing of a very sad incident in western Sydney involving a child who ran onto the road outside her home and was unfortunately killed. I do not know the family but I have no doubt its members suffered the very problem referred to in the hypothetical case.
When committee members asked questions about this matter it was put to us that it was a reasonably remote incident and that there was not necessarily an urgent need to address it. I believe there is such a necessity. I have written to the Special Minister of State to ask when it might be addressed. Unfortunately I have come to the Chamber without the letter so I am unable to read it to the House but I am happy to make it available to honourable members so they can read the Minister's response. Essentially, the response was an explanation of the legal position of such a parent. It made the point that the matter was in hand. I hope it is in hand as a matter of urgency because although only one or two parents a year might suffer this problem, the matter should be addressed quickly and, given that the method of redress is reasonably simple and not difficult to formulate or enact, the matter ought to be addressed during the current session of Parliament.
Having raised those two particular issues, I believe that honourable members can read and assess the committee's report for themselves. Obviously, the next time the committee meets to review the performance of the Motor Accidents Authority a great deal more information will be available and we may be able to make even more detailed and evaluative comments about the performance of the scheme at that stage. I commend the report to the House.
The Hon. GREG PEARCE [3.49 p.m.]: I thank the Standing Committee on Law and Justice for completing its second review into the effectiveness of the exercise of the functions of the Motor Accidents Authority [MAA] and the Motor Accidents Council under the new Motor Accidents Scheme. Parliamentary committees play an important role in the scrutiny of government agencies and independent authorities. They are an essential and valuable element of this House's contribution to good government and its role as a House of review. I refer to the commendable attitude of Mr David Bowen, the General Manager of the Motor Accidents Authority. In his opening statement he said:
The senior officers of the MAA have found the process of preparing the report and the responding to questions a valuable means of assessing the scheme.
He continued:
It has confirmed two things: first, that regulation is made more valuable when it is transparent and accountable, and the process of accountability through the Motor Accidents Council and through this Committee has helped the MAA to consider and improve its functions.
This attitude should be contrasted with the attitude of the Minister for Police, Mr Whelan, in relation to the inquiry by General Purpose Standing Committee No. 3. I supported the censure motion passed by this House on 8 March 2001, which censured the Minister for his outbursts in attempting to intimidate that committee. We have seen enough of Labor's arrogant style of executive government. In previous sessions I have asked questions in this Chamber about the fairness of the Motor Accidents Compensation Scheme. Specifically, I raised the concern that certain sectors of people in this State are not better off under this scheme, which was introduced some 18 months ago. My concerns also relate to the inadequate disclosure of information needed to assess the impacts of the scheme. On this point I note again Mr Bowen's evidence as set out on page 2 of the report. He stated:
In very brief terms, the summary of the report that has been provided to the Committee is that the scheme is operating within the cost assumptions that underpin the scheme reforms …
Mr Bowen continued:
However, the MAA still finds itself in the frustrating position of having to say it is too early to tell in relation to some of the key scheme reforms.
These are key points. First, the scheme is entirely the captive of the cost assumptions of the Government when it adopted the scheme. It is not about fairness. Second, we are all frustrated at the lack of information required to evaluate the impacts of the scheme. At the heart of the doubts about this scheme is the point made by Mr Bowen when he confirmed that there have been very few cases in which the victims have had access to non-economic compensation by exceeding the 10 per cent total bodily impairment threshold introduced by the scheme. Given that the threshold requirement based upon foreign impairment guidelines is likely to be used for other compensation assessment purposes, I draw attention to the fundamental unfairness of the scheme. On this point I refer again to the evidence of Mr Bowen in answers to questions raised by stakeholders. In relation to the 6 June 2001 LEGISLATIVE COUNCIL 14435 number of motor accident victims who are able to claim damages for non-economic loss Mr Bowen said, as noted at page 68 of the report:
The assumption was that the number of people who would be eligible for non-economic loss would reduce from about 40% under the old Act to 10%—the 10% most seriously injured—under the new Act.
This is the core unfairness of this legislation. People should not be misled about the green slip savings the Government so proudly proclaims have been achieved simply by depriving motor accident victims of compensation they previously would have received. Make no mistake about it: the intent of the Government in introducing this scheme was to take away compensation from victims of motor accidents. I cannot see how the Government can barefacedly say that the people of New South Wales are better off under this scheme. Motor accident victims and their families are clearly worse off. Ms Concetta Rizzo, Manager of the Insurance Division of the Motor Accidents Authority, also made this point in her evidence. As noted at page 4, she said:
There have been three important decreases. The first is in economic loss payments, the second is non-economic loss payments and the third is in investigation costs. All three of those are consistent with what the Act intended to happen—a reduction in economic loss with no economic loss to be paid for the first five days of work; a reduction in non-economic loss to be paid according to the impairment threshold.
As illustrated, the underlying assumption in the Act is that 75 per cent of accident victims previously entitled to compensation for non-economic loss are cut out from any recompense. It is this further victimisation created by the scheme that points to its underlying unfairness. I now turn to green slip premium prices. The evidence before the committee indicated that the requirements of clause 14 of schedule 5 to the Act have been met, in so far as the majority of policies for passenger vehicles in the metropolitan area were to cost no more than $330 at the expiry of 12 months. As noted on page 33 of the report, in answer to questions raised by the Law Society, the MAA stated this was achieved over the first 12 months of operation of the scheme, with a minimum of 60 per cent of policyholders and up to 80 per cent of policyholders for some insurers achieving this result.
However, I reiterate that, as the report makes plain, this reduction in premium costs has been achieved by denying some 75 per cent of accident victims the opportunity to claim damages for non-economic loss. And the Government's promise of a $100 decrease was not achieved. In light of these massive decreases in compensation payments, one would expect falls in premium prices to be consistent across the board. Unfortunately, this is not the case. In relation to the overcharging of non-aged pensioners, I note the evidence of Mr Bowen as set out on page 19 of the report. He stated:
In the premium relativity charges that were introduced in October this year, we have provided for an extended discount to over 55's, based on the fact that people over 55 years of age are much less likely to cause accidents involving serious injury. That has been picked up to varying degrees by different insurers depending on whether they want to target that end of the market.
Another premium-related matter I hope will be addressed by the committee at its next hearing and in its report is the impact of the change in categorisation of areas outside the Sydney metropolitan area. Policyholders in areas such as Maitland, Camden, the Blue Mountains and the Central Coast have all had their premiums increased by this recategorisation. My question is: What impact has this had on the overall figures for the Sydney metropolitan area? It is said that some 280,000 motorists in those areas are forced to pay up to $200 more. If this is the case, what impact does that have on the entire metropolitan area? The Minister has recently gone to great pains to inform this House of the changes he is constantly making to the scheme to make it fairer for all motorists in New South Wales.
Unfortunately, as these examples have highlighted, for all the Minister's tinkering, the Motor Accidents Compensation Act is inherently flawed legislation. Large sections of New South Wales are to this day still being disadvantaged by Minister Della Bosca's so-called reforms. Since it has become clear that the effect of the Act has been to drastically reduce the level of compensation to victims, an issue that concerns me greatly is the time it is taking to obtain a clear idea of just how much extra money the insurance companies are reaping from the new system. This second report has highlighted the fact that these figures are still not forthcoming. As my friend and colleague the Hon. John Ryan referred to, we will probably never know, because it will now be washed up in the aftermath of the HIH affair and the FAI and CIC problems.
The Hon. John Ryan: But you can be sure they won't lose. The Hon. GREG PEARCE: Indeed. It has been nearly 18 months since this scheme was introduced to the people of New South Wales, and until now not even a clear methodology has been established to determine insurer profit. Furthermore, it is not expected that any real results will be known for some time. All this comes despite one of the statutory requirements of the Motor Accidents Authority to provide these figures. In light of 14436 LEGISLATIVE COUNCIL 6 June 2001 this, one must ask why these methodologies were not established some time ago. The reality is that the people of New South Wales are being kept in the dark on this issue. The majority of members of the committee seemed to simply accept Mr Bowen's assertions that, in relation to insurer profit, the MAA could not report in October 2000 as required in the legislation but would simply continue to develop its methodology. A trial run was to commence in the next round of premium filings, which I think is to be in June, and a report on profit is supposed to be delivered in September 2001. As set out at pages 56 to 58 of the report, in response to questions the MAA disclosed that in the first 12 months of the scheme insurers reported a $1.4 billion gross premium income. In that same period insurers made payments of only $14.6 million on claims. The Bar Association's assertions that that meant insurers were ahead by $1.385 million was disputed, and instead actuarial information was provided that showed that the total expected cost of ultimately meeting claims for the first year would be $1.48 billion, or $914 million in today's figures. As has previously been mentioned, the difficulty here is not in insurers being appropriately rewarded for taking the risk in providing the insurance required and in doing so making a profit. Nor is it disputed that claims will take some time to be determined and accordingly the figures may be out of synchronisation. The major concern that has been raised by a number of parties is that the effect of the 10 per cent impairment threshold is that very few claims will ultimately be resolved in favour of victims of motor accidents for non-economic loss, and that this flaw in the Government's approach will mean that the half billion dollar excess disclosed, even on the figures put forward by the MAA, may be much greater. There is also no explanation as to how the figures quoted in this committee report relate to the information provided to the standing committee in its June 2000 report. I will refer to that briefly as the MAA disclosed to the committee that premiums for the six-month period commencing 1 October 1999 totalled some $649 million and that the total expenditure at that time on finalised claims under the new scheme was $228,934. The reserve on open claims was $117,595,308. Without any further analysis, it does seem that the figures now produced show a much greater reserve figure than the earlier figures. This uncertainly is not satisfactory. The past few months have highlighted just how inequitable the new scheme is. There are, however, a couple of other matters I wish to raise in regard to the Minister's failure to properly inform this Chamber and to direct the MAA. The first matter is the one raised by the Hon. Peter Breen in relation to the impact of the threshold on victims of the Glenbrook rail incident. I draw the attention of honourable members to the evidence of Mr Bowen on pages 68 and 73 of the report. The other matter for the Minister's review is the question of the competition level and the potential impact of the collapse of HIH. In relation to HIH, I refer to page 18 of the report—and to the evidence by the MAA that in October 2000 it was dealing with a number of applications in relation to a proposed joint venture between Alliance and HIH, and also HIH subsidiary companies FAI and CIC, which were licensed to write compulsory third party [CTP] business. The evidence was that those applications were under consideration at that time, October 2000. One is moved to ask: What did the MAA know about the true position of HIH? What impact will its demise have on the outstanding claims and upon the future sustainability of the market? Incidentally, I note the evidence in the report that the MAA receives the same reports from insurers as are filed with the Australian Prudential Regulatory Authority [APRA]. Whilst it is clear that APRA is the prime prudential regulator of insurers, one would have thought that—given this information is supplied to the MAA and given that the MAA has been working with a new scheme—the MAA had the information necessary to assess the solvency and capital adequacy of the CTP insurers. Another significant inequity underpinning this legislation is the fact that this scheme accounts only for impairment and not for disability. I again refer to the evidence given to the committee by the MAA, which can be found on page 33 of the report. The MAA stated:
The MAA acknowledges that the American Medical Association guidelines have problems but the MAA is unaware of any guidelines as comprehensive as the AMA 4. It then stated:
The Motor Accidents Compensation Act 1999 specifically talks of impairment and impairment guidelines, not disability. The fact that AMA 4 was to be adopted if the MAA guidelines were not developed indicates the Legislature specifically intended to introduce guidelines relating to impairment, not disability. The MAA acknowledges that impairment does not take into account the effect of the injury on a person's lifestyle, but the MAA believes the legislation would need to be changed if disability were to be measured. This again goes to the core complaint. The approach adopted by the Government has—at least for the moment—cut green slip costs, but at the expense of properly compensating innocent accident victims for their injuries and the impacts on their lifestyle. Those concerns were also echoed by Mr Bowen on page 3 of the report. He said: … the result of the use of those guidelines in accordance with the legislation is that significantly more or significantly less claimants access non-economic loss than was anticipated, then it will require a policy response. 6 June 2001 LEGISLATIVE COUNCIL 14437
The signs already indicate that just such a policy response is required. To summarise my concerns with this scheme, let me reiterate that there has been no indication whatsoever of the levels of profit the insurance companies are making from the new scheme, and there seems to be no evidence of this occurring soon. That is despite the fact that the scheme has been in place for more than 1½ years. The question will arise as to what was the impact of the super profits collected by insurance companies in that 18-month period on the whole HIH debacle? How much longer did HIH survive with those extra profits that went into FAI and CIC than it would not otherwise have survived? That will be a very interesting question to be addressed by the royal commission when it commences its review of HIH. Despite the assurance of the Special Minister of State that the people of New South Wales are better off, that is clearly not the case for many sections of our population.
Finally, victims claiming compensation under the new scheme have seen a system of established law replaced with what will become the infamous 10 per cent rule. The Government has disguised this method as an easier way to access compensation. However, the reality is that it is merely a way to reduce compensation. These concerns need to be urgently addressed for there to be any equity or fairness in the Motor Accidents Scheme. I again commend the committee for its diligent work.
The Hon. RON DYER [4.07 p.m.], in reply: I thank the Hon. John Ryan and the Hon. Greg Pearce for their contributions to the debate on the committee's second report into the Motor Accidents Authority and the Motor Accidents Council. I agree with the Hon. John Ryan that in many respects it is too early to assess how the scheme is running. I can report to the Chamber that earlier this year—from memory in April—I had a discussion in my office with Mr Richard Grellman, Chair, Motor Accidents Council, who expressed regret and apologised for his inability to appear before the committee's second hearing in December last year because he was absent overseas. During his discussion with me he made remarks that could generally be summarised by saying that it is his belief that the insurers would be doing fairly well at this stage.
I note that the Hon. Greg Pearce cited some figures on the income that insurers have received by way of premiums, and payments that have been made. A relevant comment that could be made in regard to the quite evident disparity between those two figures is that it must, of course, always be borne in mind that motor accident claims traditionally can be said to have a long tail—perhaps 20 years into the future. However, even though that is the case, clearly it is apparent and likely that the insurers, in Mr Grellman's words, are doing fairly well at this stage.
The committee will hold its third hearing later this year, following the furnishing of the annual report by the Motor Accidents Authority. I believe it is legitimate to say that at that stage the committee will be in a better position to judge the trackwork of how the insurers are travelling and how the scheme is performing. I was interested to hear the references by the Hon. Greg Pearce to statements made by Mr Bowen that he has found the interrogatory methodology adopted by the committee useful in getting to grips with how the scheme is working. The committee feels that that is a useful methodology. It enables us to get from the interest groups, such as the Law Society and the Bar Association, their probing questions, which we have never hesitated to put to the witnesses. This interrogatory approach appears to be a useful way to extract information regarding the working of the scheme.
I refer to some of the remarks made by the Hon. Greg Pearce regarding the scheme. The honourable member made some criticisms of the legislation. I do not feel it incumbent on me to debate those matters today, other than to say that it must be recognised that what the committee essentially is engaged in is an at least annual interrogation of the operators of the scheme as to how it is working. We are not, in effect, conducting a policy review. The Hon. Bryan Vaughan, my predecessor as chair of the committee, conducted a policy review—or perhaps more than one. The Hon. John Ryan would be able to help me in that regard. As a result of those reviews, legislation that became the Motor Accidents Act was enacted by this Parliament. The Hon. John Ryan has said by way of interjection that there were in fact three such reports. So, clearly, the committee that sat during the previous Parliament put a lot of work into this matter of motor accidents. That in turn led to the enactment of the legislation. I am not endeavouring to be unduly contentious, other than to say that I think it is legitimate to make the point that the committee has as its primary task ascertaining how the scheme is working in practice. I would see that as an administrative review, rather than primarily a policy review, although I would readily concede that if anomalies or difficulties crop up that we as a committee think the Government needs to be alerted to, we certainly have the right to include comments to that effect in the reports that we furnish to this House. I refer to the HIH Insurance collapse. I was in Brisbane on Monday of last week with the Standing Committee on Law and Justice in connection with another inquiry. The Courier Mail was dropped outside my 14438 LEGISLATIVE COUNCIL 6 June 2001 hotel door early in the morning. It seems impossible to escape New South Wales politics, because in that newspaper of 28 May was a prominent article headed "Inquiry 'halted before HIH collapse'". I shall quote a short passage from that article:
Australia's insurance industry watchdog headed off an investigation into the failed HIH insurance company five months before it collapsed, it was revealed yesterday.
NSW Treasurer Michael Egan said the Australian Prudential Regulation Authority had told the NSW Motor Accident Authority not to investigate HIH last September.
Mr Egan told the Nine Network the NSW authority had planned to put an inspector into HIH after concerns it might not pay compulsory third party claims but APRA had persuaded the motor authority not to proceed.
I do not know the merits of those remarks. I am not seeking to doubt the veracity of the claims made by the Treasurer. All I can say is that at this stage the Standing Committee on Law and Justice has not had the opportunity to inquire into this matter and the failure of HIH in relation to it being a licensed insurer for the purpose of the third party, or green slip, scheme. The committee did ask some questions, as I recall, regarding companies that were licensed insurers, but at that stage it was not known that HIH was in trouble—certainly, it was not known to the committee, no matter who else may have been aware of its problems.
The Hon. Greg Pearce: The Minister.
The Hon. RON DYER: The Hon. Greg Pearce says, "The Minister." Relying on the Minister's statements to the Nine network that I have just quoted by way of the report in the Courier Mail, one must assume that the Minister did have some inkling that HIH was in trouble. The Minister has said, as I have relayed to the House, that in some measure or fashion APRA restrained the Motor Accidents Authority from investigating HIH last September. That is a matter that no doubt, among many other matters, can be inquired into by the commission of inquiry, or royal commission, or whatever form that body being appointed by the Federal Government may take.
The Hon. Greg Pearce: The MAA still has its statutory obligations, and if it backed off without good reason it abrogated its responsibilities.
The Hon. RON DYER: I do not disagree with the statement that the MAA has its own statutory responsibilities. It is, however, legitimate to say that if it sought—or others sought—and was given assurances, that might have had some influence on the course that was then followed by the MAA in regard to whether HIH was a viable licensed insurer under the Motor Accidents Act. However, quite apart from what inquiries might be made by the commission of inquiry to be appointed by the Federal Government into HIH, the Standing Committee on Law and Justice certainly will be entitled to ask the MAA questions along the lines that the Hon. Greg Pearce is indicating—what was the position last September when the Treasurer evidently had these concerns, concerns allayed by assurances of some sort given by APRA at that time. I thank the two honourable members who have spoken in the debate. The committee feels that it is performing a useful review role, although it is my view that that role will become more useful in the future than it has been in the past, given that the track record will build up and there will be more practical experience on which to form the basis for more mature and considered views as to how the scheme is operating. Report noted. STANDING COMMITTEE ON STATE DEVELOPMENT Report: Merger of Country Energy Distributors Debate resumed from 31 May. The Hon. TONY KELLY [4.19 p.m.]: It is with pleasure that I commence debate on the motion to take note of the report of the Standing Committee on State Development into the merger of country energy distributors. The Premier's announcement on 28 February this year proposing a merger of three existing country energy distributors—Advance Energy, Great Southern Energy and NorthPower—was great news for families and businesses throughout rural and regional New South Wales. It demonstrated the Carr Government's ability to make big decisions that guarantee the future viability of a purely regional energy business in New South Wales as well as an ongoing commitment to maintain jobs and services in the country. The Legislative Council's referral of this matter to the State development committee provided it with an opportunity to look at the recent history of the energy industry of New South Wales, to listen to the many 6 June 2001 LEGISLATIVE COUNCIL 14439 concerns of stakeholders and to share their expectations regarding this proposal. The committee's broad terms of reference enabled a timely and in-depth review of the myriad issues surrounding the provision of energy in regional and rural New South Wales. The committee examined the impact of the proposed merger on issues such as future employment levels, access, maintenance and repair, and tariffs. The inquiry also enabled the committee to look at the overall impact of the merger on rural and regional communities as a whole.
The committee's endorsement of Country Energy affirms the Government's view that the merger will not only offer country communities a locally based business to provide them with their electricity needs; it is also the best way forward to maintain and improve employment and service levels. With the opening up of energy markets under national competition policy and the eventual creation of a national electricity market it was increasingly clear that existing regional energy suppliers would be too small—particularly those in the country—to compete with their much larger city-based and interstate counterparts. A company like Advance Energy, for example, with 125,000 customers, would find it extremely difficult, if not impossible, to remain viable in a fiercely competitive market against the likes of Energy Australia, which has a customer base of 2.2 million.
I point out at this stage, as I did in the inquiry, that I was the former deputy chairman of Advance Energy, so my previous knowledge of its workings was of benefit to me in this inquiry and it was of benefit to the committee. It was obvious that something had to be done, and done quickly, with full contestability next year. Hence the Carr Government's announcement to merge three existing rural providers into Country Energy. Country Energy, with an annual turnover of $1 billion, employing almost 2,500 staff and serving the energy needs of in excess of 700,000 customers, would create one of the largest regionally based businesses in Australia. The new entity would be furnished with resources and the financial muscle to mix it with the big boys in the full retail contestability of the new energy market. The State development committee found that Country Energy has the potential to meet the expectations placed on it, and more. The scale of this proposal obviously raised concerns as to its impact on country energy consumers, as well as the broader ramifications for rural and regional communities as a whole. Submissions that were received by the committee focused on concerns as to future employment levels and questions about levels of service and accessibility. Many of these concerns were due to the experience of amalgamations over the last 10 years. The committee examined these issues at length and found that the merger would create a strong competitor in the energy market, which would be well placed to improve service levels and increase the level of employment. I will now address in detail certain issues, the first of which relates to jobs. Given the recent history of job losses in the energy market, the impact of the merger on country jobs was a critical issue—an issue that most submissions addressed. The merger already had the Government's assurance that the process would involve no job losses whatsoever. The committee's inquiry backed up the Government's position. The committee heard evidence from Mr Don Anderson of the Market Implementation Group, who informed the committee how the merger would preserve and even allow for the creation of new jobs. It could do so because Country Energy would create a commercially viable business structure which would maintain employment and service as opposed to what might occur if the amalgamation did not proceed. The saving from the merger would occur in the retail sector rather than the network—in other words, the poles and wires side of the business. The poles and wires side of the business is really where most employment is to be found. The previous round of amalgamations impacted on that side of the business. This amalgamation will really affect the retail side. The Hon. Duncan Gay: This is more information technology. The Hon. TONY KELLY: This relates more to information technology, administration and those sorts of things. Savings will be made on things like computer systems. The Hon. Duncan Gay: And development. The Hon. TONY KELLY: And development. I hope that some cost savings will be achieved in the process leading up to contestability as those issues will have to be addressed only once. The large geographical area covered by Country Energy will necessitate the location of staff throughout rural New South Wales. The committee heard evidence from the chief executive officer designate of Country Energy, Mr Craig Murray, who drew on his experiences as managing director of Advance Energy. Mr Murray, who was able to expand the business of Advance Energy, was keen to see similar growth in Country Energy. The expansion of Advance Energy led to an increase in employment since 1996-97 of 88 people. That is 88 extra pay packets that are being spent in towns in the Advance Energy area, which is no mean feat, given the circumstances surrounding industry and, more broadly, rural Australia over the last decade. 14440 LEGISLATIVE COUNCIL 6 June 2001
Mr Murray told the committee that Advance Energy has taken a proactive stance to generate employment and ensure that people are there to replace an ageing work force. For example, Advance Energy's apprenticeship policy is all about recruiting young people from small rural towns, where they will work. Employing local people in smaller rural towns who have family and long-term attachments is a policy that has worked well for Advance Energy. Country Energy has the potential to maintain and improve service levels and employment in more remote communities in New South Wales. In the view of the chief executive officer, people from the area who are given apprenticeships are more likely to stay in that area than would be people from outside the area. That is the way in which doctors in country areas are viewed. Training doctors in country areas is a better way to ensure that they will stay in the country. People are likely to stay in their own area.
In the area of employment the committee noted that during the period 1989 to 1990 industry, in particular in country areas, had 4,336 employees. In 1995, at the time of the last group of amalgamations, employment levels dropped to about 3,500. So about 800 or 900 jobs were lost in that period before the amalgamations. Since then employment levels have dropped by a similar amount. However, in the last two or three years they have started to rise. In 1997-98 the figure was 2,484 and the figure at present is about 2,500. So those 88 jobs in the Advance Energy area are starting to have an effect on overall employment levels in the industry.
I refer now to service levels under Country Energy. In addition to jobs, one of the principal concerns expressed to the committee was the ability of Country Energy to remain local and to maintain adequate levels of service and maintenance. As the energy and water ombudsman said, "Most people do not want to think about electricity; they just want it to be there. It is when they do not have it that it is a problem." A major point that was made to the committee was that questions of service and maintenance levels were tied up with business viability. The more optimal the business, the better the level of service. In addition, it was a commonly held view that, for Country Energy to survive—
Pursuant to resolution debate interrupted.
M5 EAST TUNNEL VENTILATION
Report: Claim of Privilege
The Clerk, according to resolution of the House, tabled the report of the independent legal arbiter, Sir Laurence Street, dated 27 April 2001, on the disputed claim of privilege by the Hon. Richard Jones on papers on the M5 East ventilation stack.
FIRST HOME OWNER GRANT AMENDMENT BILL
Second Reading
The Hon. CARMEL TEBBUTT (Minister for Juvenile Justice, Minister Assisting the Premier on Youth, and Minister Assisting the Minister for the Environment) [4.29 p.m.]: I move:
That this bill be now read a second time.
I seek leave to incorporate my second reading speech in Hansard.
Leave granted.
Under the Intergovernmental Agreement on the Reform of Commonwealth-State Financial Relations, the governments of all States and Territories agreed to implement a First Home Owner Grant Scheme, administered and fully funded by each State and Territory. The New South Wales Government honoured this commitment by introducing the First Home Owner Grant Act.
Since July 2000, this Government has paid some $180 million in grant assistance to more than 25,000 first home owners.
The primary purpose of this Bill is to provide a temporary increase in the grant from $7,000 to $14,000 for new homes.
On 9 March 2001, the Prime Minister announced the temporary increase as a measure to stimulate activity in the housing sector. The New South Wales Government supports this initiative—it is badly needed to help the building industry recover from the damage done by the GST.
The Bill identifies the circumstances in which a homebuyer is entitled to an additional $7,000 grant on top of the existing $7,000 First Home Owner Grant. The additional grant is limited to the construction or purchase of eligible new homes where the contract is made between 9 March 2001 and 31 December 2001. 6 June 2001 LEGISLATIVE COUNCIL 14441
From 1 January 2002, the First Home Owner Grant in respect of new homes will revert back to $7,000. The grant will remain at $7,000 for eligible first homebuyers who purchase existing homes.
Eligible applicants buying or building new homes will receive the additional grant regardless of the level of their income or the area in which they are buying or building.
Eligible applicants will be entitled to the full $14,000 grant regardless of the value of the home, except where the purchase price of the home or the value of the construction contract is less than $14,000. In these cases, the applicant will be entitled to a grant equal to the value of the consideration.
To be eligible for the additional $7,000 grant, the applicant must satisfy all of the requirements for the existing $7,000 First Home Owner Grant.
Each applicant must be a natural person, and at least one applicant must be an Australian citizen or permanent resident. At least one applicant must occupy the home as their principal place of residence within 12 months of settlement or construction.
An applicant or an applicant’s spouse or de facto partner must not have previously received a grant under this scheme anywhere in Australia.
An applicant or an applicant’s spouse or de facto partner must not have owned, before 1 July 2000, any residential property in Australia, including an investment property.
An applicant or an applicant’s spouse or de facto partner must not have owned, on or after 1 July 2000, any residential property in Australia, and occupied that property.
To be eligible for the additional $7,000 grant, an applicant must satisfy additional requirements relating to the timing of the transaction.
A contract to buy a new home must be entered into between 9 March 2001 and 31 December 2001 inclusive. A new home is one that has never been sold before and has not previously been occupied as a residence, including occupation by the builder, a tenant or other occupant.
A contract to purchase a new home "off-the-plan" must be entered into between 9 March 2001 and 31 December 2001 inclusive, and the contract must provide for completion of construction by 30 April 2003.
A contract to build a new home must be entered into between 9 March 2001 and 31 December 2001 inclusive, and construction of the home must commence within 16 weeks of entering into the contract. The contract must specify a completion date within twelve months of the date of commencement, or, if a completion date is not specified in the contract, completion must occur within twelve months of the commencement date.
An owner-builder must commence building between 9 March 2001 and 31 December 2001 inclusive, and complete construction by 30 April 2003.
Home purchases and constructions which do not meet these time frames may nevertheless qualify for the existing $7,000 First Home Owner Grant.
Although the Commonwealth separately funds the additional grant, it will effectively be a simple extension to the existing scheme. From the public’s perspective, there will be a single First Home Owner Grant Scheme, with a grant of either $7,000 or $14,000 depending on the whether the applicant satisfies the additional eligibility requirements.
Applications, processing and payment of the grant will continue in the same manner as the current scheme, regardless of the amount of the grant.
Applications for the additional grant are already being received and are being paid in anticipation of the amendments in this Bill.
The grant scheme is in addition to the New South Wales Government’s First Home Plus, which provides exemptions or concessions on transfer stamp duty and mortgage duty for first homebuyers in New South Wales, and is the most generous and comprehensive stamp duty scheme in Australia for first homebuyers.
The combined effect of the existing First Home Owner Grant Scheme, the additional $7,000 grant, and First Home Plus is that new homebuyers in New South Wales could qualify for as much as $20,000 in State and Commonwealth concessions.
The Bill also makes four amendments that are unrelated to the additional grant.
The first imposes an additional criterion for eligibility for the first home owner grant, by requiring all applicants to be at least 16 years of age.
Over the first nine months of operation of the First Home Owner Grant Scheme, 21 applicants under 18 years of age have received the grant. Stringent compliance checks have been undertaken in these cases, but only one was found to be ineligible. The balance were all found to be legitimate claims.
The number of applications by minors, while minuscule in relation to the total number of applications (over 30,000), could escalate particularly now that the grant has been temporarily doubled for the purchase of new homes. In addition, there are practical difficulties in attempting to recover the grant from minors where they are subsequently found to be ineligible.
The Bill therefore amends the principal Act to ensure that minors do not automatically qualify for the grant in all cases, by adding an eligibility criterion requiring all applicants to be at least 16 years of age. 14442 LEGISLATIVE COUNCIL 6 June 2001
This is offset by a discretion for the Chief Commissioner of State Revenue to exempt an applicant from the age restriction if satisfied the applicant is genuinely acquiring a first home, and that the application is not part of a scheme for circumventing the eligibility requirements.
The age of 16 rather than 18 was chosen as applications by 16 and 17 year olds are more likely to be genuine first home purchases. In addition, this age limit links in with the requirements of privacy legislation which allows the obtaining of personal information directly from persons aged 16 years and over.
The second deals with potential abuses of the scheme. At present, an applicant who meets the eligibility requirements of the scheme is entitled to payment of the grant upon being entitled to occupy the home. There is no requirement for the purchaser to subsequently register the transfer of the property, and it is possible for a sham contract to be made for the sole purpose of obtaining the grant.
Although no instances of such shams have been identified to date, it is proposed to provide that an applicant is not legally entitled to the grant until the purchaser’s title has been registered. This would allow the Chief Commissioner of State Revenue to withhold payment on high-risk applications until after registration of the transfer. Alternatively, the Chief Commissioner would be able to recover the grant if the transfer is not registered.
The proposed amendment would have no impact on the current practice of paying the grant in advance of legal entitlement in most cases. Where an application is made through a participating financial institution, grant funds will continue to be made available for use on settlement of the purchase. Where an application for a grant is not made through a financial institution, an eligible applicant will receive payment by providing evidence of settlement.
Payment of the grant would only be withheld until the transfer has been registered in circumstances where there is an identified risk that the application could be false, including where the transaction may have been contrived for the sole purpose of obtaining the grant.
The proposed amendment will be consistent with changes made by other States to the original grant scheme legislation.
The remaining amendments clarify the rights of applicants to object to decisions of the Chief Commissioner of State Revenue, and to apply for a review by the Administrative Decisions Tribunal. These amendments will make the First Home Owner Grant Act consistent with the review provisions of the Taxation Administration Act.
I table a summary of the Bill for the assistance of Honourable Members and seek its incorporation into Hansard.
I commend the Bill to the House.
The Hon. JOHN RYAN [4.30 p.m.]: Naturally the Opposition supports the First Home Owner Grant Amendment Bill. It gives effect to a very progressive policy by the Howard Government which is designed to stimulate the home building industry. The GST, or tax reform, had the effect of pulling forward a great deal of development in the housing industry, as people rushed to get in before the application of the GST. That was a predictable and understandable response to tax reform. The Commonwealth Government always intended to compensate new home buyers so they would not be disadvantaged by the introduction of the new tax regime. Existing home owners would be advantaged in the sense that they would pay GST on their next house but the value of their existing house would have increased by the value of the GST. If new home buyers were not adequately compensated they would have been disadvantaged, and there was no intention on the part of the Howard Government to allow that to happen.
However, the impact on the housing market was significantly greater than was originally foreshadowed. A further stimulus was deemed necessary, and the first home owner grant has been doubled from $7,000 to $14,000. This was clearly a significant incentive for the housing industry. Recent statistics show that it has responded to that stimulus as people have taken the opportunities afforded by the scheme. It is fair to say that we should also compliment the Carr Government as it has added to that scheme by certain other concessions that are given to first home buyers who qualify for this grant, such as exemptions in stamp duty.
The position in New South Wales is extremely generous. However, the Carr Government has benefited substantially from stamp duty on housing sales, which have been healthy, particularly since the Howard Government came to office. The Carr Government was in a position to be generous, and it is simply giving back to people money which it had taken out of an industry in the lead-up to this new scheme. In another place members of the Opposition asked a number of questions about the operation of the scheme. I conclude with the words of the Leader of the Government in the other place, who said in reply:
I thank the honourable member for Hornsby and the honourable member for Wakehurst for their contributions. The honourable member for Hornsby has raised an issue in relation to one of his constituents and the honourable member for Wakehurst has asked a series of questions. I am sure the Treasurer will deal with those matters when he addresses Her Majesty's upper House.
I note with some regret that the Treasurer is not present to answer those questions, but I wish to put them on the record of the upper House to assist my colleagues. Given that the Government has now had a couple of days 6 June 2001 LEGISLATIVE COUNCIL 14443 notice of these issues, I hope the advice required might be available to the Minister for Juvenile Justice to make some response. The questions relate to whether the commissioner in New South Wales has sufficient flexibility to ensure that the scheme operates as intended, because it is subject to some fairly stringent opening and closing dates relating to when construction is due to start and when it must be completed. It is also contingent on the date when contracts are signed. It has an overriding requirement that the house must be new, because it was the deliberate intention of the Howard Government to stimulate the construction industry rather than the real estate industry generally.
The honourable member for Hornsby in another place referred to an incident involving a couple who decided to purchase a house. The house was new as far as they were concerned; it had been recently constructed. They intended to purchase it using the first home owner grant available under this scheme. During the purchase of the house they discovered that it had been built for someone else. The previous owners were unable to complete the finance, but the arrangement they had with regard to the sale allowed them to live in the house for 18 days. When the sale failed to go through, the previous owners discontinued living in the house. They abandoned it and it went on the market—for all intents and purposes as a new home.
Unfortunately the couple were not eligible for the first home owners grant because the home had been lived in for 18 days. I am sure most honourable members would consider that to be an anomaly, and would consider that the scheme is not operating as it should be. The question was asked of the Treasurer whether the scheme was sufficiently flexible to compensate that couple or others who might find themselves in a similar position. The concerns of my colleague the honourable member for Wakehurst related essentially to the fact that some people who might have wanted to access the scheme had discovered that the construction of their home was caught up in the collapse of HIH. As honourable members are aware, it has been difficult for builders to continue the construction of homes because they had home warranty insurance arrangements with HIH. Following the collapse of that insurer they have had to find another company to insure the construction, as the law in New South Wales requires.
The construction of some houses may be delayed and, as a result of that anomalous situation, for reasons beyond the control of the couple involved—and no-one would say the collapse of HIH was under the control of housing consumers—they may no longer be eligible for the grant and have to pay back the money. Having financed the house on the assumption that they had an extra $14,000 in their pockets, they may discover at the conclusion of construction that they have to pay out $14,000—an amount that probably did not form part of the mortgage but was what they raised in the first place to construct the home. I know that there is some reference to flexibility on the part of the commissioner to allow for delay caused by certain events beyond the control of the parties, but that relates only to building work which started within six weeks of the commencement date. That is where HIH is critical.
People may have signed with a builder who does not have the requisite insurance. It takes a builder more than 16 weeks to arrange insurance. Consequently, through no fault of their own but through a fault on the part of the builder and the insurance scheme, those people may not then be eligible for the grant. I would like an assurance from the Minister that people who are caught in that position do not become ineligible. The honourable member for Wakehurst also asked about a large number of people who had signed up for houses on land that is yet to be registered, or on an unregistered plan of subdivision. He wanted to know whether—if there was a delay with Landcom or some other government agency and the house was not constructed before the due date—that would render the applicants ineligible for the first home owner grant and result in them losing $14,000 towards their house.
In addition to those questions from my colleagues in another place, I have a final question for the Government that arises out of inquiries I have been making about a home building company—indeed, it is one of the largest home building companies in Australia—called Henley Properties Ltd. Until only a week ago that company was offering properties for sale in New South Wales under a scheme it refers to as Henley Select. Honourable members would be blind not to have noticed that this company is not only a very large building company that has stopped selling properties in New South Wales; it has been the subject of a large number of complaints about the quality of its home building and its follow-up maintenance.
On a couple of occasions the company has been obliged to re-purchase properties that required a substantial level of demolition because they had been so badly built. I have already spoken about this matter in the House on a couple of occasions. I appeared on the Terry Willesee program on radio 2GB with one of the directors of Henley Properties, Mr Peter Hayes. Mr Hayes was explaining why Henley Properties had recently stopped selling new properties in New South Wales. He said: 14444 LEGISLATIVE COUNCIL 6 June 2001
The only thing we have been doing in NSW and we have been doing for quite a while, is selling house and land packages under Henley Select. Which is where the Government grant we use, we have got a special finance package, where we can use it as deposit. Now in order for the Government grant, to get the $14,000 grant, that home needs to be started by December or started between December and January, and contracts need to be signed by December. Now land in NSW is out until November- December anyway. We really haven't got the land to make the sales on because of the forward demand for land because of the first home buyers.
I apologise for the grammar; it probably relates to the fact that it is spoken English, not written English. Henley appears to be blaming the New South Wales Government's performance for the fact that it can no longer continue to sell houses in New South Wales. It is saying that the Government has not provided enough land. Honourable members should recall that this scheme is predicated on the requirement that the houses to which the scheme attaches are new. Mr Hayes is saying that not enough land is being released in Sydney for Henley Properties to guarantee that it will be able to commence and complete the projects within the time specified in the legislation. Consequently, Henley has stopped offering this package.
First, I point out that Henley appears to be blaming the New South Wales Government, and Landcom in particular, for curtailing the opportunities for people to access the scheme by not releasing sufficient land. I ask the Treasurer whether the Government is to blame for the inability of companies like Henley Properties to sell their house and land packages? If so, will the Government do something to ensure that sufficient land is released to enable people to take maximum advantage of the scheme? As I said, it is necessary for land to be available on which new houses can be constructed. Henley Properties seems to be saying that there is insufficient land for the company to trade successfully in New South Wales, and it is indirectly blaming the New South Wales Government for its misfortunes. I am sure that the Government will have a vigorous response to that allegation, and I look forward to seeing that response. I point out that the allegation was repeated by another director of Henley Properties, Mr John Hayes, when he appeared with me on Adelaide radio on Monday afternoon to discuss the same issue.
The Hon. Duncan Gay: You get around.
The Hon. JOHN RYAN: I certainly get around. So does Henley Properties, it appears. I am sure the Minister will have some interesting information as to whether the scheme will be curtailed by the Government's actions. As I said, the Opposition supports the bill because it provides for the operation of a scheme proposed by the Howard Government. Naturally, we will support anything that stimulates the opportunity for people to buy and live in their own homes and stimulates the economy of Australia in this way. Ms LEE RHIANNON [4.44 p.m.]: When the original First Home Owner Grants Bill came before this House last year we put the concerns of the Greens clearly on the record. Those concerns remain with this bill, which is an extension of the provisions in the original legislation. The Greens consider the First Home Owner Grant scheme to be poor and discriminatory policy which will advantage high-income and middle-income earners. It is also clear that this policy of subsidising first home buyers, particularly the buyers of a new home, has been brought upon us by the GST. The Greens opposed the GST from the start, and we are the only party committed to its repeal. The GST damaged the economy and depressed the housing sector, and these subsidies are a desperate attempt to kickstart the economy and undo the damage that has been done. New South Wales is currently in something of a housing crisis. With about 100,000 applicants awaiting public housing, inner Sydney public housing stock is being sold to pay for maintenance costs and rising public housing rents. Declining government funding is leaving more and more low-income earners without adequate housing options. The lowest 25 per cent of income earners generally cannot afford home ownership at present, particularly in the Sydney area. This bill represents many millions of dollars which would be far better spent on extra public and community housing or to directly support low-income earners in the private rental market. Instead, it is millions of dollars going into the pockets of those who can already afford to enter the property market. This imbalance in favour of high-income and middle-income earners is in part created because the bill contains no provisions for means testing the grants. If the available funds were targeted towards assisting those on the margins of the property market to purchase property, the bill would have some merit. Instead, it is a free- for-all when even the wealthiest members of our State will pocket $7,000 or $14,000 if buying their first home while nearly 100,000 people wait for public housing. To argue, as both Federal and State Governments have on this issue, that a flat $7,000 or $14,000 grant is of more benefit to a low-income home purchaser than a high- income purchaser is, in our view, a mistake. That argument would hold water if the property market was a level playing field. However, the reality is that 25 per cent of the New South Wales population are out of the picture from the outset—grant or no grant, 6 June 2001 LEGISLATIVE COUNCIL 14445 home ownership is simply beyond their financial means. As I said, the Greens recognise that this bill is one component of a nationally agreed scheme and that GST compensation is a matter for the Commonwealth Government. However, we believe that the bill is such poor policy that it cannot be supported. The Greens urge the Government to address the issues we have raised and to strongly take up the issues with the Commonwealth Government.
The Hon. Dr PETER WONG [4.47 p.m.]: The intent of this bill is to facilitate the doubling to $14,000 of the first home owner grant announced by the Federal Government. The Unity party notes that the doubling of the first home owner grant has been welcomed by first home buyers and young families in particular. The Federal Government's GST has made the dream of new home ownership somewhat harder for many young families. This is particularly the case for battling families in Sydney's west. While in my opinion this initiative may not compensate them for the full impact of the GST in every case, at least it is a significant start.
For that reason the Unity party welcomes this initiative as it will directly benefit first home owners, as well as provide a much-needed stimulus for the local building industry. However, the Unity party also strongly supports the comment made by Ms Lee Rhiannon that it is unfortunate that the State Government has not done much for low-income earners in our community and homeless people in particular, including its recent budget announcements.
The Hon. CARMEL TEBBUTT (Minister for Juvenile Justice, Minister Assisting the Premier on Youth, and Minister Assisting the Minister for the Environment) [4.49 p.m.], in reply: I thank all honourable members for their contributions to the debate. As honourable members have pointed out, the primary purpose of this bill is to implement the temporary increase from $7,000 to $14,000 to the first home owner's grant, which was announced by the Prime Minister. The additional $7,000 is an initiative from the Commonwealth Government, which is providing the funding for the additional grant. The Office of State Revenue administers both the existing and additional first home owner's grants in New South Wales.
There are a number of matters upon which I wish to provide more detail because they have been raised both during debate in this Chamber and in other places. Moreover there seems to be some misunderstanding or concern in relation to these issues and I think it would be useful to put the record straight. For example, one of the issues that has been raised is whether or not the proposal of deferring entitlement to the grant until the registration of the transfer will disadvantage home buyers. At present, an applicant who meets the eligibility requirements of the scheme is entitled to payment of the grant upon being entitled to occupy the home. There is no requirement for the purchaser to subsequently register the transfer of the property.
It is possible for a sham contract to be made for the sole purpose of obtaining the grant. Although no instances of such shams have been identified to date, it is proposed to provide that an applicant is not legally entitled to the grant until the purchaser's title has been registered. This would allow the Chief Commissioner of State Revenue to withhold payment on high-risk applications until after registration of the transfer. Alternatively, the chief commissioner would be able to recover the grant if the transfer is not registered. The proposed amendments would have no impact on the current practice of paying the grant in advance of legal entitlement in most cases. Where an application is made through a participating financial institution, grant funds will continue to be made available for use on settlement of the purchase. Where an application for a grant is not made to a financial institution, an eligible applicant will receive payment by providing evidence of settlement.
Payment of the grant would be withheld only until the transfer has been registered in circumstances where there is an identified risk that the application could be false, including where the transaction may have been contrived for the sole purpose of obtaining the grant. The proposed amendments will be consistent with changes made by other States to the original grant scheme legislation. Concerns have also been mentioned about arrangements that are in place to enable payments of the additional $7,000 grant. Most grants of the existing First Home Owner Grant Scheme are made available for use on settlement of the purchase. As the additional grant applies only to contracts that are entered into on or after 9 March 2001, only a limited number of applicants is entitled to payments of the additional $7,000 grant at this stage.
Although the legislation has not yet been amended to authorise payment of the additional grant, arrangements are in place to ensure that there are no delays in processing applications and in paying the grant. The first applicant to be entitled to the $14,000 grant has already been paid and a number of other applications are in the pipeline. In addition, some applicants have requested payment of the original $7,000 grant for use on settlement with the additional $7,000 grant to be paid at a later date. All first home buyers who are entitled to 14446 LEGISLATIVE COUNCIL 6 June 2001 the full $14,000 grant will be paid at the time at which their entitlement arises. The Hon. John Ryan raised some issues during the second reading debate that were also raised in the other place late last night. In his wisdom, the Minister for Police, the honourable member for Strathfield, indicated that the Treasurer would be able to provide a response to those issues.
If I understand the situation correctly, the particular issue mentioned by the Hon. John Ryan related to a couple who had purchased a home in which someone else had lived for 18 days but a contract was not completed. The circumstances were regarded as not relating to the purchase of the new home. I understand that last night in the other place this matter was raised by the honourable member for Hornsby, who indicated that he had made personal representations to the Treasurer. I am sure that the Treasurer will be responding directly to the honourable member for Hornsby about that matter. I am unable to respond in greater detail to honourable members tonight but I will undertake to obtain a response in relation to those issues and will speak to the Hon. John Ryan personally about it. Having made those comments, I commend the bill to the House.
Motion agreed to.
Bill read a second time and passed through remaining stages.
FIREARMS AMENDMENT (TRAFFICKING) BILL
Bill received and read a first time.
Motion by the Hon. Carmel Tebbutt agreed to:
That standing orders be suspended to allow the passing of the bill through all its remaining stages during the present or any one sitting of the House.
CRIMES LEGISLATION AMENDMENT (EXISTING LIFE SENTENCES) BILL
Second Reading
The Hon. CARMEL TEBBUTT (Minister for Juvenile Justice, Minister Assisting the Premier on Youth, and Minister Assisting the Minister for the Environment), [4.56 p.m.]: I move:
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.
Leave granted.
On Friday 25 May the Premier announced that the Government would introduce legislation to protect the community from Baker, Crump and other "never to be released" prisoners forever. This includes the killers of Anita Cobby and Janine Balding. This Bill was approved by Cabinet in October last year. The Government was not able to announce this because of Supreme Court proceedings concerning Baker. On that Friday, Justice Greg James refused to redetermine Baker's sentence. This means we can at last introduce this Bill.
In doing so, the Premier keeps his commitment to Brian Morse in 1997 that he would do all in his legal power to protect the community and keep Baker and Crump in gaol. This Bill is needed because of deficiencies in the truth-in-sentencing legislation introduced by the former Coalition Government. That legislation permits those offenders who were sentenced to life imprisonment before its introduction to apply to the Supreme Court for a redetermination of their sentences. The Supreme Court can replace a life sentence with a sentence for a fixed term. It can also set a non-parole period after the expiry of which the Parole Board could grant parole to the offender.
In 1997, the Government introduced the toughest sentencing laws in the history of the New South Wales Parliament. The Sentencing Legislation Further Amendment Act 1997 requires the Supreme Court, in hearing an application for a redetermination, to have regard to, and give substantial weight to, the recommendations, observations and comments made by the original sentencing judge.
This Bill will tighten the law even further. This Bill will remove the ability of the Supreme Court to set a fixed period of sentence for a non-release offender. The Supreme Court will continue to be able to set a non-parole period, or minimum sentence. It will no longer be able to set a fixed period, or maximum sentence. This means that a non-release offender will never be released from custody unless a parole order is granted. Currently, a non-release offender may apply for a redetermination of sentence after serving 20 years of his or her sentence.
This Bill will require a non-release offender to serve at least 30 years before applying for a redetermination. Currently, the legislation defines a "non-release recommendation" to mean a recommendation or observation, or an expression of opinion, by 6 June 2001 LEGISLATIVE COUNCIL 14447
the sentencing court that, or to the effect that the offender should never be released from imprisonment. This Bill expands the definition of "sentencing court". This will make it clear that the non-release recommendation provisions apply, whether or not the non-release recommendation was made by the original sentencing court or by another court on appeal or on a retrial. If any one of these courts made a non-release recommendation, it will apply regardless of whether the non-release recommendation was also made or repeated by any other court involved in sentencing the offender.
I turn now to the provisions affecting parole. This Bill provides that the Parole Board may release a non-release offender on parole if, and only if, three conditions are met. First, the Parole Board must be satisfied, on the basis of a report prepared by the Chief Executive Officer of the Corrections Health Service, that the non-release offender is in imminent danger of dying or is incapacitated to the extent that he or she no longer has the physical ability to do harm to any person. Second, the Parole Board must be satisfied, on the basis of a report prepared by the Chief Executive Officer of the Corrections Health Service, that the non- release offender has demonstrated that he or she does not pose a risk to the community. Third, the Parole Board must be further satisfied that, because the first two conditions are met, the making of a parole order is justified.
These changes mean Baker, Crump and the other "never to be released" prisoners can only ever be released on their deathbeds or when they are so incapacitated that they would pose a threat to nobody. It means the community is protected from these killers forever. As the Premier said on Friday 25 May, we are concreting them into their cells.
This Bill also removes the right of non-release offenders to be automatically considered for parole. Currently the Parole Board is required to consider whether or not a serious offender should be released on parole on an annual basis, once the offender becomes eligible for parole. This Bill will ensure that non-release offenders who have had their sentences redetermined are not entitled to any automatic consideration for parole.
On a number of occasions, the Government has refused to debate the Crimes (Sentencing Procedure) Amendment (Life Sentence Confirmation) Bill 2000 which was introduced by the Leader of the Opposition. In August last year, Government members combined with members of the crossbench to defeat the Crimes (Sentencing Procedure) Amendment (Life Sentence Confirmation) Bill 2000 (No 2) which was introduced by the Deputy Leader of the Opposition in the other place.
The Government refused to debate the Opposition’s Bill in this Chamber because of legal advice from the Attorney General’s Department on the effect that any debate might have on Mr Baker’s application for redetermination of his sentence. On 27 June last year the Attorney General’s Department advised that:
A real danger exists that any debate or statements made about the hearing could and would be regarded as an attempt to influence Justice James in his decision …
If he did not adjourn then there is a danger that Baker, if the court were to hold against him, would be handed grounds of appeal on a plate.
The Premier's staff showed this advice to members of the Opposition before they introduced their Bill. They chose to ignore this advice for short-term political gain. The Government was not prepared to take this risk.
The Supreme Court hearing had to allowed to take its course. This is a very technical and difficult area of the law. The High Court has struck down legislation in this area in the past. We have to make sure we get it right. This Bill has been drafted to ensure that it will withstand any legal challenge. We do not want the families of these victims to suffer further. They will suffer further if they are given false hope by legislation which is struck down by the High Court.
Our changes to the criteria for parole are very deliberate. By changing the criteria for parole, this legislation captures Crump. His sentence has already been redetermined and he is eligible for parole in 2003. By focusing on parole we also avoid constitutional problems. The Parole Board is not a court. Parole is an Executive function. Changes to the parole rules do not affect judicial functions or judicial independence. This approach has been confirmed and endorsed by the Solicitor General. In October last year, the Solicitor General provided the following advice:
In my view, there is no reason to doubt the capacity of the New South Wales Parliament to prescribe the matters on which the Parole Board must be satisfied before it directs the release of an offender on parole. It has done so, of course, since the Parole Board was established by the Crimes (Amendment) Act 1950.
Accordingly, there is no legal basis, in my opinion, on which the validity of the proposed s 154 A might be challenged.
The Solicitor General’s advice makes it clear that this Bill is within the Parliament’s powers.
This is a carefully considered plan. We are encouraged by the Solicitor General’s advice. These laws are about protecting the community from these killers forever, doing everything we legally can to keep them in gaol. And they are about keeping a commitment to a very decent man, Brian Morse. I commend the Bill to the House. The Hon. DUNCAN GAY (Deputy Leader of the Opposition) [4.56 p.m.]: I lead for the Opposition on this bill. It is unusual for me to lead for the Opposition when we are debating legislation proposed by the Attorney General. However, I do so on this occasion given my friendship with the family of the late Virginia Morse and the fact that I have introduced several bills in the House on this particular subject. In recent times the suggestion of the possibility that the convicted murderer Allan Baker could be released into the community has caused anger and considerable concern throughout this State. Baker's application for a redetermination of his sentence focused the attention of the community on a class of prisoner whose crimes are so horrendous that their records are marked with the comment that they should never be allowed out of gaol and who, to use the Premier's own words, "because of a quirk in the legislation will have an opportunity to apply for release". 14448 LEGISLATIVE COUNCIL 6 June 2001
Much of the community's sympathy has been focused on the Morse family, particularly Brian Morse who is the husband of Virginia—a woman who was kidnapped, assaulted and murdered by two men, Baker and Crump. That particular murder profoundly affected country people because they lost confidence in the security of their homes and their farms. Previously they felt comforted by a blanket of safety and a belief that all would be right. Most country people know each other from different communities. The Morse family had connections right throughout the southern part of this State. Virginia Morse's brothers are very close friends of mine. Many people throughout the State have a connection with the Morse family. To put the matter simply and concisely, Brian Morse has not been seeking justice for Virginia—although he is entitled to do that—he has been looking for security for him and his family.
Given all that the Morse family has endured, security for Brian Morse and his family is not too much to ask; it is a request that every honourable member of this House should support. For that reason the Leader of the Opposition, Kerry Chikarovski, the Leader of the National Party, George Souris, the honourable member for Lachlan, Ian Armstrong and, over the years, people such as Roger Wotten—whose daughter is married to one of Virginia Morse's brothers—have fought so hard to bring forward legislation that will not only provide justice for families who suffer as a result of the commission of terrible crimes but will also provide security, so that they do not have to worry about violent crime again.
The Opposition's motivation all along has been to give Brian Morse, his family and the families of the other victims all the support they deserve. It has not been, as has been callously suggested by a pretty ordinary Labor member, a matter of political grandstanding; nor has it been a matter of trying to interfere with the work of the courts. Last night in the Legislative Assembly the honourable member for East Hills delivered a disgraceful contribution. His suggestion that the Opposition's introduction of the bill last year was an attempt to strengthen the standing of the Opposition Leader is absolute nonsense and does the Government no credit at all. The electorate he represents would expect better of him. Knowing the honourable member for East Hills as I do, I was astounded that he would make such a statement; frankly I expected better of him. The work of the Opposition on this matter last year was simply to strengthen the views of the original sentencing judges in cases in which defendants were sentenced to life imprisonment with their files marked "never to be released". The Crimes Legislation Amendment (Existing Life Sentences) Bill is not just about the brutal murder of Virginia Morse. Rather, it is meant to be for all the victims of criminals sentenced "never to be released". That includes the families and friends of Anita Cobby and Janine Balding. The Opposition will not oppose the bill; however, I indicate that we will move amendments to it. We do so with the intention of seeking bipartisan support for an issue that should be addressed in a bipartisan way. The bill removes the ability of the Supreme Court to set a fixed period of sentence for a non-released offender, replacing it instead with possible parole. The Parole Board can then grant parole if the offender is in imminent danger of dying or is incapacitated, and has demonstrated that he or she does not pose a risk to the community and that parole is justified. It is interesting to note that when he was Opposition Leader, the Premier attacked the former Coalition Government for placing more responsibility with committees and boards. This bill will do exactly that. It will allow the Parole Board to grant parole if the offender is permanently incapacitated. I turn to the definition of "permanently incapacitated". Yesterday in the other place my colleague the honourable member for Lachlan, Ian Armstrong, raised this matter effectively. The bill does not clearly define permanent incapacitation. What does the term mean? Would the amputation of limbs, the loss of both legs and confinement to a wheelchair constitute permanent incapacitation? Would a stroke, the loss of one leg or one arm, or the loss of an eye also constitute permanent incapacitation? The bill contains no such definition. It provides that offenders whose files are marked "never to be released" can be released if they have permanent incapacitation, yet it contains no proper definition of the term. In the context of the bill does it mean "terminally ill"? Is it when a prisoner is literally on his or her deathbed? What is the definition? Is it the insurance definition, or some other definition? Yesterday in the Legislative Assembly the honourable member for Lachlan raised realistic concerns with regard to the bill. One of the great advantages of a bicameral system is that the Legislative Council has the opportunity to re-examine such matters. No proper explanation of the term was given in the Legislative Assembly yesterday. Now that the bill is being debated in the Legislative Council, and given the gravitas of the bill, I hope the Government will provide a definition of the term "permanent incapacitation". The bill, with the proposed Opposition amendments, would have been unnecessary had the Government supported the Coalition's Crimes (Sentencing Procedure) Amendment (Life Sentence 6 June 2001 LEGISLATIVE COUNCIL 14449
Confirmation) Bill, which Kerry Chikarovski moved in the Legislative Assembly and I moved in the Legislative Council. That bill sought simply to confirm the life terms to which the criminals were sentenced at the time of their conviction. The criminals were sentenced by the judges "never to be released". That is exactly what should occur, and that is exactly what the judges who sentenced them expected to occur. Yet Bob Carr and his Government refused to debate the bill on at least 10 separate occasions in the lower House and on several occasions when I brought the bill before this House.
A clear indication of the disdain with which the Premier treats this Parliament is clear in the record of proceedings of the lower House yesterday. The Premier was happy last week to announce the Government's intention to introduce this bill; he was happy to go on radio and beat up on the Opposition's proposals; he was also quite happy to say that his bill would close off a loophole in the existing laws. But yesterday when the bill came before the lower House, the Premier was nowhere to be found. He did not speak to the bill, nor did he attend divisions to vote on it. It is a further indication of an arrogant Premier who has lost interest in what is happening in the Parliament.At the time the Opposition sought to introduce its bill last year, the Government said it had received advice that there were legal and constitutional concerns involved. That is simply incorrect. The Opposition obtained legal advice from senior counsel, which stated:
Since Parliament has provided those prisoners with a process which enabled them to have their sentences determined by being shortened from that originally imposed, if appropriate, there is no reason in principle why Parliament cannot remove or (substantially amend or alter) that process either with respect to all remaining prisoners in such a position, or with respect to a particular prisoner …
In addition, the advice stated:
It is within the power of the New South Wales Parliament to pass a valid Act which would have either a direct or indirect effect on the ability of Mr Baker to continue with his application for redetermination of his life sentence.
That advice was clear: this Parliament had the power to pass a bill for an Act to ensure that Allan Baker and others with files marked "never to be released" would not be able to apply for a redetermination of their sentences. That is pretty simple. Unfortunately, the Government chose to ignore the opportunity to support the Opposition's legislation. I do not know whether the Government was playing politics or was simply being pig- headed. Thereby the Government chose to ignore the opportunity to protect the community and the rights of the families and friends of the victims. Instead, belatedly, the Government has introduced this bill.
Fundamentally, this bill has one major problem. It fails to ensure that those who, because of the heinous nature of their crimes, were sentenced "never to be released" are never given the opportunity to seek that release. If the bill is passed in its present form, Baker would be able to apply every three years for a redetermination of his sentence. Instead of closing off the option to apply for a redetermination of the sentence, as the Opposition bill would have done, this bill will leave in place the opportunity for offenders such as Baker to put up their hands every three years and ask for another chance.
The Premier said when he announced his intention to introduce this bill that it would mean such offenders would be virtually cemented in their cells. That will not be the case. The families of the victims of their crimes will have to live with the possibility of a redetermination of sentence every three years. This bill is not just about prisoner Baker; it is about all prisoners who have been put in gaol with their papers marked "never to be released". The basic thrust of the bill means that the families and friends of victims of crimes of prisoners who are never to be released may be forced to endure redetermination hearings for the rest of their lives. Once murderers have served 30 years of their sentence, all the hurt, pain and suffering could once again, on a regular three-year basis, be brought to the surface for the families and friends of the victims. Last year Mr Morse said:
Twenty-seven years ago when the trial was over I felt secure. They were convicted for life and we could go on with our lives as best we could. Now, Mr Morse, and others like him, may have to endure a redetermination hearing every three years, with all the associated pain, publicity and media attention that goes with it. If the redetermination is successful, they may then be forced to endure parole hearing after parole hearing. Killers with files marked "never to be released" will apply time and time again because this bill will allow them to do that. They have the time and energy to keep applying for redetermination and then for parole—to pretend otherwise is to delude oneself. Surely, the families have suffered enough. As I mentioned earlier, the Coalition will seek to amend this bill to include the provisions of the Crimes (Sentencing Procedure) Amendment (Life Sentences Confirmation) Bill 2000. That is the bill that the Government stalled on and refused, on numerous occasions, to even debate. Our amendments will deny killers 14450 LEGISLATIVE COUNCIL 6 June 2001 with files marked "never to be released" the opportunity to seek a redetermination of their sentence in the Supreme Court. The Leader of the Opposition said in debate in the Legislative Assembly on this matter:
We believe there are some crimes so horrific that penalties should not be re-evaluated at a later date. There is no need for a further consideration at a later date—a consideration tempered by a range of extraneous issues and arguments, including claims of personal reformation.
That is true for the Virginia Morse murder, the Anita Cobby murder and other similar heinous crimes. The Coalition appeals to the Government to adopt a bipartisan approach to the amendments of the Coalition and to finally do what the Premier said would be done in 1997, following the successful redetermination of Crump's sentence: introduce laws that would, according to the Sydney Morning Herald on 9 May 1997, "ensure that the murderers were never granted parole". The Premier also declared that "the legislation will ensure Kevin Crump will never be released". The legislation introduced by the Government in 1997 did not fulfil the Premier's promise. These murderers were still eligible for parole and eventual freedom. This bill, if unamended, will still not fulfil the Premier's promise of 1997, that these murderers would never be granted parole. By accepting the Opposition's amendments the Premier will finally have the chance to fulfil his promise. I am sure the Premier would like to fulfil at least some promises. I urge all honourable members to support this bill and the Coalition's foreshadowed amendments.
Ms LEE RHIANNON [5.15 p.m.]: When the Opposition introduced a bill similar to this one last year the Greens opposed it on principle. At that time the Government also opposed the Opposition's bill, but no-one ever thought it did so on a matter of principle. It was clear then that the Government simply did not want the Opposition to get the headlines or the image boost of cracking down on criminals and of being the law and order toughies. So now we have a bill introduced by the Government that is very similar to the bill introduced by the Opposition, and still the Greens oppose it. It is very clear that the bill has nothing to do with crimes committed or with the victims of crimes and their families, or even to do with the administration of justice. It is all about the Government's law and order spin. It is all about the Government wanting to look tough on crime and tough on criminals. It is 100 per cent image, perception and spin. Unfortunately, in this grubby and unseemly race to the bottom of law and order issues, some very bad laws are being created along the way. The bill is unconscionably harsh, discriminatory, unprincipled and foolish. It is extremely poor law.
Prior to 1990, before the unfortunate imposition of truth in sentencing legislation, judges would occasionally say to prisoners after their conviction, and whilst sentencing them to a long period of imprisonment, that they should never be released. At the time, however, such a recommendation was not binding. A judge was free to make such a statement as a throwaway line, to express the extent of his or her feelings, or as an attempt to reassure the victim or the victims relatives. There was never at that time any inkling that their statement would one day be taken seriously in law. When judges made those statements, they had no legal effect; they were not subject to legal argument. Defence counsel were given no formal opportunity to argue against such statements. The statements could not be appealed. They were, in short, just legal window dressing—a completely meaningless formulation of words.
The intent of this bill, however, is to retrospectively instil those words with tremendous power. The bill gives such words their literal meaning in a way that was never foreseen or intended. It will mean that every time a judge stated as a throwaway comment, knowing it to be empty, that an offender should never be released, that offender will, literally, never be released or, at least, not until the prisoner is on his or her deathbed. The impact of this retrospective sentencing is very serious. Defence counsel had no opportunity to argue against it at trial. It was never subject to legal argument, to the presentation of evidence or to the scrutiny of the court. Evidence might have been produced in those cases to demonstrate a chance of rehabilitation after many years in prison. Even if the judge had knowingly imposed a never to be released sentence, it would have been subject to appeal. The usual checks and balances would have applied. Everybody is entitled to such a process. On that point, it is of particular concern that two such offenders were juveniles when they committed their crimes. If this bill becomes law, no court will ever get to hear evidence about their likelihood of rehabilitation. What is most telling is the fact that there was no opportunity to present this evidence at the time of sentencing. When a government starts acting retrospectively with criminal sentencing, rewriting the basic rules years after the fact, it is inevitable that injustices will be committed. In relation to rehabilitation, a never to be released sentence is very serious. It condemns someone to a life without hope of release. It is dangerous because it creates a desperate prisoner with nothing to lose, and there is really no way that their lives can get worse—a poor situation indeed from the point of view of management of the criminal justice system. The possibility of parole, no matter how distant or remote, can serve as an incentive for good behaviour and for inmates to work to improve themselves and their lives. 6 June 2001 LEGISLATIVE COUNCIL 14451
When there is no possibility of parole, no chance of being released, the impact on the prisoners concerned will be enormous. It is extremely difficult, if not impossible, in those circumstances to accurately predict how dangerous an offender will be in 10, 20 or 30 years. It is also worth pointing out that the simple possibility of parole does not of course mean that offenders will be released. No-one is released on parole until he or she has satisfied a Parole Board that he or she does do not pose a risk to society. Eligibility for parole is not the same thing as automatic release.
This bill really is, therefore, a massive vote of no confidence in the existing parole system. Surely if it worked properly there would be no problem, because any potentially dangerous inmate would not be paroled. It is in that respect that this bill is in fact mandatory sentencing. It is mandatory sentencing because it is a mandatory life sentence: there is no opportunity for a judge, or a Parole Board, to make a decision based upon individual circumstances. And not only is it mandatory sentencing, but it is sneaky, backdoor mandatory sentencing, because the sentencing judges never understood or intended that this would be the case. It is a sneaky, unethical, unprincipled and grubby bill. In the days to come we will see an unseemly scramble between Labor and the conservatives for the tabloid headlines. This is a backward step for justice in this State.
At a very fundamental level, this bill is ridiculous because it seeks to reassure the public of their safety with longer sentences. But the Government is doing nothing to address the root causes of why such horrendous crimes are committed in the first place. There is no point throwing away the key on offenders if there is a steady stream of new offenders out there in the community. The conservatives and Labor will not address those issues. There will be a steady stream of offenders unless they address the root causes of the problem. People do not commit horrendous crimes unless there is something seriously wrong with them. All too often offenders are mentally ill, or have themselves been victims of horrendous abuse. Yet the Government is taking no dramatic steps to improve mental health or to tackle domestic violence or child abuse.
Very little is being done to attack the real causes, the root causes, of such crimes. In fact, in the area of mental health in particular, this Government has actually moved backwards and has made the situation worse because of its policies. Cuts to funding have reduced services, and the mentally ill have less support today than they have had in the past, and far less than they really need. Needless to say, the Greens will not be supporting the Opposition's amendments to this bill, for they are beneath contempt. This is a grubby, undignified and destructive race to the bottom. Labor and the Coalition should be ashamed of themselves. They are using victims to buy votes. The bill is discriminatory, it is unprincipled, it is very poor legislation, and it is the wrong way to achieve its stated objectives.
The Hon. IAN COHEN [5.23 p.m.]: I am pleased to follow Ms Lee Rhiannon in this debate so that the House will know that the Greens are strongly opposed to the bill. During the past few years there have been numerous attempts to legislate to keep small groups of individuals who have committed heinous crimes permanently behind bars. The Greens are acutely aware that this legislation is aimed at 10 individuals who have committed horrendous crimes. At the outset it is important to state that we feel the utmost sorrow and sympathy for friends and relatives of victims who have suffered a great deal, and who no doubt continue to suffer a great deal, since the horrific murders of their loved ones. However, our criminal justice system and the laws of our land should operate dispassionately and fairly. I believe the bill is an overreaction to public feelings, and it is bottom line in terms of criminal justice. In the Greens' view, this kind of legislation is not the answer to dealing with prisoners of this nature. The bill is a simple, political, knee-jerk reaction to a very complex issue.
The Hon. Rick Colless: You obviously don't know the family.
The Hon. IAN COHEN: The comment of the Hon. Rick Colless points out exactly what I have been saying: our legal system should not be influenced by such emotional feelings. I appreciate people having such emotional involvement, but they should not be involved in the making of the law on any of these issues. I do not detract from the personal feelings of the families of victims. If I were involved in a similar situation, I know how I would feel. However it is not appropriate that our laws be based purely on revenge. We are better than vigilantes. This is not a case of an eye for an eye or a tooth for a tooth; it is about justice and dispensing justice in a dispassionate manner.
The Hon. Duncan Gay: This bill is not about revenge.
The Hon. IAN COHEN: We must remove revenge from these law-making considerations. This bill is a further attack on the independence of the judiciary. It sends a strong message to the judiciary and the Parole Board that when it comes to these 10 prisoners their judgment cannot be trusted. As has been said in this debate, 14452 LEGISLATIVE COUNCIL 6 June 2001 a number of these prisoners were in their teens when they committed these heinous crimes. That is no excuse, but we have most of their lifetime to work on some form of rehabilitation, which this bill dispenses with completely. I was saying that the judgment of the judiciary and the Parole Board cannot be trusted in respect of these 10 prisoners, that their discretion is almost entirely removed. This bill removes the discretion of eminent people who serve on the Parole Board.
The bill fetters the discretion of the Supreme Court. It allows the Supreme Court to set a non-parole period for a non-release offender's sentence but denies the Supreme Court the ability to set a fixed period for the sentence. The bill also fetters the discretion of the Parole Board in that it is only in very limited circumstances that the board can make an order directing the release on parole of a serious offender the subject of a non-release recommendation. The order can only be made if the offender is in imminent danger of dying or is incapacitated to the extent that he or she is physically unable to harm others and he or she has demonstrated that he or she does not pose a risk to the community. Finally, the Parole Board must be of the view that the individual should be released.
On this basis, the legislation has been dubbed the "cement them in their cells" legislation. It is only one stop short of capital punishment. I was horrified when I heard the Premier make that comment, which received widespread coverage in the media and seemed to strike a chord with those in our society who have a vendetta mindset. When I hear "cement them in their cells" I think of the Spanish Inquisition and of medieval times; I do not think of modern law and order, modern judgments in our society and a humane system that seeks to rehabilitate as one of the planks in a system that imposes sentences of incarceration. "Cement them in their cells" is the comment of someone who feels they have absolute power. To me, it is unnerving that there is so much support in the community for that comment. I am sickened to hear a term like that. It reminds me of a medieval torture chamber mentality in the justice system in our society.
This bill sends a clear message to the Supreme Court and the Parole Board that they are not to be trusted to make a judgment regarding these prisoners. There is extreme political interference in the judicial process of the court and in the quasi-judicial decision-making process of the Parole Board. It is a form of mandatory sentencing. The bill also tightens up the circumstances in which never to be released individuals can have their sentences redetermined from a life sentence to a fixed term sentence. Prisoners must wait 30 years, instead of 20 years, before they can have their sentences redetermined. They can do this only every three years, instead of the previous two years.
The bill makes one of the four principles behind imprisonment virtually redundant. The four rationales for imprisoning people are rehabilitation, deterrence, punishment and community safety. The incentive for these 10 people to rehabilitate will be significantly reduced. The 10 prisoners now know that there is no prospect of getting out of gaol until their life is nearly at its end. If the incentive to rehabilitate is connected with obtaining liberty in the future, it is completely annihilated. Those individuals who put serious effort into rehabilitation on the basis that they would one day be released back into society now no longer have that incentive. The incentive of possible freedom is removed from their lives altogether and could indeed entirely reverse any rehabilitation process that is currently under way. There is a strong possibility that the bill will make some of them extremely angry, leading to further unnecessary violence being inflicted on wardens and other inmates.
What a retrograde step! As a Green, an individual and a human being I abhor the direction that is being taken by this Government. It is disgusting and there is no excuse for it. The Government is beating its breast in some law and order campaign to appeal to the lowest common denominator in society when it should be setting a moral direction for society.
The Hon. Dr PETER WONG [5.30 p.m.]: In supporting the Crimes Legislation Amendment (Existing Life Sentences) Bill I agree with the Government's reasoning that the proposed legislation will provide the appropriate outcome for the general community and for families of homicide victims. The Government's legislation will tighten up on the ability of a small number of prisoners to apply for their life sentences to be redetermined when files have been marked "Never to be released." I support this legislation out of consideration for the families of victims, but I do not want to become involved in a tough action on crime. Let this be the end of it. I do not believe that there is any benefit in moving additional amendments to prove who can be the toughest.
The Hon. JOHN TINGLE [5.32 p.m.]: I find it astonishing that anybody could oppose the Crimes Legislation Amendment (Existing Life Sentences) Bill. To suggest that this is simply a ballot—an auction, if you like, of law and order—totally overlooks and misunderstands what the community feels about the types of 6 June 2001 LEGISLATIVE COUNCIL 14453 crime and the types of criminals affected by this legislation. A lot of things have been said about this legislation. It has been suggested that this legislation is retrospective sentencing. I totally reject that argument. It is confirming sentencing. This sort of thing can apply only to somebody who, in the first place, has been seen by the court to have committed such an horrific crime that the comment can be made—even if it is only a throwaway line, as suggested by Ms Lee Rhiannon—that the prisoner should never be released.
I believe that a judge would have to be deeply moved by the evidence placed before him during a trial to make a comment like that. I believe that we, as a community, and the administrators of the prison system must take those sorts of comments very seriously. One or two things in the bill concern me a little, but they are not the same sorts of things that have been mentioned by Ms Lee Rhiannon and the Hon. Ian Cohen. For instance, Ms Lee Rhiannon made many comments about rehabilitation. She said how terrible it would be to live a life without hope of release. Hope is the sort of thing that has been denied the victims of these crimes. Rehabilitation is something that we cannot prove. Rehabilitation is a guess, if you like. Rehabilitation is a gamble with the future of people who might be a threat if these prisoners are released.
Who in the world can rehabilitate Virginia Morse, Janine Balding, Anita Cobby, Ebony Simpson and all the other people who were given no hope, who were given no chance of life and whose lives were wiped out by the criminals who did this sort of thing? Rehabilitation should not enter into the type of crime that we are talking about today. As far as I am concerned, to suggest that this is a massive vote of no confidence in the parole system or to suggest that it sends a message to the judiciary or the Parole Board begs the statement that the community is not talking about revenge; it is not talking merely about punishment; it is talking about a suitable, proper and appropriate penalty for people who commit a crime of this type. People want these criminals removed from society. They want the message to go out that we take this sort of thing seriously.
If a person takes a life under these circumstances, in a sense, his or her life must be forfeit. That does not mean that we will execute those criminals; it means that we will lock them away and say, "The rest of your life will be spent in prison." The Deputy Leader of the Opposition made a good point when he suggested that we need a much clearer definition of "permanent incapacity" and "imminent danger of dying". The bill suggests that the chief executive officer of Corrections Health Service must certify that the offender is suffering those conditions. I suppose that that is one way of deciding on the definition of those terms. I ask the Government to have another look at this terminology. It must make quite clear what is meant by it.
What does the term "imminent danger of dying" mean? Does it mean tomorrow, next week or the month after? Does it mean that someone is suffering from a terminal illness that cannot be cured? I would like to know a lot more about that before this bill passes through this Chamber. I am troubled about the amendments that have been foreshadowed by the Opposition. We must consider carefully whether we support this bill and we must consider carefully its immense complexities and the power that it gives to a court and to the judicial system to keep somebody in gaol permanently. We must make sure that we get it absolutely right. As I understand it—I may be wrong but I do not think I am—because of the complex nature of this bill and the groundbreaking procedures that it introduces, it is susceptible to legal challenge. I do not know what the situation would have been in the Baker case had this bill been in place, but I believe that we must ensure that the bill is as watertight as possible so that, unlike the so-called truth in sentencing legislation, it is not taken by criminals and used against society to the benefit of those criminals.
That was not the purpose of the truth in sentencing legislation but, because of the loophole in it, some criminals were able to get their sentences determined and to have those sentences effectively reduced. This bill must be watertight in that respect. I am not absolutely sure that it is. However, I want to be satisfied that, if the Opposition's amendments are successful, the bill is not taken over the line and that it does not enable such a challenge to be made more easily—a challenge which would be likely to succeed. The community needs this bill, justice needs this bill and we need this bill. It has to be supported. To suggest that it is some sort of Spanish Inquisition type penalty and a bid simply to gain political mileage totally fails to understand public sentiment, which has been evident and strong for a long time. I support the bill.
The Hon. RICHARD JONES [5.36 p.m.]: Public hangings were popular a couple of hundred years ago. The public would love it if public hangings were again introduced. Hundreds of thousands of people would attend, eat their sandwiches, do their knitting, and so on. However, that is not what this legislation is all about. Members of the public would like to do terrible things to these killers. I am sure that the husband of one of the people who was murdered feels the same way. He would want to take the killer apart slowly. There is no doubt in my mind that these killers should never be released, if it is at all possible. I am sure that all honourable members agree with that sentiment. These people are probably the worst human beings in Australia. It would be 14454 LEGISLATIVE COUNCIL 6 June 2001 insulting to animals if we called them animals. They have done the most terrible things and they do not deserve to be in the community. We all agree on that statement of fact; we all accept it. No-one—not even those opposed to the legislation—would disagree with that. We hope that those people suffer a similar fate at some point. I hope that they die a really nasty death.
[Interruption]
Perhaps I am being a bit nasty. I am not usually that nasty. I have met Mr Morse.
Reverend the Hon. Fred Nile: Do you speak on behalf of the Greens?
The Hon. RICHARD JONES: I am not speaking on behalf of anyone other than myself and those who voted for me.
The Hon. Ian Macdonald: All 20 of them.
The Hon. RICHARD JONES: A member has to have 140,000 voters before he can be elected.
The Hon. Henry Tsang: The offenders should be treated like dogs.
The Hon. RICHARD JONES: No, of course not. Dogs should be treated well. We all agree that these killers should stay in gaol. I hope that they stay in gaol for the rest of their lives, that they experience sufficient remorse during that time and that it tortures them as much as they tortured their victim. However, there is a real problem with regard to this legislation. There is no doubt that the legislation is an attempt to outmanoeuvre the Opposition, which has tried on a few occasions to introduce legislation to keep these people in gaol. Honourable members might recall that I voted for similar legislation. The trouble with retrospectivity is that there almost certainly will be a High Court challenge. There is no doubt about that. Who knows what will happen then? These criminals may be released as a result of that challenge. The criminal law committee of the Law Society is totally opposed to this legislation, as are other organisations. Nicholas Cowdery is quoted in the Daily Telegraph as saying it is "a political gesture" and that the legislation was "bad law". He told the Daily Telegraph:
The ... bill fundamentally and wrongly affects the rights of prisoners. The evil is that this legislation will not be able to be ignored. Nicholas Cowdery is looking at it purely from a legal point of view, as is the Law Society. My briefing note from the Law Society states:
The Law Society's Criminal Law Committee is totally opposed to the Crimes Legislation Amendment (Existing Life Sentences) Bill ... The Bill is objectionable and offensive to the principles of judicial independence and individual justice, which are fundamental to the rule of law.
Not only is it proposed, once again, to change the rules whereby determinations of existing life sentences might be sought, the new legislation will apply to affected people whose sentences have already been determined, provided that they are not already under consideration for parole or have been released on parole.
This legislation will remove any incentive for these offenders to continue to seek to rehabilitate or improve themselves in prison …
That may well be so, but how can a person who has done these appalling crimes ever be truly rehabilitated? Maybe they can be, but I cannot imagine it. Even if they have been rehabilitated, do they deserve to be released back to the public, with even a slight risk of committing a crime like that again? The right-wing commentators in various media are crying out for blood, and if it were proposed to reintroduce the death penalty or to have public hanging of these people they would no doubt support that. This law is probably bad law. The Law Society regards it as bad law and the Director of Public Prosecutions regards it as bad law, as do many lawyers. I believe it is an attempt by the Premier to outmanoeuvre the Opposition. Not so long ago I heard a Liberal member say on the way out of the Chamber, "Here we are in the middle of another law and order debate, trying to outdo each other." While I will not be voting against the legislation, I cannot support it, on the basis that it is retrospective, it is bad law and no doubt will be the subject of a High Court challenge—it may well go down in that High Court challenge. The Hon. Dr ARTHUR CHESTERFIELD-EVANS [5.40 p.m.]: I oppose this bill. I am disappointed that the Government, having refused to pass the Opposition's bill, the Crimes (Sentencing Procedure) Amendment (Life Sentence Confirmation) Bill, has introduced a virtually identical bill, the Crimes Legislation 6 June 2001 LEGISLATIVE COUNCIL 14455
Amendment (Existing Life Sentences) Bill. The Government is following the Opposition in what amounts to a law and order auction. The similarity between the Australian Labor Party and the Coalition on sentencing policy is remarkable. I realise that this sort of thing is popular; it is because the idea of punishment is still uppermost in people's minds. I do not have a problem with the concept of punishment in relation to crime, but if we look at the entire gaol system and what we are trying to achieve in society we need to look at the overall picture—what do we want: are our gaols for punishment or rehabilitation?
The Hon. John Tingle made a valid point when he said that the people who are murdered are dead, they cannot be rehabilitated, there is no hope for them and their families will mourn them forever. That is true, and I feel very sorry for people such as Brian Morse, the family of Anita Cobby and the families of other murder victims. If I were in their situation I would probably be baying for revenge as well. When people are kept in gaol for life they are not getting any joy from their life. That may be an objective society wants, but the point is that people in gaol live with other people in gaol. If they have nothing to lose it makes the gaols harder to manage. The anger in the gaols is at a higher level. People who enter a gaol for a lesser crime come under the influence of people who have no hope, and that will again reflect on society. We are looking at broader objectives and endless revenge.
The Hon. Duncan Gay: Point of order: For not the first time in this debate the honourable member has mentioned revenge. I make it quite clear to the House that anyone who knows Brian Morse or most of these families would realise that this is not about revenge. It is the last thing that would be on Brian Morse's mind. This is about justice and security, never revenge. I request the honourable member to cease inferring that Brian Morse or these families are looking for revenge in this instance.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS: To the point order: I accept the point of order. I acknowledge that Brian Morse is not seeking revenge, but security. I think he feels that security would be gained by this; it would help his peace of mind. When I talked about revenge, I put myself in that position. If my wife or son were killed, I would probably be looking for revenge—I think that is a natural emotion. So, in a sense, I was speaking personally. I have met Brian Morse, but after my discussions with him I am not certain whether I could say he was looking for revenge. When I spoke to him he was trying to get support for the Chikarovski bill, which is very similar to the bill before the House. I did not analyse his attitude to revenge beyond that.
The DEPUTY-PRESIDENT (The Hon. Janelle Saffin): Order! There is no point of order, although I can understand why the Deputy Leader of the Opposition might think the Hon. Dr Arthur Chesterfield-Evans was suggesting that revenge was in a particular person's mind. I acknowledge, however, the statement of the Hon. Dr Arthur Chesterfield-Evans that he did not mean to suggest that anyone's motivation was revenge. The Hon. Dr ARTHUR CHESTERFIELD-EVANS: I do not think Parliament should interfere in the judiciary. The judiciary should make the decisions. A number of people were enumerated in the Chikarovski bill. I do not know those individuals, and I do not think I should decide in the lobbies and corridors of Parliament House what should happen to them. The legal system is not perfect, but it is more perfect than the whisperings around this House or blanket solutions. It is worrying that this law and order auction is happening between the Government and the Opposition. An article by Miranda Devine appeared in the Daily Telegraph on 30 August 2000, around the time that we debated the Chikarovski bill. She observed the Premier's response to the sentencing of three men who recklessly and mindlessly killed a truck driver named Mark Evans by throwing a lump of rock from an overhead bridge. She wrote:
Whether or not it was his intention, the clamour over the Evans sentence had become an effective smokescreen clouding another, more tricky, law-and-order issue being pushed by the Opposition: the Baker bill.
She further stated:
Community sentiment is behind Chikarovski who has already gained two points in opinion polls since launching her campaign.
Carr was in danger of being beaten at his own game … until the Evans case came along, and overshadowed the Morse case. Miranda Devine is saying that the Government and the Opposition are effectively seeking approval from populist talkback radio by increasing the penalties. If the Government wants to be tough on crime it ought to be tough on the causes of crime. It should pay attention to the recommendations of the Select Committee on the Increase in Prisoner Population and the committee inquiring into crime prevention through social support. This will save more money in the long term. It might be noted that some of these murderers, callous and inhuman as they seem, often had very disturbed backgrounds and the time for intervention has passed. Obviously it is bad if 14456 LEGISLATIVE COUNCIL 6 June 2001 children grow up with a hatred of society and people, with no real superego or personal control, and that leads to this sort of crime. If we do not learn lessons from the crime and go back to prevention, it is not much use lengthening the sentence 20 years later, after the crime has been committed.
I take the point of the Law Society that the Australian Democrats are opposed in principle to retrospective legislation in the criminal law area. The Law Society pointed out that eight people would be affected by the legislation and two of these people were juveniles at the time they were sentenced. The bill is only one step away from a retrospective death penalty. It is the same principle; it is a retrospective sentence for a person's natural life.
Although these people were sentenced to imprisonment for life, the judge was aware that a life sentence was not a sentence until they died. They were tried and sentenced under the law that existed at that time, and that is the way it should remain. The issues that apply to this bill are similar to those I raised in my speech on the Opposition's bill. The judge's comments before truth in sentencing were a human response of sympathy for the family; they did not equate to the idea that he would have sentenced the accused to imprisonment for the term of his natural life if he could have done so. However, this legislation reads that meaning into the judge's comments. It may be so in some cases but we should not pass a law to confirm that it was the intention in all cases. A Law Society briefing note on this bill states:
On Friday, 25 May 2001, Justice Greg James refused to redetermine Allan Baker's life sentence. Even though he accepted that Allan Baker was a changed and better man, with a very low risk of future dangerousness or recidivism, Justice James did not accept that Baker satisfied the special reasons criteria to justify making a determination. Justice James refused to speculate on what special reasons might satisfy the Court that Allan Baker might at some stage be eligible to have his sentence redetermined. However, he did not direct that Baker should never reapply for a determined sentence, or that he should not reapply within a specified time.
The briefing note further states:
The Law Society's Criminal Law Committee is totally opposed to the Crimes Legislation Amendment (Existing Life Sentences) Bill and, in particular, to its retrospectivity. The Bill is objectionable and offensive to the principles of judicial independence and individual justice, which are fundamental to the rule of law.
Not only is it proposed, once again, to change the rules whereby determinations of existing life sentences might be sought, the new legislation will apply to affected people whose sentences have already been determined, provided that they are not already under consideration for parole or have been released on parole.
The Law Society is saying that in the case of Baker the judge did come to a decision that I think would be approved of by this House. I recognise that Brian Morse may not be happy with that decision, but it is still a decision made by the court, rather than the Parliament. I note the comment alluded to by the Hon. Richard Jones that the State's chief prosecutor, Nicholas Cowdery, has attacked laws designed to "cement New South Wales' 10 most vicious killers in their cells as a political gesture". Mr Cowdrey said that the legislation introduced was bad law. An article in the Daily Telegraph of 31 May stated:
Mr Cowdery told The Daily Telegraph the Crimes Legislation Amendment (Existing Life Sentences) Bill 2001 "fundamentally and wrongly affects the rights of prisoners. The evil is that this legislation will not be able to be ignored."
I ask honourable members to think about the society they want, where we are putting our resources, the increase in the gaol population, the effects of this legislation on the gaol population, what we can do to reduce the number of people who are sufficiently disturbed that they would commit these crimes and put our efforts into prevention rather than revenge.
The Hon. RICK COLLESS [5.53 p.m.]: I support this bill. I shall start by informing the House a little about the Morse family background. The Morse family has very strong connections in Inverell. In fact, Brian and Virginia Morse lived in Inverell before moving to Collarenebri. The Morse family is a prime example of what a family is all about. It is a family of incredible strength, and there are strong bonds between various branches of the family. The family is committed to supporting each other in times of need. My family has known the Morse family, including Brian and Virginia, ever since I can remember, although I was only very young when Brian and Virginia left Inverell for Collarenebri. I still know the remaining members of the Morse family living in Inverell and consider them to be some of my closest friends.
The offences that Baker and Crump committed against Virginia Morse have never been made public because of their horrendous nature. This was not an ordinary murder. It was a murder so horrendous that the details have never been released to the public. Very few people, and few of the closest of the Morse family, know what happened to Virginia. I understand that the rest of us who survive and work and live in places like 6 June 2001 LEGISLATIVE COUNCIL 14457 this could never comprehend how dreadful the murder was. The suggestion by Ms Lee Rhiannon that this bill is a political stunt is offensive, and it angers me greatly. It would also anger the Morse family. It is unbelievable to think that anyone could pass this off as a political stunt. This bill is about locking up a man who committed a murder of such proportions that the details of the crime have never been released to the public. Ms Lee Rhiannon and the Hon. Ian Cohen used words and phrases such as "humanity", "justice" and "the future for the people who committed these crimes". Baker and Crump have no future. They forfeited their right to any future when they committed this horrendous crime against Virginia Morse. We should be thinking about the future that Virginia Morse missed out on, the fact that her children missed out on the love and attention of their mother, the future for Brian and the dreadful time he must have gone through. Although some speakers have suggested that they can understand what Brian Morse has been through, I tell them that they cannot. I cannot begin to comprehend what Brian Morse or the rest of the Morse family went through, and I was there when the family was going through it. I saw what they went through and the suffering they incurred as a result of what happened to Virginia. It is a shame that those who oppose this bill have not spoken to the family and got to know them in the way that I know them. The Hon. Ian Cohen suggested that we cannot put emotion into making laws. Perhaps we cannot, but we can call on our past experiences and influences when we make decisions about how the laws are structured. One of my past experiences and influences was being with the Morse family when they went through this tragedy. The issue is not one of revenge. For anyone who has lost a young child or a loved one in unexpected circumstances, revenge is easy. It is easy for people to get angry and say that they want revenge. Brian Morse is not like that; he does not want revenge. The Hon. Duncan Gay: He's a very gentle man. The Hon. RICK COLLESS: As the Deputy Leader of the Opposition points out, Brian Morse is an extremely gentle man. All members of the Morse family are extremely gentle. They are an exceptional family. As I said earlier, they have an incredible strength and an incredible bond which many of us could never understand. Brian Morse does not want sympathy. He does not want people to feel sorry for him; nor do other members of the Morse family. All they want is to ensure that those who are guilty of the dreadful crimes that were inflicted on Virginia do not enjoy the freedom of being out of gaol. All they want is justice and to ensure that those dreadful murderers remain in gaol until the day they die. The Hon. HELEN SHAM-HO [6.00 p.m.]: I speak briefly on the Crimes Legislation Amendment (Existing Life Sentences) Bill. This bill will ensure that prisoners who were sentenced to life imprisonment prior to 1989, when the Greiner Government introduced truth in sentencing legislation, will be released only if they are dying, incapacitated or have proved and that they are no longer a threat to the community. In August last year the Opposition introduced the Crimes (Sentencing Procedure) Amendment (Life Sentence Confirmation) Bill. That bill would have eliminated the rights of prisoners who are serving life sentences to have a review of their life sentences. The Government's bill is similar to the Opposition's bill in that its aim is to prevent prisoners who are serving life sentences and who were sentenced prior to 1989 from ever being released. When the Opposition bill was introduced I would have supported it, but I was advised by the Government not to support it because it could interfere with proceedings before the Supreme Court. As honourable members are aware, the Government was waiting until the Supreme Court made a decision on Allan Baker's application for a redetermination of his life sentence. The Government had received advice from the Criminal Law Review Division of the Attorney General's Department that debate on the Opposition bill may have been seen as an attempt to influence Justice James of the Supreme Court. Two weeks ago the court rejected Allan Baker's application, and that is why this bill is now before the House. I am very pleased with the result of the determination. I support this bill because Baker's application has been rejected. Last year Mr Brian Morse, the widower of Virginia Morse who was brutally murdered in 1973, came to see me about the Opposition's bill. I was very sympathetic. As I said earlier, I would have supported the Opposition's bill if it had not been for the advice I was given. This bill will take away the pain and suffering that Mr Morse has endured, which the Hon. Rick Colless dealt with at length in his contribution to this debate. This legislation will remove the doubt that may have existed in relation to prisoners who were sentenced to life imprisonment prior to 1989 by making sure that prisoners—such as Allan Baker and Kevin Crump; the killers of Anita Cobby, including the Murphy brothers, Michael Murdoch and John Travers; and the killers of Janine Balding, namely, Stephen Jamieson, Matthew Elliott and Matthew Blessing—will be allowed to apply for redetermination by the Supreme Court only after having served 30 years of a life sentence. Currently these prisoners can apply to the Supreme Court for a redetermination of their sentence after 20 years imprisonment. The bill will also eliminate the ability of the Supreme Court to replace life sentences with fixed-term sentences. 14458 LEGISLATIVE COUNCIL 6 June 2001
As a former lawyer I will comment on the Law Society's concerns with this bill. The Criminal Law Committee of the Law Society opposes this bill because it applies retrospectively and because it takes away any incentive for these prisoners to be rehabilitated. The bill is unavoidably retrospective in its application because it specifically deals with those prisoners who were sentenced prior to 1989, when truth in sentencing legislation came into force. I agree with the Law Society that this bill applies retrospectively and, in that sense, could be argued to be unjust to prisoners who were sentenced prior to 1989 and who are now subject to this bill. However, I feel that this point of view has to be balanced with the necessity for certainty for the victims, and families of the victims, in relation to these prisoners. I do feel for those people. According to the Bar Association's advice which was given last year, this bill could very well be unconstitutional. I believe that this was a matter of concern to the Government, bearing in mind that the Kable legislation was struck down by the High Court. However, I still support this bill.
The Hon. JAMES SAMIOS [6.04 p.m.]: The Crimes Legislation Amendment (Existing Life Sentences) Bill ensures that criminals who have been convicted and who are never to be released are restricted from seeking parole until they are on their deathbed or are physically incapacitated. That is the purpose of the bill. As all honourable members know, the bill was announced by the Premier following the unsuccessful application by Allan Baker to have his sentence redetermined. The bill is similar in background to the Crimes (Sentencing Procedure) Amendment (Life Sentence Confirmation) Bill. That bill was also known as the Baker bill and was introduced by the Coalition but debate was refused by the Government on at least 10 occasions.
In essence, this bill will tighten procedures for criminals. However, as my colleague the Deputy Leader of the Opposition said, the bill fails to ensure that prisoners are never to be released as it applies to Baker and Crump and the other offenders to whom the bill refers. It appears that every three years Baker will be able to apply for redetermination of his sentence. That is a matter of grave concern not only to the members of Mr Morse's family but also to good citizens who are concerned about their security. The Premier made his famous speech about cementing these offenders in their cells but, regrettably, failed to even speak on the bill.
The Hon. Duncan Gay: I do not know whether it was even all that famous.
The Hon. JAMES SAMIOS: Infamous, perhaps. The reality is that this Parliament and parliamentarians have responsibility, whether they like it or not, to ensure that the law of this land provides for the security of the constituency, to ensure that the law works, and to ensure that it is viable and provides for the security of each and every citizen. As parliamentarians, we play a responsible role in this State Parliament. Yes, it is true that this legislation does not solve the aberrations in people's lives that cause them to go off the right track and onto the wrong track. But there is no excuse for them, whether they are on the right track or the wrong track, to behave in the manner in which Baker, Crump and the others have behaved.
No matter what setbacks people suffer, no matter what aberrations they encounter in their lives, and no matter how much they go off the right track, they do not have the right, under our system of justice, to put into effect the vile and inhuman offences that were inflicted by Baker, Crump and the others. In my opinion members have not sufficiently enforced that point this evening. There is a big difference between the role of rehabilitation and that of a deterrent. We should be trying to rehabilitate people as effectively as possible, to ensure that they do not go off the rails. But equally, a clear message of deterrence should be sent to the community at large that the law must be respected, that the law is there for the benefit of each and every citizen. The failure of the Government in that regard has now surfaced very clearly.
To have true justice we must have good laws, we must respect the law, and we must acknowledge the right of this Parliament to amend the law when it is not effective. For members to say that it is an interference with the judicial process is codswallop. The reality is that the sovereignty of this Parliament is well acknowledged. Just as there are moral and legal sanctions on members of Parliament, and their attitudes to law and order are accountable to the community at large, so is the position of the judiciary no less responsible. It is important that members of this Parliament make it very clear that this bill, for all its good intent, fails, in the circumstances to which it refers, to ensure true justice by allowing for a redetermination of sentence every three years. If this Parliament is to effect its obligations it is important that the amendments to be moved by the Deputy Leader of the Opposition be voted on and supported. I call on members to give their strongest support to ensure that the amendments are passed today.
The Hon. DAVID OLDFIELD [6.12 p.m.]: This crime legislation amendment with regard to existing life sentences appears to be heading in the right direction in addressing the community's concerns over the inappropriate early release of those who have committed crimes of the most heinous nature. For many of us this 6 June 2001 LEGISLATIVE COUNCIL 14459 concern was highlighted by the recent attempt by that infamous murderer Allan Baker to use the judicial system to escape from the penalty imposed by his file being marked "never to be released". When I was approached by Brian Morse, the husband of Allan Baker's victim, Virginia Morse, I did not take any convincing of the need to do all that was possible to see that Baker rotted behind bars. Like others at that time, my debate was clear and to the point in so much as my expressing the view that Baker and his ilk should only ever leave prison in a box— or, if I recollect my exact words, I believe I actually said "urn".
I am sure it will not be surprising for anyone when I say my position has not changed. It is creatures like Baker whose very existence give strength to the idea of reviewing the reintroduction of the death penalty under some circumstances. Certainly the community deserves such a debate and an opportunity to express their view on this as a stand-alone issue. In general I support the thrust of the Government's amendment, though I have some reservations about the opportunity for review of sentence every three years and the potential for release due to the possibility of imminent death. The release of a gaol inmate on the basis of the possibility of imminent death is likely to turn into a lingering life on the outside breathing undeserved free air. Once released under such circumstances, these animals could live on for some time and despite provisions within the legislation for them to be put back in gaol where they belong, we all know that such a provision would never be enacted.
Someone such as Baker or the Murphys are meant to die in gaol, and no-one should be seeking to change that. When anyone wishes to raise the cruelty of such a true life sentence just explain to them the life sentences these animals gave their victims and their victims' families. Regardless of all the outrageously misguided do-gooders who threaten decency and public safety in their quest to make murdering animals appear to be the victims, the majority of people in this State have little or no time for such unsustainable opinions. Some people simply cannot be rehabilitated, and every law-abiding man, woman and child has the right to expect that legislators will protect them from that kind of person. I reiterate that this bill appears to be heading in the right direction and has my support, pending the resolution of the aforementioned issues. The Hon. MALCOLM JONES [6.16 p.m.]: In the two years that I have been a member of this Parliament I have not felt the pressure of being a parliamentarian that I feel at this time—the pressure to protect society, particularly women in our society. I have always viewed imprisonment as having three specific components: the protection of society, the rehabilitation of criminals and punishment. Given the seriousness of the classification of criminals to which the bill refers, I firmly believe that the protection of society overwhelms the punishment aspect and totally overwhelms any consideration of rehabilitation. The lack of consideration demonstrated to the victims and, by natural progression, to the families of those victims, was never a consideration of the criminals when they committed their crimes. I do not think society should wreak vengeance on such criminals, but certainly it is reasonable that we do not consider too extensively their wellbeing and comfort in the future. I consider the comments of both Greens members in this debate to be simply comments of idealistic children, having read a textbook and never seriously considered the very serious responsibilities of protecting the vulnerable people of our society from the enormous danger of these types of criminals ever reoffending. One of the Greens members referred to the mentally ill. Should it have been vaguely possible to use a psychiatric defence for any of these criminals, I am sure their lawyers would have exhausted that option. The bill is a step in the right direction to ensure protection for the community, and I support it. I also support the amendments moved by the National Party. Reverend the Hon. FRED NILE [6.19 p.m.]: The Christian Democratic Party supports the Crimes Legislation Amendment (Existing Life Sentences) Bill, which will amend the Crimes (Sentencing Procedure) Act 1999 and the Crimes (Administration of Sentences) Act 1999 in order to prevent the release of offenders who were sentenced to life imprisonment prior to 1989 with a non-release recommendation made by the sentencing judge. The words "never to be released" were stated by the judge in the court and were marked on the file, so there is no doubt as to the judge's intention—despite what some who oppose this bill have said. It was quite clear in the minds of the judge and the community what the words "never to be released" meant. Justice Taylor, who presided over the case involving Baker and Crump, said:
For sheer cruelty , for callous indifference to suffering, for a complete disregard of humanity, for the complete absence of a spark of human decency, what you have done to this woman and to her children and to her husband is without parallel in my experience, and I have sat here many times over the years.
… you have outraged all accepted standards of the behaviour of men. The description of "men" ill becomes you. You would be more aptly described as animals, and obscene animals at that.
I will stamp on the file "never to be released". 14460 LEGISLATIVE COUNCIL 6 June 2001
Despite what Ms Lee Rhiannon and others have said, the statement was not trifling or meaningless, nor was it made for the sake of the media. It was a real statement, a real verdict, by the sentencing judge. Honourable members are debating this bill and previous bills—on one occasion I attempted to introduce a bill to rectify this injustice—because of changes made, with good intentions, by the Coalition Government in 1989. I note that in the Legislative Assembly the Attorney General argued that the Coalition Minister at that time, Michael Yabsley, intended that all prisoners sentenced to life could have their sentences redetermined. I am certain that Minister Yabsley never intended that the prisoners with files stamped "never to be released" were to be included in that category. In other words, there were two groups: those sentenced to life—which, in reality, we know is about 13 years—and a very small group whose files were marked "never to be released". However, the 1989 legislation was interpreted to enable all sentences to be open to redetermination, including the sentences of those whose files were marked "never to be released".
I know that a small minority of honourable members, particularly the Greens, oppose this legislation. They argue that they cannot support the bill as they do not support retrospective legislation. This is not retrospective legislation. The bill is seeking to uphold the original sentence imposed by the judge. It would be retrospective legislation if it changed the sentence of a prisoner from 10 years to 13 years, or life. We are not seeking to, and we cannot, increase a sentence said to be "never to be released"; that is the limit. We are not trying to add to a sentence; as a matter of justice we are trying to have the original sentence upheld. The dilemma that we have been wrestling with since 1989 has been to try to close the loopholes relating to the sentences of prisoners whose files have been marked "never to be released".
One could argue: What does it matter if sentences are redetermined every three years and are rejected? It matters that the family of a victim and those who knew the victim well—and I do not mean just relatives—are put through the agony associated with such proceedings. People who are not so close but who have an association with the family also feel some of the pain when prisoners seek to have their sentences redetermined or reduced in order to get out of gaol. All honourable members should be affected by such a situation, although I know some are not. Something should be done to remove that eventuality, and I understand that that is the purpose of this proposed legislation. It seems to be difficult to put into legislation what everyone wants to achieve. The Opposition is faced with the dilemma of arguing, and I believe the argument is justified, that the Government, with all its good intentions, seems to be left with some unintended consequences.
The Attorney General, his staff, lawyers and other legislative draftsmen cannot get a form of words that work. It seems that it is almost beyond the capacity of skilled lawyers. I certainly do not have the ability to do it. Despite the contention of the Government that it has received the right advice, if the Opposition's amendments are not accepted certain difficulties could arise. The Christian Democratic Party shares the Government's hopes for this legislation. When the Premier introduced the bill in the Legislative Assembly he spoke with sincerity. His advice is that it will meet the objectives. The bill has a strange provision that the Government believes will help it achieve its purpose. Have the Government's good intentions opened up another legal debate? Paragraph (a) of new section 154A (3) provides that the Parole Board, after considering an application, may make an order directing the release of a serious offender on parole, if the board:
(a) is satisfied (on the basis of a report prepared by the Chief Executive Officer of the Corrections Health Service) that the offender:
(i) is in imminent danger of dying, or is incapacitated to the extent that he or she no longer has the physical ability to do harm to any person,
The euthanasia issue has been debated in this Chamber on a number of occasions. Honourable members will recall the appearance of a lady on television who said she was close to dying—indeed, she looked only hours away from dying—and who demanded the right to end her life. Fortunately, she did not die; she had a remarkable recovery and is now healthy and well. That raises the possibility that a serious offender diagnosed with terminal cancer could go into remission after being released from gaol. How will the Government interpret and apply these provisions? The Deputy Leader of the Opposition and other members have suggested that they raise more questions than they solve. Subparagraph (ii) of new section 154A (3) (a) provides for the release of an offender who:
(ii) has demonstrated that he or she does not pose a risk to the community—
That is in addition to the first provision.
[The Deputy-President (The Hon. Henry Tsang) left the chair at 6. 28 p.m. The House resumed at 8.15 p.m.] 6 June 2001 LEGISLATIVE COUNCIL 14461
Reverend the Hon. FRED NILE [8.15 p.m.]: Before the dinner break I was outlining the provisions of the Crimes Legislation Amendment (Existing Life Sentences) Bill that deal with the release on parole of a non-release offender if, and only if, three conditions are met. I outlined two of those conditions. The third is that the Parole Board must be further satisfied that, the first two conditions having been met, the making of a parole order is justified. Summarised, those three conditions are that the non-release offender is in imminent danger of dying or is incapacitated, that the offender has demonstrated that he or she does not pose a risk to the community and, if those two conditions are met, that the making of a parole order is justified. As has been said by other honourable members, concern has been expressed about how those three conditions will be interpreted. I note from the second reading debate in the other place that the Premier, seeking to explain what the changes mean, said:
These changes mean Baker, Crump and the other never to be released prisoners can only ever be released on their deathbeds or be so incapacitated that they would pose a threat to nobody. It means that the community is protected from these killers forever. The bill also removes the right of non-release offenders to be automatically considered for parole.
That led to headlines that those prisoners would be cemented in their cells forever. That provoked some reaction in the community, because one thinks of organised crime disposing of enemies or gang members who had become informers by setting their feet in a block of cement and dropping them overboard in the harbour, so that they would stay at the bottom of the harbour. Perhaps the Premier's choice of words were not good in saying that prisoners would be cemented in their cells forever. The point the Premier was trying to make was that the conditions meant that the prisoners would be kept in gaol forever. As some honourable members have said, and as the Deputy Leader of the Opposition put in a strong case, it seems that the conditions are subjective. Again, though attempts were made to draft good legislation, it seems that even those conditions could be open to different interpretations.
As honourable members know, particularly members who are lawyers, lawyers can easily make a case by interpreting those words in a way that was perhaps not intended by the Government or the Premier. I regard that as a danger. Perhaps the Opposition amendments will make the intent of the provisions clear and unable to be successfully challenged in a court, I assume the High Court, so that we need not go through this whole procedure again. If that legal process occurred, it would cause further distress to relatives of the victims of the criminals caught by this legislation. Hopefully, those relatives will benefit from this legislation. We support what the Government seeks to do. Whether this bill is successful will be a legal question. I received from the Attorney General a further briefing note dated 6 June, including a legal statement for the benefit of crossbench members. In that letter the Attorney General gave further information dealing with this legislation. I quote one section of that communication:
The legislation, which has already been much amended, is in a very technical area of the criminal law. The complexity of the Kable decision demonstrates the extreme care which must be taken in formulating any proposal in this area if constitutional pitfalls relating, for example, to retrospective sentencing or the separation of powers are to be avoided. The detail and complexity of Justice James' judgment in Baker provides a clear illustration of the sophistication which must be employed in interpreting the existing legislation; this complexity will only be increased by either of the legislative proposals currently under consideration.
My consistent advice, in discussion with senior legal officers of the Government—most particularly the Solicitor General—is that the Government's proposed scheme is soundly based. It is the approach that most closely echoes the sentencing regime that existed at the time these inmates were first sentenced. It is our belief that this approach in consequence is more likely to withstand a challenge than an approach which simply prevents the inmates from seeking redetermination.
The Attorney General also responded in that document to concerns raised by the Coalition, and said:
The Coalition raises the point that under the Government's model inmates will be able to apply for redetermination on an (at worst) basis every three years. In reality, as Justice James' recent decision makes plain, only in "special circumstances" would such an application be granted. In the case of Baker, after detailed consideration, Justice James was unable to find any such special circumstances.
That is the interpretation of Justice James, but it does not necessarily mean that every judge will have the same interpretation of the provisions. Not only do lawyers have different views, often judges also have different views. We should be keen to remove any uncertainty about the operation of this legislation and do what we can to make it workable, unchallengeable and successful.
The Hon. ELAINE NILE [8.22 p.m.]: I support and welcome the introduction of the Crimes Legislation Amendment (Existing Life Sentences) Bill. The Government took a long time to draft and introduce this bill. In the past the Government has foreshadowed that it would introduce legislation to address a matter of concern and in no time at all that legislation has been debated in this Chamber, yet this proposed legislation has taken an extraordinarily long time. The bill will be welcome by all victims of crime. On two occasions in this 14462 LEGISLATIVE COUNCIL 6 June 2001
Chamber we have debated the case involving the death of Virginia Morse. Biblically, the husband is the head of the house. However, I regard the wife as the heart of the family. When those atrocities were performed on the body of Virginia Morse, Baker and Crump cut out the heart of the Morse family. Recently I saw quite a lengthy newspaper article that stated that the Morse family was hoping this legislation would be the end of it all. I am sure that those sentiments are echoed by the families of Janine Balding and Anita Cobby.
The suggestion was made earlier in this debate that this bill is vindictive. I could not have coped with the death of a child in the way in which Anita Cobby's parents coped with her death. The Christian Democratic Party will support the amendments foreshadowed by the Deputy Leader of the Opposition to ensure that these murderers remain in prison. The Premier said that the prisoners would be, in effect, set in concrete. However, no doubt, they will be extended the same privileges that are extended to other prisoners. Justice must be seen to be done. The Opposition's proposed amendments will close the loopholes in the bill. The provisions that remain must be so watertight that barristers and solicitors—God forbid!—are not able to secure the release of such prisoners.
I hope that this bill is an end to all the suffering that has been endured by the families of victims over the years. One such family with whom I have communicated constantly is the Simpson family—Peter and Chris Simpson. I remember Chris saying to me, "Every time the killer of our child appeals we go through the heartaches and trauma again." She also said, "I remember the then Leader of the Opposition saying to me, 'Put it all behind you. Forget all about it.'" She then told me, "One can never forget the loss of a child." I keep on my organ at home a photograph of Ebony Simpson that was given to me by her mother. Every time I see that photograph I think of Peter and Chris Simpson. Ebony's killer not only killed the Simpson's daughter; he also killed their marriage and their family relationship. I pray that this bill, once amended, will ensure that justice is done for all the victims of crime.
The Hon. PETER BREEN [8.27 p.m.]: I was interested to read in Hansard that in last night's proceedings in the Legislative Assembly relating to the Crimes Legislation Amendment (Existing Life Sentences) Bill the Leader of the Opposition is still promoting her ill-fated bill to keep Allan Baker in gaol. She quoted advice given by Peter Garling, SC, on that bill to the effect that this Parliament has already provided a mechanism to shorten the sentences of those prisoners sentenced before the 1989 truth in sentencing legislation. It follows, according to the advice, that the Parliament can remove the sentencing process altogether with respect to all prisoners or any one of them. Consistent with that advice, the Opposition's foreshadowed amendments to the bill seek to deny life prisoners sentenced before 1989 the right to redetermination of their sentences.
The Government argues, and I think correctly, that the Opposition's amendments would fail in a challenge in the High Court because they amount to an interference by this Parliament in the judicial process. I would be interested to see the legal advice available to the Government that supports this position. The Deputy Leader of the Opposition, in his contribution to debate, rightly asked that that advice be made available. I echo his comments and remind the Attorney General of the Court of Appeal decision in Egan v Chadwick when the court held that the Legislative Council may require access to the legal advice obtained by the Executive so that the Legislative Council may be in a position to properly exercise its functions.
Of course, the Leader of the Opposition in the other place suggested that no such advice exists. That suggestion seems to be supported by her freedom of information search. If no advice exists, the question in my mind for the Government is: How does its own bill—the cement bill to use Mr Carr's words—operate any differently from the bill proposed by Mrs Chikarovski and rejected by this House just last year? The Opposition's bill seeks to intervene in the sentencing process at one point while the Government's bill attempts to do it at another. The Leader of the Opposition says, "Throw away the key at the beginning of the prisoner's sentence," while the Premier says, "Throw it away at the end." Both bills are deficient, in my opinion, because they interfere with the judicial process. I believe that the High Court will throw out the legislation for the same reasons that the Community Protection Act 1994 was struck down in Kable v The Director of Public Prosecutions.
I remind honourable members that in the Kable case Justice McHugh said that Parliament could make a law for the preventive detention of a person, but I suggest that this bill is not the way to do it. One must draw a distinction in the bill, according to my advice, between prisoners whose files are still marked "Never to be released" and at least three prisoners who are no longer classified in that way. If the bill does not do that, it will achieve the exact opposite of the Government's intention and provide the prisoners with an opportunity to get out of gaol. There is something about the cement metaphor and throwing away the key for people locked in 6 June 2001 LEGISLATIVE COUNCIL 14463 prison that I find very disturbing. I acknowledge that we are talking about horrendous crimes and a strong argument exists that people who act like depraved animals should be treated in the same way as they treated their victims. But what disturbs me is whether all these men whom the bill would bury alive ought to be treated in the same way. How many men does the bill affect?
In an article in the Sun-Herald on 27 May Miranda Devine said that 10 prisoners are involved. Writing in the Sydney Morning Herald on 26 May, Les Kennedy also said that we are dealing with 10 prisoners. But Brian Morse, the husband of the victim Virginia Morse, writing in the Sydney Morning Herald on 1 June says only nine prisoners will be cemented in by the bill. The difference in the number of prisoners affected by the bill may have a simple explanation, such as a typographical or counting error. On the other hand, it is likely that someone is under a misunderstanding as to the prisoners affected by the bill. Honourable members will be aware that at least two prisoners were aged 14 and 16 respectively at the time of their offences. These two prisoners are Bronson Blessington and Matthew Elliott, two of the killers of Janine Balding. I understand that their files are no longer marked "Never to be released". Similarly, in the case of Leslie Murphy, one of the Anita Cobby murderers—
Reverend the Hon. Fred Nile: Who changes the files?
The Hon. PETER BREEN: They are changed by administrative decision in Corrective Services. I understand that the circumstances of Leslie Murphy's involvement in the crime and his young age mean that his file also is no longer marked "Never to be released." Honourable members may recall that Blessington and Elliott, aged 14 and 16 at time of their offences, appealed their sentences to the Court of Appeal. In the course of the appeal, Chief Justice Gleeson—now Chief Justice of the High Court—said of Blessington and Elliott:
I think it appropriate to express the view that, especially where the offender is a young person, and there are so many different possibilities as to what might happen in future, it is normally not appropriate for a sentencing judge to seek to anticipate decisions that might fall to be made by other persons, and in other proceedings, or under other legislation, over the ensuing decades. For that reason, I should indicate that I do not support the recommendation made by Newman J. This is not intended to be a recommendation by me that either appellant should be released at some time in future. It is simply intended as an expression of my view that the making of any recommendation on that subject in these circumstances is not appropriate.
In a book called Never to Be Released by Sydney author and journalist Paul Kidd, Blessington and Elliott are described as the youngest prisoners in Australia's history sentenced to prison with the recommendation that they should never be released. Yet they were such amateurs that they were caught the day after they committed the crime and they took the police to the body of Janine Balding. Kidd points out that Blessington and Elliott were street kids known to police and, like the Anita Cobby killers, were once wards of the State. They did not have the benefit of a secure family, education, employment—the things the victims of crime have enjoyed—values we rightly seek to protect. However, we cannot throw street kids on the scrap heap. What do we do with them? We cannot dispose of them because they do not fit the mould of society's preferred model.
As a 10-year-old I attended a school called Patrician Brothers, Liverpool. It was a pretty tough school and I shared the playground with some pretty tough kids. Some of those kids grew up to be pretty dangerous adults, not the least of whom was backpacker murderer Ivan Milat. Later, as a lawyer in Liverpool, I estimated that something like 20 per cent of the kids I knocked around with in primary school finished up in prison. The point I make is that kids can easily get caught up in the cycle of crime. Earlier this year the Director of Public Prosecutions [DPP] published a book called Getting Justice Wrong. In that book the DPP said we should be trying to stop children turning into the kinds of people who can commit these horrendous crimes. He warned:
Unless something changes radically, the production line of criminals in Australia will continue to churn out offenders at an increasing rate.
Honourable members may recall that similar sentiments were expressed in a publication by the Standing Committee on Law and Justice of this House just a few months ago entitled "Early Intervention in Crime Prevention". I believe that the judges of the High Court will be looking very closely at the circumstances surrounding the crimes of Bronson Blessington, Matthew Elliott and Leslie Murphy. The judges will be asking why is it that their files are no longer marked, "Never to be released." I am appalled that this bill treats those three prisoners in the same way as the other prisoners. I am also appalled that the Government wants to rush the bill through the House without the opportunity for amendment so that at least it has half a chance of surviving a High Court challenge. I conclude by saying that the intention behind this bill is a good one—namely, to keep the killers of Virginia Morse in prison—but it is a grave error to introduce sweeping legislation of this kind that is likely to achieve the exact opposite to what is intended. For these reasons I urge honourable members to vote against the Crimes Legislation Amendment (Existing Life Sentences) Bill. 14464 LEGISLATIVE COUNCIL 6 June 2001
The Hon. JOHN HATZISTERGOS [8.36 p.m.]: I support the bill. In doing so I want to recite some of the background to this legislation. When the sentencing Act regime came into force in 1989 provision was allowed under section 13A for existing life sentence prisoners with files marked with the recommendation "Never to be released" to apply to the court to have their sentences redetermined. One of the issues that Reverend the Hon. Fred Nile raised in his speech was some doubt about the Government's intention at the time that legislation was sponsored through Parliament. I would like to read from the speech of Minister Yabsley at the time this bill and this provision went through. He said:
In the past the majority of offenders convicted of murder received an indeterminate life sentence. They did not serve terms of imprisonment for the rest of their natural lives. These offenders could be and were released at an earlier time by Executive action. This executive release procedure is contrary to the Government's commitment to truth in sentencing. This very important package will ensure truth in sentencing.
He then went on to state:
The aim of these provisions is to ensure that the existing life sentence prisoners are not disadvantaged: among other matters efforts made by the prisoners to rehabilitate themselves must be considered by the court.
Reverend the Hon. Fred Nile: The point I am making is he did not refer to never to be released prisoners.
The Hon. JOHN HATZISTERGOS: He did actually. When the bill went through Parliament the then Attorney General, John Hannaford, representing the Government in this House, said that it was the Government's commitment to ensure that any decision to never release an old prisoner will remain with the judiciary, where it properly resides, free of Executive interference. He made it quite clear that that would apply to prisoners who were subject to the recommendation "Never to be released." In other words, they could apply to the court. They could still be released by Executive licence, by the Governor in effect allowing them to be released—take that power away from the Minister and the Governor and give that power to the court if the prisoners want to have their sentences redetermined. That was the law before the truth in sentencing provisions were introduced. The truth in sentencing provisions that were introduced in 1989 allowed them to make an application for those circumstances to be altered if the court thought it appropriate.
When Labor came to government we did a number of things to tighten the law in this regard. First, we increased to 20 years the period before which a person in this category could make an application for a redetermination of sentence. This legislation proposes to increase it further, to 30 years. We also required that substantial weight be given to the original decision, and that special reasons needed to be provided for the exercise of discretion for redetermination. Last year when the legislation sponsored by the Opposition came before this House it was argued that the provisions in the bill would not be adequate and that we needed to rush through legislation in the midst of a court case in order to tighten the law. However, the provisions proved to be adequate. And they proved to be adequate in the case of Baker, because Justice James rejected his application for redetermination.
One thing the Opposition's legislation would not have achieved, and this bill does achieve, relates to the prisoner Crump. He has already had his sentence redetermined by the court and he is eligible to apply for release in a few years time. The Opposition's legislation would have made no difference whatever to that man's prospects of being released because he had already had his sentence redetermined. This legislation will put the matter in the hands of the Parole Board, with the appropriate limitations on its discretion as outlined in the bill. I make this point: All the scaremongering that was going on at that time proved to be what it was— scaremongering. The Government has honoured its commitment by introducing this bill in the manner it has. I also make this point: The case of Baker demonstrated how difficult it is for these 10 prisoners to get through the provisions to have their sentences redetermined. Not only do they need to serve a certain number of years in prison before they can make an application; they need to be able to demonstrate special reasons or circumstances, and the court must have particular regard—the words "substantial weight" are used in the bill— to the views of the sentencing judge. A person whose application has failed could end up being the subject of an order that he can never reapply or that he can reapply after a certain time.
Even with the provisions in this bill, if a person makes an application and fails to get through that safety net, effectively he could end up having an order made that he should never reapply for his sentence to be redetermined. That is still the situation. However, if a person manages to make it through all of the provisions I have listed—the 30-year rule, substantial weight being given to the decision of the sentencing judge, and the demonstration of special reasons—the court will be constrained only to varying the minimum sentence and then the matter goes to the Parole Board. This bill tightens the law considerably. I do not know whether any of these 6 June 2001 LEGISLATIVE COUNCIL 14465 people will make it through the hoop. The Opposition is claiming that the law does not go far enough. The Hon. Peter Breen says that it goes too far in relation to achieving individual justice. This bill, in terms of what it is seeking to achieve, must be supported because it meets the circumstances of all the people who are the subject of life sentences with recommendations that they never be released. In other words, they will have to go through the courts to get their sentences redetermined; if the court declines an application it can make an order that a person can never reapply. However, if they manage to get through the courts they will only have their minimum sentences redetermined. They will then have to go to the Parole Board and the Parole Board's discretion will be severely restricted by the provisions in the bill—that is, these people will need to demonstrate that death is imminent or they are incapacitated to such an extent that they can no longer create harm and the circumstances of the case otherwise would warrant it. For all those reasons it is necessary for the House to pass this bill. We should consider the bill in perspective and not get carried away with some of the criticisms that have been voiced, particularly by Opposition members. The Hon. JOHN JOBLING [8.44 p.m.]: I support and welcome this bill. I have no hesitation in strongly supporting this bill because it is necessary. I am extremely surprised at the strength of certain members who oppose this bill. I am greatly concerned that anyone would want to oppose this bill. When one considers the victims and what they had to face, when one looks at the requests they must or could consider for a redetermination and the anguish that brings to them and their families, including reliving the past—in most cases they have attempted to get on with their lives—it is surprising, indeed appalling, that they should be made to relive what was a most horrific experience in their lives. I suggest, with a deal of respect, that this bill is long overdue. I do not agree with previous speakers who have contended that the bill could not be introduced previously. My view is that it could have been introduced previously; indeed, I would have liked it to have been adopted earlier.
The Hon. John Johnson: Please be gracious. The Hon. JOHN JOBLING: I am sure my colleague the Hon. John Johnson would agree that it is one thing when a judge sits on one of these cases and has full knowledge and understanding of all of the facts and the evidence presented to the court, and then hands down a life sentence. However, when a judge, having considered the evidence, hands down a life sentence and then goes further and argues that the person should never be released, that singularly is a statement of which we should all take notice. To mark the file "never to be released" of a person given a life sentence says it all, because the judge heard the evidence. Sentencing judges do not second-guess what may happen in the future; they have considered the problems faced by the families of the victims, they have considered the perpetrator of the crime and whether rehabilitation will work, and they have come to the conclusion that it is not an option. I say to honourable members that judges and their views and decisions should be respected in the ultimate. That was the basis on which truth in sentencing was introduced. Before truth in sentencing was introduced, basically the sentence for murder was about 10 years in gaol. No matter how bad the offence was, the offender was generally released after about 10 years, which was appalling for the victims and their relatives. The Coalition Government introduced truth in sentencing, which means that if a person is convicted of murder and sentenced to life imprisonment, and the person's file is marked "never to be released", that is precisely what should happen. It sends out a clear message to everyone in the community. It is not an exercise in how, where and why. I well remember in earlier days a psychiatrist by the name of Dr John McGeorge examining a person who had been convicted of murder. He determined that the person was sane and he was satisfied that the person could be released on parole. I well know what a person by the name of Lawson proceeded to do with certain school girls and a teacher—and it was murder most foul the second time. In my opinion this bill deals with life sentencing effectively and its provisions embody a framework for implementation. New section 154A deals with one possibility of parole for serious offenders who are the subject of a non-release recommendation. New section 154A (3) (i) provides that an application for parole may be granted if, and only if, the offender is in imminent danger of dying or no longer has the physical ability to do harm to any person. Those provisions should be considered along with item [4] "Section 170 Revocation of parole order". I make no apology for supporting this bill. It is long overdue. I also believe that the second amendment proposed by my colleague the Deputy Leader of the Opposition should be supported at the Committee stage. I am just sad that it has taken so long and involved so much difficulty to get this bill before the House. The Hon. JOHN DELLA BOSCA (Special Minister of State, Minister for Industrial Relations, Assistant Treasurer, Minister Assisting the Premier on Public Sector Management, and Minister Assisting the 14466 LEGISLATIVE COUNCIL 6 June 2001
Premier for the Central Coast) [8.50 p.m.], in reply: This is a very technical area of criminal law and it is one which inevitably, sooner or later, will be scrutinised by the High Court. The Government wants to foresee as many potential loopholes as possible. We want to get it right. We also want to ensure that the legislation embraces never to be released offenders, such as Crump, whose sentence has already been redetermined. In essence, our Government is taking an approach that is the best approach. Why? First, because that is the approach that best resembles the sentencing court's approach in the context of what that court could do. Second, it is the genuine belief of the Government, based on careful analysis, that this approach will be more likely to withstand a challenge than an approach that simply cuts out redetermination altogether. The Hon. Charlie Lynn, when speaking to the debate on the Coalition's bill on 31 August last year, stated:
Both the Government and the Opposition could continue to get legal advice, and there would be ongoing conflicting views.
That is accurate. It is now a matter for the Parliament, this House, as to which view prevails. The Government has put forward its advice and relies upon the good sense of honourable members to support the best option. Much has been said and made about legal advice in the context of this legislation. The difficulty with such advice is that there is no direct High Court authority on the point of what the court might do should the Parliament choose to effectively re-sentence a prisoner to life imprisonment without any prospect of release. The imposition of sentences for criminal conduct rests entirely, and appropriately, with the courts. The Government has stated that it would find it difficult to accept that the High Court would not entertain a legal challenge to legislation which sought to re-sentence a small number of life sentence prisoners to, for the first time, a life sentence with no prospect of release.
I do not intend to canvass in great depth the law applicable to this matter for three reasons. First, as I have said, the legal position is still at the level of abstract principle because no case directly on the point has yet been before the courts. Second, the House has available to it the Solicitor General's advice, which is that the Government's bill is sound and should withstand scrutiny. Finally, I do not propose to provide more ammunition that I have to for any future legal challenge by raising a speculative argument. In general terms my concern, and the concern of the Government, is that legislation against selected individuals will be seen not as good law but as an exercise in, or interference with, judicial power which could be equally as invalid as bad law. The advantage which the Government's solution has over the approach adopted by the Opposition in dealing with this difficult group of prisoners is that the Government's approach does not interfere with the judicial process.
The Government is not imposing its own mandatory life sentence and does permit a highly circumscribed and almost impossible potential release on parole under highly restrictive conditions. The advice I have received from the Attorney General relates to concern that if the Opposition's approach were adopted and the amendments were carried there would be a high likelihood of a successful High Court challenge. The legislative power of the State, as happened in the Kable case, would be further eroded, thereby diminishing the powers of this Parliament to pass laws for the peace, welfare and good government of the citizens of this State. The Government is working, and has worked, at examining this issue for nearly a year. We considered the model that was put forward by the Leader of the Opposition and decided that it should not be debated as a matter of policy while proceedings concerning the criminal law were on foot.
The Opposition model has inherent flaws which may increase the prospects of a challenge. During debate Reverend the Hon. Fred Nile asked about the Parole Board proposal. He referred to a situation of a prisoner who is in imminent danger of dying, has no physical ability to do harm, has demonstrated that he or she does not pose a risk to the community, who is granted parole and who then recovers. In that most unlikely situation, that person's parole would be revoked because that person would no longer satisfy the criteria and he or she would be re-detained. The permanent incapacity or imminent death criteria are no longer met. Let me emphasise that all the criteria specified in new section 154A are ongoing.
The Hon. Malcolm Jones quite rightly indicated during his contribution to the debate that the selection of which model to support is a very difficult call to make. In response to his intimation, let me say that the Government has analysed the options. The response that the Government is putting forward is based on the genuine belief of the Government that it is a workable option which will achieve a common goal. The Government acknowledges that the common goal of this House is to keep serious offenders in custody. The legislation will pass in this Parliament in one form or another. It is a matter for honourable members to ensure that the model they support is the most effective one and that it will withstand the test of time. No legislation is ever appeal proof, but the Government's bill is the least likely to offend the recognised sentencing principles. I commend the bill to the House. 6 June 2001 LEGISLATIVE COUNCIL 14467
Question—That the bill be now read a second time—put.
The House divided.
Ayes, 31
Ms Burnswoods Mr Johnson Mr Samios Mr Colless Mr M. I. Jones Mrs Sham-Ho Mr Della Bosca Mr Kelly Ms Tebbutt Mr Dyer Mr Lynn Mr Tingle Ms Fazio Mr Macdonald Mr Tsang Mrs Forsythe Mrs Nile Mr West Mr Gallacher Reverend Nile Dr Wong Miss Gardiner Mr Oldfield Mr Gay Mr Pearce Tellers, Mr Harwin Mr Ryan Mr Jobling Mr Hatzistergos Ms Saffin Mr Primrose
Noes, 4
Mr Breen Mr Cohen Tellers, Dr Chesterfield-Evans Ms Rhiannon
Question resolved in the affirmative.
Motion agreed to.
Bill read a second time.
FIREARMS AMENDMENT (TRAFFICKING) BILL
Second Reading
The Hon. IAN MACDONALD (Parliamentary Secretary) [9.06 p.m.]: I move:
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.
Leave granted.
I am pleased to introduce the Firearms Amendment (Trafficking) Bill 2001.
Members will be aware of the community’s concern about the illegal use of firearms by criminals.
I share these concerns.
That is why this Government is introducing this bill. The bill introduces a range of measures designed to ensure police have sufficient enforcement powers to deal with the illegal trafficking of handguns and prohibited firearms.
The bill will provide the firearm trafficking unit of the new Police Service with the powers it needs to crack down on illegal gun traffickers.
It will not impact on law-abiding licensed shooters.
The firearm trafficking unit was formed within crime agencies in November 1999 to develop new methods of tracking the supply of guns to criminals.
The unit’s main purpose is to identify, investigate and prosecute those involved in the illicit trafficking of firearms.
To date, the unit has conducted 13 major strike force investigations targeting individuals and organised crime syndicates involved in the illicit supply of firearms. 14468 LEGISLATIVE COUNCIL 6 June 2001
These investigations have resulted in:
31 arrests; 503 charges; The seizure of $347,175 in cash; and The seizure and confiscation of 441 illegal firearms, plus 366 firearm frames and a variety of firearm parts.
Amongst the firearms seized by the unit were 151 pistols, 4 machine guns, and an anti-tank rocket launcher.
Explosives and detonator cord were also found in 11 instances.
The unit has also located a clandestine laboratory, and seized drugs including 4.1kg methylamphetamine and 6kg Sudafed, the equivalent of 600 “trips” of LSD, cannabis plants and leaf, cocaine, amphetamines, and ecstasy.
This is merely the beginning of enforcement activities.
The firearm trafficking unit is working closely with other agencies in new, particularly the New South Wales crime commission, as well as with agencies interstate, to develop an Australia-wide law enforcement firearms trafficking intelligence network.
However, despite the considerable success experience by the new trafficking unit to date, the Police Service has advised that additional powers are required to target illegal trafficking activity.
The Police Service has asked for powers similar to those in the Drug Misuse and Trafficking Act 1985, powers which are designed to catch the masterminds of trafficking activity.
Operational experience has shown that, just as is the case with drugs, it is vital to simultaneously target illegal firearm trafficking at both street dealer level and higher up the criminal hierarchy.
Laws are needed which specifically target the organisers of firearm trafficking, who remain removed from the actual trafficking activity and yet instigate large scale trafficking activity and derive substantial profits from it.
Unless police are provided with the tools to target this group, they cannot effectively fight firearm trafficking activity.
For this reason, on 27 March 2001 the Premier announced the creation of new laws to target the trade in illegal firearms as part of the Government’s “Cabramatta” initiatives package.
The Firearms Amendment (Trafficking) Bill 2001 will both limit the availability of firearms to criminals, and introduce a deterrent against the criminal use of firearms.
The bill will do this not just within new, but is intended to form part of a nation-wide action plan against firearm traffickers.
I will be providing this bill to other jurisdictions through the Australian Police Ministers’ Council working party on handgun crime as a national model for firearm trafficking laws.
A coordinated national response to firearms trafficking will ensure that a loophole in one jurisdiction’s legislation cannot be exploited by criminals to divert illegal guns to another jurisdiction.
You will recall that in 1996 the Australian Police Ministers' Council agreed to the National Firearms Agreement.
This agreement established the basis on which the new Firearms Act 1996, and the firearms legislation in all other States and Territories, is based.
The Firearms Amendment (Trafficking) Bill adopts a two pronged strategy of detection and deterrence which is consistent with the National Firearms Agreement.
Specialist, dedicated trafficking police with increased police powers to target firearm traffickers will detect those criminals attempting to avoid the law and, through enforcement activity, will limit the availability of illegal firearms.
To increase the deterrent for illegal use, the penalty for illegal possession of a pistol or prohibited firearm will be increased from a maximum of 10 years imprisonment to 14 years on conviction on indictment.
These high penalties are reflected throughout the bill.
The Firearms Amendment (Trafficking) Bill 2001 also:
Makes it illegal to sell or take part in the sale of firearms to any person not authorised to possess a firearm (this offence will attract a 20 year gaol term);
Makes it illegal for a licensed firearm dealer to wilfully record false details in firearms transactions (this will attract a 14 year gaol term);
Makes it illegal for an eligible person to obtain a licence to act as a front for an illegal firearms dealer (this will attract a 14 year gaol term);
Makes it illegal in new to conspire to traffic illegal firearms, even if such conspiring takes place with persons outside new; 6 June 2001 LEGISLATIVE COUNCIL 14469
Provides police with the power to demand all firearms and parts for inspection from suspected arms dealers;
Introduces compulsory registration of firearm frames to curb the illegal trade in firearm parts; and
Extends the definition of possession of a firearm and requires the defendants to argue their case before the court.
These measures are not aimed at licensed shooters and their lawful associates.
Persons with a licence or a permit for a firearm have nothing to fear from this bill.
In addition, to ensure that otherwise law-abiding persons are not unduly penalised, prior to the commencement of this bill I will introduce a regulation to establish a three month amnesty.
the Firearms Amendment (Trafficking) Bill provides the firearms trafficking unit with the power it needs to combat the illegal trade in firearms and to target criminals in possession of illegal firearms.
For example, clause 4A of the bill creates an extended definition of possession, which provides that the owner or person in the care, control and management of premises is deemed to be in possession of a firearm in or on that premises unless:
(a) the firearm was placed there by or on behalf of a person licensed or otherwise authorised to possess the firearm; or
(b) the person did not know and could not reasonably be expected to have known the firearm was on the premises; or
(c) on the evidence before the court, the person was not in possession of the firearm.
I have been advised by the Commissioner of Police that the police service is very concerned by a number of cases which have occurred where criminals are blatantly manipulating the law to escape charges of illegal possession of a firearm.
For example, an illegal gun may be located by police in a vehicle which includes a group of persons with a history of serious criminal offences involving illegal firearms.
Nevertheless I am advised that, in such situations, the legal requirement to establish a person had control of the gun to the exclusion of other persons means that serious criminals are able to manipulate the law to their advantage.
This is an unsatisfactory situation.
Clause 4A has therefore been specifically designed to target criminals found with a gun on or in their premises.
Clause 4A is balanced by appropriate safeguards.
Persons who lawfully associate with a legitimate licensed shooter will not be caught by this clause.
Under sub-clause (a) for example, the family of a licence holder who stores his or her firearm at home will not be affected. Neither will a person who lawfully transports a licensed shooter and his/her firearm.
Similarly, sub-clause (b) is designed to protect persons who were genuinely unaware that a gun is on their premises.
Sub-clause (c) will ensure that the court has sufficient flexibility to determine matters on the facts of each individual case, but will nevertheless provide law enforcement with a powerful tool for combating organised firearm trafficking.
The bill also introduces a range of supply offences, through a combination of including a specific definition of sale in section 4 of the Act and establishing three new sale offences in clause 51.
Clause 51 restricts the sale of a firearm to those persons who are authorised to possess the firearm.
This mirrors the current provision in section 51 of the Firearms Act 1996.
Anyone who sells to an unauthorised person will be committing an offence.
However, clause 51 also creates new offences of illegally taking part in a sale, and participating in illegal ongoing sales.
The maximum penalty on indictment for illegal sale is 14 years imprisonment.
The offence of ongoing sale also carries a 20 year maximum, but in addition a person charged with this offence will be subject to asset confiscation under the Criminal Assets Recovery Act 1990.
Clause 51 also provides an offence of illegal purchase of a firearm, the maximum penalty for which is 14 years.
This range of new supply offences will ensure that police accurately target the masterminds behind major firearm trafficking operations.
In addition to those who physically handle the illegal guns, this bill will enable police to arrest the masterminds who stay one step removed from the actual sale, but arrange and profit from the sale.
To effectively target firearm trafficking it is vital that police are able to pursue those who are at the top of the criminal hierarchy.
In addition to new supply offences, clause 72 will make it illegal for a licensed firearm dealer to wilfully record false details in firearm transaction records. This offence will attract a maximum penalty of 14 years on indictment. 14470 LEGISLATIVE COUNCIL 6 June 2001
This will not affect ordinary, law abiding firearm dealers who merely make a mistake in their records.
Police will target those engaged in systematic trafficking activity using “duplicate books” in an attempt to divert law enforcement suspicion.
Clauses 17B and 44 combine to make it an offence for an eligible person to obtain a licence to act as a front for an illegal firearm dealer.
This is done by declaring certain persons who have had their licence application refused, or their licence revoked, as prescribed persons who cannot be involved in a firearms dealing business.
A firearms dealer who has had his or her licence revoked within the last 10 years is prescribed from being involved in a firearms dealing business by clause 44A.
This is designed to catch those persons who are unfit to hold a dealer’s licence, but use another person to obtain a dealer licence and to act as a front for the ex-dealer’s continuing participation in the dealership
If this occurs, and a front person is used to run a dealership for an ineligible person, then clause 44A(1) provides that both the front person and the ex dealer will be liable for a maximum penalty of imprisonment for 14 years.
The bill also provides that all new persons applying for a dealer’s licence must specify their close associates.
This will assist police to identify persons who have been disqualified from holding a firearm dealer’s licence, or who would be refused a licence because they are not fit to hold one, from using a front person to obtain the licence for them.
The close associate provisions in the bill are modelled upon the requirements in the Security Industry Act 1997 in relation to the issue of security master licences.
Currently licensed dealers will not be required to provide any further details on their close associates unless the police serve them with a notice to supply such details pursuant to sub-clause 44(3) of the bill.
In addition, clause 44A prevents a dealer from employing a prescribed person in the dealership, where the dealer knew that the person was prescribed.
A person whom the commissioner has refused or revoked a licence because:
The commissioner was not satisfied the person was fit and proper to hold the licence and could not be safely trusted to have possession of firearms without danger to public safety or the peace; or
Because the commissioner considered it would be against the public interest to issue the licence;
Will be prescribed by clause 44A(3)(c) from being involved in a firearms dealing business.
As firearms dealers have access to a wide range of firearms, including pistols and prohibited firearms, it is vital that those who operate and control the business do not pose a public safety risk.
It is also vital that employees who should not have access to firearms for public safety reasons are not able to do so through their employment with a dealership.
This is why persons who have a current apprehended violence order against them will also be prescribed persons under the bill.
Once the order has lapsed or is revoked, the person ceases to be prescribed.
This will ensure that only persons who do not constitute a public safety risk may have access to firearms via their employment in a firearms dealer business.
The bill also includes a cross-jurisdictional machinery provision which will enable the prosecution of persons in new who conspire to commit an offence in another State or Territory.
Clause 51C provides that it will be illegal in New South Wales to conspire to commit a firearm offence in another State or Territory.
This clause is modelled on a similar conspiracy offence in the Drug Misuse and Trafficking Act.
It is designed to target sophisticated and organised cross-border criminal activity.
For example, currently if two people in new conspire to purchase an illegal shipment of firearms from another State and one travels to that other state to arrange for the purchase, that person may be arrested in that other State for the illegal purchase but there is no corresponding power under new law to arrest the new conspirator.
This is because there has been no offence committed by the new person which falls within the jurisdiction of either new or the other State’s law.
Clause 51C will change this, making new conspirators to an illegal purchase in another state subject to the same penalties as if the actual purchase had occurred within new. 6 June 2001 LEGISLATIVE COUNCIL 14471
The bill will also increase the controls on firearm parts.
Currently, s45(6)(b) of the Firearms Act provides police with the power to require that a licensed dealer produce all firearms and spare barrels in his/her possession for inspection.
However there is no similar power in relation to firearm parts.
Clause 45 will require dealers to record all transactions involving firearm parts and will provide police with the power to inspect parts held by a firearm dealer.
This does not mean that dealers will need to record every spring which goes to make up a firearm.
It will mean that records must be kept of barrels, breeches, pistol slides, frames, cylinders, trigger mechanisms, operating mechanisms and magazines.
This will assist the police to track firearm parts, and ensure that they are not used by traffickers to construct illegal guns.
Clause 93 provides for compulsory registration of firearm frames, and ensures that firearm frames are covered by all the registration requirements currently in part 3 of the Firearms Act 1996.
A firearm frame is one of the most important parts required to construct an illegal gun.
Registration of frames will assist police to curb the illegal trade in firearm parts, by enabling police to track the movement of frames and prevent them from being used to construct illegal firearms.
Frames which already form part of a registered firearm will not need to be registered separately.
Schedule 3 of the bill provides that those persons who currently have a spare frame will have 6 months in which to register it, sell it to or through a licensed dealer, or surrender it to police, before they commit a registration offence.
The penalty for failure to register a spare frame will be the same as that for possession of an unregistered firearm, a maximum of 5 years on indictment for a non-prohibited frame, and a maximum of 10 years on indictment for a pistol or prohibited firearm frame.
This Government is serious about firearm trafficking.
The Firearms Amendment (Trafficking) Bill 2001 will provide the new police service with the powers it needs to crack down on illegal gun traffickers.
I commend the bill to the House. The Hon. MICHAEL GALLACHER (Leader of the Opposition) [9.06 p.m.]: At the outset I place on record the Opposition's support for the Firearms Amendment (Trafficking) Bill. The purpose of the legislation is to amend the Firearms Act to—in a nutshell—crack down on illegal gun traffickers. It is important to recognise that the genesis of the legislation is the New South Wales Police Service. The Government has informed the Opposition that the Police Service has asked for these powers, which are very similar to the powers already set down in the Drug Misuse and Trafficking Act 1985, to specifically target the organisers of illegal firearms trafficking in New South Wales. In addition to provisions ensuring that illegal firearms traffickers are the subject of a criminal investigation by members of the New South Wales Police Service, those who are found guilty will be subjected to tougher sentencing.
I am sure that all members would agree that individuals who participate in the illegal trafficking of firearms should receive significant sentences, because that in turn meets with community expectation—not dissimilar to matters discussed previously this evening. The bill increases the maximum penalty for illegal possession of a pistol or prohibited firearm from 10 years imprisonment to 14 years. The Opposition looks forward to hearing the contribution of the Hon. John Tingle, who I note is eagerly awaiting an opportunity to speak to this bill and will no doubt be in a position to refer members to the impacts of the legislation on firearms traffickers in much greater detail than is spelled out in the bill.
The bill makes it illegal to sell or take part in the sale of firearms to any person not authorised to possess a firearm; makes it illegal for a licensed firearm dealer to wilfully record false details in firearms transactions; makes it illegal for an eligible person to obtain a licence to act as a front for an illegal firearms dealer; makes it illegal in New South Wales to conspire to traffic in illegal firearms, even if such conspiracy takes place with persons outside New South Wales; provides police with the power to demand all firearms and parts for inspection from suspected arms dealers; introduces compulsory registration of firearm frames to curb the illegal trade in firearm parts; and extends the definition of possession of a firearm. The purpose of the latter provision is to give police the power to apprehend, for example, gang members in a car who each deny possession of a handgun found in the motor vehicle. As a person who has been 14472 LEGISLATIVE COUNCIL 6 June 2001 confronted with such difficulties prior to entering Parliament, that is an extremely important reform in recognising possession for the purposes of criminal proceedings.
The bill also requires applicants for firearms dealers licences to specify their close associates. I suspect that most people in our community would have thought that those matters were in place prior to this evening. That is not the case, and after years of submissions from the Police Service finally the Government has made these reforms. I would be surprised if they were only recent submissions. Earlier I pointed out the change in the definition of possession. The Police Service has raised that matter with governments for a number of years. The Police Service has the same difficulties with possession under the Drug Misuse and Trafficking Act. One would hope that there are not other significant reforms that this Government, which has been in office for six years now, continues to put at the bottom of the pile. Finally, this new section of the legislation prohibits people who have had a licence refused or revoked from being involved in a firearms dealers business. I also expect that most people in the community expect that provision to have been in place before this evening. It is encouraging for me to represent the Opposition and to talk about significant reform, but it is a shame that it has taken this Government six years to finally bring it to fruition. This legislation well and truly meets community expectation in terms of our continual request to reduce the number of illegal firearms in the possession of criminals in our community. At the same time it recognises the legitimacy of law-abiding firearms dealers. Information available to the Coalition suggests that law-abiding firearms owners and users of firearms, especially association representatives, are, in the main, at ease with this legislation—no doubt they have some reservations. With that in mind, the Opposition is pleased to support this legislation. Ms LEE RHIANNON [9.12 p.m.]: The Greens support measures that restrict the availability of firearms. We have always taken a very strong position in favour of gun control. We would prefer to see more effort on reducing the number of firearms in the community, both illegal firearms and many which are currently legal, but the Greens recognise that some measures are required to clamp down on trafficking in illegal weapons. We support most of this legislation but we have some grave concerns about some aspects of the bill. The Greens are concerned with sections 4A and 51 (3), which in our view, reverse the traditional burden of proof in our legal system. Those sections dangerously undermine the fundamental tenet that people are innocent until proven guilty. Under section 4A, the burden of proof is placed on defendants to satisfy the court that they are not in possession of an illegal firearm. If an illegal firearm is in or on any premises owned, leased or occupied by, or in the care, control or management of a person, then they have to prove to the court that they were not in possession of that firearm. That section has the potential to create serious miscarriages of justice, where individuals who have done nothing wrong themselves are convicted because, in the eyes of the court, they could not find sufficient evidence to prove that they were not in possession of the firearm in question. It also places tremendous discretion in the hands of the police, who will be able to arrest everyone in a house or building if they find one firearm that they believe to be illegal. This is not just guilt by association, but also guilt by location. People will be condemned, and even gaoled, for having friends who have illegal firearms, and for being in the wrong place at the wrong time. It is clear that the bill's operation will be highly discriminatory. In many cases the conviction of defendants will come down to their creditability, an outcome that will work against the rights of the disadvantaged—young people, indigenous people and people from non-English speaking backgrounds. If an individual is perceived by the court to be a member of a gang, particularly one of the so-called ethnically based gangs which our Premier and our Commissioner of Police have so shamefully exaggerated and scapegoated, then the court is quite unlikely to believe that he or she did not know of the presence of an illegal firearm. In all likelihood the police will be even more discriminatory in assessing the credibility of a suspect. New section 51 (3) is also unacceptably wide in its operation. I understand that this section is designed to encompass the Mr Bigs of the gun trade, to give the police the powers to go after those who control drug trafficking from afar. But it has been drafted so broadly that it has the potential to impact unacceptably upon civil liberties. It raises many questions, and seems to provide almost endless opportunities for innocent people to be unwittingly caught in the net. It theoretically provides police with almost unlimited discretion to arrest, if not charge, anyone even remotely connected to somebody who is engaged in trafficking illegal firearms. One of the consistent themes in all the recent investigations and studies into corruption in the New South Wales Police Service is that greater police discretion leads directly to greater police corruption. When police have discretionary powers, sooner or later some police will break the rules and use those powers for their own enrichment. This bill provides fertile ground for corruption, and paves the way for royal 6 June 2001 LEGISLATIVE COUNCIL 14473 commissions in years to come. The basic problem with this bill is that the goal of reducing the trade in illegal firearms has been distorted by the Government's hysterical law-and-order campaign. A prime objective of this bill is to create the impression that the Government has acted decisively against criminals, irrespective of the substance of the changes. A far more meaningful way to tackle the problems of gun-related crime and gun deaths would be the banning of semi-automatic hand guns. Semi-automatic hand guns are still readily available in New South Wales, and great tragedy results because of the ease with which people can obtain those weapons.
But that would not generate a tough-on-crime headline for the government of the day. That would not deliver the law-and-order image that this Government so desperately craves. All it would do is remove tens of thousands of high-powered weapons from the community, weapons that could at any time be used in a homicide or a suicide. The police should have reasonable powers to enforce laws against trafficking in illegal firearms. Illegal firearms represent an enormous and long-lasting threat to public safety and well-being. But an hysterical law-and-order, lock-them-up approach will not work, just as that approach is failing across the criminal justice system. Laws that infringe civil liberties, that give the police extraordinary discretion, that will operate in a discriminatory way, and that create the potential for countless injustices, simply cannot be justified. We need to get away from the naive view that the only problem guns are illegal guns, and move to restrict further legal firearms as well as illegal ones.
The Hon. JOHN TINGLE [9.19 p.m.]: It goes without saying that my party and I totally support this bill. We believe that the Firearms Amendment (Trafficking) Bill is the first legislation introduced in any Parliament in Australia since 1988 which concentrates on the real problem with firearms, that is, the use of illegal or prohibited firearms in crime and violence instead of targeting law abiding gun owners who are not the problem and who are not threatened by this bill, despite the assessment of the supposed threat to innocent people outlined in the speech of Ms Lee Rhiannon preceding mine.
The Leader of the Opposition dealt in some detail with the provisions of the bill, so I will not go over the bill in fine detail. But I would like to concentrate on the background and ramifications of what is a vital and overdue piece of legislation. For about two years I have been warning about the rise of the black market in smuggled and stolen hand guns. Smuggling is the main source of the illegal guns used in this country. That smuggling has been on the rise for at least two years, and possibly three. Various figures from United Nations sources, local police sources and even anecdotal evidence has been suggesting, since 1999, that large numbers of hand guns are smuggled into Australia illegally every year. The United Nations Centre for Gun Control suggested in 1999 that the number was about 3,000 per annum. New South Wales police suggested that last year it might be 7,000 per annum. But the figure is probably higher because it is so easy to smuggle hand guns. Also, it is hugely profitable.
I am told that it is possible to buy a replica Glock for about $300 in some parts of Asia, and that that same gun is worth $5,000 on the black market in Sydney. Of course, you have only got to bring in a few hundred by air or by sea and you are on easy street for quite a while. These guns have a high turnover. After they have been used in crime the criminals throw them away so that the guns cannot be linked to them by ballistics. It is so easy to get the guns, sell them and use them that the black market is blowing out. I would suggest that the trade in illegal, smuggled guns in this country is probably as widespread, and certainly as lucrative, as the trade in drugs, to which it is so closely related.
This bill tackles all the right areas. Trafficking, supplying, possessing, and using all attract largely increased penalties, although I would have preferred to see the 20-year penalty applied to a few more of the offences. The bill seeks to break the supply chain and also reduce the profitability, while raising the risk factor for those involved in trafficking and using the firearms. There is clear evidence—contrary to what has been suggested in this House tonight—reported by the Australian Bureau of Statistics in July last year, that illegally owned guns, owned by licensed shooters, are not responsible for firearm crime. The bureau said that between 1997 and 1999, for instance, only one legally owned hand guns was used in a violent crime—and that was used against the owner!
Suggestions from the usual anti-gun mob that banning or limiting legal ownership of handguns will somehow reduce their use in crime and violence are silly, and have always been silly. The Hon. Lee Rhiannon said that we should ban all semi-automatic handguns. As usual, of course, she is targeting the law-abiding citizen. We have to concentrate on the criminal with his unregistered, prohibited, illegal gun. I believe that the stance of many of these anti-gun people simply confirms that their anti-gun activities come from a particular area of political ideology. They are dishonest, and they are aimed at controlling not guns but people. The emphasis in this bill is about the use of illegally owned and prohibited firearms, and that is how it ought to be. 14474 LEGISLATIVE COUNCIL 6 June 2001
Sensibly, the Minister has allowed a three-month amnesty—although it is doubtful that many criminals will meekly hand in their expensive and much-cherished prohibited firearms. However, there are undoubtedly some otherwise law-abiding people in this community who might still be in possession of a prohibited firearm because they did not surrender it in the buyback, which was foolish, or because they have acquired it since by finding it stored somewhere or acquiring it from a deceased relative. At the present time they cannot surrender that firearm to anybody without being charged with possession of a prohibited firearm. So they are stuck with it. This amnesty will allow them to get rid of it, and it will bring those guns out of the system, as they should be.
It is interesting that new research issued by the Bureau of Crime Statistics and Research only today show that homicides and robberies with firearms have declined, but that non-fatal shooting offences have increased greatly. However, much of the reporting of this research today has dealt only with percentages, and I believe that some of the ways in which it has been reported in the media have given a totally false picture of what is actually happening with gun crime in this State. The actual numbers are far more revealing and substantiate the comment in the research by the director of the bureau, Dr Don Weatherburn, that shooting offences in New South Wales are relatively low. For instance, the incidence of murder with a hand gun has remained low for the five years to 2000. Those are the latest figures available.
We are told that in 2000, using percentages, 29 per cent of murders with a firearm were committed with a hand gun. But going to the actual figures, we find that 17 murders were committed with a firearm of some kind in 2000, but of those only five were with a hand gun. Five is a lot less than 29 in the minds of the media. The same research report shows us that between July 1998 and June 1999 there were 64 firearms-related homicides in all Australia—and that that equates to three firearms homicides for every one million persons in the population. However, there can be no question that the use of illegal firearms in crime is increasing, and Dr Weatherburn makes a point of saying that there is a need for concerted action to restrict the flow of unregistered firearms into the community.
That is where the problem lies, in smuggled and reactivated firearms. Once a hand gun, for instance, has been legally owned, taken into the system and registered, it is of much less value to the criminal because of the ease of tracing it when it is found. The illegal gun, which has never been registered, and of which there is no legal record, is the big one. It is significant that 55 per cent of all hand gun shootings in New South Wales last year were in the Canterbury-Bankstown and Fairfield-Liverpool statistical areas, the latter of which includes Cabramatta, and both areas have recognised serious drug problems. The research also shows that young men 18 to 19 years of age were the most likely to use hand guns. I quote from today's bureau document "Firearms and Violent Crime in New South Wales":
... the increase in homicides involving youth and handguns is thought to have been caused primarily by the development of the "crack" market; the recruitment of young people to sell drugs on the street, increased arming of drug sellers, the carrying of guns for protection and status, and irresponsible and casual use by young people.
That is why this bill is so important. It seeks to place the emphasis on exactly where the problem is shown to be. Of course, all legislation, in any sphere, has the drawback that the penalties it provides can be imposed only after a crime has been committed. But this bill, by making the offences it attacks indictable, takes a more serious view of them—taking them out of local courts into a court where a judge will deal with them, and takes away the automatic presumption of bail. It also reverses the onus of proof for someone charged with an offence under this bill, and that makes the prospects much more bleak for someone caught and dealt with under this law, and it should give the criminals something to worry about. It is important to note, however, that even in this reversal of the onus of proof there are important and effective saving clauses in the bill which I believe can protect the innocent.
Tonight we have heard talk of people's civil liberties. I believe that in this context such talk is totally out of place. What civil liberties should we be offering to gun runners and criminals using guns in violence? What civil liberties of ours are they offending when they do that? This bill can be only one wing of the campaign we have to wage against crime and the use of illegal firearms. We have to stop the smuggling—and that is one for the Commonwealth—and we also have to start tackling the drug problem realistically, because it is so obviously linked to the upsurge in the use of firearms in crime and violence. We keep talking about the war on drugs, but there really is no war. Most of the time we are in retreat, making concessions and decriminalising drugs. This bill is an important development in the fight against both drugs and the use of firearms in crime and in violence. It is a welcome turn in that trend, and we support it wholeheartedly.
The Hon. Dr PETER WONG [9.27 p.m.]: Honourable members probably would be aware that a recent report by the New South Wales Bureau of Crime Statistics on firearms and violent crime showed that 6 June 2001 LEGISLATIVE COUNCIL 14475 shooting incidents involving firearms have doubled over the past five years. Sadly, some members of the community suffered disproportionately compared with others. As was mentioned by the Hon. John Tingle earlier, in fact 55 per cent of all hand gun shootings in New South Wales last year occurred in the Canterbury- Bankstown and Fairfield-Liverpool areas. This bill rightly seeks to protect the community, and especially residents in those two areas of metropolitan Sydney. It does so by a combination of closing loopholes in current gun laws, greater prison sentences, enhanced police powers, and imposing greater responsibilities on gun dealers.
I note that licensed shooters will not be adversely affected by this bill. I note also that this bill is part of the New South Wales Government's response to the drug problem, particularly in Cabramatta. Honourable members of this House would be aware that other legislation, including the Police Powers (Internally Concealed Drugs) Bill and the Police Powers (Drug Premises) Bill will be introduced in this House shortly.
In my mind the Government moved to introduce this bill in response to an inquiry into Cabramatta police resources conducted by this House—an inquiry which began in the middle of last year. That example highlights the fact that this House is more than just a House of review. The upper House has clearly forced the Government to act. It is also pleasing to note that the inquiry commenced as a result of the tenacious lobbying efforts of the Unity party's local Fairfield councillor, Thang Ngo.
In supporting this bill I take this opportunity to sound a friendly warning to the Government. It is easy for the Government to gain political mileage from this and other law and order bills that essentially increase police powers. For all that mileage, residents of New South Wales will expect dramatic progress in the fight against the drug and crime problem in this State. With that in mind, whilst I support this bill, I also encourage the Government to announce specific preventive long-term initiatives in response to the drug problem. Those initiatives should address the specific causes of crime rather than focusing on throwing more people into gaol.
The DEPUTY-PRESIDENT (The Hon. Henry Tsang): I acknowledge the presence in the gallery of Rotary students from France and Austria. I welcome them to New South Wales.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [9.31 p.m.]: I protest at the shortness of time that the Government has given us to analyse this bill. I heard about the bill for the first time yesterday and I have not had time to speak with the lobby groups about it. It is difficult to take a position in relation to this proposed legislation without any sort of feedback from the groups interested in it. I criticise the Government for arrogantly pushing legislation through this House when it has Opposition support. I congratulate the Hon. John Tingle on his contribution to the debate and on his earlier reference to the link between the growth of illegal guns and drugs, particularly crack and cocaine. We in this House pass bill after bill to increase police powers, crack down on drugs and put people in gaol for longer. Will we look one day for a more enlightened drug policy?
Presumably it is macho to carry a gun. If a person is to be punished for carrying a gun that person should not just experience the thrill of being macho. Presumably people would carry guns only to secure a huge amount of money or if someone's life was at stake in protecting his or her position in the drug trade. The fact that drugs are prohibited leads to immense social problems and an increase in the level of crime. People carrying hand guns or illegal guns is but one of those problems. At some point we must recognise that the present day drug trade is akin to the alcohol trade at the time of prohibition. We are simply losing the war and distorting society by fighting this lost cause. The Government and Opposition must take a more enlightened approach to drug policy. Even members of the Christian Democratic Party should take a more enlightened approach.
Reverend the Hon. Fred Nile: Would you and the Democrats legalise drugs? That is the alternative.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS: Of course we would! That is what I am saying. I am not saying that the Democrats are advocating the blanket legalisation of all drugs; I am suggesting that the present absurd prohibitive policies do not work. Alternatives must be looked at. I will not make blanket statements or silly statements such as those made by Reverend the Hon. Fred Nile in this House. I refer now to gun control. It goes without saying that illegal guns have to be controlled. I am less convinced that simply racking up the penalties in order to feel good is the solution, but illegal guns must be controlled. Loopholes in the legislation must be closed. If there were less drug crime, there would be less gun crime.
We are somewhat unimpressed by this Government, which happily funds gun clubs, thus increasing the number of people who are keen to carry guns. If people regard the carrying of guns as a normal part of life, 14476 LEGISLATIVE COUNCIL 6 June 2001 more people will get shot. In my submission that is a simple matter of statistics. When I grew up I was taught how to use guns. I have a respect for them. I do not use them or have them now, but I am not sure whether my childhood would have been particularly deprived if I did not shoot a gun. I would have found something else to do. In the main, guns are used legitimately and they play a part in the control of kangaroos and feral animals, which cause problems on farms and in national parks. If guns were not a normal part of life, fewer people would be shot.
That general statement about gun control might be beyond the scope of this bill. I do not know whether it comes within the ambit of normal gun control in that it draws a distinction that is much beloved by people in favour of guns—the difference between illegal and legal guns. When I was president of the Doctors Reform Society some years ago I remember the following suggestion being made: "Give us the guns. The doctors will be able to tell who are the mad people, who should not have guns and who should have them." One member of the Australian Medical Association [AMA] who was caught out at short notice said, "We will determine whether or not we can co-operate with something like that." I said "No, that is a crazy idea. You are almost killed when you try to take away someone's driving licence. You would not want doctors trying to take away somebody's gun licence. Frankly, the whole idea is absurd." Members of the AMA then said, "Yes, that is a silly idea. Doctors will not do that. They cannot make that decision."
It is difficult to draw a line between legal and illegal guns and gun owners. I believe that people who try to draw that line would be putting themselves at risk. Those who are most unstable would have to be declared unstable and the person who declared them unstable or unfit to carry a gun would be putting his or her life at risk. All those problems would not exist if the Government adopted a policy of not encouraging gun use when it is not absolutely necessary. Every time we give someone a gun that person is able to kill us just by wiggling his or her index finger. I do not want people around me to have that much power.
We see how much power corrupts when we observe the way in which the Government handles its agenda in this Chamber. This Government has too much power. The sooner that power is curbed the better. That logic applies also to gun use. I do not particularly oppose this bill. I confess that I wish I had been better briefed to vote on the bill, but I think it is relatively harmless. What a triumph for the Government that it was able to introduce this legislation without giving honourable members sufficient notice of it! In general I believe that I should support the bill, but I am unhappy about the Government's approach to introducing legislation such as this.
The Hon. DAVID OLDFIELD [9.38 p.m.]: I support the comments made earlier in debate by the Hon. John Tingle. Clearly, his remarks in regard to the gun debate made a great deal of sense. His remarks in this House and in the public arena on this issue always make a great deal of sense. I refer, first, to the general assault on legal gun owners. Earlier, the Hon. Dr Arthur Chesterfield-Evans said that it was difficult to draw a line between legal and illegal gun owners. Let me make it clear for the benefit of the honourable member. It is not difficult to draw a line between illegal and legal gun owners. Illegal gun owners are people who do not have a purpose or a reason to own a firearm. They do not legally own the guns and they do not have a licence. They walk into places like service stations and gun down attendants whilst being watched by cameras. Imagine what their intellect is! Legal gun owners are people who do not commit crimes.
[Interruption]
The DEPUTY-PRESIDENT (The Hon. Henry Tsang): Order! If the Hon. Dr Arthur Chesterfield- Evans wishes to contribute to debate, he should come into the Chamber.
The Hon. DAVID OLDFIELD: I can tell the Hon. Dr Arthur Chesterfield-Evans that legal gun owners are those who have licences. They are members of clubs; they shoot on a regular basis as their pastime. Legal gun owners are people such as Michael Diamond, the well-known Olympic gold medallist in at least two Olympic Games. These are legal gun owners.
Ms Lee Rhiannon: It was a legal gun owner who killed the children at Dunblane.
The Hon. DAVID OLDFIELD: For the information of the Hon. Lee Rhiannon, who is often misled, ill informed and foolish in her remarks—and her interjection this evening is an example of that—since the gun laws have been changed in England so that people like the Dunblane murderer can no longer have hand guns, crime with hand guns has actually gone through the roof. Statistics available through the British Parliament show clearly that since the banning of hand guns—which took approximately 200,000 handguns out of 6 June 2001 LEGISLATIVE COUNCIL 14477 circulation at a cost of something in the order of around $A500 million—and the removal of legitimate ownership of hand guns from legitimate owners who had not committed crimes, hand gun crime, murder, burglary and assault has gone through the roof. Has the honourable member seen the statistics? I thought not.
There is no difficulty drawing the line between legal and illegal gun owners. Illegal gun owners have guns illegally by virtue of not having a licence and not having a proper purpose to have them, and they commit crimes with them. Legal owners own their guns for a good purpose. They are members of clubs and they shoot under the auspices of that which is recognised as legal, reasonable and fair. I support this legislation. I have to say in closing that it seems particularly clear that the Democrats would ban guns and legalise drugs. That is a situation we will not have to endure in our lifetime, if ever, because no matter who will be in power it will never be the Democrats.
Reverend the Hon. FRED NILE [9.42 p.m.]: The Christian Democratic Party strongly supports the Firearms Amendment (Trafficking) Bill. Contrary to what the Hon. Dr Arthur Chesterfield-Evans said, this proposed legislation was announced on 27 March, when the Premier spelt out the details of the new laws to target the trade in illegal handguns and prohibited firearms as part of the Cabramatta initiative package. The bill is designed to ensure that the Police Service has sufficient powers to detect and combat illegal trafficking activity, and that the penalties for illegal trafficking behaviour are a sufficient deterrent. The bill is not aimed at licensed shooters or their lawful associates, but will provide the Firearms Trafficking Unit with the power it needs to combat the illegal trade in firearms and to target criminals in possession of illegal firearms.
The bill creates a number of offences that we strongly support, and the penalties for existing offences have been increased. For example, the penalty for the illegal possession of a pistol or prohibited firearm increases from 10 years to 14 years in gaol. The bill makes it illegal to supply or take part in the supply of firearms to any person not authorised to use firearms. That offence will carry a 20-year prison sentence. The bill makes it illegal for a licensed firearms dealer to wilfully record false details in firearms transactions. Such an offence will carry a 14-year gaol term. It makes it illegal for an eligible person to obtain a licence to act as a front for an illegal firearms dealer. This offence will carry a 14-year gaol term. The bill also makes it illegal in New South Wales to conspire to traffic in illegal firearms, even if such conspiring takes place outside New South Wales. Most importantly, it will provide police with the power to demand from suspected arms dealers all firearms and parts for inspection. It introduces compulsory registration of firearm frames to curb the illegal trade in firearm parts. It extends the definition of possession of a firearm and requires defendants charged with such an offence to argue their case before the court.
I would like to refer to the campaign on 26 April conducted by the gun control groups in Martin Place, when people having their lunches were confronted with a large television screen showing the crosshairs of a gunsight trained on the backs of passers-by. The caption read, "Last year, 24,000 Americans didn't expect to be shot dead either. Help us ban semi-automatic hand guns." I totally condemn the shock tactic used by that group. I believe it has the potential to achieve the opposite of what the group was trying to achieve. It could plant in the mind of an emotionally unstable person the idea of targeting and shooting people in Martin Place. We have heard of such shootings having taken place in the United States and here in Australia—in Tasmania and Melbourne. We should not do anything to incite anyone to take such action. I condemn the gun control groups for this tactic; it will do the opposite of what they claim to be trying to achieve.
I note that report No. 151 issued by the Australian Institute of Criminology into the licensing and registration status of firearms used in homicides states that there has been a decrease in the number of firearm- related homicides. The institute's report makes the point:
It was also found that the majority of firearms used to commit homicide were not registered, and the perpetrators of firearm- related homicide were not licensed firearms owners. This last finding indicates that the regulatory regime seems to have made it difficult for irresponsible, or otherwise unsuitable, individuals to legitimately obtain a firearm. In other words, those who commit homicide in Australia are individuals who have circumvented legislation and will be least likely to be affected if further restrictions on firearms ownership are introduced. Any further restrictions will most likely affect individuals who are the law- abiding shooters in Australia who have already "made significant sacrifices in furtherance of public safety". I read that for the benefit of the Greens and others who keep shifting the target away from illegal gun owners— criminals—and onto licensed firearm holders. The report referred also to the effectiveness of the New South Wales Police Service, through its specialised law-enforcement unit—the firearms tracking program—which is designed to focus specifically on tracing recovered firearms and identifying, investigating and prosecuting those involved in the illicit trafficking of firearms. Recently the firearms trafficking program seized more than 300 illegal firearms—according to this report—and uncovered a highly organised criminal syndicate with interstate connections distributing weapons in country New South Wales. The syndicate is allegedly involved in the illicit 14478 LEGISLATIVE COUNCIL 6 June 2001 trafficking of high-powered hand guns and gun parts. Such reports confirm the urgency of this legislation and the fact, as other honourable members have indicated, that a flood of illegal hand guns has been brought into Australia by organised crime. We need this legislation and it should not be delayed by the House.
The Hon. IAN MACDONALD (Parliamentary Secretary) [9.48 p.m.], in reply: I thank honourable members for their support for the bill, the purpose of which is to reduce firearms crime by targeting firearms trafficking. In response to specific issues that have been raised during debate, I wish to place on record the following. New section 4A will ensure that persons who own, occupy, manage or control premises in which an illegal firearm is found may have their day in court. Such persons may be required to explain to the court why the court should not, on the balance of probabilities, find that they were in possession of an illegal firearm. This will ensure there are adequate safeguards against the ridiculous position of police intercepting known criminals in premises with an illegal gun but being unable to proceed with a prosecution. Allowing this situation to continue does nothing for the people of New South Wales, who are crying out for action against criminals using illegal firearms on the streets.
New section 4A (a) and (b) are designed to ensure that law-abiding licensed shooters who use weapons will not be subject to the provisions of the Act. Earlier in the debate concern was expressed that innocent people will be imprisoned as a result of the extended definition of "possession" in new section 4A.. I note the comments on the definition of "possession". The extended definition of "possession" will ensure that persons who own, occupy, manage or control premises in which an illegal firearm is found have their day in court. Such persons will be required to explain to the court why the court should not, on the balance of probabilities, find that they were in possession of an illegal gun. Unfortunately a loophole in the current law is allowing the criminal minority to manipulate the law to get off possession charges scot-free. This requirement does not currently exist.
As I said, such persons will now need to convince the court that they were not in possession of the gun that was found in their house, for example. It will allow the prosecution to more thoroughly argue its case before the court, which will then reach judgment based on full knowledge of all the circumstances. The provision is not aimed at firearms licence holders or their lawful associates, or at innocent persons who are not involved in trafficking activities. Like the exercise of other police powers, it is up to the police to take into account all the relevant circumstances before they determine whether to charge a person. I note the concerns raised about new section 51 (1). I am advised that in the view of the Parliamentary Counsel's Office the statement that a person must not sell or knowingly take part in the sale of a firearm to another person means that the references to "take part in" in new section 51 (3) are at law a reference to knowingly taking part in the sale. An innocent person who is not involved in the illegal sale is therefore not subject to this section. That point was raised by Ms Lee Rhiannon.
I note the comments made about a ban on certain hand guns. I am advised that the proposal does not accord with the National Firearms Agreement, which was formulated in 1996 by all States and Territories and the Commonwealth. This agreement forms the foundation of the Firearms Act 1996. The New South Wales Government remains committed to upholding the terms of the national agreement. In conclusion, I thank honourable members for their comments on the bill, which will provide police with the tools they need to proactively target illegal firearms without infringing on civil liberties—a matter raised during the debate. I commend the bill to the House.
Motion agreed to.
Bill read a second time and passed through remaining stages.
CONSUMER CREDIT (NEW SOUTH WALES) AMENDMENT (PAY DAY LENDERS) BILL Personal Explanation The Hon. JOHN RYAN, by leave: Yesterday in debate on the Consumer Credit New South Wales (Pay Day Lenders) Bill I referred to the honourable member for Londonderry. In fact, I was referring to the honourable member for Blacktown, Mr Gibson. I misnamed the honourable member because the name of his electorate used to be Londonderry. The Hon. Ian Macdonald: That shows how much you know about the west.
The Hon. JOHN RYAN: I know a great deal about the west. I apologise for the error and wish to correct the record. 6 June 2001 LEGISLATIVE COUNCIL 14479
ADJOURNMENT
The Hon. IAN MACDONALD (Parliamentary Secretary) [9.55 p.m.]: I move:
That this House do now adjourn.
SOIL CONSERVATION SERVICE
The Hon. RICK COLLESS [9.55 p.m.]: Tonight I bring to the attention of the House the fallacy of arguments being promulgated by the Australian Labor Party faction calling itself Country Labor. In a recent address to this House the Hon. Tony Kelly reflected on the successes of the McKell Government of some 60 years ago. One point he raised was the fact that Sir William McKell was instrumental in creating the Soil Conservation Service.
The Hon. Tony Kelly: Which he was.
The Hon. RICK COLLESS: Which he was. The service was inaugurated in 1938, and I had the honour and privilege of serving with the Soil Conservation Service from 1971 to 1995, when it was decommissioned and incorporated into the Department of Land and Water Conservation. The irony of the decommissioning of the Soil Conservation Service is that it occurred under the Carr Labor Government. Sir William McKell must have turned in his grave with disgust on the day the Carr Government made that decision. Arguably, the Soil Conservation Service was the most efficient agency to grace the halls of government bureaucracy. The service enjoyed the respect and loyalty of the vast majority of New South Wales farmers and graziers. The staff were committed, highly trained and competent conservationists, in an era long before the conservation movement was dominated by the chardonnay socialists, as it appears to be today.
Soil conservationists were not attempting to prevent farmers from carrying out their business, as are the majority of those calling themselves conservationists today. They were a group of people who assessed the farmer's aspirations, the farmer's farming practices and skills and the land degradation issues he was facing. They designed remedial rehabilitation works, recommended changed land management practices and facilitated a change in thinking of the farmer and his family. They implemented the structural soil conservation works programs and helped the farmer with tree planting programs and revegetation programs. In those heady days of expansion of the Soil Conservation Service during the governments of Askin-Cutler, Lewis-Cutler, Lewis- Punch and Willis-Punch the service went from strength to strength. The commitment to soil conservation was never stronger than in the days when such great National Party men as Sir Charles Cutler and Leon Punch were the champions of the conservation movement in New South Wales. The Soil Conservation Service underwent some structural changes during the Greiner-Murray Government, when it was incorporated into the Department of Conservation and Land Management. It remained as an entity, and was again gaining a wider, more comprehensive charter under the leadership of Minister George Souris until the election of the Carr Government in 1995. The first nail in the coffin of the Soil Conservation Service came with the election of the Carr Government in 1995, and the service finally disappeared shortly after with the formation of the Department of Land and Water Conservation. There is now no recognisable entity under the department that reflects the Soil Conservation Service. There is a group of field service managers and bulldozer operators called Soilworks, but they are not supported by professional soil conservationists. There are no positions of soil conservationists in the department; nor are any younger officers being trained in the planning, design, technical and engineering components of the art of practical soil conservation. This should be of great concern to the Hon. Tony Kelly because he comes from Wellington, where soil conservation first started. Why any government would decommission an agency that had the respect and support of the community and provided help and assistance to farmers in overcoming their environmental problems is beyond comprehension. It happened under a Labor Government, and the same Labor Government has replaced the Soil Conservation Service with a suite of regulatory-based legislation that penalises farmers for doing the wrong thing, rather than rewarding them for doing the right thing. It is the wrong design, and it is indicative of how out of touch this faction of the ALP calling itself Country Labor is with the real needs of people in rural and provincial areas. Country Labor today bears no resemblance to the rural politicians of McKell's era. They are unable to secure any advantage for rural and provincial New South Wales, and one only has to peruse the legislative suite imposed on the bush since 1995 and review the budget papers this year to be convinced of this. I intend to 14480 LEGISLATIVE COUNCIL 6 June 2001 expand on that matter in my contribution to debate on the budget estimates and papers. Rest well, Sir William, for you truly created a great agency in the Soil Conservation Service. It is not of your making that your current ALP colleagues cannot recognise the contribution you made to conservation in New South Wales.
BIODIESEL FUEL
The Hon. IAN COHEN [9.59 p.m.]: I mention an issue that may be of interest to National Party conservationists—which would be a fine concept, actually. As recently as a week ago I travelled with a group of friends in a southerly direction from Newcastle in a very old but well-maintained diesel vehicle. It travelled the whole distance on what was basically a mixture of vegetable oil. It is very simple to make. It mixes easily and people can make their own fuel for just 20¢ a litre.
Hon. Ian Macdonald: What is the formula?
The Hon. IAN COHEN: I will come to that in a moment. It is quite clear that the world's current dependency on fossil fuels leads to greenhouse gas emissions which cause ongoing environmental problems, dependency on foreign oil suppliers, and dependency on fluctuating world oil prices—known as riding the OPEC rollercoaster.
The Hon. Ian Macdonald: Is it polyunsaturated oil?
The Hon. IAN COHEN: Indeed. As the Hon. Ian Macdonald travels down the highway, he will just smell a bit like burnt fish and chips. Dependency on non-renewable fuel is not the way to go. Fossil fuels are running out. It is clear that half of all reserves are almost gone. Natural gas is also a non-renewable fuel source and it, too, will run out. It really annoys me that natural gas is tied to petrol price increases, with the result that people who have set up conversion systems are going out of business. That is bad because natural gas is a cleaner fuel than petroleum. The burning of fossil fuels contributes to high levels of carbon dioxide and other gases in the earth's atmosphere, and that contributes to global warming as well as the greenhouse effect. The solution to these problems is that there could be an infinite supply of renewable energy. Biofuels come from plants that are grown constantly and replaced—plants such as rapeseed. Renewable fuels are carbon neutral.
The Hon. Ian Macdonald: What is biodiesel?
The Hon. IAN COHEN: Since the honourable member has asked me, I mention that there is a book entitled From the Fryer to the Fuel Tank, which I will lend to him if he would like it. It provides a complete guide to using vegetable oil as an alternative fuel. Biodiesel is a fuel that comprises 80 to 90 per cent vegetable oil, 10 to 20 per cent alcohol, and 0.35 to 1.5 per cent of a catalyst such as caustic soda. This makes a stable fuel which performs reliably in all diesel engines. It cuts emissions and mixes with petroleum diesel fuel. Moreover it is easy to make, it is safe to handle, and it can be poured straight into the fuel tank of any diesel vehicle. Biodiesel is ideal for the transportation industry as a replacement for fossil fuels. Biodiesel in petroleum diesel increases lubricity, which is how a fuel lubricates a fuel system and engine, and replaces the need for sulfur in petroleum diesel while maintaining better lubrication. Biodiesel has a better energy balance ratio than does petroleum diesel. It takes less energy to produce biodiesel for the energy it returns than do many fossil fuels. Biodiesel can be blended with petroleum diesel right now, without any modifications to existing engines or fuel supply systems.
The Hon. Ian Macdonald: So we can fill up at the supermarket now?
The Hon. IAN COHEN: Exactly. Go to the Big Carrot and fill up. Biodiesel is biodegradable and is non-toxic. Up to 98 per cent of biodegradation occurs within three weeks. Biodiesel is not explosive under normal circumstances and can be easily transported. Biodiesel's exhaust emissions are free of lead, sulfur dioxide and halogens. It has reduced particulates, unburned hydrocarbons, carbon monoxide and carbon dioxide. Biodiesel can be made from waste vegetable oils. My friends go from place to place in northern New South Wales and collect vegetable oil from fish and chip shops and restaurants which would otherwise have to pay to get rid of used oil. My friends put the oil through a simple filtration system and mix it with a few other components and they run their vehicles on biodiesel. Biodiesel is currently used worldwide and is produced in 27 countries. France is the world's largest producer, where it is required to be added to petroleum diesel as a lubricating agent. In Germany more than 1,000 fuel stations sell biodiesel. Volkswagen manufactures a vehicle, the Lupo, with biodiesel as its preferred fuel. Imagine a country that made a commitment to rid itself of fossil oils instead of continuing to line the pockets of the OPEC cartel! 6 June 2001 LEGISLATIVE COUNCIL 14481
The Hon. Ian Macdonald: Does olive oil work?
The Hon. IAN COHEN: Olive oil does work. Imagine a commitment that acknowledges the ability of the country to grow or capture its own fuels and energy, investing in its own people who are working on the land to provide cleaner non-toxic fuels for the country's industries and a pump price that is dependent on the strength and sustainability of its regional economy. That is still a dream, but it is possible in this country. In Australia, standards are currently being developed. There is a national campaign to get a biodiesel industry up and running in Australia. Biodiesel production is being promoted to small business. The Biodiesel Association of Australia uses an online web site to promote biodiesel and has created a newsletter to distribute information about biodiesel in Australia. Biodiesel does work.
Next week the Federal Government will make a decision on the introduction of methyl tertiary butyl ether [MTBE] into motor spirit in Australia. BP is campaigning actively against that introduction. I ask all honourable members to note that a highly toxic fuel additive which has not been available in Australia previously is likely to be introduced. The United States of America is phasing out the use of MTBE. Australia has the opportunity with biodiesel to develop a viable alternative to petroleum use. We have to stop the Federal Government from going ahead with the introduction of MTBE.
The Hon. Jan Burnswoods: Burnt fish and chips, and before long we will have burnt vegetables.
The Hon. IAN COHEN: The Hon. Jan Burnswoods may laugh but I have a friend in northern New South Wales who ploughs his land with a small tractor and all he leaves behind is the smell of burnt chips. [Time expired.]
PUBLIC LAND SALES The Hon. Dr ARTHUR CHESTERFIELD-EVANS [10.04 p.m.]: I speak about an issue of great importance involving the ability of future governments to provide for the health, education and recreation of all citizens of New South Wales. I speak about land for people and the great tragedy that is now happening— namely, the disposal of valuable public land to the private sector. This policy could manifest itself in the sale of a school, the sale of a hospital site or even the sale of green open space. Let me begin with green open space that is used for the recreation of the people. Given current government policy of urban consolidation, green open space is more critically important than ever. The Government wants to sell off 20 per cent of Callan Park in Lilyfield, which is an irreplaceable public asset. If Callan Park is sold, what will future citizens—who will live in a much more developed city—do for open space? Callan Park has been publicly owned for nearly 130 years. It is a beautiful piece of history and it is a landmark site. It may be only half the size of Centennial Park in the eastern suburbs of Sydney, but it is twice as beautiful. It has sweeping hills, hollows, heritage buildings and gardens, remnant bushland and 800 metres of waterfront. It is a very special place. It is a great regional park for the inner west. No other sites can fulfil its role. Hospital sites are another case in point. Rachel Forster Hospital in Redfern will be demolished and sold for a housing development. Land in Douglas Street, Redfern, is owned by the Health Department but it is also being sold. It is being zoned residential 2B to maximise the price that will be obtained, despite the fact that the local council would like to buy it for a park in view of the increasing urban density in that area. Surely these sites could be re-used for other public purposes, such as a shelter for homeless people, accommodation for country families who are forced to bring sick members of their family to Sydney for treatment, or even for office and meeting rooms for the innumerable small but worthy organisations that now find it hard to pay exorbitant rents. The list goes on. There are plenty of uses to which public land can be put instead of just selling it off to developers to make a fortune in a short time. Once sold, public property is gone forever. It is a one-off quick fix in the budget for a Treasurer who just wants to get some kudos for tax cuts or a big budget surplus. I do not believe that the sale of school sites is a responsible or sustainable policy. In the face of urban consolidation, a very cautious policy must be followed when it comes to the sale of school sites. Once inter-city school sites are sold, the Government will never be in a position to purchase comparable land for future currently unforeseen demands for public education. The Government plans to sell the Hunters Hill, Maroubra, Marrickville, Vaucluse and Chatswood school sites. In summary, the three principal social institutions to which I have referred—schools, hospitals and green open space—should all remain in public ownership. Perhaps it is time for new legislation to examine public land across all departments and agencies to ensure that all options for public use are exhausted prior to any consideration of private sale. Let us not kid ourselves: Land is fundamental and it cannot be replaced once it is gone. 14482 LEGISLATIVE COUNCIL 6 June 2001
TAMWORTH WEST PUBLIC SCHOOL
The Hon. PATRICIA FORSYTHE [10.08 p.m.]: I draw the attention of the House to the situation which confronts the Tamworth West Public School. The school has been very much part of the Tamworth community since 1883. The school has an enrolment of more than 300 and has maintained a very fine tradition of education. The school is well located in the Tamworth city area but, for a number of reasons—including the fact that it is adjacent to a very busy shopping centre where there are more than 19,000 car movements in front of the school's main buildings—has become the meat in the sandwich of what has become a large community dispute. I draw to the attention of the House in particular a proposal by McConaghy Development Pty Ltd. In 1998 the company approached the Tamworth City Council with a proposal to redevelop the local shopping complex. The project will be worth in excess of $65 million.
The issue is that the proposal challenges the viability of the CBD, and that has caused numerous problems for the local council. This is a significant issue and it requires wide debate in the community. On 29 September 1998 the community held a public meeting at the town hall which was attended by more than 1,800 members of the community, of whom 85 per cent were in favour of the proposal to extend the local shopping complex. As a result of the public meeting, the council received a petition containing more than 12,000 signatures. The issue has been ongoing and it is probably the most significant issue in the Tamworth community. Given that Tamworth is a major regional centre, a $65 million development is not to be ignored.
As part of the proposal the developer offered to redevelop the school on a new site that is owned by the Department of Education and Training. I understand that some agreement has been reached with the department with regard to the future should the expansion of the shopping centre be approved. A new school would be developed at a cost of approximately $7 million. It would have airconditioned buildings, playing fields and covered walkways—many of the facilities that the existing school lacks. The existing school now finds itself as effectively the meat in the sandwich. No-one would want to spend a significant amount of money on the existing school while a proposal to redevelop the school is before council.
The existing school needs covered walkways, a library—it has used a demountable as a library since the 1970s—a hall and a gym. It is one of the few schools with an enrolment of more than 300 students that lacks a hall or gym. The school also needs new toilets, as the existing toilet facilities have very poor drainage. At its existing site the school needs an injection of funds, or, alternatively, the opportunity to be redeveloped. Redevelopment is the option favoured by the local parents and citizens association and the school community in general. However, the council cannot make a decision on the matter. Initially five councillors declared that they had a pecuniary interest because of business interests in the central business district. However, I understand that at the last meeting, which was held on 22 May, six or seven of the 12 councillors declared that they had a pecuniary interest. This means that the council cannot form a quorum and therefore cannot make a decision.
The current situation is that the school cannot be relocated, no-one wishes to spend any more money on it, and nothing is happening about the $65 million proposal because too many council members have a pecuniary interest. The matter needs to be resolved, and the State Government should assume a role in that resolution process. My colleague the shadow Minister for Local Government, the Deputy Leader of the Opposition, has suggested that the council should conduct a community plebiscite or referendum on the issue. That is indeed a logical first step, but there are also roles for the Minister for Urban Affairs and Planning. For any redevelopment to take place, the school site must be rezoned from 2A residential to 3A commercial.
However, the council says that that would contradict the objectives of its local environmental plan [LEP]. The Minister for Urban Affairs and Planning needs to be involved and needs to either direct the council to make a new LEP or at least take certain steps. At the end of the day, after other processes have taken place, the Minister for Urban Affairs and Planning may need to call for a commission of inquiry. Because of problems in the central business district and problems regarding the future of the Tamworth commercial district, a $65 million proposal is not able to go ahead and a school cannot be relocated, despite the fact that there is an existing site and the community wishes redevelopment to take place.
LAW AND ORDER
The Hon. HENRY TSANG [10.13 p.m.]: Since being elected to this House my community has expressed concerns about law and order issues, particularly crimes such as bag snatching, car theft, home invasion, robberies and gang activities. The community understands that such instances are often the result of drug-related crime. There is a strong demand on the Government to deal with drug trafficking, and the 6 June 2001 LEGISLATIVE COUNCIL 14483 community has expressed its desire for additional resources and powers to be given to police to deal with those problems. As a member of the Government's police caucus committee I am pleased to support the release today by the Minister for Police of the exposure draft Crimes (Law Enforcement) Bill. This Government initiative is a major development in policing laws for this State that will help to drive down crime. I understand that the bill consolidates the majority of commonly used police powers into the one Act.
Powers that are dealt with in the bill include powers of entry and arrest, powers to require identity to be disclosed, search and seizure powers, investigations and questioning of suspects, powers in relation to persons in custody, powers relating to vehicles and traffic, and powers to give directions. For the first time in New South Wales, police will be able to refer to one source for the powers they commonly use, rather than the myriad of Acts and cases under the common law. I note that the legislative consolidation of police powers was recommended by the Royal Commission into the New South Wales Police Service. In promoting the idea of consolidation the commission felt that such a process would:
… help strike a proper balance between the need for effective law enforcement and the protection of individual rights; assist in ensuring clarity in areas where uncertainty exists, and reduce the possibility of abuse of powers through ignorance; and assist in the training of police.
In 1998 the Government approved the establishment of a task force to review, codify and consolidate law enforcement powers into a single piece of legislation, as proposed by the Minister for Police. This Government has consistently demonstrated its commitment to ensuring that police have the necessary powers to address crime. Many of the laws that have been introduced by the Government relating to drugs, knives and other weapons, antisocial behaviour, roadblocks and vehicle powers are brought together in this bill or are supported by the bill. I understand that other legislation, such as the powers provided to police under the Premier's Cabramatta package, may also be included in the bill at a later stage.
The Government will also introduce other legislation that will specifically combat drug-related crime, including the Firearms Amendment (Trafficking) Bill to ensure that police are given sufficient enforcement powers in relation to illegal trafficking of hand guns and prohibited firearms, the Police Powers (Drug Premises) Bill and its cognate bill, the Police Powers (Internally Concealed Drugs) Bill. This legislation aims to create offences with respect to using premises for the unlawful supply and/or manufacture of particular prohibited drugs; provides the capacity to give reasonable direction to move on persons suspected of supplying or soliciting for supply or purchase of prohibited drugs; and provides for the internal search, using medical imaging equipment, of suspects who swallow or internally conceal prohibited drugs.
The Minister for Police is to be congratulated on providing a four-month consultation period on the draft bill. This gives the community the opportunity to comment on the bill. There are significant benefits in consolidating police powers into one bill. Police and the public will be able to look to one Act to ascertain what powers police have and what safeguards apply to the exercise of those powers. The Law Enforcement (Powers and Responsibilities) Bill is a very positive development for this State. The danger is that the bill may not receive the full support of other members of this House. I believe the bill strikes a proper balance between the rights of the individual and the need to protect the community from such offenders. I urge the community to take an interest in this Government initiative. It is important that the community's support and concerns are expressed in order for the Government to serve its needs and amend the bill if necessary.
METROSHELF EMPLOYEES UNION MEMBERSHIP
The Hon. PETER PRIMROSE [10.18 p.m.]: I raise a matter of fundamental significance to the Australian trade union movement: the right of all Australian workers to join a union of their choice. Metroshelf is a large Australian company employing about 165 workers at Revesby and approximately 100 workers at Regents Park. The workers manufacture commercial shelving and the shopping trolleys used in supermarkets. The company had an enterprise agreement which included a provision that in the case of redundancies the company would consult with employees and first seek voluntary redundancies. In April this year, after many months of attempting unsuccessfully to negotiate with their employer over workplace safety issues, 70 workers approached the Australian Manufacturing Workers Union [AMWU] for union coverage and support on safety issues. The union approached the employer in an attempt to establish a relationship between itself and the company.
There are numerous examples of people being injured as a result of sharp metal that has been improperly stored; however, such accidents are not recorded or treated appropriately at the site. There are also numerous examples of people employed by the company dropping heavy items on their feet and being injured. 14484 LEGISLATIVE COUNCIL 6 June 2001
In at least one case, the injured worker has required hospital treatment, but has been advised by his employer that if he takes leave he will not have a job when he returns. People are told that if they are injured they will lose their job if they take leave or claim workers compensation.
The Hon. Duncan Gay: Point of order: There is an unfortunate noise coming from the Government benches. I am having difficulty hearing the contribution of the Hon. Peter Primrose. I hope that you draw Government members to order to stop that terrible noise.
The Hon. Michael Egan: To the point of order: It was a rendition of Faith of Our Fathers and it was being sung by the Hon. Ian Macdonald, the Hon. John Johnson and my good self.
The Hon. Ian Macdonald: To the point of order: I was singing it. I had the words and I was teaching the Treasurer the words of the hymn.
The Hon. Rick Colless: To the point of order: I do not think honourable members would have minded their singing if they were at least in tune.
The DEPUTY-PRESIDENT (The Hon. Jennifer Gardiner): Order! The Hon. Peter Primrose is attempting to make a number of points. I suggest that for the time remaining to the member to speak he be listened to in silence.
The Hon. PETER PRIMROSE: I thank the National Party for their obvious involvement and concern about this issue and lack of care for the workers at both sites. At both sites nearly all employees are Vietnamese. There are also some Lao, Khmer and Chinese employees. Workers believe that the company prefers to employ Asian workers because they are more compliant, usually do not know their industrial rights and work very hard. When they were first employed employees were not even paid penalty rates, for example, when they worked all weekend or on public holidays. That practice has now ceased. After two months of failing to return the calls from the union, the employer finally agreed to meet with AMWU organisers on Friday 25 May. The employer said that he would discuss the matters raised at the meeting with his colleagues and took a list of new AMWU members who were seeking payroll deductions of union fees.
When workers arrived for work on Monday 28 May they were met at the gate by the manager and a security guard. The manager had a list of 50 employees to be sacked, 46 of whom were AMWU members from the list given to the manager on the previous Friday. There had not been previous discussions with employees or the AMWU about the possibility of sacking anyone. Moreover, the agreement for the site specifically established a provision that there should be consultation and an opportunity for volunteers, before any forced redundancies. There was never any suggestion by management that there was an economic reason to sack these workers. Management at Metroshelf has flouted section 170CM of the workplace relations Act in its failure to consult workers or the union prior to forcing redundancies. Just as clearly, AMWU members have been singled out for punishment.
Motivated by their legitimate concerns about some serious occupational health and safety issues, the workers claimed the right to be represented by their own union, on their own terms and they were sacked. Although only 46 AMWU workers were sacked on Monday 28 May other AMWU workers, who had not been sacked, have now joined their colleagues at the picket line. Those striking workers have all received letters to advise them that if they do not return to work immediately they too will be sacked. The union and I now call upon Metro to abide by its moral common law responsibilities by standard processes for redundancies and to reinstate all sacked workers.
GAMBLING REGULATION FORUM
The Hon. Dr PETER WONG [10.22 p.m.]: I am pleased to report a very successful event which took place recently at Parliament House—that is, a public forum on gambling regulation. The forum was organised by my office at a time of great public concern about increased damage being caused by gambling. It was organised because the Government is currently considering a package of gambling regulation reform, but has not consulted with the community on these reforms, and has not distributed a discussion paper. It was pleasing that 100 invited people attended, including representatives from most key gambling industry groups, welfare and church bodies, academics, government authorities and members of Parliament. Those who attended found it a valuable exercise, and there was widespread comment that the Government should have organised such a forum for consultation a long time ago. 6 June 2001 LEGISLATIVE COUNCIL 14485
Professor Jan McMillen of the Australian Institute for Gambling Research provided an excellent summary of proceedings at the conclusion of the forum. Included in that summary was, first, a policy review that includes an overview of the New South Wales Government's gambling policy framework, which covers the whole industry and provides for a community voice in that review. Second, information will be produced to allow for informed policy reform and development, including the compilation of regular databases, which will be made publicly available. Third, a consultative mechanism will be established to provide a basis for debate and dialogue. The parties need to be able to sit around the table and talk to each other, so people can work together to solve what is a common problem. Perhaps the Government and the Minister for Gaming and Racing will consult the community on this issue in the future. They certainly should, if they want to remain in touch with the needs and wishes of the broader community. Most people in New South Wales are overwhelmingly opposed to any increases in gambling, and the Government should keep that in mind.
[Time for debate expired.]
Motion agreed to.
House adjourned at 10.25 p.m. ______