4317
LEGISLATIVE COUNCIL
Tuesday 21 November 2006 ______
The President (The Hon. Dr Meredith Burgmann) took the chair at 2.30 p.m.
The Clerk of the Parliaments offered the Prayers.
The PRESIDENT: Order! I acknowledge that we are meeting on Eora land.
WATER INDUSTRY COMPETITION BILL
CENTRAL COAST WATER CORPORATION BILL
Message received from the Legislative Assembly agreeing to the Legislative Council's amendments.
TUNNEL FILTRATION
Production of Documents: Report of Independent Legal Arbiter
Motion by Ms Lee Rhiannon agreed to:
1. That the report of the Independent Legal Arbiter, Sir Laurence Street, dated 1 November 2006, on the disputed claim of privilege on papers relating to a further order for papers regarding tunnel filtration be laid upon the table of the House by the Clerk.
2. That, on tabling, the report is authorised to be published.
Production of Documents: Tabling of Documents Reported to be Not Privileged
Motion by Ms Lee Rhiannon agreed to:
1. That, in view of the report of the Independent Legal Arbiter, Sir Laurence Street, dated 1 November 2006, on the disputed claim of privilege on documents relating to a further order for papers regarding tunnel filtration, this House orders that the documents considered by the Independent Legal Arbiter not to be privileged be laid upon the table by the Clerk.
2. That, on tabling, the documents are authorised to be published.
CALLAN PARK
Production of Documents: Further Order
Motion by the Hon. Don Harwin agreed to:
That under Standing Order 52 there be laid on the table of the House within 14 days of the passing of this resolution all documents in the possession, custody or control of the Minister for Health, NSW Health, the Minister for Planning, the Department of Planning, the Treasurer, NSW Treasury or the Crown Solicitor created since April 2005 relating to:
(a) the development of a Master Plan for Callan Park,
(b) the legal status of the Callan Park (Special Provisions) Act 2002 in respect of the State Property Authority Act 2006,
(c) the use of playing fields at Callan Park by community-based and sporting organisations,
(d) applications for leases or renewal of leases at Callan Park, and
(e) any document which records or refers to the production of documents as a result of this order of the House. 4318 LEGISLATIVE COUNCIL 21 November 2006
LEGISLATION REVIEW COMMITTEE
Report
The Hon. Penny Sharpe tabled, on behalf of the Chair, a report entitled "Legislation Review Digest No. 17 of 2006", dated 21 November 2006, together with minute extracts for Digests Nos 15 and 16 of 2006.
Report ordered to be printed.
JOINT COMMITTEE ON THE OFFICE OF THE VALUER-GENERAL
Report: Fourth General Meeting with the Valuer-General
The Hon. Kayee Griffin tabled, as Chair, report No. 53/05, entitled "Report on the Fourth General Meeting with the Valuer-General: Together with Transcript of Proceedings and Minutes", dated November 2006.
Ordered to be printed.
The Hon. KAYEE GRIFFIN [2.35 p.m.]: I move:
That the House take note of the report.
Debate adjourned on motion by the Hon. Kayee Griffin.
TABLING OF PAPERS
The Hon. Henry Tsang, tabled the following reports:
Annual Reports (Departments) Act 1985—Reports for the year ended 30 June 2006:
Cabinet Office, including the Parliamentary Counsel's Office Department of Local Government
Ordered to be printed.
GENERAL PURPOSE STANDING COMMITTEE NO. 2
Report: Review of Inquiry into Complaints Handling Within NSW Health
The Hon. Robyn Parker tabled, as Chair, report No. 23, entitled "Review of Inquiry into Complaints Handling Within NSW Health", dated November 2006, together with transcripts of evidence, tabled documents, submissions, correspondence and answers to questions on notice.
Report order to be printed.
The Hon. ROBYN PARKER [2.36 p.m.]: I move:
That the House take note of the report.
I acknowledge that this is a follow-up report. I am sure that honourable members recall the initial inquiry into health care complaints that was undertaken following the crises at Camden and Campbelltown hospitals. As Chair of General Purpose Standing Committee No. 2, I pay tribute to the former chair, Patricia Forsythe, and thank her for her work on the committee. I wish her well for the future. I also thank the committee secretariat staff. This is a unanimous report from the committee, whose members worked hard together to produce some good recommendations that complete our important work. If it were not for the committee following up on the issues raised by whistleblower nurses and the subsequent Walker inquiry, we would not be in our present good position in New South Wales regarding health care complaints. General Purpose Standing Committee No. 2 is a Legislative Council committee that is working well. We must create an environment in the health sector in which people feel they can make complaints without fearing they will be targeted as a consequence. We must also establish good reporting mechanisms so that complaints can be followed up with full disclosure and the health system can be improved.
Debate adjourned on motion by the Hon. Robyn Parker. 21 November 2006 LEGISLATIVE COUNCIL 4319
TUNNEL FILTRATION
Production of Documents: Tabling of Report of Independent Legal Arbiter
The Clerk tabled, pursuant to the resolution this day, the report of the independent legal arbiter, Sir Laurence Street, dated 1 November 2006, on the disputed claim of privilege relating to a further order for papers.
PETITIONS
Coraki Feedlot and Silage Operation
Petition requesting that the feedlot and silage operation at a farm on the Richmond River at Coraki cease due to the unpleasant odour, received from the Hon. Rick Colless.
Crown Land Leases
Petition requesting the withdrawal of changes to the rental structure of Crown land leases, particularly enclosed road permits, received from the Hon. Melinda Pavey.
BUSINESS OF THE HOUSE
Postponement of Business
Government Business Orders of the Day Nos 1 to 6 postponed on motion by the Hon. Tony Kelly.
PARLIAMENTARY ELECTORATES AND ELECTIONS AMENDMENT (CHILD SEXUAL OFFENCES DISCLOSURES) BILL
Second Reading
The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [2.53 p.m.], on behalf of the Hon. John Della Bosca: I move:
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.
Leave granted.
This Bill demonstrates the Government's ongoing commitment to improving public trust in our system of government.
The Government believes that the public should have confidence in those people seeking election to the New South Wales Parliament and that is why we are introducing these measures.
Residents of New South Wales should also have a right to more information about a candidate before they are asked to elect that person to public office.
This Bill is a measured and practical way to ensure that voters have greater access to the relevant information.
It also establishes a sensible and workable system for holding candidates accountable for any false statements they make about their involvement in offences against children.
The first part of the new system will require all candidates to make a declaration about their criminal history to the Electoral Commissioner.
The declaration must be made at the same time as the person nominates to be a candidate for the election.
If a person fails to make the declaration, their nomination will not be accepted as valid.
The information which is required to be disclosed as part of a person's criminal history will include charges as well as convictions.
This will include charges or criminal convictions which arise from conduct in the workplace.
4320 LEGISLATIVE COUNCIL 21 November 2006
The declaration will cover child murder and serious sex offences involving children, including child pornography.
A serious child sex offence will be an offence that is punishable by a term of imprisonment of 12 months or more.
It will also cover apprehended violence orders made by a court where those orders were sought by the police or another public official in order to protect a child from sexual assault.
The offences that are to be included are broadly similar to those covered by the Child Protection (Prohibited Employment) Act.
It will also be a criminal offence to make a false declaration deliberately.
If a Member of Parliament is convicted of making a false declaration, he or she will be disqualified from sitting in Parliament pursuant to section 13A of the Constitution Act.
This will ensure that the candidate has a strong incentive to make a true and accurate disclosure as required by the legislation.
The declarations of all candidates will be made public by the Electoral Commissioner before the relevant election or by-election.
This means that political candidates will be subject to significantly greater public scrutiny of their criminal history than other people seeking to work with children.
Voters will be able to take into account the information which has been disclosed in deciding whether to elect a person to public office.
After the election, the declarations of successful candidates will be audited by the Commissioner for Children and Young People.
This audit will involve background checks which are similar to checks conducted by the Commissioner on people seeking to work in child-related employment.
The Commissioner will check to ensure that all charges, offences and apprehended violence orders [AVOs] were properly disclosed.
During the audit, the Commissioner will need to consult with any Member if there appears to be a discrepancy relating to that person's declaration.
This will ensure that the Commissioner is able to form a view, based on all relevant information, about whether any such discrepancy was an inadvertent mistake.
Given that there are upward of five hundred candidates at each general election, it is simply not practical to require all candidates' declarations to be audited before polling day.
The risk of prosecution, and the risk of potential disqualification from Parliament, will provide strong incentives for candidates to make proper disclosures.
As noted, a conviction for making a false declaration will be a sufficient trigger under the Constitution Act for a Member of Parliament to lose his or her seat.
Once the audit of all successful candidates is complete, the Commissioner will provide her report to the Speaker and the President of the Legislative Council.
The report will then be tabled in Parliament as soon as practicable, or otherwise made public.
Any apparently unlawful conduct by Members of Parliament relating to their declarations can then be referred to the Police for investigation and prosecution.
Putting in place a new system acknowledges the importance of the work performed by Members of Parliament in our community.
This legislation will ensure that politicians are transparent about their backgrounds so that the community has adequate information when it votes as to whether the candidate will meet community expectations in relation to the protection of our young people.
Nonetheless, the Government would expect that nominees who fill a casual vacancy would make the same declaration as candidates who contest an election.
The proposed new process is a sensible and effective approach to make Members of Parliament more accountable to the people who put them there.
I commend the Bill to the House.
The Hon. DON HARWIN [2.54 p.m.]: I lead for the Opposition in debate on the Parliamentary Electorates and Elections Amendment (Child Sexual Offences Disclosures) Bill 2006. While the Coalition will not oppose the bill, we note that it has various shortcomings that merit attention. The object of the bill is to amend the Parliamentary Electorates and Elections Act 1912 to require candidates to declare whether they had been convicted of the murder of a child or of a child sexual offence, or have ever been the subject of 21 November 2006 LEGISLATIVE COUNCIL 4321
proceedings for such an offence, or have been the subject of an apprehended violence order for the purposes of protecting a child from sexual assault. The bill also provides for penalties pursuant to a false declaration and requires the Commission for Children and Young People to audit the declarations for accuracy following an election and to report on its findings to Parliament.
The intention of the legislation is to subject parliamentary candidates to a high standard, and these measures are based on working with children and background checks that are already in place in regard to a variety of professionals, notably schoolteachers. The proposed legislation, however, has difficulties. The bill provides that candidates be required to complete a statutory declaration prior to the election. If they are elected, the Electoral Commission submits the declaration to the Commission for Children and Young People. Should any inconsistencies become apparent, candidates would be given an opportunity to comment to the commissioner.
It is not unreasonable to expect that even a minor or technical anomaly may not be immediately resolved. In the meantime, the seat would not be declared. Even a short delay in declaring a result in a particular seat could unjustly damage the reputation of the member, given the climate of media speculation in which politics is now very much conducted. This flaw in the proposed legislation is not dissimilar to the difficulties that many teachers have faced in relation to the way in which child protection laws have operated in the education sector.
The Coalition is also mindful of the potential for the election of a candidate to be hampered under this legislation because of acrimonious or malicious accusations. The bill provides that a candidate must declare whether he or she has ever been the subject of proceedings for a child sexual offence. This is potentially problematic since aggrieved individuals can directly convince court registrars to bring criminal proceedings against another individual even in circumstances in which the police have determined that they do not wish to commence proceedings. Regardless of whether the case results in a conviction, or is even prosecuted, under this proposed legislation having proceedings commenced obviously is potentially very damaging for the individual. There is no safeguard against such proceedings being commenced by a malicious person with a grudge or as part of an acrimonious divorce break-up in which any unfounded allegation is pressed in an attempt to secure leverage.
In addition to these flaws in the proposed legislation, there are also doubts about its effectiveness. My colleague the Deputy Leader of the Opposition noted in the other place that had this legislation been in place at the start of this session or the previous Parliament, it would not, for example, have prevented the former member for Swansea taking his seat in the other place. The Deputy Leader of the Opposition said that there had been no indication that the former Minister was subject to any of the triggers in the proposed legislation at the time he was elected or re-elected.
This raises the issue of the Government's motivation in introducing the legislation. The Deputy Leader of the Opposition in the other place described the bill as gesture politics; the typical response of this tired, old Labor Government. Whenever it has been in trouble with the media over the past 12 years, empty legislation or glossy grand plans have been proffered by the Government to create the illusion of issues being resolved or addressed. As always, this Government has been about spin and smokescreens. This legislation is more about the Government's media spin than responsible governance.
The bill was rushed into the Parliament as a matter of urgency last week by the Minister for Community Services. Notwithstanding that, we are yet to see any response from the Minister addressing the major inadequacies relating to child protection highlighted by, for example, the Ombudsman on page 69 of this year's annual audit report. Among the serious concerns raised by the Ombudsman were: children not being allocated a caseworker for a full risk assessment; inadequacies in the way the Department of Community Services considered the information it already had about the families of children at risk; risk assessments that were narrowly focused; cases allocated for risk assessment in which no assessment was undertaken; instances where mandated reporters have failed to make risk of harm reports; and continuing problems with the exchange of information between the Department of Community Services and other agencies and inadequacies in the way such information was gathered and analysed.
It is particularly concerning to note that some of these inadequacies remain unsatisfactorily addressed from previous years. These important substantive matters in the administration of child protection remain unaddressed by the State Government, while it nevertheless prioritises legislation such as this bill. It is a clear example of a Government that is more concerned with spin and media management than about sound 4322 LEGISLATIVE COUNCIL 21 November 2006
governance. All political parties have a responsibility to ensure that in their preselection process all candidates are properly and adequately vetted. The Coalition already does a very solid and robust check on all its candidates. Although we remain doubtful about the integrity and effectiveness of the proposed legislation, they are not serious shortcomings that would demand opposition. We will not oppose the bill.
Ms LEE RHIANNON [3.00 p.m.]: The Greens take unethical and criminal behaviour by members of Parliament very seriously. We believe that members of Parliament should be held to a very high level of accountability. This is a key plank in maintaining public confidence in the New South Wales Parliament. But the Parliamentary Electorates and Elections Amendment (Child Sexual Offences Disclosures) Bill is not about principles: it is about political opportunism. The bill will not protect the community. The Iemma Government is looking down the barrel of a political scandal, and the bill has been conjured up as the magical antidote to hose it down. It is a desperate move. The Government in its briefing to the crossbench today claimed that the bill had been on the agenda for a while. I doubt that. When the staffer made that statement many people in the room laughed. Introducing the bill in the wake of charges against Mr Orkopoulos only brings into disrepute the entire working with children checks. The bill exploits fear in the community. It offers comfort and false hope, but it offers no solution.
The working with children check has been criticised for providing little real assistance because the vast majority of paedophiles have no prior convictions. To put this in context, the bill would not have caught Mr Orkopoulos. Section 13A of the Constitution Act already states that a member convicted of an infamous crime or an offence punishable by imprisonment for a term of more than five years must be removed from Parliament. If the Government is talking about background checks to restore public confidence in members of Parliament, a much more appropriate check would be one for integrity and honesty, propensity for corruption, or susceptibility to exploit a conflict of interest. If this is the Orkopoulos bill, what about the Tripodi bill, or a bill that would have caught out Richard Face, Malcolm Jones or Rex Jackson? One cannot legislate for all these things. The bill would not have caught Mr Orkopoulos, whatever he may have done, even if the allegations are proven. This is political opportunism. The bill makes the management of background checks even more difficult.
The Government could take many real steps to restore public confidence in members of Parliament. For example, Premier Iemma could ban donations from property developers, improve freedom of information laws, or impose a cooling-off period before members of Parliament could work in the private sector in their previous portfolio areas. But instead we have a public relations exercise, which will use a large amount of resources. It is hypocritical in the extreme that public money is being wasted on testing candidates who will not work with children when the Government has decided not to pursue background checks on volunteers working with children. That says it all. It is simply unacceptable. I call on the Government to provide details of exactly how much this expensive, but futile, exercise will cost. The Minister must detail that in his reply.
The Hon. Amanda Fazio: How about putting a cost on all your Standing Order 52 calls for the production of papers?
Ms LEE RHIANNON: I acknowledge the interjection. We know that Standing Order 52 calls for the production of papers cost a lot of money. We want a costing on this exercise. The Government's secrecy is costing the people of New South Wales. That is where the Government has been caught out.
The Hon. Amanda Fazio: That is absolute rubbish, and you know it.
Ms LEE RHIANNON: That is absolutely the case. Again, I am happy to acknowledge all the injections because Labor has shot itself in the foot. We should not have to spend all that public money. The information should be available. The Greens would hope that only people of good character are put forward as candidates for election. Surely it is incumbent on political parties to ensure that their candidates are of a fit and proper character, that the preselection process is thorough and transparent, and that their pasts are not hidden. Premier Iemma's best tactic for fireproofing his Government from scandal is not to require background checks, but to build a stronger progressive and honest party that attracts candidates of real capacity. His message should be, "Drop the spin and get to the substance." The bill will make good headlines, but it will not make good policy.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [3.04 p.m.]: The Parliamentary Electorates and Elections Amendment (Child Sexual Offences Disclosures) Bill is a media-driven sledgehammer to make the Government appear as though it is doing something when it is in an embarrassing situation. The Government wants attention for the idea that parliamentarians should be certified free of charges of child sexual offences. 21 November 2006 LEGISLATIVE COUNCIL 4323
I would have thought that parliamentarians have less contact with children than teachers, so why are parliamentarians simply not administratively asked to undergo the same checks as schoolteachers? Obviously, the bill is highly reactive. Some years ago I attended a highly emotional meeting of the Teachers Federation, at which complaints were made that once child sexual assault was alleged, teachers were virtually unable to be cleared. Even though the evidence was not sufficient for teachers to be tried and, therefore, not tested at trial, they were never able to be cleared. The innuendo would continue.
Teachers were sometimes suspended on pay. When the suspension was lifted they would be moved to another school—as if they had done something wrong—to minimise their troubles. But they continued to carry that stigma like a weight around their necks. The wife of one of my constituents was having an affair with an Englishman. She wanted to take their children to England. She made allegations against the father, which she got away with, because it was during the time of the Wood royal commission when there was a high degree of suspicion about paedophiles and a low degree of suspicion of malice. The wife succeeded in taking the children to England with her lover, and left their father with the stigma of being a paedophile, which was quite unjust. The bill is a knee-jerk reaction. I do not ask that people come into this House without being adequately screened. The Australian Democrats certainly have processes, and we believe that they would expose anyone who had this type of problem.
Political parties must take responsibility for the people they put up for election to this House. There is no indication that the former member for Swansea had any problems that would have precluded his taking his seat—that is not to draw a conclusion in the matter. But rarely is there a known antecedent. However, there is always the danger of malicious information, rumour and innuendo. If we are going to get politicians of good character then perhaps we should introduce a raft of amendments covering no dodgy deals with property developers, no Australian Securities and Investments Commission investigations, no fraud and so on. The list could be quite lengthy. Who will be the first candidate who is adversely and unjustly affected by the legislation? Although I am in favour of screening candidates, the bill is dangerous and reactive. I am concerned that in the long term it may have a detrimental effect, with no guarantee of a beneficial effect.
Reverend the Hon. FRED NILE [3.08 p.m.]: The Christian Democratic Party supports the Parliamentary Electorates and Elections Amendment (Child Sexual Offences Disclosures) Bill. The object of the bill is to amend the Parliamentary Electorates and Elections Act 1912 to require candidates for election to Parliament to declare whether they have been convicted of the murder of a child or a child sexual offence, or have ever been the subject of proceedings for such an offence, or the subject of an apprehended violence order for the purposes of protecting a child from sexual assault. On a number of occasions I have spoken in this House about attacks on children, seduction of children and the use of the Internet by paedophiles. Men exchanging emails with young girls of 10 or 11 pretend that they are also young girls of 10 or 11. Finally, after grooming such a young girl the paedophile arranges a meeting that may result in the young girl being sexually assaulted.
This is an important bill. Uniform standards must apply to all candidates who are nominated for both Houses of Parliament. The Christian Democratic Party prides itself on its detailed examination of candidates. They must complete a 16-page application form covering, obviously, all moral issues but also financial issues such as embezzlement, bankruptcy or any other questions about financial management if the candidates have been running a business, and the reputation they have in that business. In addition, the Christian Democratic Party ensures that candidates are strong, committed, orthodox Christians who, by their lifestyle, support marriage and family life, and care for their children. This process is not in any way a burden to the Christian Democratic Party. We already have requirements for our candidates similar to the provisions contained in the bill.
As has been said, the trigger for this bill is recent events associated with the former member for Swansea. I do not know that this bill would have prevented any conduct of his from occurring because I understand that there was no record of any of the events that are the subject of this bill occurring in his life. Perhaps it is a bit misleading to relate the need for this bill to his situation. However, as we have noted previously, the Labor Government and the Opposition tend to respond to the Daily Telegraph and to headlines. This is probably another bill that has been introduced so that the Premier can honestly say, "We are doing something about this and it won't happen again." Sadly, it can happen again because of the deceitfulness of individuals who have a problem with a sexual attraction to children.
One of the important aspects of paedophile behaviour is secrecy and the ability to conceal behaviour. In many ways behaviour is concealed even from close members of the offender's family. I know some people who argue that a wife would always know, but I know of cases when the wife did not know that the husband was 4324 LEGISLATIVE COUNCIL 21 November 2006
engaged in paedophile activity. We must bear in mind that the introduction of the bill does not mean that police can relax their surveillance activities in identifying individuals who are involved in child sex offences, especially individuals who appear to be respectable. In that context I mention a case that occurred only two weeks ago in Adelaide where a magistrate was charged with child sexual offences. At other times solicitors and lawyers have been involved in such offences. A few years ago we had the sad case of Justice Yeldham, who was the subject of allegations and who took his life.
Child sex offences appear to be a problem in various parts of society. It is not as though we can expect that a person engaging in that type of activity will appear to be a criminal or that behaviour is obvious just by looking at a person. There are no outward signs whatsoever in the manner in which offenders conduct their activities. We can only rely on surveillance and monitoring to give us a clue, and often the activities are discovered accidentally. I refer to the allegations made against a staff member of the Director of Public Prosecutions. I understand in that case a computer had broken down and was being repaired. Suddenly child pornography material appeared on the screen in front of the man who was repairing the computer. That led to a whole series of events. In many cases child sex offenders are identified almost by accident, which shows how difficult it is to identify them before they commit an offence, are charged and evidence is produced to prove their guilt. Identifying them before they commit a crime is a challenge.
There must be increased monitoring of the Internet and increased numbers of police officers allocated to Internet monitoring. I am aware that police officers are engaged in that type of work already, but NSW Police should give Internet monitoring a high priority to ensure that child sex offenders can be identified through surveillance and monitoring. We should not be relying upon an application form for candidacy as a member of Parliament. We need to identify miscreant individuals long before they reach that stage. The Christian Democratic Party supports the bill.
The Hon. Dr PETER WONG [3.14 p.m.]: I will comment briefly on the Parliamentary Electorates and Elections Amendment (Child Sexual Offences Disclosures) Bill. I do not object to the bill. I understand and share the objectives of the bill. I also agree with the speeches made by honourable members who preceded me in this debate in relation to the purpose of the bill. However, I have the impression that this bill is a knee-jerk reaction to recent incidents. I do not necessarily think that this bill will solve all the problems. I definitely do not endorse paedophiles. I share the strong sentiments and support fully the statements made by Reverend the Hon. Fred Nile. The question I ask in relation to candidates making a declaration about their criminal history to the Electoral Commission is: Why does the Electoral Commission not already check on the history, particularly the criminal history, of all candidates? Such a process would make the assessment of candidates more objective.
The Hon. PETER BREEN [3.16 p.m.]: The Parliamentary Electorates and Elections Amendment (Child Sexual Offences Disclosures) Bill confirms Gore Vidal's observation that the trouble with Australian politics is that we only get to see the tip of the ice cube. Unbelievably, the opening sentence in the Minister's second reading speech is that the bill demonstrates the Government's ongoing commitment to improving public trust in our system of government. In reality, the bill confirms the Government's complete abdication of responsibility for ensuring that Labor Party culture seeks out any child sex offenders and other undesirables who might be seeking public office.
It beggars belief that a child sex offender, or even a potential one, could work their way up the Labor Party ladder without somebody becoming concerned about the person's activities. The bill demonstrates not the Government's ongoing commitment to improving public trust in our system of government, but the Government's total disregard of public trust and complete indifference to preserving our system of government. The bill also seeks to shift the blame for ignoring the allegations swirling around Milton Orkopoulos. Responsibility for ignoring the allegations rests squarely with the Australian Labor Party. The bill seeks to shift responsibility from the Australian Labor Party to the rest of the community.
Furthermore, the bill is one more reason why the Orkopoulos lawyers will be able to argue that their client is unable to get a fair trial. That argument is relevant not only to this bill but also to the legislation that was passed just a few days ago concerning the former member's superannuation. The publicity and ensuing legislation really makes me wonder how he could possibly get a fair trial and how the justice system could possibly work to organise a fair trial. The presumption of innocence has gone out the window in his case as the Government has scrambled to limit political damage of what is arguably the worst political scandal in living memory. I note that the Leader of the Opposition in the other place has attempted to cover up the scandal with allegations about the Attorney General, Bob Debus. I do not know why the Leader of the Opposition would 21 November 2006 LEGISLATIVE COUNCIL 4325
want to draw attention away from the Government's responsibility for the Orkopoulos matter, although it is obvious why the Government would seek to do so in relation to the bill before the House.
I agree with the observation of Ms Lee Rhiannon that the bill is a public relations exercise. The bill makes good headlines, but it is not good policy. The Government needs to get its act together and expand the Labor Party gene pool rather than introduce expensive and unnecessary legislation. Why is the bill limited to child sex offences? As honourable members have suggested, many other things that a person might do are undesirable qualities for public life. I must confess that I attempted to amend the bill. I asked Parliamentary Counsel to draft an amendment, which stated:
In addition to disclosures about child sexual offences, candidates for election to the Legislative Assembly and Legislative Council should also be required to reveal prior associations with developers, previous contributions to election funding, prior corporate interests involving political activity, traffic offences, fraud offences, domestic violence offences, apprehended violence orders and any other activity that may be relevant to electors.
Parliamentary Counsel informs me that in his cupboard he has a big stamp that says, "Amendments not capable of being drafted." When I telephoned Parliamentary Counsel to ask how my amendment was going, he said, "Unfortunately, Mr Breen, I have had to apply my 'Amendments unable to be drafted' stamp to your proposed amendment." Apparently the reason for that is that the bill deals with offences attracting penalties of five years or more imprisonment. Of course, many offences, misdemeanours and irresponsible actions contemplated in my amendment do not carry such a heavy penalty. How would one check all those particular issues that might be outstanding or part of a person's curriculum vitae for public office? However, that points out the ridiculous nature of the bill: it singles out and isolates child sex offences when there are many other things that a person might do that makes them unsuitable for public office.
The Hon. Tony Kelly: Your proposed amendment is outside the leave of the bill.
The Hon. PETER BREEN: That is exactly right, and that is why it attracted the "Amendments unable to be drafted" stamp in the Parliamentary Counsel's office. I expressed my sorrow that the bill could not be expanded to include those other matters⎯they are no less important than the matter contemplated in the bill. The bill is a knee-jerk reaction and it is unnecessary. People in public office and those who aspire to public office are under enormous scrutiny. Honourable members would know how much scrutiny I have been under as a member of the Australian Labor Party, as an Independent and as a member of other parties.
The Hon. Tony Kelly: We tried to expand the gene pool, but you left.
The Hon. PETER BREEN: As the Minister pointed out, the Labor Party tried to expand its gene pool. The Minister said that I then left. I have to say that I did not leave voluntarily⎯I left because of false and mischievous allegations in the Daily Telegraph. As Reverend the Hon. Fred Nile pointed out in his excellent contribution to this debate, allegations in the Daily Telegraph are the basis of this bill. It is not good enough to base legislation on an article in the Daily Telegraph. The allegations in my case were false and mischievous. I have grave concerns about publication of the allegations against Milton Orkopoulos. If the day comes when he gets a fair trial and is acquitted, I will not be surprised.
Mr IAN COHEN [3.23 p.m.]: I support the position put by Ms Lee Rhiannon on behalf of the Greens on the Parliamentary Electorates and Elections Amendment (Child Sexual Offences Disclosures) Bill. I have listened with interest to the positions put by various members who are not aligned to the major parties. The bill points to a gross political ineptitude on the part of the Australian Labor Party and the Opposition. We have seen the stumbling along in regard to the various crises, which is quite tragic for the politics of this State. I certainly hope that the general public are much smarter than the political leadership of the State takes them for. Basically, the bill is based on allegations. I ask: Where is the presumption of innocence? The Hon. Peter Breen clearly indicated the situation.
It is quite clear that when dealing with situations that have been much debated we are certainly stepping ahead of the judicial processes that should be undertaken as part of our legal tradition. One would have thought that this Parliament would have an eye on the importance of traditions. The presumption of innocence is one of those traditions. The Government has raised the provision for checks in the bill concerning checks. I thought there were already checks in this House. If a significant crime that attracts a gaol sentence of more than 12 months is committed it is already covered. Honourable members would lose their job and all their rights if they were convicted. Nevertheless, this is a simple window-dressing exercise that has been highlighted during the Labor Party's period in office, and certainly during Bob Carr's time. 4326 LEGISLATIVE COUNCIL 21 November 2006
Reverend the Hon. Fred Nile: This is pre-election.
Mr IAN COHEN: I note the interjection by Reverend the Hon. Fred Nile about this being pre-election. Whether pre-election or post-election, we are still dealing—
Reverend the Hon. Fred Nile: It is a candidate, not a member.
Mr IAN COHEN: Reverend the Hon. Fred Nile is giving me a sermon as to how effective it might be because it is pre-election. I cannot comprehend how he, as a person who likes to be seen as upholding the morals of this House with such stringency, can see the effectiveness of this. We are asking people, pre-election, to be honest about issues such as that. I am simply saying that the bill is utterly and completely flawed. We cannot legislate for integrity and honesty, and we have heard that discussed time and time again. This is an expensive and futile public relations exercise. People are not often able to live up to the honesty and integrity expected of them in this House and in other institutions where there is a great accumulation of personal power.
It is important we recognise that this bill is performing a political task, a face-saving exercise for the Government. We cannot legislate to make people tell the truth. I hope that the attitudes that go with this type of bill, this type of debate, do not destroy the proper processes of law as had been raised by a number of honourable members. It is inappropriate to attack allegations that have not been proven by law. That is moving down a very dangerous path. I acknowledge that an election is looming, but what do we have to throw out in terms of political gain regarding the integrity of both Houses of this Parliament?
The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [3.27 p.m.], in reply: I thank honourable members for their contributions to the debate on the bill. I commend the bill to the House.
Motion agreed to.
Bill read a second time and passed through remaining stages.
CRIMES AND COURTS LEGISLATION AMENDMENT BILL
Second Reading
The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [3.28 p.m.], on behalf of the Hon. John Della Bosca: I move:
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.
Leave granted.
The Government is pleased to introduce the Crimes and Courts Legislation Amendment Bill, which makes a number of miscellaneous amendments to the criminal law and court procedures. These amendments are designed to improve the administration of the justice system.
I now turn to the detail of the bill.
Schedule 1.1 to the bill amends section 8A of the Bail Act 1978 to apply a presumption against bail to certain newly created hydroponic cannabis offences and the offence of manufacturing or producing in the presence of children an amount of a prohibited drug that is not less than the applicable commercial quantity.
Schedule 1.2 repeals section 13 (3) of the Child Protection (Offenders Prohibition Orders) Act 2004, which relates to arresting a person who has allegedly breached a child protection prohibition order. This will mean that arrested people will be treated consistently under the Bail Act provisions.
The Child Protection (Offenders Registration) Act 2000 is to be amended by schedule 1.3 to correctly cross-reference the new child pornography offences.
The Children (Criminal Proceedings) Act 1987 will be amended by schedule 1.4 to include an equivalent provision to section 100 of the Crimes (Sentencing Procedure) Act 1999 allowing action to be taken in relation to matters arising during the term of a good behaviour bond even if the term of the bond has expired.
Schedule 1.5 to the bill contains amendments to the Civil Liability Act arising from the Supreme Court case of Bujdoso v The State of New South Wales. In a decision handed down by the Supreme Court on 5 September 2006 a single judge found at first instance that Mr Bujdoso is entitled to retain damages awarded to him in relation to injuries sustained at the time he was a prison 21 November 2006 LEGISLATIVE COUNCIL 4327
inmate, instead of the damages being quarantined in a trust fund for six months to be available if any victim launched a damages claim against him.
The Court found that in the circumstances of an intentional assault or other intentional tort, including the negligent failure to prevent an intentional tort, section 3B provides that the Civil Liability Act does not regulate the award of damages, which are determined in terms of normal common law entitlements; and, in any event, these damages were not covered by legislation that was intended to ensure that such awards were held on trust for the benefit of an offender's victims because Mr Bujdoso does not fall within the Act's definition of "an offender in custody".
The effect of the first limb of the decision is that any organisation, but particularly any government agency such as a prison or a school, that negligently fails to prevent an assault will be able to be sued for damages at common law instead of under the narrower liability provisions of the Civil Liability Act.
The effect of the second limb of the decision is that prisoners who were in custody a significant time ago, and hence imprisoned under old legislation, will not be affected by the requirement for damages awards to be held on trust for the benefit of the offender's victims. The amendments proposed in this bill to the Civil Liability Act will overturn that decision.
Section 3B (1) (a) is amended to make it clear that the provisions of the Act that benefit defendants by limiting the amount of damages payable do not apply in cases where the defendant committed an intentional act with intent to cause injury or death, or committed a sexual assault or other sexual misconduct. By clarifying the scope of this provision, it will be clear that the Civil Liability Act does apply where a victim of such an intentional act sues a third party for negligence for failing to prevent the intentional injury. Using the facts of the Bujdoso case as an example, the Civil Liability Act will apply where a prison inmate who has been intentionally injured by another inmate sues the Department of Corrective Services for negligence for failing to prevent the injury. It will not apply to a civil action brought against the other inmate.
The amendments to section 26A ensure that the offender damages and offender damages trust funds provisions of the Act will apply to all inmates and prisoners, however described, and regardless of the legislation under which they were detained. As these amendments are in the nature of clarification of the original intention of the legislation, they will be given retrospective effect to the original commencement of the application of the sections that are being amended. However, the retrospectivity will not affect any final determination of legal proceedings made by a court or tribunal before the date of assent to these amendments.
In relation to the Bujdoso appeal presently pending in the Court of Appeal, the intention is that the amendments will have no effect on the final determination of damages, but the Court of Appeal will need to take the amendments into account when determining the application of the offender damages trust fund provisions.
Schedule 1.6 will amend the Civil Procedure Act 2005 by clarifying the rule-making powers so that rules can be made by the Uniform Civil Procedure Rule Committee in relation to access to court information. Earlier this year a discussion paper was released entitled "Review of the Policy on Access to Court Information". Although the review is yet to be finalised, it is anticipated that court rules will need to be amended to ensure that a more consistent approach is taken to the release of court information. This amendment to the Civil Procedure Act will ensure that the rule committees have the power to make more detailed rules on access to court documents and information.
Schedule 1.7 makes amendments that enhance the investigation powers under the Coroners Act 1980 by allowing a coroner to order a coronial investigation scene to be established. The order will authorise police officers and other persons to enter premises for the purpose of preserving, searching and taking possession of evidence in relation to a death, a suspected death, fire or explosion.
The new provisions replace the limited investigation power under section 25 of the Coroners Act 1980. That provision does not provide powers for the search and seizure of evidence. An order to establish a coronial investigation scene may be made, for example, when a suspected death has occurred on premises and police need to gain entry to the premises to confirm the suspected death. Once the coronial investigation scene is established, police and other persons will be able to exercise powers that are reasonably necessary to preserve evidence relevant to an investigation by the Coroner. This includes seizing and detaining anything that might provide evidence of the commission of a criminal offence. The coronial investigation scene order will be sufficient authority in these circumstances without the need to obtain a crime scene warrant under part 7 of the Law Enforcement (Powers and Responsibilities) Act 2002.
The bill makes the same amendment to the definition of "sentence" in two Acts: the Crimes (Local Courts Appeal and Review) Act 2001 and the Criminal Appeal Act 1912. Item [1] of schedule 1.8 and item [1] of schedule 1.10 amend provisions that currently outline the range of orders that constitute a "sentence". This amendment will add an additional order—namely, any decision by a court to revoke a bond and any order made by a court subsequent to that revocation.
These amendments are in response to the finding in Barrett v Director of Public Prosecutions in July 2006 by two judges of the Court of Criminal Appeal that no appeal lies from the Local Court to the District Court against revocation of a suspended sentence, because such a revocation was not a "sentence" as defined in section 3 of the Crimes (Local Courts Appeal and Review) Act.
Item [2] of schedule 1.8 makes a further amendment to the Crimes (Local Courts Appeal and Review) Act 2001 to provide that being found guilty of an offence, whether or not a conviction has technically been entered, is sufficient to give rise to the power to apply for an annulment under section 4 of that Act.
Schedule 1.9 makes a number of amendments to the Crimes (Sentencing Procedure) Act 1999. Item [1] creates a new sentencing option for courts by inserting new section 10A providing that the court may decline to make any further sentencing order other than the recording of a conviction against the person. This option addresses an anomaly in the sentencing regime to overcome situations where inappropriate sentences have been imposed such as fines of 50¢. Imposing very small nominal fines costs the 4328 LEGISLATIVE COUNCIL 21 November 2006
courts, and State Debt Recovery Office, more to administer and recover, than the value of the fine; and where the offender is already serving a sentence of imprisonment, the fine is rarely recovered in any event. This amendment will address such cases.
Item [2] deals with suspended sentences by amending section 12 (3) to abolish the practice of setting the non-parole period of the sentence, at the time of imposing a suspended sentence. The current laws regulating imposing, and revoking, suspended sentences, require that the non-parole period of the suspended sentence is set at the time the sentence is imposed. Then, if the suspended sentence bond is later revoked, the court may only determine whether the sentence is to be served by way of full-time custody, periodic detention or home detention.
This current procedure prevents the courts from complying with section 24 of the Crimes (Sentencing Procedure) Act, which requires that where a person who has been subject to a bond is to be sentenced, the court must at the time of imposing sentence take into account "anything done by the offender in compliance with the offender's obligations under the order or bond". The current scheme does not allow the court to take into account whether a person has substantially complied with the bond and requirements to undertake Probation and Parole Service supervision. The proposed amendment will enable the court to take such matters into account when sentencing.
Items [2] and [3] amend section 99 to clarify that when the court sets a non-parole period, the sentence takes effect at the time the good behaviour bond is revoked rather than on the day that the sentence was imposed under section 47 of the Act. This removes the possibility of a situation arising where an offender is deemed to be in custody while she or he was at liberty on the bond, hence leaving very little or nothing left to serve of the sentence if the bond was revoked.
Items [5] to [10] of schedule 1.9 relate to the New South Wales Sentencing Council. Section 100I is amended to provide for the addition of three members to the Sentencing Council: one with experience in relation to corrective services, one with experience in relation to juvenile justice matters and one being a representative of the Attorney General's Department.
This amendment was suggested by the chairperson of the council, given the fundamental link between Corrective Services and sentencing issues, the distinct factors involved in the sentencing of juveniles and the options available, and the relationship between the work of the council and the policy work of the department's Criminal Law Review Division. Section 100J is amended to provide that the Sentencing Council has a public education function relating to sentencing matters.
Schedule 1.11 makes various amendments to the Criminal Procedure Act 1986. Items [1] to [3], and [11] and [12] clarify that a person is authorised to commence criminal prosecutions by section 14 of the Act or any other law. The amendments also provide that a person who purports to be a public officer is, in the absence of evidence to the contrary, presumed to be acting in an official capacity. Items [4] to [6] and [13] to [15] seek to streamline the provisions for commencing indictable and summary prosecutions.
The current procedures require a court attendance notice to be filed at a court registry within seven days after service with an endorsement as to service. The amendments seek to remove the nexus between the service and the jurisdiction of the court. The amendments will restore the jurisdictional requirements to the position that existed prior to amendments introduced on 7 July 2003. Service of a court attendance notice is a matter that is considered by the court at the time that it is hearing and determining proceedings rather than at the time of filing the court attendance notice. These amendments will reflect this position.
Item [7] reinstates a provision that existed under the Justices Act 1902 that exempts transcripts of recorded interviews of a child from having to be endorsed by the child who was interviewed. The need to take a separate written statement from a child witness who has participated in a recorded interview is unnecessary and inconsistent with the simplified procedures of the Evidence (Children) Act 1997.
Items [8] to [10] of schedule 1.11 amend section 91 to make the scheme for witnesses being called at committal consistent with Local Court committal practice. This amendment will remove a few technical impracticalities in the Act and clarify that a magistrate may order that a person is to attend to give evidence at committal, regardless of whether that person's statement is handed up to the magistrate during the course of an argument under section 91.
Items [16] to [18] will alter the time period in which summary proceedings may be commenced where the alleged offence involves the death of a person. These amendments arise from coronial recommendations made by former State Coroner Abernethy and Deputy State Coroner Pinch. At present, section 179 of the Criminal Procedure Act 1986 provides that summary proceedings must commence within six months of the alleged incident. If the alleged offence relates to the death of a person whose death is subject to a coronial investigation, the Coroner should have the opportunity to fully investigate the circumstances surrounding the cause and manner of death prior to summary prosecutions being instituted. The proposed amendment will increase the time frame to commence a summary prosecution that involves the death of a person to either six months after the conclusion of the inquest or two years after the alleged incident, whichever first occurs.
Items [19] to [20] introduce time frames for the expiration of arrest warrants. At the present time the majority of arrest warrants issued do not have an expiration period and, potentially, warrants might be executed on relatively minor matters many years after the prosecution witnesses cannot be found and evidence is no longer available. The introduction of time frames allows warrants to expire after a reasonable period of time having regard to the seriousness of the offence. The expiration of a warrant will not prevent a further warrant being issued if the prosecution believes that a successful prosecution could still be maintained.
In 2005 the Confiscation of Proceeds of Crime Act 1989 was amended to provide a new system involving freezing notices for the seizure of tainted property. Schedule 1.12 amends the Director of Public Prosecutions Act 1986 to make it clear that the Director of Public Prosecutions may take over freezing notice proceedings from police under the Confiscation of Proceeds of Crime Act 1989 where the Director of Public Prosecutions is responsible for the criminal prosecution.
Schedule 1.13 amends the District Court Act 1973 so that the Chief Judge is to consult with the Attorney General prior to making any direction that substantially changes the frequency of sittings at a particular location. As changes in the allocation of sittings 21 November 2006 LEGISLATIVE COUNCIL 4329
may impact upon administrative services that support the court and access to justice by the community, it is appropriate for consultation to take place on these matters. A similar amendment is included in this bill relating to the sittings of Local Courts.
Item [2] of schedule 1.13 amends the District Court Act 1973 so that the provisions relating to the attendance of witnesses and the issue of subpoenas under part 3 of chapter 4 of the Criminal Procedure Act 1986 apply to the criminal jurisdiction of the District Court. This amendment will bring the District Court procedures into line with those that apply in the Local Court. It will also allow public officers such as the Director of Public Prosecutions' officers to adopt more streamlined procedures that will allow them to issue subpoenas without the need to attend the court registry.
Schedule 1.14 to the bill corrects some practical anomalies in the Drug Court Act 1998 and related legislation. Consequential amendments are made to the Criminal Appeal Act 1912 by schedule 1.10. The amendments will further advance the efficient functioning of the court. The amendments clarify how and where appeals from the Drug Court may be conducted, the way in which breaches of bonds are to be referred to the Drug Court, when the Drug Court may exercise its power to bring in offences that have not been formally referred to it, and the sentencing law requirements that will apply when the Drug Court imposes initial sentences.
Schedule 1.15 to the bill amends the Drug Misuse and Trafficking Act 1985. The bill creates a new offence of possessing a tablet press capable of being used in the manufacture or production of a prohibited drug, with a defence available if the court is satisfied that the tablet press is used to produce tablets in connection with an activity that is not unlawful, or the person possessing the tablet press otherwise had a reasonable excuse for doing so.
The bill creates a new aggravated version of the offences under the Act of allowing the use of premises as drug premises or organising drug premises, where a child is exposed to prohibited drugs or plants, a drug supply process or equipment capable of being used in a drug supply process. The bill also amends part 3A of the Drug Misuse and Trafficking Act 1985 to enable prohibited plants to be destroyed pre-trial in the same manner and under the same circumstances that the Act currently provides with respect to prohibited drugs.
Schedule 1.16 amends the Electronic Transactions Act 2000. The Attorney General's Department has established the CourtLink computer system to provide a range of electronic court services to clients. Schedule 1.16 amends the Electronic Transactions Act 2000 by making it clear that information concerning legal proceedings contained on an electronic case management system may be exchanged with other persons or agencies.
Schedule 1.17 amends the Evidence (Audio and Audio Visual Links) Act 1998 to remove the restriction against the use of videolink technology in relation to weekend and public holiday bail courts. Bail courts are regularly conducted on weekends and public holidays in country and regional areas. A large proportion of accused persons appearing at weekend and public holiday bail courts do not have legal representation. A trial is proposed to use videolink technology on weekends and public holidays. The trial will enable bail courts in country areas to be centralised to a fully operational court facility where an accused person could obtain assistance from a Legal Aid solicitor.
Schedule 1.18 amends the Evidence (Children) Act 1997 to make it clear that it is not necessary to serve a copy of video recorded evidence of a child witness in civil proceedings including apprehended proceedings under part 15A of the Crimes Act 1900. Section 76 of the Criminal Procedure Act 1986 provides that an accused person in criminal proceedings is not generally entitled to receive a copy of the recording of a person—other than a transcript of the recording. Video evidence provided by children may contain sensitive, graphic and traumatic details of incidents. This amendment will ensure that video recordings are not unnecessarily released to other parties in civil proceedings.
Schedule 1.19 amends the Land and Environment Court Act 1979. The amendments are intended to improve the procedures of the court by expanding the use of conciliation conferences that facilitate the effective resolution of disputes. Preliminary conferences under section 34 of the Act will now be available in relation to planning appeals under section 97 of the Environmental Planning and Assessment Act 1979 as well as class 3 proceedings. The amendments promote a flexible approach to resolving disputes and maximise the opportunity to avoid legalistic and adversarial proceedings.
Schedule 1.20 amends the Local Courts Act 1982 by introducing a process of consultation between the Chief Magistrate and the Attorney General if there are substantial changes in the sittings of the Local Court. A further amendment is introduced to the procedures for commencing application notices under part 6 of the Local Courts Act 1982. These changes mirror the procedural changes made for commencing court attendance notices under the Criminal Procedure Act 1986.
Schedule 1.21 amends part 4 of the Summary Offences Act 1988. This part, which deals with public assemblies, is amended to give more flexibility to the approval and management of public assemblies, so that an assembly that is held in accordance with terms agreed between the Commissioner of Police and the organiser will be lawful under the Act. The bill also enables notices under the part to be served by modern means, such as email and fax.
Schedule 1.22 amends the Telecommunications (Interception) (New South Wales) Act 1987. Item [1] makes amendments to the name of the Act to reflect equivalent amendments made to the complementary Commonwealth legislation, and item [2] updates the cross-reference to the Commonwealth Act's new name. Item [3] amends section 11 to require information on the telecommunications interception inspections conducted in the relevant year by the Ombudsman to be included in the Ombudsman's annual report to Parliament—in terms that mirror a recent change to the complementary Commonwealth legislation.
Schedule 1.23 amends the Witness Protection Act 1995. The amendments deal with a small number of protected witnesses who were managed under the previous administrative system before the Act was introduced but are no longer on a witness protection program. The amendments will back-capture these people, and allow for certain measures to be taken by the authorities to protect the witnesses' assumed identities under the legislative scheme. In summary, these amendments will improve the efficiency and operation of the criminal justice system and the courts. I commend the bill to the House. 4330 LEGISLATIVE COUNCIL 21 November 2006
The Hon. DAVID CLARKE [3.28 p.m.]: The Crimes and Courts Legislation Amendment Bill is a mixed bag. It amends some 21 Acts, but most of the proposed amendments are not substantial or controversial. However, proposed amendments to the Civil Liability Act will be opposed by the Coalition. As the shadow Attorney General, Chris Hartcher, pointed out, these amendments are reprehensible and contrary to established norms of justice. They are retrospective and are clearly designed to nullify certain cases presently before the Supreme Court. Accordingly, the Opposition gives notice that it will be moving an amendment to the bill that will rectify this outrageous situation. I will return to that issue later.
Returning to the non-controversial objects of the Crimes and Courts Legislation Amendment Bill, some 20 Acts are amended. The Bail Act 1978 will be amended to create a presumption against bail in respect of certain offences under the Drug Misuse and Trafficking Act 1985 relating to the cultivation of commercial quantities of prohibited drugs or plants, or the cultivation or manufacture of prohibited drugs or plants for a commercial purpose, including where a child is exposed to the cultivation or manufacturing process. That worthy amendment makes life tougher for drug pedlars. A number of amendments are made to legislation relating to crimes against children, for example, the Child Protection (Offenders Prohibition Orders) Act 2004 to omit a redundant requirement that a person arrested under that Act be brought before an authorised person.
Amendments to the Crimes (Local Courts Appeal and Review) Act 2001 will ensure that the revocation of a good behaviour bond and orders made as a consequence of that revocation are treated as part of an offender's sentence under that Act. Further amendments will allow a person to apply for an annulment of a conviction or sentence and allow a person to apply for an annulment of a finding of guilt whether or not a conviction is made. The Crimes (Sentencing Procedure) Act 1999 will be amended thus providing that a court that convicts a person of an offence will be allowed to dispose of the proceedings without imposing any further penalty. Further amendments will ensure that the setting of a non-parole period and other functions of a sentencing court under part 4 of that Act are exercised in relation to a suspended sentence only if the good behaviour bond relating to that sentence is revoked by the court.
Amendments to the Criminal Appeal Act 1912 will ensure that the revocation of a good behaviour bond and orders made as a consequence of that revocation are treated as part of an offender's sentence under that Act and a revision of the system of appeals against sentences will be imposed by the Drug Court. A number of amendments to the Criminal Procedure Act 1986 are non-controversial and will assist with the smooth operation of the court process. These include: establishing an evidentiary presumption in respect of persons acting in their official capacity as public officers; enabling a court attendance notice issued by a police officer to be served by a prosecutor; exempting children from having to endorse certain written statements provided as evidence in committal proceedings; and giving a magistrate discretion to admit prosecution evidence in committal proceedings despite a non-compliance with certain requirements relating to adducing such evidence.
There will be an extension of the limitation period within which proceedings for summary offences that involve a coronial investigation must be commenced. The Director of Public Prosecutions Act 1986 will be amended to clarify that the Director of Public Prosecutions may take over proceedings relating to the freezing of assets brought under the Confiscation of Proceeds of Crime Act 1989. To ensure consultation between the Chief Judge and the Attorney General before substantial alterations are made to the District Court's sitting calendar, the District Court Act 1973 is amended, as is the Local Courts Act 1982, to ensure that there is similar consultation between the Chief Magistrate and the Attorney General. The Drug Court Act 1988 will be amended to ensure that the Drug Court will not be obliged to fix a non-parole period when imposing an initial sentence on a Drug Court participant.
New offences relating to the possession of a tablet press and exposing children to things done on drug premises will be created by amendments to the Drug Misuse and Trafficking Act 1985 and there will be an extension of provisions permitting the pre-trial destruction of prohibited drugs to be extended to prohibited plants. Changes will be made to the Evidence (Audio and Audio Visual Links) Act 1988 to enable persons required to attend bail proceedings occurring during the weekend or on a public holiday to do so by way of audiovisual link. As a result of changes to the Evidence (Children) Act 1997, a recording of an interview with a child will not be required to be served on a party to proceedings. The Summary Offences Act 1988 will be amended to give lawful effect to any arrangements with respect to a public assembly that are agreed between the Commissioner of Police and the public assembly organiser.
The remaining non-controversial amendments will amend the Telecommunications (Interception) (New South Wales) Act 1987 to confer reporting functions on the Ombudsman that mirror those conferred in Commonwealth legislation on the Commonwealth Ombudsman, and the Witness Protection Act 1995, which 21 November 2006 LEGISLATIVE COUNCIL 4331
will allow arrangements relating to the establishment of a new identity under that Act to be extended to former participants in the witness protection scheme operated by police before that Act commenced. The Coalition does not oppose the amendments that I have just outlined, as they are sensible and appropriate and will assist in the smoother operation of our legal system. However, it is a very different story when it comes to the Government's proposed amendments to the Civil Liability Act 2002.
Essentially, the Government's proposed amendments to the Civil Liability Act will prevent people who sue the Government for negligence in relation to assaults that cause injury or death from recovering full common law damages. They will be able to recover only the capped damages available under the Civil Claims Act. This follows a Supreme Court decision of Justice Sully that held the Government liable in common law for damages to a criminal assaulted by other criminals while in gaol. Whether this decision should stand is a separate matter but the Opposition contends that the Government's proposed amendments are too wide because they are not just confined to criminals.
The Government's amendments are designed to stop a major case now in the Supreme Court in which the North Coast Area Health Service is being sued by the family of a man who was murdered by his flatmate. The man was in Taree hospital and was assessed as being a chronic paranoid schizophrenic with homicidal tendencies. Notwithstanding that, he was released without treatment into the care of his flatmate whom he promptly strangled to death. As a result of the Government's amendment, which is retrospective, the only person who can be sued in the circumstances I have just outlined will be the offender or his estate but, unsurprisingly, the offender has no assets. The Government's amendment goes too far. Accordingly, the Opposition gives notice that in the Committee stage it will be moving an amendment to stop this miscarriage of justice. It will move an amendment that will retain the right of individuals to sue the Government in such situations, will retain their right to sue the Government for negligence, and will retain their right to seek common law damages rather than capped damages.
Ms LEE RHIANNON [3.37 p.m.]: The Greens support some of the provisions in this rather disparate bill while being very concerned about others. The Greens are hopeful about the trial enabled by amendments to the Evidence (Audio and Audio Visual Links) Act. This will facilitate a trial for the use of videolink technology for country bail courts on weekends and holiday periods potentially strengthening the justice system by giving people accused of a crime easier access to proper legal representation. We also support the introduction of statutory expiration periods on arrest warrants. There is no sense in unnecessarily tying up people and court time on revoking unexecuted warrants. Research suggests that only a small proportion of arrest warrants are in practice more than 10 years old.
The Greens are pleased that the Government is doing something to better facilitate the ability of the community to organise public assemblies in co-operation with the police. This is a small step forward by a Government that, unfortunately, has taken many steps back when it comes to summary offences in this State. Likewise the Greens, along with the Law Society, support the bill's amendment to the definition of "sentence" to ensure that the revocation of a good behaviour bond and any order made as a consequence of that revocation is treated as part of the sentence and can be appealed against under the Crimes (Local Courts Appeal and Review) Act 2001. The Greens also support the inclusion of a new section 10A, which makes it clear that a court can convict a person and dispose of the proceedings without imposing any further penalty.
Other aspects of this bill are not so sensible. The first of these are the proposed amendments to section 8A of the Bail Act to create a presumption against bail for newly created hydroponic cannabis offences and the offence of manufacturing or producing an amount of a prohibited drug that is not less than the applicable commercial quantity, including where a child is exposed to the cultivation or manufacturing process. This Government is determined to make it harder for people to obtain bail and to make it easier for them to remain in remand. This proposal means that judges will have to be convinced that bail is appropriate for alleged offenders when presently the prosecution must convince the judge that bail should not be granted. Again, the Government is pushing effectively for the default position that bail should not be granted. The fundamental principle of innocent until proven guilty is something that this Government seems happy to undermine and, with it, international conventions that support the general rule that a person awaiting trial should not be detained.
The Government continues to work systematically to overturn the presumption of innocence in favour of gaol, resulting in an ever-increasing prison population in New South Wales. We also see with this bill the creation of new versions of aggravated offences under the Drug Misuse and Trafficking Act. Unfortunately, Labor is also partial to the creation of aggravated offences, as seen recently with the Drug Misuse and Trafficking Amendment (Hydroponic Cultivation) Bill. The Law Society of New South Wales expresses a 4332 LEGISLATIVE COUNCIL 21 November 2006
similar concern about the trend of creating new offences that are in fact matters of aggravation that can already be taken into account when sentencing. The Law Society is opposed to new sections 36Y (2) and 36Z (2) that the Government proposes to insert into the Drug Misuse and Trafficking Act relating to child endangerment. The society highlights the fact that child endangerment can already be considered an aggravating favour in sentencing and that it is preferable to give this factor appropriate weight during sentencing rather than creating a new offence with a new penalty.
The Law Society also notes that, while the existing child endangerment provisions focus on specific risks to health and safety caused by illicit drug manufacture and hydroponic cultivation, there is a wide divergence between the characteristics of drug premises. The Law Society points out that the majority of drug premises are also domestic residences. Therefore, it is highly likely that a person charged with a drug premises offence will be charged also under the new offence due to the domestic nature of most drug premises. This cannot be the intent of the legislation. The bill creates a new offence of possessing a tablet press that is capable of being used to produce a prohibited drug in tablet form. The problem is that this clearly reverses the onus of proof, meaning that the prosecution is not required to prove the fundamental elements of the offence. Even the generally conservative Legislation Review Committee expressed serious concern about this provision because it may trespass unduly on the right to the presumption of innocence by reversing the onus of proof.
Finally, I turn to the provisions in the bill that amend the Civil Liability Act as a result of the Supreme Court's Bujdoso decision. This is simply another example of the Government's focus on removing retrospectively what would otherwise be appropriate rights of citizens in this State. The Government wants to make it clear to the Daily Telegraph that if another prisoner assaults, rapes or batters a fellow prisoner—even if the Government was negligent in allowing or causing that to happen—the injured prisoner will not be able to access any damages unless he or she—
The Hon. Tony Kelly: No. The victims of his crime will be able to access his damages.
Ms LEE RHIANNON: Yes. But the victim must prove that he or she has at least 15 per cent whole-person impairment—and, even then, the prisoner's damages will be severely limited. I am sure that the Minister for Justice does not disagree with that. To paint a different picture: If a prisoner was raped repeatedly by a fellow prisoner, with the full knowledge of the prison authorities, but suffered only modest permanent physical damage, that prisoner would not be able to obtain any damages from the State unless he or she could prove that he or she had a very significant mental impairment—being equal to 15 per cent whole-person impairment or greater. The Minister interjected to dispute my interpretation of the bill. I invite him to state on the record how I am wrong because that is the interpretation that has been presented in much legal advice that the Greens have received in recent weeks.
If the State is negligent in protecting prisoners from deliberate harm from other prisoners why should the State not be liable for negligence and for damages, subject to the Civil Liability Act, just like everyone else—except employers who also get a free kick from the Government? The answer seems to be that the New South Wales Government accepts that part of the punishment it gives to prisoners is other prisoners assaulting, raping and battering their own. It does not acknowledge that it owes prisoners a duty of care. The New South Wales Government, rather than trying to wriggle out of liability in cases such as Bujdoso, should instead be ashamed of its inaction and make a commitment to fix the prison system so that prisoners who are released from gaol are not even more damaged and damaging than when they went in.
The fact that the Government permits prisoners to be assaulted in the way that Mr Bujdoso was is quite terrible. Mr Bujdoso may have been found guilty of sexually assaulting young boys but that does not mean it was right for the State of New South Wales to let three other prisoners walk into his cell and beat him senseless with crowbars. That was never part of his sentence. In dismissing an appeal, the High Court noted in New South Wales v Bujdoso:
There was more than a mere foreseeable risk of injury to the respondent. There was a risk that had actually been expressly threatened. The risk, if it were to be, as it was, realized, was of considerable physical injury to the respondent. Such a risk, once known, called for the adoption of measures to prevent it. All of this is well established. No effective measures were adopted.
Restorative justice is a different concept involving the offender and victim in a voluntary attempt to reconcile the damage, with other community members in support of both. Section 3B (1) (a) says that when damage has occurred to a prisoner due to the negligence of the prison department there has to be recognition of how dependent that prisoner is on government care—whether the prisoner is uniquely and totally under government control—and there has to be an exemplary finding to prevent a recurrence. Removing that provision suggests 21 November 2006 LEGISLATIVE COUNCIL 4333
that violence is tolerated, or even used as a management tool. This position degrades us as a community, and says, "We don't like you; we have the power and we don't recognise any entitlements or obligations to you." That causes resentment and distrust. It is a breach of the human right to compensation from Government. T. D. Kelly and Company, representing Mr Bujdoso, sent me a letter outlining its concerns about the bill. It noted that the effect of this bill will be to:
… significantly diminish the full accountability of public and private hospitals, prisons and hotels … for failing to take measures that are reasonably within their capacity to prevent … harm to third parties. This is hardly likely to enhance good governance in New South Wales.
Mr Kelly further notes that the bill will, for example:
… reduce claims against hospitals for assaults of homicides committed by paranoid schizophrenics who have not been properly diagnosed or treated in mental health facilities.
Members must be aware of what they are doing if they vote to pass the bill. I put it to members that the bill's provisions reach much further than the Government has acknowledged. I received a similarly concerned letter from the Homicide Survivors Association, which says that its members find it "completely abhorrent that the government is moving to reduce our right to fair compensation". But this is a Government of topsy-turvy values that, regrettably, elevates the rights of some groups far above those of others. The Greens are disappointed that the bill attempts to degrade the Government's responsibility to look after people for whom it has a clear duty to care. Members must recognise that when people are convicted of a crime and sent to prison their sentence is their punishment. While people are in prison the Government has a duty of care towards them. It seems as though too many members in this place have lost sight of that important fact. I thank the Law Society of New South Wales and Justice Action for the material they supplied to the Greens to assist us in our consideration of the bill.
Reverend the Hon. FRED NILE [3.48 p.m.]: The Christian Democratic Party supports the Crimes and Courts Legislation Amendment Bill. The bill is similar to a statute amendment bill in that it contains a vast array of amendments to a large number of Acts. These include the Bail Act 1978, the Child Protection (Offenders Prohibition Orders) Act 2004 and the Crimes (Local Courts Appeal and Review) Act 2001. The bill makes a number of what the Government calls miscellaneous amendments to more than 20 Acts. I do not question that procedure because it is preferable to make those amendments in one bill rather than in many bills. The upper House needs to carefully review all legislation, but members often find that miscellaneous housekeeping amendments have hidden unintentional effects.
However, the Christian Democratic Party is pleased to support the bill, particularly the provision to amend the Bail Act 1978 to create a presumption against bail in respect of certain offences under the Drug Misuse and Trafficking Act 1985 relating to the cultivation of commercial quantities of prohibited drugs or plants or the cultivation or manufacture of prohibited drugs for a commercial purpose, including when a child is exposed to the cultivation or manufacturing process. I remember contentious debate in this House on whether exposing a child to the cultivation or manufacturing process should be an offence. I believe the offence is more serious if children are exposed to the cultivation or manufacturing of drugs, even if the parents claim they are protecting or not involving their children in that process.
This legislation will have a deterrent effect because, as has already been stated, quite often criminal gangs use domestic premises for illegal activities. A gang identifies a family that is desperate with financial problems—they may be migrants new to Australia—and offer payment to allow certain activities to be conducted in their home. The family is not involved in the manufacture of drugs but provides the premises in which the drug is manufactured. This gives the impression to neighbours of normal domestic behaviour, and that the premises are not a drug house, so that police are not alerted. However, if six men march in and out of a house every day the suspicions of neighbours or police officers would be aroused. This legislation is needed to deter other families from agreeing to co-operate in the production, cultivation and manufacture of drugs by the criminal element.
The newly created offences for drugs grown hydroponically are quite serious. South Australia foolishly decriminalised the offence of possession of small quantities of cannabis for personal use grown by hydroponic cultivation and it is mushrooming there. In South Australia drugs are grown artificially, perhaps in the basements of buildings, and not on farms. In Nowra and other places I have noticed small shops that sell the equipment for the cultivation of hydroponic plants, for various purposes, including the manufacture of illegal drugs. 4334 LEGISLATIVE COUNCIL 21 November 2006
The Christian Democratic Party also supports the provision that limits the amount of damages that can be paid for certain offences. Section 3B (1) (a) of the Civil Liability Act is amended to make it clear that provisions of the Act that benefit defendants by limiting the amount of damages payable do not apply in cases where the defendant committed an intentional act with intent to cause injury or death, or committed a sexual assault or other sexual misconduct. Clarification of the scope of this provision will ensure that the Civil Liability Act does apply where a victim of such an intentional act sues a third party for negligence for failing to prevent the intentional injury. Using the facts of the Bujdoso case as an example, the Civil Liability Act will apply where a prison inmate who has been intentionally injured by another inmate sues the Department of Corrective Services for negligence for failing to prevent the injury. It will not apply to a civil action brought against the other inmate.
It is common knowledge that in the prison system some prisoners willingly conspire to be bashed by one or more other prisoners in order to claim compensation. Some prisoners are a party to the arrangement and feel happy to have an arm broken in order to claim as a victim and be awarded money. Some have successfully claimed from the Victims Compensation Fund as a result of such a set-up. The Government and the Minister must be alert to ensure that such abuse does not occur to enable civil liability complaints or claims against the Victims Compensation Fund, which was set up for genuine victims, not to aid and benefit prisoners in State gaols. The bill deals with a number of other areas which are not controversial, and the Christian Democratic Party supports the legislation.
The Hon. PETER BREEN [3.56 p.m.]: The bill amends some 20 pieces of legislation, and it is difficult in the short time available to be able to assess the impact of each of the proposed amendments. One amendment to which my attention has been drawn is covered in a foreshadowed amendment by the Opposition in relation to the Civil Liability Act 2002. Section 3B (1) (a) of the Act provides:
(1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows:
(a) civil liability in respect of an intentional act that is done with intent to cause injury or death or that is sexual assault or other sexual misconduct—the whole Act except:
There are a number of exceptions. The amendment proposes that the words"civil liability in respect of an intentional act that is done with intent to cause injury or death or that is sexual assault or other sexual misconduct" in section 3B (1) (a) should be deleted and replaced with similar words except that the similar words introduce the notion of a person. The amendment proposed is "civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person". The question before the House is whether or not that excludes liability of an organisation, such as a prison, for the actions of a prisoner that might cause injury or damage to another prisoner.
Ms Lee Rhiannon pointed out in her contribution to the debate that because the prison authorities are in total control of prisoners—they provide the environment and all the conditions of their incarceration—it follows that the authorities should be responsible for the actions of those prisoners. It would be a serious breach of human rights if a prisoner who suffered injury or damages as a result of the acts of another prisoner was unable to recover those damages because of the proposed amendment. If, as the Government is suggesting, the proposed amendment is not that wide in application—that is, the introduction of the words "the person" does not exclude the authority in the case of a prison, or in the case of other organisations does not exclude those organisations—then the amendment would be acceptable.
But if it does in fact exclude all liability of institutions and organisations, such as prisons, government departments and other authorities that are in control of situations and of people, then the amendment is too wide, and that provision in the bill ought to be opposed. In those circumstances, I would support the amendment proposed by the Opposition. I would suggest that it is incumbent on the Government, if the amendment does not cover the various issues contemplated by the Opposition, to explain how it is that what appears to be an amendment that has that effect does not in fact have that effect. Other provisions of the bill referred to by the Greens relate to a number of other matters, which again, because of the nature of the bill, because it is an ambulatory bill that takes into account a number of pieces of legislation—
Pursuant to sessional orders business interrupted. 21 November 2006 LEGISLATIVE COUNCIL 4335
QUESTIONS WITHOUT NOTICE
______
TRANSGRID BOARD CHAIRMAN
The Hon. MICHAEL GALLACHER: My question without notice is directed to the Treasurer. Does the Treasurer stand by his answer to a question last week in relation to the former chairman of TransGrid, Mr Phil Higginson, that "Claims made by former TransGrid Chair, Phil Higginson … are incorrect"? Specifically, did the Treasurer call a meeting with Mr Higginson on Thursday 2 November to discuss TransGrid's nominee for the board of EISS?
The Hon. MICHAEL COSTA: I refer to my answer of last week on this matter, which is recorded in Hansard.
SYDNEY ROADS AND PUBLIC TRANSPORT
The Hon. CHRISTINE ROBERTSON: I address my question to the Minister for Roads. Will the Minister update the House on the Government's latest efforts to improve road and public transport efficiency in Sydney?
The Hon. ERIC ROOZENDAAL: I thank the honourable member for her question and for her interest in this important matter. Yesterday I joined the Premier and Deputy Premier to announce a $660 million package of new and accelerated initiatives to address Sydney's present and future transport needs. The statement is fully funded, and gets on with the job of addressing the State plan's key priorities of easing traffic congestion and increasing public transport use.
Under the statement, $100 million will be provided to upgrade Victoria Road and construct a second bridge over Iron Cove, improving traffic flows on one of Sydney's busiest transport corridors. This major upgrade of Victoria Road will not only improve general traffic flows on Victoria Road but also greatly improve the efficiency and reliability of Victoria Road bus services. Almost 800 buses use Victoria Road every day, carrying more than 35,000 commuters. The new improvements will lead to the provision of a continuous peak direction bus lane during both the morning and afternoon peak periods, from the Gladesville Bridge to The Crescent at Rozelle.
The Victoria Road traffic improvements follow the recommendations of the Victoria Road Working Party, led by the member for Drummoyne, Angela D'Amore, who has worked very hard for these changes. Ms D'Amore is another committed and hardworking local Labor member, and is really delivering for her electorate. These improvements will be delivered in close consultation with businesses, local government and the local community.
The main features of the $100 million upgrade of Victoria Road include a new initiative to duplicate the Iron Cove Bridge with the new bridge to have three additional general traffic lanes and a bus lane eastbound, stage 2 works to extend the bus lane through the introduction of a tidal flow scheme through Drummoyne and Rozelle to further improve traffic flow, and overtaking bays through Drummoyne and Rozelle to allow limited stops bus services to overtake all stops services.
A further $100 million will be invested in a traffic Network Management Strategy, or pinch point program, aimed at improving traffic flows on Sydney's major road corridors. Pinch points are congestion points on our roads that slow the broader network down. The pinch point program will target known peak hour traffic hotspots and develop ways to ease traffic flows with targeted improvements to the existing road network. This is about providing improved, more consistent travel times for motorists and bus passengers, particularly during those peak hours. Targeting local pinch points can make a big difference for motorists. Under the pinch points program, the RTA will work with members of Parliament and the local community to investigate intersections and the appropriate treatments that can be applied.
Just this morning I was joined by the member for Miranda, Barry Collier, and the member for Heffron, Christina Keneally, on the Princes Highway to inspect traffic hot spots on the road corridor. They are very hardworking local members—two of the so many Labor members who are committed to their constituencies. Possible treatments include lengthening turn bays, adding extra lanes on sections of roads, widening 4336 LEGISLATIVE COUNCIL 21 November 2006
intersections, changing traffic light configurations, and replacing heavily used roundabouts with traffic lights. Removing pinch points will improve traffic flows and keep Sydney moving. The Iemma Labor Government will continue to work hard to deliver better transport outcomes for the commuters and motorists of this State as we move towards improving the whole road network.
TRANSGRID AND ENERGY INDUSTRIES SUPERANNUATION SCHEME
The Hon. DUNCAN GAY: My question without notice is directed to the Treasurer. Did the Treasurer receive a letter in October 2006 from TransGrid which nominated Mr Kevin Murray to the position on the EISS board and outlined the business reasons for such nomination? Did the Treasurer request Mr Higginson to agree to Mr Riordan's preference for the appointment of Mr David Croft? Does the Treasurer deny that he indicated to Mr Higginson that it would be a simple matter to just write another letter to the board, contrary to TransGrid's October advice?
The Hon. MICHAEL COSTA: I am not aware of receiving any letter on the date nominated, but I am happy to have a look at my files and see whether I did receive a letter.
The PRESIDENT: Order! I call the Hon. Melinda Pavey to order for the first time.
POLICE RESOURCES
The Hon. DAVID OLDFIELD:I direct my question to the Minister for Roads. Further to my question of 1 April 2004, and in the light of the recent deaths of highway patrol officers struck by cars while using hand-held radar, is the Minister aware of legislation introduced in the Australian Capital Territory, Victoria and South Australia to allow mobile speed cameras to be operated by persons other than police? Will the Minister agree that the adoption of a similar approach in New South Wales would greatly free up police so they may concentrate their efforts on other crimes? Will the Minister, in co-operation with the Minister for Police, look at those operations so that more trained police will be available to deal with other matters of law and order?
The Hon. ERIC ROOZENDAAL: I am aware of the tragic incident and certainly the dangers that police officers face in conducting their duties, particularly in relation to radar operations. Constable Wilson's death is subject to a coronial investigation, so I do not think it is appropriate for me to say any more on that tragic accident apart from passing on the condolences of the House to his family and friends.
The community can be assured that the Iemma Government regards road safety and the safety of police officers as two of its most important priorities. I am advised that NSW Police is constantly reviewing its procedures to ensure maximum officer safety in what is often a dangerous profession. However, in the light of these recent incidents, in which a highway patrol officer was tragically killed, the Commissioner for Police has taken the following measures in the interim while a review of Lidar operations is conducted. All stationary Lidar operations are to be suspended and replaced with vehicle-mounted Lidar, with police vehicles being used to stop offending motorists. Normal Lidar operations will, however, continue in school zones. Stationary random breath testing will be conducted only in speed zones of 80 kilometres an hour or less, while mobile random breath testing will continue as normal.
A statewide memorandum from the commissioner will reinforce the need for supervisors to ensure officers are briefed on compliance with current operating procedures and undertaking the above measures. However, these measures do not mean that motorists can lower their standards. Police will be maintaining a visible presence on our roads. The message is clear to motorists: If they speed or drink and drive, they will be caught and will face the full force of the law.
The Hon. DAVID OLDFIELD: I ask a supplementary question. I direct the Minister to the part of my question that referred to looking at legislation adopted in other States to free up police from using radar and Lidar and have other operatives perform those radar duties so that police can address other crimes. Will the Minister co-operate with the Minister for Police to make that happen?
The Hon. ERIC ROOZENDAAL: I am quite happy to raise that issue with the Minister for Police to seek his advice. 21 November 2006 LEGISLATIVE COUNCIL 4337
YASMAR JUVENILE JUSTICE SITE USE
The Hon. EDDIE OBEID: My question is directed to the Minister for Lands. What is the latest on the Government's vision for the former Juvenile Justice site, Yasmar, in Haberfield?
The Hon. TONY KELLY: As honourable members would be aware I recently announced that the former Juvenile Justice detention centre, Yasmar, would be kept in public hands as Crown reserve, much to the disappointment of the Liberal Party. It is a great outcome for the people of the inner west and part of our commitment, through the State Plan, to improve the recreational and cultural facilities for the people of New South Wales. The western-most section of the site will continue to serve New South Wales as a Juvenile Justice training centre. The central part, where the historic homestead and the historic gardens are located—apparently some of the plants in the garden are not in the Royal Botanic Gardens—will be managed by the Ashfield Municipal Council as the reserve trust manager.
Last week I again visited Yasmar to announce our vision for the site, and called on the community to provide feedback on what they wanted for the Yasmar site, particularly the eastern section. I was joined by the honourable member for Drummoyne and the Labor candidate for Balmain, Verity Firth, both of whom are hardworking. Both have been working with the community to ensure that the site remains in public hands and to develop a practical way forward for the site. The Iemma Government wants to work with the community to ensure they get the most for this unique jewel in the inner west.
The Hon. Catherine Cusack: The most money for it?
The Hon. TONY KELLY: I would not say that if I were a member of the Liberal Party based on what it has done in the past. As part of Labor's vision for Yasmar, I have sought expressions of interest from the community on the best use for the easternmost section of Yasmar. Importantly, I expect a return could be realised if a lease on this part of the site was taken up by an appropriate community organisation. This return could then be used to help fund the restoration of Yasmar House and gardens.
The Hon. Catherine Cusack: $100,000 a year?
The Hon. TONY KELLY: The Hon. Catherine Cusack has read the paper—well done. Central to Labor's vision for Yasmar is establishing a vibrant community-centred asset with a sustainable and long-term funding base. We want to be able to help the council restore this building and maintain it. Make no mistake, only a Labor Government could drive these initiatives: saving precious community assets while ensuring that the taxpayer is not forced to fund the total bill. We all know that the Greens do not need to be economically responsible—such is their luxury—because they will never have to fund their promises. However, the only problem now is the Opposition, which has racked up $25 billion on its Peter meter and which would have to flog off parts of Yasmar to pay for its election promises. The Coalition has form. This is the same party that tried to flatten the Rocks in the 1970s, and the same party that tried to flog off everything it could lay its hands on the last time it was in government. Now the Liberal candidate for Balmain is trying to whip up a scare campaign over a secret agenda for Yasmar.
The Hon. Michael Gallacher: He is an outstanding candidate.
The Hon. TONY KELLY: I am told that when Cabinet was meeting in the inner west yesterday, his bizarre contribution to the public debate was to dump manure on a public pavement.
The Hon. Duncan Gay: I saw that in the paper today.
The Hon. TONY KELLY: What a powerful symbol of his and the Liberal Party's contribution to the debate about the future of Yasmar. As the honourable member said, today the Inner Western Suburbs Courier acknowledged the Iemma Government's plan for Yasmar under the headline "Yasmar opened to the public". Once again, the Opposition has been caught spreading lies and embarking on scare campaigns. It has no substance, no plans and no vision for the State.
CLIMATE CHANGE AND GREENHOUSE GAS EMISSIONS REDUCTION
Ms LEE RHIANNON: I direct my question to the Treasurer. His Federal Labor colleague Mr Anthony Albanese has made climate change policy undertakings to set a 60 per cent reduction target for 4338 LEGISLATIVE COUNCIL 21 November 2006
greenhouse gas emissions, to establish an emissions trading system and to substantially increase mandatory renewable energy targets. Does the Treasurer acknowledge that if those climate change policies were put in place, they would drive down the profits of the coal industry in New South Wales by drastically reducing the economic viability of the massive coal expansion that his Government is currently driving?He said in Parliament last week that he is to the right of John Howard on climate change. Does he agree that the policies of the New South Wales Labor Party are more in line with the policy position of John Howard than that of Kim Beazley or Anthony Albanese, or does he have to move them further to the right?
The Hon. MICHAEL COSTA: I am glad to hear a political statement from the Greens leader. I think she is the Greens leader this week; I understand they revolve on a three-weekly basis. The Government's policy on climate change is clear. Recently the Premier made a statement on renewable energy. We are proud of our record. One can certainly have scepticism about climate change but still support strategies that seek to address community concerns, which is why I am certainly happy to support the package. What I am not happy about is the alarmist nonsense raised by the Greens. Honourable members should know that the Greens web site has an intriguing photograph of Mr Ian Cohen with a sign that says, "Greenhouse equals no ice-cream". This is the sort of nonsense the Greens go on with. This is the bogeyman who, in the lead-up to Christmas, is going to tell kids there is no ice-cream because of greenhouse. The bloke does not understand the fundamental—
Mr Ian Cohen: Point of order: The Minister is deliberately misleading—
The PRESIDENT: Order! That a member has deliberately misled the House cannot be the basis of a point of order. The member may make a personal statement when there is no other business before the House.
The Hon. MICHAEL COSTA: The Greens are running around with all sorts of alarmist nonsense, threatening children that there will be no ice-cream. It is a ridiculous position for the Greens to take. Imagine— no ice-cream!
[Interruption]
As the Minister for Primary Industries reminds me, they still have saltwater fish on their web site allegedly in freshwater. Now we have no ice-cream. I do not know what happened to refrigeration.
Ms Lee Rhiannon: Point of order: My point of order is based on Standing Order 65, which states that an answer must be relevant to a question. I urge you, in your last week, to take charge of the House and draw him back to the question.
The PRESIDENT: Order! The Treasurer's answer must be relevant.
The Hon. MICHAEL COSTA: I know it is embarrassing to have brought before the House what the Greens actually do out in the community for climate change—scare little children. One can imagine Mr Ian Cohen walking down the street and—
Ms Lee Rhiannon: Point of order: Again, I refer to standing order 65. The honourable member is not answering the question. Let us get it on the record: he is avoiding matching Anthony Albanese's policies. Anthony Albanese's policies run counter to what he is doing.
The PRESIDENT: Order! The member knows perfectly well that a Minister may make general statements when answering a question. The question was about climate change and the Minister's comments were about climate change.
The Hon. MICHAEL COSTA: That is right. I am talking about extreme views on climate change. Clearly, the question from the honourable member reflects an extreme view of climate change. The very fact that Mr Ian Cohen has to go running around scaring young kids because they are going to lose their ice-cream as a result of greenhouse is clearly a nonsense.
The Hon. Greg Pearce: Point of order: The Treasurer is talking about scaring young children. He is the Uncle Fester of this House: he's creepy and he's kooky, mysterious and spooky; he's altogether ooky. He's the Uncle Fester of the Legislative Council.
The PRESIDENT: Order! There is no point of order. 21 November 2006 LEGISLATIVE COUNCIL 4339
The Hon. MICHAEL COSTA: What we want in a climate debate are sensible positions on issues that can be resolved. The only reason there will be no ice-cream is that the Greens would use a power system based on burning cow dung, which means we will not have refrigeration and the poor kids will not get any ice-cream. But for the rest of us, we are committed to having proper energy strategies that maintain— [Time expired.]
The PRESIDENT: Order! I call the Hon. John Ryan to order for the first time.
TRANSGRID AND ENERGY INDUSTRIES SUPERANNUATION SCHEME
The Hon. RICK COLLESS: My question without notice is directed to the Treasurer. Did TransGrid propose Mr Kevin Murray for the Energy Industries Superannuation Scheme [EISS] board position? Did the Minister insist that the nominee be Mr Bernie Riordan's preference, Mr David Croft? Was Bernie Riordan present at the meeting on 2 November to discuss TransGrid's nominee for the EISS board?
The Hon. MICHAEL COSTA: Given the interest of the Opposition in Mr Bernie Riordan's presence at meetings and involvement in the issue of the TransGrid representation on the EISS board, I am happy to table a statement from Mr Bernie Riordan that outlines what occurred at the meeting.
Document tabled.
DISABILITY SUPPORT SERVICES
The Hon. GREG DONNELLY: My question without notice is addressed to the Minister for Disability Services. What additional respite services are being provided for people with a disability in south-west Sydney?
The Hon. JOHN DELLA BOSCA: I thank the Hon. Greg Donnelly for his question. In contrast to the New South Wales Opposition, the Iemma Government has produced a comprehensive, 10-year plan for disability services. Designed in conjunction with the community and in consultation statewide with people with a disability, their families, carers, providers and peak groups, Stronger Together is backed by an additional $1.3 billion over its first five years. This historic increase in respite, accommodation, therapy, case management is one that the Leader of the Opposition, the honourable member for Vaucluse, Mr Debnam, refuses to endorse. This is a funding boost that the Leader of the Opposition, the honourable member for Vaucluse, will not ask the Commonwealth to match as he is unwilling and unable to stand up to John Howard.
The latest increase in services has just opened in Liverpool where the honourable member for Liverpool and I cut the ribbon on a new $2 million respite centre that will provide specialised support for people with a disability in Sydney's south west. Funded by the Iemma Government, the purpose-built Liverpool Respite Centre will provide support at any given time for up to 10 people who have complex health care needs. The new facility is split into two five-bedroom units, one for adults and the other for children. Each unit features individual bedrooms, its own kitchen and adjoining dining room, a lounge with widescreen television and stereo, a large bathroom, a sensory room, a visitor's room and a courtyard garden.
Under the Iemma Government's Stronger Together plan, south-west Sydney will receive an additional 120 respite places over the next two years and $14 million in new funding for accommodation. Compare this practical increase in services with the failure of the Leader of the Opposition, the honourable member for Vaucluse, to commit to even one extra supported accommodation place. Members of the Opposition will use people with a disability to get themselves a headline, but they will not commit to additional spending. In the Opposition's policy there are no new attendant care packages, no funding for younger people in nursing homes, no additional case management, no therapy for children and no therapy for adults. The Leader of the Opposition, the honourable member for Vaucluse, has made $25 billion in unfunded promises, but precious little money or compassion is being planned for people with disabilities. That shows appalling judgment and that the Coalition is unfit to govern.
Yesterday I wrote to the new shadow Minister for Disability Services, the honourable member for Bega. I offered him a briefing with the Director-General of the Department of Ageing, Disability and Home Care [DADHC]. It is important that the new shadow Minister and the Leader of the Opposition understand the significance of the Stronger Together plan. I have also asked the director-general to outline purchasing guidelines in relation to Nardy House so that the Opposition understands the risks of making offers of public money that are contrary to the Public Finance and Audit Act as well as the Independent Commission Against Corruption, Treasury and DADHC guidelines. The Opposition has no plan for services. By refusing to commit 4340 LEGISLATIVE COUNCIL 21 November 2006
to the Government's historic spending increase in disability, the Opposition will reduce services, causing massive hardship for New South Wales people with a disability, their families and carers.
COMMUNITY GRANTS PROGRAM
The Hon. Dr PETER WONG: In directing my question without notice to the Minister for Commerce I note that regarding government funding to ethnic communities recently the Premier made some election announcements that are shown on www.chinatown.com.au. In view of the fact that the Labor Government under Bob Carr decimated many resources and most of the expertise of the Ethnic Affairs Commission of New South Wales and renamed it the Community Relations Commission, does the Premier believe that a $1 million community grants program is adequate to repair the long-term damage it has caused? Will the Government review its multicultural affairs policies to follow the excellent example set by its counterparts in Victoria and Queensland?
The Hon. JOHN DELLA BOSCA: I thank the Hon. Dr Peter Wong for his question. I will refer the question to the Premier for a comprehensive reply.
YASMAR JUVENILE JUSTICE SITE USE
The Hon. CATHERINE CUSACK: My question is directed to the Minister for Justice, and Minister for Juvenile Justice, and it concerns Yasmar. Apart from issuing a lame appeal to the public for funding ideas, what dollar commitment has he made for conservation work at Yasmar?
The Hon. Amanda Fazio: Point of order: I believe that the question being asked by the Hon. Catherine Cusack is out of order because it contains argument by the use of the term "lame" funding commitment. That is definitely not appropriate language for a question.
The PRESIDENT: Order! I remind the member that she must rephrase her question so that it does not contain argument.
The Hon. CATHERINE CUSACK: Given that his previous plans to sell Yasmar have been placed on hold in the months before an election, will he and the Premier provide a personally signed guarantee to the public that no part of Yasmar will be sold after the election?
The Hon. TONY KELLY: That is as ridiculous a slur as the one that the Hon. Catherine Cusack's Liberal leader tried to make the other day. It has never been my plan to sell Yasmar.
The Hon. Catherine Cusack: You have boxes and boxes of development plans upstairs.
The Hon. TONY KELLY: The Hon. Catherine Cusack referred to my plan. I have no plan and I never have had a plan.
The Hon. Catherine Cusack: You have boxes of development plans.
The Hon. TONY KELLY: I have not got boxes of stuff upstairs concerning the sale of Yasmar. That is a straight-out lie. I have never had that. It has always been my proposal—
The Hon. Catherine Cusack: There are copies in the Clerk's office.
The Hon. TONY KELLY: Does the Hon. Catherine Cusack want an answer? It has always been my proposal to save Yasmar for the people of the community. It is a beautiful old home and that is why, as I said earlier, I already have eight permanent staff in the westernmost section of the Department of Juvenile Justice who are permanently in a training session. We are working with the Council of the Municipality of Ashfield and we are now asking the community for expressions of interest. We have received a number of offers from the community already, but before I closed that off, I wanted to see whether there were any others out there. We have asked the community for further expressions of interest. Very shortly we will be able to finalise the whole thing.
In relation to the money I intend to put into it, obviously now that it is the province of the Ashfield council as opposed to the Government, the council will be able to obtain both State and Federal heritage grants 21 November 2006 LEGISLATIVE COUNCIL 4341
to do up the building. But it is my intention that one way or another the majority of the money that we make out of any leasing proposals for the easternmost section will be returned to the council for the restoration and the continued maintenance of that beautiful building.
The Hon. CATHERINE CUSACK: I ask a supplementary question. The Minister just indicated "the majority of the money". Is he not willing to guarantee that all of the funds will be going into the conservation of the historic homestead of Yasmar?
The Hon. TONY KELLY: It will depend on exactly what contributions come forward and the way that it is done. But it will be a very substantial amount of money.
PRIMARY AND COMMUNITY HEALTH CARE INTEGRATION
The Hon. AMANDA FAZIO: My question is addressed to the Minister for Health. What is the latest information regarding the Government's efforts to integrate primary and community health?
The Hon. JOHN HATZISTERGOS: I thank the Hon. Amanda Fazio for this very important question. This morning it was my pleasure to launch the New South Wales integrated primary and community health policy, which establishes a new direction in health care. It will offer us the framework in which to expand the delivery of primary and community health services in ways that promote wellness, encourage individuals to participate in the management of their own health, and make the delivery of co-ordinated services easier for health professionals. It is the first time that a comprehensive policy of this nature has been developed. Today our health professionals are taking part in an all-day workshop. They are the people who will make this policy work, bringing together our New South Wales Health staff, our general practice colleagues and our other agency and non-government organisation partners.
The Government is committed to achieving a very important goal—integrating and co-ordinating a primary and community health care system, working in partnership to promote the health and wellbeing of our community. It is not an easy task, but the benefits will be profound. Although the focus of the health system has historically been on hospital services, we know that most health care is delivered in the community. Over 90 per cent of the population has direct contact with a primary or community health service each year. Despite the importance of these services, there has never been a comprehensive policy statement covering this sector as a whole—until now.
The policy comes at a time of ever-increasing demand on limited health resources. Chronic health conditions requiring ongoing, long-term care are increasingly common and are expected to account for about 80 per cent of the overall disease burden in Australia by 2020. Our ageing population is placing pressure on acute care services with an estimated 79 per cent of overnight bed growth due to people aged 75 years and over. These challenges are not unique to New South Wales. They are being experienced across Australia and in most developed countries around the world; but that does not make them any less complex or demanding.
"Reduced Hospital Avoidable Admissions" was identified in the State Plan recently launched by the Premier as a priority. The Government has made real progress in implementing new programs that are targeted to the specific needs of members of the community and aim to provide health care that is needed in the community. For example, in February of this year I was pleased to launch the Sub-Acute Fast Track Elderly Care Program, known as SAFTE, which is aimed at minimising the need for older people to be admitted to hospital. As at September this year the model has successfully supported over 634 frail older people in their homes and prevented avoidable hospital presentations in 80 per cent of these cases.
Another initiative is the Premier's announcement in June this year that the Government will be establishing integrated primary and community care services, which will integrate general practitioners, community health workers, allied health and other care professionals; encourage a patient-centred approach, co-ordinated and continuous care; and help ensure accessibility to services. Real progress has been made in the past few months since this initiative was first announced, and I look forward to making further announcements in the near future.
The Government is committed to working towards the integration of primary and community health services, which strengthens the health system as a whole, and offers outstanding opportunities to improve the way we deliver health care to the community. It improves quality of life. I congratulate all those involved in the development and implementation of the policy and those taking part in today's workshop. 4342 LEGISLATIVE COUNCIL 21 November 2006
DEATH OF MICHAEL PESTANO AND VICTIMS COMPENSATION
The Hon. PETER BREEN: My question without notice is directed to the Minister for Finance, representing the Attorney General. Is the Minister aware that the relatives of murdered standover man Michael Pestano were awarded victims compensation of $50,000? Is the Minister aware that Mr Pestano was killed by Tim Nan in self-defence while Mr Pestano was engaged in unlawful activity? Why did the Victims Compensation Authority pay money to the relatives of Mr Pestano? Is New South Wales the only jurisdiction in Australia where such a claim would be paid? When will the Minister take steps to prevent payments from the Victims Compensation Authority when those payments reward unlawful activity?
The Hon. JOHN DELLA BOSCA: It is my understanding that such steps have already been taken. I will obtain a detailed answer from the Attorney General and provide it to the member as soon as possible.
KINGSWAY FINANCIAL ASSESSMENT PTY LIMITED TENDER CONTRACT
The Hon. GREG PEARCE: My question is directed to the Minister for Commerce. Who approved the extension of the contract for provision of financial assessment services to Kingsway Financial Assessment Pty Limited in September 2005? What process occurred in relation to that appointment? How much has been paid by the Government to Kingsway Financial Assessment Pty Limited since its initial appointment by the Government?
The Hon. JOHN DELLA BOSCA: The question deals with a specific tender and processes involved with it. No doubt the member will have much more to say about this in the next day or so. I undertake to obtain a detailed response for him as quickly as possible. I note that I was very remiss: I offered the honourable member for Bega a briefing about disability services and I am very happy to offer the new shadow Minister for Commerce the same courtesy.
NATURAL RESOURCE MANAGEMENT
The Hon. TONY CATANZARITI: My question is addressed to the Minister for Natural Resources. What is the Government doing to assist landholders to improve natural resource management in their local area?
The Hon. IAN MACDONALD: I thank the honourable member for his ongoing interest in natural resource management, particularly in these times of harsh drought. I am pleased to announce that the Iemma Government will spend more than $2 million in grants to help land managers in the Western Catchment Area undertake on-ground works or training to improve localised natural resource management. A total of 52 applicants have received funding through the Western Catchment Management Authority's [CMA] 2006 annual major round. The funding is part of the State Government's and the Federal Government's combined $23 million commitment to the Western Catchment over a four-year period. This dedicated funding goes towards a variety of projects that meet the CMA's natural resource management targets and include native pasture recovery, riverine habitat, pest management, sustainable agriculture and water quality.
Specific projects include a $1.1 million commitment to 20 applicants for native pastures recovery. This will enable land managers to use fencing, trap yards, saltbush plantings and other strategies to encourage native pasture on a total of 1,725 square kilometres. To date, $239,200 has been awarded to seven applicants for riverine habitat improvements. A total of 59 alternative watering sites have been installed to stop stock accessing waterways, and 170 kilometres of waterway have been fenced—again this is roughly equivalent to the distance by road between Mungindi and Walgett. An amount of $272,400 has been committed to 10 applicants to undertake works to improve water quality, including the protection of 6,635 hectares of wetlands, and $68,900 was committed to seven applicants to encourage sustainable agriculture. Landholders from 14 properties in the Cobar district have undertaken a training course to improve their property management.
The Hon. Duncan Gay: Are you the leader of the hard Left?
The Hon. IAN MACDONALD: Yes. I think it is absolutely appalling what has happened to the moderates in the Liberal Party. It was most unfortunate that one of the most esteemed members of this House, the Hon. John Ryan, was done over again by the forces of the three riders of the Apocalypse, the youngest I notice is now seated on the Opposition's front bench. At the weekend he lost— 21 November 2006 LEGISLATIVE COUNCIL 4343
The Hon. Rick Colless: Point of order: I fail to see what the three riders of the Apocalypse have to do with the Western Catchment Management Authority. I ask you to bring the Minister back to the question.
The PRESIDENT: Order! I remind the Minister that his answer must be relevant.
The Hon. IAN MACDONALD: It is very relevant to this House how the character of the Liberals under Peter Debnam's leadership has changed; he has done more for this hard Right, sectarian, Opus Dei-led party than David Clarke is doing around the State.
The Hon. Don Harwin: Point of order: Madam President, the Minister is flouting the ruling you just gave. The basis of my point of order is relevance.
The PRESIDENT: Order! I remind the Minister that he must not flout the Chair's ruling.
The Hon. IAN MACDONALD: Absolutely, I never do. An amount of $330,800 was awarded to 12 land managers for pest management. Works to control feral goats, pigs and rabbits will be undertaken on an area of 25,000 square kilometres, which is double the size of all national parks, nature reserves, historic sites and Aboriginal areas in the Western Division combined.
The Hon. Duncan Gay: You are a disgrace.
The Hon. IAN MACDONALD: Once more the Deputy Leader of the Opposition interjects. The clear fact of the matter is that—
The Hon. Duncan Gay: Point of order: This is a serious question asked by one of his colleagues about what is happening with farmers and what the Government is doing about this situation. The Minister is making a fuss of it and deliberately referring to political matters that have nothing to do with the question.
The PRESIDENT: Order! I remind the Minister not to be diverted by interjections, which are disorderly at all times. The Minister's time for answering the question has expired.
FIREARMS TRAFFICKING
The Hon. ROBERT BROWN: My question without notice is addressed to the Minister for Roads, representing the Minister for Police. Is the Minister aware that on 27 April this year in a Sydney Morning Herald opinion piece Professor Simon Chapman and Phillip Alpers from the School of Public Health at the University of Sydney claimed to have found a 70 times faster decline in the rate of firearm homicide after the 1996 Howard-Carr gun laws were introduced? Noting the statement on Radio National's Law Report by New South Wales Bureau of Crime Statistics and Research Director Dr Don Weatherburn that Chapman and Alper's claims were incorrect, and given that the British Journal of Criminology publication "Gun Laws and Sudden Death: Did the Australian Firearms Legislations of 1996 Make a Difference?", written by Dr Jeanine Baker and Ms Samara McPhedran, cleared up these mathematical inaccuracies and showed that the Howard-Carr gun laws, aimed solely at law-abiding firearms owners, did not result in any significant acceleration of the downward trend in firearm homicide, will the Minister for Police inform what steps the New South Wales Government is taking to reduce illicit firearm traffic into and within this State? [Time expired.]
The Hon. ERIC ROOZENDAAL: I will refer that question to the Minister for Police for an appropriate response.
TWEED HEADS DISTRICT HOSPITAL BED SHORTAGE
The Hon. JENNIFER GARDINER: My question without notice is directed to the Minister for Health. Is he aware that a chronic bed shortage at Tweed Heads District Hospital is forcing patients to wait in hospital corridors for up to 48 hours, even when a surgeon and operating theatre are available, but there is nowhere for patients to lie down after surgery? When will the Government allocate planning funds for stage 4 of that hospital redevelopment, and when will the additional beds that are envisaged by stage 4 become operational? What plans are there for that hospital to help address the rapidly growing population on the far North Coast? 4344 LEGISLATIVE COUNCIL 21 November 2006
The Hon. JOHN HATZISTERGOS: It is nice to know that Opposition members are interested in new hospitals given that they closed down or downgraded 30 of them when they were in government! Tweed Heads District Hospital is extremely popular. Fifty-eight per cent of the births that occur in the Tweed Heads hospital, and 30 per cent of the patients who are served by that hospital, come from over the border. The honourable member well knows that, under the Australian health care agreement, Tweed hospital and all hospitals in this State and across Australia are not in a position to deny treatment to people in need presenting themselves. The honourable member referred in particular to emergency departments, the issue on which she prefaced her question. When her party was in government the people who were immediately—
The Hon. John Ryan: What ancient history is this?
The Hon. JOHN HATZISTERGOS: The honourable member is ancient history, so he would know all about it! Of the people who immediately needed to be seen within two minutes, only 78 per cent were seen. Now, 100 per cent will be seen in two minutes. Having said all that, I will recount for the benefit of Opposition members some of the things that have happened at Tweed hospital. A $1.2 million enhancement to Tweed hospital was delivered in the last budget for additional beds. Currently an education and research building is being constructed at Tweed hospital.
The Hon. Jennifer Gardiner: Whose project was that?
The Hon. JOHN HATZISTERGOS: That joint Commonwealth-State project is being constructed in addition to the establishment of a new breast cancer clinic. I was at the sod-turning ceremony with Sandy Macdonald, who incidentally has also been knocked off by The Nationals. I am told that is because he would not stand up to the Liberal Party. He is gone and his endorsement has also been taken away.
The Hon. John Della Bosca: Has it?
The Hon. JOHN HATZISTERGOS: Yes, it has, but the Hon. David Clarke cannot boast about that one. Other benefits include a nine-bed emergency management unit at a cost of $1.8 million; expanded general surgery and orthopaedic surgery at a cost of $650,000; a 24-hour intensive care unit register at a cost of $300,000; six 23-hour extended day surgery beds at a cost of $207,000; and additional emergency medical staff at a cost of $150,000. Those enhancements in last year's budget come on top of the $36.3 million Tweed strategy, which overhauled Tweed hospital by the end of 2003.
On my recent visit to Tweed hospital I had an opportunity to speak to a number of staff. Dedicated doctors and nurses at Tweed hospital put to me a number of options that I am currently progressing. Given that the bulk of the increased demand that has occurred due to presentations at Tweed hospital also included demand from Queensland residents, it is sensible that the Queensland Government and NSW Health work together to address the needs of the Tweed and the south-eastern Queensland region. That planning forms the next stage of capital planning in northern New South Wales.
FEDERAL GOVERNMENT INDUSTRIAL RELATIONS WORKCHOICES LEGISLATION
The Hon. PENNY SHARPE: I direct my question to the Minister for Industrial Relations. Can the Minister advise the House what impact WorkChoices is having on the take-home pay of families in New South Wales?
The Hon. JOHN DELLA BOSCA: I thank the honourable member for her question as it is relevant to hard-working families in New South Wales, given that Mr Debnam, the member for Vaucluse, has never explained to the people of New South Wales why he wants to sacrifice them to WorkChoices. If elected next year, Mr Debnam has pledged to give up the one million workers in this State who are currently protected by the fair and balanced New South Wales system. That means that all New South Wales families will stand to be exploited by WorkChoices and have their wages, entitlements and lifestyles stripped away. The Iemma Labor Government is the only thing standing between Mr Howard and Mr Debnam and further attacks on hard-working New South Wales families. Mr Debnam's pledge to hand our industrial relations powers and our families to Canberra comes despite the mounting evidence of just how bad WorkChoices is. The release of the latest quarterly publication of the Australian Bureau of Statistics [ABS] has revealed that average wages are falling as a result of WorkChoices. Remember those promises of only a year ago that average wages would go up? 21 November 2006 LEGISLATIVE COUNCIL 4345
The Hon. Peter Primrose: They lied.
The Hon. JOHN DELLA BOSCA: That is one way of putting it. They lied, they were deluded, or both. Twelve months ago seasonally adjusted private sector full-time adult total earnings were $1,045 a week. Based on our current inflation rate that figure should now have risen to $1,086 a week. However, the Australian Bureau of Statistics reported that the average is $1,070, demonstrating that the average weekly wage has fallen in real terms by $16. The Howard-Debnam WorkChoices laws are delivering the result that they were designed to achieve—lower wages and conditions with the low paid hit the hardest. We have an inflation rate of 3.9 per cent, yet WorkChoices has delivered only a 2.4 per cent increase in full-time adult earnings in the private sector.
As Australian workplace agreements [AWAs] strip away the overtime, loadings and allowances that families rely on and take-home pay is being further eroded. The Commonwealth's own survey in the first few months of the WorkChoices regime showed that every AWA cuts away at least one protected award condition and 16 per cent traded away every award condition. So it is no wonder that the ABS is now reporting wages as falling in real terms. The survey conducted by the Government's own employment advocate also revealed that 64 per cent of agreements did not retain the leave loading, 63 per cent did not retain penalty rates, 52 per cent did not retain shift loadings, 44 per cent did not retain substitute public holidays, 41 per cent did not retain gazetted public holidays and 27 per cent removed public holiday pay. Remember that Opposition members said I was fibbing when I said that they would abolish Christmas? Well, 41 per cent of workplace agreements did not retain gazetted public holidays.
In the first year of WorkChoices, rates for the lowest paid are falling even further behind. Retail workers' wages failed to keep pace with inflation; they earned 0.8 per cent less than the year before. Retail workers have some of the lowest wages, the poorest conditions and the least job security of any group of workers in the work force. The Howard-Debnam WorkChoices laws are making their lives much worse. Added to this hardship is John Howard's triple whammy of three interest rates rises in just 12 months. While Mr Howard and Mr Debnam are intent on hurting workers and their families, the Iemma Government is doing all it can to shield New South Wales from WorkChoices.
So far the Iemma Government has introduced new laws to protect front-line public sector workers like nurses, TAFE teachers and ambulance officers. It has passed new laws to ensure that young workers under the age of 18 are brought under the protection of the New South Wales industrial relation system and that injured workers are protected. This Government is also maintaining its fair and effective State industrial relations system as an alternative to the complex, costly and damaging Commonwealth model. WorkChoices is a direct attack on the Australian way of life and Australian culture and the tradition of a fair go. The Iemma Government rejects it and will always reject it.
DENTAL STUDENTS TRAINING
The Hon. Dr ARTHUR CHESTERFIELD-EVANS: My question without notice is directed to the Minister for Health. Now that the University of Sydney has almost doubled its student intake in 2007, will there be any more training dental chairs at dental hospitals? What arrangements have been made to fund extra training staff?
The Hon. JOHN HATZISTERGOS: The number of Commonwealth-supported places at the Sydney dental school is 45; the rest of the places are full fee paying. The 40 additional places, which I understand the Commonwealth has agreed to fund, are being allocated for dentistry and for the bachelor oral health program. I have spoken to the Dean of the Faculty of Dentistry of the University of Sydney, as has the Chief Dental Officer, and we are committed to ensuring that the clinical placement needs of the university are met. We asked for those places and achieved them at the Council of Australian Governments, and we are working to progress that. By the way, I indicate that we are currently providing clinical training for some South Australian graduates. In any event we are committed to working through this issue and to ensuring that these needs are met.
PUBLIC HEALTH FUNDING
The Hon. ROBYN PARKER My question without notice is directed to the Minister for Health. How does he expect a doctor such as Hunter ophthalmologist Dr Eugene Hollenback to maintain his commitment to the public health system when he has been told that he cannot operate until February, potentially leaving his patients with seriously impaired vision or even blindness? How is Dr Hollenback to treat his patients when he 4346 LEGISLATIVE COUNCIL 21 November 2006
has been told there is funding for only three patients a month from February but he is getting about 100 new referrals each year?
The Hon. JOHN HATZISTERGOS: A lot of research went into that question. Since 2003 the Hunter New England Area Health Service has funded the vitreo-retinal surgery undertaken by a specialist ophthalmic surgeon in Newcastle. Before this, patients from the Newcastle area travelled to Sydney to receive the treatment. I am advised that when the service was established in 2003 the surgeon estimated that about 20 patients a year would require this type of specialist treatment, and a limit was set on that basis. I understand that each year the area health service plans and reviews its surgical program. This financial year the surgeon has been advised— this is the surgeon's own advice—that 50 operations can be performed, with patients prioritised according to clinical need. I am advised that the ophthalmic surgeon operated on more patients in the first half of this year than planned for originally and that many of the surgeon's referrals—the surgeon looks after his own list—are coming from outside the region served by the Hunter New England Area Health Service.
From time to time specialty services may be available on a limited basis only, and some patients who require this surgery in the next few months will be given access to facilities in Sydney—as was the practice before the service was available in Newcastle. The area health service has advised that it continually prioritises its health resources to ensure that it delivers high-quality health care to the people who need it most. The Hunter New England Area Health Service will continue to work with the surgeon to provide this important specialist service to the people of Newcastle. I am advised that the area health service has arranged to meet the surgeon on 1 December to review his waiting list, waiting list management processes and targets for the remainder of 2006-07. They will be managed in accordance with the waiting list policy.
PRIVATE HEALTH INSURANCE
The Hon. KAYEE GRIFFIN: My question is addressed to the Minister for Health. What is the latest information on changes to private health insurance in the wake of the Australian Health Ministers Conference?
The Hon. JOHN HATZISTERGOS: The New South Wales Government is a longstanding advocate of the need to reform the rules surrounding private health insurance. It is vital that funding arrangements keep up with the latest developments in models of care. In general, I support the changes proposed in the Commonwealth Government's draft private health insurance bill. In fact, for a number of years the New South Wales public health system has been providing the types of care that will now be covered by these reforms. For example, we have made significant investments in a range of programs that deliver health services, including post-operative care, the provision of intravenous antibiotics for infections, early discharge following the birth of a child, the provision of renal dialysis at home and the management of acute cardiac conditions. Our primary and community health staff also offer a substantial range of programs to people in their homes, including chronic disease management. We also provide many hospital services, such as chemotherapy, on a non-admitted basis.
While I support the general direction of the reforms, I am nevertheless concerned about some provisions of the bill that seriously jeopardise the interests of patients while massively increasing the power of health funds. In particular, I am very concerned that the proposed changes will undermine both patient choice and the primacy of clinical decision making—and this bill is proposed by a Government that talks about choice! The Federal Government says that it wants people to have a choice, but the only choice they will get under this draft bill is the choice that the health fund gives them. Instead of supporting the two pillars of our health care system, the proposals in the draft bill increase the power of health funds to direct the type of care available to patients and where that care can be administered, including the power to accredit and credential services. This is the first step along the United States style of "managed care", which benefits only private health funds. The health insurance funds made a submission to the House of Representatives about the changes, in which they said:
… insurers should be able to choose whether and which services they will fund … to allow insurers to determine which services would be cost effective.
That is straight-out insurance advocacy. We are talking about health insurance, not car insurance. Some car insurers say, "We'll choose your panel beater", but the health insurance companies want to dictate who will treat patients and the circumstances in which they will receive their treatment. I am not the only one who holds this view of the proposed legislation. The Australian Medical Association responded to Tony Abbott's proposed changes by expressing its "vigorous opposition to measures which surreptitiously or inadvertently increase the powers of Funds vis-a-vis providers". The association also argued that it was strongly opposed to "any opening 21 November 2006 LEGISLATIVE COUNCIL 4347
for Funds to develop products that determine treatment options or locations". The proposed changes also threaten the legitimate and ongoing role of the public sector in providing health care services to privately insured patients. I am particularly concerned about the likely adverse effects of the changes on access to services by privately insured patients in rural areas or areas where the public sector is the only provider of health services.
I was disappointed that Tony Abbott failed to bring these proposed changes to the Australian Health Ministers Conference for discussion before he released the draft bill. I had to put the issue on the agenda after the Federal Government failed to do so, arguing that it was none of our business. The Federal Minister for Health and Ageing must give the people of New South Wales assurances regarding his changes. In particular, he must assure the people of New South Wales that the changes will not result in a reduction in the quality of care that patients receive, nor an increase in the risk to patient safety; will not prevent patients from being able to access their private insurance for treatment received in public hospitals or from other public providers; will not operate as disincentives for people to access the new models of community-based care where appropriate; and will not operate to subordinate patient choice or clinical decision making to the power of the health funds. I am pleased that the Australian Health Ministers Conference reaffirmed the principle that clinicians and patients have the power to determine appropriate types of care, not the health funds.
NATIVE VEGETATION REGULATIONS
Mr IAN COHEN: My question is directed to the Minister for Natural Resources, Minister for Primary Industries, and Minister for Mineral Resources. Does the Minister agree that the changes the Government forced through Parliament in relation to the invasive native species module of the Native Vegetation Regulations did not have the backing of Jeff Angel or his ministerial review committee? Why did the Minister claim, in answer to a question asked by me on 26 October, that he had that support? The report fails to set out adequately how the changes will improve or maintain environmental outcomes, which is the object of the Act, and three prominent environment organisations—Total Environment Centre, the Wilderness Society and World Wildlife Fund—have condemned the changes. Can the Minister explain how the broad-scale clearing of native vegetation followed by the planting of exotic species will benefit biodiversity? Is the Minister able to name a single species in New South Wales that will benefit from the changes, which essentially facilitate native habitat destruction?
The Hon. IAN MACDONALD: That was rhetoric of a ferocious kind! I say straight out to Mr Ian Cohen that the changes that the Government has put into effect will produce a very workable system that will benefit both producers and the environment. As to the other point in his question, during question time on 26 October there was considerable discussion about the Government's latest groundbreaking reforms to invasive native scrub [INS] management. These changes were based on the recommendations made by the INS review group, chaired by Dr Denis Saunders, which were subsequently endorsed by the independent Natural Resources Commission. I stated that Jeff Angel, in his capacity as a member of the native vegetation ministerial review group, made recommendations in relation to this matter. That is entirely correct. In its consolidated report of October 2006 the ministerial review committee recommended that the Government "consider the proposed amendments of the INS tool as advised by the relevant agencies and the NRC". That is entirely consistent with my statement. In fact, there was a unanimous recommendation by the ministerial review committee that the relevant committee consider the INS report. That is exactly what the New South Wales Government has done— in fact, we have endorsed the report.
The INS changes protect the environment while giving farmers a practical and flexible system within which to work and get on with the job of farming. The consolidated report is on the Department of Natural Resources web site. Mr Ian Cohen might try reading it to get a bit more information on the matter than he revealed in his rather limited question. The report endorses the New South Wales Government's native vegetation reforms and notes that the system is working. That is why Mr Ian Cohen is feeling so aggrieved. Despite all his scaremongering, stakeholders have come forward to note that the system is working. Instead of knocking the system, Mr Ian Cohen might try getting behind the reforms, reading the science and contributing to the debate.
Mr IAN COHEN: I ask a supplementary question. In a letter to Adam Badenoch, Mr Jeff Angel wrote:
I would like a correction (below) from the Minister about his statement in Parliament yesterday that I and the MRC supported the Saunders INS recommendations.
What the hell did the Minister thinking he was doing?
Surely the Minister for Natural Resources owes the man an apology. 4348 LEGISLATIVE COUNCIL 21 November 2006
The Hon. Don Harwin: Point of order: The question is clearly out of order. It is clearly not a supplementary question. It did not ask for the elucidation of any part of the Minister's answer. It just put extra information onto the record, plus it contained argument.
The PRESIDENT: Order! The question was not a supplementary question and is, therefore, out of order.
MINIMUM WAGE
The Hon. DON HARWIN: My question without notice is directed to the Minister for Industrial Relations. What action has the Minister taken to ensure minimum wage workers in New South Wales are not further disadvantaged by his decision to urge the Industrial Relations Commission to come to an early minimum wage determination that has left New South Wales minimum wage earners $7 per week worse off than workers under Federal awards or agreements? What action has the Minister taken to ensure that in future the New South Wales union movement is not able to hijack Government policy and force the Minister to take action against his will?
The Hon. JOHN DELLA BOSCA: I relish the opportunity⎯
The PRESIDENT: Order! There is so much chatter and I did not hear the question.
The Hon. JOHN DELLA BOSCA: I could hardly hear the question myself, but I will do my best to answer it. The fundamental point of logic behind the honourable member's comments appears to be about the Fair Pay Commission. Government members, including the Premier, are on record stating what is wrong with the WorkChoices approach to the determination of wages.
The Hon. Charlie Lynn: They have never had a job. What would they know?
The Hon. JOHN DELLA BOSCA: I have had more jobs than you have⎯and I have been sacked from fewer of them than the Hon. Charlie Lynn.
The PRESIDENT: Order! I call the Hon. Charlie Lynn to order for the first time.
The Hon. JOHN DELLA BOSCA: We know how you got calluses on your hands, Charlie! The fundamental point that the Hon. Don Harwin has asked about is the determination of minimum wages. The simple fact of the matter is that the WorkChoices so-called reforms institute something called the Fair Pay Commission. The basis on which the Fair Pay Commission makes its wages determinations specifically excludes the grounds of fairness and excludes a social determination of wages. A basic principle of Australian wages determination for 110 years has been the notion that if one participates in the economy on a full-time basis one gets back a dignified remuneration. In fact, what we say is when one puts in to the economy one gets back some fairness and what one put in. The Coalition is saying that ordinary Australians do not get what they put in any more; they get what some minion, what some flunky from the Chamber of Commerce in Melbourne, trots out as some sort of economic theory that suggests that the market will deliver a fair wage. If there has ever been a delusional policy position it is that one.
Australian culture, the very basis of the civilisation we describe as Australian, and everything good about Australian values is based on the values that emanate from workplace fairness. At the beginning of the last century Australia was federated and the founding fathers created the notion of an Industrial Relations Commission, and created those notions about a fair day's pay and fair remuneration. They created the Australian ethos and Australian values. John Howard, the Coalition in this Chamber and Peter Debnam are trying to do away with them. In March 2007 the Government will stop them from doing so, and it will also stop John Howard.
If honourable members have further questions, I suggest they put them on notice.
POLICE RESOURCES
The Hon. ERIC ROOZENDAAL: Earlier in question time the Hon. David Oldfield asked whether the Government would consider non-police personnel operating radar equipment for operations currently 21 November 2006 LEGISLATIVE COUNCIL 4349
undertaken by police. The Minister for Police advises me that these Lidar operations are most appropriately undertaken by police.
DEFERRED ANSWERS
The following answers to questions without notice were received by the Clerk during the adjournment of the House:
RAIL DIGITAL COMMUNICATIONS SYSTEM
On 17 October 2006 the Hon. John Ryan asked the Minister for Commerce a question without notice regarding the rail digital communications system. The Minister for Commerce provided the following response:
I have been advised by the Minister for Transport that the answer to the Honourable Member's question is:
(1)–(2) The Commission of Inquiry did make such a recommendation. The Government indicated its support for such an approach and has been working towards implementing a digital train radio system.
Timeframes for completion of implementing the recommendations made by the Waterfall Inquiry are reported publicly by the Independent Transport Safety and Reliability Regulator. These reports are tabled in Parliament and are available on ITSRR's website.
(3) On November 1, 2006 the NSW Government announced that a digital train radio system would be commissioned, using spectrum purchased from the receivers of abandoned telecommunications company OneTel.
The new system will meet the Waterfall Special Commission of Inquiry recommendation that, all train drivers, signallers and supervisors of trackside work gangs in NSW be able to communicate using the same technology.
The decision has been informed by extensive work undertaken by RailCorp in consultation with NSW Treasury and the Department of Commerce.
RAINWATER TANK REBATES PROGRAM
On 17 October 2006 the Hon. David Oldfield asked the Minister for Natural Resources, representing the Minister for Water Utilities, a question without notice regarding the Rainwater Tank Rebates Program. The Minister for Water Utilities provided the following response:
I am advised that:
Sydney Water's Rainwater Tank Rebate Program has achieved positive results, with more than 26,000 rebates issued and annual water savings of over 1,000 million litres. The rebate has encouraged the purchase of rainwater tanks by Sydney Water customers who would not have initially considered installing a tank.
In October 2006, the rebate was increased to a maximum of $800 to encourage customers to go one step further and connect the tank to their internal fittings, such as toilets and washing machines.
However, the rebate program does not stand alone. It is a component of Sydney Water's Water Conservation and Recycling Program, which has been developed and implemented to support the most cost-effective measures to save water and reduce demand.
The policy of providing only one rebate per property, therefore, supports the application of funds to the most cost-effective conservation programs and provides an equitable spread of resources throughout the community.
This mix of programs is making real progress. As at June 2006, Sydney's water consumption has been reduced to 341 litres per capita per day – a marked decrease from the 506 litres per capita per day of June 1991.
These programs form part of a broader range of initiatives and measures aimed at reducing water consumption under the NSW Government's Metropolitan Water Plan. Not just Sydney Water, but a whole-of-government effort will continue in this regard.
MAROUBRA ASSAULTS
On 18 October 2006 the Hon. Dr Peter Wong asked the Minister for Industrial Relations, representing the Premier, a question without notice regarding the Maroubra assaults. The Minister for Industrial Relations provided the following response:
NSW Police advise that police responded to this incident promptly and comprehensively. In addition to the immediate management of the victims' welfare, investigating police conducted forensic and identification procedures, took statements from all victims and witnesses, and obtained CCTV footage. Investigations are continuing.
Eastern Beaches Local Area Command and Randwick City Council participate in the Premier's Crime Prevention Partnership, a multi-agency collaborative arrangement that aims to reduce the incidence of non-domestic assaults, including alcohol-related and racially motivated attacks. 4350 LEGISLATIVE COUNCIL 21 November 2006
A number of local proactive policing strategies are linked to this initiative, including high-visibility policing operations such as Vikings, Prevent and Cleansweep which run frequently within the LAC. Eastern Beaches LAC also has a substantial commitment to Operation Beachsafe, which commenced on 22 October 2006 and runs throughout the summer months, with a focus on high visibility policing operations.
These operations are in addition to the daily intelligence driven rostering and deployment of police.
SUPPLEMAX TESTOSTERONE ADVERTISEMENTS
On 18 October 2006 the Hon. Robert Brown asked the Minister for Health, representing the Minister for Fair Trading, a question without notice regarding the Supplemax testosterone advertisements. The Minister for Fair Trading provided the following response:
Fair Trading, in co-operation with other regulators, maintains an on-going substantiation notice program. The function of this program is to carefully monitor claims and representations made by traders which operate in various industries. Where appropriate, Fair Trading can issue a notice to a trader which places the onus upon the trader to provide substantiation as to the accuracy of the trader's claims or representations made in connection with the promotion of the trader's products or services.
Court action could ensue if the trader either fails to satisfy Fair Trading as to the correctness of its claims or provides false or misleading information.
I am advised that Fair Trading has been monitoring the promotions of Supplemax Pty Limited, however it has not considered it necessary to take any action under the Fair Trading Act at this stage.
GROUNDWATER USE IN MINING
On 18 October 2006 Mr Ian Cohen asked the Minister for Natural Resources a question without notice regarding groundwater use in mining. The Minister for Natural Resources provided the following response:
A licence under Part 5 of the Water Act 1912 is required for aquifer interference activities including the extraction of water and disposal of water in addition to the provisions of Part 3A of the Environmental Planning and Assessment Act 1979 which apply to mining developments.
RENEWABLE ENERGY
On 25 October 2006 Mr Ian Cohen asked the Treasurer, representing the Minister for Energy, a question without notice regarding renewable energy. The Minister for Energy provided the following response:
On Thursday 9 November 2006 the Premier announced a NSW Renewable Energy Target. The target is for renewable energy to make up 10 per cent of the electricity consumed in NSW by 2010 and 15 per cent by 2020.
Questions without notice concluded.
LIEUTENANT-GOVERNOR'S SPEECH: ADDRESS-IN-REPLY
Presentation
The PRESIDENT: Order! I inform members that arrangements have been made for the House to present their Address-in-Reply to the Lieutenant-Governor's speech on opening the session. It will take place at Government House tomorrow at 3.30 p.m.
SCULPTURE BY THE SEA EXHIBITION
Personal Explanation
Mr IAN COHEN, by leave: During question time today it was said that there is a picture showing me sitting next to a melted Mr Whippy van. I explain to the House that it was a prize-winning piece of artwork at Tamarama Beach as part of the Sculpture by the Sea exhibition. The sculpture was a melting Mr Whippy van, a creative and successful piece that won a prize. It fitted well with the sense of humour of the Greens, so I sat next to the van with a sign that said, "Greenhouse equals no ice cream". It was certainly getting the point across in an appropriate forum of satire. It has a serious message at the same time. It is part of art and part of humour to make artful social comment to get a point across. I object to the concept that this art-attack, as it might be called, would somehow scare children. I resist that. Such an accusation is a childish reaction. Certain people in this House fail to recognise art and its importance in the conveyance of ideas. If the Minister can find a photo on my web site showing that I cannot understand Green policies—
Leave withdrawn. 21 November 2006 LEGISLATIVE COUNCIL 4351
CRIMES AND COURTS LEGISLATION AMENDMENT BILL
Second Reading
Debate resumed from an earlier hour.
The Hon. PETER BREEN [5.06 p.m.]: Prior to question time I was drawing attention to the proposed amendment to the Civil Liability Act that is covered in the Crimes and Courts Legislation Amendment Bill. Currently the Civil Liability Act provides for the exclusion of civil liability in respect of an intentional act that is done with intent to cause injury or death or that is sexual assault or other sexual misconduct. The amendment seeks to introduce the words "the person" into that provision. I spoke to the bill prior to question time. I have since had the opportunity to speak with the Bar Association about the proposed amendment. The Bar Association has confirmed what appears to me to be the basis for the Opposition's amendment⎯that is, that this provision arises out of Budjuso v State of New South Wales, a case in which an inmate at Silverwater prison was seriously assaulted, suffered a fractured skull and was left with brain damage.
He received $175,100 compensation from the District Court, but only after the State of New South Wales had opposed his claim on liability and had taken that action all the way to the High Court and lost. Justice Sully of the Supreme Court has made declarations that provisions of the Civil Liability Amendment (Offenders Damages Trust Fund) Act 2005 and the Civil Liability Act did not apply to Mr Budjuso's claim because, amongst other reasons, the claim was exempt from the provisions of the Civil Liability Act. This proposed amendment in the bill seeks to intervene in that decision. At the same time, the State of New South Wales has filed a notice of appeal to the Court of Appeal. It is inappropriate, in my opinion, for the State to intervene in judicial proceedings by way of legislation, particularly when that legislation involves a retrospective effect of the legislation.
The Government's tort law reform agenda has been to standardise the way in which injured person's are compensated for personal injuries. However, the amendment before the House will not just include protections for prisons and the Department of Corrective Services, but will also include protection for hospitals, schools and other public authorities where people are involved in intentional acts or acts involving sexual assault. The length and breadth of the Government amendment is far wider than was indicated in the second reading speech. I understand discussions have taken place between the Government and the Opposition about the amendment. I simply wish to confirm to the House that the amendment achieves what it appears to seek to achieve⎯that is, the removal of tort liability from public authorities in circumstances where they should be responsible on the basis that they bear full control and responsibility on behalf of the people of New South Wales.
During debate on the Civil Liability Bill in 2002 the Hon. John Hatzistergos indicated to the House that the tort law reform provisions in the Civil Liability Bill were limited and were intended to be uniform in their application. There was then, and remains, a proper and appropriate policy basis for exemption in respect of injuries sustained in the circumstances indicated by the honourable member during the parliamentary debate in 2002. The legislative amendment before us now seeks to cut across that policy objective. I urge members of the House to support the Opposition amendment so that the liability of public authorities in the circumstances of the case as I have suggested will not be removed by this bill. In cases where impecunious people are responsible for sexual assault and for injuries caused intentionally, responsible authorities should bear the onus of compensating victims, and not leave them without compensation.
Reverend the Hon. Fred Nile: The person who committed the offence should pay compensation.
The Hon. PETER BREEN: I agree. But if the person who committed the offence is impecunious— which is the fact in most cases, particularly those involving prisoners—why should the victims be denied compensation?
Reverend the Hon. Fred Nile: Why should the taxpayers foot the bill?
The Hon. PETER BREEN: Because the taxpayers pay in every other case, as suggested in the remarks made by the Hon. John Hatzistergos when the tort law reform bill was enacted. The amendment before us seeks to creep across the 2002 tort law reform policy and create a new policy whereby the State avoids its otherwise important responsibility to pay victims compensation where offenders who are impecunious are in the employ or are the responsibility of the State. It should not be that victims are required to go whistle, which is 4352 LEGISLATIVE COUNCIL 21 November 2006
what would happen under the Government amendments. I urge members to support the Opposition's amendment.
The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [5.12 p.m.], in reply: The Hon. David Clarke, judging by his comments, seems to propose a separate system of negligence whereby the State is the defendant. Other defendants will be dealt with under part 1A of the Civil Liability Act but the State, and only the State, could be sued at common law. His proposal is contrary to the interests of the personal responsibility amendments to the Act to limit the potential liability of a public authority to avoid risk, given the fact that they carry out services with necessarily limited resources. I thank honourable members for their comments. I commend the bill to the House.
Motion agreed to.
Bill read a second time.
In Committee
Clauses 1 to 5 agreed to.
The Hon. DAVID CLARKE [5.15 p.m.]: I move Opposition amendment No 1:
No. 1 Pages 5-7, schedule 1.5, line 1 on page 5 to line 34 on page 7. Omit all words on those lines.
As I indicated earlier, the amendments to the Civil Liability Act will prevent people who sue the Government for negligence in relation to assaults that cause injury or death or who sue for sexual assaults from recovering full common law damages. As a result of the Government's amendments, they will only be able to recover the capped damages available under the Civil Claims Act. The Government's amendments go too far. The original understanding was that these amendments were designed to prevent the Government from being sued when prisoners assault each other. But, with its amendments, the Government has gone overboard. It is exempting itself from a wide range of possible negligence actions, and on top of that it is making the amendments retrospective. Why is it endeavouring to make these changes retrospective? To nullify a case currently before the Supreme Court, that is why.
I am talking about the tragic circumstances surrounding the death of the late Mr Rose. Having not long been separated from his wife, he was living in a national park in a tent shared with a person with whom he was socially acquainted, Mr Pettigrove. As a result of what could be called a psychotic incident, Mr Pettigrove was admitted to the mental health in-patient unit of Taree public hospital. Even though his condition was diagnosed by hospital staff as "exacerbation of chronic paranoid schizophrenia", and even though a hospital doctor expressed concern that Pettigrove could do harm to himself or others, he was discharged a day or so later into the care of Mr Rose in order that Pettigrove be driven to the home of his mother.
The same day Mr Pettigrove attacked Mr Rose and strangled him to death. He was charged with murder, but later hanged himself in Long Bay gaol, before being tried. The family of the late Mr Rose commenced action in the Supreme Court of New South Wales, claiming common law damages against the New South Wales Government for its alleged negligence in releasing a person who had been diagnosed as a danger to himself and to others back into the community. The case is currently pending, but as a result of the amendments proposed by the Government—amendments that are retrospective in their affect—the Rose family will be estopped from proceeding with their claim for full common law damages, and others in similar situations will be estopped in future as well.
What a great miscarriage of justice that would be. What a great miscarriage of justice it would be that other citizens who suffer personal injury as a result of acts of violence in circumstances where negligence can be attributed to the State Government will be barred from instituting common law proceedings against the Government to obtain common law damages. No wonder the New South Wales Law Society opposes the amendments put forward by the Government, and no wonder the New South Wales Bar Association has objected to them as well.
Clearly, the Government's civil liability amendments go too far. The Government is endeavouring to exempt itself from a whole range of possible negligence actions for common law damages, not only possible 21 November 2006 LEGISLATIVE COUNCIL 4353
future claims but also past claims, and even claims that are already being litigated in our courts. This is an intolerable situation. It is an affront to our legal system. It should not be allowed, which is why the Opposition has moved the amendment that it commends to the Committee.
The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [5.19 p.m.]: The Opposition's stance on retrospectivity in schedule 1.5 to the bill contradicts its history of supporting retrospective amendments to legislation. When the Civil Liability Amendment (Offender Damages) Bill was before the Parliament in 2004 when minor amendments were made, the Opposition advocated greater retrospectivity provisions, which it again pressed for in 2005. In 2004 the Opposition introduced an amendment in both Houses that would have retrospectively applied to the provisions of the Civil Liability Amendment (Offender Damages) Bill and all offender damages compensation cases that had commenced at any time, not limited to the date of the Minister's announcement of those amendments.
In Committee on 31 March 2004 the honourable member for Davidson said, "The Government will now leave itself even more wide open to making large payments because the principle of retrospectivity does not apply to legislation." The honourable member for Gosford supported him. On 23 March 2005 the honourable member for North Shore said, "I ask those on the other side to pay a little bit more attention to putting legislation together and to considering retrospectively closing off the ability for criminals to receive excessive payouts for minor injuries." The honourable member for North Shore might ask her side to pay a bit more attention when moving amendments to bills and to consider the effects of these amendments on the victims of crime, who will be the ones most disadvantaged if the Opposition amendment is passed.
The proposed amendment has retrospective effect so that the offender damages provision in the Civil Liability Act 2002 will apply consistently and fairly to all offenders regardless of when they were subject to the criminal sanction that made them an offender, consistent with the original intention of part 2A of the Civil Liability Act 2002. The amendment will retrospectively restrict an exemption from certain provisions of the Civil Liability Act 2002 to only those matters that personal responsibility amendments initially anticipated—an intentional tort committed by a tortfeasor, not negligence in allowing a tortfeasor to commit an intentional tort of assault. The Civil Liability Amendment (Personal Responsibility) Act 2002 intended to limit the potential liability of public authorities, given the fact that they carry out services with necessarily limited resources. The amendments retrospectively applied to give effect to the original intent of the legislation in a way that it was always understood, until the court in Bujdoso's case found otherwise.
Any persons adversely affected by the provisions of the bill are affected adversely only because they were inadvertently favoured by a court decision holding that they were not subject to the Act. This status is not justified. The proposed amendment makes it clear that part 2A of the Civil Liability Act 2002 applies to all current and former offenders, as it was originally intended. Currently, litigants are aware of the offender damages provisions and have launched, or maintained, their actions despite limitations imposed on them by the provisions. Others may have discontinued actions in light of these provisions. It would be unfair to inadvertently reward some litigants and not others on the chance application of a particular commencement date of the Crimes (Administration of Sentences) Act 1999, defining whether or not the litigant is an offender in custody. The Government opposes the amendment. The effect of the Opposition's amendment will be to exclude from the Civil Liability Act 2002 all actions in negligence associated with intentional assaults. An intentional act, including an intentional assault, is not negligence; it is an intentional tort. The existing avenue of litigation for an intentional tort is at common law.
The Opposition's amendment will make any action in any way related to an intentional assault able to be dealt with only at common law. The intention of existing section 3B (1) (a) is to exclude liability for the perpetrator of an intentional act from the negligence provisions of the Act. The logic is that a perpetrator of an intentional assault should be sued at common law because the assault was intentional. The perpetrator should not be able to take advantage of the provisions of the Civil Liability Act that limits liability for negligence. The mischief with the existing Act is that all related liability is also excluded because the existing words "in respect of" have been held by the Supreme Court to be not sufficiently precise to attract exemption only to the perpetrator. The Opposition's amendment, if passed, will mean that every victim of an intentional assault will look for someone with deep pockets to sue in negligence for "in some respect" allowing the intentional assault to occur.
If somebody is assaulted in a shop or a store the victim will want to sue the store for not having sufficient security officers to prevent the assault. Naturally, the store would claim on its public liability 4354 LEGISLATIVE COUNCIL 21 November 2006
insurance policy. If somebody is assaulted in a park, the local council will be sued for not preventing it. If somebody is assaulted in a private residence, the householder can be sued for not preventing it. Any number of occupiers can be sued under the same principle. Why will they be sued? Because they are insured. Honourable members will remember that one of the reasons the Civil Liability Act was passed in the first place is that public liability insurance premiums were going through the roof because of payouts and lawyers fees. The examples I have given involve cases in which there really is an intentional assault. But that will not be the end of it.
People will look for any reason to categorise the accident as an intentional assault so that they can sue at common law rather than under part 1A of the Civil Liability Act. The statutory limitations would no longer apply, payouts would go through the roof again, as would our insurance premiums and we would be back to where we were five years ago. People who slip and fall will allege that they were intentionally pushed, which would exclude them from the Act. But by whom were they pushed? A person or persons unknown. They did not get the details. This is the scope of the Opposition's amendment. Instead of rejecting some minor amendments to give effect to the original intention of the legislation, it wants to turn the legislation on its head.
The Hon. PETER BREEN [5.26 p.m.]: The Minister made a few remarks that seem to be inconsistent with the original intention of the legislation. In 2002 the Hon. John Hatzistergos, when talking to a proposed amendment at that time and in relation to this section of the Civil Liability Act, said, "The proposed section as it stands exempts a narrow category of intentional torts from the bill, those torts which are intended to cause injury or death, or that are sexual assault." The original intention of the legislation was to exclude those particular torts from the tort of negligence, to which the Civil Liability Act applied more generally. But today the Government is radically changing that policy. Exclusions from the legislation that related to intentional torts, or torts causing injury or death as a result of sexual assault are being brought under the umbrella of the Civil Liability Act. That is a big shift in policy, and one that is clearly outside the original intention of the legislation, certainly as contemplated by the remarks of the Hon. John Hatzistergos during debate on that legislation. The list of examples the Minister reeled off—someone in a store or in a park being injured by an intentional tort or assault—related to private organisations. But what he failed to say and recognise is that they also apply to public authorities.
The Hon. Tony Kelly: Like a council that owns the park.
The Hon. PETER BREEN: The Minister mentioned a park, but he should also mention hospitals, prisons and the Legislature. If someone were injured in the Legislature as a result of an intentional tort or a sexual assault, that person would be excluded from claiming the very damages that were contemplated by the legislation when it was passed in 2002. If this is the policy change, which it appears to be, then to deal with it in an amendment to an ambulatory bill that involves 20 or so pieces of legislation is quite deceptive. There ought to be more discussion and more analysis of what is clearly an important provision that changes the policy that has been contemplated in the legislation.
The Bar Association's advice today states that by extending the exemption under section 3B (1) (a) of the Civil Liability Act to 2002 to all persons injured by intentional acts causing injury, death or sexual assault, if that intentional act occurs, the legislation will then be treating differently persons so injured while in the care of commercial organisations and particularly public authorities, such as gaols or hospitals, to persons injured elsewhere. The legislation will be creating a two-tier regime in which persons injured by intentional act and assault will be treated in exactly the same way as people injured as a result of negligence. I do not think that is the intention of the legislation. It is wrong to suggest, as the Minister has suggested, that this amendment simply fulfils the original objects of legislation.
Reverend the Hon. FRED NILE [5.29 p.m.]: The Christian Democratic Party does not support the amendment. We share the Government's concern. If this amendment is carried, the individual will be able to sue for damages at common law. The reason the Civil Liability Act was introduced with the support of the Christian Democratic Party was that insurance payouts had gone through the roof. If someone were to suggest that it is only the Government that would have to pay, that should be as great a concern to us as members of Parliament as would anyone else having to pay because a payout from the Government is made from taxpayers' money. Members of Parliament have a duty to be good stewards of taxpayers' funds rather than opening the floodgates of litigation.
Previously we had the situation of lawyers chasing cases on a no win, no pay basis. I imagine the case cited by the Hon. David Clarke would be one of those cases. When a derelict person died in a park in tragic circumstances, subsequently the hospital was blamed. The derelict person's relatives, who sound as though they 21 November 2006 LEGISLATIVE COUNCIL 4355
took no interest at all in the individual, regarded the event as a way of making money out of the State Government. Members of Parliament have a responsibility to be good stewards of the taxpayers' money, so the Christian Democratic Party will not support the amendment.
The Hon. CATHERINE CUSACK [5.31 p.m.]: In support of the very erudite case made in favour of this amendment by my colleague the Hon. David Clarke and the examples he cited, I point out that these matters ought to be of great concern to everybody. I am disappointed that in reply the Minister responded with debating points instead of providing answers in response to the issues raised by the Hon. David Clarke. The Coalition has a series of critical debating points but I will not deal with them because they do not address the Coalition's concern and they do not bear any relevance to the amendment. The second point that the Minister sought to argue was that if the Parliament fails to agree to this minor amendment of the legislation, which I think is a 12-word amendment—
Reverend the Hon. Fred Nile: It deletes two pages of the bill too.
The Hon. CATHERINE CUSACK: Yes. But the Minister's contention is that the effect would be to overturn an entire Act and five years of practice since the reforms were undertaken. That is an absolutely ludicrous suggestion. The Minister's idea is that the whole system will collapse if what the Minister describes as "minor amendments" are not passed by the Parliament. On one hand the Minister describes the amendments as minor, but on the other hand he seems to be arguing that an entire system will come crashing down around our ears if the amendment is not supported. I submit that the Minister is exaggerating. The basis for his assertion has not been supported by substantive evidence during his reply. This is an attempt by the Minister to put a gun to the head of the Parliament. I think that is unwarranted.
We have a system of liability for two reasons—to deliver justice to victims and, very importantly, to prevent negligence from recurring. One often hears a victim or a victim's family saying that they are motivated by attempting to ensure that no other person or family will have to go through a similar experience. That is a good reason why we have a legal process that is designed to minimise the risk of recurrence. The amendment would have the effect of exempting government facilities. I make the point that we are not talking about slip and fall accidents. I resent the Minister's attempt to characterise the amendment in that manner because it is quite dishonest of him to do so. The amendment is related to intentional acts of violence. My colleague the Hon. David Clarke provided a case in point. I was hoping that the Minister would resile, admit his mistake and say that of course the Government would not deprive people of their rights. It appears that it is not a mistake at all.
The Government has no answer to the case cited by the Hon. David Clarke but instead the Minister has tried to characterise the amendment as relating to someone in a public park slipping over and consequently the ratepayers having to bear the cost of damages. Given the seriousness of the amendment, that type of response from the Government does not engender any confidence whatsoever. As I have said in previous debates on this matter, the Opposition believes that people who commit crimes and go to prison or remand facilities ought to be punished and serve their punishment, no more and no less. However, the victims groups I have consulted in relation to this amendment make it very clear that it is not about punishment beyond the court's order.
Depriving people of all of their rights by quarantining the prison system and other government facilities and preventing them from learning the lessons of negligence or from being forced to address negligence, thereby preventing future incidents, is a very backward approach. The example I cite in this context is the hepatitis C epidemic that the prisons system is perpetrating on the Aboriginal community. Because the Coalition wants offenders who have been tried and found guilty of an offence to be incarcerated and serve their time, that does not mean that victims and the remainder of the community want a hepatitis C epidemic to infect an entire and very disadvantaged group in our society. That is what is happening. Of course, there is no remedy for that.
By the Government exempting itself from liability in the case of an intentional act of violence in which it is proved that negligence has occurred, of course anyone can sue for anything they like. The system is open to that at the moment, but that does not mean that negligence can be proved. The Opposition is referring to proved negligence in which there is an intended act of violence and the negligence arises in each individual case as the circumstances are held to exist. By exaggerating, the Minister is expressing a massive vote of no confidence in our legal system. He is trying to say that if the amendment is passed, resulting in retrospectivity and the whole package put by the Government not being passed by the Parliament in its entirety, somehow the legal system will distort the legislation to the extent that someone who slips on a banana skin in a park will be able to sue. That is a nonsensical proposition. 4356 LEGISLATIVE COUNCIL 21 November 2006
The Opposition's amendment is important and it has the support of the victims groups. I regret the Minister's claim that an acceptance of the amendment will result in disadvantage to victims. The Minister has gone too far. It is clear that the legislation is not what the people want. That is why the Opposition's amendment is very important. If it were not for the end of the session avalanche, the Minister would be held more firmly to account than is possible in the circumstances.
Question—That the amendment be agreed to—put.
The Committee divided.
Ayes, 18
Mr Breen Mr Gay Ms Rhiannon Dr Chesterfield-Evans Ms Hale Mr Ryan Mr Clarke Mr Mason-Cox Mr Cohen Mr Oldfield Ms Cusack Ms Parker Tellers, Mr Gallacher Mrs Pavey Mr Colless Miss Gardiner Mr Pearce Mr Harwin
Noes, 20
Mr Brown Ms Griffin Mr Roozendaal Dr Burgmann Mr Hatzistergos Ms Sharpe Ms Burnswoods Mr Kelly Mr Tsang Mr Catanzariti Mr Macdonald Dr Wong Mr Costa Reverend Dr Moyes Tellers, Mr Della Bosca Reverend Nile Mr Primrose Mr Donnelly Ms Robertson Mr West
Pair
Mr Lynn Mr Obeid
Question resolved in the negative.
Amendment negatived.
The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [5.45 p.m.], by leave: I move Government amendments Nos 1 to 10 in globo:
No. 1 Page 8, schedule 1.7. Insert after line 1:
[1] Section 4A State Coroners and Deputy State Coroners
Omit "3" from section 4A (1). Insert instead "4".
No. 2 Page 11, schedule 1.7. Insert after line 24:
Section 4A (1) of the Coroners Act 1980 enables the Governor to appoint up to 3 Deputy State Coroners. Item [1] will enable the Governor to appoint up to 4 Deputy State Coroners.
No. 3 Page 12, schedule 1.8. Insert after line 24:
[4] Schedule 1, Part 5
Insert after Part 4:
Part 5 Provisions consequent on enactment of Crimes and Courts Legislation Amendment Act 2006
10 Application of amendment to definition of "sentence"
The amendment to the definition of sentence in section 3 (1) made by the Crimes and Courts Legislation Amendment Act 2006 extends to orders referred to in paragraph (ba) of that definition that were made before the commencement of that amendment, but does not affect any appeal proceedings or application under this Act that was finally determined before the commencement of that amendment. 21 November 2006 LEGISLATIVE COUNCIL 4357
No. 4 Page 12, schedule 1.8, line 29. Insert "Item [4] ensures that the amendment extends to orders made before the commencement of that amendment." after "that Act.".
No. 5 Page 18, schedule 1.10 [5]. Insert after line 21:
(2) The amendment to the definition of Sentence in section 2 (1) made by the Crimes and Courts Legislation Amendment Act 2006 extends to orders referred to in paragraph (ca) of that definition that were made before the commencement of that amendment, but does not affect any appeal proceedings that were finally determined before the commencement of that amendment.
No. 6 Page 19, schedule 1.10, line 28. Insert "Item [5] includes a savings and transitional provision that ensures that the amendment extends to orders made before the commencement of that amendment." after "Act."
No. 7 Page 23, schedule 1.11 [23]. Insert after line 5:
Changes to limitation period
Section 179 (3), as inserted by the Crimes and Courts Legislation Amendment Act 2006, extends to a summary offence that relates to the death of a person before the commencement of that subsection, but only if the period for commencement of proceedings in relation to the offence under section 179 (1) has not expired on the commencement of section 179 (3).
No. 8 Page 23, schedule 1.11. Insert after line 9:
Commencement
Items [20] and [21] of the amendments to the Criminal Procedure Act 1986 commence on a day or days to be appointed by proclamation.
No. 9 Page 24, schedule 1.11, line 4. Insert "Item [23] includes a savings and transitional provision that extends the amendment to summary offences committed before the commencement of that amendment if the existing limitation period has not expired." after "first.".
No. 10 Page 44, schedule 1.19, lines 7–13. Omit all words on those lines. Insert instead:
[1] Section 34 Preliminary conferences
Omit "(other than proceedings in Class 1 that are brought under section 97 of the Environmental Planning and Assessment Act 1979)" from section 34 (1).
[2] Section 34 (1A)
Omit section 34 (1A). Insert instead:
(1A) If proceedings are pending in Class 3 of the Court's jurisdiction, the registrar may, at any time on the application of the parties or on the registrar's own motion, arrange a conference between the parties to the proceedings or their representatives, to be presided over by a single Commissioner.
[3] Section 34 (3) (a)
Insert "and is to set out in writing the terms of the decision" after "decision" where lastly occurring.
[4] Section 34 (3A)
Insert after section 34 (3):
(3A) The Commissioner is to give written reasons for his or her decision under subsection (3) (b) (ii).
[5] Section 34A Proceedings to which on-site hearing procedures apply
Omit section 34A (1). Insert instead:
(1) This section applies to the following proceedings, if the proceedings have not been disposed of under section 34:
(a) proceedings in Class 1 of the Court's jurisdiction that are brought under section 96 of the Environmental Planning and Assessment Act 1979,
(b) proceedings in Class 1 of the Court's jurisdiction that are brought under section 96AA of the Environmental Planning and Assessment Act 1979,
(c) proceedings in Class 1 of the Court's jurisdiction that are brought under section 97 of the Environmental Planning and Assessment Act 1979,
(d) proceedings in Class 1 of the Court's jurisdiction that are brought under section 121ZK of the Environmental Planning and Assessment Act 1979,
(e) proceedings in Class 1 of the Court's jurisdiction that are brought under section 149F of the Environmental Planning and Assessment Act 1979.
4358 LEGISLATIVE COUNCIL 21 November 2006
[6] Section 34A (2)
Omit "to which this section applies".
Insert instead "under section 97 of the Environmental Planning and Assessment Act 1979".
[7] Section 34A (2A)
Insert after section 34 (2):
(2A) Proceedings to which this section applies (other than proceedings under section 97 of the Environmental Planning and Assessment Act 1979) are to be dealt with under section 34B, subject to subsection (6), if the Registrar at the first or a subsequent callover determines that the proceedings:
(a) have little or no impact beyond neighbouring properties, and
(b) do not involve any significant issue of public interest beyond any impact on neighbouring properties.
[8] Section 34A (4)
Insert "or (2A)" after "(2)".
[9] Section 34A (4)
Insert ", subject to subsection (6)" after "34C".
[10] Section 36 Delegation to Commissioners
Omit "(other than proceedings in Class 1 that are brought under section 97 of the Environmental Planning and Assessment Act 1979)" from section 36 (1).
Insert instead "(other than proceedings that are being dealt with under section 34A)".
[11] Section 37 Commissioners sitting with a Judge
Omit "(other than proceedings in Class 1 that are brought under section 97 of the Environmental Planning and Assessment Act 1979)" from section 37 (1).
Insert instead "(other than proceedings that are being dealt with under section 34A)".
Explanatory note
The proposed amendments to the Land and Environment Court Act 1979:
(a) will enable preliminary conferences to be held for all Class 3 matters in the Court rather than only compulsory acquisition matters, and
(b) will enable an extended range of matters to be dealt with by Commissioners at on-site hearings, namely proceedings under sections 96, 96AA, 97, 121ZK and 149F of the Environmental Planning and Assessment Act 1979, and
(c) make other minor changes.
In relation to amendments Nos 1 and 2 to the Coroner's Act, the Chief Magistrate has requested that the number of Deputy State Coroners appointed under section 4A of the Coroner's Act 1980 be increased from three to four.
The amendment will ensure that there are sufficient judicial resources to issue coronial investigation orders outside normal business hours and to support the efficient operation of coronial jurisdiction. As the appointment is made from the existing bench of magistrates there is no additional cost arising from the amendment. Government amendments Nos 3 to 6 inclusive relate to the transitional provision regarding appeals from revocation of bonds. The amendments clarify the effect of the changes to the Crimes (Local Courts Appeal and Review) Act 2001 and the Criminal Act 1912 contained in schedule 1.8 and schedule 1.10. The changes confirm that a decision to revoke a bond or any order made subsequent to revoking a bond, for example, sending the offender to prison, is a sentence for the purpose of appeal rights.
Following the decision of the Court of Criminal Appeal in July 2008 it was dubious whether such decisions were able to be appealed. A number of appeals before the District Court have been adjourned while the situation remained uncertain. Pending resolution in the District Court, judges simply did not know whether they had jurisdiction to hear appeals. Government amendments insert transitional provisions to make it abundantly clear that the changes apply to all matters including appeals that are currently on foot before the 21 November 2006 LEGISLATIVE COUNCIL 4359
courts. However, the changes do not disturb any appeals that have been finally decided before the amendments were made. The practical effect is that the District Court and Court of Criminal Appeal will be able to hear and determine any outstanding appeals.
Government amendments Nos 7 and 9 relate to transitional provisions. A number of changes to the bill result in savings of a transitional nature. The first change provides for the new limitation period contained in section 179 (3) of the Criminal Procedure Act 1986 extending to a summary offence that relates to the death of a person that has occurred before the commencement of the subsection, provided that the six months referred to in section 179 (1) had not expired upon the commencement of new section 179 (3). Government amendment No. 8 provides that the amendments in the bill relating to the introduction of statutory time frames for the expiration of arrest warrants commence on a date to be proclaimed. This is to ensure that the commencement of the provisions may coincide with the IT computer changes that were made by the New South Wales police warrant system.
Items [10] and [11] in amendment No. 10 amend the Land and Environment Act 1979 at the request of the Chief Judge of the New South Wales Land and Environment Court, the Hon. Justice Preston, to provide a flexible approach for resolving disputes. The amendments expand the current provision in the original draft of the bill and will ensure that the Land and Environment Court can make greater use of conciliation conferences and on-site hearings to resolve disputes in appropriate cases. Conciliation conferences and on-site hearings have proven to be valuable option to resolve minor disputes in a quick, cheap and just manner.
Schedule 1.20 [1] will allow conciliation conferences to be available in relation to planning appeals under section 97 of the Environmental Planning and Assessment Act 1979. Schedule 1.20 [2] will ensure that the court or the registrar will have the power to arrange a conciliation conference in class 3 matters. Item [3] of schedule 1.20 [3] will require commissioners to set out the terms of their decisions in writing. Item [4] will require commissioners to provide reasons for decisions made at conciliation conferences. Item [5] to item [11] will enable the Land and Environment Court to apply on-site hearing procedures to matters brought under sections 96, 96AA, 121ZK and 149F of the Environmental Planning and Assessment Act 1979. These proceedings involve modifications to development applications that are of a minor nature and refusals by a local council to issue construction certificates.
These disputes often involve litigants representing themselves in relatively minor disputes where it is easier for a commissioner to inspect the development site first-hand to gain an understanding of the issues rather than taking evidence at a formal court hearing. These amendments have the support of stakeholders, including the Law Society of New South Wales and the New South Wales Bar Association. These amendments will ensure that the procedures of the court are simple, accessible and meet the needs of litigants.
The Hon. DAVID CLARKE [5.50 p.m.]: The Opposition does not oppose the Government's amendments.
Reverend the Hon. FRED NILE [5.51 p.m.]: The Christian Democratic Party supports the Governments' amendments to the Crimes and Courts Legislation Amendment Bill.
Amendments agreed to.
Schedule 1 as amended agreed to.
Title agreed to.
Bill reported from Committee with amendments and passed through remaining stages.
BUSINESS OF THE HOUSE
Postponement of Business
Government Business Orders of the Day Nos 8 and 9 postponed on motion by the Hon. Eric Roozendaal. 4360 LEGISLATIVE COUNCIL 21 November 2006
ROAD TRANSPORT LEGISLATION AMENDMENT (EVIDENCE) BILL
Second Reading
The Hon. ERIC ROOZENDAAL (Minister for Roads, and Minister Assisting the Minister for Transport) [5.53 p.m.]: I move:
That this bill be now read a second time.
I advise the House that this bill was amended in the other place at the instigation of the Government. This amendment was made in response to the recent tragic death of Senior Constable Wilson on the F3. Senior Constable Wilson was conducting roadside speed enforcement operations at the time. The amendment bill will amend section 179 (12) (c) of the Road Transport (General) Act 2005 to permit small hand-held digital cameras to be used in conjunction with the light detection ranging based sensor, known as Lidar, and other speed-measuring devices. This will enable the police to use vehicle-mounted cameras to issue infringement notices when it is unsafe to stop traffic. This will help to protect the safety of police when they are working to protect the lives of motorists. As the remainder of the second reading speech that was given in the other place is unchanged I seek leave to incorporate it in Hansard.
Leave granted.
The Bill before the House primarily amends road transport legislation as defined in section 5 of the Road Transport (General) Act 2005, and the Roads Act 1993 in two major ways.
The first is by replacing the existing expression "is admissible and is evidence to the contrary" by one or other of the expressions "evidence sufficient to raise doubt" or "prima facie evidence".
The second is to require defendants who wish to challenge prosecution-presented evidentiary certificates or photographs, which contain information derived from a device like a speed camera or speed measuring device, to adduce expert evidence in certain situations.
The primary reason for these amendments is to protect and maintain the road safety benefit of speed cameras and other enforcement cameras, such as red light cameras.
Speed remains the largest single contributing factor in fatal crashes on our roads. I am advised speeding is a factor in 40 per cent of fatal crashes each year, and remains one of the leading causes of road trauma.
It is clear many drivers still refuse to slow down, despite extensive Government education campaigns, Police enforcement operations and widespread knowledge of the often tragic results of high-speed crashes.
Speed cameras are a highly effective and targeted means of deterring speeding on our roads.
I am advised statistics provided by the Roads and Traffic Authority (RTA) show fatal crashes can be reduced by 90 per cent where speed cameras are introduced. Injury crashes can be reduced by 20 per cent.
This demonstrated safety benefit shows the importance of making sure the legislation governing speed cameras is working in the public interest.
In prosecutions for speeding offences detected by speed measuring devices, it is usual for the basic elements constituting the offence to be tendered in evidence by way of a signed certificate.
This certificate allows verification that the measurement of speed was recorded by the use of an approved speed measuring device which was tested on a specified date, and that the device was found to be accurate and operating properly.
Photographs from approved camera recording devices are also tendered in evidence, accompanied by a certificate verifying that the device was inspected by an authorised person before the photograph was taken and the device was operating correctly.
Unfortunately, a series of recent judicial decisions have caused much confusion in the community regarding the evidentiary requirements in speed camera cases before the courts.
This is because in some cases the phrase "evidence to the contrary" has been interpreted so broadly as to allow any evidence whatsoever, including a mere denial, to rebut photographic and certificate evidence.
By way of illustration, the New South Wales Supreme Court case of Roads and Traffic Authority of New South Wales v Michell dealt with the phrase "evidence to the contrary" in the context of speed camera enforcement. There it was held that "even slight or unconvincing evidence" was sufficient to overrule both photographic and certificate evidence.
This has resulted in some judges and magistrates holding that a motorist's mere assertion they were not speeding is sufficient to rebut camera and certificate evidence. 21 November 2006 LEGISLATIVE COUNCIL 4361
In other words, when a defendant's contrary evidence questions the operational accuracy of a device like a speed camera, however unscientific, subjective, slight or unconvincing that contrary evidence may be, the prosecution can no longer rely on the relevant photograph or evidentiary certificate as earlier tendered in evidence to the court.
The prosecution has the onus of proving beyond a reasonable doubt that the offence was committed. The defendant does not have to establish anything. A defendant's evidence can simply be accepted by the Court and the prosecution will fail because once the photographic and certificate evidence is displaced, then there is no evidence of a speeding incident, for example.
The cases effectively hold that any evidence at all tendered by a defendant would defeat the certificate evidence of accuracy and reliability of the approved speed measuring devices and the approved camera recording devices.
The practical effect of the interpretation adopted in Michell would be to undermine prosecutions for speed camera detected offences and so significantly compromise the road safety objectives of the speed camera scheme.
Potentially, all types of prosecutions that involve the production of documentary evidence in relation to proceedings concerning allegations of road traffic offences recorded by speed measuring devices, speed cameras, public bus lane cameras, traffic light cameras or toll cameras may be affected if the present expression were not amended.
The Bill proposes replacement statutory expressions which will provide clearer guidance to the courts in determining when evidence is sufficient to raise doubt about the accuracy, reliability and proper operation of the enforcement device.
The defendant's expert contrary evidence or contention must be credible and must establish that there is a reasonable possibility that the device did not operate properly at the time of the alleged offence.
I now turn more specifically, to the expression "prima facie evidence" as provided for in the Bill in the context of road transport related criminal proceedings. I would like to point out that by adopting the expression "prima facie evidence" in road transport legislation in lieu of words "evidence to the contrary is adduced", the Bill will see the return of the expression "prima facie evidence" as it was contained in earlier road transport law.
I will provide briefly some historical background to the expression "prima facie evidence". Under the provisions of the repealed Traffic Act 1909 which was replaced by the current road transport legislation in December 1999, certificate evidence establishing that an approved speed measuring device was accurate and operating properly at the time of an alleged excess speed offence was admissible in a court of law.
By virtue of the former section 4AB of the repealed Traffic Act 1909, particulars in such a certificate were accepted as "prima facie evidence". This type of certificate obviated the need for the prosecution to always call an expert to testify that the relevant approved speed measuring device was operating accurately and reliably or properly at the time of the particular offence.
Only in cases where a defendant had presented evidence to the effect that such a device had not been accurate or reliable would it be necessary for the prosecution to call its own expert with the intention of refuting the evidence from the defendant's expert.
Similar to the role of an evidentiary certificate being used as prima facie evidence of the integrity of an approved speed measuring device, the former section 4AC of the replaced Traffic Act 1909 allowed a photograph taken by a speed camera (called an approved camera recording device in the old Act and in the current legislation) could be accepted as prima facie evidence of the matters shown or recorded on the photograph.
In addition, under that former section 4AC the contents of an evidentiary certificate could be presented to a court of law as prima facie evidence that a speed camera was found to be operating correctly at the time of an excess speed offence.
Again, similar evidentiary certificate and photographic based prima facie evidence was used in proceedings dealing with (red) traffic light offences where the offence was captured by what former section 4DA of the repealed Traffic Act 1909 called an approved camera detection device.
With the advent of the current road transport legislation, the same device names, that is, an approved speed measuring device, an approved camera recording device and an approved camera detection device were carried over into the Road Transport (Safety and Traffic Management) Act 1999.
However, the expression "prima facie evidence" was not carried over. The current expression "evidence (unless evidence to the contrary is adduced)" was instead incorporated in road transport legislation.
There was no intention to change the substance or legal effect of the legislation. This approach was similar to that adopted in other States at the time. The approach now adopted in the Bill is consistent with the national model legislation which was reflected in the Road Transport (General) Amendment (Intelligent Access Program) Act 2006 which was recently passed by the Parliament.
Where the matter in dispute between defendant and prosecutor in respect to determining whether the evidence is sufficient to raise doubt about a matter, or to rebut prima facie evidence or a presumption in the context of the provisions specified in the Bill, the defendant must call an expert.
The Bill provides that only an expert's assertion that contradicts or challenges the accuracy or reliability, or the correct or proper operation, of any of the devices to which I have referred, can be capable of being sufficient to raise doubt or to rebut such evidence or presumption upon which a prosecution initially relies.
An expert can be a person who qualifies for this status by virtue of his or her specialised knowledge based upon training, study or experience. 4362 LEGISLATIVE COUNCIL 21 November 2006
This Bill reinforces the safety benefits of speed cameras and similar devices. It provides guidance to the courts in consistently applying the relevant legislative provisions. And it provides for defendants with legitimate expert evidence, which raises a reasonable doubt as to the reliability of a relevant device, to put their defence.
I commend the Bill to the House.
The Hon. MELINDA PAVEY [5.54 p.m.]: I lead for the Liberal-Nationals Coalition in debate on the Road Transport Legislation Amendment (General) Bill and point out at the outset that we do not oppose the bill. However, we circulated an amendment that will leave it to the discretion of courts to admit certain evidence in line with the burden of proof under section 73A offences where an accused has to prove a matter—an issue that I will deal with later in more detail. Essentially, this bill aims to close loopholes in current legislation allowing motorists to dispute speeding offences or any other offences issued as a result of a speed-measuring device.
Currently, any offence resulting from a speed camera or similar device can be displaced by evidence to the contrary. Some judges have interpreted this phrase extremely broadly, including allowing a motorist's mere assertion that he or she was not speeding to overrule the material evidence. It is argued that these decisions have undermined public confidence in the system and could reduce the effectiveness of road safety devices. New section 73A states that the only way a defendant can dispute a fine as a result of speed camera or other speed-measuring device, including highway patrol Lidar and other speed-measuring devices, is through expert evidence based on a person's training, study or experience. The proposal will require defendants to adduce expert evidence that raises a reasonable possibility that a device was not operating properly.
It is proposed that a review of the provisions be conducted after 12 months of operation, with a report to be provided to the Minister for Roads and to the Attorney General. It is relevant at this point to make reference to government accountability. I refer to debate in the other Chamber where the Government did not deal with the issue of digital cameras despite being forewarned about it several years earlier by John Turner, former shadow Minister for Roads. In 2001 he warned the Carr Labor Government of a possible legal challenge resulting from the introduction of digital technology, including tampering. However, the Carr-Iemma Government did not make changes until 2005.
In the interim the Government encountered a major problem in the Sydney District Court when Judge John Nicholson, SC, handed down a decision in which he ruled that photographs used to convict drivers were meaningless as the digital cameras used were calibrated not daily but yearly. That meant that every photograph issued since 1999 when digital technology was introduced could be considered invalid, which set the Government up for a potential $1 billion class action. Such a potentially expensive action obviously would affect the funds available for fixing crumbling infrastructure such as roads, hospitals, schools and trains. Despite the fact that John Turner raised this issue four years earlier, it was only addressed in 2005, with a resultant change to regulations.
There are 113 fixed speed cameras in New South Wales. Last year, $57.3 million worth of speed camera fines were issued, which was an increase from $50.9 million in 2004 and $41.6 million in 2003. As more charges are dismissed against those caught speeding by speed cameras, members of the public are rightly asking, "How effective is the system in reducing the road toll? Is it simply another revenue raiser for the Government?" A full audit of current fixed speed cameras should be conducted regularly to ensure they are being used in black spots and in other areas where motorists are known to speed regularly, especially where road conditions are poor. Speed cameras should not be used in areas where there is simply a high volume of traffic and hence a greater chance of issuing fines and raising revenue.
In his second reading speech the honourable member for Heathcote in the other place said that speed remains the largest single contributing factor in fatal crashes on our roads. In view of those comments I think the road toll to date stands at 464 for the year. Following the tragic death at the weekend of Dixie Gibson, a young driver in Kew, we now know that it is not always speed that kills. Investigations into that accident are continuing. If the two opposing carriageways had been effectively divided Dixie would have had a better chance of surviving the accident, as there would have been an adequate distance between her and the B-double. We must focus on these issues. When roads are not dual carriageways or are not otherwise divided by guardrails or other safety barriers, the chance of accidents—such as occurred on the weekend—is enhanced greatly. I ask the Minister to consider acting to separate traffic lanes. While I acknowledge that dual carriageways cannot be built overnight, guardrails to separate traffic can be erected within a week.
The Opposition plans to amend the bill in Committee on the advice of the Law Society of New South Wales. June McPhee, the President of the Law Society, wrote to the Opposition and expressed particular concern about proposed new section 73A, which she said: 21 November 2006 LEGISLATIVE COUNCIL 4363
… moves towards a reversal of the onus of proof of certain matters by requiring an accused to prove that a device is unreliable and the only way to do so is by way of expert evidence.
The burden of proof under section 73A is far more stringent than for other similar offences where an accused has to prove a matter, for example Deemed Supply (section 29 Drug Misuse and Trafficking Act 1985), and Goods in Unlawful Custody (section 527C Crimes Act 1900), the standard of proof is on the balance of probabilities. The test in proposed section 73A is far more onerous, being "evidence that is sufficient to raise a doubt".
The Law Society submits that the evidentiary test should be framed in the same way as for the offences mentioned earlier so that the standard of proof is on the balance of probabilities. The advice raises legitimate concerns about the potential for inconsistency in the standard of proof in various pieces of legislation in New South Wales. As a consequence, I foreshadow that the Opposition will move an amendment in Committee to broaden the definition of evidence that is admissible in a court by a defendant to counter the prosecution and not limit it to expert evidence. I will speak more about the amendment in Committee.
Reverend the Hon. FRED NILE [6.02 p.m.]: The Christian Democratic Party supports the Road Transport Legislation Amendment (Evidence) Bill. The primary reason for the amendments in the bill is to protect and maintain the road safety benefits of speed cameras and other enforcement cameras, such as red light cameras. Honourable members will be aware that there have been several court challenges to speeding charges laid on the basis of evidence from speed cameras. Various individuals—some of whom were undoubtedly bush lawyers but others may have been legal professionals—have tried to avoid their responsibilities with regard to road safety. The recent New South Wales Supreme Court case Roads and Traffic Authority of New South Wales v Michell examined the phrase "evidence to the contrary" in the context of speed camera enforcement. It was held that "even slight or unconvincing evidence" was sufficient to overrule both photographic and certificate evidence. Apparently people simply have to say, "I was not speeding" and challenge the evidence offered by the speed camera. In other words, when a defendant's contrary evidence questions the operational accuracy of a device such as a speed camera—even though there is no scientific evidence to support that claim—the court may uphold the claim and overrule the scientific evidence before it.
Perhaps some judges are more sympathetic towards drivers following former Justice Einfeld's case. According to media reports, former Justice Einfeld claimed that a dead person was driving his car—which would be extremely difficult—on at least one occasion, or maybe two. I understand that the Roads and Traffic Authority has discovered that perhaps hundreds of false statutory declarations have been made, many giving the same driver's name. It raises questions about the efficiency of the Department of Transport in that no-one realised the same person had been caught speeding while driving many different cars. Surely someone should have picked up that obvious fraud. I think it was claimed that the same person was driving various speeding cars—ranging from Mercedes-Benz to cars with lesser horsepower—on 140 occasions. Obviously such declarations were fraudulent. Apparently the word got around that people could get off a speeding charge simply by claiming they were not driving and making up the name of a fictional driver because the information they offered was not checked.
Former Justice Einfeld is now in serious trouble. Making false statutory declarations, which must be witnessed by a justice of the peace, is extremely serious. I believe some hundreds of justices of the peace who witnessed fraudulent statutory declarations will be investigated. That is a serious case of individuals avoiding their personal responsibility. However, I have received some complaints about the impact of variable speed limit signs. There are not many such signs on our roads, but one operates on General Holmes Drive at the traffic lights near Sydney airport, where the speed limit can vary from 60 to 50 or 70 kilometres an hour at any time. I have heard of motorists being charged while driving at night on General Holmes Drive when the speed limit dropped unexpectedly to 50 kilometres an hour. They were caught by the speed cameras and subsequently booked for speeding. I would hardly call driving on General Holmes Drive at 60 kilometres an hour speeding. I am not sure whether the variable speed signs are erratic and prone to electrical faults that make them change for no apparent reason. I do not know whether the speed reduction that I have mentioned was deliberate, as there was not apparent reason for it. The Minister for Roads might like to inquire into the matter. I hope that variable speed signs are not revenue-raising devices, which act like nets and catch unsuspecting drivers.
We must also ensure that speed cameras are mounted near traffic black spots. There is increasing evidence that speed cameras are more likely to be located where they will catch large numbers of unwary drivers—for example, at the bottom and top of hills and so on—and where there is no record of road deaths. We must monitor the situation carefully. Speed cameras should be used in black spots to reduce the number of accidents and deaths on our roads. The Christian Democratic Party supports the bill. 4364 LEGISLATIVE COUNCIL 21 November 2006
Ms LEE RHIANNON [6.08 p.m.]: The Greens take road safety very seriously. Speed is a major killer on New South Wales roads. It is the largest single contributing factor in fatal crashes. The Greens support measures to deter people from speeding, and we think drivers who are speeding should be caught and prosecuted. But we question whether the Road Transport Legislation Amendment (Evidence) Bill will act as a deterrent and will actually decrease the incidence of speeding in New South Wales. The Greens have a number of concerns about the bill. It reverses the onus of proof, it goes against the weight of judicial opinion and it is potentially very unfair. The bill puts a disproportionate amount of faith in speed cameras at a time when there are large question marks about their accuracy. I note that the Legislation Review Committee has not had time to analyse the bill because of the Government's usual end-of-year legislation rush. Bills are again being dumped on the table at the eleventh hour in this parliamentary session.
The Greens are concerned that this bill effectively reverses the onus of proof in speeding cases. In offences involving an inaccurate speed camera, the accused person is required to prove that the device is unreliable. The only way an accused can do that is to present expert evidence that the device was not operating properly. The Greens question whether this is a practical and fair requirement. This will mean that the only real avenue for an accused to defend his or her case will be to hire an expert to prove the camera faulty; the Roads and Traffic Authority [RTA] will not have to prove that the camera is accurate. The Greens are concerned that it will make it virtually impossible for most people accused of speeding to challenge an offence in circumstances where the camera is not accurate.
I have received advice that the only material that can shed any light on camera malfunctions is held by the RTA and that the usual RTA practice is not to provide this information to an accused. I have also received advice that the costs of hiring an expert could be as much as $10,000. As the vast number of speed camera experts are subcontracted to the RTA, they would be most unlikely to be falling over themselves to appear for an accused. The New South Wales Law Society has raised similar concerns about the bill. There is a big question mark over the reliability of speed cameras. We know that cameras malfunction. In 2004 the Victorian Government was forced to refund or waive fines for almost 165,000 motorists caught by faulty speed cameras. This cost that government $26 million. It agreed to repay fines totalling $13.7 million to 90,000 motorists and to pay a further $6 million to compensate motorists who lost their licence after being snapped. Such inefficiency is mind-boggling and it is very relevant to this debate. I wonder whether that experience has a lot to do with this bill.
In a recent case the New South Wales District Court questioned the infrequent testing of speed cameras by the RTA. In that case Judge Nicholson was not satisfied that calibrating speed cameras on an annual basis was sufficient to ensure reliability. In another recent case in Wyong Local Court speeding charges were dropped against a driver when it was found that a camera was not even switched on at the time. I have been advised also that some people have been charged with travelling at 100 kilometres per hour while stuck in gridlock traffic! The bill seems to be a knee-jerk reaction to a series of judicial decisions to save the Government's bacon.
The Greens believe that the current legislation strikes the right balance between the requirements of the RTA and the rights of citizens. It does not need to be changed. The balance has been acknowledged and supported in a number of recent Supreme Court and District Court decisions. The Government has the resources and the technology to hold drivers accountable for speeding. Under current legislation, drivers caught by speed cameras must produce evidence to the contrary to have the charge overturned. From my reading of the legislation and relevant case law, it is not enough for drivers to simply say, "No, I didn't do it". Attempts to characterise it as such in the second reading speech are misleading. The bill undermines recent judicial decisions made in courts throughout New South Wales. It imposes a very onerous burden on motorists and I question whether it will make our roads safer. The Greens would like the Minister to respond to our legitimate concerns, which deserve a serious response in his reply.
The Hon. ERIC ROOZENDAAL (Minister for Roads, and Minister Assisting the Minister for Transport) [6.13 p.m.], in reply: I thank honourable members for their contributions to this debate. Given some of the statements made on this issue both here and elsewhere, it is important for honourable members to understand what this bill is about. It is about road safety. I would be more than happy if speed cameras raised no money and if people slowed down. That is why the former Minister for Roads reduced fines at the same time that he increased demerit points.
Speeding continues to be the largest single contributing factor to crashes on our roads. It is a factor in 40 per cent of fatal crashes. Independent evaluation has shown—and this is a very telling point on the issue of speed cameras—a 90 per cent reduction in fatal crashes where speed cameras have been introduced. In other 21 November 2006 LEGISLATIVE COUNCIL 4365
words, they save lives. Injury crashes have been reduced by 20 per cent. Unless the Opposition is proposing to remove speed cameras from our roads, it should stop trying to discredit legitimate road safety enforcement measures that complement police enforcement.
It has been said that this bill somehow reverses the usual onus of proof in criminal law. I am advised this is simply not true. The Roads and Traffic Authority sought the advice of eminent Senior Counsel and expert in evidence law, Steven Odges, on this point. He advised:
In my opinion there is no doubt whatsoever this does not reverse the onus of proof. All the defendant has to do is point to evidence sufficient to raise a doubt about the device. The defence does not have to prove anything, only raise a doubt. The effect of section 73 A is that a limitation is placed on the type of evidence that can be relied upon to raise such a doubt.
This is a very critical point. As has been said, the need for this limitation has been demonstrated by the extremely broad interpretation placed upon the existing provision by some judges and magistrates. This has meant that photographic evidence, certificate evidence of a device's accuracy, and certificate evidence of an inspection regime of a device can all be rebutted without the need to show any actual evidence that the device was faulty. This has resulted in some judges holding that a motorist's mere assertion—a critical point—that he or she was not speeding was sufficient to oust all other evidence. Even a motorist's statement that it was not his or her usual practice to speed has been sufficient to escape penalty.
Let us think about what this could mean if the law were allowed to stay the way it is now. A driver simply saying that it is not his or her usual practice to speed has been sufficient to allow the driver to escape penalty, and that is a concern to the Government. It is an immense problem and it has created much inconsistency in judicial decisions and much confusion in the minds of the public. Of course, the only people not confused are the lawyers who have made very good money from exploiting this perceived loophole in the legislation. The bill removes this loophole. But to again quote Steven Odges, SC, "The ultimate burden of proof remains on the prosecution to prove guilt beyond a reasonable doubt." There is no reversal of the onus of proof. This bill will restore consistency in judicial interpretation of the legislation and public confidence in speed camera enforcement, and it will help save the lives of motorists. It will also protect the lives of police officers conducting enforcement operations at dangerous locations.
I am advised there has been strong support from the police for this bill. I wish to reflect on some research about speed cameras, particularly in school zones—an area of great interest to me in my portfolio. The clear available evidence is that where a speed camera has been placed at a school there has been a substantial improvement in motorists adhering to the 40 kilometres per hour speed limit that apply during school zone periods. Clearly, there is a direct link between the presence of speed cameras, properly signposted—and of course all New South Wales fixed speed cameras are appropriately signposted—and a reduction in motorists speeding. With a reduction in speeding we see a reduction in fatalities and injuries. I commend the bill to the House.
Motion agreed to.
Bill read a second time.
In Committee
Clauses 1 to 7 agreed to.
Schedule 1 agreed to.
The Hon. MELINDA PAVEY [6.20 p.m.]: Before I speak to the amendment, I would like to point out that having three roads Ministers in a period of just over a year—
CHAIR: Order! Before the member can contribute to the debate, she must move the amendment.
The Hon. MELINDA PAVEY: I move:
Page 11, schedule 2 [19], proposed section 73A. Insert after line 10:
(3) Subsection (2) only applies where the court considers that the specialised nature of the matter in issue requires evidence adduced from a person who has relevant specialised knowledge. 4366 LEGISLATIVE COUNCIL 21 November 2006
The problem we have tonight is that advice is being sought from the Government's Senior Counsel and advice is coming to the Opposition from the Law Society all because we have had three Roads Ministers in a period of just over a year. This is a revolving door roads ministry. There is no proper consultation and discussion; everything is done on the hop. If we hadseen the bill a little earlier, some of the problems may have been ironed out. But the Opposition's advice is that the Government's amendments remove the discretion of the court to admit evidence.
The Opposition's amendment will broaden the definition of evidence admissible in a court by a defendant to counter the prosecution, and not limit it to expert evidence. I think it relevant to point out that the Law Society is concerned that the standard of proof of balance of probabilities is being changed. A Law Society committee that discussed this issue stated that the evidentiary test should be framed in the same way as it is with respect to offences under other laws, so that the standard of proof is on the balance of probabilities. This is a legitimate concern being expressed by the Law Society, and I believe the Opposition amendment would allow the court some discretion; it would not limit any evidence to that given by expert witnesses.
The Hon. ERIC ROOZENDAAL (Minister for Roads, and Minister Assisting the Minister for Transport) [6.22 p.m.]: Introducing a requirement in the bill for expert evidence is a sensible move. Both the Leader of the Opposition and the Leader of The Nationals in the other place are on the public record as calling for the closing of what they refer to as a loophole in the legislation. The Leader of The Nationals referred to this loophole in an interview on 2BL on 23 March this year. He also referred to taxpayers being liable for a potential million-dollar class action—which became hundreds of millions by the end of the interview! Clearly, his claim was ridiculous. So too is the claim that the bill somehow reverses the onus of proof. The bill, sensibly, will close the perceived loophole and ensure greater consistency in judicial interpretation. At the same time it will reduce what lawyers have been earningby exploiting this loophole to this point in time.
In relation to the specifics of the Opposition amendment, I am advised that it would create an additional preliminary issue. The term "specialised nature of the matter" is not defined in any way. In short, rather than helping to resolve issues, it would create further confusion and uncertainty—while the purpose of the bill is to remove confusion. Of course, lawyers love confusion and uncertainty in legislation becausethey earn their bread and butter exploiting those sorts of issues as much as they can. The Government cannot support the amendment. It should also be noted that the provision is not necessary as the court will always consider the totality of the evidence.
Reverend the Hon. FRED NILE [6.24 p.m.]: The Christian Democratic Party does not support the amendment. It would add another factor to the confusion by providing for a person who has relevant specialised knowledge. It could be someone who would argue that speed cameras are not accurate, or that there are other technical issues regarding speed cameras, and this could result in the offender getting off scot-free. It seems to me that the amendment would undermine the purpose of the bill.
The CHAIR: The Hon. Melinda Pavey has moved Opposition amendment No. 1, which appears on circulated sheet C-084. The question is, That the amendment be agreed to. All those in favour say "Aye", to the contrary "No". I think the noes have it. The noes have it.
The Hon. Don Harwin: The ayes have it.
The CHAIR: I am sorry, at the time I called "ayes", there was only one "aye".
The Hon. Catherine Cusack: I said it too.
The CHAIR: Members have to speak so that responses are audible. There was only one "aye" in favour of the amendment. In that case, I declare the amendment lost.
Amendment negatived.
[Interruption]
The CHAIR: I will not put on the record that the Hon. Don Harwin called Melinda Pavey a "bad girl".
The Hon. Don Harwin: Point of order, Madam Chair: Your behaviour is completely inappropriate, and I would ask you to withdraw your comment. Are you the Chair or aren't you? 21 November 2006 LEGISLATIVE COUNCIL 4367
The CHAIR: I am the Chair, and I did not say anything that warranted withdrawing.
Schedule 2 agreed to.
Schedules 3 and 4 agreed to.
Title agreed to.
Bill reported from Committee without amendment and passed through remaining stages.
[The Deputy-President (The Hon. Christine Robertson) left the chair at 6.28 p.m. The House resumed at 8.00 p.m.]
TABLING OF PAPERS
The Hon. Tony Kelly tabled the following paper:
Annual Reports (Statutory Bodies) Act 1984—Report of Cancer Institute (NSW) for the year ended 30 June 2006.
Ordered to be printed.
ABORIGINAL LAND RIGHTS AMENDMENT BILL
Second Reading
The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [8.01 p.m.], on behalf of the Hon. Ian Macdonald: I move:
That this bill be now read a second time.
I am pleased to introduce the Aboriginal Land Rights Amendment Bill. The bill is a landmark step, and a new and positive direction for land rights in New South Wales. The legislation is designed to ensurethat assets are managed in a transparent manner and that decision makers are held to account, including being required to undergo training in organisational management. This will do much to prevent further administrations from occurring and will assist greatly in increasing membership numbers. In turn, this means all members of Aboriginal communities will have increased opportunities to participate in, and benefit from, the decisions that affect them. With this in mind the Government has engaged in further consultations since the bill was first introduced. Consultation has taken place with Aboriginal people and various elected representatives, including the Opposition spokesperson. This has resulted in a number of amendments in the other place to ensure our shared goals of requiring greater accountability in decision making and allowing all Aboriginal people to benefit from management of their land are met.
These amendments include a number of technical adjustments and some further substantive changes. The bill now provides for a direct system of electing board members of land councils to ensure a democratic process. All members will be directly elected through this system. The existence of nine regional representative councils rather than six will ensure that diverse groups within the Aboriginal community receive adequate representation across the State and have a greater voice. Full-time elected representatives of the New South Wales Aboriginal Land Council instead of part-time executives will ensure a dedicated and committed team to work hard for all members. Furthermore, in response to the needs of community groups the Government will now conduct further consultation to determine the appropriate method of indexing the minimum level of the statutory fund of the New South Wales Aboriginal Land Council. As the remainder of my speech has already been given in the other place, I seek leave to have it incorporated in Hansard.
Leave granted.
I am pleased to introduce the Aboriginal Land Rights Amendment Bill, which is the outcome of extensive consultation with Aboriginal people across the State. In 2004 the former Minister for Aboriginal Affairs, the Hon. Andrew Refshauge, announced the review of the Aboriginal Land Rights Act and established a task force to oversee the review. The task force comprised the Administrator of the New South Wales Aboriginal Land Council, the Registrar of the Aboriginal Land Rights Act, and the Director General of the Department of Aboriginal Affairs. In making its recommendations the task force took into consideration feedback gained from consultation with Aboriginal people across the State. 4368 LEGISLATIVE COUNCIL 21 November 2006
The Department of Aboriginal Affairs engaged two independent facilitators, Mr Jack Beetson and the Hon. Wendy Machin, to consult with Aboriginal people in 10 locations across the State about the task force recommendations. Further consultations were conducted by the New South Wales Aboriginal Land Council in various locations across the State in October and November 2004 and in June and July 2005. I personally travelled extensively throughout New South Wales to consult with Aboriginal people face to face and I extended the time for written submissions to ensure that proper consultation was undertaken with Aboriginal people across our State.
The bill amends the Act to improve Aboriginal Land Council governance and facilitate the better management of Aboriginal Land Council assets, investments and business enterprises. The bill will provide for the changing structure of Local Aboriginal Land Councils [LALCs] from small-scale community organisations to reflect the million dollar corporate structures some have grown into over the past 23 years. In this regard the bill is modernising the legislation to recognise that the Aboriginal Land Rights Act is moving into a new area of economic and social development for Aboriginal Land Councils. Reforms to the Local Aboriginal Land Council structure are designed to create better decision-making and fairer participation in land councils.
The oversight and regulatory role of the New South Wales Aboriginal Land Council recognises the significance of the commercial activities of Aboriginal Land Councils and the need for strong self-regulation within the system. The LALC activities requiring New South Wales Aboriginal Land Council approval will be unlawful unless the approval has been obtained. This is a key element of the self-regulation of the Aboriginal Land Council system. Local Aboriginal Land Council business enterprise and investment will be regulated by a system to assess the merits and viability of any business or investment proposal.
Local Aboriginal land councils will be able to facilitate business enterprises that may include the incorporation of related corporate entities. Any such entities will be accountable to the LALC, and their activities will form part of the reporting requirements of the LALC. This information must then be provided to the New South Wales Aboriginal Land Council as per the current requirement for LALCs to provide audited financial statements and budgets. All elected LALC board members and New South Wales Aboriginal Land Council councillors will be required to undertake basic training in their particular duties and responsibilities under the Act. The functions of the registrar and the Pecuniary Interest Tribunal have been expanded to more effectively deal with misbehaviour of councillors, land council members, and council board members and staff.
The amended regulatory regime is designed to emphasise fair play in the activities of Aboriginal land councils and bring Aboriginal land councils into line with the standards applied to like corporate bodies such as local government. Regional Aboriginal land councils will be abolished and the number of regions reduced from 13 to 6. In place of the regional councils will be regional electoral forums, comprising the chairpersons of each of the local Aboriginal land councils in the region. Each regional electoral forum will elect a councillor for the region to the New South Wales Aboriginal Land Council. There will be provision for two ministerial appointments to the Aboriginal Land Council, following consultation with the elected councillors. In making these appointments I, as the Minister, will bear in mind the gender, age and expertise of the councillor.
All councillors will be part time except for the chairperson, who will be full time. Councillors will serve four-year terms. Concerns have been raised by many Aboriginal people that the operations of land councils are dominated by certain family groups and therefore the interests of other members are ignored. To avoid this situation, and to assist in modernising the structure of local Aboriginal land councils, the chairperson, secretary and treasurer will be replaced by a board comprising five to 10 members elected by the land council members. The board will determine its chairperson and deputy chairperson. Board members will have a two-year term and can be re-elected. The bill sets out the functions of the board and clearly provides for the demarcation of functions between the board and the land council, as expressed by resolution of members.
It is important that the relationship between the role of the board and the members of the LALC is clearly understood. The day-to-day management functions of the LALC will be the responsibility of the chief executive officer. Often persons are elected to positions when they have had no prior experience or lack appropriate skills to properly fulfil their role. The bill therefore provides for the training of board members and councillors within the first six months after being elected. Board members and councillors can be suspended from office should they refuse or fail to undertake this training. They can also be disqualified from office if they continue to refuse or fail to undertake training.
Further, the bill disqualifies persons from holding office as a board member or councillor where they have convictions for certain offences recorded within the past five years. Such convictions include where a person has been involved in the management of a corporation, or a matter relating to the Aboriginal Land Rights Act, or any other offence that is punishable by imprisonment for 12 months or more. A board member or councillor is also disqualified from office when he or she has a conflict of interest with the council, such as being an employee or consultant of the council. The day-to-day functions of Aboriginal land councils are now to be run by a chief executive officer, whose functions will be set out in the Act. This will avoid confusion between the functions of the board and those of the chief executive officer.
Each Aboriginal land council, including the State land council, will be required to develop a community, land, and business plan setting out strategies for managing assets, investments, and the operation of business enterprises. In preparing this plan a land council must consult its members and other persons who have a cultural association with the land within the council's area. Plans must be approved by the membership of the land council and then by the New South Wales Aboriginal Land Council, in accordance with criteria specified in the Act, including consistency with Aboriginal Land Council policies. Land councils are to operate within the parameters of their council's community, land, and business plans. The plans will cover up to a five-year period and will give land councils certainty in their goals and objectives, and keep them clearly focused on their operations.
The bill provides for the making of specific policies by the New South Wales Aboriginal Land Council. Any policies made must be approved by the Minister for Aboriginal Affairs and subsequently gazetted. The bill amends the Act to enable land councils to establish community benefit schemes provided they will not substantially impair the capacity of land councils to meet their debts as and when they fall due. Community benefit schemes can include education, home ownership, concessional loans, funeral funds, cultural activities, child and aged care services.
There is capacity for land councils to establish a trust for the purpose of providing a community benefit scheme and the bill provides for transparency and accountability in financial dealings and compulsory reporting to members. A major cause of 21 November 2006 LEGISLATIVE COUNCIL 4369
financial problems for many Aboriginal land councils is their provision of social housing. To address this problem the bill amends the Act to enable land councils to use the services of another body or agency to assist in the running of the scheme.
The bill amends the Act to prescribe situations where a land council may be dissolved or amalgamated, and changes the procedures for carrying out these actions. The bill amends the Act so the Minister may, on the recommendation of the New South Wales Aboriginal Land Council or the registrar, appoint an advisor to a land council board if the Minister is of the opinion that the land council is in danger of failing. The bill requires the New South Wales Aboriginal Land Council to put policies in place to increase the total number of voting members of LALCs in the State by not less than 3 per cent per annum. The New South Wales Aboriginal Land Council is to include in its annual report a report on the steps taken to meet the 3 per cent target. The bill will modernise the Aboriginal land council system, provide benefits to Aboriginal people, provide greater accountability, and ensure that Aboriginal land council members are properly included in the decision-making process. I very proudly commend the bill to the House.
The Hon. ROBYN PARKER [8.02 p.m.]: On behalf of the Liberal-Nationals Coalition I speak to the Aboriginal Land Rights Amendment Bill. When the Aboriginal Land Rights Bill was enacted 23 years ago it was accompanied by a preamble:
Land in the State of New South Wales was traditionally owned and occupied by Aborigines. Land is of spiritual, social, cultural and economic importance to Aborigines. It is fitting to acknowledge the importance which land has for Aborigines and the need of Aborigines for land. It is accepted that as a result of past Government decisions the amount of land set aside for Aborigines has been progressively reduced without compensation.
To those who invaded Australia and their descendants, land is, and was, a commodity, something to be traded, something in which to invest, something to facilitate the creation of wealth. This western attitude that land exists for our financial security was alien to indigenous Australians who had been here for 40,000 years or more prior to invasion. To them, land was an anchor for their spirituality. They believed they were born from the land and it nourished them. When they died their spirits would return to the land and the cycle would begin anew. The preamble to the original 1983 Act recognises these strong ties to the land. So must we, as legislators, recognise the inherent differences between our cultures. For Aboriginal people land was alive, a thing to be celebrated in song and ritual. The bill can never express that, but it can now make legal provisions that allow justice to be done when, for the better part of two centuries, it was not.
Aboriginal people in New South Wales still face tremendous disadvantage—they have for a long time. In the 2001 census just under half a million Australians identified themselves as Aboriginal. The Australian Aboriginal population is mostly an urbanised demographic, but a substantial number ofAboriginal settlements are in what are considered remote areas. The health and economic difficulties facing both groups are substantial. Aboriginal people, particularly youth, are 11 times more likely to be imprisoned than the general population, and the rate of suicides in police custody remains quite high. Rates of unemployment, health problems and poverty likewise are higher than the general population, and school retention rates and university attendance are lower. When, 23 years ago, the Hon. Sir Adrian Solomons spoke to the bill in this place he related a story of an 80-year-old Aboriginal woman at a pro-land rights protest outside Parliament House. He explained that when given a microphone, much to the chagrin of the land rights protest organisers, she demanded not land rights, but better housing in Redfern, more parks, better education and better medical services. She said that all that other business about Aboriginal land rights was nonsense to her.
The Liberal-Nationals seek a balance between what the Hon. Sir Adrian Solomons called— and I doubt anybody in this House today could say it better—"the dewy-eyed idealism and sentimentality of the Labor Government" with the stark reality that providing effectively the most essential services now is, and always have been, the first step towards proper reconciliation. The Aboriginal Land Rights Act 1983 was established to compensate Aboriginal people in New South Wales for the loss of connection to land. The Act established a three-tier network of Aboriginal land councils in New South Wales, consisting of the New South Wales Aboriginal Land Council, 13 regional Aboriginal land councils and 120 local Aboriginal land councils. Today we see the character of that Act changed substantially in the face of modernisation, even corporatisation, of the land rights councils in New South Wales.
The New South Wales Aboriginal Land Rights Amendment Bill was presented to Brad Hazzard, my colleague in the other place, by the former Minister for Aboriginal Affairs, Milton Orkopoulos, at 11.05 p.m. on 24 October 2006. The Opposition had only 36 hours and 30 minutes to consider the bill before the second reading. Without appropriate levels of community consultation, without some isolated communities even knowing the bill was being introduced, the Opposition could not, in all good faith, support the bill, even through we acknowledged that a review of the Act was needed. It is interesting to note that now history repeats itself. Some 23 years ago the Hon. Elisabeth Kirkby spoke in this place to oppose the bill on grounds similar to those of the Opposition: that the bill was steamrolled through Parliament and that it lacked appropriate consultation 4370 LEGISLATIVE COUNCIL 21 November 2006
with Aboriginal people. She quoted Professor Brad Morse, a former adviser to the Canadian Government for the Northern American Indians, in a submission he made to the New South Wales Government:
It is rather ludicrous in my mind to issue a report so fundamental to the future of the Aborigines in New South Wales three days before Christmas and announce consultation will occur only until introduction of the bill in April.
Now things are moving much faster. Perhaps it is modern technology—or perhaps it is the swelling arrogance of this Labor Government. The dewy-eyed idealism described by our former colleague Sir Adrian Solomons is an effective mask for some very shrewd political tactics. The continued lack of consultation on major policy and the Government's steamroller attitude to parliamentary process are insults to the people of New South Wales and their representatives. During the second reading debate the former Minister for Aboriginal Affairs, Milton Orkopoulos, interjected during the shadow Minister's speech to arrogantly declare, "I move things along."
The Opposition is pleased to note that things have moved along considerably since 26 October. It would appear to be unique to the former Minister for Aboriginal Affairs that a complete lack of transparency, decency, integrity and hesitation to allow the community to give proper feedback has resulted in ill-considered policy being rushed through Parliament. In the short space of time allowed to her, his successor has managed deftly to address many of the concerns that make key Aboriginal stakeholders involved in this policy shift hesitant to give the bill their full-throated support. The initial review of the Aboriginal Land Rights Act 1983 occurred in 2004 under another former Minister for Aboriginal Affairs, Andrew Refshauge. A need to update the 25-year-old legislation was identified.
It is indeterminable whether local area land councils have made any real improvements in the lives of Aboriginal people. While that is open to debate, what is not are the demands on legislators to facilitate this improvement. I note that there are some improvements. There have been some great things done by local area land councils, particularly standout achievements by some on the eastern seaboard. Some Aboriginal local area land councils on the eastern seaboard have been targeted for their success and I will deal with that in more detail later. At the heart of this amending bill is a desire to protect the future of land councils and ensure that their investments are protected from financial mismanagement. That is a sentiment that I think all honourable members should support. No doubt all honourable members agree that that is an important aspect. I know that many members of local Aboriginal land councils support it.
This amending bill includes training in financial management, which is a very good thing. There are other very good aspects of this bill. In 1983 our predecessors could not possibly have foreseen the vast changes that land councils would undergo. Land councils are no longer small community organisations, or at least not all of them are. We are talking about corporate structures that are worth millions of dollars, as identified by the Refshauge task force. The need for reform is great so that the land council trusts can exist for the children of Aboriginal people and their children's children. The haste with which this bill has been introduced has made the process of coming to a conciliatory outcome difficult for all parties involved. A week before this bill was introduced the Minister's senior staff were unable to provide the shadow Minister for Aboriginal Affairs with a copy of the bill.
The process of dealing with this very significant legislation has been salvaged by the dogged determination of the shadow Minister for Aboriginal Affairs, Brad Hazzard, and the fresh approach of the new Minister for Aboriginal Affairs, the Hon. Reba Meagher. Both are to be congratulated. The honourable member for Wakehurst, Mr Hazzard, has been representing the Coalition's interest with regard to Aboriginal Affairs for almost a decade. His enthusiasm and passion for the portfolio and his bipartisan approach to mediating issues are commendable, as is his desire to act in the best interests of Aboriginal people. The honourable member for Wakehurst, Mr Hazzard, has been working with the Government through subsequent Ministers for Aboriginal Affairs to get this and other bills of importance to a stage at which we may reach consensus. Disgraced former Minister Orkopoulos did not make the process easy.
The Opposition hopes that the effort Minister Meagher has undertaken with regard to this bill will not be an isolated occurrence and that we may work with her to achieve the full breadth of reforms needed to address the prejudice and disregard with which Aboriginal Affairs is treated. However, I note that she may be in a different position after March 2007. The Coalition hopes that when in opposition Labor members will work with us in a similar bipartisan approach. The bill contains much weighty legislation of a complex legal nature. It is simply unconscionable that it was forced upon members of both Houses without adequate time for proper consideration of it. 21 November 2006 LEGISLATIVE COUNCIL 4371
The bill amends the 1983 Act to enable the provision of, and the provision of a framework for the provision of, benefits to Aboriginal persons by Aboriginal land councils and to make provision relating to existing social housing schemes through new section 52. New section 52 will provide a planning framework for the management of land and investment of other assets of Aboriginal land councils through the preparation and implementation of community land and business plans and other measures. New part 5, division 3, changes the management structures of local Aboriginal land councils by providing for each council to have a board that is elected by members and by conferring the day-to-day management functions on the chief executive officer of local Aboriginal land councils.
New section 54 will qualify persons listed on the register of Aboriginal owners in relation to land within the area of the local Aboriginal land council [LALC] to be members of the council and to require a person to demonstrate a significant association with the area of the council to qualify for membership of the council. New part 5, division 7, will clarify the mechanisms for the amalgamation, redefinition and dissolution of LALCs. New part 6, division 1, will abolish regional Aboriginal land councils and establish regional electoral forums to elect councillors to the New South Wales Aboriginal Land Council [NSWALC] rather than by direct election and to make provisions related to councillors. New part 7, division 5, will require NSWALC to prepare and implement policies on community benefits, community land, business plans and other matters.
New section 65 will require training to be provided for officers and staff of Aboriginal land councils. New part 10, division 3A, will extend the jurisdiction of the renamed Aboriginal land councils' pecuniary interests and disciplinary tribunal so that it may deal with misbehaviour by councillors of the NSWALC board, board members of Aboriginal land councils and members of staff of Aboriginal land councils, and to confer on the registrar under the Act the power to deal with misbehaviour. New section 222 will make changes to the appointment of administrators for all Aboriginal land councils, including the removal of the limit on the period of appointment. Notice of appointment and interim appointment of administrators is dealt with in new sections 223A and 223B.
New section 234 will enable advisers to be appointed to assist local land councils. New sections 42A and 249A insert offences relating to unauthorised land dealings and enable directors of corporations and persons concerned about the management of corporations to be proceeded against for offences committed by corporations. This is extremely complex and important legislation. I am pleased that some amendments have been included in the bill to provide for a broader electoral system, more fairness for regions and greater regions. The billcontains some good provisions and improvements in regard to lines of responsibility. As a result of this bill, councillors will be able to apply their focus and attention full time to the tasks they have to perform.
I thank the many representatives of Aboriginal land councils who have met with me in the lead-up to the introduction of the bill. I acknowledge and support their work, and I congratulate them. I have met with Aboriginal leaders from across New South Wales, from small and large communities and from local Aboriginal land councils. They are doing great things. They are blessed in having land that is worth a great deal of money and they are taking on great responsibility. I acknowledge the Darkinjung Aboriginal Land Council, currently under administration. However, its efforts with funeral funds anda beef production company, and what it is trying to achieve for its community should be applauded. Indeed, some of the amendments in the bill encourage other Aboriginal land councils to undertake similar ventures to support their communities. They are passionate about their communities and the future of Aboriginal people.
At every meeting with me they have presented themselves in a professional and heart-felt way. They have brought their issues to us in the most genuine way. I am pleased that we had time to consult them. The Minister has given an assurance that there will be further consultation. The form in which this bill reaches us is far different from the ill-advised bill that was presented to and rushed though the other place. The process of this bill's passage sets a dangerous precedent for future legislation and demonstrates that misplaced arrogance can be counterproductive. If a draft bill had been provided to the Opposition and if time had been given for due consideration of it, these amendments could have been agreed upon weeks ago, speeding up the process of the passage of this bill.
The former Minister for Aboriginal Affairs, through his belligerent approach to legislative reform, effectively delayed the bill. These new amendments made under consultation, albeit limited, with Aboriginal stakeholders provide for full-time councillors, not part-time councillors, to be appointed to land councils. They reached a consensus figure on the number of regions legislated⎯from the original somewhat clumsy figure of 13, down to the Government's unrealistic six, to finally nine. Many stakeholders consider that to be a good outcome. 4372 LEGISLATIVE COUNCIL 21 November 2006
The plebiscite model of council elections is maintained and the proposed electoral college model has been abandoned. This struck many of us as being commonsense, considering the limited success of the electoral college model achieving democratic representation in the United States of America. Not everyone will agree with me on that. Most importantly, and of most impact on the sovereignty and self-determination of Aboriginal land councils, is the deletion of a codified requirement for the New South Wales Aboriginal Land Council account to be maintained at the December 1998 level, indexed at the consumer price index. Many other amendments are contained in the bill, many of them dealing with grammatical minutiae. Again, if a draft bill had been provided for inspection these issue could have been ironed out weeks ago.
The Liberal-Nationals Coalition is pleased that the bill finally has been presented in a manner that we can support. I acknowledge the comments of the new Minister for Aboriginal Affairs, Ms Reba Meagher, and reaffirm the commitment of Opposition members to consultation and bipartisanship with regard to Aboriginal issues. In the past few weeks much has been said regarding the Office of the Minister for Aboriginal Affairs, but little of the role. If we are to move forward and reconcile the past with a brighter future, we must work together. Our ideological differences on other issues must not be a hindrance to working in the best interests of Aboriginal people. I commend the bill to the House.
Mr IAN COHEN [8.23 p.m.]: On behalf of the Greens I acknowledge the land on which we are debating the Aboriginal Land Rights Amendment Bill, the land of the Gadigal people of the Eora nation. That is always said with respect in this House. I am very pleased about that. This is certainly a very different environment from past discussions and communications with indigenous people on this very land, in this very place. We are in a somewhat alienated environment inside these hallowed halls. Indigenous people have great difficulties dealing with our system of government and the way institutions are organised—they feel very much shut out.
Given some of the problems and issues that have evolved during the development of the bill involving indigenous people from the various regions, different land councils, the New South Wales Aboriginal Land Council and local Aboriginal land councils, I found it enriching to have discussions with them. I do not think that the Greens will get credit in this place for the amount of work put into the bill. However, my staff, particularly Dominika Rajewski, put a huge amount of time and energy into meeting with various Aboriginal organisations and individuals. We learnt a lot. I hope that we were able to give something back while taking time out to sit, listen and discuss. That was a very valuable exercise for me, as a Greens representative and as someone who tries, on behalf of my party, to do the right thing by acknowledging and listening. Certainly, listening goes a long way.
We were able to have many fruitful discussions. Quite a significant number of Greens amendments have been absorbed into the Government's bill. That is fantastic. Many of our concerns were listened to. Perhaps that was as a result of certain circumstances with the new Minister and the issues surrounding the passage of this bill, which meant that the Government has chosen to give a bit and get the bill through. It is important that the bill is being debated tonight, and not left after years of negotiation until after the forthcoming election. I am pleased about that. I am pleased that the Greens concerns have been reflected as best as they could following the positions put to us by indigenous individuals and organisations over some time.
The review and amendment of the Aboriginal Land Rights Act was an important opportunity. In some ways, the bill represents a missed opportunity. However, I acknowledge that in the past week the Government has made some concessions⎯as I said, concessions forced upon it by external events. Nevertheless, we are making progress. The process has been an action of arrogance by the Government, which is concerning when dealing with issues close to the heart of Aboriginal people. There have been long-term problems with the Aboriginal Land Rights Act; it has been in need of an overhaul for some time. A lot has changed since the Act came into being in 1983. Many of the recommendations of the task force set up to review the Act are supported by the Greens. However, it is unfortunate that some of the most important changes—that is, all of the amendments related to landed dealings—are not dealt with in the bill. There seems to be universal recognition among local Aboriginal land councils that the system needs fixing. Parts of the Act are modelled on the Local Government Act, but without the supporting machinery. The views on how to fix the legislation are wide and varied.
With the demise of the Aboriginal and Torres Strait Islander Commission the New South Wales Aboriginal Land Council is the last independent representative institution in New South Wales for Aboriginal people. It can deliver representation across the State and can have large degree of political independence, but we must get the equation right. The positions papers of the task force reviewing the Aboriginal Land Rights Act 21 November 2006 LEGISLATIVE COUNCIL 4373
have been out for over a year. The first issues paper on land dealings was released in August 2005 and the second issues paper, put out by the task force dealing with structures and governance issues, was issued in November 2005.
I do not see why this bill was left until so late in the piece. I do not see why the land dealings provisions were left out of it. The excuse of not enough time is not good enough. There has been enough time but the Government stalled with giving instructions to Parliamentary Counsel. We are now told that the bill was not available for prior viewing and that the land dealings will be left until next year because there was not enough time for drafting. If the Government leaves it until the last minute to have the bill drafted of course there will not be enough time. Ultimately, it made a decision about the timing of the legislation. I cannot understand why an exposure draft was not provided to Aboriginal groups who have been asking for a draft for many months.
At this late stage I am still reviewing input from concerned constituents and from people who for generations were Aboriginal leaders and activists. A concerned constituent from Dubbo asked me to put his concerns on the record. He would like the Minister—and I hope that the Minister is listening to my contribution—to indicate whether these amendments will allow any or all of the 13 New South Wales Aboriginal land councillors who were sacked prior to the current period of administration to stand again for election to the New South Wales Aboriginal Land Council and, if not, why not? The Minister might undertake to address that issue when he replies to the debate. I received correspondence from Mr Paul Coe, who said:
Indigenous Australians from anywhere in the country can legally join in a local Aboriginal land council for a particular reserve.
He also said:
In some cases large numbers of people foreign to the reserve, including from interstate, join and outnumber local indigenous Australians, despite not being from the land.
However, as members they are able to make decisions on the management and development of the land and they can access limited community resources such as housing causing overcrowding.
[Interruption]
This matter goes beyond party politics and the internal machinations of various parties. This matter is about people and their lives. In many cases people have been dispossessed and those people have rights. I hope to represent those rights.
Reverend the Hon. Dr Gordon Moyes: Take the high moral ground.
Mr IAN COHEN: I appreciate Reverend the Hon. Dr Gordon Moyes's interjection. This special legislation is about very special people and all honourable members should proceed with a degree of respect. Paul Coe said:
Without tribal or cultural ties to the land members do not always make decisions in the best interests of the land and its traditional custodians.
He also said:
The bill distances traditional owners from their land with larger commercial bodies, with no links to traditional owners taking over and making decisions. Profit will dictate decisions rather than custodianship of the land and traditional owners will be severely disadvantaged.
I met Paul Coe, a student activist, for the first time in 1971 at the University of New South Wales. Paul endured physical pain as a result of police brutality but he went on to become—
The Hon. Rick Colless: Do you know how he paid for his university degree? Do you know how he went to university?
Mr IAN COHEN: I do not know whether this is the right time for a conversation such as this.
The Hon. Rick Colless: The white people of Cowra paid for his university degree. 4374 LEGISLATIVE COUNCIL 21 November 2006
Mr IAN COHEN: I thank the honourable member for his interjection. Mr Coe was one of the early Aboriginal activists who obtained a degree to practice. It is interesting to note that the second reading speech of the former Minister for Aboriginal Affairs was brief, given that this is such an important piece of legislation. It is also noteworthy that the speech seemed to have been written to an earlier draft of the bill and not updated, as there were inconsistencies between the speech and the bill. That is disappointing and shows an utter disregard and lack of respect for the Aboriginal Affairs portfolio by this Government.
The bill seeks to insert two new additions into the purposes of the Act. The first is the management of land and other assets and investments by councils, and the second is to provide for the provision of community benefit schemes by or on behalf of those councils. The Greens support these changes to the purposes of the Act. They reflect the reality of land councils being managers of land and sometimes very substantial assets. The provision of community benefit schemes is important and has been the subject of some vexed proceedings. Up until now members of land councils could not benefit from land dealings.
This has meant that while some councils have done very well out of the disposal or development of land and had substantial monetary assets, members could not benefit from that and many continue to live without access to adequate housing and without access to schemes that could improve their quality of life. One argument is that this situation led to some members of land councils trying to access funds through inappropriate means leading to a degree of corruption in the system. Some councils tried to set up trusts to provide benefits to their members and, despite their best intentions, were subsequently put into administration because such actions were in contravention of the Act.
"Community benefits" are defined in the bill as including, but not limited to, first, funeral funds; second, residential accommodation; third, education and training; fourth, scholarships and other assistance for education and training; fifth, cultural activities; sixth, child care; and, seventh, aged care services. The Greens are supportive of this new purpose of the legislation. The bill sets out the functions of Aboriginal land councils, including land acquisition, land use and management, Aboriginal culture and heritage, financial stewardship including business planning, and other functions prescribed by the regulations.
Community benefit schemes, which I mentioned earlier, are to be approved by the New South Wales Aboriginal Land Council. They must comply with the Act, be consistent with the policies of the New South Wales Aboriginal Land Council, be consistent with local Aboriginal land councils' [LALC] community, land and business plans, and be fair and equitable and administered in a transparent manner. These are all reasonable considerations. There is flexibility in the provision but schemes must be able to benefits members of other LALCs or be provided in conjunction with other LALCs.
The bill seeks to make a new provision for the establishment of trusts by LALCs with the approval of the New South Wales Aboriginal Land Council. There have been many cases of LALCs setting up trusts in order to provide benefits to their members. A prime example of this is the case of Darkinjung Local Aboriginal Land Council, which set up a trust to provide benefits to its members such as a funeral fund. It has since been placed under administration. I understand that the problem was not the trust itself but the way in which it was set up. I will not go into the details of the situation and the subsequent numerous court actions as Opposition members have done so in some detail.
It is noteworthy that setting up a trust under this bill would be lawful provided it was consistent with legislation and the community's own plan, and approved by the New South Wales Aboriginal Land Council. It is made clear in the bill that land and other assets cannot be transferred to individual council members, board members, staff or consultants, other than remuneration, for example, of staff. A local Aboriginal land council can either adhere to model rules as prescribed by regulations, or prepare its own rules which are to be approved by the registrar. These can be amended from time to time, again with the approval of the registrar. The functions to be exercised by a resolution of voting members of LALCs are set out in the bill.
It is helpful to clarify these functions. The move toward a board structure in local Aboriginal land councils has been a contentious one. Some groups with whom I spoke felt that family clans had taken control of local Aboriginal land councils and that the current structure was not working well. Those groups supported a move to a board structure; others supported the retention of the status quo. An example was given to me of a local Aboriginal land council dominated by one family where that family controlled all assets and housing. That included use and access to land, employment and various other benefits.
The person from this area with whom I spoke believed that a board model would overcome such issues. Office bearers currently have little legal authority, whereas a board would have more say over the day-to-day 21 November 2006 LEGISLATIVE COUNCIL 4375
running of the council, overseeing issues such as employment. At the moment the entire membership needs to resolve such issues. I was told that stacking occurs, for example, to ensure that a particular person is employed. Other representatives with whom I spoke supported the retention of the current structure of LALC representation. One point that was also raised was that there would be confusion if there were plebiscite elections at the State level and a board structure at the local level.
Under the current system, LALC office bearers cannot be employees of the LALC. These positions are not paid—they do not even receive a stipend. The sum of $110,000 per LALC will not go very far. The bill seeks to increase the functions of Aboriginal land councils without increasing funding. I cannot see how the system can be sustainable in this way. The chief executive officer [CEO] of a LALC will be responsible for maintaining the electoral rolls of the council. The CEO must list on the membership roll the names and addresses of those who qualify for membership of the council. The bill sets out the grounds of eligibility to become a member of a LALC. People who are members of more than one LALC can have voting rights in only one of them. Members will be entitled to vote in LALC elections only if they have attended at least two meetings in the previous 12 months as a voting member and they have not been suspended from membership.
There does not seem to be consensus throughout the State about whether the plebiscite model or the electoral college model is preferable for the election of New South Wales Aboriginal Land Council councillors. There is some concern that the plebiscite model could favour certain dominant families. But the plebiscite model still seems to be the option preferred by most groups that I spoke to. The Brighten-le-Sands meeting, at which LALC representatives from across the State were present, supported the plebiscite model, and the Greens also support retaining this model. There is a very strong feeling that the New South Wales Aboriginal Land Council elections should be conducted by the New South Wales Electoral Commission. This has been the case since 1990. I will move amendments to ensure that elections are conducted by the New South Wales Electoral Commission at both local and State levels.
Virtually all representatives I spoke to were adamant that New South Wales Aboriginal Land Council councillor positions must remain full-time positions. There needs to be adequate resourcing of these positions. There is often a great deal of travel involved in being a councillor, particularly for those representing outlying regions. This can be very time consuming, and the positions should be full-time. I had intended to move an amendment in Committee to retain the councillor positions at full-time status as the bill sought to amend the Act to make them part-time. I am pleased that the Government has moved an amendment in the other place to make the positions full-time.
There is very strong opposition in the communities to government appointees on the New South Wales Aboriginal Land Council board. I commend the Government for recognising this fact and for amending the bill in the other place to remove the proposed government appointees. Government appointees on the board would have no mandate from the people and are not wanted by Aboriginal communities. Some groups that I spoke with opposed the removal of regional Aboriginal land councils [RALCs]. While I acknowledge that those RALCs had essentially been stripped of any meaningful functions, some areas worked very effectively at the regional level. The replacement of these councils with regional forums will hopefully allow for that tier of regional co-operation to continue.
Other opinions were voiced very strongly about the number of regions, and consequently the number of New South Wales Aboriginal Land Council councillors. At present there are 13 councillors on the New South Wales Aboriginal Land Council board and 13 corresponding regions. The bill proposed reducing the number of regions to six. There seems to be broad acceptance among the communities that nine regions is an acceptable compromise position. I wrote to the Minister about the issue in May this year—I understand that many groups lobbied him on this point—but the Government arrogantly responded with six regions in the legislation. It was only last week that the Government finally conceded to nine regions, and amended the bill accordingly. Nine regions are more appropriate as language belts can be used to rationalise the boundaries. There will be better consistency with countries. I will read onto the record a letter from Mrs Elsie Cora Smith of the Yaegl and Bungalung Tribes. She wrote:
Aboriginal Tribal Lore (Cultural Ways): In relation to the amalgamation of Regions and Local Aboriginal LALC:
Many many years ago if you were to trespass on other tribal grounds than yours, you would have gotten speared or killed. The only way you were allowed to go to other tribal grounds, was if you was married or welcomed. It was taboo for you to even put a foot on other tribal grounds. Our elders and young ones are working on ways to bring back our culture. I see the amalgamation as a conflict of interest. This will cause tribal warfare. Other tribes do not want to be overruled by other tribes. I ask that you would respect this letter as we Aboriginal still respect our culture. 4376 LEGISLATIVE COUNCIL 21 November 2006
We need to respect the culture of Aboriginal people, to respect their history and to respect their obvious desire not to be lumped together in regions that are conceived inappropriately as far as cultural boundaries are concerned. I am pleased that the Government has agreed to the nine regions. Some mention has been made in the debate about the consultation process in respect of the bill. The general view expressed with regard to the consultation process was that enough forums were held but that insufficient information was provided, or that the information provided was not in an easily accessible form. Bulky documents given as information were inaccessible to many attendees. This made it difficult for people to make informed decisions.
Another complaint was that costings of the proposed amendments had been requested on numerous occasions and not provided. Moreover, an exposure draft of the bill should have been supplied. It is a lengthy bill that contains technical elements that my office is still coming to grips with. Some elements of the bill were not flagged in the task force papers. Unfortunately, the devil is often in the detail, and the operational implications of some of the changes are difficult to determine. As the land dealings part of the legislation is yet to be addressed, I hope that the government of the day—whoever it may be—will be open to revisiting any amendments in the legislation before us that are found to be problematic in practice between now and the introduction of the next bill.
My office wrote to all 122 local Aboriginal land councils early this year to gather input about the proposed changes to the Act as flagged by the issues papers released by the task force. In the course of the year I have met with representatives of various local Aboriginal land councils, regions and the New South Wales Aboriginal Land Council. The Northern Alliance, representing LALCs from about one-third of the State, has been particularly helpful. I have also met with representatives of the Metropolitan Local Aboriginal Land Council, Darkinjung, Griffith, Narromine, Hay, Coonamble, Birrigan Gargle and Mindaribba. I have received correspondence from Tamworth, Amaroo, Dorrigo Plateau and the New South Wales Aboriginal Land Rights Action Group. I thank all the people who have provided my office with input on this important legislation.
I would like the Minister to make a commitment to a fresh round of consultation before the next round of amendments is brought before Parliament. They need to include the land dealings provisions but also the operational issues in this bill. I have concerns about some of the provisions in the bill that may cause operational difficulties. There is not enough time to try to amend them at this stage but I hope that if some of the amendments before us prove to be unworkable they will be revisited in the next round of amendments—with adequate consultation with Aboriginal people well beforehand.
The Greens support the provisions in the bill dealing with community and business plans. This will necessitate strategic planning within LALCs, which is viewed by the community as a positive step. It will go some way towards making LALCs function more efficiently, with goals in mind. I do, however, have some concerns about the provisions regarding the approval of these plans by the New South Wales Aboriginal Land Council. This could have operational problems, and I hope that this part of the legislation is revisited in the next round of amendments.
The Greens support moves for members of local Aboriginal land councils to accrue benefits from council membership. Currently the Act does not allow benefits to be of assistance to members. Crazily, money can go to non-members but members cannot benefit. This is considered to be problematic because if members cannot receive benefits from council membership that can be an incentive for them to engage in corruption and the illegitimate drawing of funds. Funding for LALCs has been totally inadequate. It has been barely adequate for smaller LALCs and nowhere near enough for larger LALCs, such as the Metropolitan Local Aboriginal Land Council. This legislation is cost neutral to government. However, it gives the New South Wales Aboriginal Land Council significant additional functions without the funding to carry them out.
The bill gives a significant number of functions that were in the hands of the New South Wales Aboriginal Land Council to the Registrar of the New South Wales Aboriginal Land Rights Act. Concerns have been raised about this concentration of power in a non-elected person. While I have a good deal of respect for the current registrar, his appointment will end soon. I note also that the budget papers have shown a significant reduction in funding for the registrar and his staff. I have some concerns that the registrar will have a host of additional functions and possibly no funding to carry them out properly.
The bill introduces a regular review of the Act every five years, which the Greens support. I note, however, that the phrasing of the bill should be more inclusive and mention Aboriginal people in the review, not just the Minister. Land Rights legislation has traditionally been afforded a bipartisan approach—I like to think of it now as multipartisan—and I am pleased that the Government has made changes to the bill in order to 21 November 2006 LEGISLATIVE COUNCIL 4377
address the key concerns of Aboriginal people. I was preparing to move essentially the same amendments in the House so I welcome the Government's moving them in the other place. I believe that has overcome some of the Opposition's concerns as well, and the Opposition will no longer move a motion to send the bill to a select committee. I hope that this co-operative approach continues in the next round of legislation about the land dealings provisions of the Act. The Greens support the bill.
Reverend the Hon. FRED NILE [8.49 p.m.]: The Christian Democratic Party willingly supports the Aboriginal Land Rights Amendment Bill 2006, which amends the Aboriginal Land Rights Act of 1983, the principal Act. There has been much discussion and consultation about the whole issue of Aboriginal land rights in New South Wales, the New South Wales Aboriginal Land Council and the whole of the organisation being in limbo. This bill will bring some certainty to the future of the Aboriginal people of this State and their ability to organise their affairs with a view to self-determination and self-management.
I note that some members who have spoken in the debate referred to the debate in this Chamber on the Aboriginal Land Rights Bill on 30 March 1983. I still remember that debate. As a still fairly new and naive member of this place, having been elected in September 1981, this was one of the first controversial bills that I had to confront as a member of Call to Australia, which became the Christian Democratic Party. As I listened to the arguments put in support of that Labor Government bill, I came to the conclusion that I should support it. I did not realise that there would be such strong opposition to the bill from the Liberal Party, the National Party and the Australian Democrats. There were then only two members who were outside the major parties, the Hon. Elisabeth Kirkby and I, and for some reason known to the honourable member she strongly opposed the Aboriginal Land Rights Bill. Hansard records that, when it came to the division on that bill, the 20 Labor members and I voted for it, and the Liberals and the National Party and the Hon. Elisabeth Kirkby voted against it. So it was still a close vote of 21 to 18.
At the very last moment, on the third reading, the Hon. Elisabeth Kirkby moved that the question "That this bill be now read a third time" be amended to "That this bill be read a third time this day six months", which is a technical way of defeating the bill on the third reading. So the member was very persistent, as the Leader of the Australian Democrats, in opposing the bill. I felt as a matter of conscience I should vote for it. As a result, I lost the support of some people in this State who were opposed to Aboriginal land rights, mainly because they did not understand the bill. A fear campaign was run at the time that, for instance, farmers would lose their land and the bill would affect private ownership of land. Of course, none of it was true. That legislation dealt only with Crown land that was not the subject of a planned purpose. Put brutally, it could even be said it was wasteland that was being made available under that bill. As I studied the issue, I came to the conclusion that I should vote for the bill, and I did that. In opening my second reading speech I said:
I support the bill.
I continued:
No land rights bill, framed as it must be in heated emotions and controversy, will ever be perfect, as was seen from the vocal protests of a minority of Aborigines who last night demonstrated outside the precincts of this House. The clock cannot be turned back. The original inhabitants of other nations have received land rights. I refer in particular to the inhabitants of the United States of America, Canada, New Zealand and Alaska. Australian Aborigines are well aware of that and want similar rights. The Aborigines' claim and call for justice will not go away. It is better that the Parliament face that issue and deal with it. I agree, in principle, that justice should be seen to be done to the Aboriginal descendants of the original inhabitants of this nation.
I quoted from a paper of the Catholic Justice and Peace Commission:
We acknowledge the necessity for Aboriginal groups to have land so that they may freely preserve or reconstruct both their spiritual and social organization.
I felt very proud that I made that decision in principle. That was not a political decision. If I had made a political decision based on votes, I would have opposed the bill. But I believed in my conscience that I should do the right thing and vote for it, which I did. My vote was important from the point of view of the Government having my support.
The bill before the House has many positive aspects to it. However, there has been controversy over a number of its provisions. From our meetings with Aboriginal representatives, there seems to be a feeling that the Government, in bringing in the amending bill, was seeking to take away something from Aboriginal people. There was an issue regarding how members of the board of Aboriginal land councils would be elected. I am very pleased that the Government has amended its bill to ensure that there will be a direct system of electing 4378 LEGISLATIVE COUNCIL 21 November 2006
board members of land councils to ensure a democratic process, with all members being directly elected through this system. That was a major demand put to us, and to me personally, by the Aboriginal representatives.
A second area of dispute related to the number of regional representative councils. Initially, the Government proposed six. This would have created many problems for the Aboriginal people of this State, so I am pleased the Government has agreed to amend its bill to provide for the existence of nine regional representative councils, so that diverse groups within the Aboriginal community receive adequate representation across the State and have a greater voice.
The other contentious issue was whether members of the New South Wales Aboriginal Land Council would be part time. The initial legislation provided for part-time representatives, making it difficult for those representatives to do their job and cover the whole of the State. I am pleased the Government has changed the bill to provide for full-time elected representatives of the New South Wales Aboriginal Land Council, instead of part-time representatives. This will ensure a dedicated and committed team working hard for all of their members.
The other issue of concern was the method of determining the appropriate method of indexing the minimum level of the statutory fund established from the raising of land tax. It is an investment fund administered by the New South Wales Aboriginal Land Council. That also has been adjusted in a way such that I believe Aboriginal leaders will now be happy with it. It may not be perfect, but it is an improvement on the proposal originally put forward by the Government.
So there are many positive aspects to the legislation. On approval of their membership, local Aboriginal land councils will be required to submit business plans for approval by the New South Wales Aboriginal Land Council to provide activities and benefits, such as education, training and scholarships, home ownership, concessional loans, funeral funds, cultural activities, and child and aged care services. There will also be a requirement for the training of board members and councillors. The bill will provide greater accountability, with grounds to disqualify board members from standing for election or from continuing to hold office.
That reminds me of one of the controversial debates in this Parliament, either late in 1983 or early the next year, when the Labor Government, because there had been some problems with the administration of the land councils, and as a result of Opposition criticism, brought in a bill to tighten up accountability measures. I assumed that the Opposition would vote for that amendment. But, when the Labor Government introduced the bill the Coalition Opposition said it opposed it. I reminded Opposition members that the bill resulted in part from their criticisms about lack of accountability. One member of the Opposition, I think a National Party member, said, "But, Fred, it still has 'Aboriginal Lands Rights' in the name of the bill, so the Opposition are still voting against it." That was an irrational reaction in those days to the phrase "Aboriginal land rights".
The Hon. Jennifer Gardiner: There was nothing irrational about Adrian Solomons.
Reverend the Hon. FRED NILE: So the Opposition parties voted against a bill that resulted from their demands. The bill was the result of Coalition demands. It deals with accountability. I found it very hard to cope with that type of mentality. The Christian Democratic party is pleased to support the bill and to continue to work with Aboriginal leaders in the State. I have recently visited a number of Aboriginal centres, among them Mulli Mulli, which is just north of Kyogle, almost on the Queensland border. It is a Christian village, and the centre of the village is its church. The Mulli Mulli Land Council represents the village. I urge all honourable members to take the time to visit that community, where they will see a pristine, model Aboriginal community, one of which I am sure they would be as proud as I am. Pastor Francis Bundock has led the Mulli Mulli community for many years.
A couple of weeks ago I visited the Eden Aboriginal Land Council, which is led by Pastor Ossie Cruise, who was a president of the Aboriginal land council a few years ago. The developments and activities in his region are amazing. If honourable members were to visit the region, they would be very proud of the high-quality buildings and what the Aboriginal community have achieved. The Aboriginal community makes its facilities available to the whole community, the so-called European community. The Christian Democratic party is very pleased to support the bill.
The Hon. Dr PETER WONG [9.01 p.m.]: I support the Aboriginal Land Rights Amendment Bill. I congratulate the Government on introducing the bill. I am pleased to learn that the young Reverend the Hon. Fred Nile was a very progressive member of Parliament in his early days. 21 November 2006 LEGISLATIVE COUNCIL 4379
Reverend the Hon. Fred Nile: I have always been progressive.
The Hon. Dr PETER WONG: I must correct myself: he remains so. I also thank the Minister's adviser for giving me a detailed briefing on the bill. I know that the former Minister for Aboriginal Affairs, the Hon. Andrew Refshauge, initiated the review of the Aboriginal Land Rights Act 2004. I also note that in drafting the bill the Government consulted many Aboriginal communities up until the last minute, as mentioned by the Mr Ian Cohen. As previous speakers have stated, the bill is a huge improvement on Aboriginal land council governance and will enable the better management of Aboriginal land council assets, investments and business enterprises. I congratulate both the Government and the Minister on a job well done.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [9.03 p.m.]: Consultation on the Aboriginal Land Rights Amendment Bill was poor, but it came together in the end. The key elements the Aboriginal people wanted are in the final draft, and for that I am grateful. I will not allude too much to the process, but a reasonable result has been achieved when one considers the amendments.
The Hon. Greg Pearce: Then sit down!
The Hon. Dr ARTHUR CHESTERFIELD-EVANS: Some of us have tripled our rating in the polls, and some of you have not! But that is all right, I do not mind taking the votes of those opposite. Aboriginal people have a difficult time in the world of politics. Their culture involves training youth for leadership from a young age. Cultures that encourage and groom people to be leaders from an early age have an order that is almost predestined; they have a sense of personal destiny and responsibility. I understand that is how members of the Aboriginal community become Elders. The tribal framework has been very much disrupted by the boundaries of Federal and State governments and local councils; the white man's process of elections and voting is quite different from that of the tribal Elders. It is difficult when areas are defined by arbitrary boundaries— initially there were 13, but now there are nine. Historically, the translocation of Aboriginal people, and the paternalism and bureaucracy with which Aboriginal people's aspirations, hopes and reasonable expectations have been managed, have made it even more difficult. All those things have to be remembered.
I understand that Aboriginal people were very upset that the Government—and this is indicative of the arrogant paternalism that has characterised the Carr and Iemma governments—did not produce an exposure draft of the bill for Aboriginal people to consider in a timely fashion. They particularly wanted a plebiscite because it encompasses the idea that everyone should have a say, that there should not be an elite of the elite, that there should be more regions so that geographical tribal groupings would be respected, and that elections should not be rorted and should be oversighted by the Electoral Commission. Those three key elements, which Aboriginal people wanted, are in the final print of the bill. It is important, therefore, that the bill be passed. But the Government should improve its methods. It is almost serendipitous that the bill has reached this stage. However, the Australian Democrats are happy to support it.
The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [9.07 p.m.], in reply: I thank all honourable members for their contributions, and I commend the bill to the House.
Motion agreed to.
Bill read a second time.
In Committee
Clauses 1 to 5 agreed to.
The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [9.09 p.m.], by leave: I move Government amendments Nos 1 to 5 in globo:
No. 1 Page 16, schedule 1 [41], proposed section 63 (6) and (7), lines 32–38. Omit all words on those lines. Insert instead:
(6) The Electoral Commissioner for New South Wales, or a person employed in the office of and nominated by the Electoral Commissioner, is to be the returning officer for an election.
No. 2 Page 32, schedule 1 [47], proposed section 106 (3) (g), lines 4 and 5. Omit "and between members of Regional Electoral Forums".
4380 LEGISLATIVE COUNCIL 21 November 2006
No. 3 Page 37, schedule 1 [47], proposed section 116 (1) (b), lines 29 and 30. Omit ", Regional Electoral Forums".
No. 4 Page 40, schedule 1 [47], proposed section 121 (3), line 24. Omit "Registrar". Insert instead "Electoral Commissioner for New South Wales, or a person employed in the office of and nominated by the Electoral Commissioner,".
No. 5 Page 51, schedule 1 [56], proposed section 149 (4) (b), line 20. Omit "Registrar". Insert instead "Electoral Commissioner for New South Wales".
The amendments have been moved by the Government as a result of a drafting error. The intention of the election provisions in the bill is to ensure that the Electoral Commissioner and not the registrar will be the returning officer for an election.
Mr IAN COHEN [9.09 p.m.]: The Greens agree with the amendments moved by the Government. What an amazing coincidence! Three of the Government's amendments are exactly the same, word for word, as the Greens amendments. Amendment No. 2 and amendment No. 3 relate to a drafting error that would have been relevant under the electoral collegiate system of voting. Those amendments are acknowledged as tidying up provisions. The other three amendments are word for word the same as the Greens amendments. I am just a tad resentful that I did not get the opportunity to move a few amendments successfully in this Committee, but I suppose that is the name of the game when one is dealing with a big party like the Australian Labor Party.
The Electoral Commission should run the elections to preserve the integrity of the system. If the registrar were to run elections, it would place the registrar in a very difficult position if there were disputed returns. The Electoral Commission is the appropriate body to supervise elections. That was the subject of a request from the Greens, and I am very pleased that the Government has taken up this position and moved an amendment. We can now move on with unanimity toward the successful conclusion of this stage of the bill.
The Hon. ROBYN PARKER [9.11 p.m.]: The Liberal-Nationals Coalition wholeheartedly supports the amendments, which are necessary to strengthen the bill and to ensure that there is no confusion about who conducts elections. However the amendments were formulated, the Coalition supports them and looks forward to the conclusion of debate on this bill.
Reverend the Hon. FRED NILE [9.11 p.m.]: Without trying to take credit for the amendments, I advise that I raised the matters dealt with by the amendments as soon as I saw the first draft of the bill. I proposed that the Electoral Commissioner should conduct the elections. In my remarks to a number of people and the deputations I met I said, "Unions have to have their elections supervised by the Electoral Commission and I believe the same principle should apply to the Aboriginal land council." I am pleased that that proposal has been picked up by the Government. I support the amendments.
Amendments agreed to.
Schedule 1 as amended agreed to.
Scheduled 2 agreed to.
Title agreed to.
Bill reported from Committee with amendments and passed through remaining stages.
TUNNEL FILTRATION
Production of Documents: Tabling of Documents Reported to be Not Privileged
The Clerk tabled, pursuant to the resolution of 21 November 2006, documents identified as not privileged in the report of the Independent Legal Arbiter dated 1 November 2006 on the disputed claim of privilege on papers relating to a further order for papers regarding tunnel filtration.
The Clerk advised the House that, pursuant to recommendations in the report of the independent legal arbiter that certain information be masked, before being made public additional documents had been returned to the Director General of the Premier's Department for masking. 21 November 2006 LEGISLATIVE COUNCIL 4381
ADOPTION AMENDMENT BILL
Second Reading
Debate resumed from 25 October 2006.
Ms SYLVIA HALE [9.15 p.m.]: When debate on this bill was adjourned I said that the Greens support various provisions of it, such as those making it easier for children who have been placed in foster care to be returned to the care of the department when the foster placement was not working out. While the Greens are happy to support a number of the provisions of the bill, we have misgivings about some provisions, and they are shared by other members of the crossbench. We are particularly concerned about the failure to consult in a timely manner with many organisations. Consequently it will be very difficult for us to support all aspects of the bill.
Since 25 October, nothing has been done to allay our concerns. We are still deeply concerned about some aspects of the bill. After speaking to various groups, including the Aboriginal Child, Family and Community Care State Secretariat (NSW) Inc. [AbSec], members of the Franciscan religious order, an indigenous academic and a representative of A Just Australia, the Greens are of the opinion that we are unable to support the bill if it is not amended. I make it perfectly clear that the Greens are not saying that a child should not be removed from harm: that is not the issue. The issue is the permanent nature of adoption and its impact. Our main concern is with the bill as it currently stands in that it shifts the power for accrediting adoption services and setting standards away from the Parliament and into the hands of one person—the director general—who will be able to simply gazette the accreditation of adoption services.
These new powers raise our concerns about how much oversight Parliament will be able to exercise over adoption procedures. While we all want to do what is best for children, we should also remember that not long ago so-called illegitimate children who were born to women outside wedlock were routinely surrendered for adoption. There are many stories of adopted children later attempting to find their natural parents to be reunited with them. Our society, influenced by a moralising church's views on fallen women, thought it was desirable to remove children from their mothers. Women were pressured to consent to adoption, and their children were given up to others. I think we are all aware of the extraordinarily unfortunate consequences that resulted in many cases, both for the mothers and children. It is important when considering this bill that we are not be complacent about the claims by the Government that it is acting in the best interests of the children.
There are claims that the Department of Community Services [DOCS] does not look for extended family and kinship placements in the first instance for indigenous children and young people who are under care and protection orders. Link-Up in New South Wales has had success in supplying DOCS with the contact numbers of relatives who can foster or undertake a kinship placement. Link-Up in other States emulates the New South Wales Link-Up model. However, to be fair to DOCS, it does attempt to ensure that indigenous children are placed with indigenous foster carers wherever possible, and that principle is enshrined within legislation. Obviously if a child is put under a care and protection order and has to be moved, the child has to be placed somewhere, and, circumstances permitting, DOCS will try to place them according to the requirements of the Act.
I understand that since the bill was last debated the Government has met with AbSec and others who were initially opposed to the bill. I understand that AbSec is still opposed to it, as are a number of other organisations. A fax that I received from the Franciscan Missionaries of Mary—I understand it was sent also to other members of the crossbench—indicates that there is still community opposition to aspects of the bill. The fax, which was sent under the signature of Sister Aileen Crowe, states:
Dear Sylvia,
Thank you for taking the time to listen to our concerns on Tuesday. Since then Reba Meagher's Office has contacted us and encouraged DOCS to speak with us.
We have been told that there is presently a Review of the Adoption Act taking place and we are curious as to why these amendments need to go through the parliament and thus circumvent the review.
DOCS also tried to convince us that the changes were merely functional, but we had to stress that our lawyer's advice was that that was not the case, but in fact they could have far reaching consequences.
We were also told that Link-Up had now accepted the amendments, however when contacting Link-Up we found that this is far from the truth. Link-Up claimed they were told that the parliamentary process was almost over so they were desperately trying to create "safe guards" for the Aboriginal People. They were very surprised to hear that Reba Meagher was saying that Link-Up was 4382 LEGISLATIVE COUNCIL 21 November 2006
now happy with the amendments; this is definitely not the case. They were also "absolutely disgusted" with the lack of consultation.
Please continue to oppose this Adoption Amendment Bill on the ground that it is neither in the best interest of the child nor the best interest of the society.
Yours sincerely,
Sr Aileen Crowe
I independently confirm that Link-Up is not happy with the bill, but is merely unhappily fatalistic about its passage—and that is because of the Opposition's support for the bill. Previously I spoke about the spectre of the Stolen Generation and how at that time the powers that be thought they were acting in the best interests of the children involved. We have a similar situation here: the courts can order the adoption of an Aboriginal child by a non-Indigenous family without parental consent because, as provided, the court deems "it is in the interests of the welfare of the child". I note that the Government has produced a further amendment in an attempt to obviate these concerns, and I will speak on that matter in Committee.
There is another aspect to this however. Last week the crossbench heard from people who work with refugees. They brought to our attention two particularly worrying cases involving refugee women. One is involved in a court case at the moment so I will not go into the details of that case, and another is a Sudanese woman who, as a refugee, came to Australia desperately endeavouring to find housing for herself and her four children without any assistance from any government agency. She was placed under extraordinary stress because her knowledge of the language was not great, she had children to look after, and she was betwixt and between both State and Federal legislation. As a result of that extreme stress, her four children were removed by DOCS and she was committed to Rozelle Psychiatric Hospital for a period. After a seven-month court case she eventually reunited with her children.
It is absolutely shocking that someone from the Sudan experienced such a horrific ordeal. It was so horrific that even our Federal Government—which is extraordinarily hostile to the notion of offering a haven to refugees—was persuaded that she should be accepted here. However, rather than give her the support that she needed, our society removed her four children from her care. She had managed to keep her children with her during her entire experience in the Sudan. It is shocking also that she was committed to a psychiatric hospital. She must really wonder what sort of civilised society she has come to!
While there is a provision in the bill for a cultural plan to be in place for the adoption or placement of Aboriginal and Torres Strait Islander children, interestingly the Act provides only that there "may" be a plan put in place for any other child. There is no such requirement for any other child—that is, any child from a cultural background that is non-Anglo-Saxon or non-indigenous—to keep a connection to their cultural roots. It is important to think about children as refugees from countries very different from Australia, for example Africa. Surely they too need access to their own culture and heritage; surely that is a minimum requirement. However, if such children are fostered or adopted, there is no mandatory requirement in the bill for that need to be met in any way. Although this is a mandatory provision for Aboriginal and Torres Strait Islander children, no such provision relates to other cultural groups. Some in the refugee support movement believe that refugee children could become the new Stolen Generation.
People may regard the recent spate of celebrity adoptions as a little suspect as well. Needless to say it would be preferable for Australia to direct more aid and assistance to African nations rather than to resort to adopting children from Third World countries who are born into awful poverty. That is merely a bandaid and stopgap solution.
Reverend the Hon. Dr Gordon Moyes: I wish Madonna would adopt me!
Ms SYLVIA HALE: I am not sure that I would be so keen on that. Another aspect of concern is that the bill is retrospective. It has been put to the Greens that that may have been influenced by a number of court cases currently under way. The Greens do not approve and cannot support the implementation of legislation that could have a retrospective effect, and on behalf of the Greens I will move amendments relating to retrospectivity in Committee.
Reverend the Hon. Dr GORDON MOYES [9.28 p.m.]: The purpose of the Adoption Amendment Bill is to amend the Adoption Act 2000 to provide for a series of miscellaneous amendments that seek to increase the operational efficiency of adoption legislation in New South Wales. Honourable members would be 21 November 2006 LEGISLATIVE COUNCIL 4383
aware that a statutory review of the Adoption Act 2000 was initiated earlier this year, with submissions closing on 31 May 2006. This bill is said not to be in response to that statutory review but to be independent of it. It is said that the bill is as a result of extensive consultation held with interested parties before the introduction of the operation of the Adoption Regulation 2003. Currently we are awaiting the outcome of the review of the Adoption Act 2000 as this is an important piece of legislation for many vulnerable children across this State and it has significant policy implications. The report on the statutory review of the Adoption Act 2000 was tabled in this House in the last parliamentary sitting week. The proposed amendments in this bill are varied in nature and seemingly of minor consequence. They are said to improve the outworking of the process of adoption by removing unnecessary constraints and do not, per se, introduce new policy. Some provisions could be categorised as incidental. However, other provisions are of great significance to children who will be adopted in the future.
Before I discuss the substance of this legislation, I would like to refer to the report of the Australian Institute of Health and Welfare dealing with adoptions in Australia in 2004-05. According to this report there has been a substantial fall in the number of adoptions between the early 1970s and the early 1990s. The reasons for this, of course, are obvious: more effective birth control leading to a decrease in the number of unplanned pregnancies, the provision of income support for single parents and changed community attitudes towards single parenthood. I also add that the abortion laws in Australia, although not legally permissive, have been interpreted in a wider way than merited. With abortions in Australia estimated at around 70,000 unborn children each year, it is a grievous fact that these children are not given the opportunity to be adopted and lovingly cared for when large numbers of parents are seeking to adopt children in this country.
The institute's report indicates that in 2004-05 only 585 children were adopted in Australia. That constitutes a rise of 17 per cent from the 502 adoptions of 2004. Increases in adoptions are predominantly due to the increased parallel in inter-country adoptions—up from 370 in previous years. Interestingly, the main features regarding adoptions in 2004-05 are that 85 per cent, or just on 500 children, were local and inter-country adoptions, and 15 per cent, or 85 children, were what we call known child adoptions. Of these 86 known child adoptions, 52 were adopted by step-parents, 29 were adopted by carers, and five were adopted by other relatives of the child. Almost three out of four adoptions in 2004-05 were of children from outside Australia.
This bill applies only to children in the Minister's care until adulthood—an issue that must be remembered when we are talking about children from the Sudan and similar issues. In New South Wales 154 children were adopted between 2004-05. With such small numbers of children finding care and refuge within Australian families and the ever present need for some vulnerable children to find homes, all must be done to encourage the reception of children into stable and loving families. In this vein we place an emphasis on the fact that a child who has a mother and a father in a stable, loving and committed relationship is given the best platform for a happy and secure future.
The bill makes some amendments to adoption orders by the Supreme Court for adults. To date no-one has mentioned that issue. In order for a person aged over 18 years to be adopted it will now be necessary for that person to have been in a parent-child relationship with a prospective carer for at least five years. That rules me out for adoption by Madonna! This is to ensure that the adoptee has been brought up and cared for in a longstanding way, guarding against frivolous adoption applications. Discretion will be given to the Supreme Court to make adoption orders when the period of care is less than five years—that is, only in exceptional circumstances.
The bill makes an important amendment in relation to Aboriginal and Torres Strait Islander children that are adopted by carers of a non-Aboriginal and Torres Strait Islander background. I will speak on this issue for a moment because it is of extreme significance. In these instances the bill will require adoption plans specifically to cater for the manner in which a child will be helped to develop a sound cultural identity. As children from multiracial racial families will testify, an understanding and appreciation of background, heritage, traditions and culture are imperative to fostering a solid identity. It is particularly important in the case of indigenous children, and in light of previous shameful policies such as those brought about in previous generations.
In 2005 the Australian Bureau of Statistics reported that the formal adoption of Aboriginal and Torres Strait Islander children has not been a common practice in recent years. That is generally because of informal arrangements made for them to live with a relative or a member of their community, or within the clan. According to this report, these types of informal arrangements are mostly preferred, and adoption orders are made only when informal alternatives are judged not to be in the best interests of the child. As a matter of fact, 4384 LEGISLATIVE COUNCIL 21 November 2006
the Aboriginal organisations that I contacted declared that the concept of adoption is quite contrary to the philosophy of care among Aborigines. Aborigines prefer to be cared for within the much wider extended family, or even the tribal group.
Between 1999-2000 and 2003-04 there were only 15 registered adoptions of Aboriginal and Torres Strait Islander children in Australia. That is 15 over a three-year period. Seven of these were known child adoptions where the adoptive parents had a pre-existing relationship with a child; and eight were placement adoptions where there was no pre-existing relationship between the parent and the child. Of the eight indigenous placement adoptions recorded between the years 1999-2000 and 2003-04, four were adoptions by indigenous parents and four were adoptions by other parents. It can be seen that with only 15 indigenous children in total, that is a very small number of people over such a long period.
The bill makes an important amendment to section 67 of the Act, which deals with consent dispense orders. This amendment will add to the criteria listed in section 67 (1) (c), which the court is to consider when dispensing with the consent of the parent or guardian of the child to the adoption. Currently, the court, for instance, may dispense with consent when a person, after reasonable inquiry, cannot be found or identified. Other criteria are also listed. However, the guiding principle for the court is that the best interests of the child are to be served in dispensing with consent. The bill introduces a debatable criterion that caters for circumstances where dispensation may be necessary to enhance the child's sense of belonging and permanence in the carer's family but where there is no concern about the child's current welfare.
It is important to remember that the court will make determinations that are in the best interests of the child. Within this context, for children aged 12 years and above, the child's consent will also be required. Importantly, in those cases where the indigenous child is less than 12 years of age and under the parental responsibility of the Minister, and there is a risk that the parents' consent might come into force, the department has indicated that the Aboriginal placement principles will be carefully followed. These principles require that preferences be given to placing indigenous children with indigenous parents, whether they are relatives or next of kin. In accordance with the representation from indigenous stakeholders that we have contacted, it is of utmost importance that all must be done to place indigenous children with fellow indigenous persons.
An amendment with important operational implications relates to facilitating the return of children to the parental responsibility of the Director General of the Department of Community Services where a pre-adoptive placement has been terminated. Difficulties have emerged in such circumstances as the prospective adoptive parents have hesitated to relinquish care and responsibility of the child back to the director general. From a legal standpoint it is crucial that children in such circumstances come under the care and responsibility of the director general; they cannot be left in legal limbo. Honourable members would know that, under the State Records Act 1998, many documents of vital State significance and papers of inherent historical value are archived for safekeeping. State Records has archived original documents under the responsibility of the Department of Community Services and some of these documents include adoptees' birth certificates and photographs of the family and of the children themselves. Clearly, to an adoptee such material is of significant and sentimental importance. The bill will ensure that the provision of original documents to adopted children when they reach the age of 18 years does not contravene the State Records Act 1998. This is a very compassionate move, and I commend the Government for it.
The bill enables the prescription of adoptive services and accreditation standards to be effected by publication in the Government Gazette rather than by regulation. This will remove parliamentary scrutiny of those adoption services and classes of adoption services that are listed by the director general. If these items are gazetted there is no scope for disallowance by Parliament. It would be interesting to know why the prescription of adoption services and accreditation standards will be effected in this manner. The bill aligns the terminology used in the Act with the terminology employed in the Children and Young Persons (Care and Protection) Act 1998.
Honourable members will recall that a great deal of concern and controversy has been expressed in the House about a number of issues, including the level of consultation with indigenous groups, a particular court case that is pending on the issue of a consent dispensation order, and the retrospective aspect of the bill. I met advisers from the Minister's office who have responded to our concerns. I will detail briefly both my concerns and the response that was provided by the Minister's advisers. In the matter of consultation, in the crossbench meeting last Tuesday week we heard from peak representatives from the indigenous community about the level of consultation in relation to the bill. In their view no consultation had ensued. However, according to the 21 November 2006 LEGISLATIVE COUNCIL 4385
advisers, one of the peak representatives, known as Link-Up, is a member of a committee that was established in response to the need to review the Adoption Regulations 2003.
Further, the amendments in the bill—that were not supposed to change the underlying policy of the adoption regime—were agreed to by the committee, including members of Link-Up, during the consultation process in 2002-03. It is not entirely clear why a time frame of three years passed before the amendments were enacted. If agreement was reached on the amendments close to three years ago it arguably defies commonsense to introduce them now. According to the advisers, the amendments were incidental and non-controversial in nature. My office also asked whether the advisers had touched base with Link-Up prior to the introduction of the bill. The advisers said that they had not, but they reassured my office that they would continue to endeavour to make contact with Link-Up in order to clarify any further concerns the organisation may have. However, it seems as though the Department of Community Services [DOCS] continues to have communication difficulties with Link-Up even now. The organisation was extremely surprised to hear Minister Meagher claim recently that Link-Up was satisfied with amendments to the bill.
Mr Ian Cohen: No.
Reverend the Hon. Dr GORDON MOYES: As far as Link-Up is concerned, that could not be further from the truth. The organisation is reportedly absolutely disgusted with the Government's failure to consult it, and continues to withhold support for the bill. I thank my colleague Mr Ian Cohen for reasserting that view because I know he has checked out that matter as well. Some concern was also expressed in relation to the retrospectivity of the bill. The advisers confirmed that there is no retrospective clause in the bill. The savings and transitional provisions of the bill will deem the bill, when passed, to apply to all court cases on foot at the time of the bill's implementation. The operation of the savings and transitional clauses was the source of confusion about retrospectivity. That is no longer an issue.
Most importantly, however, concerns have been expressed about the placement of indigenous children with non-indigenous carers. Importantly, honourable members must understand that the bill does not introduce this practice. Arrangements for the placement of indigenous children are already in place, and this occurs in only a handful of cases—I think there were four such placements over a period of three or four years. The bill does not compel the court to order indigenous children to be placed with non-indigenous carers. The department, pursuant to the Aboriginal placement principle, endeavours to do all it can to place indigenous children with indigenous parents.
There was a claim that the bill will affect a court case that is pending appeal in the Supreme Court. I have been advised by the Minister's office that the court case referred to by the Franciscan nuns will not be affected by the bill. According to advice proffered, the case does not deal with the same situation governed by the consent dispensation provision to be amended by the bill. I am informed that this is primarily because in that case the Minister does not have parental responsibility for the child or children in question. Section 67 can apply only when the Minister has parental responsibility.
Finally, I turn to the concerns expressed by the Franciscan Missionaries of Mary. The Franciscan Missionaries of Mary, who are based in the inner west, have raised deep-seated concerns about the bill and proposed that a number of amendments be made to it. Although I have decided not to move the amendments because I believe they should form part of the review of the Adoption Act, I will bring them to the attention of the House because they relate to provisions in the bill and are certainly worthy of consideration by honourable members. The Franciscan Missionaries of Mary have questioned why, in the event of an indigenous child being placed with non-indigenous adopted parents, adoption plans must deal specifically with maintaining cultural identity when this principle does not apply to children from any other ethnically diverse backgrounds. They would like to see the maintenance of cultural identity included in all plans for adopting children from any culture or ethnic background.
The Franciscan Missionaries of Mary find that the "most troubling aspect" of the bill is schedule 1 [6], which would widen the grounds upon which a court can override the requirement for consent of parents or guardians in providing a child for adoption. As I alluded to earlier, under existing section 67 (1) consent can be overridden only if the parent-guardian cannot be located or identified, the parent-guardian is incapable of making such a decision, or when there is a "serious concern" for the welfare of the child and it is:
… in the best interests of the child to override the wishes of the parent or guardian. 4386 LEGISLATIVE COUNCIL 21 November 2006
However, the bill will allow the consent to be overridden by the court if the child has a "stable relationship" with his or her carer and adoption will "promote the child's welfare". It is unclear exactly how this provision will be used, but it certainly could be used in situations that fair-minded people would find unacceptable. The Franciscan Missionaries of Mary put the potential of this provision succinctly, when they say:
In phrasing the amendment in such broad terms, the bill introduces a degree of uncertainty into the very serious decision to circumvent one of the key guiding principles of adoption legislation in NSW. In particular, there are arguably far too many circumstances in which it could be determined that a child's welfare could be "promoted" by locating them in another family environment—for instance access to private tuition, living in an urban area closer to amenities etc—that are perhaps not strong enough bases for deciding to dispense with a parent/guardian's unwillingness to consent to the adoption going ahead.
The Franciscan Missionaries of Mary have also raised concerns about proposed section 79 (1) (d), which gives DOCS powers to remove without reason children awaiting adoption in the care of their parents or guardians. Surely DOCS should require a reason—ideally, a good one—for taking any child away from parents. If DOCS were required to give a reason before taking children out of their home it would allow the decision to be contestable in court. However, without the legal requirement for a reason to be given, there are no grounds upon which a parent or guardian should or could contest the decision of DOCS. The bill puts far too much power in the hands of DOCS and removes from parents the right, and perhaps the responsibility, to question the actions of DOCS in court. Some questions have also been raised about the similar increase in police powers to take children without a stated reason or explanation. I ask honourable members to consider the important objections to the provisions of the Adoption Amendment Bill raised by the Franciscan Missionaries of Mary.
I would also like to place on record the curiosity over why these amendments were not introduced after the statutory review of the Adoption Act. The Minister's advisers indicated that the amendments in this bill are technical in nature and that policy issues are to be dealt with by a future Parliament in follow-up legislation to the Adoption Act. However, I think it is quite clear that this bill is certainly not "purely functional", as has been claimed by the Department of Community Services and the Minister. To the contrary, it would have the effect of beefing up the powers of the Department of Community Services potentially at the expense of reasonable parents, guardians and carers. It has been argued that these changes lack substantiation and are being introduced "for no good reason" or cases that have shown the current legislation wanting.
Before concluding, I would like to make comment about the statutory review of the Adoption Act. This review has had many people concerned in the field of foster care and adoption, particularly where same-sex couples are involved. This is a field in which I have been engaged for more than 40 years. Some agencies—and the one I have represented for the past 30 years in Sydney—cannot in conscience take children who have been committed into their care and hand them over to same-sex couples for fostering. This has led some same-sex couples to take the agency concerned, including mine, to the Anti-Discrimination Tribunal for refusing to assign children to them for foster care.
The adoption of children by same-sex couples is anathema to many agencies. It is strongly opposed by all Muslim, Roman Catholic, Orthodox and Anglican agencies and almost all Protestant agencies. If the Minister, in acting on the statutory review or the details of this bill, is tempted to wander into the field of changing by regulations the current restrictions on adoption and foster care, it will be regarded as a major issue by all agencies in this field and their support bases. We will fight that move to the end. Otherwise, the Christian Democratic Party is pleased to support the Adoption Amendment Bill.
Mr IAN COHEN [9.52 p.m.]: I will say but a few words on the Adoption Amendment Bill. I support the position presented by Ms Sylvia Hale, who led on this bill for the Greens. I want to raise a few matters. I was interested to hear Reverend the Hon. Dr Gordon Moyes touch on some of those issues, because we have representations from a number of groups and individuals, both from indigenous communities and those supporting indigenous communities. There is a feeling that the bill is another round of paternalism revisited, after a history of government bullying and abuse. There is some quite serious concern with the direction that this bill is taking.
Link-Up, which tries to find families for people from the stolen generation, has on its books 8,000 people who were adopted, fostered or institutionalised and are still looking for their relatives. Sometimes Link-Up can only provide graveside reunions for these people, such is their long disconnection from their kinship groups. This is very distressing for all those involved, and should be avoided in the future. Link-Up and other similar groups are seeking increased funding so that indigenous people can be enabled to look after their own people, as recommended by the "Bringing Them Home" report. Nearly a third—27 per cent—of all kids in care in New South Wales are Aboriginal and yet there are only 11 approved indigenous carers in Western Sydney. However, other areas of New South Wales are better resourced than that. 21 November 2006 LEGISLATIVE COUNCIL 4387
Link-Up's position is that Aboriginal children should not be adopted. Due to the very complex nature of indigenous families that are not necessarily or usually nuclear, Link-Up suggests that it is quite appropriate for children to be cared for by a range of related people and families. There is an urgent need for more funded Aboriginal out-of-home care agencies that could seek and find the relatives that the children need and could live with. Aboriginal people need to have confidence in the agency they are dealing with and may feel that non-indigenous agencies are not as effective at understanding their needs, or finding Aboriginal kinship groups.
More funding will be needed for Aboriginal out-of-home care agencies to provide follow-up to birth families and to implement contact orders. There is currently a lack of support for birth families, and a relationship needs to be built with both the birth family and the fostering family for the sake of the child or children involved. I understand that the new foster care allowances from the Department of Community Services will now be paid to kinship carers. These payments will support out-of-home kinship care and make it easier for Aboriginal extended families to foster Aboriginal children, reducing the need for adoption of these children. I received a copy of a letter that was sent to the Hon. Reba Meagher, as Minister for Community Services at the time, and now as Minister for Aboriginal Affairs. It was regarding Aboriginal communities and the Adoption Amendment Bill 2006. The letter is from the Combined Community Legal Centres' Group, and states:
We are writing to express our grave concerns about the possible consequences of some of the changes to the Adoption Act 2000, as proposed by the Adoption Amendment Bill 2006.
Combined Community Legal Centres Group (NSW) Inc. (CCLCG) is the peak body representing 39 member Community Legal Centres (CLCs). CLCs work for the public interest, particularly assisting people who, for a range of reasons, have difficulty in accessing the legal system, including people with disabilities, women, young people, Aboriginal people and people from a culturally and linguistically diverse community. CLCs provide legal services including information, referral and advice, strategic case work, community legal education and law reform campaigns.
As part of the CCLCG, the Aboriginal Advisory Group is made up of all the Aboriginal workers from CLCs across NSW. As Aboriginal people and as workers advocating for Aboriginal children and their parents, we are aggrieved and alarmed by any proposed legislative provisions which further entrench the disadvantages suffered by our community.
We understand that Schedule 1 [6] of the Adoption Amendment Bill 2006 will allow some Aboriginal children to be permanently removed from their birth parents without ensuring judicial oversight of the views of their birth parents. We are deeply troubled that the perceived need to create a sense of "permanence" in care arrangements is given greater weight than the need of Aboriginal families to be supported in caring for their children. Permanently removing Aboriginal children from their parents is a punitive response to the challenges that some families are living with, such challenges often arising as a direct result of social oppression, racism, alienation and disadvantage over several generations.
Melissa Stubbings, Chairperson of the New South Wales Combined Community Legal Centres Aboriginal Advisory Group, added:
It is very difficult for us to distinguish between the current proposed amendments within the Bill, and the former policies of Government which created the "Stolen Generation" of Aboriginal children.
We are further unconvinced that the proposed Bill will ensure that an Aboriginal child's ties with their culture and community will be maintained if they are adopted. The practical effects of Schedule 1 [5] are silent as to any genuine mechanism for achieving this outcome.
It is our view that the most appropriate way of ensuring that an Aboriginal child in care maintains these links, is to have the child live with Aboriginal foster carers and/or Aboriginal adoptive parents. Given the severe shortage of foster carers and potential adoptive parents from within our Aboriginal community, we are troubled that the proposed amendment avoids addressing this shortage and proposes instead a method which will again facilitate Aboriginal children being permanently removed to non-Aboriginal families.
We would welcome your response addressing how the proposed amendments will support Aboriginal children and their families in a sensitive and culturally appropriate manner, without repeating the gross injustices of the past.
Other members have raised this matter this evening, but there is deep concern among Aboriginal community representatives about the direction of the bill.
The Hon. HENRY TSANG (Parliamentary Secretary) [9.58 p.m.], in reply: I thank honourable members for their contributions to this debate. Adoption is a complex and emotional issue. That is proven by the passion that members have brought to this debate. The Adoption Amendment Bill aims to improve the safety and protection of children in care, and that is why the Government cannot accept the Greens' foreshadowed amendment. I will address these matters in detail during the Committee stage. The Government intends to accept the Democrats' foreshadowed amendment clarifying that the provisions in the bill are not retrospective. This was never the intention, and we thank the Hon. Dr Arthur Chesterfield-Evans for that amendment. 4388 LEGISLATIVE COUNCIL 21 November 2006
In relation to the question raised by Ms Sylvia Hale on accreditation of adoption service providers, current accreditation standards for adoption services have been accepted by the Office of the Children's Guardian and are the result of consultation with independent organisations such as Barnardos Australia, Anglicare Adoption Services, parent support groups, Centacare Adoption Services and birth mothers. They are based on out-of-home care standards, because adoption is a form of out-of-home care. The publication of accreditation standards in the Government Gazette is entirely consistent with the publication of standards of out-of-home care providers. These standards are readily available to prospective providers on the Office of the Children's Guardian web site.
The bill will achieve regulatory consistency in the way that standards are prescribed for those out-of-home care providers or adoption service providers. Therefore the bill should be supported. In relation to the question raised by Reverend the Hon. Dr Gordon Moyes and the Greens about Sister Aileen Crowe's fax, Sister Aileen Crowe did not speak to Glenda Stubbs, who represented the Aboriginal Child, Family and Community Care State Secretariat and Link-Up at meetings with representatives from the Minister's office. Ms Stubbs has expressed concern that Sister Aileen's fax misrepresented Link-Up's position. As I understand it, they are disgusted. I commend the bill to the House.
Question—That this bill be now read a second time—put.
The House divided.
Ayes, 22
Mr Brown Mr Gay Mr Ryan Ms Burnswoods Ms Griffin Mr Tsang Mr Catanzariti Mr Mason-Cox Mr West Mr Clarke Reverend Dr Moyes Dr Wong Mr Colless Reverend Nile Mr Donnelly Ms Parker Tellers, Ms Fazio Mrs Pavey Mr Harwin Miss Gardiner Mr Pearce Mr Primrose
Noes, 5
Mr Breen Tellers, Mr Cohen Dr Chesterfield-Evans Ms Rhiannon Ms Hale
Question resolved in the affirmative.
Motion agreed to.
Bill read a second time.
In Committee
Clauses 1 to 5 agreed to.
Ms SYLVIA HALE [10.10 p.m.]: I move Greens amendment No. 1:
No. 1 Page 4, schedule 1, lines 1-11. Omit all words on those lines.
The amendment proposes to omit part of the bill that allows a fourth ground for adoption without parental consent in circumstances in which the child has established a stable relationship with the carers and it would "promote the child's welfare". The Greens would be far more comfortable if the existing legislation were left as it is instead of being amended to include an additional fourth provision. In item [6] of schedule 1, new paragraph (d) of section 67 (1) provides an alternative to the current provisions that remain under the overarching best interests test. The new provision implies a lower threshold and provides that adoption may proceed without the consent of a person other than the child if it will promote the child's welfare. 21 November 2006 LEGISLATIVE COUNCIL 4389
Does "promote the child's welfare" mean, for example, the ability of the adoptive parents to send the child to a private school? Does it mean that if the potentially adopting parents are wealthier than the birth family, they will have greater access to urban areas and to schools? What does it mean? It seems to me that "promote the child's welfare" is an extraordinarily open-ended concept. The Greens feel it is not a sufficient basis for watering down the provisions of the existing legislation. The Greens have outlined circumstances in which adoption may not be appropriate. In some cultures, a one size fits all approach to adoption should not be imposed by the courts.
We should be vigilant to ensure that we do not again remove children permanently from the culture of their birth family or their birth parents. Adoption is an emotive issue as the adoptee formally becomes part of someone else's family. When adoption is undertaken, it is all but impossible for it to be undone, particularly for a minor. The omission of new paragraph (d) from section 67 (1) in item [6] of schedule 1 would not prevent all adoptions from taking place. As a number of honourable members who preceded me in this debate have indicated, item [6] of schedule 1 is offensive to many indigenous people because it implies permanent removal and the absorbing of an indigenous child into another family. For those reasons, the Greens oppose it.
I note that the Government proposes to move an amendment to the effect that in the case of an Aboriginal child, alternatives to placement for adoption will be considered in accordance with section 36 of the existing Act. That adds a criterion that would need to be met. It is unfortunate with this bill, particularly when the Adoption Act is subject to review, that the Government should be introducing amendments of this type as a last-gasp, hastily considered attempt to shore up support. The fact that the Government is obliged to move amendments indicates how ill thought out is this amending bill. I note that in item [6] of schedule 1, new paragraph (d) (i) of section 67 (1) states that one of the reasons for dispensing with the consent of a birth parent is that the child has established a stable relationship with carers.
During the second reading debate I noted that some foster carers were very eager for a foster child to maintain links with the child's birth mother or the birth family whereas others were totally opposed to it and were determined to cut all links with the birth parents. While it may be said that a stable relationship is an essential criterion, it may be a stable relationship that has been established on a false premise that it is in the child's interest to have no connection whatsoever with the child's birth parents. There have been sufficient experiences of children who discover later in life that they were adopted, or have known from the outset that they were adopted, later having a desire to make a connection with their birth parents, but the opposition of the foster caring family to that desire or the great antagonism of the foster family toward the birth parents has discouraged reasonable attempts to establish a link. The point I make is that if a stable relationship is built on excessive concern by foster parents with ending any connection with the birth parents, that is not a very good basis for a so-called stable relationship. For those reasons, the Greens seek to amend item the provision inserted by item [6] of schedule 1.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [10.17 p.m.]: The amendment seems reasonable to me. The inquiry leading to the Report on Adoption Practices of the Standing Committee on Social Issues was extremely moving for those who participated. Because of the mores that existed in the past, a number of mothers had been persuaded or forced to give up their children. The people who justified their behaviour in taking the children said, "What else could we do?" The girls were 15 or 16 or were very young. They had no means of support. There was no welfare. If the families had rejected them as being immoral because they had had sex early in their lives, their families would not support them. They could not obtain welfare because there was no welfare at that time for that purpose. They could not have a job and have the child minded, if their parents would not adopt the child, so it was felt that the girls had no choice in the matter.
Some of the people involved in the process of taking away those children were from religious organisations. In a sense they were being helpful in that they were providing material care, but they saw themselves as instruments of a system in which the die had already been cast. They were merely at the cutting edge of taking away the baby. As they worked their deceit, they sedated the girls or the women because they believed they had to do that.
The women who lost their children were scarred for life, certainly the ones we saw. I am not sure to what extent they were representative, but certainly they were very upset. I have heard often of adopted children who are fine until they discover that they were adopted, and they then tend to instinctively look for their pasts. For the court to simply say that the welfare of the child is pre-eminent, based on the mores of that time, is a little dangerous. Courts obviously have to decide some very difficult issues in this area. Sometimes a stable relationship with a carer exists because of the child's ignorance, because his or her mind is poisoned against the 4390 LEGISLATIVE COUNCIL 21 November 2006
birth parents, or because the birth parents are effectively excluded as rivals by the carers. Such a relationship is predicated on the effective non-existence of the other parties. It is a worry that if this provision is omitted the courts might be able to sanction that state of affairs. This is not helpful. I did not support the bill in the first place, but the amendment does improve the bill somewhat.
The Hon. HENRY TSANG (Parliamentary Secretary) [10.21 p.m.]: The Government cannot accept this amendment. The Government's proposed amendment to section 67 applies specifically to children who are in the parental responsibility of the Minister until they reach the age of 18 years. These are children who have been removed from their parents' care due to the most extreme abuse or neglect and whom the court has determined can never be returned to those parents. These are children who have come from the most disadvantaged backgrounds but have found foster families who offer them love and support, nurturing and security. Research makes it very clear that permanency, stability and security create the best outcomes for children who have come from backgrounds of abuse and neglect.
For many of these children adoption provides the greatest security and stability; the stability of knowing that they belong to a family who loves them and wants them, and the security of knowing that they will not have to return to an abusive situation. The bill clarifies the circumstances in which a court can dispense with consent to the adoption of a person, other than the child. By way of background, the Adoption Implementation Advisory Committee—with representatives from key stakeholder groups such as Centacare Adoption Services, Anglicare Adoption Services, Barnardos, Link-Up Aboriginal Corporation Adoption Services Branch— recognised that the present wording of section 67 made it unduly difficult for children who have been in out-of-home care for an extended period to be adopted by their foster parents without parental consent. The Aboriginal Justice Advisory Council was also consulted.
The Adoption Implementation Advisory Committee found that an unintended consequence of the wording of section 67, which requires "serious concern" for the welfare of the child, limits the court to dispense with consent for a child recently placed in care. It excludes children who are in an established long-term stable relationship with their foster family. This is because it is difficult to provide evidence that there is a serious concern for the welfare of the child when the child is in a loving and nurturing long-term foster placement. The courts have deemed this a problem and some judges have been unwilling or unable to dispense with consent. This means that many children in care must wait until they are 12 years old, the age at which they can give consent to their adoption.
Many children feel that they do not really belong to a family until they are officially adopted into the family. The law as it is currently worded may deny them this very important feeling of belonging. For other children, adoption provides the security of knowing that they will never be returned to a terrifying, abusive environment. As with all provisions in the Adoption Act, the bill will provide an avenue for the court to dispense with consent only when the court is satisfied that it is in the best interests of the child.
The proposed amendment to section 67 will not unfairly target the Aboriginal or Torres Strait Islander community. This Government recognises that past welfare practices have had a devastating impact on Aboriginal people. We recognise that adoption is alien to Aboriginal culture and the bill will not override safeguards in place to protect the rights of Aboriginal children and the wider Aboriginal community in prospective adoptive situations. In order to offer further protection to Aboriginal children and young people, the Government will move an amendment to section 67 which will require courts to be satisfied that all of these safeguards have been met when adoption is being considered. The court must be satisfied that Aboriginal child placement principles have been applied.
The principle ensures that Aboriginal children who are placed in care are placed with extended family as a first resort. Where this is not possible children should be placed with their extended clan and then with someone from the broader Aboriginal community. Only as a last resort will an Aboriginal child be placed with non-indigenous carers. If the court decides it is appropriate to dispense with the birth parents' consent, parents will still have the right to be joined as a party to proceedings and have their say. And if a prospective adoptive parent is non-Aboriginal the court must hold a preliminary hearing.
Placement of an Aboriginal child for adoption is not to proceed unless it is clearly preferable to any other action that could be taken by law in relation to the care of the child. Further consultation with a person who has experience in working with Aboriginal children or a person nominated by the child's parents, extended family or kinship group must occur before adoption can proceed. The amendment arose out of the deliberations of the Adoption Implementation Advisory Committee. Aboriginal interests were represented on this committee. 21 November 2006 LEGISLATIVE COUNCIL 4391
I am also advised that representatives from Link-Up are satisfied that the intent of the proposal is not in any way to disadvantage Aboriginal or Torres Strait Islander children or their communities. The Government cannot accept the amendment.
The Hon. MATTHEW MASON-COX [10.26 p.m.]: The Opposition opposes the amendment.
Amendment negatived.
The Hon. HENRY TSANG (Parliamentary Secretary) [10.27 p.m.], by leave: I move Government amendments Nos 1 and 2 in globo:
No. 1 Page 4, schedule 1, line 11. Omit "welfare.". Insert instead "welfare, and".
No. 2 Page 4, schedule 1. Insert after line 11:
(iii) in the case of an Aboriginal child, alternatives to placement for adoption have been considered in accordance with section 36.
These amendments are introduced in response to concerns raised by Aboriginal stakeholders, and will clarify the intentions of the bill. The Adoption Act 2000 already has a number of safeguards built into it to ensure the protection of cultural identity and heritage for Aboriginal children in care. The amendments the Government is moving will further reinforce those safeguards by making it explicit that the court can only consider the adoption of an Aboriginal child once it is satisfied that protections built into the legislation have been met, protections such as the Aboriginal Placement Principle under which an Aboriginal child must first be placed in the care of extended family or parents from their own Aboriginal community. Where their own community is unable to provide care for them, Aboriginal children should be placed with Aboriginal carers from another community.
Only as a last resort is an Aboriginal child to be placed with non-Aboriginal carers. The Aboriginal Placement Principle is just one of a number of safeguards in place in the legislation. The Act also requires the court to hold a preliminary hearing with the prospective adoptive parent of an indigenous child where that adoptive parent is not indigenous. Numerous requirements around consultation must also be satisfied in these circumstances, including provision for a relevant Aboriginal person, where possible a family member, or a person with expertise in relation to the out-of-home care of Aboriginal children.
Every honourable member is aware of the devastating effects of past welfare practices on the indigenous people of this country. The Government is very much aware of the hardship and grief suffered by Aboriginal people as result of these practices. The bill further strengthens the right of all Aboriginal children to know their cultural heritage and to identity as Aboriginal persons. These issues, along with the best interests of the child, are fundamental principles of the Act and this bill, and are strengthened by these amendments.
The Hon. MATTHEW MASON-COX [10.29 p.m.]: Opposition members support the Government's amendments, which we think deal adequately with the sensitivities associated with the adoption of Aboriginal children. It has been noted by a number of honourable members that the concept of adoption is alien to Aboriginal people. Opposition members believe that the Government's proposed amendments deal sensitively with that issue.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [10.30 p.m.]: I do not believe that honourable members should support these amendments. The Government is simply wringing its hands and saying, "Once the options have been considered we can go ahead." Effectively, these amendments are a bit of a salve to its conscience. The bottom line is that while the Government has to consider alternatives, it can still go ahead and place a child outside an Aboriginal family. According to one of the agencies that was placing children, it did not have sufficient resources to find Aboriginal families in which to place these children. So it all comes down to a question of resources.
The point was made that an Aboriginal foster agency that had credibility could find placements for Aboriginal children whereas the Department of Community Services [DOCS] had no chance of finding families in which to place them because Aboriginal families do not trust DOCS and will not deal with it. So funded non-government organisations are able to find placements for Aboriginal children but DOCS is not. The Government said that alternatives are being considered. Presumably DOCS workers have said, "We have looked everywhere and cannot find places for these children in Aboriginal families so we will place them with 4392 LEGISLATIVE COUNCIL 21 November 2006
non-Aboriginal families" when it was really only a question of resources. That has often been the case with the placement of Aboriginal children. As a consequence I have misgivings about the amendments.
Mr IAN COHEN [10.32 p.m.]: I do not support the Government's amendments. The message from indigenous representatives who have approached members on the crossbenches and the Greens is clear: they need more resources so that their organisations can deal with this adoption issue. Equally, they were clear that they did not want any non-indigenous organisations to play a role in the adoption process. Clearly, this is a cry for better funding and support for indigenous people and organisations to be more effective, and to get away from what they consider to be paternalism in the adoption process.
Ms SYLVIA HALE [10.33 p.m.]: The fact that these amendments were moved is indicative of the failure of the Department of Community Services to consult with the community. The Government has cobbled together amendments at the last moment to seek to placate community concerns. The indigenous community is extraordinarily suspicious of the department, given the history of its relationship with government authorities in this regard. The Government, through these amendments, is trying to say, "We will take these sorts of issues into consideration." That is a pathetic attempt by the Government to reassure the community that it has little to fear. The bill has engendered opposition in the Aboriginal community and the motives underlying these provisions will only breed cynicism and further distrust of the Government.
Amendments agreed to.
Ms SYLVIA HALE [10.35 p.m.], by leave: I move Greens amendments Nos 2 and 3 in globo:
No. 2 Page 4, schedule 1, lines 14-22. Omit all words on those lines.
No. 3 Page 5, schedule 1, line 11. Omit "(2B) or".
The amendment to section 79B (1) (b) would delete any reference to new section 79 (2B), which the Greens are seeking to delete altogether in amendment No. 2. The Greens and other members in this Chamber are concerned about two aspects in proposed section 79 (2A) and (2B). Proposed section 79 (2A) states:
The Director-General's parental responsibility for a child under section 75 or 78 is suspended while the child is placed in some other person's care responsibility pursuant to subsection (2).
I find it extraordinary that the director general basically is trying to divest himself or herself of parental responsibility for a child that essentially is under his or her care. Because the child has not been adopted the child can be removed from the foster carer family. There is an obligation on the director general to have ongoing parental responsibility for a child; there is no justification whatsoever for that parental responsibility to be suspended. Quite conceivably it is a cost-cutting issue. The director-general might be able to say to foster carers, "You have total responsibility. My responsibility has been suspended. You are totally responsible for providing for the child." So proposed section 79 (2A) is the first aspect that causes the Greens some concern. Proposed section 79 (2B) states:
The Director-General may at any time, and for any reason or no reason, make an order terminating a child's placement under subsection (2) and directing that the child be returned to the parental responsibility of the Director-General.
The Hon. Peter Breen said to me not long ago that one would have thought that provision had been devised by Frank Sartor rather than come from the Department of Community Services.
Mr Ian Cohen: It is the same Government.
Ms SYLVIA HALE: The same government. They have the same stripes.
Reverend the Hon. Fred Nile: They are tarred with the same brush.
Ms SYLVIA HALE: That is not a phrase I would dare to use. Why would any Parliament pass any provision that allowed any public servant to make an order, and to make no pretence of justifying that order? For the Act to explicitly state that the director general has to provide no reason is to cut off any avenue of appeal that any person might have to the courts. I believe it is inherently offensive that there be no requirement for reasons in this provision. I do not care whether it is this Act or any other Act; it is a minimum requirement of any public official who acts in any manner that he or she should be answerable or accountable for those actions. 21 November 2006 LEGISLATIVE COUNCIL 4393
It is abhorrent explicitly to excuse a public official from having to give reasons for his or her actions. Every member in the House should oppose this provision in the bill.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [10.39 p.m.]: I support Greens amendments Nos 2 and 3. It is extraordinary that the bill contains a provision that suspends the director general's parental responsibility for a child when the child is placed in some other person's care. In other words, after the director general has placed a child—even if it is a bad placement—he or she has no further responsibility. There is no redress, and that means there is no supervision. It is extraordinary that the Department of Community Services cannot be responsible, no matter what mistakes it makes. That will be effect of proposed section 79 (2A). Proposed section 79 (2B) states:
The Director-General may at any time, and for any reason or no reason, make an order terminating a child's placement under subsection (2) and direct that the child be returned to the parental responsibility of the Director-General.
So having basically said, "The child is yours; we take no responsibility for anything that happens", the director general may walk in at any time and for no reason—there is absolutely no accountability—take back the child and assume responsibility again. The bill confers on the director general the completely arbitrary power to give away a child—in which case no matter what happens the director general is not responsible—and then take back the child without giving a reason. The object of the new subsection is to ensure that there is no cause for action against the department, no matter what.
What sort of legislation says that a department is entirely beyond the reach of the law and any accountability that it would derive under the law? I think this is appalling legislation. It is extraordinarily arrogant of the Government to introduce this provision, presumably to suit some sort of administrative convenience. I initiated the inquiry into the Department of Community Services—which the Liberal Party decided to support 20 months later. The inquiry produced some appalling revelations, which resulted in the appointment of a new Minister, a new head of department and—if the Labor Party is to be believed—the allocation of $1 billion over 10 years to correct the deficiencies in the Department of Community Services.
The Hon. Jan Burnswoods: Two billion dollars.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS: I do not recall that. Perhaps I do not read the Government's press releases carefully enough to appreciate their full propaganda value. I am talking about the increase in funding, not the total funding for the Department of Community Services. We have been through a lot with the Department of Community Services. People have told me that the Greiner Government gutted the department—particularly its middle ranks, where the experience was. It became dysfunctional and was examined, many problems were discovered and massive changes were made. Now this bill says effectively that the Government can do what it likes. The Greens picked up on the fact that it contains no accountability mechanism. I congratulate them on moving these amendments, which are worthy of support. It will be a bad day for this place if the Opposition does not support the amendments.
The Hon. HENRY TSANG (Parliamentary Secretary) [10.43 p.m.]: The Government cannot support Greens amendments Nos 2 and 3. Proposed section 79 seeks to facilitate the return of children to the parental responsibility of the Director General of the Department of Community Services when the pre-adoptive placement is found not to be in the best interests of the child and the prospective adoptive parents have not co-operated in relinquishing their care responsibility for the child. The Act currently gives to the director general guardianship—or what is now termed "parental responsibility"—of any child who is awaiting adoption. However, the Act provides that guardianship comes to an end if the child is placed in the care of a suitable person, who might be a prospective adoptive parent or family member.
Unfortunately, it sometimes emerges after placement has taken place that the person is not a suitable person to take care of the child, and the child's welfare is in danger. This means that when a child is awaiting adoption and is found to be in need of care and protection the bill will enable the director general to terminate the pre-adoptive placement and if necessary seek a warrant to enforce an order that the child be returned to the care of the director general. Instances when this has occurred include when one parent was identified as being an alcoholic to the extent that it impacted negatively on the child and when a parent was the subject of a report of suspected abuse of the child. In those circumstances it is surely the responsibility of the director general to act in the child's best interests and remove the child as quickly as possible from a potentially dangerous situation.
As the prospective adoptive parents in such situations can sometimes be reluctant to relinquish to the protection of the director general the child who is placed in their care, it is in the best interests of the child to 4394 LEGISLATIVE COUNCIL 21 November 2006
provide for a power of search and removal, and for the issuing of a warrant to effect that. Again, this provision echoes what is already available in the Act. The bill is about ensuring that there are sound protections in place to return a child to the parental responsibility of the director general when there are concerns about the welfare of a child who is awaiting adoption. The bill, and particularly the amendments I have mentioned, will enhance the functioning of adoption legislation. Therefore, the Government strongly opposes the amendments moved by the Greens, which would effectively leave children in potentially dangerous and damaging circumstances while other legal avenues for removal are sought.
The Hon. MATTHEW MASON-COX [10.46 p.m.]: The Opposition notes the extensive comments by the Parliamentary Secretary on behalf of the Government and also opposes the amendments.
Amendments negatived.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [10.47 p.m.]: I move Australian Democrats amendment No. 1:
No. 1 Page 7, schedule 1, line 17. Omit "extends". Insert instead "does not apply".
A member of the Franciscan Missionaries of Mary who works closely with Aboriginal and refugee women approached me about the bill. She described the bill as a racist and discriminatory piece of legislation, and wrote:
We are presently supporting a case before the courts where a young refugee mother will lose the possibility of getting her child back. It is recognised that she was in no position to consent to an adoption at the time that DOCS persuaded her to sign the papers. She has spent more than two years—only a couple of months after the birth of the child desperately trying to get her baby returned to her. She is an intelligent young woman and her cultural group are bewildered as to why she does not have her baby.
Section 67 enables the Supreme Court, when considering an application for an adoption order for a child, to dispense with the consent of certain persons other than the child in certain circumstances. Schedule 1 [6] amends section 67 so as to allow the consent of any person other than the child to be dispensed with in the case of an application made by an authorised carer if the Supreme Court is satisfied that the child has established a stable relationship with the authorised carer and the adoption of the child by the authorised carer will promote the child's interests and welfare. We discussed that provision this evening when considering the Greens amendments. The final paragraph of section 24 (1) refers to making "an adoption order even if the child has been brought up, maintained and educated by the applicant for less than that period". The member of the Franciscan Missionaries of Mary continues:
This legislation was introduced hurriedly, specifically I believe, to block this process. It is seriously unjust and has nothing to do with the best interest of this mother and child. If you cannot have the Bill thrown out at least this Bill should be amended to ensure that it is not retrospective.
When I made my speech at the second reading stage the minders of the Minister said it was not intended to make this legislation retrospective. If that is the case, I hope the Government will approve this amendment. Proposed clause 15 of schedule 3 to the Act states:
Section 24, as amended by the 2006 amending Act, extends to any adoption order arising from an application for adoption made before the commencement of the amendments made to that section by that Act.
That is the essence of this amendment and I commend it to the Committee.
Ms SYLVIA HALE [10.50 p.m.]: The Greens support the Australian Democrats amendment, which mirrors an amendment that we were intending to move. We believe that the legislation should not be retrospective. Insofar as the Australian Democrats amendment removes that possibility, we certainly support it, as, may I foreshadow, we will support the second Australian Democrats amendment, to section 67.
The Hon. HENRY TSANG (Parliamentary Secretary) [10.51 p.m.]: In the eight years I have been in Parliament I have heard many speeches from the Hon. Dr Arthur Chesterfield-Evans. Sometimes he makes sense and sometimes he does not make any sense at all, but today he speaks a lot of sense. The Government appreciates his suggestion and will not oppose the amendment.
The Hon. MATTHEW MASON-COX [10.51 p.m.]: We also see the wisdom in the words of the Hon. Dr Arthur Chesterfield-Evans and we accept and support the amendment. 21 November 2006 LEGISLATIVE COUNCIL 4395
Amendment agreed to.
Ms SYLVIA HALE [10.53 p.m.]: I move Greens amendment No. 5:
No. 5 Page 7, schedule 1, lines 26-31. Omit all words on those lines.
This will be a test of principle because the effect of the Greens amendment will be identical to that of the Australian Democrats amendment. This will give the Government and the Opposition the opportunity to support the Greens amendment. I look forward to the decision of the Government and the Opposition being based on the content of the amendment rather than on the political characterisation of the person moving the amendment. The only significant difference in the amendment the Greens move is that it deletes the entire clause, whereas the Australian Democrats amendment reverses the gist of the clauses that originally applied.
I am at a loss to see any distinction in substance between the amendment the Greens have moved and that which could be moved by the Hon. Dr Arthur Chesterfield-Evans. I await with interest to see how the Government and the Opposition respond to that amendment, whether they are similarly convinced of the strength of the argument that this legislation should not be retrospective and whether they are prepared to support that view in relation to section 67 when they were of the opinion that the legislation should not be retrospective in relation to section 24. If the Government and the Opposition are not the hypocrites that I suspect on occasions they are, I expect and anticipate their rousing support for the Greens amendment.
The Hon. HENRY TSANG (Parliamentary Secretary) [10.55 p.m.]: The Government is always straightforward and has always indicated its intentions. The Government appreciates the contribution of the Hon. Dr Arthur Chesterfield-Evans—it is so convincing. We accept the amendment proposed by the Australian Democrats, which clarifies that the provisions in the bill are not retrospective. Therefore, the Government does not support the Greens amendment, which effectively aims to achieve the same outcome.
The Hon. MATTHEW MASON-COX [10.56 p.m.]: The Opposition opposes this amendment.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [10.56 p.m.]: I confess I also had some difficulty finding the difference between what the Greens amendment did and what my amendment did and I was hoping for some enlightenment in the debate from my learned colleagues from the Government and the Opposition but I did not get it. In the amendment I foreshadow I will move, I negotiated with the Government following my concerns about retrospectivity with regard to the court case, which I believe relates to a refugee who lost her children. I support this amendment, but I am quite happy to support my own amendment, which is to the same effect under the circumstances.
Amendment negatived.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [10.57 p.m.]: I move Australian Democrats amendment No. 2:
No. 2 Page 7, schedule 1, line 28. Omit "extends". Insert instead "does not apply".
I wanted to move amendments Nos 1 and 2 in globo but I was not able to. Section 67 as amended by the 2006 amending Act extends to proceedings on an application for an adoption order made before the commencement of the amendment to that section made by schedule 1 [6] to that Act. This change to the Act, rather than extending to proceedings, means it does not apply, which effectively reverses its effect. It means it is not retrospective and, as I believe it should not be retrospective, I commend the amendment to the Committee.
The Hon. HENRY TSANG (Parliamentary Secretary) [10.58 p.m.]: I believe there is an Australian saying, "First in best dressed". The Government acknowledges that saying only because the Hon. Dr Arthur Chesterfield-Evans is dressed in his yellow shirt again. He is impressive and the Government supports his amendment.
The Hon. MATTHEW MASON-COX [10.59 p.m.]: As far as I can see, the Hon. Henry Tsang is always the best dressed. The Hon. Dr Arthur Chesterfield-Evans is always very colourful, let me just say that much. The Opposition accepts the amendment in respect of retrospectivity.
Amendment agreed to. 4396 LEGISLATIVE COUNCIL 21 November 2006
Schedule 1 as amended agreed to.
Schedules 2 and 3 agreed to.
Title agreed to.
Bill reported from Committee with amendments and passed through remaining stages.
JAMES HARDIE FORMER SUBSIDIARIES (WINDING UP AND ADMINISTRATION) AMENDMENT (TRUST FUNDS) BILL
Bill received, read a first time and ordered to be printed.
Declaration of urgency agreed to.
Second reading ordered to stand as an order of the day.
THREATENED SPECIES CONSERVATION AMENDMENT (BIODIVERSITY BANKING) BILL
Second Reading
Debate resumed from 25 October 2006.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [11.05 p.m.]: The Threatened Species Conservation Amendment (Biodiversity Banking) Bill facilitates the development of small pieces of land in a high value area that have so far been saved from the developers' grasp. The main motivation, one suspects, is to please developers. In many cases small woodland and other remnants represent important amenities to the residents in the surrounding areas. Biodiversity is only one aspect of their value. Other values are recreational, visual and climatic. In favour of the concept is that it will slow down the expansion of built-up areas at the perimeter of the metropolis and will lessen the cost of providing services to the new houses built in the released reserves. This will only be a temporary slow down as long as the population in the metropolis is allowed to grow unchecked.
These considerations are important in large metropolitan areas. Their relevance in the far North Coast and lower Hunter regions is less obvious. These are slated as pilot regions for the concept of biodiversity banking. General urban planning considerations have not been addressed in considering this bill. Experience has shown that even small reserves can be important in preserving biodiversity. For example, Rockwood Cemetery contains a greater variety of native grasses than anywhere else in the Cumberland Plain. The maintenance of small woodland reserves in anything like their original state of biodiversity requires considerable resources. Councils do not always have adequate resources, but even if these areas are degraded they are still valuable for their other properties, such as play areas or even air quality. Volunteer groups are currently very important in the maintenance of small, local bush remnants. The existence of such volunteer groups contributes to the social capital of the community.
A general discussion paper issued by the Department of Environment and Conservation [DEC] in September 2005 mentions regional conservation plans and strategies that determine the biodiversity values of different areas. These are not mentioned in the draft bill. To establish these the DEC would have to determine the state of biodiversity in all areas. This would transfer the onus of doing biodiversity studies from the developer to the DEC. The Minister would have final discretion in declaring the biodiversity value of any area. These plans and strategies will classify regions into green areas in which no biodiversity offset is required and development applications are fast-tracked, amber areas in which biodiversity loss has to be determined according to rules and some biodiversity credits are required for development, and red areas in which high biodiversity values and a continuation of existing use and no further subdivision is allowed and these target areas are for restoration investment. This probably means that in those areas biodiversity credits can be created.
According to a submission of the Urban Development Institute of Australia [UDIA], which represents developers, only 12 out of 152 councils have prepared local environmental plans for biodiversity certification. They are the only ones that can be classified as green, amber or red. The UDIA in its submission of 8 August 2006 also made the following points that seem to be valid: 21 November 2006 LEGISLATIVE COUNCIL 4397
The bill is an add-on to the 1997 Environmental Planning and Assessment Act and does not simplify the process of making development applications.
The bill does not provide certainty to the developer because it still allows section 96 determinations to modify a development application.
There is a possibility of speculators withholding biodiversity credits in order to drive up the price.
That such speculation is highly likely is indicated by a development arm of James Hardie already buying land in order to create biodiversity credits and by Graham Richardson setting himself up as a biodiversity credit broker.
Apart from those points, the submission of the UDIA consists of special pleading based on statistics about the lower Hunter region. It was does not mention metropolitan Sydney. I note that there are a large number of amendments, which will take some time to sort through. I thank Dr Arnold Ewald for his research.
The Hon. JOHN DELLA BOSCA (Minister for Finance, Minister for Commerce, Minister for Industrial Relations, Minister for Ageing, Minister for Disability Services, and Vice-President of the Executive Council) [11.09 p.m.], in reply: I thank all honourable members for their contributions to the debate. I commend the bill to the House.
Question⎯That this bill be now read a second time⎯put.
The House divided.
Ayes, 22
Mr Brown Miss Gardiner Mrs Pavey Ms Burnswoods Mr Gay Ms Robertson Mr Catanzariti Ms Griffin Mr Tsang Mr Clarke Mr Kelly Mr West Mr Colless Mr Mason-Cox Mr Della Bosca Reverend Dr Moyes Tellers, Mr Donnelly Reverend Nile Mr Harwin Ms Fazio Ms Parker Mr Primrose
Noes, 5
Dr Chesterfield-Evans Mr Cohen Ms Hale Tellers, Mr Breen Ms Rhiannon
Question resolved in the affirmative.
Motion agreed to.
Bill read a second time.
In Committee
Clauses 1 to 5 agreed to.
The Hon. RICK COLLESS [11.20 p.m.], by leave: I move Opposition amendments Nos 1 and 3 in globo:
No. 1 Page 6, schedule 1 [6], proposed section 127. Insert after line 33:
(3) In this Part, a reference to development for which consent is required under Part 4 of the Environmental Planning and Assessment Act 1979 includes a reference to any clearing of native
vegetation that must not be carried out except in accordance with a development consent granted in accordance with the Native Vegetation Act 2003 or a property vegetation plan under that Act. Accordingly, this Part applies in respect of 4398 LEGISLATIVE COUNCIL 21 November 2006
development consent under the Native Vegetation Act 2003 in the same way as it applies in respect of development consent under Part 4 of the Environmental Planning and Assessment Act 1979.
No. 3 Page 35, schedule 1 [6], proposed section 127ZJ, lines 23-30. Omit all words on those lines. Insert instead "Act applies) other than development declared by the regulations to be development in respect of which biobanking is not available."
One of the problems with the bill in its current form is that it allows credits to be created on rural land but does not allow credits to be used on rural land to meet the requirements of the native vegetation legislation. The Government's rationale for this is that the Native Vegetation Act 2003 provides an equivalent mechanism on rural land, namely, offsets within the property vegetation plans. This mechanism is not equivalent as the offsets available within property vegetation plans must be found on the same property or on adjoining properties within the boundaries of that particular property vegetation plan.
A bigger problem though is that the required offset ratios are such that it is virtually impossible for farmers to find sufficient offsets on their land. I was seeking to have a property vegetation plan done on my property, but I was told that I had to find offsets in the order of 20:1. So, in order to put in, say, 10 hectares of cultivation for grazing oats, I had to find 200 hectares of grassy white box woodland to put aside. That simply was not workable.
The bill creates a situation where one sector of the industry is given an unfair advantage over another. A property developer can purchase offsets, or credits, to enable his business plans, but a farmer cannot. Biodiversity banking credits can be used to meet development approval requirements under the Environmental Planning and Assessment Act 1979, but cannot be used to meet requirements under the Native Vegetation Act 2003. One way to fix the problem would be to delete proposed section 127ZD (a) and insert appropriate amendments into the Native Vegetation Regulation 2005. The other way to address the problem is to include a subsection (3) in section 127 to allow this part of the Act to apply to the Native Vegetation Act 2003, in the same way as it applies to part 4 of the Environmental Planning and Assessment Act 1979.
The New South Wales Farmers Association supports the Opposition moving these amendments. A letter from the New South Wales Farmers Association President, Jock Laurie, to Minister Debus dated 14 November 2006 says:
The Association wishes to indicate that the Association continues to support the Opposition's amendments in the Legislative Council to delete proposed section 127ZJ from the Bill. I wish to reiterate that the Bill creates an inequitable situation. The Bill provides for one sector of industry to be given an unfair advantage whereby a property developer can purchase offsets (credits) yet farmers cannot. As such, the Association continues our support for the Opposition's amendment to correct this anomaly in the Bill.
In a letter to the shadow Minister for the Environment, the Minister made a statement that is not entirely correct. He said:
As the bill now stands, farmers across the State will be able to apply to have biobanking sites created on their land, but they can't include them as part of their property vegetation plan.
Quite frankly, I regard that as a nonsensical statement. Farmers will not lock up their properties as biobanking sites so that development can be allowed to occur on the coast. That simply will not be a viable alternative. I am bemused that the Minister could come up with such a nonsensical statement. It leaves me somewhat speechless. I commend Opposition amendments Nos 1 and 3 to the Committee as they will allow the farming sector in New South Wales to get on with their job, in much the same way as the Government would like to see the development industry get on with its business.
Mr IAN COHEN [11.24 p.m.]: Opposition amendments Nos 1 and 3, which are supported by the New South Wales Farmers Association, allow farmers to use biobanking credits to meet offset requirements under the Native Vegetation Act 2003. The Greens do not support these amendments. Under this proposal, farmers could choose either to provide on-farm offsets, as per the current property vegetation plan system, or purchase and retire credits that have already been created by another landowner who has set up a biobank site. The amendments would require changes to the Native Vegetation Act 2003. The Greens feel this would make the regime that is put forward by the Government even worse, and we cannot support the amendments.
The Hon. ROBERT BROWN [11.24 p.m.]: The Shooters Party supports Opposition amendments 1 and 3. It seems to me to be sensible to apply equity and fairness across the range of development—whether that is rural agricultural development, or whether it is coastal development. Under the current Government, and probably under governments past, rural landholders seem to have had a far stricter measure of control applied to 21 November 2006 LEGISLATIVE COUNCIL 4399
the use of their land than have coastal developers. We end up with some cases of vastly overdeveloped coastline, in many cases inappropriate development. I am sure the Greens would agree with that. By the same token, farmers are being required to apply offsets, as the Hon. Rick Colless indicated, such as 20:1 or, as I heard in a previous debate, 100:1. I believe the Opposition amendments inject a degree of equity and fairness into the legislation, and we support them.
Reverend the Hon. FRED NILE [11.26 p.m.]: The Christian Democratic Party supports the two amendments moved by the Opposition. We believe that farmers have already had a bad deal with the native vegetation legislation, as we said during that debate. The amendments give some measure of equality to this legislation.
The Hon. JOHN DELLA BOSCA (Minister for Finance, Minister for Commerce, Minister for Industrial Relations, Minister for Ageing, Minister for Disability Services, and Vice-President of the Executive Council) [11.26 p.m.]: The Government is sympathetic to the intent of the proposal, but believes it is an extremely complex issue. To properly integrate the biobanking scheme with the native vegetation framework at this time would require further amendments to this bill as well as detailed companion amendments to the Native Vegetation Act, the Native Vegetation Regulation 2005, and the associated environmental outcomes assessment methodology. There are a number of complex issues that need to be thoroughly examined, and there needs to be consultation with key stakeholders.
The Government believes that, for these reasons, the parliamentary committee that will be chaired by Reverend the Hon. Dr Gordon Moyes is well placed to examine the issues in detail. This will enable further examination of the issues as well as ensuring that appropriate consultation with key stakeholders is carried out. Should these Opposition amendments not be supported, the Government intends to move an amendment to ensure this occurs. The New South Wales Farmers Association has indicated in a letter to the Minister for the Environment that he circulated to the Opposition and crossbench members that it will accept this referral to the parliamentary committee if the Opposition's amendments do not gain majority support.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [11.27 p.m.]: If these amendments were to be successful I think there would have to be very complex regulations to ensure the offsets are like-for-like. We believe that this should probably occur after the trial of the legislation in a more restricted area, which is proposed in amendment No. 3. So we would tend to reject the amendment to section 127, which is the first amendment.
Question—That the amendments be agreed to—put.
The Committee divided.
Ayes, 15
Mr Brown Mr Mason-Cox Mr Ryan Mr Clarke Reverend Dr Moyes Ms Cusack Reverend Nile Mr Gallacher Ms Parker Tellers, Miss Gardiner Mrs Pavey Mr Colless Mr Gay Mr Pearce Mr Harwin
Noes, 21
Mr Breen Mr Donnelly Ms Robertson Dr Burgmann Ms Griffin Mr Roozendaal Ms Burnswoods Ms Hale Mr Tsang Mr Catanzariti Mr Hatzistergos Dr Chesterfield-Evans Mr Kelly Mr Cohen Mr Macdonald Tellers, Mr Costa Mr Obeid Mr Primrose Mr Della Bosca Ms Rhiannon Mr West
Pair
Mr Lynn Ms Sharpe 4400 LEGISLATIVE COUNCIL 21 November 2006
Question resolved in the negative.
Amendments negatived.
The CHAIR: Order! I advise the Committee that Christian Democratic Party amendments Nos 1 and 2 are in conflict with Government amendment No. 1. The amendments will be moved concurrently, and if the Government's amendment is accepted, the Christian Democratic Party amendments will lapse.
The Hon. JOHN DELLA BOSCA (Minister for Finance, Minister for Commerce, Minister for Industrial Relations, Minister for Ageing, Minister for Disability Services, and Vice-President of the Executive Council) [11.35 p.m.], by leave: I move Government amendments Nos 1 to 5 in globo:
No. 1 Page 7, schedule 1 [6], proposed section 127A, lines 18-36. Omit all words on those lines. Insert instead:
(3) The biobanking scheme is not to be implemented until:
(a) a joint committee of the Legislative Assembly and the Legislative Council is appointed with functions that include preparing a report that:
(i) sets out suggested guidelines for the operation of the scheme during a trial period, and
(ii) examines options for applying the scheme to the clearing of native vegetation (within the meaning of the Native Vegetation Act 2003),
(b) the report is presented to each House of Parliament or, if a House of Parliament is not sitting when the joint committee seeks to present the report, presented to the Clerk of the House of Parliament, and
(c) the Minister causes a report by the Minister setting out what the Government has done or proposes to do in response to the report of the joint committee to be tabled in each House of Parliament.
(4) Despite subsection (3), the biobanking scheme may be implemented if the report of the joint committee is not presented to each House of Parliament (or to the Clerks of each House of Parliament) by the end of the period of 6 months after the commencement of this Part.
(5) Section 63C of the Public Finance and Audit Act 1983 applies in respect of the presentation of the report of the joint committee to the Clerk of a House of Parliament under this section in the same way as it applies to the presentation of documents in accordance with that Act.
No. 2 Page 13, schedule 1 [6], proposed section 127F. Insert after line 13:
Note. Subsection (1) (e) applies in respect of any mining lease under the Mining Act 1992 that is granted over the land. This may include a mining lease granted over the subsoil of the land or over parts of the subsoil of the land.
No. 3 Page 15, schedule 1 [6], proposed section 127H. Insert after line 35:
Note. Subsection (2) (c) applies in respect of any mining lease under the Mining Act 1992 that is granted over the land. This may include a mining lease granted over the subsoil of the land or over parts of the subsoil of the land.
No. 4 Page 24, schedule 1 [6], proposed section 127S. Insert after line 5:
(4) The maximum number of biodiversity credits that the holder of the mining authority or petroleum title may be required to retire under the direction is the number of biodiversity credits that have been created in respect of the biobank site.
No. 5 Page 62, schedule 2.1 [1], lines 4–5. Omit all words on those lines. Insert instead:
[1] Section 75JA
Insert after section 75J:
75JA Biobanking—special provisions
These amendments relate to the proposed functions of the joint parliamentary committee to be chaired by Reverend the Hon. Dr Gordon Moyes. I stress at the outset that they are entirely consistent with and complementary to the two amendments moved by Reverend the Hon. Dr Gordon Moyes. The establishment of this important oversight committee was an Opposition initiative and was supported by the Government. These amendments will extend the functions of the committee in light of the commitment given by the Minister for the Environment to the New South Wales Farmers Association. While the Government is unable to support the 21 November 2006 LEGISLATIVE COUNCIL 4401
Opposition amendment to delete proposed section 127ZJ, which would allow farmers to use biobanking credits to meet any other offset requirements under the Native Vegetation Act 2003, it recognises that such an outcome should be considered. However, to achieve this outcome the Native Vegetation Act and its regulations would also need to be amended.
Any further amendments, which are potentially complex, would require careful consideration and consultation with key stakeholders. The Government believes that for those reasons the parliamentary committee is well placed to examine the issues in detail and to investigate and report on suggested guidelines for the operation of the scheme. These amendments will therefore also require the parliamentary committee to investigate and report on the options for applying the biobanking scheme to the clearing of native vegetation.
The amendments provide that the report prepared by the parliamentary committee be given to the Parliament rather than the Minister. This is entirely appropriate, and is consistent with the procedures of other such committees. The amendments also enable the committee report to be presented to the Clerks of the respective Houses of Parliament if this occurs during the time when Parliament is not sitting. I note that the bill also provides that a report setting out what the Government has done or proposes to do in response to the joint committee will be tabled in each House of the Parliament.
Mr IAN COHEN [11.38 p.m.]: The Government's amendments seek to downgrade the scope of the parliamentary committee from "drafting guidelines for the operation of the scheme during the trial period" to "preparing a report that sets out suggested guidelines". This shows that the Government does not take the committee seriously. Further, the amendments seek to extend the scope of the trial period to examine options for applying the scheme to native vegetation. The Greens strongly oppose this potential extension of the biobanking scheme to the native vegetation regime. Government amendments Nos 2 to 5 are consequential to Government amendment No. 1, and the Greens do not support them.
Reverend the Hon. Dr GORDON MOYES [11.39 p.m.], by leave: I move Christian Democratic Party amendments Nos 1 and 2 in globo:
No. 1 Page 7, schedule 1 [6], proposed section 127A (3), lines 23-31. Omit all words on those lines. Insert instead:
(b) the draft guidelines have been provided to both Houses of Parliament, and
(c) the Minister has caused to be tabled in each House of Parliament a report by the Minister setting out what the Government has done or proposes to do in response to those guidelines.
No. 2 Page 7, schedule 1 [6], proposed section 127A (4), lines 34 and 35. Omit "provided to the Minister". Insert instead "provided to both Houses of Parliament".
The import of these amendments is quite simple: The proposed inquiry that has been referred to by several members will not report directly to the Minister for the Environment, but to both Houses of Parliament. This is only a small, but a very significant, issue. They are very simple amendments.
The Hon. RICK COLLESS [11.40 p.m.]: The Opposition supports the two amendments moved in globo by Reverend the Hon. Dr Gordon Moyes. It is appropriate that the report on the guidelines be provided to both Houses of Parliament. The Opposition reluctantly accepts Government amendments Nos 1 to 5 moved in globo to allow the application of the Act to the Native Vegetation Act to be considered by the committee. It is a shame that farmers in the State have to wait so much longer to see how it will work for them. It is with reluctance that we accept the Government amendments.
Mr IAN COHEN [11.42 p.m.]: I speak to the amendments moved by Reverend the Hon. Dr Gordon Moyes. The Greens do not oppose the amendments, which seek to have the draft guidelines for the trial provided to both Houses of Parliament rather than the Minister, which would make it a public document. The inquiry would also report to both Houses of Parliament, which seems like the appropriate procedure. The Greens do not oppose the Christian Democratic Party amendments.
The Hon. JOHN DELLA BOSCA (Minister for Finance, Minister for Commerce, Minister for Industrial Relations, Minister for Ageing, Minister for Disability Services, and Vice-President of the Executive Council) [11.42 p.m.]: I seek leave to withdraw Government amendments Nos 1 and 5, and indicate that the Government intends to support the Christian Democratic Party amendments. 4402 LEGISLATIVE COUNCIL 21 November 2006
The Hon. RICK COLLESS [11.43 p.m.]: If Government amendment No. 1 is withdrawn, does that mean that the provisions of the bill will not apply to the Native Vegetation Act, nor will the process be considered in the committee chaired by Reverend the Hon. Dr Gordon Moyes?
The Hon. JOHN DELLA BOSCA (Minister for Finance, Minister for Commerce, Minister for Industrial Relations, Minister for Ageing, Minister for Disability Services, and Vice-President of the Executive Council) [11.43 p.m.]: My understanding is that it is provided for in Christian Democratic Party amendment No. 1.
The Hon. RICK COLLESS [11.44 p.m.]: But it is not. All it does is refer the draft guidelines to both the upper House and lower House of Parliament.
Progress reported from Committee and leave granted to sit again.
ENVIRONMENTAL PLANNING LEGISLATION AMENDMENT BILL
Second Reading
The Hon. JOHN DELLA BOSCA (Minister for Finance, Minister for Commerce, Minister for Industrial Relations, Minister for Ageing, Minister for Disability Services, and Vice-President of the Executive Council) [11.47 p.m.], on behalf of the Hon. Michael Costa: I move:
That this bill be now read a second time.
This bill is largely a housekeeping measure comprising targeted amendments that will improve the operation of the planning system. The bill has been developed to address issues raised by stakeholders, the courts and practitioners in eight separate areas of the planning and building system. First, the bill strengthens the existing enforcement provisions for development, including the development of major projects. Second, the bill clarifies certain provisions relating to developer contributions that will enable the construction of an overpass between New South Wales and Queensland. Third, the bill makes clear that in issuing certificates under the Environmental Planning and Assessment Act to accredited certifiers, councils must have regard to an objective test based on reasonableness rather than a subjective test. Fourth, the bill reduces the time limits for Crown development applications under part 5A of the Environmental Planning and Assessment Act to speed up the delivery of government infrastructure. The time limit will be reduced from 100 days to 61 days. Fifth, the bill amends the City of Sydney Act to make a number of commonsense changes to the planning provisions of that Act.
Before I come to what the bill does, I will correct the record on the question of the appointment of the Government Architect to the City of Sydney Planning Committee [CSPC]. The existing legislation does not prescribe the Government Architect as a member of the CSPC. However, the Government chooses to appoint the Government Architect as one of its senior employee appointments. This Minister has advised me that he has no intention of removing the Government Architect from this appointment. The bill does the following things in relation to the CSPC. It makes the conflict of interest provisions under the City of Sydney Act consistent with those under the Local Government Act. Regarding the appointment of non-council members to the CSPC, the bill provides for some flexibility as to who the senior government officials are and makes it easier to appoint alternates rather than having an alternate for each non-council member. The bill enables two Government members of the CSPC to put items on the agenda. Surely it is reasonable to allow members of a committee to place items on a meeting agenda.
The sixth matter the bill deals with relates to amendments to the Local Government and Environmental Planning and Assessment Amendment (Transfer of Functions) Act 2001 that will enable reform of regulations for places of public entertainment and temporary structures to be completed. This reform is overdue and will be extremely good news for the music industry. Seventh, the bill makes minor amendments to the Environmental Planning and Assessment Act, including amendments to the deferred commencement consent provisions. A development consent that does not have deferred commencement approval lapses after a maximum of five years. If it is given a deferred commencement consent it does not lapse at all. The amendment proposed in the bill will ensure that it will lapse after five years. This fixes an anomaly in the Act.
The bill clarifies the fee powers of the Department of Planning. If it is a project application, fees can currently be levied, but if it is a concept application fees cannot be levied. The amendment proposed in this bill ensures there is a consistent approach to how fees are levied for applications—again, an operational change. 21 November 2006 LEGISLATIVE COUNCIL 4403
Finally, the bill makes a range of amendments relating to major projects—an area which has been the subject of much public comment. The amendments are operational. They will simplify the administration of major project environmental assessments. The bill makes a number of operational changes to the major projects system under part 3A of the Act following the review of the new part after its first year of operation.
The bill will ensure that there is a single assessment process for major projects where a project and a concept plan are being assessed concurrently. This will operate in a similar way to the staged approvals procedures that already apply under part 4 of the Act. The change will make it easier for proponents and the department by minimising duplication and will also reduce confusion during the public consultation stage, as only one exhibition process will apply to the proposal. On a related issue, the bill also gives the Minister the ability to consider and determine major projects and concurrently amend the zoning. These powers are comparable to current powers of councils to undertake a joint development application and rezoning. This provision will not apply to developing environmentally sensitive areas of State significance or sensitive coastal locations.
The bill provides for the Minister to ensure that satisfactory arrangements are made to establish whether developers have fulfilled their obligations when they have made a statement of commitment applying for a concept plan. The bill enables the Minister to impose as part of the concept plan preconditions that must be complied with as part of the assessment requirements for any subsequent project approval. The experience of the past year has shown a need to tighten up the Minister's ability to manage the outcomes arising from a concept approval.
The bill clarifies transitional arrangements for projects which were previously approved under the old part 4 or part 5 of the Act. The Minister for Planning has been advised by his department that some mines have been approved to various stages under various different approval processes. Up to a dozen different types of controls might apply. When there is a subsequent application for augmentation, those controls need to be streamlined so that from an enforcement point of view it is much more feasible to enforce conditions. Conditions have typically been tightened over the past 30 years. This amendment allows for old conditions to be updated to meet current standards.
I turn to the proposed amendments to section 75J (1) and section 75O (1). These amendments are specifically designed to address comments made on 14 July by Justice Jagot in the Land and Environment Court case Tugun Cobaki Alliance Inc. v Minister for Planning and Roads and Traffic Authority, which raised legal uncertainty about the circumstances in which applications for project approval can be determined. They are clarifying amendments; they are not substantive policy changes. These amendments have nothing to do with the Anvil Hill coalmine. The Minister has given me a copy of a letter from Peter Gray—the applicant in the court case currently being considered in the Land and Environment Court—which acknowledges this point. I seek leave to table the letter.
Leave granted.
Document tabled.
I am advised that those proceedings had been heard by Justice Pain on 6 and 7 November 2006 and the parties are awaiting judgment. The bill remains before Parliament and the relevant provisions will not be operative until the bill is passed, assented to, and commenced. Notwithstanding this point, these provisions are not intended to change the robust environmental assessment that takes place for major projects as a result of the issue by the director general of the environmental requirements for a project or concept plan. Rather, the provisions are intended to clarify the respective roles of the director general and the Minister for Planning in the assessment and approval process in light of the comments made in the case to which I have referred.
Importantly, the bill will not change the current requirements for the mandatory public exhibition of a proponent's environmental assessment, the procedures for public submissions, or the matters that the Minister must take into account in determining a project application—safeguards that are already in the legislation. I note the Government successfully moved amendments to the bill in the other place to ensure that environmental assessment requirements are expressly made a consideration in the determination of major project applications. The bill now requires the director general to include in his report to the Minister a statement on compliance with the environmental assessment requirements applying to the project. A statement from the director general will be one of the matters the Minister must take into account before determining the relevant project or concept plan application. I commend the bill to the House. 4404 LEGISLATIVE COUNCIL 21 November 2006
The Hon. GREG PEARCE [11.54 p.m.]: The Opposition is opposed to this bill. It is yet another grab by the Minister for Planning for greater power and it is in circumstances where quite rightly the people of New South Wales cannot be sure that they can rely on this Government or this Minister to properly administer the planning laws, particularly in relation to significant projects which the Government has been so remiss in delivering over the past 12 years. The bill amends the Environmental Planning and Assessment Act and also the City of Sydney Act. I will come back to the amendment to the City of Sydney Act in particular, as the Opposition will vote in favour of the second reading of this bill so we can move an amendment to the City of Sydney Act. I will refer to that amendment in a little while.
The Coalition has on a number of occasions highlighted its concerns with section 3A of the Environmental Planning and Assessment Act. We are very concerned as to whether there is any credibility in the Government's claims that the amendments included in this bill are truly there to allow for more efficient implementation of sections of the Act already passed. The Coalition plans to review all sections of the Environmental Planning and Assessment Act relating to projects of State significance after the March 2007 election.
The bill also amends the City of Sydney Act to provide that all major projects in the city of Sydney seek approval from RailCorp before the project is given development approval. This is a matter of some concern. To include a provision that RailCorp's approval is required seems unnecessary and bureaucratic and again introduces a new level of delay and uncertainty into projects in the central business district. The explanation that the proposed new underground railway has to be considered in relation to projects has to be taken into account but it does not make any sense to make the planning process even more bureaucratic by giving such a role to RailCorp, which has trouble making trains run on time let alone dealing with approvals.
There are a number of amendments in relation to the Central Sydney Planning Committee. These amendments have caused a great deal of concern amongst a number of parties, because what the Government seems to be trying to do is vest in the planning Minister the power effectively to appoint the entire Central Sydney Planning Committee. One of the organisations that has written to members of the Legislative Council about its concern is the Royal Australian Institute of Architects. It has pointed out that the changes will, in effect, remove from the panel the Government Architect. The Government Architect has been one of the nominees on the panel since its inception. The Institute of Architects supports the continued role of the Government Architect. In addition, the amendments appear to remove the Director General of Planning from the committee and leaves it open to other nominees of the Minister. I also note that the Council of the City of Sydney last night passed the following motion:
The Council notes the amendments to the City of Sydney Act currently before the Parliament that remove the ex-officio appointment of the Central City Planning Committee of the Director General (or alternate) of the Department of Planning as the 'senior government employee with architecture experience' that has always been the appointment of the Government Architect of the day. The Council joins with four of the CSPC members in expressing concern about these amendments and calls upon the Minister for Planning to not amend the provisions of the current Act (section 34) as it is highly desirable for the City of Sydney to retain the direct relationship of the CSPC and Council with the Director General of the Department of Planning and the Government Architect.
I am informed that the motion was passed last night by the council by nine votes to one, with two of the Australian Labor Party members of the council, Councillor Verity Firth among them, voting in favour of the motion. As I stated earlier, the Opposition will move an amendment to take out these changes to the Central Sydney Planning Committee. Aside from that, the Opposition opposes the legislation.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [12.01 a.m.]: The Environmental Planning Legislation Amendment Bill poses a dilemma. While the bill has provisions that the Australian Democrats a very happy with after three years of working with the Musicians Union and lobbying the Government to transfer the regulation of live music venues from the Local Government Act to the Environmental Planning and Assessment Act, other provisions of the bill warrant considerable concern and prevent the Democrats from supporting the bill. The Environmental Planning Legislation Amendment Bill amends six separate Acts. Two of those Acts, the Schemes (Freehold Development) Act 1973 and the Strata Schemes (Leasehold Development) Act 1986, introduce objective criteria that must be met before a strata certificate may be issued.
The Building Professionals Act 2005 is amended with respect to the appointment by the Building Professionals Board of a replacement person as the principal certifying authority to a council. The bill amends to the Environmental Planning and Assessment Act 1979 in respect of the certification of development and developer contributions for major projects. As we have seen time and time again, the Government is very keen to pass legislation under which the Minister for Planning is given considerable power and scope in relation to the assessment of major projects. Since 2003 the Labor Government has continually limited the rights of third 21 November 2006 LEGISLATIVE COUNCIL 4405
party appeals and denied any possibility of constructive community input and assessment of the social and environmental impacts of major projects.
In common with any regime that has been in power for too long and contends with a lazy but occasionally problematic Opposition, the Government is beginning to disturb the people of New South Wales. While the Government plays media operators against each other for exclusive leaks and dangles large salaries in front of the most critical journalists to come over and join the masters of spin, the arrogance of the Government, the dodgy deals of its seemingly teflon-coated power brokers and the scandals surrounding the Government are not boosting its popularity and trust with the residents of New South Wales. The bill and the current public concern about global warming will lose the Government even more supporters.
The Environment Liaison Office [ELO] and in particular Greenpeace Australia have used the strongest language I have read in quite a while to condemn the Government over the bill. The Government is prepared to use the Environmental Planning and Assessment Act to circumvent the court challenge relating to Anvil Hill that is currently under way. The proposed Anvil Hill mine will produce up to 10.5 millions tonnes of coal per annum, making it one of largest mines in New South Wales. The coal used for energy generation will produce approximately 27 million tonnes of carbon dioxide. Greenpeace Australian and the ELO argue that the Minister for Planning, Frank Sartor, who referred to certain provisions of the bill as housekeeping measures "must be censured for misleading the Parliament and the public by understating the intent and the substance of these amendments." I note that this felony was compounded by the Minister for Commerce during his second reading speech, so he must be censured also.
The environmental assessment for the Anvil Hill open-cut coalmine proposal is being challenged in court because it failed to assess the greenhouse impacts of the coal that will be dug up at the Anvil Hill site in the Hunter. If the bill goes ahead without amendment, there will be no need for companies and developers to fulfil environmental assessment requirements set down by the Director-General of the Department of Planning. The ELO writes:
These amendments will affect projects far beyond Anvil Hill through the strongly opposed Part 3A of the EP&A Act. If companies are able to avoid assessing aspects of their developments, the public will be exposed to serious risk with no legal redress or constraint.
The Government will likewise be exposed to litigation, having abrogated its responsibility to minimise the impacts of development, and prevent the most destructive impacts from occurring.
In April, 160 environment and community groups from across New South Wales wrote to the Premier expressing their opposition to the Government's planning overhaul. The bill continues the destructive overhaul, which has undermined community consultation, shut off environmental protection processes and granted vast discretionary powers to the Minister for Planning. The groups stated:
The bill supports the environmentally destructive and undemocratic processes under Part 3A of the EP&A Act. It must be opposed for the sake of communities everywhere.
Changes to the appointment and composition of the Central Sydney Planning Committee appear in provisions that purport to amend the City of Sydney Act 1988. Under that Act the committee comprises the Lord Mayor, two councillors appointed by the council and four persons appointed by the Minister. Currently three members of the committee include the Lord Mayor of Sydney and two councillors from the Council of the City of Sydney, the Government Architect, the Director-General of the Department of Planning and two other members appointed by the Minister.
Amendments to section 34 of the Act will remove provisions that prohibit people who may have a conflict of interest being members of the committee. Why is the Minister so keen to stack the planning committee? Why do we not just have the Minister, Frank Sartor, take over as Premier of New South Wales? The Government effectively has given the man enough power to flatten the Parliament and build a new tollway with the stroke of a pen. Under the bill planning instruments applying to land within the Council of the City of Sydney boundaries cannot be given approval unless RailCorp has granted consent, permission or approval of such applications. The Property Council of Australia is concerned that the Government Architect and the Director-General of the Department of Planning have been removed from the planning committee. The council felt that it was critical that people of considerable seniority should be members of the committee so that peak groups could discuss important issues with them.
Proposed amendments to the Local Government and Environmental Planning and Assessment Amendment (Transfer of Functions) Act 2001 are the initial step for transferring the regulation of live music 4406 LEGISLATIVE COUNCIL 21 November 2006
venues from the Local Government Act to the Environmental Planning and Assessment Act. Councils are required to assess development applications against various environmental planning instruments made under the provisions of the Environmental Planning and Assessment Act, but under the bill one uniform planning policy will be developed to be applied statewide. This amendment is needed and is supported by the Australian Democrats. During estimates hearings I have asked many questions about the Department of Gaming and Racing's activities in relation to approving live music in New South Wales. I have pursued the changes for close to three years with bureaucrats from the Department of Gaming and Racing and the Department of Planning and with help especially from Mr John Wardle of the Musicians Union. However, as I have mentioned previously, that is just the initial step.
On Thursday 28 September 2006 the Premier, Morris Iemma, stated he would support move to revitalise the State's live music scene as part of the proposed changes to the Liquor Act that are scheduled to go before Cabinet. Mr Iemma said the objects of that Act will be broadened to include specific reference to the development of industries that are closely linked to licensed premises, including live music and entertainment. More importantly, the bill will include a special category of liquor licence for music and entertainment venues that are separate from club, hotel and restaurant licences. Essentially, the new licence will enable venues to sell liquor, provided that live music is being performed. The live music industry had been pushing for changes because different venues had to comply with different laws from council to council to obtain approval. Councils will continue to regulate venues, but the changes mean one set of rules for all venues and events will be applied in decisions related to approval.
In 2003 a joint research project by the Australia Council and the New South Wales Ministry for the Arts resulted in release of a report entitled "Vanishing Acts: An Inquiry into the State of Live Popular Music Opportunities in New South Wales." It provided a very interesting analysis of the live music scene. Key findings of the report state there has been a significant reduction in live music venues in New South Wales over the past several years and in a significant number of cases live music operations have been displaced by gaming facilities. The report shows that 11 per cent of all hotels and 16 per cent of all clubs that were surveyed affirmed that gaming areas had displaced areas formerly dedicated to live entertainment. The figure rose to 23 per cent for metropolitan clubs, yet remained stable across hotel categories. However, much to my surprise, the report also states:
The causes of the reduction extend beyond the liberalisation of gaming legislation and in fact gaming has proven to be a means of subsidising live music.
Noise complaints and security requirements were other contributing factors. The report also recommends that the legislative structure of the New South Wales Casino Community Benefit Fund be amended to devote a portion of the funds to live music infrastructure. Section 68 of the New South Wales Local Government Act, which relates to a place of public entertainment authority [POPE], is deeply flawed and inconsistent. The authority is difficult and expensive to obtain and really only applies to musical instruments. Televisions and pub tab are not classed in the definitions as entertainment. Therefore, they have no requirement. Poker machines have a "special exemption" under the Gaming Machines Act 2001.
Sports narrowcasting via cable or satellite TV and gambling do not require council permission. But even acoustic music—which, I gather, is music that does not have amplification—needs full council process, expense, compliance with the building code and negative impact statements from the local area. Technically, pool tables and pinball-type machines require a POPE authority. However, that is never enforced in licensed premises. Amplified background music is ignored by the Act, but the gentlest acoustic music is illegal without process and the licensee is liable for a $600 fine for the first offence. The vanishing act's report also suggested that "existing rights" legislation—that is, the strengthening of "existing nonconforming use" rights—be explored where the extent of music activity clearly precedes changing retail and residential environments. This amendment is meant to cover live music and stand-up comedy in pubs and clubs, theatre performances, film screenings, community fairs, agricultural shows, outdoors music festivals and business promotional events. However, more work is needed. The definition of a "place of public entertainment" needs to be rationalised and simplified. Further, a clear definition of "live entertainment" is required with clear distinctions between background and recorded music settings for new planning policies to become effective and live music venues protected.
A venue's regulatory history should be considered when complaints are made against premises. For example, the Annandale hotel runs recorded messages over its public announcement system asking patrons to consider its neighbours and to leave the venue quietly and quickly. Many venues have curfews where bands finish performing and patrons are expelled from the venue by 11.00 p.m. I support some provisions of the bill. 21 November 2006 LEGISLATIVE COUNCIL 4407
However, amendments to the Environmental Planning and Assessment Act which give complete discretionary power to the Minister for Planning on major projects cannot be supported and must be changed. Despite the good this legislation will do in some areas, particularly live music venues, without significant amendments I will not be able to support it.
Ms SYLVIA HALE [12.13 a.m.]: I speak on the Environmental Planning Legislation Amendment Bill 2006 on behalf of the Greens. I indicate that my colleagues Mr Ian Cohen and Ms Lee Rhiannon will also speak on the bill. The bill amends six pieces of planning and building legislation. Schedule 1 to the bill amends the Environmental Planning and Assessment Act 1979. Schedule 2 amends the planning-related provisions of the City of Sydney Act 1987. Schedule 3 amends the Local Government and Environmental Planning and Assessment Amendment (Transfer of Functions) Act 2001, the Building Professionals Board Act 2005, the Strata Schemes (Leasehold Development) Act 1986 and the Strata Schemes (Freehold Development) Act 1973.
The bill contains over 70 amendments to the Environmental Planning and Assessment Act and various other Acts. The majority of those amendments are the sort of housekeeping measures that were referred to by the Minister in his second reading speech. The Greens do not object to a tidying up of the legislation. Similarly, the Greens support those sections of the bill that deal with the regulation of entertainment and allow theatre and music to be treated in the same way as large-screen broadcast sport and gambling in council approvals for pubs, clubs and restaurants. There are, however, significant sections of the bill that we do not support, and I will move amendments to delete those sections.
The bill is the latest in a series of reform bills that have substantially rewritten the Environmental Planning and Assessment Act over the life of the Government. Previous Government amendments have significantly increased the powers of the Minister for Planning, removed or reduced the planning powers of local councils, restricted the mechanisms available for community input into planning decisions, provided a greater reliance on supposed "experts" appointed by the Minister and removed or reduced environmental protection provisions. The Government has, through those amendments, undermined that Act and the faith of the community in the State's planning laws. The bill continues that trend. Given that the bill continues the so-called reform program of the Government, it is appropriate that we consider the effects of the Government's previous changes to the Environmental Planning and Assessment Act.
The most substantial reforms introduced by the Government were those contained in the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Bill of June 2005. I noted at the time that it was ironic that on the twenty-fifth anniversary of the passage of the Environmental Planning and Assessment Act in 1979 the Government had set out to weaken, undermine and remove the right to community consultation and participation in the planning process. In introducing the Environmental Planning and Assessment Bill in 1979 the then Minister noted that the bill had been subject to "unprecedented public participation processes". The Minister declared that the legislative framework for environmental planning in 1979 was unsatisfactory because of "its failure to give members of the public any meaningful opportunity to participate in planning decision making." References to the desirability of including the public in the planning process recur throughout that 1979 speech. The Minister was explicit about what the Government was intent on achieving and summed it up in the following statement:
The bills will confer equal opportunity on all members of the community to participate in decision-making under the new legislation concerning the contents of environmental studies; the aims and objectives to be adopted by draft planning instruments; the contents of draft planning instruments; development applications requiring prior publicity before determination; development applications for designated developments; and environmental impact statements prepared and published in accordance with part V of the Environmental Planning and Assessment Bill. Additionally, objectors to applications for designated development can appeal to the Land and Environment Court against the grant of development consent. Members of the public are given legal standing to bring proceedings in that court to enforce compliance with the new planning laws and to remedy any breaches of those laws.
Clearly, in 1979 the Government made a major commitment to public participation in the planning process and transparency. In 1979 a Labor Government was committed to making the planning laws work for the community, not only for developers. Labor was committed to giving the public a say in the development of the city. The Environmental Planning and Assessment Act emerged from overwhelming public concern about the way developers were defacing the city, ignoring planning rules and carrying on as though they owned the place. Over the past few years a very different Labor Government has gutted those groundbreaking 1979 reforms. Labor is no longer committed to giving the public a say in developments. Its objective now is exactly the opposite. Recent reforms have been about removing the public from the planning process and once again handing development in this State over to the developers, who so handsomely fund the Government's re-election campaign. 4408 LEGISLATIVE COUNCIL 21 November 2006
Those developers have found a new way around the laws: they simply pay enough in political donations and they get the laws changed to suit them. Once again, developers are acting as though they own the place, and why not? They certainly believe that they have paid for the privilege. What has been the effect of recent changes? First, let us look at it in global terms. According to the web site of the Department of Planning, in the 18 months preceding the June 2005 changes to the Act, 196 decisions were made by the Minister on major project development applications, modifications to development applications and master plans. In the 18 months since the June 2005 changes to the Act, 410 decisions have been made by the Minister on major project development applications, modifications to development applications and master plans, with a further 22 currently on exhibition. That represents an increase of 110 per cent in decisions made by the Minister.
Developers have thrown major projects the Minister's way at a rate more than double that of the corresponding period prior to the amendments. And what has the Minister done with all those new major projects? Let us look at the rate of refusal of projects by the Minister. In the 18-month period prior to June 2005 the Minister refused a mere 9 of the 196 projects, about 4.5 per cent of the applications. Fewer than 1 in 20 major projects handed over to the Minister for determination were refused. Post June 2005, with all those extra projects going the Minister's way, did the rate of refusal increase? No, it did not. In the 18 months since June 2005 the refusal rate dropped from 4.5 per cent to less than 3 per cent; only 12 out of 410 determinations were refused. This represents a 33 per cent decline in the refusal rate, so that now fewer than 1 in 30 of all major project applications is refused by the Minister. The number of projects going to the Minister has doubled and the number he has refused has been cut by a third. That is what one would call "open for business", and developers are certainly happy about that!
Unfortunately, the figures on how the Australian Labor Party [ALP] fared in its donations from developers in that time will not be published until next year. However, I would put a lot of money on a big return for the Labor Party. Developers are very happy, the Government is very happy, and the ALP is very happy. But not happy enough apparently; it is now back for more. Let us look at some of the specific projects that the Government has been responsible for pushing through against concerted community opposition. Last month with my colleagues Ms Lee Rhiannon and Mr Ian Cohen I published a map showing many of the major projects around Sydney which have been approved by the Government or which are currently under consideration. I seek leave to table the map.
Leave not granted.
As leave has not been granted, it is incumbent on me to describe some of the contents of the map. It is a guide for the people of Sydney and it indicates how they can navigate their way around the deals and corrupting influences that are shaping Sydney. The map is in the process of being letterboxed throughout Sydney, and the Greens have been pressured to prepare similar maps for the North Coast, South Coast and other areas. Significantly, the map indicates where developer donations have been made to the major political parties. The map indicates the toxic waste sites that litter the city and the projects that will generate increased traffic. The map shows where water pollution is killing aquatic species and where neighbourhoods have been destroyed and cultural values compromised. Further it shows where there has been a loss of public assets. With the sell-off of Department of Housing properties and the subsequent profiting by the Government, we know that that trend will continue.
The map indicates where air pollution is generated. The recent report of General Purpose Standing Committee No. 2 into the health impacts of air pollution in the Sydney Basin indicated that the Governments' figures show that between 600 and 1,400 people die every year from the effects of air pollution. One of the major hot spots for that pollution is the south-west growth centre; it is already Sydney's pollution sink. We can only feel sorry for the people of Badgerys Creek, Bringelly, Rossmore, Leppington, Catherine Field and Oran Park, because they are already the recipients of the city's smog. As we lose agricultural land and residential development increases in that area, in the absence of any decent public transport we can expect the extraordinarily adverse impacts on the health of people in that area to increase. The map shows, appropriately with a dollar sign, where the interests of residents have been overridden and where small business has, as a consequence, been forced out.
The map shows where green space has been lost, where species have been threatened, and where agricultural lands have been lost to urban sprawl—urban sprawl that the Government has no intention of impeding in any way. The map represents the scandalous absence of planning in this State. It is totally apt that the map should have been produced at this time when evidence from the polls shows that both the Government 21 November 2006 LEGISLATIVE COUNCIL 4409
and the Opposition are very much on the nose. The activities of the Minister for Planning, together with the activities of the Government, have largely contributed to that cynicism and disgust.
I turn now to some of the developments that have been featured on the map. They include the former Australian Defence Industry [ADI] site at St Marys, where ALP donors, Lend Lease, are developing residential releases in the last major area of Cumberland Plain woodlands in Western Sydney, and, to add insult to injury, with minimal provision for any affordable housing. Concerns have been raised about the ADI site, the loss of Cumberland Plain and the destruction of the kangaroos and emus living there—the last areas in Sydney where emus and kangaroos can be seen running wild. In the past few days those kangaroos have been herded together in an enclosure. Dogs have been allowed into the enclosure and many of the animals have suffered extraordinary injuries.
The Hon. Michael Costa: What has that got to do with the Government?
Ms SYLVIA HALE: The Government has aided and abetted the development of the ADI site. Another development indicated on the map is the Clyde waste transfer station. The Government introduced special legislation to overrule the Land and Environment Court declaration that the development undertaken by Labor Party donor Collex Environmental Services is unlawful. As we all know, Collex is a subsidiary of Veolia Environment. Veolia's overseas record indicates that it is not only one of the most corrupt water companies in the world, particularly in France and Italy, but it is also a member of one of the consortia that is seeking to develop the Kurnell desalination plant. The Department of Planning web site indicates that the Kurnell desalination plant has been approved despite overwhelming public opposition.
The Prince Henry Hospital site is also indicated on the map. Labor Party donor Stockland Trust Group has benefited from the Government's closing the hospital and selling off public land on the coast for the development of 850 luxury homes. So much for the Government's concern for maintaining and expanding health facilities for the residents of Sydney. The map also indicates massive overdevelopment in the Wooli Creek and Arncliffe areas, where Labor Party donors, Meriton Pty Limited, Multiplex Group and Australand are constructing huge apartment complexes. Those developments are cheek by jowl with the detested M5 East Tunnel and its pollution-belching stack. A 1,100 luxury apartment development is being built at Breakfast Point on prime land on the Parramatta River by Labor Party donor Rosecorp Pty Limited, which is now proposing to devastate the village of Catherine Hill Bay. Another item on the map is the residential development at Rhodes being undertaken by Labor Party donor Meriton. The development is on heavily polluted, former industrial land. Of course, we are still waiting for Homebush Bay to be remediated.
I turn now to the development of the Royal Rehabilitation Centre site at Putney. A major health facility is selling off 80 per cent of its land to pay for its upgrade and nearly 800 apartments have been approved, and that will increase the population of the suburb of Putney by more than 50 per cent. I expect that in the forthcoming State election the Deputy Premier, who is the local member, will be well and truly exposed to the wrath of the residents as they see their suburb's amenity disappearing under the massive overdevelopment taking place on the rehabilitation centre site.
Another feature of the map is the attention it draws to the expansion of Port Botany. The Government has overruled the recommendations of the independent commission of inquiry and has approved an expansion of the port that will result in vast increases in truck and diesel rail movements through more than 50 suburbs. The impact of vibration, noise and air pollution will be significant. Then we have the various road tunnel disasters, including the Cross-city Tunnel, the Eastern Distributor and the upcoming Lane Cove Tunnel. Private-public partnerships have delivered secretive contracts between the Government and developers, many of whom are donors to the Labor Party. These tunnels have failed to alleviate traffic congestion and, in fact, have added to traffic congestion across the city.
I refer honourable members to the north and the south-west growth centres. The list of developers includes many favourite Labor Party donor and friends. The level of public dissatisfaction about the way land releases have been manipulated to suit developers is white hot, not to mention their concerns about the lack of public transport and other infrastructure in the release areas and the long-term health effects of putting housing estates in what the inquiry into the health effects of air pollution in Sydney Basin described as one of Sydney's air pollution hot spots. These are just a few of the developments in Sydney that this Government and the Labor Party's financial supporters in the construction industry have foisted on residents under previous reforms to the Environmental Protection and Assessment Act. There are plenty of others around this State. 4410 LEGISLATIVE COUNCIL 21 November 2006
The Hon. Michael Costa: Name them!
Ms SYLVIA HALE: My colleagues will be naming them. They include the Sandon Point development, in relation to which the Minister again overrode an independent commission of inquiry to favour ALP donor Stockland in its push for a major development on environmentally and culturally sensitive land. I draw the attention of honourable members to the mines that have been approved for Labor Party donors BHP Billiton and other mining companies which have undermined the Nepean River near Picton, severely damaged Lake Cowel, where the groundwater level has dropped by about 35 metres in two years, and which now threaten communities and land in the Hunter Valley, and, of course, the Anvil Hill project itself. Crossbenchers were addressed today by residents of Lake Macquarie who are very concerned that the area around the lake may be subject to open-cut coalmining. Of course, they are concerned about the impact that that will have on the quality of water in the lake. They are equally concerned about the amount of dust and air pollution that might be created as a result of open-cut mining should it go ahead despite people living in such close proximity and despite so many schools potentially being affected by the development.
Communities around the State now know how the Government's reforms to the Environmental Planning and Assessment Act have worked against them. In April this year, some 160 environmental and community groups across New South Wales wrote to the Premier expressing their opposition to what the Government was doing with the planning laws. It is not only the Greens, or even members of the broader environment movement, who are saying this; concerns are also being expressed by the planning profession. The Australian Financial Review reported on 16 November 2006:
... the planning profession has branded NSW the worst jurisdiction in the country in a landmark survey.
The survey referred to is the planning report card of the Planning Institute of Australia, which is based on a survey of 650 professional planners from both the public and private sector that asked respondents to grade their State's performance from A through to D against 10 criteria. The Australian Financial Review reported:
... on a state by state basis NSW achieves the worst rating on six of the ten criteria and the second lowest on three others.
New South Wales scored its lowest ratings on the provision of public transport and the provision of infrastructure and sustainability. The planning system in this State has fallen into—or, rather, it has been pushed into—disrepute under this Government. The community no longer trusts it, the planning profession finds it a failure, and they find many of its Ministers an absolute joke. It is seen as being hopelessly compromised by money, politics, and far too favourable treatment for developers with close connections to the Government. To illustrate the broad public disquiet over the Government's changes to the planning laws I quote from an article by Alex Mitchell in the Sun-Herald of 5 November 2006:
In the March election Labor will spend up to $20 million, with the lion's share coming from developers who have been gifted with more pro-development legislation than at any time in the state's history.
In a nutshell that summarises what is happening. It is difficult to put it more concisely or more accurately than that. In considering this bill it is important for members to understand that this is an increasingly common view across the community. Many people feel that the reforms of the planning laws have been entirely for the benefit of developers, and that developers have been returning the favour by pouring what former Labor Prime Minister Paul Keating recently described as a wall of money into the coffers of the Labor and Liberal parties. In his recent speech at the Local Government Association conference Mr Keating is reported as saying that too much power has been centralised in the hands of too few bureaucrats, leading to the potential for it to be abused. He is also reported as saying:
The NSW planning minister—whoever that may be from time to time: they do have a history of not lasting—is the Mayor for Triguboff, and the mayor for the other developers who've got projects over a certain value.
He went on to say:
The wall of money coming at a minister in these jobs is phenomenal because, as you know, the industry is into political donations, which in my opinion should be outlawed.
Of course, the former Prime Minister is correct. In recent years both the Labor and Liberal parties have accepted significant amounts of money from the development industry. New South Wales Green research on donations shows the State Australian Labor Party received $8.78 million from developers since 1998-99, while the New 21 November 2006 LEGISLATIVE COUNCIL 4411
South Wales Liberals and The Nationals received $6.35 million. Property developers have donated more than $5 million to New South Wales Labor since it was re-elected in 2003.
I direct the attention of members to the Greens site "Democracy4Sale". When they go to that site not only will they access the massive flow of donations to all parties in this State; they will also be able to avail themselves of the opportunity to look in detail at the developers' map. How could any of us forget the revealing photograph, on the front page of the Sydney Morning Herald on 1 November, of an obsequious Opposition leader, Peter Debnam, and a fawning shadow planning Minister, Chris Hartcher, welcoming developers aboard for a $750-a-head cosy jaunt around the harbour on a luxury cruiser, the use of which was kindly donated by Mr Greg Gav, who is—members guessed it—a property developer of some note?
I am familiar with Mr Greg Gav's activities. I am well aware that not so long ago he made his luxury cruiser available to the Labor Party to squire members of that party around the harbour. I well remember an extraordinarily contentious development at No. 1 Princes Highway, St Peters, when I was a councillor on Marrickville Council. It was on the crest of a hill, it dominated that hilltop, and it towered over much smaller developments such as older homes or the traditional housing associated with that area. At that time the Mayor of Marrickville was Councillor Barry Cotter. Of course, no-one is lamenting the fact that he is no longer a mayor; nevertheless, he was mayor at the time. I well remember that at that time the significant thing was that the consultant for the property developer was the former Mayor of Leichhardt, Larry Hand. Of course, the locals always called that development at No. 1 Princes Highway the Larry and Barry development.
The Hon. Don Harwin: Mr Gav did not think he would have a hand in that.
Ms SYLVIA HALE: Not that I can recollect, but I would not be surprised. I think Mr Gav certainly has form when it comes to knowing where best to apply a dollar or two. Following former Prime Minister Paul Keating's comments and that wonderfully revealing front-page photograph that I just described, even developers acknowledged that donations are on the nose with the public. In the Sydney Morning Herald of 2 November 2006 Terry Barnes, the Chief Executive of the New South Wales Urban Taskforce, which represents development firms, is quoted as saying that the companies:
... would support a total ban on all donations—from anyone in any form—to all political parties in local, state and federal elections. We make the donations reluctantly because the system's there and that's how things are done. But we really would rather not be spending $1,000 on harbour cruises and all the rest. It's not just about freeing up cash for us, it's about freeing us of the perception—rightly or wrongly—from the community that we're getting preference in exchange for money.
So there we have it!
The Hon. Amanda Fazio: Point of order: My point of order relates to relevance. We are debating the Environmental Planning Legislation Amendment Bill. For at least half an hour Ms Sylvia Hale has simply been talking about scurrilous accusations to do with a topic about which she is obsessed and which she claims links development donations with some form of corruption of the democratic political process in Australia. That is not the subject of this bill. I ask you to bring her back to commenting on this bill and its specific provisions.
Mr Ian Cohen: To the point of order: It is important to note that members of this House, with good reason, recognise that there is a specific relationship between developer donations and the power exerted within this Parliament in support of this bill. It is relevant that a member would debate the issues pertaining to the types of developments that will go ahead under this legislation. I believe it is absolutely relevant that such matters be debated. It may be unpalatable to some, but the issues are relevant and ought to be debated. It is Ms Sylvia Hale's right to raise these issues. I see them as very relevant to the bill before the House.
Ms SYLVIA HALE: To the point of order: Most of the amendments in this bill relate to increasing the Minister's power to call in developments and giving him almost untrammelled discretion as to how he determines those applications and those concept plans. The public perception is that the Minister's discretion is very much influenced by contributions from developers to the Labor Party, in particular, and also—
The DEPUTY-PRESIDENT (The Hon. Greg Donnelly): Order! Is the member speaking to the point of order?
Ms SYLVIA HALE: I am just saying that my comments are relevant to the bill we are debating. That was the whole point. I am addressing the relevance of my comments to the bill that the House is debating. 4412 LEGISLATIVE COUNCIL 21 November 2006
The DEPUTY-PRESIDENT (The Hon. Greg Donnelly): Order! The member should confine her remarks to the subject of the bill and avoid extraneous comments.
Ms SYLVIA HALE: As I was saying, the development industry—which is, of course, the beneficiary of much of the planning legislation that goes through this House and is utilised by this Government— acknowledges that the community perceives that developers are getting preference in exchange for money. This community perception of the Government engaging in cash for favours for developers is not dealt with in the bill. Instead we have a series of further amendments to give the Minister even more discretion to exclude the community even further, to reduce environmental protections even further and to bring the planning laws into even further disrepute.
The sections of the bill that the Greens oppose are not housekeeping amendments, as the Minister has called them, but are in fact further moves to entrench the power of the Minister for Planning, reduce the role of the community in the planning process, and reduce environmental protections. Accordingly, I will move, on behalf of the Greens, to delete the sections of the bill that give even greater discretion to the Minister to fast-track developments. I will also move to delete the sections of the bill that change the composition of the Central Sydney Planning Committee by removing the requirement or convention that the Director of Planning and the Government Architect be members of that committee. Of course, I look forward to the Opposition's enthusiastic support for those amendments.
In addition, I will move to amend schedule 1 in order to more sensibly define the commencement of building, engineering or construction work. The Greens amendments to this bill recognise what the Government and the Opposition refused to acknowledge: that their willingness to accommodate developers at the expense of the community is damaging the community's faith in the development process and in the Labor and Liberal parties. Of course we have ample evidence from the polls to indicate that. It would have been better for all concerned if the Labor and Liberal parties and The Nationals had supported the Greens 2003 private member's bill to outlaw developer donations, rather than joining together to keep each other's snouts firmly ensconced in the donations trough.
It is worth noting that a combined total of more than $7.7 million has found its way out of the trough and into the pockets of the Labor and Coalition parties since they joined together to vote down that Greens bill. The community is sick of it. The further changes in this bill designed to entrench the power of the Minister will be viewed as another round of cash for favours, and another round of rorts. Those changes deserve to be rejected, and I encourage all honourable members to hear what the community is saying and to support the Greens amendments when they are debated.
The Hon. ROBERT BROWN: I have to say that when the debate began and Mr Ian Cohen approached me to give me his viewpoint, he had me half convinced—that was until I heard the remainder of the debate and Ms Sylvia Hale's contribution. Like most members of this House, I have received representations from the Urban Development Institute of Australia, the Minerals Council and the Property Council. I have also received representations from a mob calling itself the "Environment Liaison Office". That group of people consists of the Australian Conservation Foundation, the Blue Mountains Conservation Society, Koolong Foundation for Wilderness, and a whole heap of others.
Rather than seeing in these representations from industry death, corruption, vilification, and all that sort of thing, I see in them a plea for New South Wales to get off its backside and catch up with Queensland and the other States where all our capital is flowing. When I look at this representation from the Environment Liaison Office I am looking at the dark ages—turn off everything, shut down the mines, and we might as well just give up and let Queensland have it. Having heard the debate thus far—and, of course, Mr Ian Cohen is yet to make his contribution—I am not convinced that I should not vote for the legislation. In fact, I am thinking I will support it.
Reverend the Hon. Dr GORDON MOYES [12.57 p.m.]: On behalf of the Christian Democratic Party I speak to the Environmental Planning and Assessment Amendment Bill 2006. I have spent a lot of time with my advisers, meeting with people, and working on this, and I have prepared an 11-page address, which will take me at least 3½ minutes to read each page. I therefore want to ask something rather unusual at this late hour. I ask that the House agree to receive my speech and have it incorporated in Hansard. I will be satisfied with that, and we will go home 35 minutes earlier.
The DEPUTY-PRESIDENT (The Hon. Greg Donnelly): Order! Reverend the Hon. Dr Gordon Moyes has sought leave to have his speech incorporated in Hansard. Are there any objections to that course? 21 November 2006 LEGISLATIVE COUNCIL 4413
[Interruption]
The Hon. Amanda Fazio: Point of order: At the time Ms Sylvia Hale objected she was in fact outside the barrier and was not entitled to speak.
Ms SYLVIA HALE: I am not now, and the Deputy-President has not given a ruling as yet.
The Hon. Amanda Fazio: To the point of order: I was pointing out to the Deputy-President that the member was attempting to contribute to debate from outside the Chamber.
Ms SYLVIA HALE: Tough luck!
Mr Ian Cohen: I object.
The Hon. Amanda Fazio: Don't say "tough luck" to me. I have pointed out something to the Deputy-President. You have form for this sort of stuff, and it is about time you paid a bit of attention to the rules of this House.
The DEPUTY-PRESIDENT (The Hon. Greg Donnelly): Order! No objection was taken by any member who was on the floor of the Chamber at the time and, therefore, was entitled to object.
[Interruption]
The DEPUTY-PRESIDENT (The Hon. Greg Donnelly): Order!
Mr Ian Cohen: Point of order: I also objected to the incorporation in Hansard of the speech by Reverend the Hon. Dr Gordon Moyes before you made your ruling. I was standing at the back of the Chamber and I said, "I object."
The DEPUTY-PRESIDENT (The Hon. Greg Donnelly): Order! I did not see or hear that.
Mr Ian Cohen: I appreciate that, Mr Deputy-President. There was a lot of noise in the House and perhaps you were focused geographically on the far corner of the Chamber because the member that you were most attuned to was, in your opinion, outside the Chamber. Nevertheless, I was in the Chamber and I objected before you made your ruling.
The DEPUTY-PRESIDENT (The Hon. Greg Donnelly): Order! I was paying attention to all members in the Chamber and I did not see or hear Mr Ian Cohen.
The Hon. Don Harwin: I heard him.
Mr Ian Cohen: The Opposition heard me. I objected to the incorporation of the speech before you made your ruling, Mr Deputy-President.
The DEPUTY-PRESIDENT (The Hon. Greg Donnelly): Order! I have ruled on this matter.
Leave granted.
______
ENVIRONMENTAL PLANNING AND ASSESSMENT BILL 2006
OBJECTS:
The principal object of this Bill is to make amendments to the Environmental Planning and Assessment Act 1979 with regard to the certification of development, development contributions, major projects and a number of miscellaneous issues. The Bill also amends the City of Sydney Act 1988, the Building Professionals Act 2005, the Local Government and Environmental Planning and Assessment Amendment (Transfer of Functions) Act 2001 and strata schemes legislation.
COMMENT:
Last year, we saw a raft of amendments made to the Environmental Planning and Assessment Act that revolutionised the manner in which environmental assessments are carried out in relation to State significant development. These amendments established a new regime of assessments through the creation of Part 3A of the Act. Projects fall within Part 3A if so declared by a State 4414 LEGISLATIVE COUNCIL 21 November 2006
environment planning policy or by order of the Minister through publication in the Government Gazette. Under the latter scenario, the Minister may declare such projects if they are either major infrastructure developments or critical infrastructure projects.
A major infrastructure development is a development which, in the opinion of the Minister, is of State or regional significance. A critical infrastructure project is any type of development that might be considered by the Minister to be essential for economic, environmental or social reasons. For example, under Part 3A, the Minister may declare a desalination plant as a "critical infrastructure project" thereby foregoing any need for public consultation. New dams in the Hunter region, and new coal mines in the State's north can also potentially be declared "critical infrastructure".
Without one shadow of a doubt, it is clear that the Bill before us today increases the Minister for Planning's power, further and beyond that which I believe, was envisaged by the framers of the original Bill. The increase in the original intention of the Act in this Bill, I am surprised that this Bill does not itself provide for an amendment to its own title, changing it from the Environmental Planning and Assessment Act 1979 to the Development Act 2006!
In order to understand how the Minister's powers are enlarged in this Bill, it is important to closely consider each of the proposed amendments. Though I will not spend considerable time on each and every amendment, I will nevertheless point out some key amendments to illustrate the augmentation of the Minister's powers under this Bill.
Let us turn to s.75J(1) of the Act. This section deals with the giving of approval by the Minister to carry out projects. The current legislation states that if:
"(a) the proponent has duly applied to the Minister for approval under this Part to carry out a project, and
(b) the environmental assessment requirements under this Division with respect to the project have been complied with, the Minister may approve or disapprove of the carrying out of the project."
The proposed amendment to s.75J states:
"(1) If: (a) the proponent makes an application for the approval of the Minister under this Part to carry out a project, and
(b) the Director-General has given his or her report on the project to the Minister,
the Minister may approve or disapprove of the carrying out of the project."
The proposed amendment to this subsection removes the word "duly" from s. 75J (1) (a), thereby implying that a lesser standard is applicable. For a proponent to "duly apply" to the Minister connotes that certain requirements must be complied with by the proponent in making an application to the Minister. Significantly, in the proposed amendment, the environmental assessment requirements to be met by the proponent are eliminated and are only to be considered by the Director-General. In their place, the Director-General need only provide his or her report on the project to the Minister. Conceivably, the report could be one page long. Within this dynamic, there is no transparency and no accountability between the Director-General, the Minister and other parties affected by the development. It is akin to a unilateral decision where the Director-General and the Minister are essentially the decision-makers. Where power is vested in the hands of a small group of people, greater scope exists for bad decision-making and the potential to be influenced by a small and powerful lobby of developers.
Further, the Minister is even not bound to follow the recommendations of the Director General, even though the Director General and staff are the only people who will even come close to fully investigating a project made under a Part 3A application. The Minister has access to the cumulative experience and wisdom of all the people in his department, and under this legislation, chooses not to refer to it because his powers are centralised in his position.
One major objection to the increase in the Minister's powers under the Part 3A regime to date is that the effective implementation of these powers has not yet taken place. For instance, since the introduction of last year's amendments to the Act, the Minister has not yet gazetted the requirements for the preparation of Part 3A applications.
The Minister has established the means for making an application under Part 3A, but has not yet defined what requirements must be met or considered as part of it. Draft guidelines for the content of Part 3A applications were released for discussion in July 2005, 16 months ago, and have not been finalised. I find it hard to believe that a Government that takes no time to consult on new dams and desalination plants takes 16 months to consult on the guidelines that govern their approval.
As they are in draft form, this leaves the content of current Part 3A applications open to the interpretation of local Department of Planning officials. In some regions, Departmental officials have whittled down suggested Guideline requirements from four summary tables to one, and recommended a report that is a maximum of 8 to 12 pages long. An 8 page report into "state significant development" is not good enough. If the development is significant, then the investigation of it ought to be so as well.
Another contentious proposed provision is s.75J (3). Currently, this subsection says:
"The Minister cannot approve of the carrying out of a project:
(a) that is not a critical infrastructure project, and
(b) that would (but for this Part) be wholly prohibited under an environmental planning instrument by the operation of section 76B." 21 November 2006 LEGISLATIVE COUNCIL 4415
The proposed subsection substituting the current one indicates that in deciding whether or not to approve the carrying of a project, the Minister:
"may (but is not required to) take into account the provisions of any environmental planning instrument that would not (because of section 75R) apply to the project if approved. However, the regulations may preclude approval for the carrying out of a class of project (other than a critical infrastructure project) that such an instrument would otherwise prohibit."
Clearly this provision gives the Minister the power to override and ignore every environmental planning instrument ever made in the history of NSW! One person would have the power to do away with the work produced by hundreds of well-informed professionals. The drafters of this provision also have left the requirement for regulations discretionary through the use of the term "may". The term "may" is meaningless and it is not a firm commitment to upholding previous environmental planning instruments.
It is conceivable that the substance of proposed s.75J (5), a new sub-section, replaces the requirement for a proponent to carry out an environmental assessment of the project. Amendments moved to the Bill by the Minister last week will now require the Director General's report to include "a statement relating to compliance with the environmental assessment requirements under this Division with respect to the project". Proposed s.75J (5) states that:
"The conditions of approval for the carrying out of a project may require the proponent to comply with any obligations in a statement of commitments made by the proponent (including by entering into a planning agreement referred to in section 93F)."
A couple of points can be made here. First, it is discretionary as to whether the conditions of approval require the proponent to comply with any obligations in a statement of commitments. Again note that the use of the term "may" is employed. Second, the statement of commitments is made by the proponent and not negotiated by the Department or the Minister and the proponent, or set up by the Department and/or the Minister for the proponent to follow. The statement of commitments is dictated by the proponent - clearly, in any other realm, there would be a conflict of interest in allowing for this to occur. It is envisaged that the proponent will not make commitments it does not have to make nor will it protect the environment at the cost of making a quick buck. It is also clear that the proponent will not include any commitments within this statement that it cannot adhere to - to do otherwise would be nonsensical.
Proposed amendments to section 75M deals with the submission of a concept plan for a project. The effect of amendments to section 75M is to no longer require the submission of a concept plan but only calls on the proponent to apply for approval to lodge a plan. Even if a concept plan is accomplished, a detailed description of the project is still not required to be part of it. For major projects and critical infrastructure, projects of major significance to this State, this is unsatisfactory. A major project should have a major investigation.
As I mentioned previously, the $342 million dam the Government recently announced could be classed as "critical infrastructure" and put through as a Part 3A application. Amendments to section 75M allow nothing more than a non-detailed description of the project to be made, without any environmental assessment being required. Democracy in bringing about planning decisions has developed into a veritable dictatorship, where one powerful person rules the roost.
Further amendments to s.75M allow public consultation and reports under Division 1 and 2 of Part 3A to be combined. The entire process is clearly being condensed to prevent much needed reporting, planning and public consultation. It would seem that if the Department of Planning is going to continue to increase its power, it must also then employ the necessary staff to be able to effectively oversee its functions. This is currently not occurring and the NSW Government does not have the budget to allow for this to occur. With announcements that public sector jobs are being reduced in order for the Government not to continue to blow its budget, it is not clear how the Department 'of Planning will expand to meet higher demand were this amendment to succeed.
Proposed section 75P(a1) states that:
"Any consent granted for the project or that stage of the project under Part 4 is to be subject to such conditions as the Minister directs for the purpose of fulfilling the obligations in a statement of commitments submitted by the proponent (in which case those conditions cannot be modified without the approval of the Minister and a person cannot appeal to the Court under this Act in respect of the direction or any such conditions imposed by the consent authority)."
The Government can at least make the effort to couch its language to at least try and disguise a grab for power. To bar persons from appealing to the Land and Environment Court in respect of these directions clearly shows that the Government has made up its mind to oust citizens from having a say. This stance can also be confirmed in the amendments to the Act brought about last year. This stance results in fewer avenues for appeal for citizens affected or concerned by decisions in this realm. The Government is supposed to serve the people of this State but it instead is going out of its way to make it harder for them to be heard.
Another interesting provision is the extension of the definition of the 'provision of infrastructure' under s.94ED. The context of this provision is defining what is meant by the provision of infrastructure for the purpose of levying of development contributions. Section 94ED will now include situations where the Minister, corporation, Department, Director-General, do one or any more of the following things:
carrying out of any research or investigation; preparing any report, study or instrument; doing any other matter or thing in connection with the exercise of any statutory function under this Act.
It is not clear how the provision of infrastructure, nominally taken to include for example, the building of a road, can be extended to the writing of a report. Even more vague is the phrase that "doing any other matter or thing in connection with the exercise of any statutory function under this Act" can be included within the ambit of providing infrastructure. 4416 LEGISLATIVE COUNCIL 21 November 2006
Section 116D increases the Minister's powers once again in relation to undetermined applications. Members may recall that some time ago, legislation was established to refer development applications that not been determined by councils within 60 days to the Minister. Through proposed section 116D the timeframe of 60 days will be whittled down to 40 days. It is not apparent why the Government did not initially push for an amendment that established a 40-day limit in its previous amendments. Though from an 'efficiency' point of view, it is clear that the limit will be beneficial, this amendment continues to confirm the centralization of powers in the Minister. Section 116E slashes the initial 40 days that a certifying authority has to negotiate the determination of a development application to 21 days.
Given the local nature of development applications, it can be said with certainty that local authorities have a much better understanding of the factors involved in assessing a development application than the Department of Planning would have. These amendments will lead to a "drive-thru" process of development application. Councils will be pressured to make decisions within the timeframe indicated, which may lead to less thought out decisions being made. Giving councils less time and more pressure to do their job is not good governance. The Department of Planning does not have the staff to keep up with the proper exercise of the authority they already have, yet the Government is still intent on removing even more responsibility from local authorities and the people who actually know the areas that will be affected by development.
All in all, these amendments are a centralizing grab for power by the Minister and the Department of Planning at the expense of proper investigation, well thought out planning and public consultation and accountability. Good development can stand up to investigation. Only bad development needs to be hidden from view, and the majority of these amendments facilitate this.
On a final note, there is much merit in pointing out that the Land and Environment Court is currently within the throes of considering a case that could set up a crucial precedent for all Part 3A applications. Currently, an environmental assessment prepared under Part 3A for the Anvil Hill coal project is being challenged on the grounds that it failed to address matters that were required to be assessed under the Director-General's requirements and the objects of the Planning Act. Members may know that all mining in this State falls for determination under Part 3A of the Environmental Planning and Assessment Act 1979.
In the legal debate that has ensued in the Court, we have information that reference was made to the second reading speech that introduced Part 3A into the Act. In that speech, the Minister said:
"Let there be no mistake, the Bill will ensure that the impact of proposals on critical habitat, threatened species, aboriginal cultural heritage, will be appropriately assessed under the new provisions."
Clearly, and on face value, this extract provides support for the principle that appropriate environmental assessment will be carried out under the amendments to the Bill.
We have been informed that the Government's own QC has argued that the Minister's second reading speech was an inaccurate representation of the Part 3A amendments and that in part, the Minister had only made the assurances in the speech in order to win votes for the Bill. This admission, if true, is very disconcerting. Certainly, this places the onus on each and every parliamentarian to carefully examine the provisions of each Bill rather than simply refer to the second reading speech, in determining whether to support legislation. The second reading speech to the current Bill indicates that the Bill is a "housekeeping measure of targeted amendments that will improve the operation of the planning system". Is this Bill a "housekeeping measure"? I do not think that so. In fact the Bill brings about extensive amendments to the Part 3A process.
As an aside, I have been following concerns relating to the Moolarben Coal Project. Members may know that I asked a question without notice to the relevant Minister in this House about this project saying,
"Is the Minister aware of the proposed Moolarben coal project near Mudgee that would include one underground coalmine and three open-cut coalmines spanning 3,450 hectares of sensitive bush land and river systems?
Is the Minister aware that the proposed mine will take 6.9 million litres of water per day out of local water sources to wash coal when the region is already enduring one of the worst droughts in recorded history?
Is the Minister aware that the coal mined from the project will continue to emit 330 million tonnes of carbon dioxide over and above the 14 to 20 year lifespan of the mine?
Is the Minister aware that the exploration licence allows for a purpose-built coal-fired power plant to be constructed to power the mine which will itself emit 382 million kilograms of carbon dioxide?
Will the Minister consider reserving extensive time for detailed scrutiny and re-assessment of this proposal and the potential environmental impacts of such a major development?
The response that I received from the Honourable Ian MacDonald was: "This matter is in the province of my colleague the Minister for Planning under part 3A of the Environmental Protection and Assessment Act. I am sure all of the issues that the honourable member raised will be considered within the context of the assessment that is required for any mine proposed by Felix Resources at Moolarben."
If this Bill passes, no strict requirement for the proponent to carry out environmental assessments under Part 3A will occur for this project and for other mines as they all fall under the "major projects" category. Minister Macdonald's response, in light of this Bill, does not fill me with the confidence that appropriate measures will be taken in relation to appropriate environmental assessment.
Also, I acknowledge that there has been a lot of interest and concern about this Bill regarding the Anvil Hill mine case. I will not delve into the issues relating specifically to this case other than to refer to subsection 3 of Item [57] of Schedule 1 of the Bill, relating to Part 3A matters. This item says that "the other amendments to Part 3A of this Act made by Schedule 1 to the amending Act extend to matters pending under Part 3A on the commencement of those amendments". Ostensibly, this means that, for 21 November 2006 LEGISLATIVE COUNCIL 4417
example, any application for the development of a mine that has not yet been determined will be governed by the amendments in this Bill.
Even if the intention of these amendments is not to nullify this case, as asserted by the Minister, it is clear that any future planning decisions will be affected under the amendments in this Bill.
I assert that this Bill does not simply implement "housekeeping" measures as suggested in the second reading speech in the other Chamber. This Bill is revolutionary. The "housekeeping" demolishes the house, and builds a Minister's castle. ______
Mr IAN COHEN [1.01 a.m.]: I support the comments of Ms Sylvia Hale, who led for the Greens in the debate on the Environmental Planning Legislation Amendment Bill. Somewhat tawdry conditions are developing in the House. It is now 1.00 a.m. Earlier tonight the Minister for Planning made a dramatic entrance and sought to derail the other business of the House by insisting that the bill be rammed through at this ungodly hour. That is typical of the Minister and symbolic of the state of governance in this State after 12 years of Labor Government.
I was elected to this place in 1995 following certain events and discussions. The then Leader of the Opposition, the Hon. Bob Carr, had met with members of the Greens before the election, and there was a feeling of general camaraderie in the House. I believed at the time that the Greens could work with the Labor Government and we did—particularly during the period from 1995 to 1999, when there were fewer crossbench members in this place. It was certainly a significant learning experience for me. That new Labor Government kept its promises regarding some significant environment bills and, while there were some disappointments, crossbenchers—including the Hon. Elisabeth Kirkby, Richard Jones and I—and the Government enjoyed a fruitful relationship. It was a robust period in the Greens' relationship with the Labor Government.
However, that relationship has eroded slowly over time. I remember a night not dissimilar to this when we considered integrated development assessment legislation introduced by the then planning Minister, Craig Knowles. There was general uproar about the legislation, which a number of significant unions and people in the community opposed. I remember debating the bill and moving about 75 amendments in Committee, as did Richard Jones. I recall seeing light shining through the windows of the Chamber before we pulled up stumps and staggered home at about 6.00 a.m.—I think we had breakfast in Parliament House. That was an important lesson for me—Reverend the Hon. Fred Nile was also here that night—about where the heart of Labor and the party's power lay. It was a big eye opener for me to see how the Labor Government rammed through planning legislation and sacrificed the hard-won environmental gains supported by the community. That night Labor moved away from the community and towards the developers. The Government got away with it on that occasion with the support of the Opposition.
Opposition members say of the Government at various times, "We will not fix their bad legislation." First, they know that if the Coalition were in government and the Labor opposition were robust it would not get away with introducing that type of legislation. Secondly, the Coalition knows that much of the legislation proposed by this Labor Government is very much in keeping with the philosophy of the Coalition. So be it. In some ways there is more truthfulness on the Opposition benches. Labor hypocritically tries to win over certain sections of the community while jack-booting its massive pro-development agenda through Parliament.
Over the years we have seen Labor align increasingly with the developers. I commiserate with those good members on the Left of the Australian Labor Party, who have fought the good fight from within. Tonight, at the very end of 12 years of Labor, we are considering an appalling piece of legislation that is a betrayal of the environment and of local communities. I noted the brief, but dare I say erudite, contribution from Mr Robert Brown, representing the Shooters Party. He hit members between the eyes with his comment that greenies are from the Dark Ages and we have to get off our arses and halt the flow of capital to Queensland. It was Joh Bjelke-Petersen talk, and I must say that he did it wonderfully. I look forward to more robust exchanges with the member across the floor of the Chamber in future.
The fact of the matter is the Environmental Planning Legislation Amendment Bill is a stinking betrayal of the people of New South Wales. I do not know how any member of the Labor Government—other than the perpetrators of these lies and deceit—can stand it. The abrogation of community rights is disgusting. This Labor Government has lost its soul. It has gone to the dogs; the barbarians are inside the gates. There was so much to be inspired by in this Chamber eight or 10 years ago. The quality of debate was incredible. I used to sit and listen to John Hannaford, the then shadow Attorney General, and Jeff Shaw, the then Attorney General, and be inspired yet confused. Both sides advanced such fine arguments it was difficult to choose between them— indeed, I sometimes made decisions on the floor of the House. 4418 LEGISLATIVE COUNCIL 21 November 2006
I am afraid that, in the case of the Labor Party, the barbarians are well and truly inside the gates. Labor has lost its soul, and that is a great tragedy. If the Coalition were not the only other option—Coalition members should not take it personally but I do not like their politics—the Labor Party would deservedly be thrown out of government with gusto at the next election. But I hear people talking. There is a sense in the community that people have had enough. That is not wishful thinking on the part of Greens members, who bellyache in the House and go on what some regard as little rampages. People are looking for some other way to exercise their small but significant right under the democratic process other than voting habitually for the major parties.
Whilst it is obvious that we would like to see an improvement in the Greens vote, we would like to see the Greens, Independents, anybody, come along and move away from the straitjacket of party politics—an aspiration that is directed towards money, development and raw power rather than to the representation of smaller communities. I say to the public: Please take note and consider voting for these other people, because the two-party system has let down the community horribly.
I do not say this as just a point-scoring statement in terms of the politics of the day; I say it because I am feeling the despair that I have felt for so long because this Government had betrayed us over and over again on environmental issues and, in this case, on planning issues that are ripping the guts out of our environment. People in the Hunter are decrying this Government's push on coalmines. People up and down the coast are decrying the loss of their social amenity, their beautiful way of life. We have one of the most brilliant levels of existence attainable in the world because we have so much of our natural environment, and we are losing it. Government policy is destroying it.
In a way I suppose it is easy to blame governments, blame Oppositions and blame people who are in positions of power and have immense responsibilities to represent what they see as their constituency, whether it be a broad constituency of the community or a narrow constituency of vested interest. I have to say—and it might lose votes—I blame the community. The community does not take note; it is not engaged enough in the politics. It might be boring to listen to speeches in this House, but the community is not participating. The community is not taking on its democratic responsibility to see what is going on and it is not taking note of the legislation that is going through this House. The community needs to take note of the sorts of people who are promoting a development agenda and who are appealing to a very narrow section of society, therefore betraying people, the community and the environment.
If the public does not listen to that and if it continues to ridicule the Greens like some people in this House, so be it. However, I feel that there is a need to say this and a need to continue to say this. During the next election campaign I will be out in the community and I will reflect this attitude against this legislation wherever I go. I am not up for re-election. I wish my compatriots from the Independents, the Greens and other small groups well. I will be out in the community with one express purpose: to expose the rottenness that currently exists in New South Wales. I sincerely believe the Government has moved so far away from representing the people that it is really a crime against society.
This bill continues the Government's assault on planning laws, which were fought for and won 25 years ago in New South Wales. The Minister for Planning has said that the bill is mere housekeeping, which is totally untrue. He is a recidivist liar. Frank Sartor has proven himself time and again to be good at playing the personality and poor on the details. He glosses over the situation. Time and again he lies through his back teeth, obsessed with his own power, to get what he wants with his grand vision of saving the New South Wales economy through development.
The Hon. Robert Brown: He probably thinks highly of you too.
Mr IAN COHEN: We used to get along well when he was in other places. It has gone past that point. I used to cajole the Minister. We used to have a bit of banter and it used to be fun. However, he has betrayed so many people and so many organisations in the community, and he has lied at the same time. It would be different if he believed the things he says, but I do not believe he does. I refer to little things, such as a development at Jamberoo. I went with a delegation of people from the Illawarra and we pleaded with the Minister. The farmers wanted a pipeline development to feed the wastewater from Jamberoo to the farmers. The Minister told me personally that financially it was not worth it; the figures just did not add up. This was before the mega drought we are now experiencing. The guy completely trounced not your average greenie but the farming community—dairy farmers on the South Coast who wanted to do the right thing and wanted to increase production. He just gave them a blanket no. 21 November 2006 LEGISLATIVE COUNCIL 4419
The Hon. Don Harwin: We have it in Nowra and it would have worked at Jamberoo too.
Mr IAN COHEN: I acknowledge the interjection by the Hon. Don Harwin. It is in Nowra and it would have worked in Jamberoo too. This is the type of thing I am talking about: up and down the coast, in these relatively small and controllable situations, the Minister is able to put down local communities' aspirations for a better way of life, a more environmentally sustainable way of life and a good planning practice that they are suggesting to the Minister. He just refuses it.
This legislation obviously contains significant changes, including changes to the duty to consider environmental impacts of development. Two provisions of the amendments to this Act would dramatically alter the approval and assessment process for major projects in such a way that potentially severe environmental impacts may go unassessed during the development approval process. The community's involvement in the planning process is further eroded, as are accountability and transparency. During this process the planning Minister will no longer be required to take into account the environmental assessments, thus removing the longstanding obligation to the people of New South Wales to fully assess potentially significant impacts on the New South Wales environment.
The requirement for the applicant to comply with environmental assessment is removed in the bill, giving the Minister all power to approve the project. The only obligation the Minister will have if this bill is passed is to consider the report of the director general. He does not need to abide by that advice, only consider it. The final few weak safeguards on the Minister will be removed. The bill further weakens environmental protection by not requiring the Minister to refuse an application for a concept plan that would be prohibited under an environmental planning instrument. It also further undermines the role of the Land and Environment Court. I would be interested to hear from the Minister, or whoever it might be asleep at the wheel, in reply, if it is possible, to clearly refute that this legislation does not undo the court case over Anvil Hill.
These amendments will affect all major projects in New South Wales and, if passed, will wind back 25 years of planning law in New South Wales, disregarding public interests and sustainability. They will allow major project developers to avoid the identification of destructive or dangerous impacts of their projects and also avoid mitigating these environmental costs through the development approval process. The assaults on environmental planning legislation, which gave the Minister enormous discretionary powers with the passing of part 3A last year, are continuing in this bill. Removing the need for development proponents to assess environmental impacts before approval is given is hardly a housekeeping measure.
The Minister for Planning will be abrogating that Government's responsibility to the people and environment of New South Wales if these amendments are passed. He says that the changes to the legislation are about certainty and simplification. Simplification is not necessarily a beneficial feature of legislation, and certainty will simply mean certainty for big developers at the expense of the environment and the community. The Government is acting completely at the behest of its developer mates.
The Hunter Community Environment Centre is one of the many groups that the Hon. Robert Brown said are in the Dark Ages. I take objection to that description although I am used to it because for a long time as an environmental activist I have got used to being vilified and ridiculed, as I am in this House, and that will continue. Nevertheless I have had a good training ground with cops and loggers and confrontation so I can deal with what happens in this House. It is kid's stuff compared with what goes on in the real world. The Hunter Community Environment Centre is a group of people, often young people, who have no investment in this debate except their ideals. They are not there to make money and it is fair enough if honourable members disagree with them, but they believe in protecting the environment and the social amenity and doing the decent thing.
I think they have a fantastic quality that we find in the Australian environment. Despite all the apathy, some people, many of whom I am proud to say are good friends of mine, work hard for long days and nights and do not give up. Governments come and governments will go but whilst there is any shred of threatened pristine environment or species left these people will step up and defend it, and I am very proud to be part of that movement. The Hunter Community Environment Centre states:
Government misleads parliament about Planning Act changes.
Brett Walker, QC, acting for the State Government in the Land and Environment Court this week, made the extraordinary assertion that changes made to the Environmental Planning and Assessment Act last year were misrepresented in speeches made about them in parliament. 4420 LEGISLATIVE COUNCIL 21 November 2006
The revelations come a week before parliament is due to introduce further changes to the Planning Act, which the Hunter Community Environment Centre (HCEC) claims will allow developments to go ahead regardless of whether Environmental Assessments had complied with requirements set down by the Planning Department.
Mr Walker claimed in court that assurances from Ministers last year that there would be no downgrading of environmental assessment under the controversial "Part 3A" of the Planning Act were said in part to gain votes for the changes, and were inaccurate.
HCEC campaigner, Georgina Woods, said "The State Government has gutted environmental protection in this State and the community and the environment will suffer as a result. There was widespread concern last year when Part 3A was introduced, that Major Projects with significant impacts on the environment would be rushed through the approval process without adequate review and assessment. We were assured that that was not the case. Now they are proposing further changes to the Planning Act, that would have a profound impact on the planning approval process, and we are again being told not to worry."
An Environmental Assessment prepared under Part 3A for the Anvil Hill coal project is being challenged on the grounds that it failed to assess the greenhouse gas impacts from the proposed mine, which were required to be assessed under the Director-General's requirements in the objects of the Planning Act.
"The Minister described the new changes as 'housekeeping measures' in his second reading speech last month, but it is obvious we cannot take this Government at its word, when it promises adequate environmental assessment," continued Ms. Woods.
The Hunter Community Environment Centre claims that one of the provisions of the new Bill is designed to thwart the court challenge to Anvil Hill and another will help the Government avoid having to assess the greenhouse gas impacts resulting from the coalmines and other coal export projects.
"The State Government is winding back 25 years of planning law to avoid embarrassment about their inaction on climate change. We urge all parliamentarians not to believe the Ministers' speeches any more, and play close attention to all legislation being proposed by the State Government."
On 9 June 2005 in the Legislative Council the Minister for Lands stressed in his second reading speech on the Environmental Planning Assessment Amendment (Infrastructure and Other Planning Reform) Bill that the main purpose of the new part would be to streamline the approval process for major projects and that there would be no downgrading of environmental assessment. He stated:
The new regime of environmental, social and economic assessment of major projects proposed in Part 3A of the Bill has been built on the 25 years of environmental assessment practice by the Department of Infrastructure Planning & Natural Resources and its predecessors under the EP&A Act.
The Minister further said:
Let there be no mistake—this bill will ensure that the impact of proposals on critical habitat, threatened species, and aboriginal cultural heritage will be appropriately assessed under the new provisions.
This week, however, Bret Walker, QC, acting for the Government in the Land and Environment Court, made the extraordinary assertion that these statements were inaccurate. In fact, he said the environmental assessment under part 3A of the Planning Act did not mean what "environmental assessment" meant in other places. I will comment on another similar lie that has been perpetrated. On 15 November 2006, when speaking on the Environmental Planning Legislation Amendment Bill, the Hon. Frank Sartor said:
I am advised that the proceedings relating to the Anvil Hill coalmine were commenced on 19 September 2006 after the Government approved the drafting of the amendments. I also point out that the litigant in this case acknowledged in a letter that the amendments do not affect that case in particular.
The litigant about whom the Minister was talking was Mr Peter Gray. Mr Gray wrote two letters, one to the Hon. Frank Sartor and the other in general. He wrote to the Minister:
I write with regard to the Environmental Planning Legislation Amendment Bill 2006, which you introduced to the NSW Parliament on the 24th October 2006.
Firstly, I ask you to stand down from your position as Minister for Planning, as I believe you have deliberately misled the NSW Parliament and the people of NSW.
Before you do so, I would ask you to withdraw the Environmental Planning Legislation Amendment Bill 2006 from consideration by the NSW Parliament.
Introducing the Bill as a 'housekeeping measure' was deliberately disingenuous, and I note that in your introductory speech you nowhere mentioned the real effects that such an amendment would have on environmental planning and assessment legislation, particularly in relation to the giving of approval for projects assessed under Part 3A. In light of the underhand tactics you are employing in order to keep the parliament and the public in the dark about the greenhouse impacts of the NSW coal industry, for one, I can no longer have any faith in your ability or integrity. 21 November 2006 LEGISLATIVE COUNCIL 4421
Of course, I refer in particular to Schedule 1 clause 6 and further to Schedule 1 clause 54 (3) of the Bill. I notice that in today's Sydney Morning Herald you have chosen your words with care, saying that the 'technical' amendments were lodged well before the case began, and that: "They have nothing whatever to do with Anvil Hill and my advice is they won't affect the case".
To be blunt, I think you're still misleading the public, and I ask you to desist. Of course the amendments would not affect the case, but they will certainly affect the impact a ruling favourable to me would have on future planning decisions, as you well know. Please tell me exactly when the matters outlined in clause 6 and clause 54 (3) of Schedule 1 of the Bill were lodged with the Parliamentary Counsel.
In his more general letter Mr Gray wrote:
I understand that the NSW Minister for Planning, Mr Frank Sartor, has recently been claiming that I have written a letter to him to the effect that the amendments to the Environmental Planning and Assessment Act suggested in the Environmental Planning and Assessment Legislation Bill 2006 will not affect the court case I am currently pursuing in the NSW Land and Environment Court concerning the Anvil Hill mine proposal. This is a great misrepresentation of the substance of the letter to which he refers.
In the letter I addressed to Mr Sartor, I accused him of being misleading by telling the media that the proposed amendments will not affect the Anvil Hill case. I believe he was being misleading because, as I wrote, even though the amendments would not affect the findings of the case per se, they would certainly impact greatly upon the effects that a ruling favourable to me would have on the Anvil Hill mine proposal's assessment. The amendments concerned were Schedule 1, clause 6, and Schedule 1, clause 54 (3).
The amendments have subsequently been altered before they passed through the Lower House, but will they still have the same effect on the impact of the court case
The case currently before the Land and Environment Court concerns whether the Environmental Assessment submitted for the Anvil Hill project adequately complies with the Director-General's Environmental Assessment Requirements. If the amendments proposed by Mr Sartor currently before the Upper House get through, the Director-General's Environmental Assessment Requirements will not have to have been complied with in order for the Minister to approve the Anvil Hill project.
I urge you to oppose the passage of the Environmental Planning and Assessment Bill and to ask Mr Sartor for clarification on the true substance of the letter I addressed to him.
I have a letter from the Environmental Liaison Office, a registered lobby group funded by a number of peak environment groups in Sydney which acts as a vital communication conduit between the environment movement and members of Parliament. In a letter to all members of Parliament, Danny Kennedy, Campaign Manager, Greenpeace Australia Pacific, on behalf of the ELO Groups, stated:
We are writing to condemn proposed amendments to the Environmental Planning and Assessment Act (EP&A Act) introduced by the Planning Minister into Parliament on 24th October.
While there are numerous matters in the Environmental Planning Legislation Amendment Bill 2006 that we consider to be detrimental to the environment and to public accountability, we are outraged that a Bill that was described by the Minister as a "housekeeping measure" will in fact substantially alter the EP&A Act and circumvent the Anvil Hill court challenge that is currently under way.
The Environmental Assessment for the Anvil Hill open cut coal mine proposal is being challenged in court because it failed to assess the greenhouse impacts of the coal that will be dug up at the Anvil Hill site.
If these amendments go ahead, there will be no need for companies and developers to fulfil environmental assessment requirements set down by the Director-General of Planning, making a mockery of the Planning legislation and undermining the very objects of the Act that this Bill seeks to amend.
We are appalled that the Government is seeking to hide and evade the true environmental impacts of coal mining and other destructive industries in NSW through the Environmental Planning Legislation Amendment Bill 2006. We are equally concerned that the Government is prepared to disregard 25 years of environmental planning legislation, and long standing principles of public accountability in order to avoid the inconvenience of one court challenge.
Although, we must remember that the Government has quite a history of using legislation to circumvent court challenges. I remember the wonderful people of Port Kembla who fought long and hard against the Port Kembla copper smelter. They won in court but the Carr Government belted them around the head with legislation to deal with the situation. Mr Kennedy further stated:
These amendments will affect projects far beyond Anvil Hill through the strongly opposed Part 3A of the EP&A Act. If companies are able to avoid assessing aspects of the developments, the public will be exposed to serious risk with no legal redress or constraint. The Government will likewise be exposed to litigation, having abrogated its responsibility to minimise the impacts of development, and prevent the most destructive impacts from occurring.
In April this year, 160 environment and community groups across NSW wrote to the Premier expressing their opposition to the government's planning overhaul. This bill continues the destructive overhaul, which has undermined community consultation, shut off environmental protection processes and granted vast discretionary powers to the Planning Minister. The bill supports the environmentally destructive and undemocratic processes under Part 3A of the EP&A Act. It must be opposed for the sake of communities everywhere. 4422 LEGISLATIVE COUNCIL 21 November 2006
We call on you to oppose this Bill in Parliament. The Planning Minister, Frank Sartor must be censured for misleading the Parliament and the public by understating the intent and the substance of these amendments.
The Government has a duty to the public of this State to behave responsibly and in our interests. If these amendments go ahead, they will have the effect of exposing NSW and the Government to environmentally destructive industries, with potentially serious public health consequences, with no requirement that these impacts be fully investigated beforehand.
In the more immediate term, this Bill would allow the coal industry to disguise the devastating impact it is already having on the people and environment of NSW through its contribution to climate change.
I made a rare visit with a friend to the lower House, and I was impressed by the experience and energy displayed by the member for Bligh, Clover Moore, as she gave her opinions on this legislation. Clearly she was not intimidated by the bullying of Government members in that House. I shall not go through the details of her speech, but I commend it to honourable members. Many people throughout New South Wales have expressed considerable concern about the attitude of Minister Sartor and this legislation supporting his truly Fascist— I hesitate to use that word, but it is apt—attitude. He makes a mockery of democracy in this State.
It is important to acknowledge that often during discussions between councils and the community a real effort is made to get down to the details. Recently Frank Sartor has ridiculed my home community with relish many times in the media and in the House, reducing to a personality conflict the justified and reasonable concerns of the community that his department is breaking its own rules. He thinks that people have a problem. We have a problem with Mr Sartor. It is not personal; it is archetypal.
I come from a community that does not like bullies and will stand up and represent what it fervently believes in. People in our community have the necessary expertise. I refer to the Becton development, which Frank Sartor, in his wisdom, has taken under his wing and taken out of the hands of the local community. The council is not dominated by the Greens—four of its 10 members are Greens—and it has a popularly elected Greens mayor. The Minister has removed from council the planning powers for that development.
[Interruption]
I note the interjection of the Deputy Leader of the Opposition and his ongoing prejudice against the council. It leaves me little room to manoeuvre, but I condemn both sides of this House. Although he jokes about it, he knows that if the Coalition is elected, he will have significant power. I understand, because I have asked other responsible Opposition members, who have said they have a policy not to disband councils if they gain office. I wonder what will really happen. We will have to wait and see. If a Coalition government does not do it, I suspect there will be moves by a Labor government, if it has a majority. Any majority Labor government after March 2007 will be an unmitigated disaster for the people of New South Wales. I will campaign for a minority government. Either way will do me. We have seen a majority government in office over 12 years. I do not like what I see. Whilst I listened to the gentle bellowing from the sideline—
The Hon. Duncan Gay: You didn't even get the bellowing right.
Mr IAN COHEN: Perhaps a mellow bellow would be more appropriate and would placate the honourable member. Give him a daisy and send him up the back paddock. This matter was quoted in full in the local paper. If the Government believes the Minister has been sufficiently maligned, it should take legal action and challenge us because a dumb, thick planning Minister has taken on an environmental representative, Dailan Pugh. This can be found on page 16 of the Echo of 31 October 2006. If it is wrong, I say to the grovelling staff who do the Minister's bidding in any circumstances: Check it out, sue the paper and sue Dailan Pugh. They will get a surprise. The article says:
Dailan Pugh of the conservation lobby group BEACON shows how the state government applies the screws to get the approval through for Becton's North Beach proposal at Byron Bay.
BEACON was recently granted access to hundreds of pages of documentsrelating to the Becton development under a Freedom of Information request from the Department of Planning (DoP). They reveal that the Department of Planning has become so corrupted by the ALP government that it is prepared to mislead other government agencies, and withhold relevant information from them, in order to approve developments.
The public exhibition phase of Becton's Development Application (DA) for Byron Bay closed on April 13 and DoP began their decision making process. It was apparent from the beginning that DoP intended to approve Becton's development. It soon became obvious that this wouldn't be as easy as they hoped.
The Marine Parks Auth wanted expanded buffers around the waterbodies, the Rural Fire Service demanded greater separation between the development and vegetation, the Regional Advisory Committee of the RTA claimed the information was inadequate for an assessment (particularly the cumulative impacts of future stages), the Department of Environment and Conservation 21 November 2006 LEGISLATIVE COUNCIL 4423
claimed that the assessment of threatened species was inadequate, and Byron Shire Council claimed that it did not comply with planning controls and that the Species Impact Statement was legally invalid.
Though in the end they were rolled by the Department of Planning, and Becton got what they wanted.
As evidenced by the frequent emails between DoP and Becton's consultants they worked closely together in their mutual desire to get the proposal approved. DoP even advised its consultants to only go on a site inspection with Becton consultants, and not bother meeting with Council or BEACON representatives. This relationship seems to have become a lot closer after the Minister directed DoP to finalise it quickly in early June.
In order to overcome objections of other government agencies and Byron Shire Council the DoP assured them that it was not a staged development application and they were only considering approval of the first stage. On June 20 the DoP were still stating 'future stages cannot be approved given bushfire and coastal erosion risk at this time" and this was the basis on which their own consultants were assessing the DA.
It was only on the basis that future stages weren't going to be approved that some other agencies reluctantly gave in to DoP's unrelenting pressure to abandon their requirements, with the Department of Environment and Conservation expecting this as a condition of consent as late as July 12.
Contrary to DoP's assurances to all and sundry, on August 28 Minister Sartor gave Becton a Staged Development Consent, approving Stage 1 with 117 units, and 47% additional floor area for unspecified "future stages".
It is also revealing that aside from discounting the future stages, drafts of the DoP's assessment report in late June were incorporating the advice of their own planning consultants to reduce the size of Stage 1 of the development from 177 to 111 units. Instead of the six units being removed, references to deleting them were deleted from DoP's final report (though a few were missed) as Minister Sartor allowed the six units to be relocated.
The most telling event was the receipt on June 28 of the Biosis report commissioned by the DoP. This supported Byron Shire Council and heavily criticised the flora and fauna work undertaken by Peter parker for Becton, identified that the Species Impact Statement (SIS) was legally invalid and identified substantial further work as being required.
DoP immediately wrote to Becton's consultants requiring them to reassess each individual species in accordance with legal requirements and do other work. When Becton's consultants refused, the DoP simply acquiesced and by July 3 the damning Biosis report was just a minor hiccup as DoP and Becton's consultants combined forces to pressure the Department of Planning (DEC) to approve the discredited SIS.
DoP never mentioned or forwarded a copy of the Biosis report, or any of the submissions which heavily criticised the SIS, to DEC. To the contrary it appears that they wanted to be able to use DEC's naïve approval to be able to dismiss their own damning report. By July 6 Becton's consultants were claiming that DEC had 'issued concurrence'.
DoP had substantially written their assessment report before the Biosis report was complete and had wrongly attributed it as supporting many of their claims. So, rather than correcting their obviously erroneous statements, the DoP simply deleted numerous attributions to Biosis from their report.
These examples illustrate aspects of the brave new world established by the NSW Government's 'planning reforms'. What has so far been revealed about the Department of Planning's contempt for other agencies and councils through withholding relevant information from them and deliberately misleading them, while working closely with developers under Minister Sartor's supervision, is extremely worrying.
The Freedom of Information request was sent by BEACON on July 14, and it wasn't until 89 days later that the documents arrived, not bad for a supposed 28 days process. The DoP stopped the clock at one stage until we had paid them half the costs, then the day after Minister Sartor announced his decision they stopped it again claiming they had misquoted and wanted more money before proceeding (and they maintain this was not a political decision to further delay access).
While we have some documents it is evident that many are still missing. We are now appealing the decision and will have to wait even longer to get the rest. We expect they are keeping the best to last.
That article was accompanied by an article on the following page entitled "The devil is in the detail". These are specific footnotes on every statement that is made in the article, which refers to information gathered by local conservationists to prove that article to be correct. I would suggest that is far more work, and far more thorough than the Department of Planning operatives on this issue are interested in doing. Another issue I would like to raise relates to local people in Mullumbimby, a town that is also in my home shire. They are concerned about RailCorp entering into a provisional sale with applicants C. Mallam and R. Musgrave. They say:
This sale depended on the applicants gaining approval for a proposed "Supermarket and Ancillary Retail Development" on RailCorp's site west of railway line.
The Byron Council dealt with originally as an LEP amendment. This proposal was twice refused by local government. …
We feel this development should have been left at the local government level. State Government has a vested interest in the outcome as this is a sale of Railcorp land.
Most distressing is that small country towns developed beyond their infrastructure capacity (eg Byron Bay) suffer from insurmountable traffic problems. Mullumbimby residents are desperate to hang on to their own main street bypass. By ignorning the bypass status of the main feeder road for the development, the State Government is condemning Mullumbimby to the same 4424 LEGISLATIVE COUNCIL 21 November 2006
fate as Byron Bay. The road infrastructure improvements as stated in the State Planning Report of this DA don't reflect the reality of the capacity of these roads.
This creation of a separate arm of commercial development is in the heart of a small country town residential area.
At the moment residents are looking at a third party Appeal. There is the possibility that as there is an onsite sewerage system that includes the storage of waste water that has to be situated above flood levels of 4.82 AHD and that this is within 250 metres of a dwelling not associated with the development, that the development application should have been designed designated development requiring an EIS.
Please have a go at Sartor, who boasts the State Government only promotes quality development. This DA certainly doesn't fit the bill, whether within legal boundaries or not.
This was written by June Grant of my local area and a Mullumbimby resident. I will conclude at this point by simply saying that I think the majority will support this legislation. Might I say that the majority will be somewhat disinterested in the details of it. There is an acceptance that the Government has the numbers, and the Opposition certainly does not have the will to oppose this measure because it is ideologically fairly closely aligned with the direction that the Government has taken in this instance.
The time will come when communities across New South Wales connect in opposition to the direction the Government is taking and look for ways to express that opposition. Certainly, I will be starting my opposition at the next election. History is starting to resonate with the concept of a plague on both Houses because both major parties in this House and all those who work with them have let down the people of New South Wales. This bill is a tragedy. The main perpetrators of this bill, particularly the Minister, have a great deal to answer for. The arrogant Minister is optimistic about shoring up the New South Wales economy. However, I believe there will be a massive backlash against the Government by the community, and this bill will be a primary issue in the lead-up to the next election.
The Hon. DUNCAN GAY (Deputy Leader of the Opposition) [1.50 a.m.]: Although we must stay here so late, honourable members should not be able to bang the Opposition unmercifully without members having a chance to respond. First, I have received probably the largest number of emails on this bill than on any bill before the House. Obviously the emails are from a single source because they are all worded exactly the same, with the same message. A large number of people have emailed Opposition members expressing concern about the court case challenging Anvil Hill. If they are right, that is of concern. I have gone to the trouble of getting legal advice, which indicates that it is incorrect that this bill will change the current approval process for major projects under part 3A to remove the need for compliance with environmental assessment requirements. This bill, including the proposed amendments, will not have a significant impact on the operation of part 3A and therefore the existing requirements to consider environmental compliance.
As for Anvil Hill, the bill will not prohibit future challenges on similar issues. Any party could seek clarification on the meaning of the director general's requirements for the environmental assessment. Nothing in the bill changes that position. So the folklore that we must oppose this bill because it will, firstly, stop an existing challenge and, secondly, prevent any future challenges is just that: it is just folklore. The hardest thing of all is to have Frank Sartor tell us that we must support this bill because it is important to have things happen in this State. I simply wish, and I suspect the Government wishes, this bloke was not so damned arrogant but actually listened to people. In the former Crookwell shire, which is now upper Lachlan, is a wind farm that is supported by the local community. There was a proposal for a huge extension to the wind farm, much of it supported by the community.
One farmer's property—a small block in the middle of an area that the Minister calls State significant— is impacted by the wind farm. A single line of the Dooley family has farmed there since 1840. Mr Dooley requested a meeting with the meeting to discuss the impact on his property of extending the wind farm. However, the Minister refused to meet him. The Minister has refused my requests and those from New South Wales farmers. Yet the Minister says, "Trust me and give me these powers." He damns himself with his arrogance and his refusal to listen to people in this State. There are good things in this bill, but Frank Sartor is a blight on it.
Ms LEE RHIANNON [1.55 a.m.]: I congratulate my colleagues Ms Sylvia Hale and Mr Ian Cohen on their contributions. They have summed up the dilemma facing the people of New South Wales, whichhas been created by the Government and added to by the Coalition. Once again the Coalition's attitude shows that it has also been well and truly captured by the developers. In many cases it is the developer, so that should not be surprising. Only a week ago outside Parliament House members opposite spruiked their opposition to 21 November 2006 LEGISLATIVE COUNCIL 4425
overdevelopment, working with several community groups which held out some hope and belief that there could be opposition.
Once again, the major parties have united to do over the people of the State and weaken environmental protection to the degree that the Environmental Planning and Assessment Act is simply a joke. We need to remember that the Environmental Planning and Assessment Act was once good legislation. When it was introduced by the Wran Labor Government in 1979 there was great vision, hope and excitement. For the first time people had a right to be involved in establishing requirements to determine environmental criteria. That was an extraordinary breakthrough; we had not had that involvement before. It meant a great deal to the many resident action groups that were active across Sydney suburbs that had fought hard throughout the Askin period to protect their local urban environment.
We must also remember how we gained that breakthrough. At that time, in the 1970s, the green bans movement was huge. The environment movement was born in the early 1970s. There were all sorts of actions. The legislation now being gutted by Minister Sartor was a fine example of how an active people's movement can deliver good legislative outcomes. We saw from that movement not just legislative outcomes but actions that saved our urban environment. The Rocks and Woolloomooloo, to name just two, would be different; Sydney's landscape would have fundamentally changed if those actions under the green bans movement had not occurred.
We must again pay tribute to Jack Mundey, Bob Pringle, Joe Owens and many other people who worked in the green bans movement. It brought a new style of industrial and community action to this city and to the whole country. The late 1970s were exciting times. The Wran Government had rolled out the corrupt Askin Liberal Government, and there was much discussion and debate about how to involve people and protect the environment. The clear realisation was that people had to be involved. Communities had a right to be involved; that was a good way to provide protection. Protection could not simply come through legal means; people needed to be involved. People had to have a say.
Clearly, development would occur, and we needed to ensure that checks and balances were in place. Certainly, the Environmental Planning and Assessment Act was not perfect but we always believed that it could be built on to address our immediate problems and we could build on and improve it as the years rolled by. However, it has been successively weakened. Indeed, it has now been gutted, virtually beyond recognition.
The Government of the day, usually with the support of the Opposition, has mounted successive attacks. Sadly, most of those attacks have occurred under Labor's watch, but time and time again the Coalition has united with the Labor Party to weaken planning instrumentalities in this State. One of the most disturbing aspects of the successive attacks on the legislation is that they have damaged the intent of the Act, which was entwined with a democratic process that has been successively eroded. The latest attack, which we are witnessing tonight, will do away with it completely. The democratic process will no longer exist in the Act. As a result of the latest changes, consultation in recent years has been Mickey Mouse. Tonight, when the legislation goes through—when the Coalition and the Labor Party co-operate—the last vestige of consultation will go.
All the way through the Minister has lied to us time and again. It has been disappointing to hear many of his staffers say that a bill is just a bit of housekeeping, a technical change or a bit of tweaking. They should find new language because every time we hear those words alarm bells go off and radars are set off, because we know that it is code for undermining environmental standards and locking out the community. That sums up the bill. It is worth remembering that the changes we are considering come hard on the heels of some real damage that was done last June when the Government introduced changes to the Environmental Planning and Assessment Act, which were opposed strongly by the Greens, to provide for a new part 3A to create a new planning process for development that is considered to be of State significance or a major infrastructure project. Substantial reforms to the operation of local environment plans and development control plans were also seriously weakened when the changes went through.
The bill gives the Minister a large whack of discretion to approve developments. It reduces timelines and environmental requirements for approval. The latest set of amendments restores interim development powers to the Minister, which is a huge setback. It can only benefit developers. It will only make it easier for developers to move into an area, work it out with the Minister and get their final approval. It is fast tracking that removes the last semblance of any checks and balances in the once-excellent Environmental Planning and Assessment Act. Another problem with the legislation is that without needing parliamentary approval the Minister can require special infrastructure contributions from local development to be transferred to government 4426 LEGISLATIVE COUNCIL 21 November 2006
departments. All they need to do is nominate special infrastructure contribution areas anywhere in New South Wales. The provision will give the Minister extraordinary discretionary powers, and allow a concentration of projects in areas that locks out community input. It is highly undemocratic, and will further damage our urban and natural environments. It is a disaster all round.
I refer to a couple of specific developments that very much demonstrate the problems with the legislation. A number of members spoke about Anvil Hill, which is one of many coalmines in the Hunter Valley. Anvil Hill has gained particular attention because of its huge size and because it will produce such volumes of coal that it will drive the coal industry for many decades. Anvil Hill has become symbolic of the need to stop the coal industry in its tracks. The Anvil Hill project is particularly relevant to the legislation because part of the legislation was designed to stop a hearing before the Land and Environment Court. Peter Gray, a young environmentalist from Newcastle, has taken this action. I congratulate him and his colleagues on their work. We are very fortunate to have people like Peter in our community who are willing to take a stand. Their work brings benefit to our whole community.
The Hon. Robert Brown: Funded by Greenpeace.
Ms LEE RHIANNON: I acknowledge the interjection "funded by Greenpeace", and I congratulate Greenpeace on its work. It is extremely expensive and difficult for individuals to run a court case. The way Greenpeace is working with the community, particularly in the Hunter area, is a great credit to the organisation. The bill makes specific changes to the Act. Item [3] of schedule 1 to the bill widens the Ministers power to call in projects. The Minister will be able to call in a class of development rather than a particular development. The big worry is that these changes will almost completely remove any environmental checks and balances for part 3A projects. The current situation is not excellent, but at least the Minister is required to undertake environmental assessment.
Once that is removed there is great concern—and there is clear legal advice to the effect—that the Anvil Hill court case will fall over. The Minister denies that, but his form in giving accurate information is so poor that his assertion that the Anvil Hill court case will not be impacted by these changes does not stand up. Anvil Hill is the largest stand of remnant vegetation on the central Hunter valley floor. It is home to threatened species and indigenous heritage. The mine proposal will divert two creeks and destroy two others, as the mine is the natural catchment for Wybong Creek. Anvil Hill is home to at least 178 animal species and 420 species of native flora, including at least one newly discovered orchid. If any members receive our end-of-year card they will see the orchid, which is quite stunning. It has not been named yet.
The Hon. Michael Costa: Going to plant it.
Ms LEE RHIANNON: I acknowledge the insult from the Minister. He really cannot control himself. He comes into this House and he just cannot help himself.
Mr Ian Cohen: He does not come into the House when I am speaking about it. I am a disappointed.
Ms LEE RHIANNON: Mr Ian Cohen got the ice cream one earlier. This newly discovered orchid is not even named yet, but it is under threat. The area is also rich in Aboriginal heritage. I had the opportunity to bushwalk through part of it before climbing up onto the mountain to peer over it. It is absolutely stunning, and it should be preserved not only for its natural integrity but also because mining coal will result in such a contribution to climate change that it is highly irresponsible. The Minister must remember that every tonne of coal he exports comes back to us as climate change. It is as simple as that.
The Hon. Michael Costa: Oh, go away!
Ms LEE RHIANNON: Again I acknowledge the Minister's insults. He just does not get it. The full greenhouse implications, including the burning of 10.5 million tonnes of coal per year, have not been considered when decisions about the mine have been made. Climate change is the greatest threat to human and non-human life on our planet. The Minister is now laughing when I start to describe the impact of climate change.
The Hon. Michael Costa: No, I would like you to stop your idiotic statements.
Ms LEE RHIANNON: If this mine goes ahead, it will accelerate this threat. 21 November 2006 LEGISLATIVE COUNCIL 4427
The Hon. Michael Costa: That Anvil Hill is the greatest threat to human existence.
Ms LEE RHIANNON: No. The Minister always gets it wrong; he cannot be accurate. I did not say that.
The Hon. Michael Costa: I am waiting for your demonstration against North Korea. I have not seen it yet.
Ms LEE RHIANNON: The Minister is so insulting. He just does not get the damage he does to his own party. Every year Newcastle exports 80 million tonnes of coal, about 10 per cent of all world trade. Yet, despite growing awareness of the threat of climate change, the New South Wales Government is approving new coalmines with absolutely no consideration of the threat of their climactic impact. Fifteen new mines and 10 expansions of existing mines are in the pipeline. That would add another 60 million tonnes to the 110 million tonnes of coal produced by Hunter mines. If permitted to go ahead, the Anvil Hill mine, owned by Centennial Coal, Australia's largest independent coal company, will destroy the livelihoods and wellbeing of many in its path. Coalmines such as Anvil Hill and the infrastructure needed to support it lock the Hunter Valley area further into the coal industry.
That jeopardises the development of a more sustainable future for the valley by destroying ecosystems, by ruining communities and by fuelling climate change. There can be no justification for the development of this mine. Legislation that makes it easier for this mine to go ahead cannot be supported by anyone. I remind the members of this House that when they vote for this legislation they are voting for legislation that will knock out a very important court case that will play a critical role in the fight against climate change. The mine itself should not go ahead but what should be allowed to go ahead is the court case to test why the Government is not looking at the climate change impacts of this project.
That is what is so irresponsible. That is the essence of the court case, and when the Coalition and the Government unite to vote against this project they need to remember that they are denying the people of New South Wales the right for these projects to be assessed on their climate change impacts. There can be no justification for the development of this mine. Legislation that makes it easier for this mine to go ahead should not be supported by anyone who is at all concerned about people, about our future, about our environment and about the survival of our planet.
Another area I want to talk about is Catherine Hill Bay. If passed, the bill will have a huge and lasting detrimental impact on the tiny, unique New South Wales heritage village of Catherine Hill Bay, which is located approximately 100 miles north of Sydney and lies between Lake Macquarie and the Pacific Ocean. If honourable members have not been there I suggest they get there quickly because now the Government and the Opposition are becoming so buddy-buddy when it comes to weakening planning instrumentalities, poor old Catherine Hill Bay does not look like it has a good future.
But the people are fighting hard. Last Friday they held a demonstration; about 200 people were there. For a Friday demonstration at a tiny place like Catherine Hill Bay, that shows the anger of the locals. It has the oldest group of buildings in the area and its natural environment has remained unchanged for more than 100 years. In 2004 the village and its bush and heath land location were protected by Lake Macquarie City Council as a heritage conservation area. The World War II RAAF station in the village has been earmarked for inclusion in the State heritage register, and the Heritage Office is also considering the nomination of the whole of the HCA for inclusion to this list. The Heritage Office's assessment of the area's significance includes environmental, ecological and landscape considerations.
A few weeks ago Catherine Hill Bay was named by Keep Australia Beautiful [KAB] as the friendliest beach with the best beach spirit and winner of the KAB Clean Beach Challenge in the Hunter. When mining ceased in the area in 2002 the coalmining company Coal and Allied gave an undertaking to the community and to the Government that the land would be rehabilitated to its natural state and would become land for public use. Catherine Hill Bay is a very special area. It is clearly loved by many people and over the years it has been the location for various feature films and television series. All that is set to change. RoseCorp and Coal and Allied's proposed development will obliterate the unique bay village and the surrounding landscape. It is a few years since I have been to this area but I am hearing from so many people how distressed they are about this. To give the House some description, I will read one email we have received about it, which says:
Over the years I have camped many times on the beach foreshore, enjoyed a quiet ale in the pub while listening to live music. The whole town is an oasis … it deserves preservation not desecration. In approving plans for residential housing the New South Wales— 4428 LEGISLATIVE COUNCIL 21 November 2006
The Hon. Michael Costa: You have not been there but you can describe it?
Ms LEE RHIANNON: I said I have been there. Why does the Minister distort and lie so often?
The Hon. Michael Costa: To annoy you.
Ms LEE RHIANNON: The Minister makes a fool of himself. He gets it on the record every time.
The Hon. Michael Costa: You get very annoyed.
Ms LEE RHIANNON: No, I do not get annoyed. I find it quite enjoyable. It is a quarter past two in the morning. It is another example of how undemocratic the Government is, pushing this debate on at this time of night. The Minister comes into the Chamber to distort what we are trying to debate. I return to the email, which says:
In approving plans for residential housing the New South Wales Government is ignoring the views of two councils and the decision of the Land and Development Court against the RoseCorp development. It is simply deceitful to use—
The Hon. Michael Costa: You were on TV saying how great it was. They were going to form government and hold the balance of power.
Ms LEE RHIANNON: Again, I did not say that. The poor Minister, at a quarter past two he must just lose a greater sense of reality. The email continues:
It is simply established planning policy. No existing use rights can transfer between a mine and a residential development. The State ought immediately have the whole village listed on the State heritage register. I understand the National Trust believes the development proposal gratuitously compromises the natural and cultural value of the village and surrounding landscape. Don't expect my vote in March if this proposal proceeds.
The concern about Catherine Hill Bay is very real. I imagine some members are not too sure of the area we are talking about. We are talking about the electorate of Swansea, obviously unsettled with recent developments. It is interesting that, having refused my colleague Ms Sylvia Hale leave when she requested to table the map, it is now being passed around. It is excellent that Minister Costa is sharing it with his close colleagues on the Coalition benches.
The Hon. Michael Costa: I am closer to them than you.
Ms LEE RHIANNON: Yes, I acknowledge that. That is excellent.
The Hon. Michael Costa: I have put it on the record already.
Ms LEE RHIANNON: Yes, I remember last year how the Minister said who his main enemy was. Obviously he has not strayed from that. It is excellent that people are reading about it. The Minister must be getting worried; we are getting close to the bone. Huge developments are going on at Catherine Hill Bay. As well as the major development of RoseCorp, which is about 1,000 medium-density dwellings and which would increase the village population from 250 to more than 3,000, Coal and Allied has its own development—about 300 dwellings—which would obviously house a lot more people. That is massive. It is being fast-tracked by Frank Sartor, and with meaningless, gutted planning instrumentalities the locals have no legal protection. They are mobilising and there is much support for them but it is really tough when the major parties gang up on communities across the State who are doing the right thing. They are not against all development but they are trying to fight for development that allows them to keep the heritage values of their areas as well as protect the natural and urban environment.
The part of the Catherine Hill Bay proposal that is within the boundary of the Lake Macquarie City Council was rejected by that council as being against public interest and contrary to 13 local, regional and State planning instruments. The developer appealed to the Land and Environment Court and has had private discussions with the State Government. The Minister for Planning, Mr Sartor, gave the community an undertaking that the bay would be listed on the State's heritage register. Once again he failed. He is another Minister who promises so much but fails to deliver. One can only guess that he has become too accustomed to telling lies. What can people believe?
The Hon. Michael Costa: Oh, everybody is telling lies—except the Greens! 21 November 2006 LEGISLATIVE COUNCIL 4429
Ms LEE RHIANNON: Now we are getting sound effects from the Minister. What can people believe?
The Hon. Michael Costa: Everybody is corrupt or telling lies; they are misled, they are fools, or they are lunatics.
Ms LEE RHIANNON: The Minister is the one who speaks in absolute terms. He is the one who calls the Greens lunatics, but we do not ever call him that.
The Hon. Michael Costa: You called Frank Sartor a liar.
Ms LEE RHIANNON: I did not call him a lunatic. I called him a liar because that can be established in fact. I strongly congratulate the Catherine Hill Bay Progress Association, which is working extremely hard and gaining strong support within the lower Hunter area. The Government would be wise to sit down and listen to the association's concerns. Any legislation that is designed to enable large-scale development to go ahead makes a mockery of environmental standards in this State, invalidates fair and due process, and sets a precedent for every other coastal community in New South Wales. The provisions of the bill are neither minor nor housekeeping provisions. The amendments have been proposed by the developers' friend, Frank Sartor, and they will hand to developers the power to destroy communities. That is what is happening in Catherine Hill Bay. It is a classic example. This legislation is very wrong.
Another area that is being done over is the Beacon Hill High School, which is on the northern beaches. We are witnessing public assets, such as schools, being sold off by the Government in line with its apparent disregard for public education and its tendency to do just whatever developers want—create more land for development. In this instance the Government is selling off to developers public land that is the site of a public school. That is tragically wrong. We all know how valuable land is in Sydney and we all know how hard it is to acquire land. We also know that the demographics will change. The Greens argue that the school is needed now because of the increasing number of young people on the northern beaches who need public high school education. Even if for the sake of debate the New South Wales Government's arguments are accepted, the Government should look to the future.
If public land in Sydney is sold off, it will be virtually impossible to find public land for public facilities, such as schools, in the future. Whichever way the issue is examined, the Government's actions are wrong. The Beacon Hill High School has been sold andis being knocked down and the land is being developed by Landcom. The proposal for the site is 26 housing lots. Currently the school is being gutted, the building materials are being carted away in big trucks and the whole place has just been demolished. Chairs and tables have been thrown into bins on the back of trucks. It is terribly distressing for many people in the community. I acknowledge how hard members of the community have worked to save this school, including Sue Covey, Anne Sharp and Tony Backhouse, all of whom have given up so much of their time to do something that the Government should have done—ensure that the school remains on the site for future generations.
The sale of the land to developers constitutes a total disregard of the community in which the school is situated. The Government regards public assets merely as cash cows and too often on a whim sells off public assets to the highest bidder. But on some occasions sales are not to the highest bidder. There are some very odd developments around Beacon Hill in terms of the price that has been paid for the land. One wonders why the Government sells land cheaply. I think the Government was paid $9 million for the land, and that is absolutely ludicrous. We cannot allow legislation to pass that will make it easier for the Government to sell off public land or make the processes easy for developers. That should be opposed by all members of Parliament who are committed to standing up for their constituents, the people of New South Wales. We must continue to support local communities to fight the spread of developer cancer, which threatens to destroy our environment.
The provisions of the Environmental Planning Legislation Amendment Bill are neither minor nor simply housekeeping. The very arrogant Minister and the very arrogant Government have become so close to developers that they allow overdevelopment to proceed. They have lost all sense of balance in terms of how this State should be managed. Unfortunately the Opposition and the Government go hand in hand, so the great vision of 1979 when the original Act was passed has been destroyed. In 1979 the Act was a world leader because it encapsulated the rights of the community to protect the environment. That was incredibly impressive and inspiring at the time.
The Act could have led to meaningful community consultation, but over the years consultation has been whittled down to a mickey mouse consultation process. Communities have attended consultation meetings 4430 LEGISLATIVE COUNCIL 21 November 2006
with the best of intentions, but have been disregarded. They knew they were being conned but they felt they had no choice but to attend the meetings or risk being locked out totally. Even so, by legislative change, community groups are locked out totally when it suits the Minister to do that. Sadly, much of this legislation has been interrupted by guffaws and interjections. The Minister at the table does not understand.
The Hon. Michael Costa: Finish your speech!
Ms LEE RHIANNON: As the Minister is in the House, what he is saying is absolutely fair game. He knows what he is doing. I move:
That this debate be now adjourned to the next sitting day.
The House divided.
Ayes, 4
Ms Hale Ms Rhiannon Tellers, Dr Chesterfield-Evans Mr Cohen
Noes, 27
Mr Brown Ms Griffin Ms Robertson Ms Burnswoods Mr Kelly Mr Roozendaal Mr Catanzariti Mr Macdonald Mr Tsang Mr Clarke Mr Mason-Cox Mr West Mr Colless Reverend Dr Moyes Dr Wong Mr Costa Reverend Nile Mr Donnelly Mr Obeid Ms Fazio Mr Oldfield Tellers, Miss Gardiner Ms Parker Mr Harwin Mr Gay Mr Pearce Mr Primrose
Question resolved in the negative.
Motion for the adjournment of debate negatived.
The Hon. Peter Primrose: Madam President, I commend the bill to the House.
Ms LEE RHIANNON: Madam President, I still have the call.
The PRESIDENT: Order! Ms Lee Rhiannon has the call.
Ms LEE RHIANNON: At the commencement of his speech Mr Duncan Gay said he had legal advice that this legislation would not affect the current case before the Land and Environment Court. However, there is clear legal advice that is wrong. The Environmental Liaison Officer obtained legal advice at 6.00 p.m. today from Matthew Baird, a barrister acting for Peter Gray in his case against the Minister for Planning. He confirmed that the bill in its current form would nullify the case before the Land and Environment Court. If Peter Gray is successful, the bill will ensure that the decision of the court has no effect. Greens amendment No. 2 will delete the amendment that brings about this result. Again, I urge members to support Greens amendment No. 2.
As is the case with much of the legislation brought by the Government, this bill contains a couple of decent amendments. One part of the bill contains important provisions. The Greens are disappointed that the Government has rolled those provisions into a bill that damages and destroys the environmental planning legislation that has been in this State since 1979. I refer to the provisions in this bill that relate to the live music industry. The Greens welcome any changes to the legislation that are aimed at encouraging live music in hotels in the inner city. Having live music in a pub, as opposed to the ubiquitous spread of poker machines, is a positive step that is welcomed by the owners of various live music venues around Sydney. Bands in pubs are a 21 November 2006 LEGISLATIVE COUNCIL 4431
tradition that the Greens wholeheartedly support. More people have an opportunity to experience live music, and emerging artists have the chance to be heard and promote their music.
Live music in hotels needs to be encouraged and conditions should be put in place to extend work opportunities to musicians, young and old. Many well-known artists were given their first break in inner city pubs. It is a terrible shame that more is not being done to encourage and support new artists. Therefore, it is unfortunate that positive changes to promote the live music industry have not been included in this legislation, which otherwise holds no positive value to the community. The Greens would welcome further legislation that is aimed at bringing back, encouraging, fostering and promoting live music in our pubs. That is the sort of planning legislation we need, not the damaging legislation we have before us tonight. This bill sets the State back to the dark days of the early colony when developers ran amok. That is where we are now. This bill is a disgrace and should be opposed.
The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [2.37 a.m.], in reply: I thank honourable members for their contributions to the debate. I commend the bill to the House.
Question—That this bill be now read a second time—put.
The House divided.
Ayes, 29
Mr Brown Ms Griffin Mr Pearce Ms Burnswoods Mr Hatzistergos Ms Robertson Mr Catanzariti Mr Kelly Mr Roozendaal Mr Clarke Mr Macdonald Mr Ryan Mr Colless Mr Mason-Cox Mr Tsang Mr Costa Reverend Dr Moyes Mr West Ms Cusack Reverend Nile Dr Wong Mr Donnelly Mr Obeid Tellers, Ms Fazio Mr Oldfield Mr Harwin Mr Gay Ms Parker Mr Primrose
Noes, 4
Dr Chesterfield-Evans Mr Cohen Tellers, Ms Hale Ms Rhiannon
Question resolved in the affirmative.
Motion agreed to.
Bill read a second time.
Consideration in Committee ordered to stand as an order of the day.
ADJOURNMENT
The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [2.46 a.m.]: I move:
That this House do now adjourn.
FEDERAL GOVERNMENT INDUSTRIAL RELATIONS WORKCHOICES LEGISLATION
The Hon. GREG DONNELLY [2.46 a.m.]: The High Court decision of last week gave employers the green light to roll up their sleeves and take full advantage of WorkChoices. Large and medium-size companies 4432 LEGISLATIVE COUNCIL 21 November 2006
were holding back from taking action, pending the decision. Naturally, they did not wish to have a scrambled egg that the High Court might require them to unscramble. That has now changed. The deck has been cleared and employers are now free to take full advantage of WorkChoices—and we can be sure that they will. And who will be the hardest hit? In particular, the hardest hit will be the women and young people working in the service industries such as retail and hospitality. As night follows day, we are seeing the inevitable consequences of WorkChoices. Last week the Australian Bureau of Statistics released its regular labour price index, and what did it show? It showed that the growth in rates of pay in the retail and hospitality industries has dipped dramatically since the inception of WorkChoices.
The two sectors have recorded particularly low growth with rates rising, at best, at about half the rate of inflation. That is right: half the rate of inflation for workers who are amongst the lowest paid in our society. If politicians' salaries were adjusted by around half the inflation rate I am sure there would be a strong reaction by most members of this Parliament and immediate steps would be taken to address the situation. Let us not forget that WorkChoices is not only pegging people's wages but also slashing and burning their conditions. Last week I obtained a copy of the "Subway Maroubra Employer Greenfields Agreement 2006-2007". It is worth reading because it is a window into the future, particularly for employees in the service industries.
Employees who otherwise would have been employed under the New South Wales Shop Employees' (State) Award have had their wages and working conditions shredded. In truth, the agreement provides for the employees of Subway, Maroubra, little more than the five statutory minima provided for in WorkChoices. I do not intend to critique the whole agreement; honourable members can do that for themselves. However, I make a few observations. How fair is it to give an employer the right to engage a casual employee for just one hour? That is right: just one hour. One hour's work barely covers the cost of transport to and from work, let alone laundering one's uniform. Why reduce the award entitlement for compassionate leave from three to two days? Why roster a person over a span of 14 hours in one day? Why deny a certain class of employees a meal break, because of the operational requirements of the workplace?
Why abolish penalty rates, allowances, loadings, certain public holidays and rest breaks? Why reduce a woman's maternity leave right from two years to 12 months? Why should an employee who works for an employer with less than 100 workers have his or her job terminated without just cause? One could go on and on, but there is no need to do so. The results are there for everyone to see. For the workers and their families affected, the impact is devastating. What do we hear from the member for Vaucluse and the Liberal-National Coalition members? Nothing. Silence. They are pretending that nobody has noticed and that nobody really cares. How wrong they are! As the impact of WorkChoices becomes clearer for all to see and as voter anger grows, John Howard and Peter Debnam will come to realise that they have gone too far. But it will be too late to backtrack.
Through the WorkChoices legislation they have unleashed forces that neither of them can control; nor will they be able to control the voter backlash at the State and Federal elections next year. They will both pay dearly for taking away from working people and their families what was never theirs to take in the first place.
FAIRVIEW HEIGHTS AND LOURDES HYDROTHERAPY POOLS, DUBBO
The Hon. DUNCAN GAY (Deputy Leader of the Opposition) [2.51 a.m.]: I wish to speak tonight about a very important issue on the urging of The Nationals candidate for Dubbo, Greg Matthews. He has been working behind the scenes with the community for some time following the loss of the Fairview Heights and Lourdes hydrotherapy pools in Dubbo. As all honourable members are aware, hydrotherapy pools have enormous benefits for rehabilitation patients, including children. The Fairview Heights pool was closed several years ago. The pool was built in the mid 1980s after a community buy-a-brick campaign and donations from many not-for-profit organisations, including the Lions Club of Dubbo and the Save the Children Fund. More than $150,000 was raised through donations from the always generous Dubbo community.
The Department of Education and Training sold the Fairview Heights land in 2001 to a private developer for $1.28 million. Now the community is faced with the situation where the only remaining hydrotherapy pool is closed and needs urgent repairs, leaving the community without this vital facility. More than $490,000 is needed to make the pool operational. What has angered the Dubbo electorate is that it raised more than 60 per cent of the funding for the Fairview Heights pool. This rotten State Government sold the land, but the community never go back its 60 per cent contribution, which was expressly for a hydrotherapy pool. The community should have been given the money to save the hydrotherapy pool and it is mean that it has not received it. 21 November 2006 LEGISLATIVE COUNCIL 4433
On a recent trip to Dubbo Miss Linda McCarthy and the Hydrotherapy Pool Users Group, which is fighting for the retention of a hydrotherapy pool in Dubbo, gave me a petition signed by almost 3,200 people. I congratulate them on their initiative. The petition prayed that the State Government recognise the urgent need for repairs to the Lourdes Hospital hydrotherapy pool and make the required amount of money available immediately because the repairs must be commenced. I agree with the community. I also received several letters penned by local residents, businesses, local councils and councillors, and local clubs detailing their distress about the pool's closure. I forwarded these to the Minister for Health and asked for a response. One of these letters was from the physiotherapist at Lourdes Hospital. It reads:
The majority of patients seen at this facility are public patients. Lourdes Hospital accepts referral of patients from public health institutions in the region and from Sydney, in order to continue their rehabilitation. Our supervised outpatients are seen on referral and without charge to the patients.
The rest of our clientele is made up of independent users and group bookings who were charged a nominal fee.
In the period between the 10th January 2006 and 31st October 2006, Lourdes has accepted 230 rehabilitation patients from Dubbo and the surrounding service area which stretches hundreds of kilometres further west and up to the Queensland border. 98 of these patients would have had hydrotherapy as a preferred treatment for their conditions had the pool been open. The above 230 patients have received a combined 6,221 physiotherapy treatments in 2006, however I conservatively estimate that 1,490 of these would have been pool treatments. Potentially one in four physiotherapy treatments carried out on our patients this year may not have been the ideal therapy, highlighting a major gap in rehabilitation services for this region.
Added to this is the fact that prior to closure we were also treating 50 public patients per week as outpatients, for arthritic, spinal and orthopaedic conditions. Seen twice a week, this adds up to approximately 4,000 extra occasions other than a specialist hydrotherapy pool.
Dubbo is a major regional centre that services several surrounding isolated regions. The Labor Mayor of Dubbo, Alan Smith, who also supports the Hydrotherapy Pool Users Group, said:
... as Mayor I support your efforts in raising awareness and seeking funding to reinstate hydrotherapy services in Dubbo.
The Minister for Health must act in relation to this issue. Dubbo electorate deserves higher standards and better services. I thank every person who signed the petition calling on the State Government to get its act together and deliver the Dubbo community with the facility it deserves. [Time expired.]
DEATH OF REVEREND VERNON KENNETH TURNER, OAM
Reverend the Hon. Dr GORDON MOYES [2.56 a.m.]: Reverend Vernon Kenneth Turner, OAM, was born in Adelaide in 1917 where he attended Adelaide High School until his family moved to Sydney in 1931. He died yesterday. Before leaving Adelaide, Vernon Turner frequented all of Adelaide's radio stations after school. At the age of seven he built his first microphone from a wooden Beecham's pillbox and some mica and carbon granules. He later built more sophisticated microphones and pick-ups from old telephones that he purchased from the Postmaster General. He spent endless hours reading to himself and into the microphone the pages of the Adelaide Advertiser. In Sydney Vernon attended Randwick Boys High School and Sydney Boys High School and he did extremely well in his subjects. He also attended St Matthews Anglican Church at Bondi where he became a committed Christian.
During vacations he worked to support himself at school and, for several years, in a radio repair shop on Bondi Road, Bondi. In 1937 he was accepted by Anglican Archbishop Howard Mowll for training for the ministry at Moore Theological College. After two Sydney parishes he and his wife, May, spent several years in the outback of New South Wales as bush missionaries. In 1939 the outbreak of World War II interrupted his studies, which were resumed in 1946 at Emmanuel College at the University of Queensland. When the Uniting Church came into being in 1977, Reverend Vernon Turner joined, along with many other Congregational, Methodist and Presbyterian ministers. In 1938 Reverend Vernon Turner began a weekly broadcast on station 2CH Church News, which continued for more than 50 years. Station 4BC in Brisbane asked him to broadcast Morning Devotions at 9.00 every morning, which he did for more than 20 years. The program was then heard on 2CB-FM until his retirement in 1996.
While at 4BC he commenced a community hymn-singing program called The Sunshine Hour and that was syndicated to a large number of commercial radio stations in all States. These two broadcasts were the beginning of the Christian Broadcasting Association. In 1953 Mr Turner was appointed editor of the 70-year-old ecumenical newspaper the Australian Christian World. From his tiny office in Castlereagh Street he continued to prepare his broadcasts each day of Morning Devotions and The Sunshine Hour, adding The Morning 4434 LEGISLATIVE COUNCIL 21 November 2006
Interlude, which ran on 2UW for many years. At the end of 1953 the Presbyterian Church ordained him and inducted him into the Abbotsford-Five Dock churches and he immediately set about raising money to erect studios in the Five Dock church. By the end of the 1950s Mr Turner and his staff were producing an amazing 800 weekly programs for 100 commercial stations in all Australian States.
In 1955 he called the first meeting of the Christian Television Association and was its first secretary. By 1960 the staff at CBA had grown to 15 full-time paid staff. A new building became an urgent necessity and in February 1961 new studios were opened at 420 Lyons Road, Five Dock, by the Chairman of the Australian Broadcasting Control Board. The building contained three studios, two production booths, a record and tape library, a despatch room, a large office, a print shop and a library. The radio ministry grew apace and in 1975 the Commonwealth Government asked the Christian Broadcasting Association to operate Australia's first ethnic radio station, 2EA, which it did for three years. Having applied for an FM radio licence for Sydney 23 years before, it was finally granted in 1978 and station 2CBA-FM began broadcasting in March 1979. I started to broadcast at that time and I broadcast from that station every day, seven days a week for many years.
From that date the station has operated 24 hours a day on high power, broadcasting to the whole of the Sydney metropolitan area. Mr Turner wrote a number of books, such as How to Keep Your Marriage off the Rocks, The Art of Christian Broadcasting and God Gave me a Microphone,which went into four editions. In 1991 he was awarded the Medal of the Order of Australia [OAM] for services to Christian broadcasting. From the time he made his first microphone at seven years of age and during more than 50 years of Christian broadcasting, Reverend Vernon Turner dedicated his communication skills to Jesus Christ. Vernon Turner's close friend Ramon Williams has helped me with these details of his life. He will be buried on Friday of this week. We praise God for the real pioneer of Christian broadcasting and Christian journalism, the Reverend Vernon Kenneth Turner, OAM.
NEW SOUTH WALES-GUANGDONG JOINT ECONOMIC MEETING
The Hon. HENRY TSANG (Parliamentary Secretary) [3.01 a.m.]: I am happy to report to the House on the forthcoming twenty-first New South Wales-Guangdong Joint Economic Meeting [JEM]. The JEM is the centrepiece of the sister-state relationship between New South Wales and Guangdong Province established in 1979. The meeting is held biennially with the venue alternating between Sydney and Guangzhou. It is now our turn to host the next JEM in early December. The Guangdong delegation will be led by the Chairman of the Guangdong Provincial Committee of the Chinese People's Political Consultative Conference, Mr Chen Shaoji, and comprises more than 150 government officials and business leaders. The JEM provides an ideal platform for New South Wales businesses trying to break into the Chinese export market. By participating in the JEM's business matching program, these businesses are provided with valuable assistance and contacts with their counterparts in Guangdong, China's wealthiest region.
Some of the sectors identified by our visitors this year include telecommunications, water management and environmental protection, solar power and renewable energy, coal and gas pipeline equipment, and training and management services. The Department of State and Regional Development, through the Small Business Development Division led by Julie Scott, is doing a terrific job to promote the JEM and help New South Wales companies forge ahead in China. The existing economic relationship between New South Wales and China, especially Guangdong, is a healthy one. China is our second largest trading partner. A relationship based on trade and economics is fine but after so many years and exchanges between the two parties it is time for the relationship to expand. As a result, some of the discussions will focus on ways in which to forge closer co-operation between New South Wales and Guangdong in areas such as sport, cultural and education exchanges among others.
The official delegation led by Mr Chen will visit the Chinese Garden of Friendship at Darling Harbour for a tree-planting ceremony. The Chinese Garden is an important symbol of the growing sister-state relationship and friendship. It was the first project resulting from Premier Neville Wran's participation at the first JEM in Guangdong. I am honoured to be the head consultant working with a team of Chinese master craftsmen and landscape architects on the Chinese garden. In addition to a State reception, the delegation will be welcomed to Sydney with a community dinner. I thank community leaders for taking the lead in organising the dinner. In particular, I acknowledge Dr Tony Goh from the Australian Council of Chinese Organisations, who with his executive committee, is co-ordinating the community's welcome for the delegation. The Chinese Australian community has supported the sister-state and sister-city relationships over the years and continues to do so today. 21 November 2006 LEGISLATIVE COUNCIL 4435
Neville Wran was the first Australian Premier to visit China on an economic exchange. It is very encouraging to see the relationship growing beyond economic interests. I am sure the discussions held at the JEM will prove fruitful and be of great benefit to the New South Wales businesses. The enhancements to the JEM model to be worked on in Sydney will add value to the next meeting in Guangzhou in 2008, the year of the Beijing Olympic Games.
As it is the final week of Parliament before next year's election, I take this opportunity to thank the staff of the Legislative Council, who make our jobs easier, and all the staff at Parliament House, who make working here a possibility and a real pleasure. To my colleagues, I extend season's greetings and wish them a good holiday before the final stage of campaigning begins. Those honourable members retiring or not recontesting their seats leave this place with my best regards. Madam President, I thank you for your kind support. I have benefited greatly from your guidance, support and wisdom during my term in the House. To my colleague and neighbour the Hon. Jan Burnswoods, it has been a pleasure working with you on committees, in the House, and on various campaigns. I have no doubt that we will do so again. Your passion for social justice has been an example to colleagues, as was your chairing of the Standing Committee on Social Issues. You are an inspiration, and you will be missed.
I pay tribute to the Hon. Dr Peter Wong, who leaves this place with his reputation in the Chinese community enhanced. Your stand against racism and your support for multiculturalism is appreciated by Australians of all backgrounds. I also pay tribute to the Hon. John Ryan, a decent man and one of the Coalition's most effective shadow Ministers. Your passion for your portfolio is born out of your abiding interest in, and genuine care for, social justice—particularly disability services. I acknowledge your contribution to the workings of the House. Your passion and sense of humour will be missed. I wish all retiring members the very best for the future. To everyone else I wish a Merry Christmas and a happy New Year!
RETIRING MEMBERS OF PARLIAMENT
The Hon. CATHERINE CUSACK [3.06 a.m.]: I pay tribute to retiring colleagues who have had a profound influence on New South Wales politics over many years. Ian Armstrong, a former Deputy Premier of New South Wales, is a true gentleman and the most knowledgeable and well-read member of the Coalition. His contribution is always interesting and valuable. In the true mould of The Nationals and their way of doing business, he is a very robust and loyal colleague. He is a true parliamentarian, whose love of his constituents and work ethic at the end of his career would shame members 40 years younger than him.
But it would not shame my good friend and colleague Peta Seaton, whose work rate mortifies all who know her! Peta and I both had the honour of serving the Greiner team in Opposition and in government. I can scarcely believe this chapter in our friendship is closing. Peta has stayed loyal to the ethics and integrity of developing and arguing good public policy. In the words of Nick Greiner: we want to run schools for the students, we want to run hospitals for the patients, and we want public transport to serve the commuters. It is bizarre to think that this should be revolutionary and bold, but it was—and is again today. As a country member I understand the commitment Peta has made, and the costs. I hope that our families can again spend more time together—although, alas, probably not in Yass.
Andrew Tink is a giant in the Liberal Party. In my eyes, one of the greatest political tragedies I will know is that Andrew was denied the opportunity of serving as a Minister in New South Wales because of a mistiming in history. He could not have done more for, or offered more to, the people of this State, and yet events were against him. Andrew has made a difference, particularly as shadow Attorney General, with so many of his ideas shamelessly plagiarised by the Labor Government. He is a true and classic Liberal, whose influence will extend well beyond his term.
In his maiden speech in 1991 Andrew Humpherson articulated a strong Liberal philosophy that has clearly guided his career and his approach to issues. Andrew was engaged to be married when he entered Parliament. When he visited us at Lennox Head last month he brought his son, a young man who is a keen soccer player. Time flies and politics is relentless but there are some constants. Andrew's loyalty and graciousness have been a hallmark of his character and, as he reminds me, we all do well to keep our friends and loved ones close.
The eloquent, principled, and compassionate John Ryan will also be retiring in March next year. I read his maiden speech the other day and was bemused to see that his first words to Parliament were a prayer— specifically, he celebrated "youth". A recent article in the Sydney Morning Herald described John as "a younger 4436 LEGISLATIVE COUNCIL 21 November 2006
member" who showed great policy promise. John was understandably thrilled! To have had such service for 16 years in the Legislative Council and still leave as a youth is a tribute to John's personality, energy and what he will embark upon next year. I know that the Labor Party will not miss the manner in which John can take a political argument and shred it like soft cheese. But he was never personal and always intellectually rigorous in his attacks—and I suspect that honourable members opposite will miss his masterful performances in the Chamber.
Other retiring members I particularly wish well in their retirements include the humanist, the Hon. Peter Breen, MLC, whose views I often disagree with. However, I believe his perspective is important and needs to be considered, particularly in the Legislative Council. It has been well researched and articulated, with the exception of the briefest lapse with the Australian Labor Party, for which I forgive him. I also wish the President, the Hon. Meredith Burgmann, well in her retirement. Madam President has managed to find ways to reach across partisan constraints and extend some courtesies to her female colleagues. I remember the day the Opposition leadership decided to have a free-for-all in question time. We all had our questions and we all had to jump. The order in which we were called was Forsythe, Gardiner, Cusack, Parker and Pavey—all the women. That was the first and last time we had a free-for-all for the Opposition in question time! I always thought that was a great statement by the President.
When Parliament resumes, the Clerk, John Evans, will be on leave as a prelude to retirement. John's integrity, intellect, experience and grasp of the Parliament have enhanced our standing and performance in the service of our democracy. He is the most honourable man I have ever known and I feel his departure is a great loss to the Parliament and to the State as a whole. I thank these individuals both personally and for their service to our community. It is said that the difference between knowledge and wisdom is that we need knowledge to make a living and wisdom to make a life. On this basis I am very optimistic about the life after politics that these retiring members are now looking forward to.
ROZELLE PSYCHIATRIC HOSPITAL
HEALTH CARE CARD HOLDERS TRANSPORT CONCESSIONS
ABORIGINAL SENIORS CARD AGE ELIGIBIILITY
Ms SYLVIA HALE [3.11 a.m.]: In the adjournment debate last week I attempted to table many, many copies of letters that have been written by residents of Balmain and surrounding suburbs about Rozelle Psychiatric Hospital and the fate of Callan Park. Unfortunately, I was prevented from tabling those letters so I will now read several of them that are representative of the feeling of the community. The first one comes from a Mara Apelis, who writes:
Dear Mr Iemma,
I believe our community needs to retain Rozelle Hospital for its capacity to provide a range of services for people in our community who live each day with the challenges of mental illness.
Mental illness not only affects the sufferer but also the carers and family members of the person. There is a huge role that Rozelle Hospital can play in helping both sufferers and their families and in doing so help a whole community.
We need a balanced approach to mental health care which means both community and hospital care. As a resident of Balmain/Rozelle I strongly support the hospital stay, and urge the government to upgrade the current facilities. Rozelle hospital is a public hospital and should therefore remain in public hands.
A. J. Walsh writes:
Dear Morris,
For some time now many people were under the impression that the State Government was sincere in its intention to save this hospital facility, namely Rozelle Psychiatric.
This is a reasonable assumption when you acknowledge that the role of the NSW State Government Ministers and all staff have accepted an important position, in the full understanding that they have been given their position to act for and on behalf of the people of New South Wales, to carry out the wishes of the people.
The facts are that Rozelle Hospital is a "public hospital" and like all public facilities should be retained, and the NSW State Government has to support and provide adequate funding to ensure this vitally important service is upgraded and maintained at a level of the highest world standards.
Thank you for your attention, and I look forward to seeing your positive leadership direction in this important matter.
21 November 2006 LEGISLATIVE COUNCIL 4437
The last letter is from a Donna Wilkins. She writes:
Dear Premier,
Please save Rozelle Psychiatric Hospital as the drastic shortage of mental Health beds is either placing people with mental illness in either jails or on the street.
Mental health care needs to be balanced and includes both beds and community care. Rozelle Hospital has been an important part of mental health care for many years and needs to be continued.
And so these letters go on and on and on. These were letters that people took time out of busy Saturday mornings to write. It is a fair indication of genuine feeling on this issue.
I draw the attention of the House to the NCOSS 2007 State Election Policy, entitled "A Fairer NSW 2007 - Bold Solutions - Real Results". The document draws attention to a number of issues of critical importance to many people across this State, particularly the more disadvantaged sections of our community. For example, in relation to transport the Council of Social Service of New South Wales [NCOSS] is calling for the extension of transport concessions to low-income health-care card holders. There are around 145,000 people with health-care cards who are not on a Centrelink pension or benefit. In relation to transport the articles states:
NCOSS is calling for:
• The extension of transport concessions to low-income Health Care Card holders. There are around 145,000 people with health Care Cards who are not on a Centrelink pension or benefit. In addition, some may not be aware that they are eligible for a card. The additional cost, in tax expenditure, to the NSW Government will be around $30m per year (all things being equal).
• The extension of energy rebates to low income households in addition to pensioners.
NCOSS is particularly keen that the concession card for Aboriginal people be available to Aboriginal people over 45 years of age. It calls for:
• The eligible age of the Seniors Card to be lowered to 45 for Aboriginal and Torres Strait Islander people. Potentially the card should also be re-named.
This lowering of the age of eligibility is obviously a recognition of the shorter life expectancy of indigenous people and the need for them to be given concessions when they reach the age of 45, which is certainly comparable to the later age that non-indigenous people reach to be entitled to the card. NCOSS also requires that there be adequate support for the homeless in this State. It states:
In partnership with Homelessness NSW. ACT, the NSW Women's Refuge Resource Centre and the Youth Accommodation Association, NCOSS is calling for:
• A comprehensive ten year NSW Homelessness Strategy, bringing together separate programs and measures under the Supported Accommodation Assistance Program (SAAP), the Partnership Against Homelessness, services for victims of domestic violence, relevant supported housing programs and other inter-departmental initiatives.
• Such a Strategy to be developed on a cross-departmental basis, co-ordinated by the Premier's Department in partnership with the non government sector.
[Time expired.]
Motion agreed to.
The House adjourned at 3.16 a.m. Wednesday 22 November 2006 until 11.00 a.m. the same day. ______