Legislative Assembly
Tuesday, 28 November 2006
THE SPEAKER (Mr F. Riebeling) took the chair at 2.00 pm, and read prayers. DAMPIER ARCHIPELAGO - NATIONAL HERITAGE LISTING Statement by Premier MR A.J. CARPENTER (Willagee - Premier) [2.02 pm]: Today I have written to Senator Ian Campbell, federal Minister for Environment and Heritage, outlining the state government’s position on the federal government’s proposed national heritage listing of the Dampier Archipelago. While initially opposing national heritage listing, as a result of commonwealth action to address our concerns, together with discussions to progress management plans and an approvals bilateral agreement, we now believe that it may be possible to progress a listing that protects the significant heritage values of the Dampier Archipelago without jeopardising industry. The state government has long acknowledged the significant heritage values of the Dampier Archipelago. These have been recognised in the various planning strategies prepared by the state over the past decade. In January 2002 the state signed the landmark Burrup and Maitland Industrial Estates Agreement with the area’s three Aboriginal native title claimant groups. That agreement provides a range of benefits for the Aboriginal people of that area. Indeed, approximately 55 per cent of the Burrup Peninsula is to be vested in the Aboriginal people. We strongly believe that it is possible for industry and heritage to coexist in the Dampier Archipelago. While protecting heritage, we need to ensure that the management of heritage does not constrain current projects and the capacity of industry to expand within agreed boundaries, or impact on transport corridors for the facilitation of these industries. We are committed to effective management of the heritage values of the Dampier Archipelago and to identifying the most appropriate management regime by engaging with the commonwealth, and other stakeholders. This will include an agreed management plan. Details of an environment and heritage management strategy were provided in the Western Australian government’s submission of March 2006 to the Australian Heritage Council, and this strategy is progressing. Key initiatives of this environment and heritage management strategy are the establishment of the Dampier Archipelago Council and overarching management plan; a Dampier Archipelago cultural heritage management plan; heritage surveys over six Burrup agreement industrial areas; archaeological surveys over non-industrial land; a management plan for the Burrup non- industrial area; and a Commonwealth Scientific and Industrial Research Organisation rock art monitoring study. We believe that the industries that are operating in the Dampier Archipelago must play an important role in the management of the heritage values. It is important that both the state and the commonwealth engage with those industries effectively to ensure that they have an opportunity to play their part. Given the economic importance of industry in the Dampier Archipelago to Western Australia and Australia, combined with its significant heritage values, it is critical that the development of an approvals bilateral agreement and a workable management plan be considered very carefully. We have been encouraged by public statements by the commonwealth indicating a preparedness to take whatever time is necessary to develop a management regime that will ensure that industry and heritage value coexist prior to a decision on any listing. We support this approach and request that the commonwealth commit to continued discussion with the state. We look forward to working cooperatively with the commonwealth, industry, heritage interests and the indigenous people of the area to achieve an outcome that is satisfactory to all. CLIMATE CHANGE STATEMENT Statement by Minister for the Environment MR M. McGOWAN (Rockingham - Minister for the Environment) [2.05 pm]: There can no longer be any debate in Western Australia about the reality of climate change. We have just experienced our driest winter on record. In recent years we have experienced many extreme weather events, such as floods, major storms and cyclones. Over the past 30 years there has been a 10 to 20 per cent reduction in average annual rainfall in the south west of our state, and a 40 to 50 per cent reduction in the water run-off into our dams. Climate change is an issue that the government, and, indeed, the Western Australian community, take very seriously. That is why the Premier has commissioned a major climate change statement for early 2007 to lay out a plan of action for the years ahead. Curbing our greenhouse gas emissions is a complex task in a state with a growing and energy- intensive economy. However, we also have several strategic advantages, including solar, wind, wave and geothermal power opportunities, and vast capacity for carbon sinks. We are also geologically well suited to greenhouse gas sequestration, and we have gas reserves that we are using for our own economy and to export clean energy to the rest of the world.
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There is much of which we can be proud in our battle against climate change. In 2001 we inherited an electricity system with just one per cent renewable energy. Today it is over five per cent and growing, in part as a result of our electricity reforms to open the market to renewable energy suppliers. In 2004 the government released a greenhouse strategy to coordinate government action on climate change. A range of energy efficiency schemes have been introduced, including a rebate scheme to encourage householders to take up the use of solar energy for water heating, and a program to install solar panels on 100 state government schools through the solar schools program. We also have invested in an international trial of hydrogen fuel-cell buses, made a massive investment in an electric rail system to take more than 22 000 cars off the road, and made our government car fleet carbon neutral. Perhaps the most significant contribution we have made to reducing greenhouse emissions is that we have significantly reduced land clearing in Western Australia through implementing strict native vegetation clearing controls under the Environmental Protection Act 1986. It is these sorts of practical actions taken by states that have allowed the Howard government to claim that Australia will meet the target it negotiated under the Kyoto Protocol. In 2005 the then Minister for State Development, now the Premier, and the then Minister for the Environment commissioned a Greenhouse and Energy Taskforce to recommend to government further mitigation measures for the stationary energy sector. The report, which will include advice on targets, offset mechanisms and carbon trading, will be delivered to government late next month. In 2007 the government will deliver a climate change statement that will, in part, respond to this report, but also take a wider view of the steps we should all take to reduce our impact on our environment. ENERGY SMART GOVERNMENT PROGRAM Statement by Minister for Energy MR F.M. LOGAN (Cockburn - Minister for Energy) [2.08 pm]: I seek leave to table the results of the state government’s Energy Smart Government program for 2005-06. [See paper 2236.] Mr F.M. LOGAN: Energy consumed by state government agencies accounts for a substantial portion of the state government’s operating costs. It also plays a significant role in the impact these agencies have on the environment through the emission of greenhouse gases. The Energy Smart Government program requires government agencies to reduce their energy consumption and associated greenhouse gas emissions. It also provides a policy framework for agencies to incorporate energy management as a standard part of their operations. I am pleased to report that since the introduction of the program in 2002, the combined effort of agencies has resulted in energy cost savings of more than $10.9 million and the avoidance of nearly 40 000 tonnes of greenhouse gas emissions. This has been done despite the dramatic growth that has occurred in Western Australia since 2002, which has increased the demand for more infrastructure and services, including health, police and education. However, in spite of this extra demand, energy used by government agencies has defied the trend and been reduced by almost three per cent. The program’s initial target for energy reduction was 10 per cent by 2005-06. However, the unprecedented growth in the state has meant that this target was virtually impossible. Yet 27 of the 63 participating agencies were able to achieve this target. The overall results were strongly influenced by the larger agencies. The largest five agencies represented 77 per cent of total government energy consumption and they did not meet the target this year, although some achieved a significant energy reduction. The most pleasing aspect of the report is that three-quarters of participating agencies reduced their energy consumption in 2005-06. This represents a reduction of 13 per cent per government employee and reflects the dedication of many agencies to ongoing energy management. Fourteen agencies recorded impressive energy consumption savings of more than 20 per cent. I congratulate all agencies that have contributed to the positive outcomes to date and encourage all agencies to continue to manage their energy use and renew their efforts to keep this important initiative as a high priority. I look forward to reporting further achievements about the Energy Smart Government program in the coming years. JUNE WILLIAMS - CONDOLENCE Statement by Attorney General MR J.A. McGINTY (Fremantle - Attorney General) [2.10 pm]: I regret to inform the House that June Williams, a former Commissioner for Equal Opportunity, passed away on the morning of Friday, 24 November, after a long period of ill health. June Williams took up the position as the first Commissioner for Equal Opportunity for Western Australia in 1985. She had previously worked for the New South Wales Anti- Discrimination Board and had strong experience with the New South Wales Anti-Discrimination Act, which is similar to the Western Australian act. June had previously been a senior conciliator in New South Wales. June was born in Western Australia but subsequently worked as a teacher in Victoria and New South Wales. She also worked in the personal finance area in the private sector. June brought with her a wealth of experience
[ASSEMBLY - Tuesday, 28 November 2006] 8841 and a commitment to ensuring that the newly enacted Equal Opportunity Act worked to eliminate discriminatory practices in Western Australia. June oversaw the establishment of a system to receive and investigate complaints of discrimination in Western Australia. She liaised widely with industry and government to ensure that the act was supported and understood by all. June was determined to ensure that a sound body of case law was developed in the Equal Opportunity Tribunal and rarely referred a matter to the tribunal that did not succeed. She oversaw the work of the Western Australian commission for some 17 years. She was the longest serving commissioner in any state or territory when she retired. During her time in the position, June saw the act amended to include new grounds of discrimination, such as physical and mental impairment, family responsibilities and family status, racial harassment and age. June initiated a number of investigations into systemic discrimination, including the high rate of lapsed complaints from indigenous complainants and the reasons for this, the nature and extent of discrimination on the basis of sexual preference, and the nexus between seniority, merit and promotion in education. June won the 1993 Australian Institute of Management Excellence in Management Award for Women. June will be remembered for her pioneering work in ensuring that the Equal Opportunity Act, which had bipartisan support during its passage through Parliament, was an effective instrument for the elimination of discrimination. June leaves a son, Matthew. I feel sure that I can speak for both sides of the house in extending our condolences to her family and friends.
AUSTRALIAN FOOTBALL LEAGUE DRAFT - INDIGENOUS FOOTBALL PLAYERS Statement by Minister for Indigenous Affairs MS S.M. McHALE (Kenwick - Minister for Indigenous Affairs) [2.12 pm]: I am pleased to inform the house that nine young indigenous men from Western Australia have been successful in this year’s Australian Football League draft. Eighteen Western Australian players were included in the national AFL draft for next season. It is, therefore, a significant and outstanding result for Western Australia and for the families of these players to have nine indigenous young men included in the draft. The nine players are Nathan Krakouer, Brad Dick, Leroy Jetta, Carl Peterson, Brennan Stack, Calib Mourish, Clayton Collard, Joshua Hill and Clinton Benjamin. Six of these great football players have come through the Clontarf academies. I commend programs such as those offered by the Clontarf Foundation, which are vital in ensuring that such achievements are possible. I congratulate Clontarf Aboriginal College at Waterford in particular, as five of these six young players were past, or are present, students. This government continues to support the Clontarf Foundation and has committed $4.7 million over the next four years to help its expansion. Clontarf’s program ensures that young people are engaged and supported in education until year 12. Clontarf partners with mainstream schools and currently has six academies across the state. Clontarf’s high retention rates and AFL success are predicated on programs that encourage academic achievement using Aussie Rules. Young indigenous men between the ages of 13 and 18 years are encouraged to enrol in football programs and are provided with high-quality coaching, health education and mentoring in life skills. I congratulate all the Western Australian players drafted into the AFL this year and, in particular, the nine indigenous players. I acknowledge the hard work and commitment that each one of them will have made to reach this goal. I wish them all a long and successful football career.
WOMENSPORT WEST - AWARD WINNERS Statement by Minister for Sport and Recreation MR J.C. KOBELKE (Balcatta - Minister for Sport and Recreation) [2.14 pm]: I was honoured to recently attend the 2006 Womensport West Sportswomen of the Year Awards. It was a great occasion that gave us the opportunity to reflect upon and celebrate the achievements of our sportswomen over the past year. Womensport West is a not-for-profit organisation dedicated to increasing sporting and physical activity opportunities for women and girls of all ages. Its mission sits nicely alongside the government’s vision to reduce the incidence of obesity in Western Australia via the Premier’s Physical Activity Taskforce and other agencies. One of the key strategies of Womensport West is to create and foster opportunities for the recognition of achievements in sport and lifelong participation. To that end, I acknowledge and congratulate the 2006 Sportswomen of the Year Award category winners. This year for the first time ever, the Sportswoman of the Year Award went to joint winners, Joanne Lutz and Amber Bradley, who are rowers. Jo and Amber were gold medallists in the women’s coxless four and bronze medallists in the women’s eights at this year’s world championships in Eton, Great Britain. The Junior Sportswoman of the Year was awarded to Kobie McGurk from the sport of hockey. Jacqui Jashari from netball was recognised as the Official of the Year. Belinda Kerl and Chelsea Hall, representing yachting in the 420 female double-handed class, took out the prestigious Team of the Year Award. The Coach of the Year Award was taken out by Lyn Foreman who is coach of Commonwealth and Olympic Games athlete
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Kylie Wheeler. In the Masters category, Lorraine Schutz from cycling was awarded the Masters Athlete of the Year. Finally, the ABC’s Tony Carr took out the Media Award. The government is proud to support these extremely talented female high achievers in sport in Western Australia and recognises their fine achievements in 2006. The government looks forward to further partnering organisations such as Womensport West through similar initiatives to increase physical activity levels across the whole community. AUSTRALIAN OF THE YEAR AWARDS Statement by Minister for Science and Innovation MR F.M. LOGAN (Cockburn - Minister for Science and Innovation) [2.16 pm]: Members will be aware of the national and international standing of the Western Australian biotechnology sector. Thanks largely to the enterprise of doctors and scientists over many decades, this state is incredibly well placed to develop biotechnology as a significant employment and wealth-creating industry. For this reason the Carpenter government has decided to make biotechnology one of the four key pillars of its beyond the boom initiative, and the release of its biotechnology strategy earlier this year has provided the industry with a framework that will see it grow and prosper. Western Australia is very lucky to have such high-calibre people working in the sector, including a couple of Western Australians of the Year and a couple of Nobel laureates, to name but a few. The Nobel laureates, Professor Barry Marshall and Emeritus Professor Robin Warren, are also Western Australia’s biotechnology ambassadors. I was very pleased to hear that both men were announced as Western Australian recipients in the 2007 Australian of the Year Awards at the weekend. As members will be aware, Barry and Robin won the Nobel prize for their discovery of the cause of gastritis and peptic ulcer disease. Their work has transformed our understanding of the cause of stomach ulcers, resulting in a new approach to therapy and new treatments that are simple, cheap and effective. I congratulate both men for their award and for the work they are doing to promote and develop the biotechnology sector in Western Australia. The Minister for Citizenship and Multicultural Interests and I also congratulate the other Western Australian recipients in the 2007 Australian of the Year Awards, Dr Kenneth Collins of Claremont, Darren Lomman of Cloverdale, Yvonne Bali of Sorrento and James Hamersley of Walkaway. SMALL BUSINESS DEVELOPMENT CORPORATION Statement by Minister for Small Business MS M.M. QUIRK (Girrawheen - Minister for Small Business) [2.18 pm]: I am delighted to announce that a new advertising campaign by the state government, through the Small Business Development Corporation, commenced today. The campaign is designed to raise awareness of the services of the SBDC among Western Australia’s small business operators. This campaign was put together by the same creative agency that designed the government’s very successful Go West Now campaign, which was also coordinated by the SBDC and resulted in more than 2 500 skilled tradespeople registering to move from Victoria and New South Wales to Western Australia. The latest campaign includes the new slogan “We’re for Small Business”, which captures the essence of what the SBDC is all about. Radio and newspaper advertisements will help raise awareness at all levels of small business in Western Australia. The state government, through the SBDC, offers a comprehensive range of services, including licensing information, workshops, a complete advisory service and assistance for people wanting to export goods. The campaign has a strong call to action message, and encourages small business starters and operators to call the simple, one-stop, small business hotline on 131 BIZ. This is a toll-free number for which country callers are charged local rates. The SBDC combines this type of advertising with other methods of promotion, much of which capitalises on the increasing use of electronic technology by small business operators today. The SBDC website incorporates online networks for young business entrepreneurs, home-based businesses and small business exporters. Through these networks, the SBDC promotes all its services, special events and special offers. On the subject of networks, I am very pleased to report that the SBDC has recently welcomed its 3 000th young business network member. I also take this opportunity to congratulate another young business network member, Darren Lomman, who last Saturday was named WA’s Young Australian of the Year for 2007. Darren is a bio- medical engineer with a small business called Dreamfit. He specialises in converting sporting and leisure equipment for use by people with disabilities. Darren is an outstanding young man and I wish him well when he goes to Canberra in January next year for the final Australia Day announcements. The success of the online networks is a strong indication that the next generation of small business operators is making good use of the SBDC and its services. The new advertising campaign is yet another example of the Carpenter government’s providing valuable services to help our vital small business sector to grow and prosper.
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WA BUSINESS AND THE ARTS PARTNERSHIP AWARDS Statement by Minister for Culture and the Arts MS S.M. McHALE (Kenwick - Minister for Culture and the Arts) [2.21 pm]: On Friday, 24 November, I had the honour of hosting the thirteenth annual WA Business and the Arts Partnership Awards at the Art Gallery of Western Australia. This event recognises Western Australia’s leading business-arts partnerships for the role they play in enriching and strengthening our community. Businesses, large and small, have an important role to play in supporting and developing the arts, and they in turn can benefit from an investment in the short and long term. These partnerships also lead to secure long-term economic growth and create opportunities for Western Australia by boosting services, creating jobs and strengthening our regions. The 243 nominations received for the 2006 Western Australian Business and the Arts Partnership Awards represented 155 businesses and $8.5 million worth of support to arts and culture in Western Australia. The winners of the prestigious Partnership Awards were: the Australian Capital Equity Outstanding Long-Term Partnership Award was awarded to Pilbara Iron and the Shire of Roebourne for the partnership that supports the annual Cossack Art Award. The exhibition has been staged for the past 14 years and is the most isolated art exhibition in the world and provides Australia’s richest regional art award. The WesTrac CAT Most Innovative Partnership Award was awarded to AdultShop.com and ARTRAGE for the inaugural Erotic Art Prize in 2005. That woke up the member for Vasse! Obviously, when we talk about sex he wakes up. The Ogden IFC Brisbane Arts Development Award went to AngloGold Ashanti Australia, Carey Mining, Roche Mining, Curtin University of Technology and the Art Gallery of Western Australia for the sponsorship of the Inaugural Indigenous Training Curatorial Graduate Program. The Department of Local Government and Regional Development Outstanding Commitment to Regional Arts and Culture Award went to Woodside Energy and the West Australian Music Industry Association for their three-year partnership, which delivers the Woodside Energy Regional Schools Program and includes live school music concerts, song-writing workshops and professional development. The WA Business News Best Media Partnership Award went to Network Ten, Cooch Creative, Cyclops Films and AWESOME Arts Australia. Lamont’s Best Small or Medium-Sized Business Partnership Award went to Fothergills of Fremantle and Deckchair Theatre, for presentation of the 2005-06 season of Shakespeare in the Park. The Bowen Buchbinder Vilensky Lawyers Community Investment Award went to the City of Perth and ARTRAGE, which in 2005 enabled the resurgence of the Northbridge Festival. Hudson Best First-Time Partnership Award was awarded to the Department of Environment and Conservation and Barking Gecko Theatre Company. The Carpenter government is committed to enhancing this state’s cultural commitment to developing a strong and innovative community responsive to economic and social change. My congratulations to all winners, highly commended and all nominated business and arts partnerships. SENSIS BUSINESS INDEX Statement by Minister for Small Business MS M.M. QUIRK (Girrawheen - Minister for Small Business) [2.24 pm]: The November Sensis Business Index was released today. I am delighted to report that the results show trading conditions for Western Australia’s small businesses are at a 12-year high. Western Australia has outperformed the entire nation in sales and profitability, beating the national averages by 18 and 17 per cent respectively. This quarter, Western Australia has also recorded the highest level of business confidence at an incredible 73 per cent - 23 points above the national average. Regionally, Western Australia is also way ahead in business confidence at 68 per cent compared to the national average of 37 per cent. The Sensis Business Index also confirms that our small businesses have the strongest employment expectations for the year ahead. We are the only state or territory in which businesses perceive that the economy will be better in a year from now. Western Australian small businesses are looking forward to maintaining their high profit levels, with positive expectations for profitability remaining well above the national average at 39 per cent - again, the highest of any state or territory. The Sensis Business Index also indicates that the biggest challenge for business today is finding and retaining staff. The state government is meeting this challenge head-on. Programs are in place in Western Australia to encourage skilled migrants from overseas and interstate. In addition, the number of traineeships and apprenticeships has increased and a raft of incentives has been designed to encourage more Western Australians to improve their skills. This year the state government has introduced a number of other successful initiatives for small business, including the development of a new regionally focused model of 26 small business centres; the removal of mortgage duty on loan refinancing on mortgages of $5 million or less; the 131 BIZ telephone advisory service; the reduction of the minimum level of professional indemnity insurance cover required for government projects, depending on the level of risk; the introduction of “How to Start a Business” and “Introduction to Business Planning” online workshops; a reduction in workers’ compensation premiums by
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10 per cent for 200 categories of industry; the establishment of a small business advisory committee to advise the State Training Board on small business training needs; the development of a “Smart Move” kit for businesses and skilled migrants settling in WA; and the provision of advisory services to small businesses in areas affected by the dry season. I am encouraged by the business confidence results of the latest Sensis Business Index. I will be working hard to ensure that we continue to deliver valuable services to help our small businesses prosper in 2007 and beyond. LEGISLATIVE ASSEMBLY CHAMBER - PHOTOGRAPHS Statement by Speaker THE SPEAKER (Mr F. Riebeling): I announced this a couple of weeks ago but for members who were not paying complete attention, I advise members that, at the end of this week, the chamber seating and carpet will be removed for preparation of the new seating, carpeting and airconditioning that will be installed over the summer recess. As the existing seats have been here only since 1927, I have approved photographs to be taken of the chamber with members in their places tomorrow, Wednesday, 29 November. These photographs will be taken at two o’clock and will, unfortunately, take between 10 and 15 minutes. The photographs will be taken from the entrance of the chamber, the press gallery and the public galleries. I ask all members to be present to mark this occasion. I am sure their descendents will appreciate seeing them in their places.
QUESTIONS WITHOUT NOTICE
PAUL ALBERT - ADVICE TO MINISTER FOR EDUCATION AND TRAINING 899. Mr P.D. OMODEI to the Premier: On 17 October this year the Premier said - I had the highest regard for Paul Albert as a professional person and, as a matter of fact, as a person. I had a detailed and lengthy conversation with Mr Albert in the office last night and I accepted his version of events. On the same day the Premier also said about his Minister for Education and Training that if he did not have confidence in the minister, she would not be doing the job. (1) Does the Premier accept Mr Albert’s recollection of the number of times he informed the minister of the Corruption and Crime Commission’s investigations, and did he provide the Premier with this information during their detailed and lengthy conversation? (2) Given the conflicting evidence, who is telling the truth, and does the Minister for Education and Training still have the Premier’s full confidence? Mr A.J. CARPENTER replied: I thank the Leader of the Opposition for the question. (1)-(2) I still have, and probably always will have, very high regard for Paul Albert as a professional and as a person. I think he is an outstanding individual. Mr Albert and I had a lengthy conversation on that day - I assume the date the Leader of the Opposition mentioned is correct - about the position that had arisen and what would be the best way forward. As I reported to the Parliament and as I have reported numerous times publicly, Mr Albert told me that he had been given advice from the Corruption and Crime Commission that he should not provide to the minister any detail of the investigation that was under way into matters pertaining to the complaints management unit of the Department of Education and Training. In fact, he found it extraordinary that he had that advice, but it was the advice he had been given. He produced a letter to support his statement on that advice. Several members interjected. The SPEAKER: Order! Member for Dawesville! Mr A.J. CARPENTER: He produced a letter to substantiate his position that he had been constrained in his ability to alert the minister in any detail to the issues that were under investigation. He thought that was most unfortunate. He told me about another letter he had from the CCC, which he produced for me the following day and which addressed the same issues. As I recall, I tabled the letter in the Parliament. That letter indicated that the matters the CCC was working on with the Department of Education and Training were progressing satisfactorily. He thought that the two letters were somewhat incongruous. He was extremely frustrated about the position he found himself in, but he accepted that ultimately the responsibility for the issues the investigation was looking at was his. In our discussion it was decided that in order to restore confidence in the education department he would take early retirement. That is the issue. Although I have not read the transcript of
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Mr Albert’s evidence yesterday, I have been given information via the media about what Mr Albert said. To my mind the basis of it agrees with the thrust of what he told me. He told the inquiry yesterday that at no stage had he been able to provide the minister with any details of the issues that were under investigation. Several members interjected. The SPEAKER: Order! I call the members for Dawesville, Darling Range and Murdoch to order. Mr A.J. CARPENTER: As I understand it, he told the upper house committee yesterday that the department had a policy of not informing the minister of investigations involving staff. He told the inquiry that at no stage was there any briefing provided to the minister about the issues that are the subject of discussion. There was no verbal or written briefing. The minister’s version of events is given very strong support by the other witnesses who spoke yesterday at the committee. People from her office were asked about their level of awareness. I think two of them - there may have been others - said that at no stage were they alerted to the details of any investigation that was happening in the education department; in fact, not only that, but as anybody who looked at it with an objective eye would have noticed, there was the startling piece of evidence from the representative of the CCC who said that when he informed the minister of the matters under investigation she was “gobsmacked” and apparently clearly knew nothing of the issues at hand. The other evidence to the upper house committee lends strong support to the minister’s position. I can understand why the minister is feeling a degree of frustration. I think that Mr Albert’s evidence yesterday indicated that on several occasions, in passing and not in any formalised way - Mr T. Buswell: He said he told her in a briefing. Mr A.J. CARPENTER: He did not. He said that in passing he had mentioned the issue of the investigation. It must be recognised that at no stage was any formal briefing given to the minister. At no stage did he sit her down and say that there were issues that should be brought to her attention. Several members interjected. The SPEAKER: Order! I call the Deputy Leader of the Opposition and the members for Roe and Darling Range to order. Mr A.J. CARPENTER: It almost defies belief that the member for Vasse, of all people in this Parliament, has the audacity to raise any sort of issue relating to this matter. I leave it at that. May I tell the member for Vasse something? My judgment is occasionally faulty, but at the moment my judgment - Several members interjected. The SPEAKER: Order! Mr A.J. CARPENTER: In my humble opinion the political career of the member for Vasse is effectively over. His political career was terminated last week, or perhaps the day when he made the decision to climb into the car with Noel Crichton-Browne and collaborate on what evidence the member for Vasse would give to the CCC. That was the moment when his political career was effectively over. That may of course explain why the Leader of the Opposition is, we understand, in conversation with the previous Leader of the Opposition, the member for Kalgoorlie, about whether or not they can get back together and get him back onto the front bench. Mr P.D. Omodei: You have been talking to the member for Ballajura! The SPEAKER: Order! Mr A.J. CARPENTER: The Leader of the Opposition has had his chance to show his credentials about accountability and has failed. Mr P.D. Omodei: You are like a drowning man clutching at straws. The SPEAKER: Order! Mr A.J. CARPENTER: I believe that Mr Albert’s evidence was given in good faith. The fact that he has a different recollection from the one that everybody else seems to have I do not think makes him a dishonest person, or the others; they simply have different recollections. Bear in mind, as anybody who has had a busy portfolio would know, on any one day dozens and sometimes scores of issues can be brought to a minister’s attention, and some in the most perfunctory way. If they are important, a minister will expect to be given a detailed briefing. If they are not, dozens or scores of issues may be brought to a minister’s attention in a perfunctory way. If the recollection of Mr Albert is that on one occasion he spoke to the minister while they were walking along a corridor, is it surprising that the same recollection is not powerfully embedded in the minister’s mind? Several members interjected. The SPEAKER: Order! I call to order the member for Roe and the member for South Perth.
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PAUL ALBERT - ADVICE TO MINISTER FOR EDUCATION AND TRAINING 900. Mr P.D. OMODEI to the Premier: Is the Premier saying that Paul Albert lied to the parliamentary inquiry by the Legislative Council committee yesterday? Mr A.J. CARPENTER replied: I will answer that in this way: I have been Minister for Education and Training. One of the issues that the current minister has been attacked over is outcomes-based education, under which people are taught to think critically. It was not the model of education when the Leader of the Opposition was at school. That is pretty obvious.
NUCLEAR POWER PLANTS - FEDERAL GOVERNMENT’S PLANS 901. Mr M.P. MURRAY to the Premier: Can the Premier please inform the house what the state government can do to stop the Howard government’s plans to build nuclear power plants in Western Australia? Mr A.J. CARPENTER replied: I hope that I will never be in a post-government career with so much baggage, waiting for people to peek into when they feel like it. The Leader of the Opposition will get a little taste of that over the next few days. His legacy is quite an interesting one. If the Corruption and Crime Commission had been in place when he was in government, I very much doubt whether many of the people sitting on the opposition benches now would still be in the Parliament. The Leader of the Opposition knows it. If the CCC had been in operation when the opposition was in government, it would have left a trail of politically dead bodies all the way from here to the ballot box. Clearly, the federal government has pre-ordained that Western Australia and Australia should be driven down the nuclear power pathway, irrespective of whether individual states or communities want to go there. That is a reprehensible position for the federal government to take and, on behalf of the people of Western Australia, I intend to try to resist it. I noticed a very good initiative that was announced yesterday in Queensland; that is, Queensland proposes to introduce legislation to ban the construction of nuclear power stations in that state, irrespective of whether the federal government can use its newly conferred constitutional powers to override that position. We should do the same in Western Australia. We should legislate in Western Australia to ban the construction of nuclear power stations. In that legislation we should include the possibility of a trigger for a referendum to be called if the federal government seeks to override the state’s position. The Leader of the Opposition would support me, would he not? It is a very good initiative, and I think that the Western Australian people would agree with me. They would appreciate the fact that they had a state government that was prepared to stand and say that there would not be a nuclear power station in Western Australia. If the federal government tries to do it, we will give the people of Western Australia the opportunity to have a direct say, via a plebiscite, in whether it should happen. By means of a referendum they can speak directly to any federal government that seeks to impose that sort of development on them. I actually think that it is a very strong position for a state to take, and I am certain that the vast bulk of conservative voters in Western Australia will support us. It is the sort of issue that we should give people the opportunity to talk about in elections. It is my intention to do that.
BALGA WORKS PROGRAM 902. Mr J.H.D. DAY to the Premier: I refer to the Balga Works program through which a private company received $2 million of taxpayers’ money, and subsequently failed to pay all its employees their full entitlements. (1) Has the Premier at any stage met with Mr Michael Carton and/or Mr Merv Hammond in relation to the Balga Works program? (2) If yes, approximately when did the meetings take place, and what was discussed? (3) Will the Premier confirm that he approved the establishment of the Balga Works program when he was Minister for Education and Training? (4) Can the Premier explain why funding of approximately $2 million for the Balga Works program did not go out to public tender? Mr A.J. CARPENTER replied: I thank the member for the question. I was anticipating a question along the same lines from the member for Murdoch, and I apologise for not paying attention at the start.
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(1)-(4) I do not believe there was such a thing as the Balga Works program when I met Mr Carton in 2004, when I was the Minister for Education and Training. I think it was in August 2004; my diaries have been checked but I am not too sure of the day. I believe that the possibility of this sort of program had been raised with me shortly before that meeting when I attended Balga Senior High School to observe one of its entrepreneurial programs to engage students in education. The then principal, Mr Merv Hammond, had drawn national, and I think some international, acclaim for the variety of programs that he had put in place at Balga Senior High School to try to engage in education disengaged students. My memory tells me that as a result of discussions with me, or comments made to me at that meeting, an appointment was made for me to speak to Mr Carton, Mr Hammond, Mr Hodge I believe, and another gentleman whose name escapes me, who attended a meeting in my then ministerial office. I spent probably 45 minutes - I cannot remember how long it would have been - listening to their proposition. Although I thought that the ultimate outcomes were laudable - that is, more kids would be engaged in education - I actually did not think that the program stacked up at all. The amount of money that was being talked about for state support for such a program was exorbitant. It was in the tens of thousands of dollars per student. My view was that if we were to pay that sort of money, we might as well just pay the students and employ them directly, because the objective was to get students into some form of employment. I have asked for the correspondence files to be looked at to see whether there is any follow-up correspondence, and I believe that there was none from my office. My recollection is that I did not support the program at all. That was, I think, the last I heard of it until very recently. I was asked a question or two about this outside today, and I am able to give a little more detail of where the issue is now. Mr J.H.D. Day: Who approved it? Mr A.J. CARPENTER: I think it had federal government funding. My understanding is that it was approved at the local level, and that this is now the subject of a CCC inquiry. GOVERNMENT CONTRACTS 903. Mr R.C. KUCERA to the Treasurer: The West Australian newspaper this week has reported allegations of favouritism in the awarding of government contracts. Is the Treasurer aware of any examples of this type of favouritism? Mr E.S. RIPPER replied: I thank the member very much for the question. The Carpenter government - and the Gallop government before it - has strict guidelines in place for the awarding of government contracts. I am not aware of any examples of those guidelines being breached by any member of the government. Earlier this week that ethical giant, that champion of integrity, the Deputy Leader of the Opposition, made some comments. He apparently emerged from his car park office to say that he had concerns about the awarding of contracts to Huntly Consulting Group. He, of all people, said that it was highly irregular. Imagine that; the Deputy Leader of the Opposition thinks that something is highly irregular. If the Deputy Leader of the Opposition thinks that that is highly irregular, what does he think about a minister of the Crown awarding a contract to a party and factional colleague in breach of government tendering guidelines? What would he think of that? He does not want to answer because that is what happened when the now Leader of the Opposition was Minister for Local Government. Printing contracts were awarded to Scott Four Colour Print in what could be described only as a very questionable process. Mr J.H.D. Day: Why? Mr E.S. RIPPER: Why? Because only one quote was sought, that is why; and because Scott Four Colour Print was part-owned by Hon Barbara Scott, MLC, and her husband. If I understand Liberal Party politics correctly, she is both a party and factional colleague of the Leader of the Opposition, unless he too - like the Deputy Leader of the Opposition - is a double agent for the Noel Crichton-Browne camp. As I understand it, Scott Four Colour Print was awarded lucrative government printing contracts. Withdrawal of Remark Mr C.J. BARNETT: The Treasurer is impugning the reputation of Hon Barbara Scott, who is a person of the utmost integrity and who is a member of the other house. He has also impugned the reputation of her husband, Mr Michael Scott, who is a highly respected Western Australian businessperson. I ask that the Treasurer immediately withdraw his remark and apologise to Hon Barbara Scott. She is a person of the utmost integrity in the community. The SPEAKER: I thought that I might have missed something, but the Clerk tells me that my recollection is the same as his. I do not think that the Deputy Premier has breached the rules. Standing order 92 protects members of this house and of the upper house equally. Any debate on the reflection upon the Hon Barbara Scott’s character should be done by way of a substantive motion. The Deputy Premier has not breached that standing order.
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Questions without Notice Resumed Mr E.S. RIPPER: If the soon-to-be-departing mentor of the opposition thinks that what I have said is a problem, what does he say about an article in The Australian that stated that the then Premier of Western Australia, Mr Court, carpeted a minister for giving work to a company connected to a Liberal MP without first calling for quotes, and conceded it was not his government’s first such oversight. The article also stated that the cabinet minister responsible, the Minister for Local Government, Mr Omodei, told Parliament he regretted the mistake and said it would not happen again. It was also reported at the time that the contract was one of three awarded to Liberal MPs by the then Liberal government - one of three. Let us go back. Scott Four Colour Print was awarded contracts worth $1.2 million. The Leader of the Opposition admitted that he had failed to adhere to government tendering guidelines. The contract was to print a glossy brochure promoting the carve-up of the City of Perth. Do members remember that issue? The contract was to the value of $20 000 and only one quote was sought. “Go to my mate Barbara Scott and get a quote” is what Mr Omodei told his department. Mr C.J. Barnett: Point of order! A government member: He does not like it. Mr C.J. Barnett: No, I do not, but not for the reason that the member thinks. The SPEAKER: Order, members! Point of Order Mr C.J. BARNETT: Further to my earlier point of order, the Treasurer referred to the awarding of a contract to Barbara Scott. Her husband happens to run a printing business. It is not Barbara Scott’s business, and it clearly implies some impropriety on her part. Mr A.J. Carpenter: There is some sensitivity on the other side. Mr C.J. BARNETT: No, I am not sensitive. I stand up for decent people and for decent Western Australians, and they are decent people. Mr E.S. RIPPER: The mere fact that the member for Cottesloe is becoming tired of Parliament does not make his objection to the proceedings a valid point of order. The SPEAKER: The point of order that is being made is more like an interjection or a mini-debate within question time. Similarly, the contribution of the Deputy Premier on that point of order is a debate rather than a point of order. Questions without Notice Resumed Mr E.S. RIPPER: Mr Speaker - Mr M.W. Trenorden: You can hardly get any lower. Mr E.S. RIPPER: The champion of accountability thinks it is low to point out that the previous government awarded a contract to a Liberal MP! I am almost left speechless by that interjection from the member for Avon, but I appreciate it, because throughout his career he has provided me with timely interjections just like that to assist me to advance my argument. Many of the government printing contracts awarded to Scott Four Colour Print were not even advertised. Just think about that: many of the contracts were not advertised. The company received $400 000 more in printing contracts than its nearest competitor - $400 000 more. The then Premier conceded that it was not his government’s first such oversight. The Leader of the Opposition has come into this place preaching standards and the Deputy Leader of the Opposition is daring, in view of his grossly improper conduct, to raise this issue. There is only one word that can describe that type of behaviour, and that word is “hypocrisy”. The Leader of the Opposition preaches standards but he has no standards of his own. ALBANY HIGHWAY, WILLIAMS - PASSING LANE 904. Mr T.K. WALDRON to the Minister for Planning and Infrastructure: I refer to a serious accident on Albany Highway that occurred 27 kilometres north of Williams on 10 July this year in which two people lost their lives. The local communities are concerned about the dangerous state of this section of road. (1) Will the minister advise whether this section of road is earmarked for a vehicle passing lane and road upgrade to improve the safety of the road for road users? (2) If so, in which budget will the passing lane be included, and when is construction likely to commence? Ms A.J.G. MacTIERNAN replied: If the member were serious about that question, he would have given me some notice of it. We have a program of passing lanes for South Western Highway. If the member cares to put the question on notice, I will certainly respond.
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NUCLEAR ENERGY 905. Mrs J. HUGHES to the Minister for Energy: Has any previous state government seriously considered nuclear energy for Western Australia? Mr F.M. LOGAN replied: I thank the member for Kingsley for that question. It may be a surprise to the member for Kingsley and to many people under the age of 40 that the answer to that question is yes. In 1978 the then Court Liberal government commissioned a report to study the most appropriate and likely sites for the construction of a nuclear power station on the coast of Western Australia. A 234-hectare site at Breton Bay, just north of Seabird and south of Ledge Point, was identified as a result of that report. Mr C.J. Barnett: Your history is wrong. Mr F.M. LOGAN: I am not wrong at all. The site was identified in a report and then purchased from a family trust by the then Court Liberal government in 1981 with the express intention of building a nuclear power station on it. The government also put in place the planning regulations required for that to be done. It put a three- kilometre buffer zone around the entire site and it sterilised land that had been owned by the people in that area for the past 25 years. As I discovered on Sunday - the member for Moore would appreciate this because it is in his electorate - it is an absolutely beautiful site. I have a photograph of the site where the then Liberal government wanted to locate a nuclear power station. It is a beautiful site. I table the photographs. [The photographs were tabled for the information of members.] Mr F.M. LOGAN: That site would be appreciated by the public as a camping site and it certainly is appreciated by the public as a good site for fishing. I have met quite a number of people who pass through that site on their way to very good fishing spots. The reservation of this land for a nuclear power station was very nearly a secret chapter in the WA Liberal Party’s history in the creation of nuclear power in this state. It was the Liberal Party’s experiment. I intend to bring that dark and sorry chapter in WA’s history to a close. Given the fact that the Switkowski report has identified Western Australia as an appropriate site for at least two nuclear power stations, and given that the federal government is committed to building nuclear power plants in Australia, and probably two in Western Australia, we are going to remove the opportunity to build a nuclear power plant on the Breton Bay site from the federal government and from any future Western Australian Liberal government. I intend to put a series of options to my colleagues in cabinet; that is, to either use that site for the generation of renewable power by wind turbines or dispose of that site and put that money where it should be; namely, in renewable energy in Western Australia. As the Premier said, we will fight the federal government every step of the way on nuclear power, and we will bring to an end the dark and sorry chapter of the Liberal Party’s experiment with nuclear power. HUNTLY CONSULTING GROUP PTY LTD - EDUCATION CONTRACTS 906. Mr R.F. JOHNSON to the Treasurer: My question follows on from an answer that the Treasurer gave to a previous question in question time today. I refer the Treasurer to revelations that Huntly Consulting Group Pty Ltd has received about $300 000 worth of education-related contracts from the Treasurer’s government in the past year. Given that the Minister for Education and Training is a friend and former colleague of the director of Huntly Consulting Group, Mr Gregory Philip, and given that the partner of Mr Philip is an executive director in the Department of Education and Training, I ask; what action will the Treasurer, in his capacity as the minister responsible for the State Supply Commission, take to investigate any possible impropriety in the awarding of these contracts; and, if the Treasurer refuses to act, why is he protecting the minister ahead of the interests of the people of Western Australia? Mr E.S. RIPPER replied: This is classic. There is no evidence at all of any impropriety, but the opposition makes the allegation simply on the basis of association. If Perth were a city of six million people and there were more than six degrees of separation between any people in Perth, perhaps there might be some grounds for making that sort of assertion. However, everyone knows that Perth is a small city and there are relationships and friendships that sometimes complicate the operation of proper processes. Nevertheless, this is the issue: since Mr Philip left the Department of Education and Training in 1994, his companies have won a number of contracts with the WA government, the commonwealth government and other state governments. This includes numerous contracts awarded to Greg Philip’s previous company during the term of the previous coalition government. I am advised by the Department of Education and Training that the contracts were awarded following due process. However, I am responsible for the State Supply Commission, and the State Supply Commission is the regulator of procurement probity in this state. As it happens, some weeks ago the Minister for Education and
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Training was concerned about the probity of contracting in certain TAFE colleges, and the Minister for Education and Training wrote to me and asked me whether I would commission a - Several members interjected. The SPEAKER: Order, members! I do not know what caused the outburst, but anything that stops the answer being given is disorderly, and I urge members to not do that. Several members interjected. The SPEAKER: I call to order the member for Cottesloe and the member for Vasse. Ms S.E. Walker interjected. The SPEAKER: I call the member for Nedlands to order for the first time. Mr E.S. RIPPER: Mr Speaker - Mr T.R. Sprigg interjected. The SPEAKER: I call the member for Murdoch to order for the second time. Mr E.S. RIPPER: The Minister for Education and Training wrote to me and asked me - Mr M.W. Trenorden interjected. The SPEAKER: I call the member for Avon to order for the first time. Mr E.S. RIPPER: The question of parliamentary standards arises. Several members interjected. The SPEAKER: Order, members! Mr E.S. RIPPER: I thank the member for Avon. He has once again interjected right on cue. I appreciate his contribution, as I have for all the years that we have jointly been members of this house. The Minister for Education and Training wrote to me, expressing concern about tendering processes in certain TAFE colleges and asking me whether I would have the State Supply Commission, as the regulator, look at those issues. Consequently, the whole question of contracts awarded in the training section of the portfolio will be, as a result of the minister’s request some weeks ago, examined by the State Supply Commission. However, I must say that that should not be taken as any evidence at all of anything wrong with the contracts that have been awarded to Mr Philip - not any evidence at all that the contracts awarded to Mr Philip have any degree of impropriety whatsoever. I ask those people on the opposition side who are jeering to present any evidence that they might have about this matter. When they objected to my reference to the Scott Four Colour Print impropriety, I was able to come back and present to them an admission by the then Premier and an admission by the then minister that there was indeed a problem. This is different, because our assertion, on the basis of advice from the relevant department, is that the contracting has been entirely in accord with government rules and entirely proper. If anyone thinks differently, it is time to put up or shut up.
FREIGHT NETWORK PRIVATISATION - GRAIN LINE 907. Mr P.B. WATSON to the Minister for Planning and Infrastructure: Has the privatisation of the freight network failed to meet the promises made by the previous government to protect the state’s grain lines? Ms A.J.G. MacTIERNAN replied: I thank the member for that question, and I know that he is very concerned about the sustainability of grain freight lines in the great southern. Mr Speaker, you will recall that when the coalition sold off the rail freight system at fire sale prices in 2000, it promised the world. It went around - and I followed it - with a road show. It went to country centre after country centre and promised - Mr J.H.D. Day interjected. Ms A.J.G. MacTIERNAN: One thing that distinguished Labor when it was in opposition was that it actually believed in doing hard work. It believed in pursuing the issues. The coalition promised that the sale contract would protect the grain lines from closure, it promised that the purchaser would spend $400 million in capital expenditure in five years, and it promised that the network would be expanded. We know that all of that was complete rubbish. Mr P.D. Omodei interjected. The SPEAKER: Order, Leader of the Opposition!
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Ms A.J.G. MacTIERNAN: This is a very serious issue that I need to discuss today. We also know that it turned out that the capital expenditure of $400 million that was promised was never in the contract. Indeed, independent economic analysis that has now been done has shown that in fact - Mr M.W. Trenorden interjected. The SPEAKER: I call the member for Avon to order for the second time. Ms A.J.G. MacTIERNAN: I have some sympathy for the National Party and the absolute embarrassment that it is feeling about this matter. It would rival the embarrassment it feels about the conduct of AWB Ltd. In this case, the National Party has sold grain farmers down the road. Mr B.J. Grylls interjected. The SPEAKER: Order, Leader of the National Party! Ms A.J.G. MacTIERNAN: I need to raise an important issue. I understand the agitation of the National Party, because it is highly exposed on this issue. We have recently received a report containing very alarming news. This is a report that has been prepared by the Grains Infrastructure Group, which is a group of government and industry that has been put together to try to work through the future of the grain network. In a nutshell, the advice that we have received is that unless there is a massive injection of money by the government - we are talking about an injection of some hundreds of millions of dollars - into this privatised network, up to 1 000 kilometres, or one-third, of the network will close in 2008. The contract that was entered into protected those grain lines only until the end of 2007. We now understand that it is the intention of the parties to close up to 1 000 kilometres of that rail line unless the government comes to the rescue of that privatised rail network. I want to take some time to set out what was said at the time by the government of the day. We are on record as saying year after year to the then government that it should not go down this path, because we knew that this was precisely what would happen. The then Minister for Transport, Hon Murray Criddle, is on record as saying - Without inviting the private sector into the equation the Western Australian taxpayer will continue to foot the bill to upkeep and renew the track network and rolling stock. He said also - The Government wants to pass that task to the private sector which would have an obvious vested interest - I will talk a bit about vested interest - in expanding the business on a top-quality rail network. The now Leader of the Opposition provided these words of wisdom - Some of the benefits for the new entity will include operating efficiency and flexibility. It will have lower freight rates, higher capital expenditure, a network extension, on-rail competition and market growth. However, that did not happen. Before the privatisation, the business was able to sustain its debt. It was able to cover its operating costs. It was able to support the entire grain network. Several members interjected. The SPEAKER: Order, members! Ms A.J.G. MacTIERNAN: It was able to cover all its capital expenditure costs - Mr M.W. Trenorden interjected. The SPEAKER: Order, member for Avon. Ms A.J.G. MacTIERNAN: I will persist in setting this out, because Western Australia now finds itself in the disgraceful circumstance - Mr M.W. Trenorden interjected. The SPEAKER: Order! I call the member to Avon to order for the third time. Ms A.J.G. MacTIERNAN: I understand the member for Avon’s embarrassment. He should be embarrassed. I was at the meetings when he told farmers that it would never happen. When we were saying this is what would happen, he was saying this would never happen. Before the privatisation, the business was self-sustaining. It was able to support the entire grain network, and it was able to cover all its own costs - its operating costs, its debt costs and its capital expenditure costs. The coalition government sold it at fire-sale prices. The Auditor General’s report said that the state made a loss of $116 million on that sale. We were left with a debt of $330 million, but no income to service that debt. The coalition sold it for around $500 million. Five years later,
8852 [ASSEMBLY - Tuesday, 28 November 2006] it was sold on for $1.3 billion! Guess who is the bunny that is picking up the difference! It is the taxpayers of Western Australia! This is a disgraceful act that has been perpetrated on the people of Western Australia. The now Leader of the Opposition was one of the key players in pushing through this privatisation agenda. He should get up and account to the community for that.
BALGA WORKS PROGRAM - HURSON PTY LTD 908. Mr T.R. SPRIGG to the Premier: Some notice of this question has been provided. (1) Is the Department for Community Development funding the Balga Works program through Hurson Pty Ltd, or any other entity; and, if so which entity? (2) Was a tender for the program issued; how long is the contract for; and how much money will be provided to the program over the life of the contract? (3) From where is the Balga Works program currently operating? (4) Why is the Department for Community Development providing funding to the program when Hurson Pty Ltd failed to adequately pay its employees all their entitlements from the $2 million that it received from the Department of Education and Training to run the program? Mr A.J. CARPENTER replied: I thank the member for Murdoch for the question and for some notice of it. I have been provided with the following answer - (1) The Department for Community Development is not funding the Balga Works program. However, the department pays the Balga Senior High School P&C for accommodation for young people provided under the Balga Works program on a fee-for-service basis. (2) Not applicable. (3) Nottingham Street, Joondalup. (4) Not applicable. I will provide some commentary on the Department of Education and Training that I have been provided with today. As soon as the Department of Education and Training became aware that Balga Senior High School had entered into unauthorised arrangements for the Balga Works program, it advised the Corruption and Crime Commission. The State Supply Commission granted an exemption from tender requirements while a tender process was put in place. The tender process closed in August 2006. Following the receipt of tenders, the department made a decision to close the program. In October 2006 the Balga Works program was closed. The principal of Balga Senior High School has also retired. In May 2006 the minister’s office was made aware that a number of employees of the Balga Works program had not received pay for some time. The minister’s office took immediate action, which resulted in some 22 employees and former employees receiving outstanding payments. In March 2006 ABC Stateline ran a story commending the Balga Works program. As I have said, the matter is now before the CCC.
BALGA WORKS PROGRAM - HURSON PTY LTD 909. Mr T.R. SPRIGG to the Premier: I ask a supplementary question. Which members of the government dealt with some of the employees to whom the Premier has referred but covered up their involvement to protect the Minister for Education and Training? Several members interjected. The SPEAKER: Order! Mr A.J. CARPENTER replied: The member has clearly missed his true vocation! He is a prosecutor par excellence, and he should have gone down that pathway! I do not have any provided response to that supplementary question. However, given the tone of the question and the implications that run through it, I suggest the answer would be no-one - none.
LPG SUBSIDY SCHEME - FAMILY VEHICLES 910. Ms J.A. RADISICH to the Minister Assisting the Minister for Planning and Infrastructure: What has been the impact of the Carpenter government’s $1 000 subsidy for liquefied petroleum gas conversions on family cars?
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Mr A.D. McRAE replied: I thank the member for Swan Hills for her interest in this matter. Indeed, in August this year the Carpenter government doubled the subsidy for the conversion of - Point of Order Mr C.J. BARNETT: Mr Speaker, I seek your clarification. I know it is appropriate for members to ask questions of parliamentary secretaries. However, the member is asking a question of a minister representing another minister, when that other minister is in the house. I seek some clarification of that. Ms A.J.G. MacTiernan: It is the minister assisting. The SPEAKER: Order! My understanding of the rules is that a minister assisting another minister in this place is capable of answering questions that are directed to that minister assisting where that relates to the area that that minister is administering. Questions without Notice Resumed Mr A.D. McRAE: I am the minister assisting and, indeed, I do have delegated authority in this area. When I listen to the member for Cottesloe, I think about his advocacy for invading Iraq, for nuclear power, and for canals. I also think about his ethics mentoring of the member for Vasse. That is what I think about when I listen to something that comes from the member for Cottesloe. Several members interjected. The SPEAKER: Order, members! Mr A.D. McRAE: In August this year - Several members interjected. The SPEAKER: Order! I call the Deputy Leader of the Opposition to order for the third time. Mr A.D. McRAE: In August this year the Carpenter government doubled the LPG subsidy scheme for family vehicle gas conversions from $500 to $1 000. A week later the federal government jumped on the same bandwagon and added its weight to this subsidy scheme. For many motorists the combined subsidies now cover the full cost of conversion of a car from petrol to LPG. The advantage is that LPG can also slash fuel bills by up to half. It also emits fewer harmful greenhouse gases than petrol and diesel. It is good for Western Australian motorists and good for our environment. The Carpenter government’s initiative has proved immensely popular. Since the increase was announced, applications for the subsidy have jumped from an average of 80 a week to more than 170 a week, and rising. In the week ending 17 November the government paid out 243 subsidies for conversions. In 2005-06, 2 779 kits were fitted in Western Australia. In the past five months alone, a total of 2 347 subsidies have been paid out at a cost of more than $2 million. We should easily top 7 000 conversions of family vehicles in Western Australia this year, and we expect that number to increase in the following year. In response to the massive demand, the gas installers in Western Australia’s motor trade have stepped up the importation of liquefied petroleum gas conversion kits and tanks. They are expanding their business premises and putting on more staff. The phenomenally positive response by Western Australians to the Carpenter government’s LPG subsidy and domestic gas reservation policy shows that they recognise that the Premier and this government are making decisions about tomorrow, not just today. BLUEWATERS 2 POWER STATION 911. Dr S.C. THOMAS to the Minister for Resources and Assisting the Minister for State Development: I refer to the minister’s media release of 15 November in which it was revealed that he had been lobbied by Brian Burke and Julian Grill on behalf of the Griffin Coal Mining Company Pty Ltd. (1) Why was it that during his nine days as Acting Minister for the Environment earlier this year, he felt compelled to approve Griffin Coal’s private $400 million Bluewaters 2 power station? (2) Given the significance of this decision and the minister’s acting position, why did he not leave the issue to be decided by the new minister? (3) What outcomes were Brian Burke and Julian Grill lobbying the minister for with regard to the Bluewaters 2 project? (4) Is it not the case that he exerted pressure on the chief of staff of the former Minister for the Environment, Mr Ross Field, and departmental officers to ensure that he was able to sign off on the environmental conditions for Bluewaters 2 during his short tenure as acting minister?
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Mr J.J.M. BOWLER replied: (1)-(4) First, I think I was acting minister for about a fortnight. The Bluewaters 2 decision was identical in almost every way to Bluewaters 1. In response to the question about whether I would have done anything differently, I tell the people of Collie that the Liberal Party would have knocked back Bluewaters 1 and 2. If the Liberal Party has a policy on that, I would be very glad to debate the matter in this place, in Collie or in the electorate of Capel. The answer to the question about the minister’s chief of staff is no. MINISTER FOR PLANNING AND INFRASTRUCTURE Personal Explanation MS A.J.G. MacTIERNAN (Armadale - Minister for Planning and Infrastructure) [3.21 pm]: I seek leave to make an explanation of the duties - Point of Order Mr C.J. BARNETT: Mr Speaker, I have a point of order. The SPEAKER: I have already made a determination on this particular issue. If the member has another point of order, that is fine. However, if he wishes to canvass the issue about which I have already made a determination, there is no point of order. Mr C.J. BARNETT: Mr Speaker, you made a determination - Ms A.J.G. MacTiernan interjected. The SPEAKER: Order! The member for Cottesloe has the call to make a point of order. Mr C.J. BARNETT: Seeking leave to make a personal explanation is, as the phrase implies, seeking leave to make a personal statement. To make some comment about ministerial responsibility is not within the ambit of a personal explanation. If the minister wishes to move to suspend standing orders to debate that matter, we would cooperate with such a motion. The SPEAKER: I have said once today already that points of orders are not an opportunity for the member for Cottesloe or the Minister for Planning and Infrastructure to debate issues. DAYLIGHT SAVING BILL (NO. 2) 2006 Assent Message from the Governor received and read notifying assent to the bill. SMARTRIDER CARDS - LEEMING NEWSAGENCY Petition MR T.R. SPRIGG (Murdoch) [3.23 pm]: I present the following petition from 213 signatories - To the Honourable Speaker and Members of the Legislative Assembly of the Parliament of Western Australia. We the undersigned request that the Leeming News Agency because of its proximity to the Murdoch Bus and Train Station be accredited to sell Smart Rider Cards. [See petition 163.] BALGA WORKS PROGRAM Petition MR A.P. O’GORMAN (Joondalup) [3.24 pm]: I present the following petition - To the Honourable the Speaker and Members of the Legislative Assembly in the Parliament of Western Australia in Parliament assembled. We, the undersigned say: That we have tolerated the anti-social behaviour of the youths in the Balga Works program with patience and support, but can no longer accommodate this behaviour. Now we ask that the Legislative Assembly: Close the program operating in Joondalup. The petition has 76 signatures and conforms to the standing orders of the house. [See petition 164.]
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SUNSET HOSPITAL SITE - A-CLASS RESERVE 1667 Petition MS S.E. WALKER (Nedlands) [3.25 pm]: I present the following petition with 64 signatures - To the Honourable the Speaker and Members of the Legislative Assembly of the Parliament of Western Australia assembled. We the undersigned residents of Western Australia are opposed to the subdivision and sale, whether by freehold or lease hold, of any part of A Class Reserve No. 1667 for private development or trade, We are opposed to the construction of any new building within the existing open spaces of reserve 1667. The ACTING SPEAKER (Mr P.B. Watson): Order, members! I cannot hear the member and I am sure that the Hansard reporter cannot either. Ms S.E. WALKER: Thank you, Mr Acting Speaker. It continues - We request that the Sunset Hospital site be dedicated to heritage and recreation, We request that the entire site be placed in Parks and Recreation Reserve, as suggested by Nedlands City Council, We ask that, given the site has a Permanent Entry as a Place of Significance with the Western Australian Heritage Council, that all open landscapes be retained as they are part of the Statement of Significance. [See petition 165.] LEARNING DIFFICULTIES AND DISABILITIES - SERVICES FOR CHILDREN Petition MR M.P. WHITELY (Bassendean) [3.26 pm]: I present a petition from 726 petitioners about the provision of services for children’s health. I will paraphrase the petition as it is very long. The petition requests that Western Australia and its officials address the rights and needs of people who suffer from learning difficulties and disabilities, including the underlying issues and symptoms that cause the learning difficulties and disabilities. It also asks that the Legislative Assembly acknowledge and assist more fully the needs of people and children with learning difficulties by identifying the underlying medical, social and physical problems. The petition also requests that the Department of Education and Training take comprehensive action to adequately assist more fully students who suffer from learning difficulties and address the underlying issues of students at risk; that these issues be more fully recognised by the Department of Health and mental health services; and that these services be provided to children. [See petition 166.] MUELLER PARK, SUBIACO Petition MS S.E. WALKER (Nedlands) [3.27 pm]: I present the following petition with 177 signatures - We, the undersigned residents of Western Australia, oppose in the strongest possible terms the destruction of the over 100 year old Mueller Park, Subiaco in the electorate of Nedlands, which contributes significantly to the historical value of Subiaco. We ask the Legislative Assembly to allow this green and shaded precinct to remain as it is - an important part of Subiaco’s public open space. We ask that it continues to be used by the community for a range of recreational pursuits with the trees providing aesthetic amenity and shade value to the residents and visitors to Subiaco and their animals. [See petition 167.] FALUN GONG Petition MR J.C. KOBELKE (Balcatta - Leader of the House) [3.28 pm]: I present a petition in relation to the persecution of Falun Gong practitioners in China. It states in part - We, the undersigned, say, we support the Coalition to Investigate the Persecution of Falun Gong (CIPFG) to investigate the alleged forced organ harvesting allegations and the illegal detention of Falun Gong Practitioners in detention centers, labor camps, prisons and hospitals.
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It goes on to make a number of recommendations to the Assembly. I certify that this petition conforms to the standing orders of the Legislative Assembly and contains 20 signatures. [See petition 168.] BILLS Notices of Motions for Leave to Introduce 1. Director of Public Prosecutions (Standing Committee) Amendment Bill 2006. Notice of motion given by Ms S.E. Walker. 2. Police Amendment Bill 2006. Notice of motion given by Mr J.C. Kobelke (Minister for Police and Emergency Services). 3. Pharmacists Bill 2006. Notice of motion given by Mr J.A. McGinty (Minister for Health). 4. Public Trustee and Trustee Companies Legislation Amendment Bill 2006. Notice of motion given by Mr J.A. McGinty (Attorney General). PROCEDURE AND PRIVILEGES COMMITTEE - FOURTH, SIXTH AND SEVENTH REPORTS Consideration of Recommendations - Notice of Motion Mr J.C. Kobelke (Leader of the House) gave notice that at the next sitting of the house he would move - That the recommendations contained in the Procedure and Privileges Committee’s reports No 4 of 2006, a “Minor Change to the Standing Orders (Members acknowledge the Chair)”, and No 6 of 2006, “Standing and Select Committees’ Terms of Reference and Report Dates - Standing Order 255”, and recommendations Nos 1, 2, 3 and 5 of the Procedure and Privileges Committee’s report No 7 of 2006, “Review of the Premier’s Statement Temporary Order and Other Matters Relating to Extended Session Parliaments” be considered in detail forthwith. SUNSET SITE - AMENDMENT TO BOTANIC GARDENS AND PARKS AUTHORITY ACT 1998 Removal of Notice - Statement by Acting Speaker THE ACTING SPEAKER (Mr P.B. Watson): I inform members that private members’ notice of motion 4, notice of which was given on 15 August 2006, will be removed from the next notice paper unless written notification is provided to the Clerk requesting that the notice be continued. LAW AND ORDER ISSUES, MOTION - ORDER OF THE DAY Removal of Order - Statement by Acting Speaker THE ACTING SPEAKER (Mr P.B. Watson): I inform members that, in accordance with standing order 144A, private members’ business order of the day “Law and Order Issues”, which has not been debated for more than 12 calendar months, has been removed from the notice paper. STANDING ORDERS SUSPENSION Closing Days of Session - Motion MR J.C. KOBELKE (Balcatta - Leader of the House) [3.35 pm]: I seek leave to move notice of motion 1 on the notice paper in an amended form. [Leave granted.] MR J.C. KOBELKE: The motion on the notice paper contains paragraphs (a), (b) and (c), but I will move the motion without paragraph (b). I therefore move - That for the remainder of 2006, unless otherwise ordered - (a) standing order 60 in relation to private members’ business be suspended; and (b) that so much of standing orders be suspended as is necessary to enable bills to proceed without delay between the stages and to enable messages from the Legislative Council to be taken into consideration on the day on which they are received. It has been standard practice to suspend standing orders in accordance with the above motion for two or three weeks for a number of years. I noticed that in 1994 they were suspended for the last four weeks and in 1992 the last five weeks of sitting so that the government could either deal with urgent business or clean up the notice paper. The matters on the notice paper are not extremely urgent. However, we would like to end the year having passed the bills on the notice paper. For that purpose the government seeks more government time and
[ASSEMBLY - Tuesday, 28 November 2006] 8857 will, therefore, sit late tonight and tomorrow night, and private members’ business will be cancelled. However, at the request of the opposition, and the reason that the motion has been amended, we will take grievances. A reasonable proposition was put that members should have an opportunity to air grievances given the cancellation of private members’ business. The hours this week will be fairly long, but I hope that, with the degree of cooperation that we have enjoyed over the past few weeks, if we sit until midnight or a fraction thereafter and prior to midnight tomorrow, we can finish somewhere between the end of question time and five o’clock on Thursday. Many country members will want to return to their electorates and attend school functions etc. With that cooperation the government can pass as many bills as possible and seek to accommodate members’ interests, albeit I appreciate that that will mean fairly long hours today and tomorrow. The second part of the motion seeks to have matters completed on the same day. The wording is not the usual wording, which is “introduce and proceed”. We will not proceed before the end of the year with any of the bills introduced this week. We will seek to deal with only bills that have been on the notice paper for longer than three weeks and messages from the Legislative Council. Given that the Council is not sitting this week, we will not receive any messages today. The opposition might not be happy about these arrangements, but I appreciate that it is willing to cooperate so that matters can be dealt with expeditiously. The Legislative Council will not sit until next week; therefore, the Legislative Assembly will need to return the following week to deal with any amendments the Legislative Council makes to legislation it receives from this house. They might take only five or 10 minutes, but that sitting will provide the opposition with another question time and potentially the time for a matter of public interest. To provide members with maximum notice, that extra day of sitting is planned for Tuesday, 12 December, commencing at 2.00 pm. MR C.J. BARNETT (Cottesloe) [3.40 pm]: In the interests of progressing with the business on the notice paper, I will not use the full time allocated to me for this debate. However, I cannot speak for the member for Hillarys. Mr R.F. Johnson: I have a few words to say on this. I am not happy about midnight or 12 December. Why didn’t the Leader of the House talk to us about this? Mr C.J. BARNETT: I place on record that I appreciate the government agreeing to permit grievances to be held. Grievances are a useful format that enables members to raise local issues, so that is much appreciated. The opposition will cooperate with the passage of legislation. I hope that the Leader of the House will recognise that and that he will not get silly about it. As long as the house can keep a reasonably consistent program - I recognise that it can sometimes be interrupted - we will endeavour to keep our comments brief and to the point and allow reasonable passage of legislation. Question put and passed. LOCAL GOVERNMENT AMENDMENT BILL 2006 Returned Bill returned from the Council with amendments. FINES LEGISLATION AMENDMENT BILL 2006 Second Reading Resumed from 13 September. MR R.F. JOHNSON (Hillarys) [3.42 pm]: My comments will not be very brief, but I will try to keep them within the hour. This Fines Legislation Amendment Bill is another example of the Attorney General and this Carpenter Labor government going easy on criminals and those in society who do not pay their fines or infringement notices. This bill gives the green light to people who do not want to pay their fines and infringement notices. The loud and clear message from the Attorney General and the Carpenter Labor government is that those people can go ahead with impunity. People who do not pay their fines or infringement notices will certainly not go to prison; they will be treated much more leniently. They will not have to do 40 hours of community-based order work; they will have to do 10. The Attorney General is sending the message to magistrates that he would obviously prefer to see people being given only 10 hours of community-based work rather than the previous 40 hours. The reason is that the Attorney General knows that at least 40 to 60 per cent of people who are given those orders never complete them. He also knows that the vast majority of those people do not start those orders. What is happening? We are seeing a watering down of the justice system in Western Australia. I will give another example of the justice system being watered down. A report dealing with infringements for the possession of cannabis was handed down last week. This government has decriminalised cannabis. It is soft on crime and soft on drugs. If people get caught with cannabis, the most they get is an infringement notice, but they will not have to pay it because this government will not insist on it. They do not even have to attend the stipulated educational lessons. They will get away with it with impunity. This government has given people the
8858 [ASSEMBLY - Tuesday, 28 November 2006] green light to grow marijuana and puff away at marijuana in cigarettes, pipes and whatever other implements they might use. The government has given the green light to people who are caught by the police doing it, by saying that it will not really do anything at all; people can keep on planting and smoking marijuana. The government will not be too worried about it and will go easy on them. They may get an infringement notice or a fine, but they certainly will not go to prison for it, not even for a short period of time. Why is that? It is because the Attorney General has abolished all prison sentences of six months and less. One would think that some of the people who grow cannabis, and who are technically breaking the law if they grow more than two plants - Mr M.P. Whitely: They are breaking the law if they grow one. Mr R.F. JOHNSON: No, the government has decriminalised it. The member’s government would give them a slap on the wrist for growing two plants per person per household. If there was a big family, they could have a big harvest once or twice a year. What people must not do is grow marijuana by hydroponics. I do not see the logic in that. What is the difference between growing marijuana by hydroponics or growing it in a back garden, in nature’s sun and wind and rain? It does the same harm to people, but this government does not worry about that. The report handed down last week states that 6 813 cannabis infringement notices were issued in the two- year period between April 2004 and March 2006, which is roughly 3 400 for each of the two years. Of the 6 813 cannabis infringement notices that were issued, 3 916 remain unexpiated; that is, almost 60 per cent of infringement notices are being ignored by offenders, who simply do not pay their dues for the penalty. This is a classic case of people who have been given infringement notices having no intention of paying. What will this government do about it? I will tell members. It will do absolutely nothing because it does not give a monkey’s if people grow and smoke marijuana. It sees it as a recreational drug. I am sorry, but members on this side of the house see it as a very dangerous drug. The taking of marijuana not only causes problems but also leads to harder drugs. People driving under the excessive influence of marijuana in recent tragic cases have cost the lives of other people, which is an absolute tragedy. Mr M.J. Cowper: Did you know that under the circumstances to which you have referred cannabis has to be stored by the police even though someone has been given an infringement notice, and because it has not been progressed, it must go for analysis to identify it as being cannabis. The cost of doing that is greater than the infringement fine in the first instance. Mr R.F. JOHNSON: Exactly. It is an absolute catastrophe. If it were not so serious, it would be a sick joke that people of Western Australia must put up with. With 60 per cent of the issued fines being ignored, the claims by Labor that these laws would divert more people into treatment are tenuous. These statistics are further proof that Labor’s policy of being soft on drugs is way off the mark. This is a classic case of this government being soft on crime, soft on drugs, soft on fines and soft on sending anybody to prison. This government would rather do anything than send someone to prison. It would give someone a bag of lollies, thinking maybe that might work. Somebody suggested those sorts of things to try to militate against hooliganism and yobbish behaviour. I do not think they would work with many people. The minister in his second reading speech tried to justify the proposed amendments in this legislation. He said that this legislation would assist people to pay fines while maintaining the integrity of the fine as a sentence. I will show that that is an absolute nonsense and a contradiction, because this legislation does not do that at all. When people commit crimes and go before a magistrate, the fact that they may owe thousands and thousands of dollars in fines is not mentioned. It is not even registered. If they go before the magistrate for a different offence, the fact that they have outstanding fines of thousands and thousands of dollars makes no difference. Most magistrates do not even bother to find out on the computer system how much is owed in unpaid fines by the people appearing before them. There are thousands of people walking around who have unpaid fines and infringement notices. I am told that public transport infringements on trains and buses - predominantly trains - account for the greatest percentage of notices issued. There are thousands of people travelling on our transport system who are not paying their fares. They are issued with infringement notices and they never pay. Under this government, that is okay. That is why there is about $130 million outstanding in unpaid fines and infringement notices, and that amount is increasing rapidly. It was about $112 million three years ago, in 2003. I have the figures. Over two or three years, it has increased to $130-odd million. The government realises that if it does not do something urgently, the figure will escalate and within 12 months or so it will be $150 million. The government does not want to oversee $150 million in unpaid fines and infringement notices; it has to do something. What is the easy option? To write a lot of it off. The government will give these people time to pay. As long as these people agree to pay over a period, the government will give them back their driver’s licence. There will be a greater number of people driving who should not be driving because they lost their licence through unpaid fines and infringement notices. That is the easy option for the government, and it thinks it will save money at the same time. The government thinks that if it does not have to send people to prison, it can save on prison costs, which are about $240 a day for each prisoner. I would like to know if that $240 is for a maximum-security, medium-security or minimum-security prison. I cannot imagine that it costs $240 a day to put someone in a minimum-security prison. If it does, the government really needs to look at economies of scale
[ASSEMBLY - Tuesday, 28 November 2006] 8859 and find out if it is getting value for money. Many people who have not paid their fines or infringements should go to minimum-security prisons, and not to Casuarina Prison or even the medium-security prisons. If people are not going to pay their fines, if they are simply going to poke their fingers up at the government and the law- abiding people of Western Australia, let them spend some time in one of our minimum-security prisons. Take them away from their families, from their local pubs and from opportunities to create more crime. Some of the 60-odd people whose details I have in this file - they comprise only the offenders who appeared before a magistrate over a two-day period - have committed all sorts of offences. This magistrate actually bothered to find out and record the total amount in unpaid fines for these people. On one day, it came to about $138 000. The approximately 30 people who appeared before the magistrate had accumulated a total of $138 380 in unpaid fines. One group of people fronting up to one magistrate had tucked up behind them $138 000 in unpaid fines and infringements to the Fines Enforcement Registry. The offences were unrelated to the fines; that is, the fines were for offences that were not even related to the cases before the court. I can tell members that the fines did not even figure in those cases. I think that is appalling. The justice system in Western Australia has absolutely gone to pot - if members will excuse the expression - in more ways than one. Pot is a very popular subject with members on the other side; that is why they want to decriminalise it. I am not referring to the pot between one’s navel and chest; it is the pot which people smoke, grow and sell and which causes tragic deaths and dreadful accidents on our roads. This week we will deal with further legislation relating to the tragedy of road rage and other issues, and this legislation is very much linked to that. This legislation will make life even easier for people who are caught growing, cultivating, smoking and selling marijuana, as long as each person in each household has no more than two plants. That means that if there are six adults in a household, 12 plants can be grown without anyone breaking the law, being sent to prison or anything else. Most countries in the world would never tolerate that type of situation. Here in Western Australia, with an easygoing government that is soft on crime and soft on drugs, it is a lay-down misère that people can grow marijuana without getting into trouble or going to prison. As this legislation stands, if the registrar deems it appropriate, an infringement will be cancelled and an offender’s driver’s licence returned if there are family or work-related reasons for doing so. The legislation circumvents the extraordinary driver’s licence. It contradicts the legislation that passed through this house approximately a year ago, if my memory serves me right. The government said it wanted to abolish extraordinary driver’s licences for situations in which people would lose their licence. There are cases in which people have been caught half a dozen times for serious drink-driving offences, and they are still driving. I cannot begin to believe why any magistrate or court would allow back on the road somebody who has been repeatedly caught drink-driving. Never mind their driver’s licence or their vehicle; they should be taken off the roads, because they are a danger to the Western Australian public. They are a danger to themselves, but if they want to kill themselves, that is a choice they make of their own volition. However, the most dreadful situation would be one in which they kill someone or injure someone so badly that he or she can never again lead a normal life. That is the tragedy. The Attorney General needs to look into his heart and mind to ascertain whether this bill is a good piece of legislation. I tell the Attorney General that the opposition will not vote against this legislation. The opposition does not approve of it and certainly does not support it, but we will not vote against it. The opposition thinks that the Attorney General will suffer as a result of this legislation over the next couple of years. I tell the Attorney General that I will make a meal of this issue and that I will make a meal of him at the next election over his soft-on-crime approach. Mr J.A. McGinty: I wouldn’t expect anything less! Mr R.F. JOHNSON: The Attorney General knows what they say; if one knows what to expect, one will not be disappointed! That will certainly be the case, because I will highlight, in every detail, exactly where the Attorney General has displayed his soft-on-crime approach. He has used his position as Attorney General to aid and abet criminals to keep out of jail. The Attorney General has a penchant for trying to get criminals out of jail, unless they are serious sex offenders. I agree that the Attorney General tries to keep serious sex offenders in jail, and he has my support for that. However, the Attorney General does not want criminals of any other description to serve a day longer in prison than is necessary. If that is a purely economic consideration, the Attorney General should hang his head in shame. The public does not mind paying extra in taxes if that will keep criminals off the streets and in jail. In New South Wales or Victoria, a trial of doubling sentences for burglary offences resulted in a 50 per cent reduction in the crime rate. Why? It is a simple fact; if criminals are in prison, they cannot break into people’s houses. I will have a field day with the Attorney General and his government at the next election. I am sure that he will again come up with some strong rhetoric, but by the time it is introduced to Parliament it will have been watered down. The Attorney General said in his second reading speech that the legislation would lead to a reduction in the number of people going to prison for fine defaulting. He said that quite unashamedly. I do not understand that. I am not talking about an infringement notice for not paying a fare on a train; I am talking about fines. The Attorney General says the legislation will reduce the number of people who are sent to prison for defaulting on
8860 [ASSEMBLY - Tuesday, 28 November 2006] paying their fines. They should go to prison if it is serious enough. They should go to prison if they are going to thumb their nose at the government and say, “Go to hell, I am not paying the fine.” The Attorney General is concerned that people are being sent to prison for fine defaulting. He has a different concern from members on this side of the house. I am concerned that people are not going to prison for refusing to pay their fines. Some people are racking up unpaid fines of anything up to $32 000. A person defaulted on a $32 000 fine, and yet the Attorney General still does not want that person to go to prison. I have an example of a person who owes $20 000. When the magistrate tried to send the person to prison for seven months on other unrelated charges, notwithstanding that he owed $20 000 in unpaid fines, the Aboriginal Legal Service appealed to the Supreme Court and the Supreme Court, in its wisdom, decided to fine him again, put him on a work-based order and then let him back onto the streets again. For goodness sake! This is a disgraceful situation that the Attorney General should be addressing, as the first law officer of this state. The Attorney General said in his second reading speech that imprisonment for a fine default is a contributing factor to the over-representation of Aboriginal people in prison. What a simplistic statement to make. As I understand it, the prison population is made up of about 40 per cent of Aboriginal people. That is a tragedy. It should not be that high. The question must be asked: are they committing more crimes per capita than non- indigenous people? I suggest that they must be, otherwise they would not be represented in such high numbers. Perhaps that is another area that the Attorney General should look at, rather than trying to keep out of prison the people who commit these offences. The Attorney General’s view is that prison should be reserved for serious offenders. He does not say what serious offenders are. He does not classify them. I assume that the Attorney General means murderers, sex offenders, serious sex offenders, paedophiles, armed robbers, people who inflict violence against others, people who are committed for aggravated actual bodily harm and grievous bodily harm, and those types of sentences. They are serious sentences. Many other sentences are serious but do not necessarily result in the offender having to go to a maximum security prison. The ludicrous situation that exists currently is that people end up going to prison for committing white-collar crimes. First they go to Casuarina Prison. That is a nonsense. It must cost more to send people to that prison. The white-collar criminals are not a danger to the public but they have committed some serious white-collar crimes, such as fraud and various other things. They deserve to go to prison. However, they must be put in the appropriate prison so that the really bad people in society, who are the worst dregs of society and who commit the worst crimes, are sent to the maximum security prisons. The Attorney General said also that the community benefits from persons with unpaid fines meeting their obligations through either paying the fines or completing a work development order. The Attorney General knows that at least half of them will not do it. Another interesting point is the rounding-down principle that will apply in calculating the length of time a prisoner serves in prison. Currently a prisoner is required to serve an additional day for any excess or rounded-up period after the number of full days due has been calculated. Therefore, a person who has been fined $150 will spend one day in jail, not two days. Not many people owe $152. Anybody who owes $152 can be given another form of punishment, such as a community-based order. I am not suggesting somebody should be sent to prison for owing $152. People who owe many hundreds, many thousands or many tens of thousands of dollars should go to prison. By this legislation, the Attorney General is basically condoning people who have racked up thousands of dollars worth of unpaid fines. This is a very interesting point. These amendments will allow periods of imprisonment for defaulting on a fine to be served concurrently with sentences for other offences. If a person commits an armed robbery, sexually assaults another person, bashes somebody, commits a violent assault, is convicted as a paedophile, breaks into somebody’s house and steals another person’s belongings, whether or not the residents are in occupation - a person probably would not be sentenced to prison for committing the latter offence under the current judiciary - that person would go to prison for committing any of those offences if he was found guilty. What does this government propose: that people will go to prison for those offences but they will be let off all the unpaid fines that they have accumulated. A prison sentence will be served concurrently with the sentence for having committed those other offences. Mr M.J. Cowper: That is how it is now. Mr R.F. JOHNSON: My view is that people should do extra time. Mr M.J. Cowper: Cumulative. Mr R.F. JOHNSON: Exactly. My very good friend and colleague, the member for Murray, knows the dregs of society because he has had to arrest some of the worst people in Western Australia in his former career. If they are to be sent to prison for committing serious crimes and if they owe a few thousand dollars or whatever in unpaid fines, they should be kept there longer. They should not be let out on parole. We should not calculate the amount the offender owes in unpaid fines and infringements, equate that to imprisonment for 30 days, 50 days, 90 days or whatever, and provide that the offender will not have to serve that time in addition to the sentence that
[ASSEMBLY - Tuesday, 28 November 2006] 8861 the court hands down for the other offences because he will be allowed to serve both sentences at the same time. Does that mean that the offender is disadvantaged by serving the time concurrently? Mr J.B. D’Orazio: You are not serious, are you? Mr R.F. JOHNSON: Yes. Mr J.B. D’Orazio: Are you saying that a person who commits five crimes of murder, rape and forgery must serve each of those sentences after having finished serving the first sentence? Mr R.F. Johnson: I have never said that. Mr J.B. D’Orazio: That is exactly what you are saying. Mr R.F. JOHNSON: The problem is the member for Ballajura swans in and out of the chamber and hears only half the debate. There is an old proverb in my house: never show a fool or a wife an unfinished job, because all they will do is criticise it halfway through. I said that if a person has been convicted of a serious offence, such as burglary, a violent attack or aggravated or sexual assault - these days offenders do not get sentenced for long; they should get more - and is sentenced to 10 years’ imprisonment, but still owes $5 000 or $10 000 in unpaid fines that are not related to that offence, he should serve extra time for the fines he never bothered to pay when he was out roaming the streets. Mr J.B. D’Orazio: That is the exact point I am making to you. A person can receive a concurrent sentence for five different crimes, but not for a fine; it is ridiculous. Mr R.F. Johnson: Is the member going soft on criminals too? He is not part of the government any more, I am sorry to say from his point of view. However, the member still thinks like the Labor government. It brainwashed the member when he was a member of the government. If someone were sentenced to imprisonment for nine months or 12 months for having committed what is deemed to be a serious offence - I am not talking about murder, but about breaking into somebody’s house - Mr M.J. Cowper: Stealing a motor car. Mr R.F. JOHNSON: A person may have stolen an accumulation of motor cars. He may have perhaps done it half a dozen times. That person will receive only one sentence for the half a dozen times he committed that offence. I am saying that if that person owes $2 000 in fines, the member for Ballajura will be quite happy if that person does not serve one extra day on the prison sentence that was handed down. I am saying that he should serve extra time; otherwise we are sending a green light to those people who commit crimes in our society that they can rack up their unpaid fines and not worry about it. When they are caught, because they probably will be at some stage, they will get away with it. They will not have to pay; the fines will be expunged because they will be considered to be paid as a result of the time that those people spend in prison for committing those other serious offences. If the member for Ballajura agrees with that, I am sorry; I thought he was a bit stronger on law and order than that. Mr J.B. D’Orazio: I am. Mr R.F. JOHNSON: I thought he was a friend of the people, not a friend of the criminals. Mr J.B. D’Orazio: I am. Mr R.F. JOHNSON: Then he will agree with what I am saying. Mr J.B. D’Orazio: No, I don’t. Mr R.F. JOHNSON: In that case, I am sorry; the member is not a friend of the people. He should talk to members of the general public of Western Australia and ask them whether they think that if somebody owes a few thousand dollars in fines and is given a sentence of 12 months for committing other serious offences not related to the unpaid fines, that person should serve a bit longer in prison because he has not paid those fines. I think the member would find that the vast majority would say, “Absolutely. I would have thought that would be done anyway.” It is because members of the public do not know what goes on. The general public has no idea what goes on, my friend. If the member stands by that system, I am sorry; my friend has gone down in my estimation. I put his integrity on a higher level than that. I put his comments on law and order on a high level - higher than that of the Attorney General. We know he is weak on crime. Mr J.A. McGinty: Steady on. Mr R.F. JOHNSON: We know the Attorney General is weak on crime. Mr J.B. D’Orazio: What do you want? Mr R.F. JOHNSON: We would not get what I want, my friend. However, I am happy to meet the member halfway.
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Mr J.B. D’Orazio: Okay. Mr R.F. JOHNSON: We should not write off the fines that people have clocked up for committing offences and simply say that they do not have to bother to pay those because they will be in prison for 12 months anyway and be let out after about eight months; therefore, we will deem as paid all those unpaid fines that they owed because of the time that they spent in prison on those other, unrelated, offences. If the member thinks that is justice, I am sorry, he has a very strange view of justice. It is a different view of justice from the one that I have, the one that people on this side of the house have and the one that the vast majority of Western Australians have - absolutely different. I am happy that the bill will enable the WA Police to access the database of the Fines Enforcement Registry, because this will assist police officers in the identification of persons with outstanding fines and/or infringements. However, what will the police do when they find that somebody they have just pulled up for committing a road traffic offence, if they bother to, is on the database of the Fines Enforcement Registry? They cannot charge that person for not paying his fine because a warrant is not out for the person. Although it will identify perhaps that these people are not 100 per cent good people because they committed offences and have not paid their fines, I cannot really see the benefits. Perhaps the Attorney General, in his response, will tell me exactly what the benefits of that will be, because I am very interested from the point of view of the other hat that I wear, which is the police hat. I am sure the Attorney General’s advisers are making notes, and they will give him the notes and the response so that he can tell me. The next one is the doozey. This is the area in which the government is getting softer and softer. The minimum number of hours that a court can set for a community service order is 40 at the moment. In other words, that would be a normal working week for most people who go to work to earn a living. That is if the court bothers to issue a CSO. The court would issue a CSO only if the person had committed a crime. The Attorney General says that in instances in which the court has considered that this is too harsh a penalty for an offence, the court has had no option but to impose a fine. Therefore, on the one hand, the court may issue a 40-hour CSO, which is the minimum that can be issued. I believe that is unreasonable if somebody has committed a crime. There are many weaker options than that. That is not the weakest option. The court can give people a suspended sentence, put them on probation or send them to mediation. It can do all sorts of things before it even gets to a CSO. It must be pretty serious for a court to issue a community service order of 40 hours. What does the Attorney General want to do, because he knows that people are not completing them? He knows that a lot of people are not even starting the blooming things. He is going to reduce the minimum number of hours to 10, so it is just like one long day - not as long a day as my colleagues in this place work, but it will be one long day compared with that of normal working people who perhaps work eight hours a day. Big deal! That is another weakness and another watering down of our justice system. The Attorney General will actually pay these people soon. I have problems with some parts of the bill, and I will certainly deal with those when we reach consideration in detail. Some provisions give the registrar of the Fines Enforcement Registry the authority to either not impose a licence suspension or cancel a licence suspension on an offender who enters into a time-to-pay arrangement, specifically on the grounds of medical necessity or employment reasons. Maybe I am getting too hard in my old age, but I often think that if people commit crimes and are fined for committing those crimes, they must pay their dues, no matter what the situation is. If those people will not pay those fines, under the present legislation they lose their driving licence. So be it. When will this government start to realise that people must be taught to behave properly and responsibly and to obey the law? I will answer that for the Attorney General. The answer is never. There are many considerations in this legislation. However, I will refer once again to one issue that I found very interesting. I will mention some of the people who appeared before a magistrate on one day. I will not name those people, but I will tell the house about the sorts of amounts that they had racked up in unpaid fines. One person appeared before a magistrate on four counts of receiving and one count of possession of a firearm with circumstances of aggravation. That person owed more than $3 000 in unpaid fines. The magistrate does not take into account that those fines are outstanding, because that matter goes to the Fines Enforcement Registry, and it is up to the registry to deal with it. It is not up to the magistrate to deal with it. As I understand it, this person pleaded guilty, but it did not matter. I do not know what the sentence was for that person. The matter was probably sent to the District Court after that. However, that person owed that amount of money. Another person appeared before the magistrate on a charge of threatening to kill, injure, endanger or harm any person. That is why that person was arrested and charged. That person had $5 000 outstanding in unpaid fines. Another person had $4 954 outstanding. Other amounts outstanding were $5 400; nearly $1 200; almost $5 000; and more than $1 000. The next one is a doozey. This person owed more than $14 000 in unpaid fines and infringement notices. The person had not been sent to prison. The person had almost certainly not completed a community- based order. The person had been charged with numerous counts of stealing and had gone before a magistrate. When that magistrate was dealing with that offender, the magistrate would not have known that that person owed about $14 000. Is that a good system? I do not think it is. There is no penalty. In no way is justice being served
[ASSEMBLY - Tuesday, 28 November 2006] 8863 when people are allowed to owe these sorts of amounts. Some of the other amounts outstanding were $3 400, $1 600, $2 200-odd, $4 500-odd, $8 965, $2 200; $1 400-odd, $8 000-odd, $7 400, $2 300; $1 600-odd, $7 400, $8 400-odd and $13 000. There are some other smaller amounts. The total is about $138 000. Those were the amounts outstanding that came to the notice of one magistrate on one day of sitting. I am happy to go through another day of sitting if members would like, but it is a similar story, so I will not take up the time of the house by doing that. That magistrate on those two days of sitting was appalled that all this money was outstanding, yet no-one was bothering to deal with it. That is why the amount of outstanding fines and infringements has now crept up to over $130 million. I think I have said everything I need to say. We certainly will not be supporting this legislation. Mr J.A. McGinty: I thought you said you would support it. Mr R.F. JOHNSON: No. We will not support it. Mr J.A. McGinty: But you will vote for it? Mr R.F. JOHNSON: No. We will not vote for it. We will not vote against it, but we will not support it. Mr C.J. Barnett: That is very clear! Mr R.F. JOHNSON: There is a subtle difference! We will not divide on it, because - Mr J.A. McGinty: When are you going to get off the fence? Mr R.F. JOHNSON: From a personal perspective, I am happy for the Attorney General to wear this one. Mr J.A. McGinty: You need to take the public interest into account. Mr R.F. JOHNSON: I am taking the public interest into account. Anyone who is interested in this debate can look at Hansard and see the comments I have made. I am telling the Attorney publicly in this chamber that we will not support this legislation. We would not win a division on this legislation anyway, so we will leave it to the Attorney to muddle through with it. This legislation will weaken the justice system in Western Australia. It is a disgrace that the Attorney General is steering this legislation through in this house. The Attorney is sending a disgraceful message to those people in our society who commit crimes. There is an old saying that if people commit the crime, they should do the time. However, not in Western Australia! In Western Australia, people can commit a crime and be fined, but they will not need to pay the fine, and they will not go to prison! That is the new slogan from the Attorney General! I am sure the Attorney will get the criminals’ vote, because anything that will save them money they will vote for. Mr R.C. Kucera: People in prison do not get a vote. Mr R.F. JOHNSON: Not all the criminals are in prison. Mr R.C. Kucera: No. They are in car parks. Mr R.F. JOHNSON: I would not go down that track if I were the member! The member should not start talking about these things, because he might leave himself wide open! God said: come unto me with clean hands. That is what God would be saying to the member for Yokine. Mr T.G. Stephens: I do not remember that! Where is that in the scriptures? Mr R.F. JOHNSON: In other words, the member for Yokine should not make accusations. Unless he is as white as the driven snow - Mr T.G. Stephens: What section of the scriptures is that from? Mr R.F. JOHNSON: It is from the “Johnson Bible”. It is saying that we should avoid hypocrisy. The member may not understand the subtlety of the meaning - Mr T.G. Stephens: I would stick to the authorised version if I were you! Mr R.F. JOHNSON: I am happy to explain it to the member. My colleague, who I believe was going to go into a monastery at one time - Mr T.G. Stephens: No. You have got that wrong. Mr R.F. JOHNSON: That is what I heard. Mr T.G. Stephens: Well, you got it wrong. Mr R.F. JOHNSON: I thought the member was going to be a monk or something. Mr T.G. Stephens: No. It was something much more profound than that. Mr R.F. JOHNSON: What was the member going to be? Mr T.G. Stephens: What was I going to be?
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Mr R.F. JOHNSON: Yes - when the member grows up! What was the member going to be when he grew up? Mr T.G. Stephens: Sorry. I am missing the question. Mr R.F. JOHNSON: What was the member going to be? The member was going to be something in a religious order. Mr T.G. Stephens: Was I? You are telling the story. You have got it all wrong. Mr R.F. JOHNSON: That is what I was told. Mr T.G. Stephens: You have got it all wrong so far. However, this is off the point. You have digressed by your misquoting of the sacred scriptures - Mr R.F. JOHNSON: No. I am just quoting from the “Johnson Bible”, which says that God said: come unto me with clean hands. The meaning of that is that if we want to lay a complaint against someone, we should make sure we have clean hands ourselves - we might have some tomato ketchup on our hands, or something! Mr T.G. Stephens: The thing I have learnt about you is that when you have nothing to say, you become desperate for interjections! Mr R.F. JOHNSON: Not at all. I am just having a bit of fun. I have just said that I have virtually completed my remarks. If the member for Yokine had not interjected on me, I probably would have finished by now. The member for Central Kimberly-Pilbara then interjected on me, and I could not resist - Mr C.J. Barnett: It is nearly Christmas! You can make your Christmas speech now! Mr R.F. JOHNSON: My Christmas speech will come later! As I have said, this is a hotchpotch of legislation. It will not address in any serious way the problem of people who commit offences and are served with an infringement notice. It will do nothing for the decent people in Western Australia. All it will do is reduce the amount of outstanding fines that is on the books. It is creative accounting. These people will probably still be fined, but they will not have to pay, because they will do a deal with the Fines Enforcement Registry and the Department of Justice. They will say they can afford to pay only $2 or $5 a week, so they need time to pay. Therefore, if they owe a couple of thousand dollars, it could go on for years. The Attorney and I both know that people may make two or three payments, but they will then slip away and not make any more payments. It will cost the state a fortune if the Fines Enforcement Registry has to chase up amounts like the ones I have mentioned. The Attorney thinks this system is better than requiring these people to do a day’s work within the justice system. These people could be put in an open or minimum-security prison and be required to do some work. For many of these people that would probably be the first time in their lives that they have done any work. The Attorney is depriving these people of that option. These people should work off their debt to society. Never mind this government; it is this society to which these people owe these debts. The Attorney is just the controller and purveyor of these debts. However, the Attorney does not want to do anything to collect that money. This legislation is a shambles. I hate to say it, but this is one of the worst pieces of legislation I have seen in a long time. I certainly will not recommend to members in my party that they support this legislation. I am more than happy for the Attorney to wear this one. At the next election, we will very much take the Attorney to task on this legislation, and the people of Western Australia will make a decision about whether they think this government, which has a record of being soft on crime and soft on drugs, is worthy to continue to govern this state. I am pretty confident that at the next election the decision of the people of Western Australia will be a resounding no. DR G.G. JACOBS (Roe) [4.29 pm]: Unlike the member for Hillarys, I can see some rationale for this legislation: it will prevent people who are fine defaulters being taken into custody. The view is that they are not criminals in the real sense of the word, but they are using prison resources and the associated justice and police resources. The state of Western Australia must make every effort to make effective and appropriate use of these resources. We know about the much-publicised issue of the dire situation with the police resources in Western Australia. In his second reading speech, the Attorney General said that as a result of this legislation, there will be a reduction in the number of people imprisoned for fine default only, and that the reforms contained in the bill will assist people, in particular those in regional and remote areas - they are a particular concern of mine - in managing their fines and avoiding unnecessary imprisonment. He also said that this is an unjust and unnecessary system. I will recount for members a recent case in which resources have not been used appropriately or effectively. Unlike the member for Hillarys, I will support the bill, conditional on the Attorney General’s response to the points that I will raise in my contribution to the debate today. As the member for Hillarys has said, the legislation is soft. We heard about his concerns with the legislation and the Liberal Party’s concerns with the government’s two-plant policy, the decriminalisation of marijuana and the ability for people to harvest
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2.5 kilograms from each plant in one year. The penalty for an offence results in no more than a slap on the wrist with the magnitude of a parking fine. There is evidence that this government is soft on crime. However, I will recount for members how the system is uncompromising. I recount for members the case of a 44-year-old Esperance music teacher. He is a father of five children and runs a music shop in town. Last Friday night he was arrested after being stopped for having a broken tail-light. I was called at 7.00 am on Saturday because this man was in custody. When the police checked the records after they had apprehended him for having a faulty tail-light while he was taking his children home from the basketball courts on Padbury Street, they found that there was a bench warrant for the arrest of Mr Andrew McGill. He was escorted to the station in the back of a paddy wagon while his 15-year-old son and two of his son’s friends were escorted home in a second paddy wagon. The children were dropped off at Mr McGill’s Sampson Street residence without being handed over to Mrs McGill. Mrs McGill found out later from her son that her husband was in custody at the police station. Mr McGill has faced charges for assault and trespass for three years. The charges resulted from an incident when he tried to reclaim a guitar from his music shop that he had lent, on approval, to a Mr Richard X. Mr McGill went to the residence of Mr X, where Mr X’s partner was in the front yard tending the garden. When Mr McGill said that he wanted to speak to Richard, she told him to go in through the open door where he was practising the guitar. Mr McGill said that he had come to reclaim his guitar, which was valued at about $4 000. A fight ensued and Mr McGill was later admitted to hospital with multiple stab wounds and head and face lacerations, and he required a blood transfusion. Mr X was sent home from the hospital that day unmarked. Mr McGill was charged with assault and trespass. The case has been going on since January 2003 and has not come to resolution. The case has failed to come to court and is continually on remand, mostly because Mr X, even if he is subpoenaed, fails to appear. Every few months a status hearing occurs, and each time Mr McGill has to appear. Mr R.C. Kucera: Are you using the person’s actual name? Mr R.F. Johnson: No. Dr G.G. JACOBS: If the hearing is not in his home town of Esperance, he can appear before the clerk of courts. The member for Yokine should listen to the issue. There is a problem. Friday, 3 November was one of these occasions. The status conference took place in Kalgoorlie with his counsel, while Mr McGill appeared before the clerk of courts, and his attendance was recorded. Documentation was sent to the central court; however, it did not prevent a bench warrant being issued for Andrew’s arrest on 8 November 2006. This warrant led to Mr McGill’s arrest on the night of Friday, 24 November, when he was apprehended for having a faulty tail-light while driving along Padbury Street. Despite all representations to the police that Mr McGill had appeared before the clerk of courts, and documentation was later produced by the clerk of courts, the police acted on the warrant and Mr McGill remained in custody Friday, Saturday and Sunday nights, despite documented evidence that he had not breached any of the conditions of his bail. It gets worse. It was maintained that the local station was not able to hold the prisoner for more than 24 hours, so Mr McGill was to be transferred to the Kalgoorlie regional prison in the back of the same paddy wagon that he had travelled in when he was apprehended on Friday, 24 November. The trip was 450 kilometres. When the escorting paddy wagon arrived in Norseman, which is the changeover point with the two police in the vehicle from Kalgoorlie, the documentation from the clerk of courts was sent to the Norseman Police Station. It was evidence that Mr McGill had appeared before the clerk of courts on 3 November at 10.20 am. The Norseman police decided to release him. However, some 15 minutes later, the Director of Public Prosecutions instructed that the warrant could be revoked only by a judge. The police said to Mr McGill that he was free and gave him his footwear and wallet and other personal items. He told them that he lived 200 kilometres south of Norseman. They said that that was all right and told him to jump in the front of the paddy wagon with them and they would take him back to Esperance as they had to go back anyway. During the 10 minutes that it took them to refuel the vehicle, documentation was sent to the DPP and the reply from the DPP was that the police were not to let him go and were to rearrest him. They said sorry to Mr McGill, took his possessions from him and told him to get in the back of the paddy wagon so that they could take him to Kalgoorlie. After a Saturday night in the Kalgoorlie regional prison, in contact I suggest with some undesirable people who probably had had too much to drink and who were disorderly, he finally appeared before a judge on Monday at about 11.30 am. At that time the judge commented to Mr McGill that there had been some mistake in the paperwork and that there was evidence that he did not breach his appearance to the clerk of courts. The judge said that he had the documentation with him and that Mr McGill was free to go. The judge also made a very interesting comment before Mr McGill left the court that he and his legal counsel would no doubt have some case for compensation for these events. Those events required this man to be unlawfully and wrongfully in custody for 90 hours and to be transported about 450 kilometres in the back of a paddy wagon. After facing the judge who dismissed the case and told him that he was free to go, Mr McGill had to find his own way back to Esperance.
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If we want to talk about resources for prisoners, we should talk about very valuable resources for police and justice. Let us make them appropriate and effective. I suggest to the Attorney General and to the Minister for Police and Emergency Services that the events that occurred this past weekend were neither appropriate nor effective. I put it to the Attorney General and to the Minister for Police and Emergency Services that the justice system in this case was dysfunctional. Firstly, it failed to prevent the wrongful issue of the bench warrant despite the clerk of courts faxing the documentation to the Central Law Courts. It did not prevent the issue of a bench warrant for this man’s arrest. Secondly, the bench warrant was issued for his arrest on 8 November. That man was apprehended over a minor traffic offence; that is, a dud red light on the left of his vehicle. It took two and a half to three weeks to expedite that bench warrant. Unfortunately, by the time the warrant was issued on 24 November, it was Friday night; therefore, when we sought revocation and some clarification on the alleged breach, we were unable to access the appropriate judge. It appeared that a magistrate was unable to perform the revocation. The warrant could not be revoked and we could not access a judge. That represents a systemic failure, especially in remote and regional areas. That system failed to bring Mr McGill’s charges to resolution and failed to bring the matter to some finality. This matter has dragged on for three years. Every two to three months, when he must appear at a statute conference, he pays $500 for his legal counsel. The issuing of the warrant led to the events of Friday, 24 November. The system failed to provide a judicial consultation process out of hours and on weekends to resolve these injustices. I am disappointed that the Minister for Police and Emergency Services is not here because I want to make a couple of points about the system. I hold the police in the highest regard. As a general practitioner, I have dealt with them over 25 years and I have found them to be professional and fair. There was no ability for the police to show discretion or investigate the details of the case in this regional setting. We were not dealing with a mass murderer. Most bench warrants from the District Court are issued because a person has not appeared or has allegedly not appeared. No attempt was made to contact a higher authority to find a practical solution. Thirdly, a hard-hearted, concrete commitment to a 24-hour rule exists for the transfer of prisoners - in this case, the prisoner was Mr McGill - when video surveillance, which had been recently upgraded, was available in that facility. As a result of that system, this man was forced to travel 450 kilometres in the back of a paddy wagon. If we are concerned about police resources, it should be noted that that exercise involved two policemen leaving the local station to escort Mr McGill to Norseman. It also involved two policemen from Kalgoorlie Police Station travelling to Norseman on a Saturday. Four policemen were taken out of the system. That is not an effective use of our much-needed and overstrained police resources. Mr M.J. Cowper: Why didn’t they get a couple of justices and convene a court at Esperance? Dr G.G. JACOBS: The advice I had from the sergeant was that a bench warrant was out for Mr McGill’s arrest and he was not able to question the reason for that arrest. That is fine. However, the only way the warrant could be revoked was by a judge - full stop. When I asked about a duty magistrate, the answer was no. I also asked about a higher-ranked inspector to talk about the operational matters of this case in a relatively isolated region. Fourthly, I believe there is reason to be concerned about the mishandling of minors once custody of the arrested father had occurred. I believe that the guardianship responsibility to those children was breached. Fifthly, the police failed to transport the prisoner safely and restrained by seatbelts. It is not difficult to envisage, heaven forbid, the impact an accident would have on a person sitting in the back of the cage that essentially sits on the back of a utility. It could have resulted in severe injury. Sixthly, the police failed to provide appropriate and timely transport over the 450 to 500 kilometres back to the prisoner’s home town after he had been released from the courts. As the member for Hillarys said, the Attorney General is the first law officer of the state. I support the content and sentiment of this bill to make resources more effective and more appropriate. However, sadly, Mr McGill was let down. I will support this bill if the Attorney General makes some effort to attend to these systemic problems. I believe Mr McGill’s experience is not the first, and if we do not correct these problems, it will not be the last. [Member’s time extended.] Dr G.G. JACOBS: I will support the bill if the Attorney General apologises to Mr McGill and gives an undertaking to look into the systemic problems in the justice and police systems that let down Mr McGill and others. I suggest that there is a case for making an ex gratia compensation payment to Mr McGill for his pain and suffering, for his 90 hours in custody, for his travelling in the back of a paddy wagon for 450 kilometres, and for his having to find his way back home as a result of the dysfunctional system severely letting him down. I would like the Attorney General to give an undertaking that he will seriously look into these issues. The man was let down because the system allowed a bench warrant to be issued when it should not have been, and it was then not able to cope in regional Western Australia. I understand that the law is the law and must be upheld, but dysfunctional justice and police systems have let down this man. As opposed to most of my
[ASSEMBLY - Tuesday, 28 November 2006] 8867 colleagues, I would probably support this legislation if the government were serious about making police and justice resources appropriate and effective and did not want a repeat of the Andrew McGill scenario. MR M.J. COWPER (Murray) [4.51 pm]: The Fines Enforcement Registry was established in 1994 under the Fines, Penalties and Infringement Notices Enforcement Act, which was proclaimed in that year under a Liberal government. At the time I was the officer in charge of Denmark police station and also a clerk of the Court of Petty Sessions. During the transition between the old regime and the current system, a series of educational programs were conducted as part of the rollout for the Fines Enforcement Registry and how it would apply. If someone went to court under the old system, he would be fined $100, for example. The rule of thumb was that if he defaulted on the payment of that fine, about $25 a day would be added, depending on the good humour of the magistrate at the time. He would be given one or two weeks to pay the $100 fine. If he failed to pay the fine, the clerk of the Court of Petty Sessions would issue a warrant 69, which was signed by a justice. The warrant empowered police officers to either arrest the person or get the money; in fact, the warrant 69 was commonly referred to by officers as the body or the money warrant. I was disappointed when I heard the case that the member for Roe put before the house today. I am sure that it will be properly investigated and examined to see where the system appears to have gone wrong. Under the old regime of the money or the body warrant, we would knock on the door and ask for $100 plus costs, which could be $120, or ask the person to fetch his toothbrush. When it came to the crunch, people would often come forward with the money, which they would borrow from someone or find somewhere. The government that decided to introduce the legislation did so with the right intention. Some aspects of the act certainly have merit. However, as it rolled out over a period of time, it proved a nightmare. Western Australia has in the vicinity of $130 million of outstanding fines. At the last count in the vicinity of 15 000 motorists were driving on Western Australian roads without a driver’s licence. The whole idea of the Fines Enforcement Registry was to streamline the process and to take the onus off police officers to be debt collectors. It was also supposed to ease the burden on the prison system. In reality, the result has proved to be a long way from the intention. Police spend more time now trying to track whether people have a driver’s licence. They spend an inordinate amount of time trying to prove whether a person, at the time of driving a motor vehicle, did or did not know he was the holder of a valid driver’s licence. Offenders who are well versed in the system have on occasions played to their best advantage offences that were unable to be proved by police. This has tied up police officers who have tried to gather evidence for the huge number of people in Western Australia who do not currently have a driver’s licence. The old system made provision for the issue of a warrant 62, which exists today. If one person owes money to another, the other person can take him to court and make a complaint. A warrant of execution against goods will be issued, which means that a bailiff can seize goods to the value of the outstanding debt, as adjudicated by the court. When the Fines Enforcement Registry was first created, the act provided that goods could be seized by the courts in lieu of the Fines Enforcement Registry. I asked who would be responsible for enforcing a warrant 62 against property. The answer was that a bailiff would be responsible. I thought that would mean a lot of work for bailiffs. Whether it has fallen off the radar screen I am not sure, but as it has transpired this option may work in concert with the Fines Enforcement Registry and the option of taking drivers’ licences away. I acknowledge that under the old regime the warrant 69 also had some problems, particularly in remote Aboriginal communities where I worked. Many fine defaulters would work off two, three or four days of default in the local lockup. A number of different inquiries have been held, including the Royal Commission into Aboriginal Deaths in Custody. They made certain recommendations, which, I suspect, also added weight to the current Fines Enforcement Registry. No-one wants to see anybody incarcerated when they need not be. There is a good case for revisiting this legislation. It may well be a very good topic for referral to a committee to look at various options. I believe that with the current regime, the amendments before the house today are only cosmetic and will not go to the heart of the problems that we currently face. The legislation will not result in a great reduction in the $130 million in fines that is currently outstanding, or in reducing the number of people on our roads who are driving without a driver’s licence. It may cause a nominal impact in the short term, but I do not believe it is a panacea that will fix the ailments of the system. I do not think that the Attorney General even intends it to be a panacea; it is the best option that has been presented at this time. I would be encouraged if this bill were referred to a committee in the not too distant future to examine the various systems that have been established around Australia and perhaps even overseas. Mr R.C. Kucera: Are you looking for a trip? Mr M.J. COWPER: I had in mind the member for Yokine. He could get away from his electorate and swan around the world for his swan song. It would be a great committee for the member to chair. It would be a good thing for him. The people who are accustomed to the system are using it to their advantage. That culture has resulted in $130 million of outstanding fines. That is a huge amount of money. I see close similarities between that
8868 [ASSEMBLY - Tuesday, 28 November 2006] situation and the marketing of the sale of products in society. Once upon a time my grandmother, whose name was Pearl Wilson, used to give me pearls of wisdom. She used to say that if a penny was saved, the pounds would come. She also said that if people bought something, they should pay cash for it. They should never buy something on the never-never. The idea of hire purchase has never been attractive to me. I have only ever bought my house with a bank loan, as many people do unless they have a significant benefactor. Many people today buy their household appliances from companies that offer an interest-free period of 12 months, two years or three years without the need for a down payment. How on earth do those offers become viable? They become viable because after the interest-free period, the people who have not paid the minimum payment required under the contract find themselves in the difficult situation of paying an excessive interest rate to fulfil the contract. A television, for example, might cost more in the long run than it would have cost to buy outright at the time. That is what is happening with people’s fines. People are putting off paying the fines and are accumulating them. We have heard the member for Hillarys speak about the enormous fines that are outstanding. We have created a bad culture. I am not blaming the government. I am probably pointing the finger back to 1994 when the legislation was passed. The members at the time thought they were acting in the best interests of the state. However, in retrospect I think they got it wrong. The Fines Enforcement Registry must be tossed out, the legislation torn up and we must start again. That is not the Liberal Party’s view; it is my personal view. Mr J.B. D’Orazio: What is the answer? Mr M.J. COWPER: To be honest, I do not know what the answer is. I will not proffer that we should do this or that. The old system of warrant 59s had its problems, and we certainly cannot go back to those days. I would like to see a committee formed and for it to come up with a viable option contrary to the system of today. We are debating this particular bill. For the sake of the Attorney General, this bill will pass unopposed. However, today I will register my concern about the Fines Enforcement Registry because it has some inherent ailments that should be examined in the future. Earlier I talked about a culture whereby people buy on the never- never. The non-payment of fines is like paying fines on the never-never. The member for Hillarys spoke about offences that are served either concurrently or accumulatively. I will clarify a point he made. If someone breaks into a home, deprives someone of their liberty and commits a sexual assault, three separate offences are deemed to have been committed in the commission of that offence. Therefore, the offences are part of the same act. Usually - not always - the court will impose a penalty for committing those three offences, and the sentence is served cumulatively. If the offender commits those offences at another location a week later, it is not considered to be a continuation of the same offence. The later offences are regarded as a second offence, because they were committed at a different time, and the sentences are served concurrently. The point that the member for Hillarys made was that if someone is serving 10 years in jail for committing those three offences, and the prisoner has $10 000 worth of fines outstanding, the sentences for defaulting on the fine and for committing the other offences should be served cumulatively rather than concurrently. He has a good argument. Mr J.B. D’Orazio: Why should that be the case? Mr M.J. COWPER: I will give the member another example that has happened on several occasions and is well documented. The member for Yokine will remember this. I used to work at the East Perth lockup. For every day a person served in custody, $25 would be reduced from his fine. Therefore, people who were put in the lockup a minute before midnight were deemed to have served one day and 10 minutes past midnight was deemed to be two days. Under the old regime, people rorted the system. If a person had to serve two days for defaulting on a parking ticket or a speeding ticket, he would arrange to be arrested and put through the book at 10 minutes before midnight, and at 10 minutes past midnight it was another day. Therefore, he was deemed to have served two days in custody. That satisfied the terms of the warrant, and the next day he was free to walk out the door. Mr J.B. D’Orazio: You still have not answered the question. Why would you want someone to not serve his sentences concurrently? If the person had committed two murders, those sentences would be served concurrently but if a person had an outstanding fine, he would finish one term and then finish the rest of the sentence. That is just crazy. Mr M.J. COWPER: I was trying to clarify a point on behalf of the member for Hillarys. I probably should not do that, but it is important to raise the point. I do not necessarily support that view, but he has a very good case and it should be listened to. We have a culture whereby people are rorting the system because they can, and they have become very smart at doing it. The member for Yokine knows a good crook. A good crook works out the system and uses it to his advantage. Mr R.C. Kucera: I don’t know any good crooks, but I know plenty of bad crooks.
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Mr M.J. COWPER: The member knows what I am saying. I am not trying to be silly or smart. Plenty of people know how to use the system. Mr R.F. Johnson: Somebody might owe $20 000 in unpaid fines and infringement notices. He will appear before a magistrate and the magistrate will fine him another $500 or $1 000 for the offences he is charged with. The member for Ballajura is saying that he should not be fined another $1 000 because he already has $20 000 outstanding in fines. The member is saying that the offender should not be fined anything and that the extra fine should be knocked off the $20 000 fine. There are historic cases whereby people have racked up $20 000 worth of fines and have not paid a cent towards them, and who have been arrested for committing a burglary and sent to prison. What the member for Ballajura and the government are saying is that the sentence for defaulting on the payment of the fine should be served concurrently. They are saying that the fines should get wiped out because the offender is serving a two-year or three-year sentence for burglary. That is wrong, wrong, wrong. Mr M.J. COWPER: I thank the member. [Member’s time extended.] Mr M.J. COWPER: When this legislation was first introduced into this place, I suspect that the members did not anticipate the number of people who are driving on our roads without a driver’s licence or the number of people who have outstanding debts that total $130 million. Mr R.C. Kucera: Do some research on the second reading speeches. Mr M.J. COWPER: In their wildest dreams, they would not have thought it would total $130 million. Mr R.C. Kucera: Imagine the amount it would have been if they had not introduced the legislation. Mr M.J. COWPER: I am not here to extol the virtues of the previous system. I have said that we can never go back to the old system. We must move on to a better system. I have even dobbed in the member for Yokine to play a lead role to find out the answer. I am not proffering advice as to what that should or should not be; I am saying that the current system cannot be dressed up. If one puts a silk shirt on a monkey, it is still a monkey. I feel sorry for the people at the Fines Enforcement Registry. They must have an absolute sea of paperwork or a fantastic computer system. We have already heard from the member for Roe about how there are glitches and gremlins in the system. A classic example is sitting opposite - I had almost forgotten about the member for Ballajura! Mr J.B. D’Orazio: You have a short memory! Mr M.J. COWPER: I am a forgiving person! Mr R.F. Johnson: I can’t believe he’s supporting this legislation! Mr J.B. D’Orazio: Wait till I finish! Mr M.J. COWPER: I am sure that the member will be prompted to speak with great passion about the fact that from time to time there are glitches in the system. I imagine that there are many thousands of them. At the end of the day, it is a very complex means by which to deal with various people. People will be offered extensions of time in which to pay their fines; it is a never-never system of paying bills. There are also options to perform community service work. I can tell members that in remote areas it is pretty hard to get people to work. In fact, as many people are needed to supervise as to perform the job. As an example, when I served with the police in Broome, people had to be employed to supervise community service work. There were times when community service work was not being performed, but supervisors still had to be employed in the interim. It cost more to supervise the work than to actually get the work done. I believe that community service work is in order in certain circumstances. Under the juvenile justice system there is an option for first-time offenders - particularly juveniles - to do restitution work; perhaps gardening at a victim’s house. I think that is a good option that has been proven to work. However, it is indicative of where we are with the justice system that magistrates are always looking for various options in sentencing and ways to better deal with offences before the court. I honestly believe that over time there has been a softening in the approach to the law. It has been softened up by excessive consideration for issues relating to various interested parties. The justice system is being pulverised and softened up from all sides. Without being flippant, I believe that the government has made it clear that it does not want as many people in jail. In doing so, the government will create a greater problem in the long run, because at the end of the day there will be the development of a culture in which people do not observe the rules as they are set down; they will manipulate them to suit themselves. It will result in a situation in which it all seems to get lost in the wash. I would like the minister to speak to a number of clauses in the bill. A cursory glance through the bill reveals amendments and consequential amendments to provisions concerning dishonoured cheques and so on. There are obviously inherent problems in the system and I acknowledge that there is an attempt to address them through these provisions. I acknowledge that this bill is an attempt to fix the current system. I do not believe that it will
8870 [ASSEMBLY - Tuesday, 28 November 2006] be the cure-all, the panacea, that it is expected to be. We should not throw the baby out with the bathwater, but a serious examination of the future is necessary, and I suggest that that should take place in a bipartisan way. Mr R.F. Johnson interjected. Mr M.J. COWPER: I think there is some acknowledgement from those opposite that the system is not without its faults and inherent problems. I am keen to hear the member for Ballajura explain some of the inherent problems he has encountered in his life experience of this type of legislation. There are gremlins in the system; there have been, from time to time, examples as described by the member for Roe and as experienced by the member for Ballajura and many, many others. Many people have, from time to time, found themselves in difficulty. I look forward to comments from members opposite and the minister. MR J.B. D’ORAZIO (Ballajura) [5.15 pm]: I notice that the Registrar of the Fines Enforcement Registry is in the gallery; I never do things behind people’s back, so I will make sure that my comments are very carefully worded. As members are aware, my case is still before the Supreme Court. I had hoped it would not be at this time, because I might otherwise have made some more comments. However, I will highlight some issues. This legislation should be supported. I initiated this legislation when I was minister. It was introduced by the present minister, the Attorney General. However, I remind the house that when I took over the justice portfolio, this was an area that particularly concerned me. There were 167 people in jail for not paying fines. The government got them out of jail through administrative processes. Mr R.F. Johnson: How did you do that? What do you mean by “administrative processes”? It sounds like a bureaucratic term. Mr J.B. D’ORAZIO: The government did this by ensuring that these people paid their debt to society in the way in which they were meant to pay - by coming to arrangements to work off their debts or to pay a certain amount a week. The government initiated a number of other changes, including a provision for people to organise their payment arrangements when they received their fine at court. It was never the intention of this legislation or the regulations for people who had been fined to end up in jail. It is a tragedy when people who are fined end up in jail. The Parliament needs to do everything it can to stop that from happening. There will always be recalcitrants who do not get the message and who will not abide by the process, so imprisonment needs to remain an option at the end of the process. However, the Parliament, the minister and the government must exhaust every possible avenue to ensure that people do not end up in the prison system. This government has achieved that. An astonishing fact that was clearly highlighted to me when I was minister was that some of these people had been served numerous fines over many years, but that the justice system had not given them sufficient attention to ensure they did not end up in the prison system. Under the current prison system, they will work their fines off at the rate of $150 a day. It costs the government $300 a day to keep them in prison. That does not serve anyone’s interests. Mr R.F. Johnson: It’s $240. Mr J.B. D’ORAZIO: No; the rate per day fluctuates. The real rate is somewhere between $250 and $350. However, whatever the rate, it is much more than $150 a day, which is the rate at which the fine is worked off. Whose interest is served by putting these people in jail? Does it do their families any good? An achievement that I consider to be a badge of honour is the fact that when I left this portfolio, I could honestly say that 150-odd families had family members out of prison and at home because of decisions the government made. I make no bones about the fact that this is something members should support. I find it astonishing that the member for Hillarys and the member for Murray commented that imprisonment penalties for unpaid fines should be served at the end of a prisoner’s sentence. A person could serve a 20-year sentence for murder and then be kept in jail for another three months because he has outstanding fines. That is just ridiculous. If that person had committed a murder, rape, car theft, forgery or a number of other offences, the sentences would all be served concurrently, and at the end of the 20-year sentence that person would be free. However, if he had outstanding fines, the sentence would not be served concurrently. That is absolute rubbish and this legislation corrects that. At the same time, the bill corrects the anomaly by which the minister can adjust the daily rate by regulation. No- one has talked about this, but I think it is very important. All of us would want, at least, the amount that people work off their fines to be equivalent to what it costs to keep them in prison, if they must be put in prison. My opinion is that they should not be put in prison. If the court or the system wanted them to go to prison, they would have been sent to prison in the first place. That is not being done. Therefore, we need to come up with another system. The system that no-one has talked about implementing is garnisheeing their social security payments. I have absolutely no problem with doing a deal with the federal government and - Mr R.F. Johnson: Do it! You’re in government! Mr J.B. D’ORAZIO: No, it is a federal government issue, member for Hillarys.
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Mr R.F. Johnson: Why don’t you take it up with the federal government? Mr J.B. D’ORAZIO: I have said publicly that if I were still the minister, I would have done it by now and taken it up with the federal government. Let me say that it is something that should be considered, because the fact is that if the government can get $5 a week from some of these people, it is better than getting nothing. Therefore, if we could get the cooperation of the federal government and have a scheme in place whereby some money is taken out of these people’s social security payments before they receive them, it would solve the problem, because it was not the intention of the law-makers and the system to put these people in prison. It is therefore important that we try to use every possible means to stop them ending up in prison. It clogs up the prison system. They are not supposed to be there. When they are in prison, they learn habits that do not help society. Not only that, but also it takes them away from their families, which is a real problem. I feel strongly about this issue. Mr R.F. Johnson: But a lot of these fines are for committing criminal offences. Mr J.B. D’ORAZIO: Most of them are for offences that the court and/or the system decides should not be punished by a term of imprisonment. If that is the decision of the system, we need to make sure that processes are in place so that that decision can be implemented. That is why I believe this legislation is very important. However, I do not believe that this legislation goes far enough. I looked at the legislation that was introduced by the member for Hillarys’ side of politics in 1994, I think, and I read the shadow Attorney General’s speech about this legislation. Mr A.J. Simpson: Who was that? Mr J.B. D’ORAZIO: The current Attorney General. His comment about the legislation was that it was appalling. I cannot remember his exact words, but the Attorney General will probably remind us at some point. He said that we should not have that legislation in its current form whereby the Fines Enforcement Registry had the power to remove a person’s licence without any reference to the person at all. I strongly support that view, because all the problems that have been encountered, by not only me, but also others, have arisen as a result of that power, and I believe that needs to be rectified in some way. Mr M.J. Cowper: On that issue, you said before that money should be taken out of their dole payments. I think there is some merit in that. However, if they go to jail, they don’t get the dole payments, do they? Mr J.B. D’ORAZIO: They receive a daily payment while they are in jail. Mr M.J. Cowper: They do not get whatever the going rate is for the dole, for instance. You were saying that it costs $260 or $350 a day to keep a person in jail, but while they are in jail, there is a net saving because they are not being paid - Mr J.B. D’ORAZIO: The net saving is to the federal government, not to the state government. Mr M.J. Cowper: It’s all taxpayers’ money. Mr J.B. D’ORAZIO: The state government must fork out for people who are in jail. The principle is that we do not want those people to go to jail. If we can put a system in place - Mr M.J. Cowper: I think you and the member for Yokine should go on this new committee and find a new solution to this problem. Mr J.B. D’ORAZIO: We should all be looking for some way to stop them going to jail, and we should still make sure that they pay their fines or pay their - Mr M.J. Cowper: If they stopped rorting the system, it would be better. Mr J.B. D’ORAZIO: I do not think they are rorting the system. It is about the system making sure that they pay their penalty to society. However, I will keep going because I have only 12 minutes left. Mr R.F. Johnson: You can have another 10 minutes. We’ll give you an extension. Mr J.B. D’ORAZIO: I will probably need it. The problem I have with the Fines Enforcement Registry is how it is run. I know that the registrar is present. I think it is one of the most incompetent agencies that I have had the pleasure of dealing with. I do not say that lightly, because some of the things that have happened to me over the past six months have been nothing short of horrific. For a person to lose his ministerial position because of the incompetency of an agency is nothing short of disgraceful, and for a person to also lose his membership of his party because of the actions of that agency, which then turned around and said it was sorry and that it had made a mistake and asked me to please not go to the Supreme Court about it, is very hard to swallow. However, I will not dwell on that because it serves no purpose. We need to learn from that exercise. In addition to my personal experience, I refer to the experience of Mr Scott, who has given me permission to use his case as an example. A number of similar examples involving the actions of that agency have been brought to my attention. These situations need to be rectified. I hope the Attorney General takes on board that it is not
8872 [ASSEMBLY - Tuesday, 28 November 2006] necessarily a change to the legislation that is needed, but that the people who deal with the legislation need to understand the legislation and, more importantly, implement it as it is supposed to be implemented. That is the problem, not the actual legislation. A number of minor amendments can be made, and one of those minor amendments is to clearly define whether the agency has the retrospective power to remove a suspension order when the agency has admitted that there was an error. There is some question about whether the agency has that ability under the legislation. It is one of the questions that will be answered in my case in the Supreme Court. However, in spite of that, it is a minor amendment which could be built into this legislation and which would clearly identify that when a person has been shown to have had his licence suspended inappropriately, the licence could be reinstated from the time that the licence suspension initially occurred. Such a provision needs to be put into the legislation. Again, I do not want to labour that point because there might be clarification through the court process anyway. However, I again refer to Mr Frank Scott, a former policeman. I feel sorry for Mr Scott. I will read from the story in the Sunday Times, but I also have his full history with me. The article states - . . . Frank Scott lost his driving licence all because of a bureaucratic bungle . . . He racked up almost $200 in penalties for an unpaid parking fine and had his licence suspended by the fines enforcement registry - all without his knowledge. Mr Scott was originally fined for a parking infringement in Victoria Park. The article continues - He found he had been driving illegally in May when he went to pay his car registration. He was told that he had been driving without a licence since November. He was charged, convicted and fined, and his licence was suspended without his knowledge and without the chance to defend himself. The article continues - “Not only that, it meant I had been driving without third-party insurance all that time. “What if I cleaned somebody up? It could have cost me hundreds of thousands of dollars.” As I said, he initially received a $100 parking fine for a parking infringement in Victoria Park. Final payment demands and licence cancellation warnings were all sent to the wrong address. Interestingly enough, the Town of Victoria Park went to the Department for Planning and Infrastructure to get his last known address, in accordance with the act, and Mr Scott had gone to the department on the same day to change his address. Unfortunately for Mr Scott, when his address was registered in the Department for Planning and Infrastructure, it was entered incorrectly. The Town of Victoria Park got his old address and sent the final payment demand to his old address because Mr Scott’s current address was incorrectly entered on the DPI files. I was interested to find that when the licence was suspended, the notices were sent to his old address, which begs the question: what was happening in the Fines Enforcement Registry? Mr M.J. Cowper: Is this your pseudonym? Mr J.B. D’ORAZIO: No, but it just shows what can happen. In the end, this matter was satisfactorily concluded in that the licence was reinstated, but only after a lot of aggravation, letters to the Ombudsman, visits to lawyers and a lot of heartache. As Mr Scott said, if he had had an accident, he would have had no third party insurance. Again, the question of whether the Fines Enforcement Registry has the retrospective power to amend licences is a problem. Not only that; numerous people have come into my office to discuss their problems with the Fines Enforcement Registry whereby their mail was also sent to the wrong address. I know that the registrar keeps saying that the registry relies on the Department for Planning and Infrastructure to provide the correct address. Unfortunately for the registrar, under the legislation, it is not the Department for Planning and Infrastructure that is the source of the address. That is only as a final resort. The act says that the notice should be sent to a person’s last known address. I use my case as the classic example. I had two speeding tickets. They were given to me by an officer on the side of the road, and they both had my correct address on them; that is, 137 Leake Street, Bayswater. The people from the Fines Enforcement Registry have told me that that information was not given to the registry. Under the act, the registry has the power to request whatever information it wants. It was not requested. The fault is not with the police. I know that in my case attempts have been made to blame the police, but that does not wash. It was the fault of the people from the Fines Enforcement Registry. When I told them that this had occurred, they said that they rely on the DPI database. They said that that database shows my address as being in Noranda. I said that I had not been at that address for four years. However, that did not seem to make any difference. Mr M.J. Cowper: The onus is on the holder of the driver’s licence. Mr J.B. D’ORAZIO: There are two issues. Under the Road Traffic Act, the holder of a driver’s licence is required to notify the DPI of a change of address. Also, if a police officer pulls a driver over onto the side of the road and asks for his name and address, the driver is required to give his correct name and address, otherwise he can be fined $300. I had given my correct name and address. It is on the infringement notice.
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Mr M.J. Cowper: Does the Water Corporation have the correct address? Mr J.B. D’ORAZIO: The Water Corporation has my correct address. Mr M.J. Cowper: Then the argument could be put that the Fines Enforcement Registry could have found out the correct information from the Water Corporation. Mr J.B. D’ORAZIO: I would put the argument also that the Electoral Commission has my correct address, because I am on the state electoral roll, so that would have been another source that the registry could have used to get my last known address. The Fines Enforcement Registry needs to sort this out. The Fines Enforcement Registry has suggested to me in writing that the best source of a person’s last known address is the DPI database. The act states clearly that the Fines Enforcement Registry can use that source only if no other source of an address is available. In my case, the Fines Enforcement Registry had the electoral roll. It also had the two infringement notices. Also, every media outlet in Western Australia knew where I lived, because they had been camped on my doorstep for six out of the past 12 months! It was not as though no-one knew where I lived. Mr R.F. Johnson: The problem with this government is that the left hand does not know what the right hand is doing! Mr J.B. D’ORAZIO: Hang on a minute! I was a part of that government up until - Mr R.F. Johnson: That is my point exactly! Mr T.R. Sprigg: You can bag it now! Mr J.B. D’ORAZIO: Yes! This is a very serious matter. In my case it cost me a ministerial position and a position in the Labor Party. I have also had a huge financial cost. For me that was not such a great problem. However, thousands of other people would not have the $35 000 that it has cost me so far to go to the Supreme Court to get this matter sorted out. That is why we need to ensure that this agency, which has the ability to take away a person’s democratic rights, does its job properly. My argument is not necessarily about the legislation. It is about how the Fines Enforcement Registry interprets the legislation. The fact that the Fines Enforcement Registry does not even understand its own legislation is a problem in itself. The State Solicitor wrote to me and said he was sorry and that the registry had made a mistake. He asked me to please withdraw from my Supreme Court action, because all my records have now been corrected. [Member’s time extended.] Mr J.B. D’ORAZIO: It is a problem. I have suggested to a number of people that this legislation should be amended to set up a different process by which a person’s driver’s licence can be taken away - The ACTING SPEAKER (Dr S.C. Thomas): Order! Hansard is having difficulty hearing the member. I ask that members shift their conversations, or at least tone them down, so that Hansard can get a true and accurate record. Mr J.B. D’ORAZIO: I will not be pursuing such an amendment at this time, because I do not think it is appropriate given my court case. However, the process of taking away a person’s driver’s licence - in some cases without the person’s knowledge - needs to be looked at. I believe we should adopt a process similar to the process that is used when a person has lost 12 demerit points. If a person has lost 12 demerit points, the police need to physically remove that person’s licence. It is not done automatically. The suspension does not take effect until someone has physically taken away the person’s licence. The process that is used to suspend a driver’s licence when a person has not paid a fine should be equivalent to the process that is used when a person has lost 12 demerit points. Mr R.C. Kucera: Under the old system of cancelling a person’s licence, the police needed to have a signed declaration, and the licence had to be physically taken away. Mr J.B. D’ORAZIO: That still occurs with the loss of 12 demerit points. However, it does not occur with the Fines Enforcement Registry. I am saying that there needs to be some other mechanism so that people will be in no doubt that their licence has been suspended. I had a car accident. It was insinuated by the media, and others, that there was some sort of cover-up. There was never any cover-up. There was never an attempt to do anything other than tell the truth. However, I paid a political price for that. Mr M.J. Cowper: I do not personally support taking drivers’ licences from people; I would rather they had their televisions confiscated. Mr J.B. D’ORAZIO: I have 12 minutes and I have heaps more to say. That is a nice idea but there could be another process. A mechanism needs to be put in the legislation so that people’s rights are not taken away without their knowledge and without those people having the ability to challenge the process. I am challenging the process; however, there is no point in me winning because the damage has already been done. Truck drivers, taxidrivers and others rely on their licences for their jobs; if they lose their licences without their knowledge, they can lose their jobs. Again, this is unacceptable. They need the right to challenge the process. In my case, I
8874 [ASSEMBLY - Tuesday, 28 November 2006] found out about the suspension two months after the event. That leads me to my next point, which is that the person who lived at my old address sent back to the registry seven letters stating that I did not live at that address. The registrar informed me that the department does not check returned mail. The department gave me an example of a lady in Forrestfield who had received 81 letters because somebody gave that address as his or her address, and the department does not check returned mail. Further, the department indicated to me that it does not have the resources to check returned mail. That is absolutely disgraceful. The department is dealing with fine suspensions and people’s rights; it needs to at least ensure that it can conform to the law, because the law states that the post needs to be sent to the last known address. If someone informs the department in writing that that is not the person’s last known address, how can the department conform to the act? How can the department verify that it is being sent to the last known address? The right of that person to drive is then taken away without that person’s knowledge, creating many associated problems. That is unacceptable. It is a disgrace and it needs to be rectified. As I said, the problem is not with the legislation, but with the department administering the legislation. The department needs to understand and adhere to the legislation to ensure that what happens is what the Parliament intended and not simply what the department thinks should happen. Mr R.F. Johnson: Am I right in saying that you are not enamoured of the fighting force of the registry? Mr J.B. D’ORAZIO: I indicated that I think it is the most incompetent state department that we have. I cannot get any more blunt than that. Mr R.F. Johnson: Why not say what you really mean? Mr J.B. D’ORAZIO: If the court case had finished, I would have a lot more to say. Mr J.E. McGrath: We like you a lot more as an Independent. Mr J.B. D’ORAZIO: Thanks; I am glad! What has happened to me has happened, and I paid the political price. What I want from this process is an outcome that ensures that it does not happen to someone else. I can afford to go to the Supreme Court and get my name cleared; however, thousands of people - I estimate some 40 000 people - could be in the same circumstance because of the actions of this department. They have also paid the price. Mr R.F. Johnson: Some people in my electorate have been put in the same position as you. Mr J.B. D’ORAZIO: What got me the hottest under the collar was the department sending me a cheque, which I have at home, for $176, and a letter stating that the department had made a mistake and was providing the cheque as a refund for the process. It happened only after questions about what had happened were asked in the upper house. Again, I think that needs to be seen for what it is. This agency needs to be looked at. This legislative amendment needs to be supported, because these changes are not about the agency itself, but about the people affected by this agency. The changes are very good, but I think the agency has a lot to answer for and I intend to make more comments on these processes when the court case, which is currently before the Supreme Court, is concluded. I expect that will happen in the next few weeks. It is about trying to establish whether the registry has the ability to retrospectively cancel fine suspensions. It is an issue that is very dear to my heart. I just wish that when bureaucrats make decisions about people’s lives, they would take the time to think about what they are doing and ensure that the processes they have in place are adequate. They may then understand the consequences of what they do and how they affect people’s lives. It was never the intention of Parliament to affect law-abiding people. It was never the intention of Parliament to use the act to inflict problems on people who do the right thing. When the Fines Enforcement Registry is clearly shown to be incorrect, it needs the power to rectify its errors without question. Even today, it is not clear that it has the power to retrospectively cancel the licence suspensions that it has issued. The act is dubious. I am not a legal expert, but the State Solicitor has said that the registry does have that power and the people who are representing me say that it does not have that power. The matter will obviously be decided by a court. There should be a clause in the legislation that clearly spells out that the registrar has that power. I appeal to her, the Attorney General and the department that the powers of the registry must be used carefully because tremendous damage can be caused to the lives of thousands of people, not just me. The act is draconian. I know of no legislation, other than the detention legislation that we passed six months ago, under which people’s rights are taken from them without their being able to have their say in court or through an independent process. Mr R.F. Johnson: The antiterrorism bill. Mr J.B. D’ORAZIO: Yes, the antiterrorism bill is the only legislation under which people’s rights are taken from them without a right for them to question the process. I support what the Attorney General is doing. I do not think the bill goes far enough. I think that my attack on the department is justified. As I have said, I have numerous examples of similar situations in which people have been affected and there have been all sorts of ramifications, including having their licences suspended without their knowledge. It would be interesting to ask
[ASSEMBLY - Tuesday, 28 November 2006] 8875 the Treasurer how much money is outstanding from people who had accidents but were not covered by third party insurance because the Fines Enforcement Registry had suspended their licences. Mr R.F. Johnson: I suspect that it would be millions of dollars. Mr J.B. D’ORAZIO: I am sure members would find the figure staggering. The powers under the act put decent human beings in our community at risk of being accused of doing untoward things. A process needs to be put in place so that what has happened to me and to many others never happens again. As I have said, it was never the intention of Parliament for the act to affect law-abiding people. I also take umbrage at the point made by the member for Hillarys when he highlighted that fines - Mr R.F. Johnson: It would be much better if they snatched your plasma screen television, because you would know what goes on then. Mr J.B. D’ORAZIO: Fines always tend to affect the lowest common denominator in society. My experience is that the people who can least afford to pay the fines have the greatest problem. We must ensure that we do not create more social problems by having in place a system whereby people are sent to jail. We need to find every possible way of preventing that from happening. We must work with those people so that they can pay back their debt to society. I could go on about the lady I met at Boronia Pre-release Centre for Women, because her case made me try to prevent people being sent to jail for the non-payment of fines. It had an enormous effect on her family when she was taken away from them in the middle of the afternoon because of unpaid fines. I know that the member for Hillarys wants to make a political point, but he is a decent human being. All members in this place want to do the right thing for our community. We want to make sure that the system does what it is supposed to do; that is, punish people but not send them to jail unnecessarily. I hope that the registrar, who is sitting in the Speaker’s gallery, thinks about what the registry does, because it affects many people inappropriately. If the registry lacks the appropriate resources, it should make a noise and I will be the first person to jump up and down and make sure that it gets the resources it needs to do the job properly. Debate adjourned until a later stage of the sitting, on motion by Mr J.A. McGinty (Attorney General). [Continued on page 8877.]
PRISONS AND SENTENCING LEGISLATION AMENDMENT BILL 2006 Council’s Amendments Amendments made by the Council now considered. Consideration in Detail The amendments made by the Council were as follows - No 1 Clause 14, page 9, lines 4 to 6 - To delete the lines. No 2 Clause 14, page 9, line 8 - To delete “prison” and insert instead - a prison or other facility No 3 Clause 14, page 9, line 10 - To delete “from prison”. No 4 Clause 29, page 14, lines 17 and 18 - To delete “the prison in which the prisoner is confined” and insert instead - a prison or other facility No 5 Clause 29, page 15, line 3 - To delete “from prison”. No 6 Clause 31, page 16, after line 23 - To insert - (4) In this section - “proceedings” of a judicial body includes anything done in the performance of the functions of the judicial body.
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No 7 Clause 32, page 20, after line 25 - To insert - (7) A prisoner may be confined in a facility outside a prison to facilitate the prisoner being provided with opportunities for work or participation in services or programmes under this section. (8) This section does not authorise a prisoner to be absent from a prison, or facility referred to in subsection (7), without an absence permit. No 8 Clause 66, page 43, lines 16 to 19 - To delete the lines and insert instead - (o) person who - (i) is an officer or employee of an agency as defined in section 3(1) of the Public Sector Management Act 1994; or (ii) provides services to such an agency under a contract for services; or (iii) is a contract worker as defined in section 3 of the Court Security and Custodial Services Act 1999 or section 15A of the Prisons Act 1981, being a person prescribed or of a class prescribed by regulations. No 9 New clause 78, page 52, after line 16 - To insert the following new clause - 78. Section 151 amended Section 151(3) is repealed and the following subsections are inserted instead - “ (3) A person is to be appointed as the secretary of the Board. (4) The secretary and any other staff of the Board are to be appointed under Part 3 of the Public Sector Management Act 1994. ” Leave granted for the amendments to be considered together. Ms M.M. QUIRK: I move - That the amendments made by the Council be agreed to. Mr R.F. JOHNSON: I ask the minister to tell us what effect the amendments will have on the legislation. Ms M.M. QUIRK: I thank the member for that very intelligent question. Amendments to clauses 14, 29 and 32 are required to clarify two things; namely, that authorised absences may be granted to a prisoner who is held in custody in a place other than a prison, and that those absences must be approved in accordance with part VIII of the Prisons Act 1981. In the context of the amendments to clause 31, the clause adds a definition of the term “proceedings of a judicial body”. It clarifies that the term means “anything done in the performance of the functions of the judicial body”. The amendment was inserted because the Corruption and Crime Commission was concerned that the term “proceedings” could be interpreted narrowly and could exclude some of its investigative functions that occur prior to formal proceedings. Clauses 66 and 151 were amended as a consequence of the splitting of the former Department of Justice into the Department of the Attorney General and the Department of Corrective Services. The amendment to clause 66 amends the second schedule of the Juries Act, and deals with exemption from jury duty. The overall amendment to the Juries Act is consequential to the split of the former Department of Justice into two agencies. It provides that regulations may be developed that prescribe agencies or parts of agencies whose employees are exempt from jury duty. Amendment 9 deals with section 151 of the Young Offenders Act. That section deals with the appointment of a secretary to the Supervised Release Review Board. Section 151(3) requires that the Chief Executive Officer of the Department of Corrective Services provide an officer of his or her department to be the secretary of the board. When the Department of Justice was split, the Department of the Attorney General retained responsibility for the support of all early release boards - the Parole Board, the Mentally Impaired Accused Review Board and the Supervised Release Review Board - as that was the most efficient thing to do at the time to provide support. In a nutshell, that is why the amendments are necessary. Question put and passed; the Council’s amendments agreed to. The Council acquainted accordingly.
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ELECTORAL LEGISLATION AMENDMENT BILL 2006 Council’s Amendment Amendment made by the Council now considered. Consideration in Detail The amendment made by the Council was as follows - Clause 24, page 15, lines 12 to 14 - To delete the clause. Mr J.A. McGINTY: I move - That the amendment made by the Council be agreed to. This is an administrative amendment to the bill that reflects the need to remove a redundant clause. Clause 24 refers to section 45 of the Electoral Act, which relates to compulsory enrolment and describes the circumstances surrounding compulsory enrolment, associated fines and certain exemptions. Clause 24 of the subject bill reads as follows - Section 45 amended Section 45(1) is amended by inserting after “17(4a)” - “ or 17A, ”. The Electoral Legislation Amendment Bill 2006 was introduced into the Legislative Assembly, and included an amendment relating to the enrolment of itinerant electors living in the state. It amended the Electoral Act 1907 by inserting after section 17 new section 17A. During consideration in detail it was determined that the amendment relating to the enrolment of itinerants would not be progressed. In the Legislative Council an amendment was moved by my parliamentary secretary to remove this reference in section 45 of the act relating to itinerant electors, which action we had overlooked in this chamber when we removed the reference to itinerant voters. Question put and passed; the Council’s amendment agreed to. The Council acquainted accordingly. FINES LEGISLATION AMENDMENT BILL 2006 Second Reading Resumed from an earlier stage of the sitting. MR M.P. MURRAY (Collie-Wellington - Parliamentary Secretary) [5.51 pm]: I will pick up from where the member for Ballajura finished, but on a slightly different tangent. Many people who come into my office are “clients”, I suppose, of the fines enforcement legislation. They have many and varied concerns about being locked up in jail for what some people would call a minor offence; namely, not paying a fine. Some of those people might owe $200 or $300 and they might have two or three children at home whose needs they have had to consider before paying their fine. That might have led to them breaching their obligations, and then they need to find a lump sum to clear the fine. That scenario causes all sorts of problems and is a reflection on people’s social position. If people are not able to negotiate time-to-pay arrangements to clear their fine and thereby regain their driver’s licence, they feel forced into committing another crime; namely, driving their car without a licence. They feel that the hill is too high; they are on social benefits and cannot save $5 a week because there is always something more important to pay for such as school fees, school clothes, school excursions etc. Those sorts of expenses must be paid before anything can be saved towards a lump sum fine payment. Some people might have been charged with drink-driving and do not have the ability to pay a $1 300 fine. They might be able to pay only $300 or $400 off the fine and not the remaining $1 000. It is very likely that they will never lift themselves from that financial hole. They must be able to negotiate some kind of payment system so that they do not end up in jail. Members might recall the terrible case that occurred in Sydney some years ago when a young man was jailed for a fines enforcement offence. He was bashed in jail and, as a result, he died. He had never before been in trouble of a criminal nature. He was perhaps a bit of a rev head and had been fined, but had not paid the fine. Consequently, he lost his life in the prison system. That is the type of disaster we want to avoid. As the member for Ballajura said, the objectives of this bill can be achieved in many ways. I will move some amendments during the consideration in detail stage. The most important objective is to assist the people who are most affected by the present act. I heard some members opposite claim that those sorts of people should be locked up. I strongly reject that proposition. We are not talking about criminal activities per se. A tragedy occurred in the past week that involved an absolute disaster for three families. A young person was locked up for eight years for a traffic infringement he committed when he should have known better. Look at the
8878 [ASSEMBLY - Tuesday, 28 November 2006] disaster that has come out of that accident. Not one family but three or probably five or six families have been absolutely devastated. Although the young person was rightly imprisoned, it still makes me feel uneasy that a young person’s life has been ruined, even though it is due to his own actions; there is no argument about that, but what more can we do? I imagine it would have been worse if he had not had a licence - I am sure he did have a licence - and had been fined and not paid his fines. He may then have said, “To hell with it, I’m never going to get above the $500 or $1 000 mark and I’m going to drive anyway.” I know that many people do that. In some cases it is because people wish to retain their jobs, especially in the country, where they may have to drive 50 or 60 kilometres to their workplaces. If they do not get there, their jobs are gone. It is easy to say that people should get a ride, but that is not always possible. It is probably a 40-minute drive from Collie to Darkan. Some Collie people go to Darkan to work, and if they do not have a driving licence, they will lose their jobs and ultimately the social problems associated with their unemployment will come back to the community. Jobs in the farming community are not very well paid. What happens when there is no money coming into a family? We know what happens. The crime rate goes up or people continue to drive without third party insurance, as was previously mentioned, and without giving due consideration to what will happen if they get caught. Their instinct is that they must provide for their families and must go to their jobs, albeit lowly paid jobs that they really must keep, so they take the risk and drive without a licence. I saw some statistics not so long ago about the number of people driving without a licence who were tested at a random breath testing roadblock; it was quite substantial. There is therefore something about our system that is wrong. Why are they driving? Is it because of money? I am not quite sure. However, my speech is focused on the payment of fines. One particular case that has been brought to my attention was of someone who had paid $250 over time towards a $500 fine. He missed an instalment and was not allowed to continue to make time payments. He was on a Newstart pension, got to the halfway mark with the payments and then his housing payments were due. We know the pressures that are on people on Newstart. He drove, pulled up at my office, got out of the car and came in and told me the story. Shock, horror! I said, “But you’re out the front; you’re in a main street. You’re not going to work.” He said, “If I don’t come and put a complaint in, how do you know what the problem is?” I very quickly told him to get the car home and walk down next time. However, he said, “Well, I’m going to work tomorrow morning.” That is the problem we have. In that sort of case I believe the registrar should have room to move; she should be able to consider each case in detail before making a blanket ruling that the person cannot pay off the fine. Mr R.F. Johnson: What was the reason for the fine in the first place? Mr M.P. MURRAY: I think it was a drink-driving charge. Mr R.F. Johnson: A drink-driving charge? Mr M.P. MURRAY: Yes, I suppose drink-driving or speeding. It does not really matter, does it? Mr R.F. Johnson: We want those people off the road, quite frankly. Mr M.P. MURRAY: We certainly do. I do not agree with him driving; the member for Hillarys should not think I do. The point is that he was unable to find another couple of hundred dollars to pay the fine off in full, whereas if he had been given another chance to continue on the time-payment program, he would have got there; then he would have adjusted himself along the line, got his licence back and moved on. That is the case I am talking about, and I believe it is a strong case. We have talked about how much it costs to keep people in jail. Cost is not the only issue, but the social implications that are not measured in dollar terms are huge. As I said, people lose their job, commit another traffic infringement, get caught, acquire another speeding fine and on it goes. Then they go out and in some way try to justify things by stealing. The problem just moves along and creates social issues in a different arena. We have to make sure that does not happen. That is why I hope the amendments to the bill that I intend to move will go some way to giving relief in genuine cases. I agree with the member for Murray that there will always be people who will use the system. Should we penalise everyone because of those few? I do not believe so. It is the way of our world. We have seen people in certain parts of society using the system to justify their ends. Although we do not like it or accept it, it happens no matter where we are in the world. I do not believe that we should penalise everybody because of a few people who in some ways are very smart and get through the system by manipulating and stretching it out. Sitting suspended from 6.00 to 7.00 pm Mr M.P. MURRAY: I do not ask that the registrar use a rubber stamp and say that an offender will have extra time as a matter of course. An offender must comply with criteria in order to ask for what is, in real terms, a second chance. Most people appreciate being given a chance. Offenders should certainly be told in no uncertain terms that if they breach an order again, there will be no other chance; they must find the money or head off to the sin bin. However, jail should be the last resort, not the first. Mr R.F. Johnson: It never is the first.
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Mr M.P. MURRAY: That is probably true. I was told of another case that started off with a $100 fine. A woman was stopped for driving while her licence was under suspension. The fine eventually blew out to $1 500 and the woman ended up serving three months in jail. There was not much opportunity to ask if the situation could be looked at to see whether a deduction could be made from dole money or whatever to make sure that the fine was paid. A few people will always rort the system, but that happens in all walks of life. I believe these amendments will keep people on track, so that they will not fall down and then resort to another sort of crime. When we get to consideration in detail, I will move my amendments. MR J.A. McGINTY (Fremantle - Attorney General) [7.04 pm]: I thank the members who have contributed to this debate. I will certainly take on board the various points raised by members. I will seek some advice on the case referred to by the member for Roe. The member for Ballajura also raised matters relating to his experience and the need to look at procedures within the Fines Enforcement Registry. Again, the issues that were raised will benefit from close scrutiny. The amendments suggested by the member for Collie-Wellington are eminently sensible. I thank everyone who contributed to this debate and I look forward to the expeditious passage of the bill. Question put and passed. Bill read a second time. Consideration in Detail Clauses 1 to 4 put and passed. Clause 5: Section 5A inserted and consequential amendments - Mr J.B. D’ORAZIO: This clause provides for documents to be served by electronic means. Can the Attorney General please explain what this clause means? It says that subject to the consent of that person, the document or notice may be given or served by electronic means. Does “person” mean the fines enforcement people giving that notice or the person receiving them? If the Attorney General is suggesting that the registrar can send a notice by electronic mail, I have a problem. It introduces another method of sending notices to a person using electronic means. It says that it is subject to the consent of that person giving or sending the document on notice. Does that mean that the registrar has the ability to send it by e-mail or does it mean that the person receiving it has to give consent by electronic means? I have an e-mail address but I would not know how to get access. Mr R.F. Johnson: It means that you have to give consent. Mr J.B. D’ORAZIO: No, it does not. It refers to the person giving notice. That is why I am asking the question. It says that it is subject to the consent of that person giving or sending the document. That is the registrar, not me. Mr J.A. McGINTY: The answer is that it can be done electronically only with the consent of the person receiving it. Notices will not be sent as a matter of course by electronic means - I refer to e-mails and facsimiles - unless an agreement is in place. Does that answer the member’s question? Mr J.B. D’Orazio: It states “subject to the consent of the person giving or sending the document or notice”. The person giving or sending the document is the registrar. The person receiving it is the person against whom the notice has been served. Mr J.A. McGINTY: I cannot find those words in the bill. Mr J.B. D’Orazio: They are in the explanatory memorandum. Mr J.A. McGINTY: I thought the member was referring to a different provision. The precise wording of proposed section 5A(1) reads - If under this Act information or a document or notice must or may be given to or served on a person, it may, with the consent of that person be given or served - (a) by sending it by fax to the person using a fax number given by the person; or (b) by sending it by email to the person at an email address given by the person, A document or notice will be faxed or e-mailed only if the person concerned provides consent, otherwise the usual means of serving or giving notice would apply. It enables modern means of communication to be utilised by agreement. Mr J.B. D’Orazio: I accept that. I want it on the public record, because the explanatory memorandum states the exact opposite. It reads - Proposed section 5A expands the ability of an offender to receive and the Fines Enforcement Registrar (“FER”) to send a document or notice by electronic means, subject to the consent of the person giving or sending the document or notice.
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Mr J.A. McGINTY: That is what I just said. Mr J.B. D’Orazio: Just for the record, can you confirm that it cannot be done that way without the agreement of the person receiving the notice? Mr J.A. McGINTY: That is right. Clause put and passed. Clause 6 put and passed. Clause 7: Section 27A amended - Mr M.P. MURRAY: I move - Page 6, after line 6 - To insert - (2) Section 27A(2) is amended as follows - (a) by inserting after paragraph (a) - “or”; (b) by deleting “; or” after paragraph (b) and inserting instead a full stop; (c) by deleting paragraph (c). (3) After section 27A(4)(a) the following paragraph is inserted - “ (aa) the alleged offender has a reasonable excuse for any contravention of a time to pay order made previously under this section in respect of the infringement notice; and ”. Mr R.F. JOHNSON: Does the member for Collie-Wellington want to delete the amendment to section 27A(1) in clause 7(b), which states - or on the grounds that the licence suspension order would or does seriously hinder the alleged offender in performing family or personal responsibilities. Is the member saying that that should be deleted and his amendment substituted? The SPEAKER: I think the amendment will insert a new paragraph. Mr J.A. McGinty: There are no words to be deleted. The member for Collie-Wellington wants to insert those words. Mr R.F. JOHNSON: I was not happy with the paragraph prior to the member for Collie-Wellington moving his amendment. Clause 7(b) seeks to insert at the end of the subsection the words “or on the grounds that the licence suspension order would or does seriously hinder the alleged offender in performing family or personal responsibilities”. That is an open-ended ticket. The offender could say that he has to have his licence because it is his son’s birthday or he has to do this or that - those sorts of family or personal responsibilities. We all have those responsibilities. Everyone has personal and family responsibilities. The member for Collie-Wellington does, I do, and the Attorney General does. Almost everybody has those responsibilities. That provision is a get- out-of-jail-free card in the making. I say that very loosely, but this proposal is a nonsense in my view because anybody can say to the registrar that he or she has family or personal responsibilities and needs the licence to carry out those responsibilities. I could certainly put a case that I need my licence to do that, but I would not expect the registrar to say that I could have my licence back as a result. The clause gives no other option; it just says that a person can have his or her licence back. The government is watering down the justice system in this state and the member for Collie-Wellington’s amendment does nothing to enhance it. We already have an absolutely weak and wishy-washy clause in this bill. I have already written the word “no” against it because I feel strongly about it. That is bad enough, but the member for Collie-Wellington wants to insert a paragraph that says that if an alleged offender has a reasonable excuse for any contravention of a time-to-pay order made previously under this section in respect of the infringement notice, the licence suspension order can be cancelled. Then the proposed amendment goes on to deal with something else. I honestly find that abhorrent. Why bother to have any legislation in the first place? Why bother to take people’s licences from them if they continue to commit serious road traffic offences? Before the dinner suspension, the member for Collie-Wellington pleaded the case for one of his constituents who had paid $250 out of a $500 fine - correct me if I am wrong - and then for some reason found that he could not pay the next instalment. I think he was paying in $5 instalments. The reason he lost his licence is that he was
[ASSEMBLY - Tuesday, 28 November 2006] 8881 found guilty of drink-driving. I want those people off Western Australian roads. They are a danger to not only themselves, but also every other innocent person driving a vehicle, riding a bike or walking the streets. If somebody is convicted of a drink-driving offence, he or she should lose his or her licence. If someone can be given back his licence because although he was given time to pay at $5 a week and although he paid half of the fine, he had a bit of trouble paying the remainder, I am led to ask: where did he get the money to get drunk in the first place? Does that person smoke as well? I suspect he probably does. Unfortunately, people find themselves with this problem. I accept it is a problem and they need a way out of it. They need some education in my view. Simply letting them off and giving them back their licences so they can start driving around again, for the spurious reasons that we see in this bill, is not on, and I am totally opposed to it. I will be interested to hear the Attorney General try to justify this weak and wishy-washy clause. I do not have a problem with most of the bill, but I have written “no” against this clause because I feel very strongly that it should not be included. The Attorney General is sending out the wrong message to those people who commit crimes and contravene the Road Traffic Act. Mr J.B. D’ORAZIO: I will defend this clause. The registrar already has the ability under the act to cancel or modify this process. The question is whether the registrar can do it retrospectively. That may be where the issue arises. If there are circumstances, as the bill suggests, in which the suspension will seriously affect an alleged offender’s ability to perform family responsibilities, the registrar should have the ability to vary that suspension. I believe she already has that power under the Fines, Penalties and Infringement Notices Enforcement Act; this expands the power further to make it clear cut. More importantly, it is something that the member for Hillarys and I would support if the circumstances arose in which a licence suspension as a result of fines enforcement would affect, for example, a taxidriver. The registrar should have the ability to cancel the suspension and make other arrangements. She already has the power under the act, so why will the member for Hillarys not support this proposal? Mr R.F. Johnson: He should not be on the road driving a vehicle. Will the Attorney General defend that? Mr J.A. McGINTY: Absolutely. This clause enables time-to-pay arrangements to be entered into. Currently, two bases upon which time-to-pay arrangements can be entered into are listed in section 27A(1)(c) and (d) of the Fines, Penalties and Infringement Notices Enforcement Act. To put it very simply, if an arrangement relates to a medical appointment or a person’s employment, the registrar can cancel a licence suspension for the purpose of the time-to-pay arrangement. What is proposed is a very family-friendly arrangement; that is, to add the grounds of a medical appointment or employment to the circumstances of family arrangements. A simple example is a mother who needs to take a child to school or school-related activities and cannot do so. Under the current legislation, she cannot apply on the basis of family reasons for the licence suspension order to be cancelled to enable a time-to-pay arrangement to be entered into. As the member for Ballajura said, the amendment is building upon the existing arrangements under which the registrar can enter into a time-to-pay arrangement for medical appointments and jobs, but not for family commitments. I thought it would be in the interests of all members to do what we can to keep families together by enabling parents to participate with their kids in things of that nature. This amendment simply gives the offender time to pay on the basis of family commitments. It is put on a par with a medical appointment or a job. That is the purpose behind this amendment. This act is worded in a way that is not immediately apparent to me. It may be to the member for Ballajura who has had a close look at it recently; however, it is not immediately apparent that that is the purpose of this provision. That is what it is all about. Mr R.F. JOHNSON: This clause provides for the registrar to give a licence back to a person. The SPEAKER: We are actually talking to the amendment before the house. Mr R.F. JOHNSON: Yes, I am coming to that, Mr Speaker, and an amendment to that clause has been moved by the member for Collie-Wellington. They are both interchangeable. The member for Collie-Wellington’s amendment is an addition to clause 7 of this bill. The amendment is very similar in nature to the existing clause. The amendment almost mirrors what is in the bill. It seeks to insert a paragraph that states - the alleged offender has a reasonable excuse for any contravention of a time to pay order made previously under this section in respect of the infringement notice; To me it sounds as though this amendment will give a person a second chance because he or she has fallen down on an arrangement to pay a fine. The amendment assumes that a person has had a time-to-pay order and has not paid it. It is open-ended because it says that “the alleged offender has a reasonable excuse for any contravention of a time to pay order”. That could mean that he or she does not want to pay it. It does not say that the reason is hardship or whatever. I know the family reasons have been covered in the previous clause. I do not think it is a very good amendment, because it gives an open chequebook, if one likes, to an offender for any contravention. Mr J.B. D’Orazio: It is at the discretion of the registrar. Mr R.F. JOHNSON: No, it does not -
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Mr J.B. D’Orazio: Yes, it does. Mr R.F. JOHNSON: This amendment goes on from the main clauses in the bill to say - the alleged offender has a reasonable excuse for any contravention of a time to pay order made previously under this section . . . The Attorney General’s substantive clause in the bill already states that if somebody says that the offender would be seriously hindered in performing family or personal responsibilities, that person’s licence will be given back to him. However, the amendment will apply to a person who has already stopped paying the amount he is supposed to pay, so it will just go on and on, staving off the time when the person must be responsible for his actions. I do not support the amendment and I do not support the clause. We will not divide on it, but I am just telling members so that it is recorded. I do not support the amendment because it will do nothing to enhance justice in this state. It might help the people who want to get away with not paying their fines and who want to get their suspended licences back, but it does nothing for justice per se, and nor does the substantive clause in the legislation. It does nothing. It is just a weak-kneed, willy-nilly effort to try to appease those people who have committed wrongful acts by giving them their licences back. Somebody may be sentenced to seven months’ imprisonment. That will affect that person’s personal and family situation; of course it will. Will the Attorney General start abolishing that and give someone the authority to cancel that sentence, as he is giving the registrar the authority to cancel the suspension of a person’s licence? Where does it stop? If the Attorney General is serious about justice, he needs to demonstrate that, because he is not very serious with this bill, not with the main clause and not with the amendment, I am afraid. Mr J.A. McGINTY: In my last contribution I spoke about the reasons that underpin the amendment contained in the bill. I will now go to the amendment that has been moved by the member for Collie-Wellington. Very simply, this amendment will give somebody who has been given the benefit of a time-to-pay arrangement, when circumstances arise in which he is unable to meet that commitment - it might be a death in the family, the cancellation of Centrelink payments or any one of a thousand human circumstances that arise - the opportunity to go back to the registrar. I am sure that in our electorate offices we have all dealt with people in these circumstances who say that they want to be able to continue the time-to-pay arrangement. That is all the amendment does. At the moment, there is a statutory prohibition on a person being given a second chance. Mr M.P. Murray: That is my understanding. Mr J.A. McGINTY: That is right. The amendment moved by the member for Collie-Wellington deletes the provision that states that a person can only ever have one time-to-pay arrangement, and if that does not work out, he is gone for all time, and inserts the provision that has just been read out to the house, which would enable a second time-to-pay order to be made, depending upon the circumstances of the person who comes forward. I will give the house six benefits that would flow from adopting the member for Collie-Wellington’s amendment. Firstly, it will assist the person in maintaining and honouring the agreement with a view to being accountable and financially responsible for his or her own affairs. Secondly, it will provide increased flexibility to allow the disadvantaged to get their lives on track. Thirdly, it will provide an increase in the number of people who can gain or retain employment by holding a driver’s licence. Fourthly, it will reduce the number of people who will risk driving under fine suspension and thereby get into a cycle of re-offending, which may ultimately lead to imprisonment. Fifthly, it will provide an opportunity to remedy an administrative mistake, such as a direct debit malfunction or something of that nature, which currently counts somebody out from continuing his time-to-pay arrangement. Mr R.F. Johnson: I don’t have a problem with that part of it. Mr J.A. McGINTY: I did not think the member would. However, at the moment that cannot be done. Finally, in my view, this would lead to increased revenue to the state by having more people make the payments. Mr R.F. Johnson: However, in other parts of the bill, you cover any malfunction in relation to direct debit payments or credit card payments or cheques. Therefore, what you are saying now is superfluous to the clause and the amendment that are before us. Mr J.A. McGINTY: Is the member saying that he is so lacking in compassion that if a family member of an offender dies, and in the heat of that circumstance the person misses his obligation to make a payment, the member would not allow that person to pick up his time-to-pay arrangements once he has returned from the funeral? Mr R.F. Johnson: The amendment does not say that it will be on a temporary basis, or anything else. This is a very positive amendment. However, it leaves it open-ended. The amendment does not say “to attend to a serious family matter”, such as if a family member has died or is seriously ill. I could understand it if a family member was in hospital seriously ill and it was just for two or three days. I am compassionate enough to agree with that. However, this amendment goes further than that. It is like an open cheque.
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Mr J.A. McGINTY: It provides a discretion for the registrar, if a person has a reasonable excuse for having defaulted on his time-to-pay arrangements, to allow the person to go back onto those arrangements. It is as simple as that. It is very difficult to prescribe every circumstance. I understand the point the member is making. However, the member for Collie-Wellington took the view that a broadly based discretion was the best way to go. Mr R.F. Johnson: The member for Collie-Wellington is a very compassionate person. I accept that. However, I do not agree with the amendment. Amendment put and passed. Clause, as amended, put and passed. New clause 8 - Mr M.P. MURRAY: I move - Page 6, after line 6 - To insert the following new clause - 8. Section 27D inserted After section 27C the following section is inserted - “ 27D. Registrar’s decision on time to pay is final A decision of the Registrar under section 27A, 27B or 27C is final. ”. Mr R.F. JOHNSON: It is all very well for the member for Collie-Wellington to move this amendment. However, he has not explained the rationale behind the amendment and how it will improve the legislation. Mr M.P. MURRAY: It is similar to what the Attorney General has just explained. If a person has a problem and cannot pay, he cannot come back again and again, after the registrar has given him his final chance, and say that he wants to have another go. That is it. It is final. He will give the person one chance, and that is it. Mr R.F. Johnson: She will give the person one chance, not he. Mr M.P. MURRAY: You are being sexist! Mr R.F. Johnson: I am just trying to help. Mr J.B. D’ORAZIO: Under this amendment, a person cannot challenge a decision of the registrar and have it reviewed by another court such as the Magistrates Court. I have a problem with that. For all intents and purposes, the registrar is a court. The registrar may make a decision that is not acceptable. If that decision is final and cannot be reviewed by another court, it will not help people who have a problem with that decision. I understand that, by including it, we will stop people using it as a way of attacking the process. The courts will soon take care of that by saying that it is a nonsense. Not having the registrar’s decision as final allows a decision to be subject to challenge in another court. With no disrespect to the registrar, she or a different registrar may have a reason for not using the discretion she has. I would like someone else to review the decision by other than having to go to the Supreme Court and have it overturned through a different process. That is the only other choice people have. I have a problem with the final decision being with the registrar because, to get it overturned, the only choice a person has is to take action in the Supreme Court, which I have in my circumstances. Mr R.F. JOHNSON: The Attorney General said that I would support this clause. Taking him at his word, I thought that I probably would. However, the member for Ballajura has raised a very good point. Mr J.A. McGinty: Do you want criminals to occupy the time of the courts with unending appeals against the registrar? Mr R.F. JOHNSON: Absolutely not. Mr J.A. McGinty: Support it then. Mr R.F. JOHNSON: Let me finish. In that instance I would support it wholeheartedly. Where I can see a problem arising is that, very often, the fine that is imposed on somebody is the result of that person having assaulted a police officer. Charges may have been brought by the police to the Magistrates Court. A person may be fined $500 for assaulting a police officer. Of course, the person will not pay the fine then or he will enter into a time-to-pay arrangement with the registrar. He may pay a bit of it and then decide to not pay any more because he thinks he will not be sent to prison under the Attorney General’s legislation; he thinks that it is a free-for-all and he can do what he likes. The police may want to challenge the registrar’s decision. The Attorney General is assuming that the registrar will always make the right decision, which is that a person has had his chance and
8884 [ASSEMBLY - Tuesday, 28 November 2006] must pay. I do not have a problem with that. If the registrar is convinced that a case is a heartbreaking one, the decision may be to let it go. The registrar’s decision is final. The police service - or the police officer - who brought the case in the first place might think, “Hang on a minute, one of our officers has been viciously assaulted and all the court gave was a $500 fine and now the person does not even have to pay the fine!” If a person does not pay a fine, his licence may be suspended, but he can go to the registrar and open his heart and say that he needs his licence because of his family and this, that and the other - he may put a real sob story to the registrar. The registrar may agree to another time-to-pay arrangement. The registrar may decide to cancel the licence suspension notice, and the person will get his licence back. To all intents and purposes, he does not have to pay any more money. From what we have heard tonight, the registrar’s decision will be final. It may not be a bad idea for an aggrieved party, such as the police or the department representing any other public officer who may have been assaulted, to challenge the registrar’s decision. The registrar would be acting like a judge. I do not think that is the registrar’s job, quite frankly. Mr J.B. D’Orazio interjected. Mr R.F. JOHNSON: It does to some extent, but the registrar’s main job is to keep the registry; to ensure that the legislation is adhered to, and that people pay their fines or that their licences are suspended. That happens under the current legislation. The registrar will be given enormous authority, equivalent to that of a magistrate or judge - a Supreme Court judge I would suggest - to say that his or her decision is final and that a person will be given back his licence and that he does not have to pay any more money because this decision is in the best interests of the person. That decision may be made because the person has a hard luck story. It is an enormous responsibility and power for the registrar. What the member for Ballajura said has given me some concern. I know what the Attorney General said. I am happy that, if the registrar makes the right decision, that decision should be final. However, if the registrar makes the wrong decision, and the decision waters down the justice that should be served in this state, I have a very serious problem. I would love to hear from the Attorney General about how he will get out of that dilemma. Mr J.A. McGINTY: I support the new clause moved by the member for Collie-Wellington. Currently, there is no provision for appeal against an administrative decision on a time-to-pay arrangement by the registrar. Mr R.F. Johnson: Not to the Supreme Court? Mr J.A. McGINTY: There is no provision for appeal. It would be interesting to look at whether there would be power to seek judicial review in the Supreme Court. Mr R.F. Johnson: I think there would be. Mr J.B. D’Orazio: Only under the correct process. Mr J.A. McGINTY: Yes, but not as a matter of merit. Mr J.B. D’Orazio interjected. Mr J.A. McGINTY: I will defer to the superior and more experienced views of the member for Ballajura on this matter! That sounds intuitively right. Mr R.F. Johnson: He has a higher law degree than the Attorney General! Mr J.A. McGINTY: I will concede that he is an expert on fines enforcement matters, and I am not! The member for Hillarys has asked whether there is an ability to appeal on the merit of the decision of the registrar. My advisers are trying to find the section at the moment, but I am told that at the moment there is no right of appeal against that decision. The additional right that the member for Collie-Wellington has moved to insert in the bill will simply carry that forward; that is, to have more than one chance for a time-to-pay arrangement. If the registrar grants the additional time-to-pay arrangement, that decision cannot be appealed against. Frankly, administrative matters of this nature are not the sorts of matters that the courts should be tied up with. Mr R.F. Johnson: But don’t you accept that it will give the registrar enormous power? Mr J.A. McGINTY: In a practical sense, that power is exercised by the registrar on a daily basis at the moment. Mr R.F. Johnson: I am told that the registrar writes off a lot of fines. Mr J.A. McGINTY: Yes, but in practical terms, the decision of the registrar is final anyway. Generally speaking, we are talking about people who certainly would not have the resources to launch a legal challenge. In a practical sense, when someone asks for time to pay, the decision of the registrar is final. We will now expand the grounds on which that can be done. The new clause moved by the member for Collie-Wellington will enable it to happen a second time. However, we do not want appeal processes on a question of merit clogging up the courts. In any event, I am told that currently there is no appeal provision, but we cannot find the particular section in question.
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Mr R.F. Johnson: If I ask you a question on notice about the number of times the registrar will have used the power under this clause to allow people not to pay and to give them a second or third chance, will you be able to give an accurate and honest answer? Mr J.A. McGINTY: They will still have to pay, but they will be given time to pay. Mr R.F. Johnson: The provision is still a bit loose. The registrar can already write off fines. Will you be able to give an accurate and honest answer about the number of times that the registrar will have written off fines over the previous 12 months? Mr J.A. McGINTY: The member for Hillarys will always get an accurate and honest answer from me, no matter what the question, as he knows. Mr R.F. Johnson: You are one of the best ministers at doing that, but I want to make sure that the registrar of the Fines Enforcement Registry will be able to provide that information, because I will want to know how many times this authority will have been used over a period. Mr J.A. McGINTY: The registrar is on notice to expect the member’s question. New clause put and passed. Clause 8 put and passed. Clause 9: Section 39 amended - Mr R.F. JOHNSON: What benefits will this clause provide? Mr J.A. McGINTY: It will ensure that, if someone has existing fines, we do not have to wait 28 days before the matter is referred to the Fines Enforcement Registry. The note I have indicates that the amendment eliminates the need to wait for 28 days to elapse after an offender has been fined before a matter can be referred to the Fines Enforcement Registry if the offender has other unpaid portions of those fines or infringement notices at the registry. This amendment relates specifically to prosecuting authorities as described by section 39(2) of the act, including matters imposed under the law of the commonwealth. This section requires the prosecuting authority to give the court officer written notice requesting that the fine be registered with the FER. In other words, if an existing fine is in the hands of the registry, it will enable the new fine to be referred directly to the registry. It is administratively a quicker process for dealing with the new fine. The SPEAKER: Does that override a court order for time to pay? Mr J.A. McGinty: No. Mr R.F. JOHNSON: During the second reading debate I highlighted numerous cases in which offenders went before a magistrate and their fines were not recognised or even brought to the notice of the court. The offenders were before the court for committing different crimes from those that had already attracted fines. The majority of those people had outstanding fines of up to $20 000. One example is of a person being find $500 for about six counts in the Magistrates Court. I think they totalled another $3 000 or $4 000. Those new fines will be immediately notified to the registrar because the offender has outstanding fines. Those fines will be added to the existing fines that have not been paid anyway. It will increase that offender’s outstanding fines from, say, $20 000 to $23 000 or $24 000. Under the present system and even under the provisions of this bill, that person will not have a hope in hell of paying the fines. If that person receives a fine rather than some other substantive sentence, he will see it as a green light to ignore fines totalling $20 000 or $23 000. The magistrate knows if the person has outstanding fines - some magistrates bother to find out whether people have outstanding fines, and this one did - and those fines are added on to the outstanding fines. What will happen? Take this case, for instance. The registrar knew that this bloke had incurred $20 000 in fines in the previous three years; he knew he had not paid off any of that money; he knew he had been before the court time and again in that three-year period; he knew he had continually been fined and given community-based orders; and he knew he had not performed any of the community-based orders and had not paid any of the fines. Even then the person still did not go to prison. In one case the magistrate had had enough and felt that the actions and crimes of this particular perpetrator were sufficient to warrant a seven-month prison sentence. The magistrate knew he could not order much less than that because the Attorney General had abolished sentences of less than six months. He could have ordered a sentence of six months and one day, but I was told that he felt that would have been regarded as a bit churlish. The magistrate felt that the public had had enough of this particular person and he sentenced him to seven months in jail. The Aboriginal Legal Service then immediately appealed the case in the Supreme Court. The Supreme Court overturned the magistrate’s decision, fined the bloke some more money, gave him another CBO and then let him out. That is an absolute joke, Attorney General. How does this legislation serve justice on people like that? All that will happen ultimately is that the magistrate will decide that the person does not have a hope in hell of paying any of these fines. He keeps coming before the courts for committing crimes, the magistrates keep fining him and giving him CBOs, but ultimately justice is not being served. Some people now are beyond the law. Their biggest discomfort is to appear before a court, knowing full well that, no matter what the court says, they will not pay any fine or be sent to prison, because the ALS will come in and do its bit and, as
8886 [ASSEMBLY - Tuesday, 28 November 2006] occurred in this instance, the weak judiciary will uphold the ALS appeal. There is therefore a different tier of justice for those people. I can understand the heartfelt feelings for the person in Collie. However, people are consistently getting away with committing these sorts of actions. The SPEAKER: Was that in relation to the clause? Mr R.F. Johnson: Absolutely! Mr J.A. McGINTY: Just briefly by way of answer, it is an interesting point but in fact this clause does the exact opposite of what the member for Hillarys has described. This clause relates to the reality of what occurs; that is, a fine that is imposed on a person who already has a fine will be fast-tracked into the registry. In other words, it will be dealt with far more quickly than in the statutory 28 days. It is an interesting story from the member for Hillarys but not relevant to the clause. Clause put and passed. Clause 10: Section 41 amended - Mr R.F. JOHNSON: Once again I want the Attorney General to explain how this clause will benefit the people of Western Australia, and how it will benefit our system of justice. Mr J.A. McGINTY: This clause relates to an error made by the court; currently it cannot pull back the matter and correct the error. This amendment in the first paragraph of the clause is simply an administrative arrangement. It reads - If, at any time after a fine is registered and before a warrant of execution or a warrant of commitment is issued . . . When a fine is registered, that is the end of it. The court cannot say, “Sorry, I have made a mistake; send it back.” This simply enables the court to do that so that the court can correct any error it has made. Mr R.F. Johnson: Could you give me an example? Mr J.A. McGINTY: The court might impose a fine and then find it is more than the maximum that could be imposed or the fine might not be an option for the court in some circumstances. Mr R.F. Johnson: Does that happen in our courts? Mr J.A. McGINTY: Yes. Mr R.F. Johnson: Who have you got running our courts? Mr J.A. McGINTY: I am told that another frequent occurrence is that a clerk of court might send a fine for enforcement. I am sure that in a previous life you would never have made that error, Mr Speaker. This simply enables the court to correct an error rather than leaving it and requiring the offender to correct the court’s error. Clause put and passed. Clause 11: Section 53 amended - Mr R.F. JOHNSON: I have a question mark against the last two words of the clause on page 9. The ultimate paragraph reads - (8a) The Registrar may at any time cancel a warrant of commitment for good reason. Will the Attorney General give a scenario illustrating what he considers to be a good reason? Once again, this provision gives the registrar enormous power to cancel a warrant of commitment. Mr J.B. D’Orazio: This is the standard terminology used in this and in other bills. Once you use it, you report it to the executive director. Mr R.F. JOHNSON: The member for Ballajura is answering quicker than the Attorney General. He has been hiding his talent under a bush. Mr J.A. McGINTY: I think the member for Hillarys will agree with this. Mr R.F. Johnson: You said that last time. Mr J.A. McGINTY: He seems to be particularly argumentative. Mr R.F. Johnson: I just want to make sure I understand it properly and that the Attorney General explains it properly so that it is recorded in Hansard. Mr J.A. McGINTY: There was a recent case of a person by the name of Brown. A warrant of commitment was made; in other words, a warrant to take that person to jail for non-payment of a fine. It was the wrong Brown. This provision gives the registrar the opportunity to correct an error made by the registrar, rather than saying that there is nothing the registrar can do about it and the person is now in jail.
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Mr R.F. Johnson: I think I support you on that one! Clause put and passed. Clause 12: Section 55A amended - Mr M.P. MURRAY: I move - Page 9, after line 19 - To insert - (2) Section 55A(2) is amended as follows: (a) by inserting after paragraph (a) - “or”; (b) by deleting “; or” after paragraph (b) and inserting instead a full stop; (c) by deleting paragraph (c). (3) After section 55A(4)(a) the following paragraph is inserted - “ (aa) the offender has a reasonable excuse for any contravention of a time to pay order made previously under this section in respect of the fine; and ”. Mr R.F. JOHNSON: I must be consistent and say that I do not agree with the amendment for the same reason I do not agree with the final paragraph of clause 12. Every person in this chamber must perform family or personal responsibilities. We can all say that we need to perform family or personal responsibilities. I need to perform family or personal responsibilities. I am a husband, a father, a grandfather and a jolly nice bloke. I really need to help people out. I really need to be able to carry out those duties. Everybody does. We have a blanket clause before us. The Attorney General has put in that get-out-of-jail-free card again. All the member for Collie-Wellington has done with his amendment is open up the provision. I do not agree with the amendment. I do not agree with the clause. I have a big cross against it because I think the Attorney General is going soft on crime again. He is pandering to the criminals. We all have personal and family responsibilities. We also have responsibilities to other citizens in this state, not just our families. I have said before that people must take responsibility for their actions. If one acts in an irresponsible way, one has to pay for it. We are cushioning these people who commit offences under the Road Traffic Act - the people who put other people’s lives in danger. The government is pandering to these people. Why would these people want to change their ways if they know that all they have to do is go to the registrar and say that because they have serious personal and family responsibilities, they must have a licence. The registrar will say, “Okay, Billy, you can have it.” That is not the way to go. It is a softening and a weakening and a watering down of justice in this state. Mr M.P. MURRAY: I certainly do not see this issue as simply as the member for Hillarys has put it. He has a very cynical approach. I think this clause is in the bill for a very strong purpose; that is, to keep people out of jail. We have said that that is what we want to do from the start of this debate. For many people who are fined, jail is not the way to go. In a previous speech I referred to a young lad who was taken to jail in Sydney on a fines enforcement matter. He came out in a coma and died the following week. That is not the way to go. If there is a chance that these people can redeem themselves, let us give them that chance. Amendment put and passed. Clause, as amended, agreed to. New clause 13 - Mr M.P. MURRAY: I move - Page 9, after line 19 - To insert the following new clause - 13. Section 55E replaced Section 55E is repealed and the following section is inserted instead - “ 55E. Registrar’s decision on time to pay etc. is final A decision of the Registrar under section 55A, 55B, 55C or 55D is final. ”.
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Mr R.F. JOHNSON: The member for Collie-Wellington has a lot of amendments tonight. He has obviously had a lot of time to think about the amendment that is before the house. Ms A.J.G. MacTiernan: That’s right. Mr R.F. JOHNSON: I did not see his lips move then! I thought the member for Collie-Wellington had changed his voice for a minute, and the way he approached things. The member is usually placid and understanding. Suddenly he had become aggressive and had a higher-pitched voice. I did not know where it came from. I reiterate the concerns I have. They are very similar to those I had for the earlier amendment of the member for Collie-Wellington. This amendment is similar to the previous amendment and says that the registrar’s decision on the time-to-pay arrangement is final. Mr M.P. Murray interjected. Mr R.F. JOHNSON: What is up? Mr M.P. Murray: There was thunder. Mr J.A. McGinty: God is indicating that he wants the member to get a move on. Mr R.F. JOHNSON: God just left the chair! The ACTING SPEAKER (Mrs J. Hughes): I am sure that he will be pleased with that remark. Mr R.F. JOHNSON: The Acting Speaker knows that I always suck up to the Speaker! Just so it is recorded in Hansard, I reiterate that I have the same concerns with the proposed new clause of the bill as I had with the previous amendment regarding the registrar’s decision on the time to pay being final. I will not say any more than that because I said it all in my comments on the previous amendment. Mr J.A. McGINTY: The member for Collie-Wellington will qualify as a Queen’s Counsel after having substantially rewritten this legislation. If this amendment is passed, he will have succeeded in doing exactly that. New clause put and passed. Clause 13 put and passed. Clause 14: Section 109 and Schedule 1 repealed - Mr R.F. JOHNSON: It is important that the house notes that the Attorney General is repealing section 109 of the Fines, Penalties and Infringement Notices Enforcement Act 1994. He is repealing the whole of schedule 1, which covers 10 pages of that act. I have heard of swift moves by the Attorney General, but this is a wholesale repeal. The Attorney General is repealing all those pages. I want him to explain why. I have put an asterisk against one of the clauses the Attorney General wants to repeal. It is on page 85 of the act. I refer to clause 4(4) under schedule 1. Does the Attorney General have it? Mr J.A. McGinty: It is not in my copy of the act. I have clause 4, but there are only subclauses (1) and (2). Mr R.F. JOHNSON: I am not saying it does not. The Attorney General is repealing all the subclauses in that act wholesale. It is a special bargain price. Buy high and sell cheap is the Attorney General’s motto. Clause 4 of schedule 1 is headed “Certain fines and orders imposed by Supreme or District Court before commencement”. Subclause (1) states - If before commencement the Supreme Court or the District Court imposed a fine (as defined in Part 4) on an offender and ordered that in default of payment the offender be imprisoned, then on and after commencement the order continues to have effect and the provisions of the Justices Act 1902 relevant to that order continue in operation in respect of that order. That is another swift move to keep people out of prison! I want the Attorney General to explain and justify why section 109 and schedule 1 will be repealed. Obviously they were deemed necessary when the act came into force. The government wants to remove an important part of the act. I have marked the important parts; much of the schedule refers to the Children’s Court and various other things. I am sure it would take the Attorney General an hour to explain schedule 1. Will the Attorney General justify the repeal of section 109 and schedule 1 from the Fines, Penalties and Infringement Notices Enforcement Act? Mr J.A. McGINTY: There is a very simple explanation for the repeal of the schedule; namely, it related to events that happened 12 years ago and all those events have now finished. When Hon Cheryl Edwardes, as Attorney General at the time, introduced the Fines Enforcement Registry legislation, she had to make provision in the legislation for transitional provisions that would apply in 1994. The schedule has had no effect post-1994. Mr R.F. Johnson: You don’t want to send them to prison; under this schedule they would go to prison if they were in default.
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Mr J.A. McGINTY: That law applied in 1994. Anybody who was dealt with in 1994 or the following year would have been caught by the provisions. They were always intended to be transitional. They related to people against whom a fine had been imposed by the Supreme Court or District Court before the coming into operation of the 1994 act. In other words, if somebody received a fine and was in default of that payment, the court ordered that the offender be imprisoned. This provision has no relevance post-1994. Mr R.F. Johnson: None at all? Mr J.A. McGINTY: No. That is the reason that parliamentary counsel recommended that it be deleted. It dealt with transitional arrangements when the fine enforcement system that the member for Hillarys’ party introduced in 1994 came into effect. Arrangements were needed to ensure that the old arrangements would still have effect with the passage of the new legislation - Mr R.F. Johnson: The 1994 legislation. Mr J.A. McGINTY: Yes. The schedule does not apply to events that occurred after 1994. It provided a mechanism to deal with anyone who had a fine and order of the court pre-1994. I am told that every one of those has now worked its way through the system. Therefore, the schedule is no longer relevant. It will be deleted because it is redundant. Mr R.F. Johnson: I knew there would be a good reason! Clause put and passed. Clauses 15 and 16 put and passed. Clause 17: Section 67 amended - Mr R.F. JOHNSON: This clause will amend the Sentencing Act 1995. Is the Sentence Administration Act a different act? I was trying to find this provision in the Sentence Administration Act 2003, which I thought was an amendment to the Sentencing Act 1995. Is that a different act? Mr J.A. McGinty: It is an amendment to the Sentencing Act, not the Sentence Administration Act. Mr R.F. JOHNSON: The Sentence Administration Act came after the Sentencing Act. Clause 17 seeks to amend section 67(3) by deleting “40” and inserting “10”. Mr J.A. McGinty: Currently the court cannot impose a community based order unless it is for a minimum of 40 hours. This allows the court in minor cases to reduce the minimum number of hours to 10 hours. Mr R.F. JOHNSON: I understand that. I spoke against this part of the bill in my second reading contribution, and to be consistent I should be speaking against this clause because I think once again it is a watering down of the justice system in Western Australia. There are many other less severe options for sentencing that can be used prior to someone being given a community-based order. There is a suspended sentence, probation, a caution, a fine and all sorts of things before we get to an order for 40 hours of community-based work. I am not in favour of that. As I said previously, it is a willy-nilly watering-down effect that we have seen so often - Mr J.A. McGinty: Soft on crime! Mr R.F. JOHNSON: Yes. The Attorney hit it on the nose. He said it himself; it is soft on crime. I am glad that has been recorded in Hansard. The Attorney General has said this is soft on crime and he has confirmed what I have been saying for many years now. This Attorney General and this Labor government are soft on crime, just as they were soft on drugs and soft on almost everything. If it were not getting near Christmas, I would be a lot more - Mr J.J.M. Bowler: Soft on Christmas? Mr R.F. JOHNSON: No, they are not. The minister is probably one of the politically correct ones - we should not sing carols and we should not celebrate Christmas in Christian terms. I know what members opposite are like, the weak, lily-livered people, the leftie pinko commos that are abundant on the other side of the chamber who want to do away with the Christ in Christmas. That is what they want to do. I have had enough. I am not going to tolerate any of this leftie pinko commo stuff any more! Mr J.J.M. Bowler interjected. Mr R.F. JOHNSON: What did the minister say? He should not dare say anything. Mr J.J.M. Bowler: Okay, I will take it back! Mr R.F. JOHNSON: So he should. Mr J.B. D’Orazio: Wouldn’t you like to be able to sit at home on Christmas Day and think “I’ve been part of saving some people being in jail, I can enjoy my Christmas”? Wouldn’t you like that feeling?
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Mr R.F. JOHNSON: I would feel better, my friend, if on Christmas Day I was eating a bit of turkey with my family and enjoying family time while knowing that the nasty criminals were behind bars, not let out by the Attorney General and the mob opposite -the leftie pinko commo whatsits. That is the trouble. Ms J.A. Radisich: That is old Labor! Mr R.F. JOHNSON: Members opposite are old and new Labor. Even Tony Blair has seen the light! He has seen what cannabis has done to the people in England, particularly the young people. Members opposite should bear in mind when enjoying their Christmas the people who have been seriously affected by cannabis. The government has allowed that to happen to them. The member for Yokine should hold his head in shame because he is the one who brought that weak, pinko leftie commo legislation into this house. For goodness sake! I have to sit down now because my time has expired. Mr J.B. D’ORAZIO: I would like to hear more from the member for Hillarys. Mr R.F. JOHNSON: I am almost finished. Mr R.C. Kucera: Were you in cabinet when Mr Flynn was released? Mr R.F. JOHNSON: Who? The only Finn I know is Shirley Finn. Mr J.J.M. Bowler: Did you frequent her establishment? Mr R.F. JOHNSON: No, I did not! I am a good family man. I think the member for Yokine knows more about that. The ACTING SPEAKER (Mrs J. Hughes): Members, we have clause 17 before us. Mr R.F. JOHNSON: Absolutely. Will members please control themselves? For goodness sake, this is the Legislative Assembly chamber and all we are hearing is the rabble on the other side of the chamber. Madam Acting Speaker, I am very tempted to take up the member for Ballajura’s offer, but I have said enough tonight. I want certain members opposite to hold their heads in shame and to reflect on what they are imposing on the people of Western Australia. Clause put and passed. Clauses 18 and 19 put and passed. Title put and passed. Third Reading MR J.A. McGINTY (Fremantle - Attorney General) [8.21 pm]: I move - That the bill be now read a third time. MR R.F. JOHNSON (Hillarys) [8.22 pm]: Let me assure you, Madam Acting Speaker, and members of this house that I will not speak at length in this third reading debate. Several members interjected. Mr R.F. JOHNSON: I promise members that I will not. I am actually trying to help the Attorney General and the government. By going through this third reading now we can finalise this bill. It will go to the other place next week, when it will be sitting, and it can deal with it. There is no point in delaying the third reading of this bill until tomorrow. The opposition has the same view of this bill at its third reading stage as it had at the second reading stage and consideration in detail. The opposition is not happy with some of the clauses in this bill. I would like to think that I explained fairly fully, when were not indulging in a bit of humour, which is not a bad thing, why we do not support this bill. As I said previously, we do not oppose this bill because we know the government will get it through. Maybe in the other place some members who have some commonsense may see the light. It may be that, for a change, the Greens (WA) may not think that the government is doing the right thing and vote with it willy-nilly. I am the only speaker on this side of the house for the third reading stage of this bill. I will conclude my remarks to let us move onwards and upwards. Question put and passed. Bill read a third time and transmitted to the Council. ACTS AMENDMENT (ADVANCE HEALTH CARE PLANNING) BILL 2006 Consideration in Detail Resumed from 19 September. Clause 11: Parts 9A to 9D inserted - Debate was adjourned after Mr M.P. Whitely had moved the following amendment -
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Page 17, after line 5 - To insert - 110UA. Non-disclosure of unregistered advance health directive (1) In this section - “unregistered advance health directive” means an advance health directive that is not registered in accordance with Section 110RA. (2) Subject to subsection (3), any person who does not disclose the existence of an unregistered advance health directive cannot be charged with any criminal offence resulting from that failure to disclose. (3) Subsection (2) does not apply to any health professional within the meaning of the Civil Liability Act 2002 section 5PA, who is involved in providing treatment or other professional services to the patient. Mr M.P. WHITELY: This debate has been resumed after a lengthy break. We had a deal of debate about the amendment in my name. Basically, the amendment was motivated by a concern I shared with others that the legislation effectively obliges family members and friends to disclose the existence of a living will when the act of disclosure would effectively end the life of a loved one, and any family member or friend who failed to do so, so motivated by love, would be open to a charge of either assault or procurement of assault and liable to criminal prosecution. That concerned me and others. The intention of the amendment was to achieve a level of protection for family members who, acting out of love, hid the existence of a living will to extend the life of their loved one. The intention of the amendment was not to protect health professionals such as doctors and nurses who are involved in the delivery of health care, because they have a professional obligation; and the intention of the amendment was not to protect those who failed to disclose the existence of a living will to gain financial advantage. It was simply to protect those acting out of love who wanted to extend the life of their family member. There have been some discussions over a period with the Minister for Health. I will now take my seat and let the minister talk about some ideas that he has. I then anticipate that I will seek leave to withdraw my amendment. However, at this stage I will let it stand. Dr K.D. HAMES: It was an excellent tactic to put off the debate on this legislation for such a long time because, apart from the clause that we are now discussing, I have forgotten the rest of the bill and all the issues and all the points that we worked through. Nevertheless, I was in agreement with the member for Bassendean and his amendment to clause 11. The minister was not. Therefore, we reached a minor impasse in working out how we could go forward with this legislation. My view was that I may write an advance health directive and give it to my daughter, for example. That advance health directive may say that if I am unconscious and taken to hospital, I do not want to have any treatment; I want to be left to die, if that is what will happen. My daughter, with that health care directive in her pocket, may not want me to die, and so she may not tell the doctor that I have written an advance health directive. Under the legislation, she could be charged with assault or procurement of an assault by the doctor. Therefore, the doctor who saved me would in effect have assaulted me because I had given an advance health directive in which I directed that my daughter should tell the health professionals about the existence of that directive. Therefore, she would be liable to prosecution. I strongly disagreed with that being the case. I thought that the amendment moved covered the situation, but the minister was strongly opposed to it and suggested, in fact, that he would not proceed with the legislation if that amendment were to remain. I want the legislation to go ahead. Therefore, I guess it was up to somebody to compromise. We attended a meeting, which was arranged by the minister, with Mr Robert Cock, who has proposed an alternative solution that I am in favour of. I cannot speak for the member for Bassendean, but I am sure he will say that he is in favour of it. The minister has a copy of that, and I presume he will read it into Hansard. That satisfies my concerns; that is, I am satisfied that, if that were the case, my daughter would not be prosecuted. Mr J.A. McGINTY: I am very appreciative of the constructive role played by the members for Bassendean and Dawesville in helping to resolve this issue. Dr K.D. Hames: And the member for Maylands. Mr J.A. McGINTY: Yes. No-one wants a person to be prosecuted before the courts for what is exclusively an act of love - perhaps misguided, but nonetheless an act of love. That is not consistent with the general approach to the criminal law in this state. That is the point that was raised by each of the members to whom I have just referred. The members for Maylands, Bassendean and Dawesville met this evening with the Director of Public Prosecutions, Robert Cock, QC. Although I was not there, my understanding is that the Director of Public Prosecutions has indicated that his prosecution guidelines are very much influenced by the wish of the Parliament when it comes to legislation. He said that if it was the wish of the Parliament, he would amend his prosecution guidelines to deal with the very issue that has caused this bill to become somewhat bogged down
8892 [ASSEMBLY - Tuesday, 28 November 2006] over the past few months. In particular the Director of Public Prosecutions has indicated that he would amend his prosecution guidelines to insert a new section 33A that will read as follows - 33A. Relevant Factor in Special Cases In considering the public interest in prosecuting a person arising out of a failure to disclose an advance health directive, it is not in the public interest to prosecute a person for any offence arising out of a failure to disclose an advance health care directive if the non-disclosure was motivated by love and affection for the dying person, to extend the life of the dying person and without any intention to benefit financially. That seems to me to cover the issue that was raised by the amendment moved by the member for Bassendean, and supported by the member for Dawesville. In particular, this will ensure that the Director of Public Prosecutions will not maintain a prosecution against a person whose actions, if I can use a general phrase, are motivated by love and affection. Such a person will not end up in court as a result of his or her actions. In my view that deals in a very effective way with the issues that have been raised during this debate. I thank those members whom I have mentioned, and the Director of Public Prosecutions, for the way in which this matter has been addressed. I had a serious problem with inserting into this legislation a provision that to my mind would have had the effect of undermining the whole purpose and intent of the legislation. This is a very effective way of dealing with the issue. Hopefully, on that basis, all members of this place will be able to walk away from this debate and say we have achieved what we want to achieve. Mr M.P. WHITELY: Would the minister consider incorporating this information in the second reading speech when the bill gets to the upper house so that it is absolutely clear that this is the intent of the Parliament? Mr J.A. McGINTY: Yes. As the member knows, courts take notice of what is said in the second reading debate. I will undertake to ensure that this is incorporated in the second reading speech that is made in the upper house, assuming the bill is passed in this place. Mr J.B. D’ORAZIO: Can the minister explain why this could not be incorporated as an amendment to the legislation? This proposed guideline by the Director of Public Prosecutions is very clear. Rather than just allow the Director of Public Prosecutions to make this part of his prosecution guidelines, why not also incorporate it as an amendment to the legislation? Dr G.G. JACOBS: Proposed subsection (3) states that subsection (2) does not apply to a health professional. What would be the nature of the prosecution, and what would be the legal consequences or penalty, for a medical practitioner for the non-disclosure of an advance health directive? Mr J.A. McGINTY: I will answer the two points raised. Firstly, this has nothing to do with medical practitioners. They derive their protection from a later provision in the bill. This has to do with the actions mentioned in the amendment still before us, which was moved by the member for Bassendean. It is about protecting not medical practitioners but family members and loved ones. This clause does not deal with that particular matter. In answer to the member for Ballajura, this legislation seeks to promote the idea of living wills and the way in which they would be given statutory form. I have a problem with rewriting the legislation so that anyone who cheated or deceived would have nothing done to him. That is how it has to be categorised. It may have been motivated by love and affection, but it still involves somebody going out of his way to defeat the purpose of the legislation. I have real difficulty in writing that into the legislation. I have no difficulty in saying that it is a matter of discretion vested in the Director of Public Prosecutions and that he may, in the public interest, not prosecute in those circumstances. I am not supportive of writing the provision into this legislation. That is the basis upon which we have addressed this issue to try to find a practical solution to it. I think we have found it. Mr M.P. WHITELY: I am satisfied by the assurances from the Minister for Health and the Director of Public Prosecutions. Having said that and for the reasons outlined, I seek leave to withdraw my amendment. Amendment, by leave, withdrawn. Ms K. HODSON-THOMAS: I require some clarification. Given that the member for Bassendean has been given leave to withdraw his amendment and I did not oppose that, I must advise that I have some concerns, which are similar to those raised by the member for Ballajura. The Minister for Health has outlined that the Director of Public Prosecutions will use his discretion in such cases. Am I able to speak further on this? The ACTING SPEAKER (Mrs J. Hughes): I am advised that if the member’s comments fall within the question that the clause stand as printed, she may speak on it. Ms K. HODSON-THOMAS: I have a similar mindset to that of the member for Ballajura. I have listened to the comments made by the minister. I apologise for being tardy in getting into the chamber in time to hear all his comments. I understand that the discretion will be given to the Director of Public Prosecutions and that, in the public interest, the Director of Public Prosecutions has given a commitment that he will not prosecute a loved
[ASSEMBLY - Tuesday, 28 November 2006] 8893 one should he or she decide to not disclose that an advance health directive was given by another person. That indicates to me a real lack of commitment to the intent of the amendment moved by the member for Bassendean. I was not privy to the meeting held with the DPP. It seems to have been decided that only certain members would be privy to that meeting. I find this extraordinary. I would like to think that a loved one - whether it be a son, daughter, wife or husband; whoever it might be - who clearly has great concern for his or her partner, father, mother, child or whoever the person is and who knows of an advance health directive but loves the other person so much as to not reveal it should have his or her position protected in the legislation. As legislators, we should ensure that that was clearly articulated in the legislation and not simply left to the discretion of the Director of Public Prosecutions. Mr M.P. Whitely: What the Minister for Health read out will be an amendment to the prosecution guidelines which, I understand, will then be gazetted. Mr J.A. McGinty: And binding on the DPP. Ms K. HODSON-THOMAS: And binding on the DPP? Would the minister mind clarifying that for me by way of interjection, because I was not in the chamber for that part of the debate? Mr J.A. McGinty: Certainly. The Director of Public Prosecutions has indicated that he will be very much influenced by the will of the Parliament. The will of the Parliament has been expressed in this place today. He will now amend the Statement of Prosecution Policy and Guidelines by inserting a special provision to deal with this very issue. The amendment to the prosecution guidelines states - In considering the public interest in prosecuting a person arising out of a failure to disclose an advance health directive, it is not in the public interest to prosecute a person for any offence arising out of a failure to disclose an advance health care directive if the non-disclosure was motivated by love and affection for the dying person, to extend the life of the dying person and without any intention to benefit financially. That is the very issue that was raised. We will gain protection for those people. Ms K. HODSON-THOMAS: How will the DPP determine whether the person was motivated by love and affection for the dying person? He will look at it in a clinical way. I am not a lawyer, but I understand that lawyers must be dispassionate; they look at facts. How will they make the determination that the person was motivated by love, for example? Mr J.A. McGinty: That is what judges and prosecutors do every day of the week to determine someone’s motivation. The question of motive is very much a part of dissecting any crime. They are expert at it. They will apply their minds to all the circumstances of a particular case to determine whether it truly was an act of love or whether there was an ulterior motive, such as financial gain or something of that nature. It is my view and the view of the other members who were party to the discussion with the DPP that this amendment to the prosecution guidelines will deal completely with the issue of providing protection, particularly to loved ones, in their dealings with the advance health directives of people who are dying. Ms K. HODSON-THOMAS: I am not convinced. The minister makes a very plausible argument. Mr J.A. McGinty: The member is very hard if I am not convincing her. Ms K. HODSON-THOMAS: I am probably one of the most easygoing members in this place. However, I am still not convinced. I would prefer that the amendment be included in the legislation to ensure that people in this situation are covered by the legislation. That is the role of members of Parliament. Obviously, I know I will not win on this count, but I am certainly not convinced. Dr K.D. HAMES: I will again explain why members agreed to this amendment to the prosecution guidelines. I agree with the member for Carine. I would prefer that it be included in the legislation, but the minister will not accept its inclusion in the legislation. Ms K. Hodson-Thomas: It is the soft option. Dr K.D. HAMES: It is the soft option. The minister has said that he will not proceed with the bill if it is included in the legislation. I want the bill to proceed, so I have to either back down or stick to my guns and not have the bill proceed. I have made the choice that I would rather that the bill proceed. I am satisfied with that. We must think about the practical outcomes. If I wrote an advance health directive and did not want my child to be in that position, I would register the directive. There is an option for people to register their health directives, and not give them to their sons or daughters who will be in the difficult position of having to produce it or not produce it at the appropriate time. Therefore, I will register my health directive. However, a person could have written an advance health directive indicating that he or she did not want to be kept alive and wanted to be allowed to die, but the child might not tell the health professionals that a health directive existed because the child loved the parent and wanted him or her to be kept alive. That is a very clear-cut direction. The opposite might be the case. Someone might have done an advance health directive to be kept alive at all costs.
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Regardless of what the person ends up like, he or she might want to be kept alive but does not disclose it. Then it will be important for the prosecutor to decide whether the relative loved the person and wanted the person to die quickly even though the person did not want to die or whether there was some financial benefit to be gained from a will. It would be extremely rare for someone to sign an advance health directive to be kept alive. That is not the purpose of the legislation. It is extremely unlikely someone would do an advance health directive for that purpose, but we never know. That is what the minister wants to cover. The Director of Public Prosecutions has said that the guidelines are based upon the will of the Parliament. They are gazetted and he is required to follow them. That gives me sufficient reassurance to support this, even though I would have preferred it to be in legislation. Ms K. HODSON-THOMAS: I hear what the member for Dawesville says and I appreciate that he supports some of my sentiment. I have no real experience with the office of the DPP. I read the prosecution policy and guidelines only recently. Will the minister explain to me how frequently they are changed? I have heard that they are changed at the will of the Parliament. Perhaps the minister can give me an indication so that I can feel a level of reassurance. I am not sure that I will be reassured, but I would like to understand how frequently they are changed and whether we can feel the certainty we would like to feel on this issue. I would prefer to see it as a clause in this legislation. I am not trying to delay the process, so I will keep my comments brief. Mr J.A. McGINTY: The current guidelines are dated 2005. I understand that they are not changed every year, but from time to time, to reflect changed circumstances. Ms K. Hodson-Thomas: Is that policy change from government or the Parliament? Mr J.A. McGINTY: It is done by the DPP without input from government. However, in drawing up those guidelines, the DPP takes into account significant changes made by the Parliament. If this legislation is passed, it will be a significant change to an area of the law, and the DPP has indicated how he will respond to that on the passage of the legislation. The most recent changes to this came about as a result of other legislative changes made to the law, particularly the criminal law and the prosecution processes. As the member for Carine is aware, they were significant changes to criminal law in this state. Criminal law procedures in particular have been rewritten. These guidelines were rewritten to reflect that change in the law. It happens from time to time, but not frequently. Ms K. Hodson-Thomas: Does that not come back to Parliament for our review? Mr J.A. McGINTY: No. Mr M.P. Whitely interjected. Mr J.A. McGINTY: Frankly, I do not know. This is the Statement of Prosecution Policy and Guidelines 2005. I suspect it is disallowable because this Statement of Prosecution Policy and Guidelines is issued pursuant to section 241 of the Director of Public Prosecutions Act 1991 and will become operative from the date of its gazetting. Whether it is disallowable is certainly something that is - Mr M.P. Whitely: That is my understanding from the meeting I had with Robert Cock. Mr J.A. McGINTY: The member for Bassendean’s information is no doubt more accurate than mine. Dr K.D. Hames: When this clause is added as a result of the meeting and the legislation going through Parliament, that does not get changed or reviewed, does it, without an alternative new direction being given by Parliament to that legislation? Mr J.A. McGINTY: That is right. Dr K.D. Hames: Because the clause is specific. Mr J.A. McGINTY: Yes, specifically relating to this legislation. Dr K.D. Hames: A new public prosecutor is not going to come in and say that he does not like it and change it. That is the point I am making. Mr J.A. McGINTY: No. It would be extraordinary for any future Director of Public Prosecutions to take that point of view, because of the importance of taking into account the intention of Parliament expressed in this legislation and its debates leading up to making the legislation in the first place. Mr T.G. Stephens: Personally, I think that is a load of absolute nonsense. Mr J.A. McGINTY: The member is welcome to that view. Mr B.S. WYATT: I just want to say something in respect of the DPP guidelines. Having had something to do with them, I can say that changes to them are very rare. They are usually driven over time out of court decisions and practice changes.
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Mr T.G. Stephens: Or ideology. Mr B.S. WYATT: No, very rarely ideology. Mr T.G. Stephens: Or a desire to steamroll the Parliament. Mr B.S. WYATT: No, not at all. Mr T.G. Stephens: Absolutely a desire to steamroll the Parliament. Mr B.S. WYATT: Not at all, because guidelines are not law. The member for Central Kimberley-Pilbara will find that a criminal code - like any other criminal code in any other state - gives prosecuting guidelines to the DPP. A criminal code like this can only ever be a skeleton; we cannot simply legislate for every response. The DPP wants, as bad as it may sound, a certain amount of flexibility in a prosecution. The DPP must be able to decide whether an offence warrants in the public interest a prosecution. That happens for homicides through to drug offences. There are guidelines that the DPP looks to, and that is what we have in this bill. If we legislate to not find people criminally responsible when problems occur, we will remove any flexibility in a prosecution. There is no legislation that I am aware of that exempts a prosecution for a criminal offence; rather, this is the flip side, which is what I think the minister is saying in this bill. We see it in all DPP guidelines, not just this state’s guidelines. They are not changed willy-nilly, because they are very rarely changed, but the element of flexibility comes in. I cannot foresee a prosecution emerging in this scenario unless an element of maliciousness or financial gain is involved. I just want to let the member for Carine know that I worked in the DPP’s office for a long time and in all that time I was involved in only one such case. That case involved feedback from the courts, from all lawyers, from the DPP and no doubt - although I am not sure - from the Attorney General’s office. Mr T.G. STEPHENS: I wish the member for Victoria Park well in his expectation of officers of government and officers that hold the position of DPP into the future. I have been a member of this place only a short time, but I have experienced a DPP who deliberately, in my view, altered the prosecution policy of government to steamroll the Parliament. Those members who have been members of this place for only a brief period will have experienced that alteration. Changes to the prosecution policy suddenly delivered a result in the house aimed at a public policy outcome quite in contradistinction to the assurances given to the house in the debate. Dr K.D. Hames: Can you give us an example? Mr T.G. STEPHENS: The member for Dawesville knows the example. Dr K.D. Hames: Abortion! Mr T.G. STEPHENS: The member for Dawesville should not try to pretend that members do not know the example. They know only too well the example. It is the example of the changed prosecution policy that applied to the practice of abortion in this state. Reflect for half a second on it, for goodness sake! Do not try to pretend. Suddenly a prosecutor wanted to achieve parliamentary action to pursue an ideological perspective. That might have reflected the majority viewpoint of the Parliament at the time; quite clearly it did. Mr R.C. Kucera interjected. Mr T.G. STEPHENS: He had the options. He laid the charges. Mr R.C. Kucera: No, the charges were laid - Mr T.G. STEPHENS: He drove the charges. Dr E. Constable: They were not laid by him. Mr T.G. STEPHENS: It was the decision of the DPP. Mr J.A. McGinty: It was the decision of the police. Dr E. Constable: The police laid the charges. The DPP decided to prosecute. Mr T.G. STEPHENS: It was the prosecution policy of the DPP, which had been modified in response to his ideology and which produced an outcome in this Parliament. Just reflect on our recent history. I am stunned. I did not realise that this debate was coming on tonight. People will clearly have the opportunity of delivering whatever they want to deliver through this Parliament. I do not know why I did not notice that this was an order of the day for today. I understood that we were dealing with urgent, outstanding matters of government priority before the house rose for the session. I did not realise that we were suddenly dealing with matters that would be determined by a free vote of the house. I thought we were clearing up the legislation to deal with the urgent agenda of the government. We are suddenly dealing with arguments being put before the house based on a specious recollection of the history of the place. If people want to run an argument in defence of the legislation, let us at least deal with honest arguments. Let us at least deal with the history of the way in which the prosecution policy of the DPP steamrolled the Parliament into a change of the legislative regime for handling the community’s sensitivities to human life.
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Madam Acting Speaker (Mrs J. Hughes), I have been in this Parliament when the Chair has stopped the wagging of heads of people at the table who were supporting ministers and held that they should deal with their job professionally as assistants to the minister and stop their commentary on the rights of members of Parliament in the handling of legislation; and when the Chair has shut up the comments that came from officers at the table. Ms K. HODSON-THOMAS: I am quite certain that the member for Central Kimberley-Pilbara has not completed his remarks. I would like to hear him continue. Point of Order Mr J.A. McGINTY: Even though this is a free vote, people are still required to address the issue before the Chair. The member for Central Kimberley-Pilbara is taking himself off on what might be regarded as the broadest possible tangent that could be raised in a second reading debate. The member is not addressing clause 11 of the bill. The ACTING SPEAKER (Mrs J. Hughes): I ask the member to please confine his remarks to the clause before us. Debate Resumed Mr T.G. STEPHENS: Thank you, Madam Acting Speaker. In response to the debate on this point, all I would say to those at the table is that I do not need their wagging heads and commentary on my contribution to this house. I got elected to this place and they did not. I will have my say and I do not need their commentary. This debate, in my view, does not need to be rushed through in the dying days of this Parliament. In reference to the particular point of the question of the prosecution policy of the DPP, we have seen - Point of Order Mr J.A. McGINTY: I again raise the same point of order. The ACTING SPEAKER (Mrs J. Hughes): The member will confine himself to clause 11. I also observe that advisers are there to advise the ministers and are not there to include themselves in the debate. The member will confine his comments to the clause and not include the advisers. Mr T.G. STEPHENS: Madam Acting Speaker, I hope that you are giving them that same advice. Mr J.A. McGinty: She is giving you advice on how you ought to conduct yourself. The ACTING SPEAKER: Thank you, minister. The member for Central Kimberley-Pilbara will deal with clause 11. Debate Resumed Mr T.G. STEPHENS: The DPP has the opportunity to utilise his prosecution policy in ways that should be checked by this Parliament. In the past that prosecution policy has been deliberately utilised in ways to achieve an outcome that - Point of Order Mr J.A. McGINTY: Madam Acting Speaker, I again raise the same point of order. The ACTING SPEAKER (Mrs J. Hughes): I ask the member to please make his point on clause 11 very clear. Debate Resumed Mr T.G. STEPHENS: In reference to clause 11, in the earlier debate there was a discussion about the prosecution policy of the DPP, and the Minister for Health gave answers about that. It may not suit the minister and the house to share the opposite viewpoint to the minister about the answer that he gave, but it is my profound recollection of the history of the way - Point of Order Mr J.A. McGINTY: Madam Acting Speaker, I again raise the same point of order. I suggest that you sit the member down because he is abusing your direction to him. The ACTING SPEAKER (Mrs J. Hughes): The amendment that was put before the house has been withdrawn due to the comments of the Minister for Health. Leniency was given to the member for Carine to pursue an explanation as she was not in the chamber earlier to hear the debate. If the member does not have any different comments to make on this clause, I suggest he wind up his remarks. Debate Resumed Mr T.G. STEPHENS: Madam Acting Speaker, I will take your advice and wind up my remarks. We are progressing a piece of legislation on the assurances that were given by the Minister for Health that the
[ASSEMBLY - Tuesday, 28 November 2006] 8897 prosecution policy of the DPP may be disallowable. It has not been my experience as a legislator that the prosecution policy has not been disallowable. Mr R.C. Kucera: It is based on a false premise. Mr T.G. STEPHENS: No, it is not. Mr R.C. Kucera: I was involved in that matter you were talking about. It is based on a false premise. That matter came before the DPP fully charged. Dr E. Constable: That’s the usual procedure. Mr R.C. Kucera: Exactly. There was nothing - Mr T.G. STEPHENS: With a changed prosecution policy. Mr R.C. Kucera: The fact that a matter came before the court changed the legislation. It wasn’t the DPP’s policy. It is based on a false premise. Mr T.G. STEPHENS: A changed prosecution policy did not apply in reference to that matter. The assurances given to the house by people with a different viewpoint from me do not put me in the comfort zone that the member has on this issue. What we have seen from the history of this matter is that the prosecution policy was modified to achieve a particular legislative outcome. It was done without the opportunity of either house to respond to that reality. Legislative reform was then introduced in response to that set of circumstances. Mr R.C. Kucera: It wasn’t a change of policy; it was a set of circumstances that came about. It wasn’t a change of policy; it was forced upon them. A prima facie case presented. He had no option but to - Mr T.G. STEPHENS: That is one way of presenting that set of circumstances. It is not the only way to look at that set of circumstances. Mr R.C. Kucera interjected. Mr T.G. STEPHENS: I do not accept that view of history. I do not think that the history of that set of circumstances is recorded in the way that discussion proceeded at that time. Mr J.A. McGINTY: I move - Page 18, lines 14 and 15 - To delete “section 110S(3) or (4).” and substitute - section 110S(4). This amendment is purely consequential on an earlier amendment that was moved. It has no other significance. Amendment put and passed. Mr J.A. McGINTY: I move - Page 20, lines 4 to 16 - To delete the lines and substitute - (a) the patient’s spouse or de facto partner if that person - (i) has reached 18 years of age; and (ii) is living with the patient; (b) the patient’s nearest relative who maintains a close personal relationship with the patient; (c) the person who - (i) has reached 18 years of age; and (ii) is the primary provider of care and support (including emotional support) to the patient, but is not remunerated for providing that care and support; (d) any other person who - (i) has reached 18 years of age; and (ii) maintains a close personal relationship with the patient. This amendment arose out of part of the second reading debate. Many members, in particular the member for Dawesville, raised the question of the order in which the persons responsible ought to be listed. Some considerable concern was expressed that the carer appeared before the nearest relatives. We have sought to come up with a new order in which a health professional will turn to various relatives or next of kin, as they are sometimes referred to. The formulation in this amendment better reflects the debate and concerns that were raised by members. Paragraph (a) of the amendment begins with a patient’s spouse or de facto partner;
8898 [ASSEMBLY - Tuesday, 28 November 2006] paragraph (b) lists the nearest relative who maintains a close personal relationship with the patient; paragraph (c)(ii) lists the primary carer; and paragraph (d)(ii) lists any other person who maintains a close personal relationship with the patient. That better reflects the views expressed by a number of members during the course of the second reading debate, to the extent that I can remember back that far. The ACTING SPEAKER (Mr A.P. O’Gorman): Before I give the call to other members, I must make something clear. The amendment that the Minister for Health just moved is to delete lines 4 to 16 on page 20 of the bill and to substitute an alternative set of words. The member for Carine has also signalled her intention to delete line 16 on page 20. The minister’s amendment would usually be moved in two parts: firstly, to delete lines 4 to 16; and, secondly, if the motion was successful, to insert the proposed words. However, the passage of this amendment would preclude the member for Carine from moving her amendment. Therefore, to preserve the member for Carine’s right to move her amendment, I propose that a test vote be conducted. Rather than move to delete lines 4 to 16, as proposed by the Minister for Health, I will initially move that lines 4 to 15 be deleted. If this motion is agreed to, we can move to delete line 16, as proposed by the minister. However, if this motion is disagreed to, the member for Carine will be able to move her amendment. Ms K. HODSON-THOMAS: I indicate to the house that I will not move the amendment standing in my name. Dr K.D. HAMES: This amendment addresses my concerns. I will remind members of the concerns some of us had. The original legislation listed a de facto partner as the first person who was responsible for making a treatment decision and the spouse was listed as the second person. At the time, it was argued that the spouse should be listed first because a spouse should always be listed first rather than a de facto, bearing in mind that someone who had a spouse but who was separated might have a new partner. In that case, it was argued that the new part partner should be listed before the spouse, and we were happy with that explanation. However, the minister has addressed that matter also by listing spouse or de facto together, which solves those sensitivities. The main objection to proposed section 110ZD(3)(c) in the bill was that it stated - a person who regularly provides, or arranges for the provision of, domestic services and support to the patient, but is not remunerated for doing so; That person preceded the patient’s nearest relative. Therefore, the lady who lived next door and who did the cleaning was given priority over the son or daughter of the patient. The reason for that was that the son or daughter might be estranged from the person concerned. We should not assume estrangement at the start; sons and daughters should be given the opportunity not to be estranged. This is a better combination. It puts spousal and de facto partners first, followed by the nearest relative - provided that he or she has maintained a close personal relationship with the patient, and so on. I am happy with the amendment. Amendment put and passed. Mr J.A. McGINTY: I move - Page 20, lines 17 to 23 - To delete the lines and substitute - (4) For subsection (3)(b), the patient’s nearest relative is the first in order of priority of the following relatives of the patient who has reached 18 years of age - (a) the spouse or de facto partner; (b) a child; (c) a parent; (d) a sibling. (5) For subsection (3)(b) and (d)(ii), a person maintains a close personal relationship with the patient only if the person - (a) has frequent contact of a personal (as opposed to a business or professional) nature with the patient; and (b) takes a genuine interest in the patient’s welfare. (6) For subsection (3)(c)(ii), a person is not remunerated for providing care and support to the patient although the person receives a carer payment or other benefit from the Commonwealth or a State or Territory for providing home care for the patient. This amendment is a further elaboration on the issue of who is responsible. It defines the patient’s nearest relative in order of priority, starting with spouse or de facto partner and continuing with child, parent, sibling etc. It then extends to a person who maintains a close personal relationship with the patient. It is a further definition of the amendment that we have just adopted for the purposes of this provision. Dr E. CONSTABLE: Will the minister define “frequent contact”? It is not unlikely in this day and age for an elderly widow to maintain close contact with her children even though they do not live in this state through
[ASSEMBLY - Tuesday, 28 November 2006] 8899 telephone calls, snail mail, e-mail and other means. Children may have a close relationship with their parents even though they do not live geographically close. Do those people fit into the minister’s definition of “frequent contact”? Mr J.A. McGinty: Yes, they do. Dr E. CONSTABLE: Therefore, frequent contact does not have to be physical face-to-face contact or when a person visits a patient in his or her home. Frequent contact can happen in a number of different ways. It is important to spell that out, because most people would consider frequent contact to be physical face-to-face contact. I also refer to the part of the amendment that reads “takes a genuine interest in the patient’s welfare.” That is a very subjective statement that could be interpreted in a number of ways. Will the minister elaborate on that so that anyone making a decision once this bill becomes law understands what is meant by those phrases, because they are not particularly clear? Mr J.A. McGINTY: The broad intention is not to limit it to somebody who has face-to-face contact. It might well be someone who rings every second day and who maintains contact electronically. In the general course of events, it will be someone who cares for the patient and that would obviously require in most circumstances a physical presence. The second point is that we have tried to distinguish between a meddlesome neighbour, for instance, and somebody who genuinely cares for the person. These are the sorts of issues that the Public Advocate and the Guardianship and Administration Board must deal with on a regular basis to ascertain as best they can the person who has a real interest in the welfare of the person and to whom the person would turn for direction on medical matters. The way we have reworded it is to get a more sensible and logical flow of the order in which particular classes of people are to be considered. When it comes to somebody who is not a direct lineal relative but who cares for an elderly person, to use the example that has been given, we look for a genuine interest in that person; that is, somebody who is supportive. How do we ascertain who is genuine - Dr E. Constable: It is very subjective. Mr J.A. McGINTY: It is, but people are skilled in making exactly that assessment. It is the sort of decision that is currently made by people such as the Public Advocate and the Guardianship and Administration Board in determining those quite often competing claims. They have to deal with them on a regular basis when two sections in a family might be competing over who makes the decisions about a mother, who may no longer be capable of making decisions for herself. They are the sorts of decisions that need to be made and we have sought to spell out in the legislation the way that has to be approached in those circumstances. It is subjective but I think the intent is quite clear: it has to be someone who has a genuine interest in the welfare of the individual, ahead of someone who might be an interfering or meddlesome neighbour. Dr E. Constable: The interfering or meddlesome neighbour may well have been a neighbour for 40 years and genuinely care for the person even though they may be meddlesome. Mr J.A. McGINTY: Sure. People with odd personalities are not excluded from the scope of the legislation. Mr R.F. Johnson: You are all right then! Mr J.A. McGINTY: I have enough people on my side to fight without fighting the member for Hillarys as well! It is an attempt to articulate the best interests of the person about whom decisions are to be made. Ms S.E. Walker interjected. Mr J.A. McGINTY: We have deleted the carer as such and replaced it with a more generic description. That is the issue I have just been debating with the member for Churchlands. I am sorry; I retract what I have just said. The amendment that has already been carried includes “carer” in it, but then it goes on to refer in paragraph (a) to the spouse or de facto partner, in (b) to the nearest relative and in (c) to the primary provider of care and support. We are now defining with greater particularity the nearest relative and the person who maintains a close personal relationship with the person, which is spelt out. A person who maintains a close personal relationship with someone comes after a carer. I am sorry; my initial response to the member’s question was incorrect. Ms S.E. WALKER: The reason I raised this is the case of Mrs Buzolic, who has not been prosecuted, and will not be, for the latest matter. She was the woman who fleeced an elderly person of about $400 000 and was imprisoned by the District Court. Then she married another of my constituents, but never lived with him, and is now receiving his Veterans’ Affairs pension. What is going to happen? I recently went to an elder abuse conference in Victoria and it is clear that people who are elderly and living alone in their homes will be targeted by people who come in and care for them. I want to put on record that that is a concern when one looks at these provisions. I have seen it happen in my community and it has been quite tragic. Also, that will lead to the fact that there is no appeal to the State Administrative Tribunal on these matters. It makes it very relaxed. For instance, some family members may say that a woman has come into the home and taken over and their father is
8900 [ASSEMBLY - Tuesday, 28 November 2006] smitten with her and it is they who want to fill the position outlined in the bill. It will be a real issue of concern. If people come in, they will want to see that person terminated so that they can get their assets. Mr J.A. McGinty: I agree that that it is an issue. Dr E. CONSTABLE: I think this issue was raised by the member for Dawesville. Is it possible for a person to have a spouse and a de facto partner at the same time? Mr J.A. McGinty: Yes, so I am told. Dr E. CONSTABLE: If that is the case, what happens to subsection (4)(a) of this amendment? It refers to the “spouse or de facto partner”. Is there an order there? Mr J.A. McGINTY: I suspect that a great number of people are in exactly that situation. They are legally separated and are living in a de facto relationship. They are still married, but have a de facto partner. That is the easy, but most common, case. Obviously we would go to the person with whom the patient was living, and that would be the de facto, even though the patient is still legally married. For whatever reason many people do not wish to get divorced and they live in a de facto relationship. Dr E. Constable: Does that take precedence when an estate is being disputed? Mr J.A. McGINTY: It is the same issue there. Dr E. Constable: It is not necessarily the person with whom they are living who gets the estate? Mr J.A. McGINTY: No. The question is: who makes the decisions for this person at a critical time in his or her life? That is different from the problem of distribution, which can be based on more general principles. If it involves a former husband and wife, ultimately the property would be divided between the married couple, and a de facto partner of more than two years would also have some rights to claim on the property as well. That has been the law in this state for some years. Dr E. Constable: You have dealt with the easy case. There are more difficult cases. Mr J.A. McGINTY: The hard case is a situation in which a husband and wife are living together and the husband maintains a de facto partner concurrently. That is where it becomes far more complicated. To whom does one turn? Dr E. Constable: What is your advice on this because under proposed subsection (4)(a) of the amendment the spouse and the de facto partner will have equal billing. Who is the person who will make the decision? Mr J.A. McGINTY: As a general indicator we would look to whom the person was living with and maintaining as his or her partner. Dr E. Constable: This person is maintaining two people. Mr J.A. McGINTY: Yes. There may be degrees to which the patient is maintaining each person, and that would need to be taken into account. Ms S.E. Walker: He would be a bigamist. Mr J.A. McGINTY: Effectively he would be a bigamist. If there were a dispute over which of those two people in that more difficult situation it would be, the legislation provides for the State Administrative Tribunal to determine which person should be given priority. Hopefully, that would not arise in everyday transactions. Dr E. Constable: We don’t know, do we? Mr J.A. McGINTY: No. That is a fair call, because I know that there are people in exactly that situation. Dr E. Constable: These are the tricky ones that we need to seriously pick up and talk about in this debate, because, as you say, they are the difficult ones and someone will have to sort it out. Mr J.A. McGINTY: Yes. Amendment put and passed. Ms K. HODSON-THOMAS: There is an amendment in my name on the notice paper. I am trying to remember where we were up to. That is the problem when we come back to deal with legislation months later and try to pick up the thread. It is very hard to grasp it again. I have been looking through some of my paperwork, but I will seek clarification from the minister in case I missed out something. I believe an amendment had been moved by the member for Swan Hills and that that had been deferred to a later stage. That amendment related to the terminology “medical practitioner”. I will seek clarification of that issue first, so that members will begin to grasp where we are up to in the debate on the legislation. I will then move my amendment, if that is possible.
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Mr J.A. McGINTY: We are all struggling a little because of the lapse of time. There were two propositions. The member for Swan Hills proposed that advance health directives should be witnessed by a medical practitioner. I think that was quite separate from the purpose of the member for Carine’s amendments. Ms K. Hodson-Thomas: I understand that. I am just trying to get some clarification. Was that deferred? Were we to go back and deal with that? Mr J.A. McGINTY: It was deferred. The member for Swan Hills’ definition of a medical practitioner was deferred, depending upon the outcome of the witnessing requirements. We have dealt with that and it was defeated. Therefore, the member for Swan Hills’ amendment will not be proceeded with. Ms K. HODSON-THOMAS: I move - Page 22, lines 9 and 10 - To delete the lines and substitute - “medical practitioner” means - (a) a person not being a body corporate who is registered under the Medical Act 1894; or (b) a body corporate which is registered under the Medical Act 1894. There are a number of amendments on the notice paper in my name to delete the words “health professional” and substitute “medical practitioner”. As members will note, they relate to the same issue. Therefore, I will speak to all of them. If this amendment fails, it is my intention to withdraw all those other amendments. The ACTING SPEAKER (Mr A.P. O’Gorman): They are consequential on this amendment being passed. Ms K. HODSON-THOMAS: Yes. I understand that. I have had some discussions privately with the member for Dawesville. He does not support this amendment. He believes that the term “health professional” covers nurses. Any person, whether a nursing professional or a doctor, who is dealing with people who are at the end of their lives would have a true understanding of that set of circumstances. I understand the view of the member for Dawesville, and he will probably speak on this issue in his own right. I have no intention of delaying the discussion in the chamber. I believe members are not committed to this. I could stand here and try to convince other members. However, we have been dealing with this legislation for some time, and most of us know that the government has the numbers in support of this legislation. I will not be supporting the legislation. However, that is my choice, because we have a free vote on this bill. I would have liked this amendment to go through. Other members have a different view. My concern is that the term “health professional” is very broad and far reaching. It covers people ranging from podiatrists to psychiatrists. I would have preferred to include medical practitioners in the definition. Perhaps there might even have been an opportunity to include nursing professionals in the definition. However, I certainly believe medical practitioners should be included. Mr J.A. McGINTY: If this legislation dealt only with end-of-life treatment by a medical practitioner, I would agree with the amendment the member is proposing. However, this legislation deals with any person who is mentally incapable of making health care decisions. Substitute decision makers, who are appointed under either a living will or an enduring power of guardianship, will make health care decisions on behalf of such a person, perhaps about their dental treatment, and perhaps even about their podiatry treatment. This legislation deals with all health professionals who are providing treatment to the patient. It does not deal only with the issue that has been the centre of our debate; that is, end-of-life decision making. I suspect this legislation will have its major impact in end-of-life decision making. However, it includes all health care decisions, which essentially means it will include all health professionals. Dr G.G. JACOBS: I support the amendment moved by the member for Carine. It may not seem surprising to some members that I would be supporting this amendment. This legislation deals with very important issues. Those issues are significant enough to warrant the purest definition of what we are dealing with. The minister has said that this legislation deals with more than just end-of-life decision making. However, as the member for Carine has suggested, the term “health professional” is too generic. It could include physiotherapists and occupational therapists. In my previous experience I have obviously not dealt with the particular concept of an advance health directive. However, from my previous experience these issues are of such importance that they should be the concern of any medical practitioner who is bound by the Medical Act 1894. In fact, we should be directing this legislation to the concept of medical practitioner rather than adopt a generic definition of health professional. Dr K.D. HAMES: With due respect, members have not looked specifically at what this part of the bill is about. It is about treatment decisions for patients under legal incapacity. Proposed section 110ZI deals with urgent treatment and states - (1) Subsection (2) applies if - (a) a patient needs urgent treatment; and (b) the patient is unable to make reasonable judgments in respect of the treatment; and
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(c) it is not practicable for the health professional who proposes to provide the treatment to determine whether or not the patient has made an advance health directive containing a treatment decision that is inconsistent with providing the treatment . . . A provision like this could cover an ambulance officer who has a patient but does not know of an advance health directive. The ambulance officer recognises that he has to do something and does it. It cannot be limited to a medical practitioner. Dr G.G. Jacobs: If we cannot rely on you, who can we rely on? Dr K.D. HAMES: I might not be there. Dr G.G. Jacobs: If you are not going to speak up for medical practitioners - Several members interjected. The ACTING SPEAKER (Mr A.P. O’Gorman): Order, members! Dr K.D. HAMES: The member needs to read the legislation. Dr G.G. Jacobs: I have read it. Dr K.D. HAMES: Have another look at page 23. Proposed subsection (2) states - The health professional may provide the treatment to the patient in the absence of a treatment decision in relation to the patient. It is not just for doctors; it is not a matter of sticking up for doctors or not sticking up for them. The doctor might not be there at the time the treatment is required. It might be simple treatment - Dr G.G. Jacobs interjected. Dr K.D. HAMES: Not necessarily. The provision refers to urgent treatment. It might be a nursing home patient who has fallen out of bed and broken something and requires urgent treatment by whoever is there, whether it is the nurses or the cleaners, to try to fix whatever problem needs urgent treatment. Dr G.G. Jacobs: That is not realistic. Dr K.D. HAMES: I am not going to waste my time arguing with the member any more, other than to say that he is wrong. Mr T.G. STEPHENS: I support the amendment moved by the member for Carine. I do so not only because of the arguments advanced by the member when she moved her amendment, but also because of the reply delivered to the chamber by the Minister for Health whose arguments I thought were sufficiently compelling to justify the amendment being carried. There is a role for restricting, through this bill, participants in the process so that they are restricted to medical practitioners. That is not something that is unknown to the law as it stands minus this bill. Only tonight I had the opportunity of looking at another piece of legislation that aims at putting in place protections for people against mistakes being made on their behalf, and determining the categories of witnesses for documents that deal with matters far less important than life. There are requirements to deal with a lawyer or a medical practitioner. In dealing with life, we are required to deal with a medical practitioner. I would have thought that the arguments advanced by the Minister for Health were compelling arguments for the chamber to support the amendment moved by the member for Carine. I commend the member’s amendment to the house. I am also of the view that another compelling argument has been put by the member for Carine. This debate has been brought on somewhat unexpectedly. There are other items of a compelling nature on the agenda, and I would prefer that we were not dealing with the bill at this time. There are other issues that the government has an ambition to put before the house. The ACTING SPEAKER (Mr A.P. O’Gorman): The member should be speaking to the amendment moved by the member for Carine, not whether we should continue to debate the bill. Mr T.G. STEPHENS: Yes. With reference to the amendment moved by the member, there is value in restricting the way in which the bill will impact on the law. The engagement of a medical practitioner in the process should be required under the legislation. I support the view that the member put to the house. Compelling arguments have been put by the Minister for Health. It may be that the divergence of viewpoints expressed by the members for Dawesville and Roe could more suitably be argued in a review of the proposed amendments by a committee of the house, rather than in this debate. If two medical practitioners have adopted divergent viewpoints on an amendment that will apply to their own profession - Dr K.D. Hames: With respect, the chances of our finding a basis of agreement on this amendment do not exist. Mr T.G. STEPHENS: The value of a committee of the house considering the bill is that it could be improved. I also am of the view that this clause has already experienced the disservice of inadequate arguments in its defence.
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Dr E. CONSTABLE: At first glance, I agree that a medical practitioner should be involved in making these decisions. However, we are talking about an urgent situation. If I were a patient who had fallen out of bed and I could not see a doctor for an hour, I would want someone to make the decision to make me more comfortable and ease my pain. I agree with the member for Dawesville; often in an urgent situation there is no doctor around or it takes too long to get a doctor to the patient. The person might be in an isolated place and it might take hours to get a doctor to the patient. None of us wants a person to be left in a situation in which he or she has to wait for a doctor. I do not support the amendment, because we must take into account the practicalities of an urgent situation. Someone such as a nurse practitioner or a qualified person should be in a position to make a decision about the care of the patient. Dr G.G. JACOBS: I have had patients at nursing homes under my care. As a medical practitioner, I would not necessarily be by the patient’s bedside holding his or her hand waiting for the patient to fall out of bed. The management of the patient’s care involves a medical practitioner. This is not a turf issue. There is a good argument for a medical practitioner to be involved in these issues, whether they be end-of-life issues or issues related to the management of an older patient in a nursing home who has fallen out of bed. The member for Churchlands said that the doctor might take two hours to see a patient. The management approach is referred to a medical practitioner, and I believe it is an important and integral part of this legislation. I am a little disappointed with the member for Dawesville, although I do not wish there to be any acrimony over this issue. I am sure that will not occur; nonetheless, I suggest that, just because the medical practitioner is the person central to these important decisions, it does not mean that the medical practitioner must be immediately available by the bedside. However, in the concept of the management issues, essentially, the buck must stop somewhere. I am concerned that the member for Dawesville could suggest that the buck could stop with the cleaner or one of the carers. We are talking about an important issue of management. It is not valid to suggest that because a doctor is within two hours away, he would be precluded from being the central person in the management of these quite important - some not as important - end-of-life issues. There must be some definition that includes the medical practitioner. Ms S.E. WALKER: I support this legislation. I have a sneaking feeling, as I said at the beginning, that it is far too relaxed in some areas. It almost has a policy behind it of shuffling us off the mortal coil more quickly to accommodate the baby boomers. I support the member for Carine’s amendment. Will the member for Roe tell me whether it is contemplated under this part of the bill that a person may be in a life or death situation? Is the member for Roe saying that it is contemplated that if the medical practitioner might be two hours away, he or she can be contacted, but the management buck stops with the medical practitioner? This legislation has always worried me. On behalf of the people who find themselves in this position, such as older Western Australians or people who do not have the capacity to look after themselves, they require a much higher standard of treatment than what can be provided by a cleaner or someone who is not qualified. Most people put their trust in a medical practitioner. They want to think their medical treatment is being handled by a medical practitioner. They would be very disappointed with us as politicians if we were to fob them off to a cleaner or someone who did not have the training and did not have the final say. Ms K. HODSON-THOMAS: I indicate my appreciation to members who have spoken in support of the amendment. As I indicated earlier, it is difficult to grasp the thread of this legislation when it has been left for months on end, and to then find ourselves suddenly thrown into dealing with it. We are talking about proposed part 9D, “Treatment decisions in relation to patients under legal incapacity”. I heard the member for Dawesville’s remarks and I have had a private conversation with him. I heard from the member for Roe and from the member for Nedlands, who spoke with her legal cap on, and she has a good legal brain. She looks at things much differently from me. I am looking at the issue in a practical, commonsense way. What happens now if we need urgent treatment? Do we go to a health professional; do we talk to the podiatrist; do we talk to the occupational therapist; do we talk to the dentist; or do we talk to the medical practitioner? What happens currently? Mr J.A. McGinty: It could be urgent dental treatment, for instance, to relieve pain and suffering. That is probably the best example I can give. Ms K. HODSON-THOMAS: I understand that. However, the terminology in the clause is far too broad. I would rather it was worded in a different way. That is the reason for my amendment. As I said, there is a difficulty in dealing with this legislation. When were we dealing with it last? How long ago was it? Mr J.A. McGinty: It was 20 September. It is two months later. Ms K. HODSON-THOMAS: Yes. Here we are debating it late in the evening two months later. From my perspective, I am disappointed that some members of this place are not present in the chamber. One of those is the member for Southern River, who is unwell. I want to record in this place that I hope he is recovering swiftly. He is a great contributor to debates. Mr J.A. McGinty: Yes.
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Ms K. HODSON-THOMAS: I would have liked to hear him contribute to this debate, as some of the arguments he has presented in this place have been very compelling. Having said that, the member for Swan Hills and probably other members might have supported my amendment. In any case, I want to know from the minister: what happens now? What are the circumstances? The minister can answer by way of interjection. Mr J.A. McGinty: People will always need consent to any treatment, whether it be dental treatment or medical treatment. Obviously if somebody is involved in a major accident and it is a medical issue, it is the health professional, a medical practitioner, that you will turn to, unless one is not available, in which case you will turn to a nurse practitioner or someone of that nature. However, this clause does not cover only end-of-life medical decisions. That is the essential point of the difference in the argument on this clause. Ms S.E. WALKER: The point is that it could cover end-of-life decisions. Mr J.A. McGinty: Yes, it does. Ms S.E. WALKER: The minister has included an escape clause that allows cleaners to make end-of-life decisions. Mr J.A. McGinty: No; they must be health professionals. Ms S.E. WALKER: What does the Civil Liability Act say? What does that cover? It refers to the meaning of “health professional”. The member for Dawesville, who has carriage of this bill for the opposition, says that for people who fall out of bed it could be a cleaner. I am sorry, but I just do not think it is good enough for us as parliamentarians to inflict this clause on Western Australians. Dr K.D. Hames: You do not think it is good enough for somebody who is legally incapacitated and falls out of bed? Ms S.E. WALKER: No, I do not think it is good enough for us to say to Western Australians who are legally incapacitated and who fall out of bed and break a hip that it will be okay for the cleaner to look after them and give them urgent treatment. It is not okay. I do not know whether some members understand this legislation. From what the minister has said, someone must make a decision for a person in a nursing home who has a terrific toothache and needs the tooth removed. Is the minister saying that the person must be a health professional? Mr J.A. McGinty: The health professional in that case would be a dentist. Ms S.E. WALKER: Yes. I am asking the minister. For example, who makes the decision for someone in a nursing home who is legally incapacitated and has a toothache? Is it a health professional? Mr J.A. McGinty: Yes, in the case of urgent treatment. Ms S.E. WALKER: A health professional? Mr J.A. McGinty: Yes, a relevant health professional. You wouldn’t go to a podiatrist! Ms S.E. WALKER: Okay, but if that same person comes back and during the night falls out of bed, the member for Dawesville says that it is okay for the cleaner to make an urgent intervention. Dr K.D. Hames interjected. Ms S.E. WALKER: I do not think so. Dr K.D. Hames: The cleaner is not a health professional. Ms S.E. WALKER: What if the person breaks a hip and the nurse, not the doctor who is managing that person, makes the decision? Mr J.A. McGinty: There are no doctors in Norseman if you fall out of bed in Norseman District Hospital! Ms S.E. WALKER: Is that not the minister’s fault? That is his poor, shoddy work as the health minister. He should shoot himself in the other foot. That is what I say. Mr J.A. McGinty: First of all the member for Hillarys and now the member for Nedlands! Ms S.E. WALKER: The minister should be tidying up this legislation and not rushing it through. He has brought this bill on late and members might not vote for it if he does not get this part right. It is not good enough to say that a person who falls out of bed in a nursing home, and who has a doctor, can be given urgent treatment by a variety of people and have no recourse to the doctor. Dr G.G. JACOBS: I thank you for your indulgence, Mr Acting Speaker (Mr A.P. O’Gorman). I hope I did not detect a tone of tiredness in your voice. We could call the person a generic health professional, but many situations potentially involve end-of-life decisions. In that context it is important that a health professional be a medical practitioner. As the member for Nedlands has said, the people of Western Australia deserve that. We
[ASSEMBLY - Tuesday, 28 November 2006] 8905 need to tighten up the definition. It might involve a dental decision, but I suggest that unless a health professional is defined as a medical practitioner, there is the potential for a generic health professional to be dealing with end-of-life issues. Ms S.E. WALKER: If a person is in a nursing home and legally incapacitated, would he automatically be under the care of a medical practitioner? Dr G.G. Jacobs: Absolutely. Ms S.E. WALKER: How would we know whether that person needed to go to a dentist? Would the medical practitioner be called in to say that he needs to see a dentist? Mr J.A. McGinty: No is the answer to that. Ms S.E. WALKER: The minister is not a doctor, although he would like to be. He is not really a lawyer; he is a student. Dr G.G. Jacobs: If the patient were under my care, for example, someone from the nursing home might phone and say that the patient had a severe pain in the jaw. I would be consulted and perhaps I would determine the cause of the pain in the jaw. Ms S.E. WALKER: Mr Acting Speaker - The ACTING SPEAKER: The member for Roe is giving the member for Nedlands an answer by way of interjection. Ms S.E. WALKER: Yes, but I cannot hear because of all these conversations on my left. Dr G.G. Jacobs: The nurse would call the doctor. The doctor would have a group of patients under his care. That would not mean that he would see them every day. He might see them as a group once a week, but he would visit them individually. If there were an urgent need at any time, such as a severe pain in the jaw or any other ailment, the doctor would be called. A decision would be made about what treatment and what management would be instituted. The doctor might say that perhaps the pain was caused by a tooth and that a dentist should be consulted. That would be one of the treatment management options. Dr K.D. HAMES: I was not going to speak on this clause, because I wanted to get on with the vote, but I have to provide for the record the alternative view to the explanation that has been given. An excellent example would be a remote Aboriginal community, such as Kiwirrkurra in the western desert. They do not have doctors. Ms S.E. Walker: They have - Dr K.D. HAMES: Did I interrupt the member for Nedlands? Ms S.E. Walker: Yes. Dr K.D. HAMES: I did not. The ACTING SPEAKER: Order! Members need to address the Chair, not each other. Dr K.D. HAMES: In most cases what was said by the member for Roe would be correct, but not all. That is why the legislation is currently not specific. It does not cover all cases. A nurse health professional works in Kiwirrkurra and does most of the work looking after patients there. Mr T.G. Stephens: Not always. Dr K.D. HAMES: They are regularly visited by the Royal Flying Doctor Service or by medical practitioners. I think they come to Kiwirrkurra once a month. There are also regular visits by dentists. If a patient is mentally incapacitated and has a pain in the jaw and a dentist visits, one would not go to the doctor and ask whether it is okay for the dentist to see this person who is in pain. One would get the dentist to have a look. The dentist is the health professional. Ms K. Hodson-Thomas: They have a dentist up there? Dr K.D. HAMES: They have a dentist who visits, the same as the doctor does. Ms S.E. Walker: It can’t be urgent then. Dr K.D. HAMES: It may be urgent. It is not the case 100 per cent of the time. The member for Nedlands is trying to make one shoe fit all. Ms S.E. WALKER: I have lived in isolation for four and a half years and I know exactly what goes on. I remember when I delivered an Aboriginal child, because there was no doctor around. We rang the doctor in Carnarvon. We got a nurse actually. What the member for Dawesville is saying does not make sense. Dr K.D. Hames: Yes, it does.
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Ms S.E. WALKER: No, it does not. I will tell him why. He is saying that a person in this remote community may be incapacitated. He is saying that when this person has a toothache and the dentist visits, it comes under urgent treatment. If it was that urgent, he would be taken to the dentist or someone would get him to a doctor. I do not accept what the member is saying. Ms K. HODSON-THOMAS: I seek some clarification. This is my amendment. I wish to double check. I do not trust anyone in this place. The one thing I have learnt in politics is not to trust anyone. I have moved to delete lines 9 and 10 and substitute other words. The amendment moved in my name clearly indicates the words to be inserted. Is that correct? The ACTING SPEAKER (Mr P.B. Watson): No; the words must be deleted. You have to delete the words first and then insert words. Amendment put and negatived. Mr J.A. McGINTY: I move - Page 23, after line 8 - To insert - 110ZIA. Urgent treatment after attempted suicide (1) Subsection (2) applies if - (a) a patient needs urgent treatment; and (b) the patient is unable to make reasonable judgments in respect of the treatment; and (c) the health professional who proposes to provide the treatment reasonably suspects that the patient has attempted to commit suicide and needs the treatment as a consequence. (2) The health professional may provide the treatment to the patient despite - (a) that the patient has made an advance health directive containing a treatment decision that is inconsistent with providing the treatment; or (b) that the patient's guardian or enduring guardian or the person responsible for the patient under section 110ZD has made such a treatment decision in relation to the patient. Debate adjourned, on motion by Mr T.G. Stephens. OWNER-DRIVERS (CONTRACTS AND DISPUTES) BILL 2006 Consideration in Detail Resumed from 23 November. Debate was adjourned after clause 18, as amended, had been agreed to. Clause 19: Functions - Mr D.F. BARRON-SULLIVAN: I wonder whether the minister could consult her advisers and give me an answer to my question. Clause 19 relates to the functions of the Road Freight Transport Industry Council. Essentially, it charges the council with the responsibility of developing and reviewing the code of conduct to be set up under this legislation. Will other people be involved in that process? The minister indicated previously that the process has not yet commenced. Presumably setting up the code of conduct will be a fairly complex matter. Will other people be involved, apart from those who are on the Road Freight Transport Industry Council? Will the industry groups be consulted? What opportunity will they have to shape the development of the code of conduct? If other people will be involved, who are they specifically? Ms A.J.G. MacTIERNAN: The council will deliberate on the matter. Like any council, it is likely to have input from a variety of other people. For example, one would expect that the representative of the Transport Forum may well have input from its paid officers. Mr D.F. Barron-Sullivan: They are already on the council as a result of the legislation. Who else is on it apart from the people listed under clause 18(3)? You do need your advisers, don’t you? Ms A.J.G. MacTIERNAN: I am talking about people other than those listed in the bill. A representative of the Transport Forum will be on the council. That person, for example, may be the owner of a trucking company. However, the chief executive officer of the Transport Forum, or indeed some other paid member of the staff of the Transport Forum, may prepare briefing papers, which will then be given to the council and then - Mr D.F. Barron-Sullivan: Do you understand that this legislation does not say that there shall be only one person from the Transport Forum of WA on it? All members of the Transport Forum - up to eight members -
[ASSEMBLY - Tuesday, 28 November 2006] 8907 could be on this council. It does not say that. We have been through that when we debated the previous clause. You could have a load of TWU people on the council. Mr T. Buswell: Did you say “could”? Mr D.F. Barron-Sullivan: They probably would be on it. Go away from the TWU, minister, because you keep talking about it. Ms A.J.G. MacTIERNAN: We are not talking about that because that clause has already been dealt with. Mr D.F. Barron-Sullivan: Who else will be on it, apart from representatives from the Transport Forum and the TWU? Will the Chamber of Commerce and Industry of Western Australia, for example, have a direct say? Ms A.J.G. MacTIERNAN: The member has confused himself as to the nature of this clause. We are dealing with clause 18. Mr D.F. Barron-Sullivan: We are dealing with clause 19. Ms A.J.G. MacTIERNAN: Yes, that is right. Clause 18 dealt with the membership of the council. We dealt with the issue of the opposition’s friends in the Chamber of Commerce and Industry of Western Australia and their desire to be on it. When this issue was raised previously, I said that the capacity to consider other organisations exists. Mr D.F. BARRON-SULLIVAN: At the risk of being repetitive, I will go over the question again. I am not trying to have a go at the minister. Apart from those who are on the council, will the minister allow anyone else to have a direct say in the development of the code of conduct? Will the minister allow only those people on the council to have a say? If the minister allows other people to have a say, will she allow the Independent Contractors of Australia and the CCI to have a direct say in the development of the code? Ms A.J.G. MacTIERNAN: Anyone will be entitled to make submissions to the council. I anticipate that the council will commence the process by seeking submissions from the public. Any agency, organisation or interested individual would be entitled to make a submission to the council. Mr M.J. COWPER: Does the minister take advice from industry on recommendations and the development of policies? Will the minister outline how the system currently operates? Does the minister seek information through a forum? Ms A.J.G. MacTIERNAN: We have a number of mechanisms. The Transport Forum, which is the industry’s peak road transport body, was intimately involved. The Transport Forum was part of the team that we worked with to develop the policy of the bill. Further, once the policy was agreed to, the Transport Forum was part of the team that we worked with to determine the detail. Over and above that, the ministerial road freight council meets every couple of months. It has input into a raft of road transport issues. Mr M.J. COWPER: Does the minister envisage that those currently participating on that council will be considered for positions on the Road Freight Transport Industry Council? Is it a case of transferring the membership from current councils or does the minister plan to wipe the slate clean and call for submissions? Ms A.J.G. MacTIERNAN: We will certainly ask the Transport Forum to nominate a person. Other organisations that are not listed in clause 18 will be given the opportunity to make a cogent case for why they should be represented. The fact that an organisation has a view will not alone entitle that organisation to consideration. However, if an organisation shows that it represents a significant body of people that will be affected by the legislation, it will also be considered. Mr M.J. COWPER: This council, as the minister loosely termed it, that currently exists - Ms A.J.G. MacTiernan: What council? Mr M.J. COWPER: The minister said she had some sort of council - Ms A.J.G. MacTiernan: I said there are two different things. There is the ministerial road freight council, which does not deal primarily with this legislation; it deals with a whole raft of issues to do with road transport. In relation to this particular legislation, there is a smaller group that includes representatives of the Transport Forum and the TWU, together with DPI. Mr M.J. COWPER: Is there a reason why they must be enshrined in this legislation? Is there a problem with the function of that group as it currently advises the minister? Ms A.J.G. MacTIERNAN: No, this is a formal structure we need to put in place. We need a way of moving forward with the development of the code of conduct. We wanted to make sure that this was something that was driven by industry. We want people who have the skills and the knowledge of the industry and who can have input to the code of conduct. That is why this has been structured in this way. This is a structure that has been devised after a lot of consultation with industry.
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Mr M.J. COWPER: Paragraph (a) refers to providing advice to the minister; (b) refers to preparing and reviewing the guideline rates on a regular basis; (c) deals with promoting and encouraging compliance with the code of conduct and guideline rates; (d) refers to developing, publishing and promoting model owner-driver contracts; and (e) refers to providing advice and recommendations to the minister in relation to any other matters relevant to owner-driver contracts or commercial practices. Is that not loosely price fixing, in the minister’s opinion? Ms A.J.G. MacTiernan: No. Mr M.J. COWPER: I suggest it would be and it could be interpreted that way if it was examined from a different perspective. Clause put and passed. Clause 20: Powers - Mr D.F. BARRON-SULLIVAN: This clause states that the council has all the powers it needs to perform its functions. What limitations are there on those powers? For example, if the council wanted to round up 20 operators in the industry and go through their books and all that sort of thing, is there any restriction on that? What is the limitation? What is meant by “all the powers it needs”? Ms A.J.G. MacTIERNAN: This is a fairly standard clause that has been devised to ensure that there is a match between the functions that are given to an agency and the powers that that agency or body might have. This body has no powers of inspection. That is not the nature of its task. It is not an enforcement agency in any sense. It is inconceivable that that would be included as its task because it does not need to undertake inspections of anyone’s books in order to carry out its functions. Mr D.F. BARRON-SULLIVAN: Read in conjunction with other clauses, this body could have quite extensive powers. For example, clause 25 says the department must provide the council with any support services that the council reasonably requires. Let us say the council decided when preparing and reviewing the guideline rates on a regular basis, which is one of its functions under clause 19, that it wanted to look at the books of 20 companies. What is to stop the council saying to the department, “Pop out there and pick up all the information we need”? Ms A.J.G. MacTIERNAN: The department has no power to do that and this legislation does not empower it to do that. Mr M.J. COWPER: It concerns me that primarily the council will be stacked. Ms A.J.G. MacTiernan: Stacked with whom? Mr M.J. COWPER: With representatives from the union. Ms A.J.G. MacTiernan: What is the evil thing that you think they might do? Mr M.J. COWPER: I will get to that later. Ms A.J.G. MacTiernan: You have not thought about it. You think union - “bad”. Think it through. If you have this concern, articulate it. Mr M.J. COWPER: I will articulate it. The point I am making is that this is an empowering clause. It is good that the minister has come forward and spoken on this issue. The minister is saying that this clause is innocuous and that a similar clause is included in other legislation. Obviously, it is a safety net that provides the ability to do whatever the minister wants it to achieve. I have a great concern that the council will be stacked with people who will take the small contractors to the cleaners. Ms A.J.G. MacTiernan: This bill is for the small contractors. This is so bizarre. You are so far off the mark. Mr D.F. Barron-Sullivan: The minister does not understand the significance of dropping the limit to 12 tonnes, and that is the truth of it. Mr M.J. COWPER: I have a real concern and I want the minister’s comments recorded in Hansard so that at a later date we will be able to read what is the intention of this clause. The minister dismissed my colleague’s question by saying that a similar clause is included in other legislation. It worries me that this clause is in the bill in the first instance. I ask the minister to give this chamber an assurance that this clause will be appropriately used. I am asking a legitimate question so that we can have it on the record for the future. Ms A.J.G. MacTIERNAN: This is the biggest lot of twaddle I have heard. The whole driver for this legislation are that these small business people. The owner-drivers came to us and said that they needed the government’s help because they needed some protection from these big players. They said that they are the small guys in the industry who are being squeezed out and their health is being compromised, their economic future is being compromised and their relationships are being compromised because of the conditions they work under. If the member thinks that the government has another agenda, he should tell this chamber what it is. What is it in this
[ASSEMBLY - Tuesday, 28 November 2006] 8909 legislation that could be anything other than a benefit to these owner-drivers? The whole thing is designed to provide a safety net - a level of protection for these drivers - and we have this absolute twaddle. The only thing members opposite can say is that the Chamber of Commerce and Industry does not like it. We know the CCI is not represented - Mr M.J. Cowper: They said to us that this bill is not on. Ms A.J.G. MacTIERNAN: Have you tabled the names of the people who said that? Mr M.J. Cowper: I will hang on to that information for the time being. Ms A.J.G. MacTIERNAN: That is right. It will be mum, dad and Auntie Florence. Are any of those people owner-drivers or are they the member’s aunties and uncles? If they have any credence, the member should show the information to us. If these people do not want this bill, will they mind this chamber seeing the information? Mr M.J. Cowper: Many people are worried about this bill. Ms A.J.G. MacTIERNAN: The unnamed - the famous silent majority. I ask the member to tell members how people will be disadvantaged and what is the secret agenda behind this legislation. Clause put and passed. Clause 21: Minister may give directions - Mr M.J. COWPER: Clause 21(1) states - The Minister may give written directions to the Council . . . in relation to a particular matter, . . . Subclause (2) goes on to state - The Minister must cause the text of any direction given under subsection (1) to be laid before each House of Parliament, or dealt with under section 54, within 14 days . . . Can the minister give us an example of the sort of information she may seek under this clause or the sort of direction she may make from time to time? Ms A.J.G. MacTIERNAN: This provision is to ensure that the activities of the council are in the public interest. For example, if the council puts forward a proposition that the guideline rates or particular rates should be at a certain level, and I want to see the research behind that on which the proposition is based so that I can make sure that it is fair and reasonable and that the public interest is being properly protected in the process, I have the capacity to direct the council, for example, to provide that information to me. Mr D.F. Barron-Sullivan: If you want to know, as part of that assessment, what employers are actually paying or what a company is paying, how do you find that out? Do you ask the council what the company is paying? How do I know that these guidelines - Ms A.J.G. MacTIERNAN: That is the advantage of having people who are in the industry on the body in order to - Mr D.F. Barron-Sullivan: Where would they get the information from? Ms A.J.G. MacTIERNAN: They will get information from the industry. Mr D.F. Barron-Sullivan: How? If I run a company, and they want to know how much I am paying - Ms A.J.G. MacTIERNAN: It is similar to what we do with the bus contractors. It must be borne in mind that we are determining a safe, sustainable rate. That safe, sustainable rate is based on the cost structures of the industry. In the same way as we determine a particular rate for school bus contractors by going through their costs, it is proposed that the industry will do the same analysis. Of course, there are mechanisms and accounting practices that will enable us to make those sorts of determinations. Mr M.J. Cowper: Will there be different schedules for different localities? A number of different factors impact on - Ms A.J.G. MacTIERNAN: Yes, absolutely. That is right. That is why we talk about guideline rates and acknowledge that we cannot simply set a global rate. All sorts of individual factors will vary with different vehicles and with a raft of different arrangements, such as what is paid for accommodation and a number of other circumstances, including whether a person has someone who helps him load and unload. A raft of different measures could affect the contract. The whole purpose of this provision is to recognise that for each contract, a raft of factors need to be taken into account. Mr M.J. COWPER: While we are talking about these guidelines - I know that it is covered further on in the bill - I would be interested to know how the minister will disseminate to the industry the current guidelines or the rates applying from time to time. As I understand it, the chairman can change those rates under some of the
8910 [ASSEMBLY - Tuesday, 28 November 2006] upcoming clauses. How will the minister communicate that to the people on the ground? They may well think that they are complying with the guidelines - Point of Order Ms A.J.G. MacTIERNAN: We are going to stay here tonight until debate on this bill is finished. Therefore, could we perhaps deal with those sorts of issues when the relevant clause is called on? I ask members to deal with those issues when the relevant clause is debated. I am quite happy to answer the questions. However, at the moment we are talking about giving directions. The ACTING SPEAKER (Mr P.B. Watson): On that point of order, the member must talk specifically to the clause that we are dealing with. Debate Resumed Mr M.J. COWPER: I acknowledge that this will be covered later in the bill, but I raised this because of a particular point the minister has made. Ms A.J.G. MacTIERNAN: I will deal with this matter when we get to the clause. Mr M.J. Cowper: I am happy with that. Clause put and passed. Clause 22 put and passed. Clause 23: Constitution and proceedings of Council - Mr D.F. BARRON-SULLIVAN: This clause relates to schedule 2. Clause 12 of schedule 2 provides that the council can pass a resolution if it has been assented to by each council member by letter, telegram, telex, facsimile and so on, and that resolution would have the same effect as though it had been passed at a general meeting. What is the purpose of that? For example, the council might decide to hold a meeting in a regional area, as provided for in clause 13 of schedule 2. Would it not be good to provide some incentive for all the members of the council to go to that regional area for that meeting? My concern as a country member is that we are making it too easy for decision makers and people who can influence the decision-making process to not go to country areas. If all the members were required to be in attendance, we would ensure that regional areas were better catered for and looked after. Anyone who has attended these sorts of meetings would know that there is nothing like one-on-one discussion and so on. I realise that this relates to a resolution. However, the council members would probably have some discussion and consideration, and look at some research, before they made a resolution. Why have the council members been given this easy way out? As the member for Murray has just reminded me, a quorum can comprise half the members of the council. That is only four people. The council will be guiding this important area of policy. I would have thought that the minister would want all the members of the council to make a contribution. Ms A.J.G. MacTIERNAN: This is a standard provision that applies to many bodies. The reason for this provision is to provide flexibility. Often a meeting is held and everyone attends in person. A decision may be made at that meeting to await a further piece of information, or to give people more time to think about the matter before a final decision is made. We do not want to require people to come in from remote areas to attend a meeting. Importantly, because of the nature of this industry, many of these people will be located away from a central location, so it may be difficult to get them together at short notice. The intention is not to deter the council from meeting. From my experience of other bodies that have this provision, all the members still get together and hold meetings. However, this provides an added flexibility. Often only a single matter remains to be resolved. Rather than bring in everyone from different parts of the state, it would make a lot more sense to enable a decision to be made by a different process. Mr M.J. COWPER: Is the minister saying that this will be the exception rather than the rule? Ms A.J.G. MacTiernan: It is certainly not intended that this will be a common practice. However, we need to acknowledge that because some of the people on the board will be owner-drivers, this will present a particular challenge. It will not be just a situation in which these people are located elsewhere and can be flown down for a meeting. The work of these people often requires them to drive throughout the state, so it may be difficult to get them into town for a meeting. Mr M.J. COWPER: I thank the minister for that. I just wanted to put it on the record that this will be the exception rather than the rule. Mr D.F. BARRON-SULLIVAN: The minister does not need to respond but I personally commend her for not going down the politically correct path and for using the terms “chairman” and “deputy chairman”. I think that is very progressive of the minister. Clause put and passed.
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Clause 24: Remuneration and allowances - Mr M.J. COWPER: We touched on remuneration and allowances the other day. The minister said that there will be a schedule of remuneration. Is it possible to get a copy of the schedule of remuneration for council members? Ms A.J.G. MacTIERNAN: We will first have a recommendation from the Minister for Public Sector Management on which we have to make a determination. We have to be mindful of what we must pay people to get them on to such boards. We talked about standard sitting fees. There are approximately 4 000 board members in Western Australia on various government boards. The amount they are paid varies according to what is accepted in each industry and what needs to be paid to get people to go on the boards. We expect to pay a meeting fee of $300 to $500 a day. Mr M.J. COWPER: Maybe we should have a contracts and disputes bill for those 4 000 people! Once the system is in place and up and running, where would one find a copy of the remuneration paper? Ms A.J.G. MacTiernan: One could ask a question in Parliament and one would be advised. Mr M.J. COWPER: Where can a person go to look at the document? Ms A.J.G. MacTiernan: You can ask a question in Parliament. Mr D.F. BARRON-SULLIVAN: The minister should forget about how we find out. How do members of the industry find out? Ms A.J.G. MacTIERNAN: Once the legislation is through, we will make a determination. We will ask for nominations. We will advise what the sitting fees are at that time. Quite frankly, my experience of boards of this nature is that the sitting fees are not likely to be a major issue because people from the various groups will want to go on it. We anticipate that the sitting fees will very much be the standard sitting fees that are paid to board members who are paid on a fee basis. Mr M.J. COWPER: Compared with the 4 000 people in this state who are on other boards, how would I know that I am getting a fair crack of the whip if I were on the board? Ms A.J.G. MacTiernan: You do not have to go on it; it is as simple as that. Mr M.J. COWPER: It is arbitrated by the minister of the day? Ms A.J.G. MacTIERNAN: That has been the standard position. It also applies in the port authorities. It applies in a raft of boards. Mr M.J. Cowper interjected. Ms A.J.G. MacTIERNAN: The member can ask questions. Mr M.J. Cowper: We are asking them now. Ms A.J.G. MacTIERNAN: Each board will pay a different rate. No rate has been determined as yet. Mr M.J. COWPER: I did not quite get an answer to the question. Ms A.J.G. MacTIERNAN: A rate has not yet been determined. A rate will be determined after the legislation has been passed. I anticipate that the rate will be a fairly standard rate for a sitting fee of somewhere between $300 and $500 per meeting. Clause put and passed. Clause 25: Department to provide support services to Council - Mr M.J. COWPER: The clause states - The Department must provide the Council with any support services that the Council reasonably requires. Is the department in this case the Department for Planning and Infrastructure? Ms A.J.G. MacTiernan: That is right. Mr M.J. COWPER: The council, which could potentially comprise a large number of Transport Workers Union members, will have access to government resources. Is that what the clause provides? Ms A.J.G. MacTIERNAN: To do what? Mr M.J. Cowper: Whatever they like. Ms A.J.G. MacTIERNAN: How will this provision allow them to do that?
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Mr M.J. Cowper: Seven of the eight members of the council could potentially be TWU members. There is nothing to prevent that occurring. The clause provides that the department must - not shall, will or could - provide support services to the council. Ms A.J.G. MacTIERNAN: Does the member see the last two words of the clause? Mr M.J. Cowper: It states that the department must provide the council with any support services that the council reasonably requires. Ms A.J.G. MacTIERNAN: Those two words put a restriction on the services that are required. The department can provide only the support services that are reasonably required. Reasonable services could be what the council needs to discharge the functions that it is charged with under this legislation. This legislation will give the council specific obligations and functions. If the member is concerned about this provision, he must think that the council should not have the assistance that it reasonably requires. The converse of that is quite absurd. Mr D.F. Barron-Sullivan: If you do not understand our concerns by now, you never will. Ms A.J.G. MacTIERNAN: No, I do not. All I am hearing is “TWU, TWU”. There is a fog surrounding members opposite because they keep referring to the TWU and unions as bad. If unions are involved, it is bad and evil. Members cannot articulate it any better. They are just saying that unions will do bad things. What bad things could they do? Mr D.F. Barron-Sullivan: They put you in Parliament to start with. Ms A.J.G. MacTIERNAN: I assure the member that the people of Armadale put me in Parliament. Mr D.F. Barron-Sullivan: The unions preselected you for a safe Labor seat. Ms A.J.G. MacTIERNAN: That is entirely incorrect. The ACTING SPEAKER (Mr P.B. Watson): Order, members! Ms A.J.G. MacTIERNAN: As a matter of interest, because I am sick of this nonsense, I sought the endorsement of no faction at my preselection. Mr D.F. Barron-Sullivan: What faction are you in? Ms A.J.G. MacTIERNAN: I am in the extreme centre. Several members interjected. The ACTING SPEAKER: Can members return to the clause? I am sure that everybody wants to get on with the debate. Ms A.J.G. MacTIERNAN: This provision recognises that the council has obligations under the legislation, that it will need assistance to discharge those obligations and that the department is to give it any assistance that it reasonably requires. The converse would be a complete nonsense. Clause put and passed. Clause 26: Regulations may prescribe code of conduct - Mr D.F. BARRON-SULLIVAN: It is amazing that the minister appears to not even support her own legislation! Ms A.J.G. MacTiernan: You are such a turkey, coming along with your smart little comments; what a goose. Mr D.F. BARRON-SULLIVAN: Did the minister need advice from her political adviser to say that? We can deal with clauses 26 and 27 together or do 27 later; it does not bother me what we do. Under clause 26 the minister can, in effect, determine regulations that prescribe a code of conduct. Bearing in mind that this code of conduct includes rates of payment and things like that, it is an extremely far-reaching provision. Why, ultimately, has the minister given the arbitration power to the minister of the day rather than the Industrial Relations Commission? If the minister believes in the importance of the Industrial Relations Commission conciliating and arbitrating on these matters, which the bill touches on later - under this legislation the commission is the tribunal - why did she not give this power to the commission? It is an extremely far-reaching power. In effect, the provisions under this code relating to what we call sustainable rates of payment are mandatory. Why are they so far-reaching and why does the minister ultimately have the say on payment rates in this industry? Ms A.J.G. MacTIERNAN: Obviously there is a public interest to be protected. We are concerned at all times to make sure that freight rates are kept at reasonable levels, recognising particularly the position of people in remote areas. It was a mechanism to enable us to keep control of the issue and to be accountable to the people of Western Australia ultimately for the rates that are struck. I could understand the member’s concern if the rates
[ASSEMBLY - Tuesday, 28 November 2006] 8913 were determined by ministerial fiat alone; however, that is not the case. We have very deliberately sought to make this provision a regulation. If we make it a regulation, it becomes a disallowable instrument. If a regulation is not supported by members of the opposition in this place or in the upper house, there is the capacity to raise the issue in the Parliament, to have the debate and, ultimately, have Parliament decide on it. I would have thought that members would embrace that process rather than some nameless tribunal process. Mr D.F. Barron-Sullivan interjected. Ms A.J.G. MacTIERNAN: The Parliament will have a veto power. If the opposition does not approve the rate of pay, it can seek to disallow it. It was our judgment again, after working through this with the industry, that a measure of control was required. Ultimately, we are accountable to the people. When any rates are determined, they are put before the Parliament. If they are deemed to be unreasonable the Parliament has the right to - Mr D.F. Barron-Sullivan: Why not provide for rates to go before the Industrial Relations Commission? Ms A.J.G. MacTIERNAN: That is one possibility. There are two models, and we had to decide which one we thought was better in the circumstances. Given the public interest and the need to ensure that this did not get out of control and that there was an overseeing role in the public interest, we went down this path. Mr D.F. BARRON-SULLIVAN: One of the obvious points is that we still do not know who will be on the council, which will set the overriding policy direction and will make the recommendations to the minister on payment rates and so on. However, it is possible that all eight members of the council will be the minister’s mates from the Transport Workers Union. The legislation is worded so that the minister can appoint whoever she wants. In a nutshell, there could be people with vested interests who make recommendations to the minister - whether or not she will admit it - and to whom in some way or other she and her government owe a great deal, such as members of the trade union movement and that trade union. I understand that it contributes the fourth- largest sum of money to the Labor Party. Mr M.J. Cowper: A member of the centre. Mr D.F. BARRON-SULLIVAN: Yes. We can see how that will give a huge amount of power to the trade union movement and to the Transport Workers Union of Australia. I am not advocating this, because I believe there are other ways of ensuring that owner-drivers are looked after properly, but the other option of having the commission perform this role would at least remove the potential for that influence from the trade union movement or from any other direction. However, the minister has given us her answer to that, so we may as well move on. Clause put and passed. Clause 27: Content of code of conduct - Mr M.J. COWPER: I understand that the code of conduct has not yet been established. Subclause (1)(b) refers to “a safe and sustainable rate of payment”. Can the minister give us an indication of how that formula will be considered, given that we have a vast state and that a number of different factors will come into play? Ms A.J.G. MacTIERNAN: It will be the same sorts of processes that we used with school bus contractors. The member for Murray is a great advocate for school bus contractors. We have a look at what their expenses are; we have a look at the capital costs of their vehicles; we have a look at the cost of their tyres; and we have a look at the cost of their fuel. We look at all the costs that they would reasonably be expected to incur in discharging their duties in moving the vehicles. In fact, subclause (3) provides quite a bit of detail about those sorts of things and the way in which they are calculated. I am really puzzled that the member for Murray finds it perfectly natural and proper to go along with that for school bus contractors, many of whom are represented by the TWU - I stood up to the TWU and did not allow the state to be ripped off, but members opposite went along with the TWU on that matter - and for members opposite to advocate on behalf of school bus contractors, saying that they needed this and they needed that, but when it comes to these different types of drivers who do not live in conservative seats, suddenly there is a lack of interest in their concerns. I want to know why members opposite believe that a school bus contractor needs all this panoply of protection, but the driver of a prime mover who drives long distances does not need that protection. Mr M.J. COWPER: I just - Mr A.D. McRae: Did Linfox donate to the 500 Club? Mr M.J. COWPER: I have no idea. I would not know. Ms A.J.G. MacTiernan: No-one knows. One of the great scandals is that no-one knows who donates to the 500 Club. The ACTING SPEAKER (Mr P.B. Watson): Order, members! Ms A.J.G. MacTiernan: The Len Buckeridge Liberal Party; he’s got the naming rights.
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Mr M.J. COWPER: It is available. Just go down to the register and see. What I want to know is whether or not the TWU is the fourth-largest contributor to the Labor Party. The member for Riverton wants to chime in and put in his two bob’s worth. He is an opportunities man. The ACTING SPEAKER: The member for Murray will please stick to the clause. Mr M.J. COWPER: No, I am saying - The ACTING SPEAKER: No, I am saying that the member should please stick to the clause. Mr M.J. COWPER: I will stick to the clause and go to subclause (1)(d), which states - require a hirer to make and keep records in relation to owner-drivers . . . Will this not be an impost on businesses that will increase overheads and inevitably result in an increase in transport freight costs? Ms A.J.G. MacTiernan: Did Dierdre write that for you? Mr M.J. COWPER: Who is Dierdre, minister? Ms A.J.G. MacTiernan: I just ask you a question because you read it out. Mr M.J. COWPER: The minister has a fixation. The minister reckons I have a fixation on the TWU. Why do I have a fixation on the TWU? It is because it is part of the centre union that funds the minister’s campaign. It is the fourth-largest contributor to the Labor Party in Western Australia. If I am wrong, would the minister correct me please? The ACTING SPEAKER: This is the last time I will warn the member for Murray about not talking to the clause. I have warned him twice and this is the last time. I will call him to order next time. Ms A.J.G. MacTIERNAN: I just want to get this on the record because it is really important that this be understood: the Transport Workers Union represented the school bus contractors. I refused to bow to their unreasonable demands. The ACTING SPEAKER (Mr P.B. Watson): I have said that we will stick to the clause. That applies to both sides. Ms A.J.G. MacTIERNAN: Thank you, Mr Acting Speaker. The member for Murray is proposing that businesses that engage owner-drivers should not be required to keep records. That is a pretty extraordinary proposition. Does the member think that is good business practice? If he does, why does he have a concern about a provision that requires a hirer to make and keep records of owner-drivers and owner-driver contracts? I think it is perfectly reasonable. Mr M.J. Cowper: Do you want to know the reason? It came out of an ICA inquiry in Canberra. The Victorian transport minister said there were 50 000 documents. The equivalent of the council went in and took the 50 000 documents, which tied it up for three days. That is why people in the state are nervous about this. Ms A.J.G. MacTIERNAN: Unfortunately, the member’s research has not been terribly thorough. Mr M.J. Cowper: I have here a copy of the report in the newspaper. Ms A.J.G. MacTIERNAN: This happened in Victoria, did it? Mr M.J. Cowper: Yes. I supplied a copy to the industrial relations minister back in August. Ms A.J.G. MacTIERNAN: Can the member find the copy? Mr M.J. Cowper: The article in The Australian was written by Robert Gottliebsen. Ms A.J.G. MacTIERNAN: Read it. It is very odd, because the Victorian legislation has not yet come into operation. I am a bit surprised that this can happen, but do tell us. Mr M.J. COWPER: I have been asked to define a particular document. I am happy to read it with your acquiescence, Mr Acting Speaker. It reads - To underline the threat, the hearings of the Employment Legislation Committee heard evidence from a director of a medium-sized courier company, Australian National Couriers, James Taylor. He revealed that last year the TWU spent three days at his office inspecting his records then required him to copy and supply to the TWU 50,000 pages of financial records. Ms A.J.G. MacTiernan: Under what legislation? Mr M.J. COWPER: This is under the Victorian legislation. Ms A.J.G. MacTiernan: The Victorian legislation has not yet come into operation.
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Mr M.J. COWPER: It was on 1 December. It highlights the concern that they have with the TWU walking in and behaving in that way. Ms A.J.G. MacTIERNAN: It is impossible to imagine how this could have happened under the Victorian legislation, given that the Victorian legislation is yet to come into operation. I am not clear how that could have happened. Maybe it relates to some other legislation. In any event, it logically could not have applied under the equivalent Victorian legislation because that has not yet come into operation. Think about it. Mr M.J. Cowper: You think about it. That was Mr James Taylor before the ICA federal inquiry. Ms A.J.G. MacTIERNAN: He was probably talking about some other legislation, not this legislation. People cannot act under legislation before it comes into operation. In any event, whatever legislation or whatever state that was in - the member clearly does not know what state or what legislation - it could not happen under this legislation. People can only go in and seek records on behalf of a particular contractor. It will apply to only records that relate to that particular owner-driver who has a complaint and believes that he is being ripped off and is not being paid in accordance with the code of conduct. He then has to give a letter of authorisation to whichever body it may be. He could give it to the Chamber of Commerce and Industry. The member for Leschenault’s friends in the CCI could offer this service. The CCI could then go into the business premises and find the records that pertain to that particular driver. The sorts of things the member is talking about could not possibly happen under this legislation, because each complaint can be initiated only with respect to a particular driver. Clause put and passed. Clauses 28 to 31 put and passed. Clause 32: Functions of inspectors - Mr D.F. BARRON-SULLIVAN: I have a question that overlaps the one I asked earlier. If we are not dealing with an industrial relations matter and we want to keep this away from the Industrial Relations Commission, why will the inspectors be given precisely the same powers as those under the Industrial Relations Act? Why not fold the whole thing into one and call a spade a spade and say that this is an industrial matter and it will be covered by the Industrial Relations Commission? Under this bill, the inspectors will form a crucially important role. They will have precisely the same functions as the inspectors under the IR act. Not only that, they will actually be the same inspectors. Ms A.J.G. MacTIERNAN: These inspectors are from the Department of Consumer and Employment Protection. That is the most appropriate agency in which to provide these inspectors. We do not want to set up an entirely new bureaucracy. Mr M.J. Cowper: You’ve done it with the council. Ms A.J.G. MacTIERNAN: The council is not a bureaucracy; the council is a body that meets from time to time. The inspectors are obviously employees of a department. DOCEP is obviously the best placed agency for these people to be housed. Mr D.F. BARRON-SULLIVAN: What additional resources will be provided to DOCEP in view of this very significant additional workload that could be imposed upon it and the inspectors who are there at the moment? Ms A.J.G. MacTIERNAN: We are not expecting to have to provide many additional resources. These DOCEP inspectors currently cover hundreds and thousands of workers. In the worst case, it would be a question of hundreds of workers. We do not anticipate that there will necessarily be a great deal of complaint in the first instance. Obviously if business is behaving unethically, as the member is suggesting, there may need to be some more resources. Mr D.F. Barron-Sullivan: So what you’re suggesting is that there are not many problems in the industry. Businesses operate ethically and you do not expect too many problems. Ms A.J.G. MacTIERNAN: Our view is that there are some fairly profound issues, but once we actually have a code of conduct in place, that will be preventive. There will not necessarily be a need to go that hard on enforcement, because we suspect that a lot of the work will be done simply by having a code of conduct. Clause put and passed. Clause 33: Obstructing or hindering inspector - Mr M.J. COWPER: The functions of an inspector are listed under clause 32. What are the penalties for obstructing and hindering an inspector? The clause states that it is detailed under a section of the Industrial Relations Act. Will the minister indicate what the penalties are? Ms A.J.G. MacTIERNAN: Hanging, generally, but I will check it! Section 83E of the Industrial Relations Act states -
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If a person contravenes a civil penalty provision, an industrial magistrate’s court may make an order imposing a penalty on the person, not exceeding - (a) in the case of an employer, organisation or association, $5 000; and (b) in any other case, $1 000. That includes burning the records, which the member’s side of the house knows a bit about. Clause put and passed. Clause 34: Access to records - Mr M.J. COWPER: Part 8 is headed “Rights of entry, inspection and access to records”. This is the crux of the bill that concerns me. Potentially, the tribunal will have access to the records of the hirer of an owner-driver. Is this retrospective legislation? How far back can the inspectors go to check the records? Ms A.J.G. MacTIERNAN: That has not been determined yet, but it will be settled under the code of conduct. We certainly do not consider it reasonable to expect it to be any longer than the requirement under the tax legislation, which I think requires records to be kept for seven years. The code of conduct will be a disallowable instrument. We will make sure that the time required to keep records will not exceed the time businesses are required to keep records under the tax legislation. It might be a lot less than seven years. One would imagine that it will probably be only a matter of a couple of years. It certainly will be no more than seven years. Mr M.J. COWPER: I want this clear in my mind. The minister is saying that the inspectors can go back through a business’s records for the previous seven years and that the provision will be in a code of conduct which does not exist but which will exist at some time in the future. That is unfair. Perhaps the member for Victoria Park can help me regarding the legality of retrospective laws being written somewhere in the Constitution. Ms A.J.G. MacTiernan: It will not apply retrospectively. I would not have thought that people could be prosecuted under this provision for not keeping a record. Mr M.J. COWPER: How do we know, when the code of conduct has not been written? Ms A.J.G. MacTiernan: There is nothing in the legislation that says it has retrospective operation. If it does not say it will operate retrospectively, it will not. It will apply only from the time it comes into effect. Mr M.J. COWPER: If it comes into effect on 1 January of a certain year, is the minister saying that records as far back as seven years could be checked? Does she think that according to some futuristic or idealistic code of conduct - Ms A.J.G. MacTiernan: The provision would not have a retrospective effect on breaches of the code. A person would be required to keep the records for the code only from the day that the legislation becomes law. Mr M.J. COWPER: This provision is providing powers of investigation similar to those of the Australian Taxation Office. Why not have a taxation officer or a member of the Industrial Relations Commission conduct this witch-hunt? It is extraordinary that no-one knows the details of the code. Ms A.J.G. MacTIERNAN: The code will be determined by industry players. They will make recommendations, those recommendations will form regulations and those regulations will come before the house. If they are unacceptable, Parliament will disallow them. That is the democratic process. The records will pertain to the particular owner-driver who might have a complaint. I fail to see what is so unreasonable about an owner-driver having access to records that pertain to his engagement. Many larger operations are already required, even under federal legislation, to keep records pertaining to their employees, and those records are discoverable in the event of a dispute. In the event of a dispute, these documents would be brought forward. The same thing would apply in a civil case. If civil action were taken, the same sort of documents would be obtained under discovery. This is a more simple procedure. Clause put and passed. Clause 35: Right of entry by representative to investigate breaches - Mr D.F. BARRON-SULLIVAN: This is one of most far-reaching provisions in the legislation. Under this clause, a Transport Workers Union official could be given authority by an owner-driver to enter a workplace with the power of the law behind him. On the face of it one might say that that is okay, because all that official will do is try to get information to deal with a suspected breach. Let us consider the wording of the legislation. Subclause (2) states - A representative of an owner-driver - That is, a TWU official -
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may enter, during working hours, any workplace where the owner-driver works, for the purpose of investigating any suspected breach of this Act . . . Suspected by whom? A TWU official? A TWU official can use this provision as a ruse to get into any workplace if an owner-driver signs an authority form. Under those circumstances, one can see the sorts of things that a malicious union official could do once he enters a workplace. He could try to drum up safety and health problems. The provision may cause enormous grief for companies that are trying to get on with their business. Once again, let us cut to the chase. The minister keeps talking about the problems associated with long-distance truck drivers. The opposition acknowledges those problems. We, too, would like to resolve those problems. However, we do not believe that this is the way to do that. Dropping the tonnage limit from 12 tonnes to 4.5 tonnes will give the TWU scope to access I do not know how many businesses throughout WA. It will almost be open slather. One has only to think how many workplaces have trucks that weigh 4.5 tonnes or more. This clause refers to “any workplace where the owner-driver works, for the purpose of investigating any suspected breach of this Act”. Once again I make the point it gives carte blanche to the minister’s mates in the unions. The minister has acknowledged that no extra inspectors are needed because there will not be that many problems in the industry. This is not the way to fix the existing problems, minister. Ms A.J.G. MacTIERNAN: That is quite bizarre, because the TWU would generally have right of entry to these workplaces under the federal legislation, so I am not sure why the union would have to race around and find an owner-driver to whip up this problem. Bear in mind that these owner-drivers are small business people. They will obviously be mindful of their position if they falsely accuse a principal of a breach of the code of conduct. This does not apply just to the TWU. One could go to an accountant and have an accountant act as one’s representative. The accountant has the power; he needs to give 24 hours’ notice of entry to the site. He cannot go round and talk to all the different employees on the site and whip them up and foment problems. He has a very limited set of rights. After giving 24 hours’ notice he can present himself on site and inspect the records pertaining to the person who has a complaint. If it is the TWU, it would probably already have rights of entry if a large trucking operation is involved, because it would almost certainly cover the employees on the site. It would not need to use this as a ruse. The bill does not give any right to organise or convene meetings; it does not give any right to do anything on occupational health and safety grounds. This has no direct linkage with occupational health and safety; it relates simply to the issues in the code of conduct. I really do think there is a huge problem because members opposite have such a pathological hatred of unions that they cannot possibly see their way clear to accept the logic of this legislation. I do not understand why members opposite did not have a problem with the TWU when it was representing the school bus contractors. The TWU was the good guy when it was representing those contractors. Mr R.C. Kucera: One would have to be anti small business to oppose any clause in this bill. Ms A.J.G. MacTIERNAN: Very anti small business. Mr M.J. Cowper: It will impact on small business. Ms A.J.G. MacTIERNAN: Which small businesses will it impact on? Mr M.J. Cowper: The big ones like Toll will love this sort of legislation. They’ll be doing deals directly with large companies, as happens in Victoria, and the small bloke will drop off the pace. Has the minister ever run a freight business? Ms A.J.G. MacTIERNAN: The member is saying that we should not have safe sustainable rates. He is saying that we should have unsafe and unsustainable rates. Mr M.J. Cowper: That is not what we are saying at all. Clause put and passed. Clauses 36 to 39 put and passed. Clause 40: Persons who may refer disputes and matters to the Tribunal - Mr D.F. BARRON-SULLIVAN: A lot of people can refer matters to the tribunal, which is of course the Industrial Relations Commission. Why is it called a tribunal? Why not refer to it as the Industrial Relations Commission? Why be confusing and say we will have the Road Freight Transport Industry Tribunal when the tribunal is the Industrial Relations Commission? My second question is: what happens with vexatious complaints? Anybody can refer a matter to the tribunal, including the minister, but what is the procedure for vexatious complaints, and will any penalties be imposed? Ms A.J.G. MacTIERNAN: The Industrial Relations Commission operates its powers in regard to employees. It does not govern relations between principals and contractors. There is a fundamental difference in the way in
8918 [ASSEMBLY - Tuesday, 28 November 2006] which the commission operates. Not only is the Industrial Relations Commission dealing with a different class of relationship, but also it exercises arbitral power; that is, it creates the rights that exist between these powers. The proposed Road Freight Transport Industry Tribunal will adjudicate on the rights that already exist. It will exercise a judicial power. It will not bring the parties together and arbitrate and say that the award will give X, Y or Z; it will not have that set of powers. That will be determined through the code. The role of the proposed Road Freight Transport Industry Tribunal is to determine whether an individual who might have a grievance has had his proper entitlements under that code of conduct. It will have quite a different role from the function of the Industrial Relations Commission. Mr D.F. BARRON-SULLIVAN: We know that and we drew the minister’s attention to it earlier. If it were simply called the Industrial Relations Commission, it would only have the powers to act on these matters as are given to it under this legislation. Other legislation would not give it these powers - only this legislation does that. Why call it a tribunal? It is the same body and same people. All they will do is enforce this piece of legislation instead of the Industrial Relations Act. Again, I do not expect an answer, because the minister will just waffle on. The minister is trying to blur the picture to try to demonstrate that it is not an industrial relations matter when, for all intents and purposes, it is. Ms A.J.G. MacTIERNAN: I will say it one more time: it has a very different set of functions. It will deal with a different relationship; it will deal with the relationship between a contractor and a principal. It will deal with a different relationship and it will have a different bunch of powers. It will not arbitrate and it will not make a determination on award payments. However, it will adjudicate; it will act in a judicial capacity. For example, the Coal Industry Tribunal has on it the same personnel as the Industrial Relations Tribunal. It is not a totally new concept to have similar personnel basically cross-vested with responsibilities. It seems to be a very responsible way of going about it. Mr M.J. COWPER: If I were running a freight business and someone wanted to raise an issue against me, that person could refer his power to another person to take an action against my company. If that complaint were found to be frivolous, malicious or vexatious and I had to travel from my freight agency in Halls Creek to Perth to present before the tribunal, thus incurring costs and losing productivity, and the tribunal said that it was a frivolous, vexatious or malicious complaint, would I get costs awarded in my favour? Ms A.J.G. MacTIERNAN: I wonder whether the member can give us some time. These matters are in the industrial relations legislation. Does the member have that legislation, because this bill refers to the Industrial Relations Act? Mr M.J. Cowper: When the Leader of the House was dealing with that legislation, I put forward 32 amendments to the bill, and the last two of those were about awarding costs when the complaints were vexatious and malicious. My understanding is that it is not provided for under the Industrial Relations Act. I am wondering whether there is any provision in this legislation to stop frivolous complaints from individuals, unions or the minister in dealing with these issues. If I have to travel all the way from Halls Creek, for example, where I have my freight agency, to Perth to deal with an issue and give evidence, and if the action is deemed to be frivolous, malicious or vexatious, what is there to cover me for my costs? Ms A.J.G. MacTIERNAN: Obviously, the matters can be brought to a halt at any stage if they are considered by the court to be vexatious or frivolous. Mr M.J. Cowper: Or malicious. Ms A.J.G. MacTIERNAN: Yes, or malicious. I will take a moment to quickly flick through that IR legislation to see what the provision states. We are basically picking up the provisions that are now standard in the IR legislation. Mr Acting Speaker, I suggest that we recommit this clause. The ACTING SPEAKER (Dr S.C. Thomas): A motion needs to be moved to recommit the clause. Ms A.J.G. MacTIERNAN: Would the member be happy if I addressed that matter in the third reading, or would he like to have the clause recommitted? Mr M.J. Cowper: I would like it to be recorded in Hansard and - Ms A.J.G. MacTIERNAN: I make an undertaking that I will cover that matter in the third reading. Mr M.J. Cowper: I am happy for it to be covered in the third reading, minister, and recorded in Hansard. Clause put and passed. Clauses 41 to 51 put and passed. Clause 52: Trade Practices Act and Competition Code - Mr D.F. BARRON-SULLIVAN: I will not dwell on this, but this is one of the matters that we touched on earlier. We believe that the existing problems within this industry sector are due mainly to the lack of bargaining
[ASSEMBLY - Tuesday, 28 November 2006] 8919 power of owner-drivers. This provision might help address that imbalance. Had we been able to work on this matter on a bipartisan basis we might have been able to resolve the problems in the industry and protect the owner-drivers who are being dealt a bad hand by the companies they are dealing with. That applies particularly to those owner-drivers who have a lack of bargaining power. The minister would know that the industry is finding it very difficult to get drivers. That has led to the situation that some of the smaller businesses in particular are now finding that they are being dictated to by the drivers. There are problems in the industry. This provision, along with some of the other initiatives that we could have considered, would have resolved that without the need for all the heavy-handed, pro-union provisions that are contained in this legislation. I wanted to put that on the record. We discussed it earlier. We have now come to it in the legislation. Ms A.J.G. MacTiernan: What is your proposition? Mr D.F. BARRON-SULLIVAN: We are not going to go through that now - not when we are on clause 52 of the legislation. The minister has indicated that she is hell-bent on getting this legislation through. The point I am making is that in this clause, tucked away at the end of this bill, is part of the solution that would help protect owner-drivers. This is the one part of this bill that we support. Ms A.J.G. MacTIERNAN: Some strange narrative is coming through in the member for Leschenault’s presentation that if we put forward legislation, it is a bad thing if we are serious about it! It is a bad thing if we are committed to the legislation that we put forward! We are described as being “hell-bent on this legislation”. Frankly, we are not going to put up legislation that we do not think is important. We are not going to put up legislation that we are not committed to. The use of the phrase that we are “hell-bent on this legislation” is quite bizarre. Mr D.F. Barron-Sullivan: You are hell-bent! Ms A.J.G. MacTIERNAN: Of course I am! I am hell-bent on doing my job! I am hell-bent on working! When I was in opposition I was hell-bent on being a good worker! That is what we are paid to do. We are not paid to make stupid comments. We are paid to try to achieve something. The member has put an argument about the Trade Practices Act. The member for Leschenault does not want us to legislate. He would prefer it if we did nothing. He would rather that we just told people to go to the Australian Competition and Consumer Commission and ask it to sort out their problems. I can tell him that that is a very difficult thing to do. The member should talk to someone who has tried to get the ACCC to resolve a problem. In any event, even if the ACCC was of a mind to assist these people, the process is very cumbersome. In this case it would mean that every time there was an issue, a clutch of owner-drivers who might, for example, work one week for a particular operator and the following week for someone else, would have to come together as a small group and make an application to the ACCC for approval to negotiate collectively. However, it would apply only for that one time. They would need to go back and apply again the next time the contract came up. Also, even if they did that, the ACCC has no mechanism for resolving disputes. The ACCC does not get involved in making sure that the terms of a contract that has been negotiated are being enforced. The ACCC does not have the capacity to do what we are providing for in this legislation. Also, many of these owner-drivers might offer their services for a raft of different companies. That would mean that they would not be able to take their trucks on the road, because they would be constantly going to the ACCC and asking it to allow them to collude to negotiate on a particular contract. The member’s suggestion is a complete and utter nonsense. It is not a solution for these owner-drivers. Mr D.F. Barron-Sullivan: It is part of the solution. Mr M.J. COWPER: My colleague was talking about clause 52(1)(e), which is contained in part 10 of the bill. I could not agree more with the member on this: it is the only thing in the whole bill that is worth a brass razoo. Clause put and passed. Clauses 53 to 59 put and passed. Schedules 1 to 3 put and passed. Title put and passed. House adjourned at 11.36 pm ______
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QUESTIONS ON NOTICE
Questions and answers are as supplied to Hansard.
PERMITS FOR FARMERS TO USE ROAD TRAINS ON LOCAL ROADS 1603. Mr M.W. Trenorden to the Minister for Planning and Infrastructure I again refer the Minister to her ABC radio interview of 20 April 2006 in which she stated that there was "no backlog in regard to inspecting local roads for farmers road train permits". As a period of five months has now passed, I ask the Minister the following – (1) Has the Minister been approached in the month of October 2006, with serious complaints regarding farmers’ inability to access local rural roads with their "Heavy Vehicles" used for grain harvest delivery? (2) Do these complaints include the fact that some farmers cannot leave their farm gate, or paddock, with their harvest? (3) Do these complaints include the fact that some farmers cannot deliver their harvest to the nearest Co- operative Bulk Handling grain storage facility? (4) Do these complaints come from one of the largest grain producing regions in the world? (5) Do these complaints come from at least five Shires and their incorporated districts within this region? (6) Is it true that a farmer's inability to expeditiously deliver his crop for sale may seriously impact on his farm's economic viability? (7) Will this also have a serious negative impact on the State's – (a) rural economy; and (b) overall economy? (8) Will the required road access be granted to these farmers immediately? (9) Is the failure to release these permits due to the fact that the current condition of many rural roads will not allow the safe passage of farmers "Heavy Vehicles"? (10) Can the Minister confirm that her radio statement of 20 April 2006 was and is correct? Ms A.J.G. MacTIERNAN replied: (1) Yes. (2) The complaints include an argument that farmers cannot leave their farm gate or paddock with their harvest, but this is not factual. Farmers have available to them the same legal methods of delivering grain that they have always had. That is, they can use "as of right" vehicles on any road, or they can use Restricted Access Vehicles (RAVs) where permitted. (3) Refer (2) above. (4) The majority of the complaints do emanate from the areas within the Wheatbelt. (5) Yes. (6)-(7) Refer (2) above. (8) No. Each new route outside of the currently Class 2 & 3 permit network needs to be assessed to confirm its suitability before any RAVs access is granted. However, to address Local Governments' recent requests to add a significant number of roads to the networks in preparation for the harvest, a modified assessment process has been implemented. (9) No. "As of right" vehicles can travel on any road. RAVs, by definition, cannot travel on all roads. Access is dependent upon their design, construction and broader amenity issues. Many of the State's highest standard roads are still not opened to RAVs. (10) I confirm there was no backlog in April and there continues to be no backlog. STATEMENTS OF CORPORATE INTENT 1609. Mr M.W. Trenorden to the Minister for Water Resources (1) When was the Water Corporation’s Statement of Corporate Intent completed by the responsible Water Corporation employees?
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(2) When was it delivered to the Minister’s office? (3) What were the matters of dispute that caused the delay in tabling the document? Mr J.C. KOBELKE replied: (1)-(2) The Water Corporation's first draft 2006-07 Statement of Corporate Intent was delivered to the Minister Assisting the Minister for Water Resources on 20 December 2005, with the final draft provided on 19 June 2006. (3) There were no matters of dispute. STATEMENTS OF CORPORATE INTENT 1610. Mr M.W. Trenorden to the Parliamentary Secretary representing the Minister for Forestry (1) When was the Statement of Corporate Intent (S.C.I.) for the Forest Products Commission completed by the agency? (2) When was the S.C.I. delivered to the Minister’s office? (3) Why has the Minister decided not to agree with the directions of the document? (4) Will the Minister make the details of the dispute public immediately? Mr M.P. WHITELY replied: (1) 23 June 2006 (2) The Statement of Corporate Intent was delivered to the Minister's Office on 23 June 2006 by the Forest Products Commission with a request that the Minister forward the document to the Treasurer for his concurrence. The SCI was forwarded to the Treasurer on 27 June 2006. (3) There is no disagreement. In accordance with the Forest Products Act 2000 following the Treasurer's concurrence of the Statement of Corporate Intent (SCI) the Forest Products Commission (FPC) seeks the endorsement of the Minister. However due to an administrative oversight this did not occur until 2 November 2006. The Statement of Corporate Intent was endorsed by the Minister on 3 November and was tabled in Parliament on 14 November 2006. (4) Not applicable.
HEALTH - SCOLIOSIS SURGERY 1616. Mr M.J. Birney to the Minister for Health (1) Can the Minister advise the number of surgeons currently operating in Western Australia who are capable of performing surgery on Scoliosis sufferers? (2) Can the Minister advise if the State is currently short of these surgeons and if so, by how many? (3) Has the Minister previously received requests from anybody to increase the number of surgeons, if so by whom, when, why and what was your response? (4) How many of these operations are performed each month? (5) How many Scoliosis sufferers are there in Western Australia? (6) How many are currently on the waiting list for surgery and what is the last date of that waiting list? (7) How much does it cost to employ one full-time surgeon capable of doing these operations? (8) Will the Government consider increasing funding for surgeons capable of doing Scoliosis surgery and if not, why not? Mr J.A. McGINTY replied: 1. Currently there are two surgeons in Western Australia (WA) capable of performing surgery on scoliosis sufferers. 2. Royal Perth Hospital (RPH) currently has 3.5 sessions for spinal surgery vacant (a session equals 3.5 hours). There are no spinal surgeons available within WA to fill this vacancy and there are currently no spinal surgeons in training in WA. The two surgeons currently performing scoliosis surgery at RPH also provide a limited service at Princess Margaret Hospital (PMH), both also undertake other spinal surgery and also work in private practice. 3. RPH has received correspondence dated 27 September 2006 from Dr Peter Woodland requesting a fulltime appointment between RPH and Princess Margaret Hospital (PMH). A meeting between the
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spinal surgeons and the Divisional Director Rehabilitation and Orthopaedics Division, took place on 31 October 2006, and the matter is being progressed. 4. RPH has a scoliosis surgery list every Tuesday - one case is booked for an all day list requiring both surgeons to be present as well as a neurologist to undertake spinal monitoring. Therefore, four cases are undertaken per month, except in periods of leave for either surgeon. The following figures for PMH are for a full calendar year, not per month: 2005 - 6 cases 2004 - 4 cases 2003 - 5 cases 5. The number is unknown. Scoliosis is a common condition but only a small number of people progress to surgery. 6. There are currently 52 patients on the waiting list for scoliosis surgery at RPH. Current dates booked are to February 2008. Seven cases are wait-listed at PMH. 7. The cost of an additional surgeon including all additional procedural costs is $936,866. 8. Additional capacity in terms of an additional surgeon or additional lists for the existing surgeons is under consideration. HEALTH - SCOLIOSIS SURGERY 1617. Mr M.J. Birney to the Minister for Health Further to previous questions concerning surgery waiting lists for Scoliosis sufferers, can the Minister tell me how often operations are delayed or deferred due to a lack of surgeons? Mr J.A. McGINTY replied: No scoliosis operations have been cancelled due to a lack of surgeons at Royal Perth Hospital or Princess Margaret Hospital, however: o Delays to surgery will occur during periods of surgeons leave; and o Deferral to an operation will occur if a patient scheduled for surgery is unfit, in which case they are replaced by the next person on the waiting list. NOTE: Surgery on Scoliosis sufferers is only performed at the Royal Perth Hospital and Princess Margaret Hospital. GOVERNMENT POLICY - CLAIMING FOR REIMBURSEMENT OF COSTS INCURRED 1619. Mr M.W. Trenorden to the Consumer Protection I refer to the policy of claiming reimbursement for a cost incurred, and I ask – (1) Why has the State Government changed its policy to pay a maximum reimbursement amount even when clear evidence of accrual expenditure is presented to a higher amount? (2) Will this new policy impact on country people and public servants more than city-based people? Mrs M.H. ROBERTS replied: (1)-(2) This question should be directed to the Minister for Employment Protection. WETLANDS - MAPS 1624. Dr S.C. Thomas to the Minister for the Environment (1) Will the Minister release all maps and descriptions held by the Environmental Protection Authority identifying all conservation category wetlands in the South West land division of Western Australia? (a) If not, why not? (2) Will the Minister release all maps and descriptions held by either the Environmental Protection Authority and the Department of Environment and Conservation identifying wetlands to be protected under the now defunct Swan Coastal Plains Wetland Environmental Protection Policy? (a) If not, why not? (3) Will the Minister release all maps and descriptions held by the Environmental Protection Authority and the Department of Environment and Conservation identifying buffer zones to be placed around wetlands under any environment policy?
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(a) If not, why not? (4) Will the Minister send or allow to be sent by these departments this required information to the Member for Capel? Mr M. McGOWAN replied: (1)-(1)(a) The Environmental Protection Authority refers to the Geomorphic Wetlands Swan Coastal Plain dataset maintained by the Department of Environment and Conservation. This was originally published as: Hill, A C, Semeniuk, C A, Semeniuk, V and Del Marco, A (1996) 'Wetlands of the Swan Coastal Plain'. Volume 2A. Water and Rivers Commission, Perth. The dataset is publicly available on the Department's website at: www.dec.wa.gov.au > Tools, systems and data > Geographic Data Atlas. A guide to viewing the dataset on the Geographic Data Atlas is available at wetlands.environment.wa. gov.au > Data > Wetland Mapping. (2)-(2)(a) This information is already publicly available as part of the Revised Draft Environmental Protection (Swan Coastal Plain Wetlands) Policy and Regulations 2004. Please refer to the CD-ROM in the back of the published document. (3)-(3)(a) There are no maps identifying buffer zones to be placed around wetlands under any environment policy. Descriptions referring to buffer zones may be found in the Environmental Protection Authority's Draft Guidance No. 33 'Environmental Guidance for Planning and Development' (publicly available on the EPA's website www.epa.wa.gov.au). 4. The information sought by the Member for Capel is publicly available. ______