2707

LEGISLATIVE COUNCIL

Thursday 6 June 2002 ______

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

The President offered the Prayers.

THREATENED SPECIES CONSERVATION AMENDMENT BILL

RURAL FIRES AND ENVIRONMENTAL ASSESSMENT LEGISLATION AMENDMENT BILL

GREYHOUND RACING BILL

HARNESS RACING BILL

OLYMPIC CO-ORDINATION AUTHORITY DISSOLUTION BILL

SPORTING VENUES MANAGEMENT BILL

Bills received.

Leave granted for procedural matters to be dealt with on one motion without formality.

Motion by the Hon. Michael Egan agreed to:

That these bills be read a first time and printed, standing orders be suspended on contingent notice for remaining stages and second readings of the bills be set down as orders of the day for a later hour of the sitting.

Bills read a first time.

BUSINESS OF THE HOUSE

Precedence of Business

Motion by the Hon. Michael Egan agreed to:

That on Thursday 6 June 2002 Government Business take precedence of General Business.

SOUTH COAST CHARCOAL PLANT

Return to Order: Claim of Privilege

Motion by the Hon. Ian Cohen agreed to:

(1) That, in view of the report of the independent legal arbiter, Sir Laurence Street, dated 28 May 2002, on the disputed claim of privilege on papers on the Mogo charcoal plant, this House orders that the documents considered by the Independent Legal Arbiter not to be privileged be laid upon the table by the Clerk.

(2) That, on tabling, the documents are authorised to be published.

BUSINESS OF THE HOUSE

Withdrawal of Business

Private Members' Business item No. 7 in the Order of Precedence withdrawn by the Hon. Duncan Gay. 2708 LEGISLATIVE COUNCIL 6 June 2002

CIVIL LIABILITY BILL

In Committee

The CHAIRMAN: Order! The Committee has received an instruction from the House that it has the power to consider an amendment relating to an insurance industry ombudsman scheme.

Clause 1 agreed to.

Ms LEE RHIANNON [11.10 a.m.], by leave: I move Greens amendments Nos 1, 5, 13, 14, 15 and 17 in globo:

No. 1 Page 2, clause 2, lines 5 and 6. Omit all words on those lines. Insert instead:

2Commencement

This Act commences on the date of assent.

No. 5 Page 4, clause 9 (2). Insert after line 8:

(a) an award that relates to an injury received, or to a death resulting from an injury received, before the commencement of this Act,

No. 13 Page 14, schedule 1, clause 1, lines 8-13. Omit all words on those lines. Insert instead:

(2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.

(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:

(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or

(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.

No. 14 Page 14, schedule 1, clause 2, lines 15-23. Omit all words on those lines.

No. 15 Page 15, schedule 1, clause 4, lines 1-18. Omit all words on those lines.

No. 17 Pages 24-26, schedule 2, line 21 on page 24 to line 6 on page 26. Omit all words on those lines. Insert instead:

Divisions 5B and 5C of Part 11 do not apply in respect of legal services provided in connection with a claim that arose before the date of assent to the Civil Liability Act 2002.

The effect of these amendments would be that all provisions of the bill would apply only to injuries that occur on or after the date of assent to the bill. That is more than reasonable. This House often debates retrospectivity, and the amendments address that issue. The Greens believe that backdating the operation of the bill would only serve to deliver a windfall profit for the insurance industry and would have no impact on the cost of premiums. Further, retrospectively commencing the provisions of the bill would inflict massive injustice on some claimants. To ensure reasonableness and the delivery of justice, the Greens ask members to support the amendments.

For example, a small claim commenced in good faith after 20 March might need to be discontinued because of the provisions of the bill, even though the defendant was negligent. The defendant would then be able to seek costs from the claimant. That would be an extraordinary state of affairs. If the amendments are not put in place, a defendant could actually seek costs from a claimant, which would be unfair. The Minister needs to consider the impact of retrospectivity on a certain group of people.

There are many other examples of the injustices of retrospectivity. Further, there is a basic principle at risk here that we believe resides at the heart of the rule of law. Each person has a right to know what law applies to his or her actions. To change laws retrospectively in this fashion is to deny people that right. All members of this place have a deep commitment to upholding rights in law. We have different interpretations of that, but some fundamentals should not be denied, and that is what will happen if the amendments are not adopted. The Greens amendments will ensure that the bill will not affect people before it passes into law. I again put to members that the amendments are entirely reasonable and provide a fair proposal. 6 June 2002 LEGISLATIVE COUNCIL 2709

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [11.13 a.m.]: The Australian Democrats have always supported the concept that, except with money bills, we should not have retrospectivity. This is simply an enactment of that principle. The law should be the law at a point of time, and if it suddenly changes with the unexpected issue of a press release, people who have worked and made their arrangements under that system should be given time to adopt the new system. Premiums were set with that in mind. The precedent of overriding the principle of non-retrospectivity is a dangerous path to follow and we certainly would not support it. The Democrats therefore support the amendments.

The Hon. JOHN DELLA BOSCA (Special Minister of State, Minister for Industrial Relations, Assistant Treasurer, Minister Assisting the Premier on Public Sector Management, and Minister Assisting the Premier for the Central Coast) [11.13 a.m.]: The Government does not support the Greens amendments. There are a number of reasons for the Government's reluctance to accept the amendments, and I think most members would be familiar with the general thrust of the debate. The Premier's ministerial statement in relation to this matter, as recorded in Hansard, makes very clear points about the likelihood, indeed the certainty, that the Government's decisions in relation to this matter will be effective as at 20 March. Before I deal with the clarity with which the Premier made his announcements, I think I should address some of the matters raised by Ms Lee Rhiannon and the Hon. Dr Arthur Chesterfield-Evans.

Retrospectivity is essential to stop a rush of claims by people trying to avoid the implications of the new laws. We witnessed such a rush of claims last year when the Government announced its health care liability reforms. These extra claims amounted to an additional $140 million for the State Government alone. That was equivalent to three years worth of claims in a couple of months. Had a rush of claims occurred in response to this bill, it might have had a further adverse impact on premiums. I think most people are aware of the anecdotes. Indeed, during the second reading debate members on both sides of the Chamber and crossbench members extensively canvassed the anecdotes in relation to the already onerous nature of those premiums and the effect they are having on a range of activities, including country fares, school fetes, and a whole range of important community events. I do not think I need to further canvass the matters raised, as most honourable members are aware of them, either anecdotally or as a matter of record, as a result of representations they have received from their constituencies.

I wish to make the point that there is a much higher risk of increases in premiums in areas that have already been adversely affected by extreme increases in premiums over the last 12 months. Further increases could result from a sudden burst of claims based simply on speculation about the timing of the operation of these laws. Retrospectivity is also necessary so that the bill can have a positive impact on premiums as quickly as possible. If we allowed an injured person to continue to make claims under the current law, it would be literally years before the costs would be reduced.

The community has already indicated a sense of urgency about this and is expecting the Parliament to respond with a sense of urgency. Notwithstanding the justified concerns we have heard about the way in which the community will cope with a whole range of issues in relation to the law of negligence and the treatment of catastrophically injured persons, and a whole range of issues that are part and parcel of this debate, the community has made it clear that it wants the Parliament to respond to the challenge of addressing insurance premiums, so that the cancellation of important and sometimes income- and job-generating community events will not occur in the future.

We have heard speculation about some of the implications of the legislation. Without canvassing particular cases about surf clubs, playgrounds, country fetes and so on, the community wants the Parliament to take action on this and has made it clear that it wants to maximise the opportunity to reinstate a sense of normality in relation to insurance premiums. The Government has received advice that all the available evidence points to the fact that on 20 March a retrospective approach is the only approach that will deliver that outcome. The date of 20 March was chosen because it was the date on which the Premier announced these changes.

The Government believes that the limits on damages are fair and necessary. Wherever the line is drawn, some people will be adversely affected. Even if the date of operation of the bill were the date of assent, as provided for in the Greens amendments, a range of people would be adversely affected by the legislation. No matter which date is chosen, people will be able to argue a specific case of hardship or difficulty, simply by reason of the fact that Parliament takes action. Whether it is at the time of the assent, the time of announcement, or the time of the bill's passage through this House, some people will argue inconsistency. There has to be a starting point for these changes and the starting point has been deemed to be the time the Premier announced, in response to community concerns, that action would be taken. 2710 LEGISLATIVE COUNCIL 6 June 2002

This applies to every law. For example, someone who bought their first home just before the first home owners grant commenced would have lost $14,000 as a result of the arbitrariness of timing of a government decision. That is the way these things have to operate. Honourable members need to consider, however, that most people who will be affected by the change will not be losing out on compensation for economic loss. People most in need of compensation are those catastrophically injured, and the seeking of compensation for economic loss will not be adversely affected by the timing of these changes. I anticipate there will be further contributions on this aspect of the debate. The other Green amendments are linked to the overall issue of retrospectivity, and Ms Lee Rhiannon has conceded this by asking the committee to debate them in globo. Greens amendment No. 13 provides that the regulation should not operate retrospectively if it has a prejudicial effect. Obviously, the Government will not be supporting the amendment. The amendment could prevent us making necessary savings or transitional regulations. If any retrospective regulation of this kind is necessary, this amendment would totally undermine the effect of the regulations. The Government's position on retrospectivity is made clear in general terms. That means that the same general principle applies to Greens amendment No. 14, whose provisions ensure that retrospectivity of the bill will not cause problems for cases already in the system. The Government's position on retrospectivity is clear. Greens amendment No. 14 would omit the provisions in the bill. It would be disruptive and cause problems for any cases already in the system. Greens amendment No. 15 omits the Crown exemption. This is somewhat of a churlish amendment. The Government's position on retrospectivity remains clear. The bill gives people with claims against the Crown a further opportunity to pursue their claims under existing law. The State can afford to make this concession without undermining the overall impact of reforms in the private arena. The State is a self-insurer and the Government does not wish to adversely affect claimants unnecessarily if they have been negotiating settlements with the State prior to 20 March. Obviously, Parliament acts as the supreme governance body, and it is sensible that we are providing an exemption for anybody making claims against the State in the right of the Crown. It seems to me that that is a fairness provision and in a sense the Greens are arguing against their own case by seeking to take out that provision. The Government would be changing laws to advantage itself against claimants. We are not doing it for that reason. The Crown is making these decisions in the public interest and preserving the rights of those who have cases against the Crown specifically because we would not want this to be seen in some way as the Government changing these laws for its own purposes. The final amendment amongst Ms Lee Rhiannon's global amendments is Greens amendment No. 17, which provides that legal services prior to royal assent are not subject to the new costs cap or to the new professional standards provided for in the bill. Clearly, there is a crunch issue here in relation to professional activities and the operation of the current fee structures for the legal profession. This amendment ties in with the general proposal to change the commencement date. The Government's position on retrospectivity is clear and the only way to maintain consistency in its impact on claimants is to make sure that the way legal fees, and so on, will be charged is affected similarly. The debate in relation to the timing of the Premier's ministerial statement is even more strongly reinforced by this, since of all the parties involved in consideration of this legislation, the legal profession would be the best placed to understand the implications of the Premier's original ministerial statement. Legal services provided after 7 May should remain subject to the costs cap. As I said before, the legal profession was on notice from the Premier's statement when the draft bill was released that it would apply from then. This amendment could impact adversely on consumers of legal services, who may have to pay more for the services provided after 7 May. The new responsibilities placed on lawyers by the bill regarding filing and defending claims have already been the subject of extensive and productive consultation with the legal profession. The bill draws on the existing standards that apply under the professional rules. There is no need to change the date from which the new responsibilities apply. Lawyers should have been acting according to these rules already. The Hon. JOHN RYAN [11.26 a.m.]: The Opposition has expressed significant difficulties with the retrospective aspect of this legislation but the Opposition does not support these amendments, with one exception. We would support amendment No. 15 because it is entirely compatible with something we are proposing to move ourselves, but for different reasons. Greens amendment No. 15, which has been moved in globo with other amendments, seeks to omit certain words. The Opposition wishes to move that those words be omitted as well, but for another purpose. I understand that the Chairman of Committees will fix this problem so honourable members will have the opportunity to debate the Opposition's amendment. One of the anomalies is that if these amendments are negatived, and therefore this amendment is negatived, according to the procedures of this place, the Opposition would not be able to move its amendment. We understand there is some support in the Committee for the Opposition's amendment. 6 June 2002 LEGISLATIVE COUNCIL 2711

The argument the Government has used with regard to retrospectivity in strict terms is rather weak. There are some potential victims who could not have foreseen that they would be in trouble as a result of not only the retrospectivity of this legislation but the manner in which the retrospectivity was applied. The Premier has retrospectively applied retrospectivity to this bill. It is true that the Premier gave a strong speech on 20 March about what the Government might have done to change the law, but he did not signal to the community at that time that as of that date that law would apply. People would have quite reasonably commenced legal action without the knowledge that the law would apply from that day. It was not until 2 May that the Premier said that the announcements he made previously will apply from that date. Strictly speaking, that is hardly fair— in fact, it is not fair.

The Hon. Dr Arthur Chesterfield-Evans: Why don't you support the amendment then?

The Hon. JOHN RYAN: I will get to that. The Opposition is entirely principled in the position it is putting. Some people will be significantly and unfairly disadvantaged because of the retrospectivity of this legislation. It is not the same, as the Government has been arguing, as someone buying a house the day before the introduction of the first home owners grant and that person being disadvantaged. That person would not have lost anything. However, some people could potentially be awarded punitive damages in a costs order because they commenced an action in good faith but lost not through lack of merit but through their inability to continue with the action. They may have exhausted what is allowed for legal representation, and they are unable to find another lawyer to continue the case. They wind up having to withdraw the matter and, as a result, the other party may apply to the court for costs to be awarded. That could happen.

One point the Opposition makes strongly is that insurers will get a significant advantage from this legislation. In some respects, the legislation has been introduced on a wartime-type footing; it has been introduced because of terrorism events overseas and so on. The Opposition accepts that Parliament is doing something that will disadvantage some people because it is of the view that under the current conditions, which are unusual, action needs to be taken. I sincerely hope that as a member of Parliament I do not receive letters from constituents arguing that they have been unfairly or viciously treated by insurers who brutally used the advantages they are getting today simply to do consumers in. Without doubt, insurers will get a windfall gain from the retrospectivity of this legislation.

If a victim is significantly disadvantaged, I sincerely hope that insurers will exercise clemency in terms of ensuring that there are no anomalous situations. If constituents write to me after discovering that they have been significantly disadvantaged, I promise to make it clear why the Opposition decided to act in good faith to support what the insurers wanted. However, the insurers had better start operating in good faith on the other side. There is another side to this ledger. I am sure there would be general agreement throughout the Parliament that, in response to some of the benefits of this legislation, the insurers will act in good faith as well. If not, I am sure honourable members will make interesting adjournment speeches at least to draw attention to what insurers may have done.

No doubt, this bill has the potential to create anomalies, and it will certainly deliver windfall gains to insurers, particularly with regard to the retrospectivity aspects of the legislation. However, as the Government has pointed out, this legislation has been introduced to stabilise an area of public concern—that is, the escalating price of premiums. The Opposition understands that the Government had to take action. On 24 April the Leader of the Opposition wrote to the Government indicating that the Coalition would work with the Government in a principled, bipartisan and co-operative way. The Opposition will stick to that agreement in the way it votes, even on the difficult and troubling issue of retrospectivity.

From the outset the Opposition anticipated that there would be anomalies. It is spurious for honourable members to argue that there would not be anomalies; there will be anomalies. We hope that goodwill will prevail on the part of insurers and that they will not seek to damage claimants or use these provisions, which unfairly give them a significant advantage. The Opposition has pointed out that the retrospectivity clauses of this bill will create at least two classes of claimants and possibly three classes of claimants: those who have a claim against an insurer, those who have a claim against the Government and those who have dust diseases—that last category has been added today. Certainly, retrospectivity will not be applied fairly throughout the community, and the Opposition will move an amendment to address that.

Nevertheless, the Opposition accepts that this legislation may have unfair consequences. It will not resile from that because there is an overriding public concern to stabilise public liability insurance premiums. With trepidation and fear, the Opposition is supporting the retrospectivity clauses because it is uncomfortable 2712 LEGISLATIVE COUNCIL 6 June 2002 about the lack of research into the potential impacts of the legislation. The Government has not given a lot of thought to providing research into the potential impacts, and the Opposition accepts that there might be some logistic difficulties in providing that research. When the Premier made his announcement in the other place on 20 March he did not indicate that the laws would apply from that date. That may create some anomalies. The Opposition is aware that some victims have suffered significant loss as a result of someone else's negligence.

We appeal to insurers to implement this legislation fairly. As Parliament is responding to an overwhelming concern, the Opposition will not seek to make partisan political points; it will vote with principle and support the Government's legislation. We accept that the Government must take responsibility for the impact of the legislation and will monitor its impact appropriately. We trust the Government in that regard, but it must ensure that it steps up to the plate if people are affected in a way that was not foreseen by this legislation. So the Opposition will not support the amendments. I draw attention to the fact that if the Committee votes on the amendments in globo we will have a difficulty that I do not think the Greens intended with regard to amendment No. 15. Reverend the Hon. FRED NILE [11.35 a.m.]: The Christian Democratic Party does not support the amendments moved by the Greens. As I said during my contribution to the second reading debate, I know that the argument about retrospective legislation is emotive. Some parties have indicated that in principle they will not support retrospective legislation. I do not view this bill as retrospective legislation. I believe the controversy surrounding what the Premier intended when he made his announcement on 20 March can be clarified by the Legislative Council, and perhaps both Houses of the Parliament, having a procedure or form of words that make it clear that a ministerial statement relating to financial matters will take effect on the day the Premier or the Minister, whoever it may be, makes the statement, as happens now in the Federal Parliament when the Treasurer deals with taxation matters and so on. In recent days we have been debating amendments to laws that have never been changed. This bill contains common law changes to motor accidents compensation, workers compensation and civil liability. So the problem has not arisen in the past. As the Parliament is reviewing important laws, we may need agreement between the Government and the Opposition—it would apply if the Opposition were in government—that the Premier or the Minister when making a statement will use a form of words to convey the reality that any changes will take effect from the day of the announcement, subject always to the Parliament eventually passing legislation to implement the changes. The Parliament may reject the legislation, and if that happened the announcement would not take effect. There must be a way of ensuring that people understand what is being announced so that there is no grey area, as there is in this case. That is not the Premier's fault. I simply think that his announcement has never been clarified. In the future whenever an announcement is made the Premier or the Minister should use a form of legal wording to indicate that any changes will take effect from that moment. That would avoid some of the arguments we are now hearing on this legislation. The CHAIRMAN: Order! I have been advised of some conflict in the amendments. Consequently, consideration of Greens amendment No. 15, which relates to retrospectivity, will be deferred and considered simultaneously with the amendment proposed by the Opposition. Consideration of Greens amendment No. 15 deferred. The Hon. RICHARD JONES [11.38 a.m.]: I absolutely agree with Reverend the Hon. Fred Nile's comments about the Premier making such announcements. I think the honourable member is spot on: there should be a form of wording to let people know that any announced changes will be in effect retrospective from the date of the announcement, rather than it being fuzzy. The Premier did not announce, until about 1 or 2 May, that the legislation would be retrospective, so there was a period in which people did not understand that the changes would take effect on the date of the announcement. The Hon. John Ryan: Sensible people might have got their affairs in order. The Hon. RICHARD JONES: They might well have done. I would love to be able to support these amendments, but I cannot because clearly they would cause a serious problem. I wish that it had not been necessary for the Government to introduce this bill in the first place, and that we had reasonable civil liability insurance and people could make claims. Unfortunately, that is not the case and a small number of organisations—the names of which I provided yesterday—are suffering as a result of this crisis. The way to resolve the crisis is to let the legislation go through intact.

The Hon. MALCOLM JONES [11.39 a.m.]: The practice of making rules applicable from the date of their announcement is very common, particularly in the Federal arena. For many years it has been the practice of 6 June 2002 LEGISLATIVE COUNCIL 2713 the Treasurer, in particular, to make an announcement of something being effective on the date of his announcement, particularly in relation to tax rorts. If that were not the case—that is, if the tax rorts could not be prevented from the date of the Treasurer's speech—the rorters would have time to unwind and cover up their practices, avoid detection and avoid having to repay penalties that may follow the assent of the legislation. I assume from the comments of previous speakers, who have more experience than I in this regard, that that practice is not common in State legislatures. It is certainly common in the Federal arena, and therefore it is quite appropriate.

Amendments negatived.

Clause 2 agreed to.

Clauses 3 to 7 agreed to.

Ms LEE RHIANNON [11.42 a.m.]: I move:

No. 2 Page 3. Insert after line 16:

9 Inquiry as to the effect of this Act

(1) The Auditor-General is to conduct an inquiry within 12 months after the date of assent to this Act to determine the effect of this Act on injured persons and personal injury damages insurance premiums in the State and is to report his or her findings to the Minister within 16 months after the date of assent.

(2) The Minister is to cause a report provided to the Minister under this section to be tabled in both Houses of Parliament as soon as practicable after it is provided to the Minister.

There are many problems with this bill, one of which is that it is not backed up by clear research. Many arguments have been put about huge rises in premiums, cost blow-outs, et cetera, but at no time has detailed research been provided with respect to the impact of the measures contained in this bill. The Government and the insurance industry have failed to establish and provide proof that the bill will reduce public liability, which is what it is supposed to do. The bill will have an adverse effect on the injured, especially the elderly and those on low incomes. This amendment will establish an inquiry, conducted by the Auditor General, into its effects on injured persons and on premiums. That will enable a more informed debate on the future of public liability in New South Wales. Certainly, the preferred option would have been to have such information available before we ventured into the area of legislation. Even though the inquiry will occur after legislation is effected it will be extremely valuable.

Honourable members would be hard pressed to argue against this amendment, and I urge them to support it. The amendment will restore public policy process in New South Wales, something that really needs to be given a good boost. As has been mentioned, at the moment the debate is very much tabloid driven. Instead of relying on a few tabloid shock stories to form the basis of tort law reform, an inquiry will enable the people of New South Wales to engage in genuine and informed debate about how they wish to handle the vexed issues of public liability, public safety and insurance premiums. The Greens believe that such an inquiry will help to uncover the profit gauging nature of the insurance industry and the failure of both State and Federal governments to institute appropriate levels of regulation. We believe that if this State is to become a safer place, if we are to be able to care for our injured and if we are to have affordable premiums we must have a well- informed and rigorous policy process. This amendment will ensure that we achieve that outcome. If the Government does not support this measure, what is it hiding? The inquiry will gather together information about what is happening in this industry.

The Hon. JOHN DELLA BOSCA (Special Minister of State, Minister for Industrial Relations, Assistant Treasurer, Minister Assisting the Premier on Public Sector Management, and Minister Assisting the Premier for the Central Coast) [11.46 a.m.]: The Government opposes the amendment. At the national ministerial meeting on 30 May, the Commonwealth Government agreed that the Australian Competition and Consumer Commission would monitor premiums to ensure that the insurance industry is adjusting premiums to take account of cost savings produced by tort law reform. This amendment would simply lead to an expensive replication of the work of the ACCC and unnecessary additional expenses for insurers. This could also lead to increased premiums. In any event, the New South Wales Auditor General does not have the power or, for that matter, the relevant expertise to make inquiries envisaged by the amendment. Many—in fact, most—insurers providing insurance to New South Wales residents operate offshore and could not be covered by the amendment. 2714 LEGISLATIVE COUNCIL 6 June 2002

The Hon. Dr Arthur Chesterfield-Evans: They flogged it off.

The Hon. JOHN DELLA BOSCA: It would not matter, there would still be one. The Auditor General is also not in a position to assess the effect of this legislation on injured people, as envisaged by the amendment. The monitoring of premiums is properly a matter for the Commonwealth Government.

The Hon. JOHN RYAN [11.47 a.m.]: The Opposition looked seriously at the establishment of an inquiry of some sort. In fact, the Committee will have the opportunity to consider three forms of inquiry—the most simple of which would be an inquiry conducted by the Auditor-General—during the course of this debate. From my experience as a member of the Standing Committee on Law and Justice, which has conducted regular reviews of the Motor Accidents Insurance Scheme, this inquiry would be enormously difficult. There would be endless arguments about claims that have been incurred but not yet recorded, there would be long tail business and so on. It would be easy to determine whether premiums have been reduced—that would not require an inquiry by the Auditor- General. As the Government has pointed out, however, the Commonwealth Government has agreed to conduct an inquiry that will cover most of the issues.

The Greens proposed inquiry would examine how this legislation impacts on injured persons, which is worth finding out. Perhaps the new Parliament will give serious consideration to an inquiry of that nature, without troubling the Auditor-General. Largely because of the principle to which the Opposition is adhering with respect to this legislation, it will move one amendment to make the legislation fairer. The Opposition will not support the Greens amendment. It is secure in the knowledge that the inquiry by John Howard's Government, under the supervision of the Australian Competition and Consumer Commission, will be appropriate. It has extensive powers to get information from insurers about their claims experience and so on. We are confident that it will have an impact.

What we are likely to find out about injured persons in 12 months time probably will be not very much or not enough. We agree with the Greens that very little research has been done on how this legislation might impact on the public, or how insurers will react to it. I guess the best that the Government can say is that it is hopeful, as is the Opposition. But, in line with the previously announced policy of the Opposition of not standing in the road of this legislation, we will allow the Government's legislation to pass, with one amendment to which we have already given a lot of public attention. We find ourselves in a position where we cannot support the amendment. We take the same view that the Government has on it.

Question—That the amendment be agreed to—put.

The Committee divided.

Ayes, 6

Mr Breen Mr Cohen Mr Oldfield Mrs Sham-House Tellers, Dr Chesterfield-Evans Ms Rhiannon

Noes, 31

Ms Burnswoods Mr Harwin Ms Saffin Mr Colless Mr Hatzistergos Mr Samios Mr Costa Mr M. I. Jones Ms Tebbutt Mr Della Bosca Mr R. S. L. Jones Mr Tingle Mr Dyer Mr Lynn Mr Tsang Mr Egan Mr Macdonald Mr West Ms Fazio Reverend Nile Dr Wong Mrs Forsythe Mr Obeid Mr Gallacher Mr Pearce Tellers, Miss Gardiner Dr Pezzutti Mr Jobling Mr Gay Mr Ryan Mr Primrose 6 June 2002 LEGISLATIVE COUNCIL 2715

Question resolved in the negative.

Amendment negatived.

Ms LEE RHIANNON [10.57 a.m.]: I move Greens amendment No. 3:

No. 3 Page 3. Insert after line 16:

9 Procedures for reporting of outcomes

(1) The Auditor-General is to establish by order published in the Gazette procedures for the reporting by insurers of outcomes of claims for personal injury damages. An insurer must comply with the requirements of those procedures.

Maximum penalty: 100 penalty units.

(2) Based on the information reported under the reporting procedures, the Auditor-General is to determine and report to the Minister on the statistical distribution of claim numbers and size of claims.

(3) The Minister is to cause a report provided to the Minister under this section to be tabled in both Houses of Parliament as soon as practicable after it is provided to the Minister.

(4) Proceedings for an offence under this section may be dealt with summarily before a Local Court constituted by a Magistrate sitting alone.

This debate has been marked by a lack of quality data on the size and frequency of claims. It is an ongoing problem that we do not have solid data. That is extraordinary with such a substantial piece of legislation. But, clearly, we must deal with that. Current data collection by the Federal body appears to be inadequate, yet the frequency of large claims and the overall cost of them have been used as the justification for massive premium rises. This amendment requires the Auditor-General to establish a reporting regime to collect claims data and to present statistical information on claim sizes and frequencies to the Minister, who will then be required to cause this information to be tabled in both Houses of Parliament.

For too long the insurance industry has been able to shift the blame onto injured workers' lawyers and anyone else who stands between the insurance industry and massive, I would say unreasonable, profits that they pick up year in and year out. Only the availability of real data, collected on a standardised basis and rigorously audited, will put an end to this behaviour. It has been necessary to give this amendment some teeth by imposing fines against insurance companies that refuse to co-operate in the collection of data. As honourable members know, a self-regulated regime will not deliver what is required, namely, solid data. Without the threat of a suitably large fine, it is unlikely that much would be achieved. The Greens believe that this amendment is an essential step towards a more informed public debate about the future of public liability insurance.

Pursuant to sessional orders progress reported and leave granted to sit again.

QUESTIONS WITHOUT NOTICE

______

POLICE SERVICE GRADUATION CEREMONY

The Hon. MICHAEL GALLACHER: My question without notice is to the Minister for Police. Has the Government planned to graduate 800 new police at the end of August in Aussie Stadium instead of the normal venue at Goulburn? What action has he taken to prevent the August police graduation from being turned into an election eve farce?

The Hon. MICHAEL COSTA: As usual, the Opposition has not done its research. I know of no plans to graduate our record August class at Aussie Stadium. This question once again highlights that the Opposition is completely bankrupt on policing policy. Members opposite are more interested in criticising police.

The Hon. Dr Brian Pezzutti: What are you looking at? There is nobody up there.

The Hon. MICHAEL COSTA: I am looking at the clock. But I notice that the Hon. Dr Brian Pezzutti is dressed to give another sermon. As I was saying, our efforts have led to record numbers of police recruits who are currently undertaking training programs to become police officers in New South Wales. I feel very proud to 2716 LEGISLATIVE COUNCIL 6 June 2002 be associated with the new training measures that have been implemented. Not only are more and more police graduates becoming probationary police constables, but also we are recruiting people who have life skills, as we said we would. I can tell honourable members that every time I go to a community and outline the Government's plans on police training, I am met with nothing but congratulations on what this Government is doing.

In response to the question of where attestations will be held, I inform the House that attestations are held at Goulburn. Clearly, because of the record numbers of people who are currently undergoing the training programs there are some issues in relation to the size of the venue for attestations. But no decision has been made on any change of the usual location for attestations, which is Goulburn. I have to say that it is good to be in the position of having a problem because of the size of the graduation classes in relation to facilities. As the Leader of the Opposition knows, it has been necessary to open a second facility at Richmond to accommodate a record number of probationary constables. The Government's recruitment plan is working extremely well. We will have record numbers of police recruits again this year, and we will have record class sizes for the rest of the year.

I find the question asked by the Leader of the Opposition most intriguing. We have just put in place a range of measures, including announcements in relation to infringement notices, announcements in relation to changes in crime agencies and other reviews within the context of the restructuring that will commence on 1 July.

The Hon. Michael Gallacher: I am coming back to you on that one.

The Hon. MICHAEL COSTA: I think the Leader of the Opposition ought to. All that the Opposition can come up with are petty questions that they have no evidence to justify. This is a bankrupt Opposition.

The Hon. Michael Gallacher: With what you have given us, we have plenty.

The Hon. MICHAEL COSTA: I have given the Opposition nothing. There is no intention of changing the location. If the Leader of the Opposition has any evidence, I would like to see it instead of his wasting question time with speculation. The Opposition does not have any policies. I went to the Opposition's web site once again to see its response to some of the measures that the Government has put out, but it has not been updated on policing for months. That is because the Opposition has no policies in relation to police.

The Hon. Dr Brian Pezzutti: Why do you look up to the gallery? There is no-one up there.

The Hon. MICHAEL COSTA: The Hon. Dr Brian Pezzutti can give his sermon later. There is no Opposition policy on policing and I have heard nothing from the Opposition on policing. I ask the Opposition members to please come up with a policy. We were promised that we would be getting policy after policy, but we have not seen any. The only policies we have seen have been a re-launch and re-hash of Labor policies.

The Hon. Dr Brian Pezzutti: There is no-one up there. The Hon. MICHAEL COSTA: I inform the Hon. Dr Brian Pezzutti that I use all my time during question time. The clock shows that there is another second for my answer. DRUG AND ALCOHOL DETOXIFICATION SERVICES The Hon. AMANDA FAZIO: Will the Special Minister of State provide an update on recent progress in the expansion of drug treatment services as a result of the New South Wales Drug Summit? The Hon. John Jobling: Point of order: It is my understanding that before the House is a bill dealing with drug programs arising out of the Drug Summit. Madam President, I put it to you that the question leads the Minister into a response that anticipates the debate on the bill before the House this very minute. I ask you, Madam President, to rule the question out of order. The Hon. John Della Bosca: To the point of order: I point out briefly that the element of anticipation assumes that the Hon. Amanda Fazio is able to read my mind and understand what I am going to say. The Hon. Michael Gallacher: That is very easy—it's blank. The Hon. John Della Bosca: It might be easy equally because I am an extremely honest person. If I am following the logic of the Hon. John Jobling's point of order, he suggests that the question anticipates debate 6 June 2002 LEGISLATIVE COUNCIL 2717 on a Drug Summit response bill in relation to a very particular issue. As I understand it, the question asked by the Hon. Amanda Fazio is related to treatment services and falls generally outside what is regarded as the trial injection centre, which is the subject of the legislation. Madam President, I do not believe that you ought to rule the question out of order.

The Hon. Amanda Fazio: To the point of order: My question to the Special Minister of State relates to recent progress on the expansion of drug treatment services. If Opposition members had been listening carefully to my question, they would have understood that. I think it is drawing the longbow to try to claim that it encompasses the current debate before the Chamber on the extension of the safe injecting room trial at Kings Cross. Madam President, I ask you to rule the point of order invalid.

The Hon. John Ryan: To the point of order: The bill before the House is related to the Drug Summit. The debate has been wide ranging, and the matters to which the honourable member has referred are entirely relevant to matters discussed in debate. Honourable members have been comparing one form of treatment to others and have been discussing generally the Government's response to the Drug Summit, as the title of the bill suggests. That is very relevant to the matters that are under discussion before the House. It would appear to me that the Minister's response to this question is entirely appropriate to form part of that debate.

The PRESIDENT: Order! I am sure the Minister is aware of the rule of anticipation. I warn him against trespassing onto territory that is covered by a matter that is before the House. Before asking the Minister to continue, I ask all members to extend to the Chair the courtesy of being silent when a ruling is being given.

The Hon. JOHN DELLA BOSCA: I am pleased to report that in the past month, there has been a significant expansion of drug and alcohol detoxification services in this State, thanks to Drug Summit funding. Last month I had the honour of officially opening two new drug and alcohol detoxification services, one at the Wyong Hospital and the other at the Nepean Hospital. Together these two centres will have the capacity to provide nearly 2,000 additional detoxification services for this State.

The Hon. Michael Gallacher: Why is it that you ignore Newcastle?

The Hon. JOHN DELLA BOSCA: The other day when I was in Lake Macquarie launching the drug action team the Leader of the Opposition was not there. The Hon. Michael Gallacher: Yes I was. I was there last time. The Hon. JOHN DELLA BOSCA: The Leader of the Opposition was not in Lake Macquarie. The Leader of the Opposition is misleading the House. He was not in Lake Macquarie when I launched the excellent community drug action program for the Lake Macquarie region. The Hon. Michael Costa: He was fishing. The Hon. JOHN DELLA BOSCA: The Minister for Police said that the Leader of the Opposition was fishing, which is probably right. If we add to the services that I mentioned earlier the Riverlands detoxification centre at Lismore, opened in March 2001, this State now has the capacity to provide nearly 3,000 additional detoxifications each year, thanks to Drug Summit funding. The centre at Wyong has been aptly named Maruma- Li, which means to heal the mind, body and spirit. It is a 15-bed unit employing 30 staff who will provide medical and nursing care during the detoxification process, and counselling, rehabilitation and after care services following treatment. This new facility marks an important expansion in drug treatment services for Central Coast residents. It means that they will no longer have to travel to Newcastle or Sydney for in-patient detoxification and can now have the support of their families and friends close by. The centre at Nepean hospital, which is also a 15-bed facility, is named the Wentworth Centre for Drug and Alcohol Medicine. It will receive statewide referrals, but it will particularly benefit residents from the Penrith, Hawkesbury and Blue Mountains regions. The centre will provide a comprehensive approach to drug and alcohol treatment, including home detoxification as well as in- patient detoxification. The Wentworth Centre for Drug and Alcohol Medicine is located within the grounds of a teaching hospital. That means it will be a centre for best practice in drug treatment and provide much-needed training in drug and alcohol medicine. Like the Riverland centre in Lismore, both these new centres are modern, well-designed and meet the needs of patients and staff. The Government has committed $3 million each year for the next two centres, in addition to capital costs of over $7 million. I point out that the expansion of detoxification centres around the 2718 LEGISLATIVE COUNCIL 6 June 2002

State is not limited only to these new centres. I recently announced the commencement of an innovative new community detoxification service established by Hunter Health. That service is expected to cater for up to 350 clients.

The Hon. Michael Gallacher: You have no idea where that is.

The Hon. JOHN DELLA BOSCA: The Leader of the Opposition was not at that one either. The Leader of the Opposition is falling down on the job. He is not looking after law enforcement, drug and other issues in Newcastle. He is never there. Whenever I go to Newcastle the Leader of the Opposition is never there, and he is the shadow Minister for the Newcastle area. From time to time I visit the Newcastle area to back up my colleague the Hon. Richard Face, as do some of my other colleagues. The Leader of the Opposition is never there when I go to Newcastle. I am getting worried about it. He is letting down his Opposition colleagues.

Community detoxification enables people to receive treatment and care in their local environment and it involves their families and carers. Other local community services will be available during and after detoxification to provide job training, educational intervention, parenting skills and, where appropriate, counselling. It is a significant expansion of drug and alcohol services for this State and another important step in the continuing rollout of Drug Summit initiatives.

STATE-OWNED ELECTRICITY COMPANIES RECAPITALISATION

The Hon. DUNCAN GAY: My question without notice is directed to the Special Minister of State in his capacity as shareholding Minister for State-owned electricity companies. How can the Government justify taking an estimated $400 million from State-owned electricity companies under the guise of recapitalisation in the next financial year when those same companies will be expected to conform with foreshadowed Government plans to reduce greenhouse gas emissions—plans that will cost those companies a significant amount of money to comply with?

[Interruption]

No, it is an ongoing program of the Government raiding hollow logs. The Hon. Peter Primrose: Point of order: There are two aspects to my point of order. First, I argue that the honourable member's question anticipates the Appropriation Bills. Second, the honourable member's question contained an ironic expression and an imputation relating to hollow logs. The Hon. Duncan Gay: To the point of order: First, my question does not anticipate debate on the Appropriation Bills. Second, my reference to hollow logs was in answer to an unruly interjection by the Special Minister of State. If the Hon. Peter Primrose had been listening to my question he would have realised that. The honourable member is just covering up for his incompetence. The Hon. John Ryan: To the point of order. The expression "hollow logs" is used so often in economic literature that it is now almost a common term. I do not believe there is any kind of imputation in the honourable member's question. Madam President, as a result of your last ruling, I suggest that it has nothing to do with how a question is asked as long as the Minister, when replying to it, does not stray from the subject matter. The honourable member's question is bound to be in order. The PRESIDENT: Order! There are two aspects to the point of order. Certainly imputations and inferences have been made, and I ask the member to rephrase his question. With regard to anticipation, I rule as I have on previous occasions. Whether or not anticipation is involved depends on the way in which the question is answered. The Hon. DUNCAN GAY: My question is directed to the Special Minister of State in his capacity as shareholding Minister of the State-owned electricity companies. How can the Government justify taking an estimated $400 million from the State-owned electricity companies under the guise of recapitalisation in the next financial year when those same companies will be expected to conform with foreshadowed Government plans to reduce greenhouse gas emissions—plans that will cost those companies a significant amount of money to comply with? The Hon. JOHN DELLA BOSCA: As the Deputy Leader of the Opposition put a lot of thought into his question I will do him the service of putting a lot of thought into my answer. I will provide the honourable member with an answer at the earliest opportunity. 6 June 2002 LEGISLATIVE COUNCIL 2719

KINGS FOREST THREATENED SPECIES PROTECTION

The Hon. IAN COHEN: My question without notice is addressed to the Minister for Juvenile Justice, representing the Minister for the Environment. Is the Minister aware that there has been further clearing and burning since the issuing of a stop work order at Kings Forest in the Tweed council area? Can the Minister explain why appropriate action has not been taken by the National Parks and Wildlife Service over this destruction of threatened species habitat? Given the significance of the property in maintaining the long-term viability of biodiversity, why has the area not been given appropriate protection? In light of the Bulford report findings on this issue, is there any possibility that inappropriate pressure and influence have been applied regarding this matter?

The Hon. CARMEL TEBBUTT: I reject the imputation in the last part of the honourable member's question. Nonetheless, he asked some quite detailed questions relating to an issue in the Tweed area. I will refer that matter to the Minister in the other place and obtain a response as soon as possible.

SHEARING INDUSTRY OCCUPATIONAL HEALTH AND SAFETY

The Hon. RON DYER: My question without notice is addressed to the Minister for Industrial Relations. Will the Minister inform the House what measures the Government has put in place to improve workplace health and safety in the shearing industry?

The Hon. JOHN DELLA BOSCA: An expert on ergonomics and shearing told me recently that, under the traditional method of shearing, an average shearer played the equivalent—

[Interruption]

It is an anecdote. The honourable member was born on a farm and I was not.

The PRESIDENT: Order! I remind members that interjections are disorderly at all times.

The Hon. JOHN DELLA BOSCA: As I was saying, the amount of energy a shearer uses in a day to shear sheep is equivalent to the energy used to play four rugby league matches in a day.

The Hon. Charlie Lynn: For New South Wales?

The Hon. JOHN DELLA BOSCA: For New South Wales and Queensland. The degree of difficulty and the energy involved in what has traditionally been one of the most important occupations in the Australian economy is a tribute to the shearing profession, which has provided a great service to rural economies.

The Hon. Michael Gallacher: Was Costa in the shed when you were there, getting his head done?

The Hon. John Jobling: Is that why his head is so rough?

The Hon. JOHN DELLA BOSCA: I am getting a lot of help from my colleagues opposite.

The Hon. John Jobling: You won't get any from the ones on your side.

The PRESIDENT: Order! I call the Hon. John Jobling to order for the first time.

The Hon. JOHN DELLA BOSCA: Shearers and the shearing industry are an intrinsic part of Australian history. Unfortunately, in many cases the work practices and equipment used by the industry have shown no regard for health and safety. Research has shown that shearers have one of the toughest jobs in the world. An average shearer takes between three and four minutes to catch and shear a sheep. In a typical day, he or she will move between 13 and 16 tonnes of struggling livestock and in the process expend more energy than a professional runner doing a marathon. Shearers tend to suffer from cuts and bruising, heat stroke and exhaustion, injuries and diseases associated with working around animals, and exposure to vibration, chemicals, dust and fumes.

The Government is committed to reducing workplace injuries and improving safety standards for shearers and others who work in this important agricultural industry. In keeping with this commitment, 2720 LEGISLATIVE COUNCIL 6 June 2002

WorkCover NSW is undertaking a project called ShearSafety, in collaboration with key industry stakeholders, including NSW Farmers, the Australian Workers Union, the Shearing Contractors Association of Australia and NSW Farmersafe.

Last month I was pleased to launch ShearSafety at the Australian Shearers' Hall of Fame, in the beautiful and historic town of Hay. The launch was inside ShearOutback, the shearing shed on site. We took advantage of this opportunity to demonstrate some of the safe practices the Government is encouraging the shearing industry to adopt. The ShearSafety project commences next month and will continue for 18 months. It has three main components. The first component offers a rebate of up to $60 to assist woolgrowers and shearers to replace dangerous pin-drive mechanisms with a safer worm-drive mechanism. Changing the mechanism will reduce the risk of injury caused when the handpiece becomes caught on burrs, forcing the handpiece from the shearer's hand. The second component of the project is a pilot incentive scheme aimed at improving safety standards in shearing sheds across New South Wales. There are about 16,000 shearing sheds in New South Wales. [Time expired.]

GAMBLING TREATMENT AND COUNSELLING SERVICES

The Hon. MALCOLM JONES: My question is to the Minister for Police, representing the Minister for Gaming and Racing. Having established counselling services for classes of people with gambling problems and publishing results of these programs, what steps has the Minister taken to ensure the adequacy of counselling services for the people potentially affected?

The Hon. MICHAEL COSTA: That is a good question. I will obtain a detailed answer from the relevant people and provide it to the House.

WORKPLACE POLLUTION UNION OVERSIGHT

The Hon. JAMES SAMIOS: My question is to the Minister Assisting the Minister for the Environment. What action has the Minister taken to address representations by the Construction, Forestry, Mining and Energy Union [CFMEU] and the Labor Council seeking funding for the training of union organisers and delegates in how to use the Industrial Relations Act to prevent their workplaces polluting the environment and also seeking that the Act be amended to allow union officials to become authorised officers under the Act, particularly given the Labor Council's resolution to write to the Minister on this issue, as reported in the Labor Council minutes of 11 April this year?

The Hon. CARMEL TEBBUTT: There has obviously been some careful perusal of Labor Council minutes by members opposite, which is pleasing. The Hon. James Samios has raised an important issue, although I must say I am not aware of it. I do not know whether the CFMEU has made approaches to the Minister for the Environment, although the question suggests that it has. I undertake to obtain a response to the matters raised by the honourable member.

DERELICT MINES REHABILITATION PROGRAM

The Hon. TONY KELLY: My question without notice is to the Minister for Mineral Resources. What has been done to restore the environment around derelict mines in the State's north and far west?

The Hon. EDDIE OBEID: I again thank my colleague the Hon. Tony Kelly, the convener of Country Labor, for his continued interest in questions relating to regional New South Wales. This Government is serious about our environment. Unfortunately, we have inherited a legacy of derelict and abandoned mines. But we are providing the funds needed to progressively rehabilitate the environment around derelict mines and make these sites safer for the community.

Acting on the advice of our Derelict Mines Program committee, the New South Wales Government provides $1.6 million a year to carry out this important environmental program. I am pleased to advise the House that two regional communities are benefiting from the program. The New South Wales Government is providing $180,000 to rehabilitate the Broken Hill South Ltd tailings dump. The funding will be used to place a protected rock cover over the slopes of the tailings dump to prevent dust from leaving the site.

I acknowledge the generous support of the Broken Hill Environmental Lead Centre, which has also contributed towards the project. The Department of Land and Water Conservation is managing the project, using 6 June 2002 LEGISLATIVE COUNCIL 2721

local contractors for supply and haulage of rock material. It is anticipated that this work will be carried out over two years. In the New England area, the Government has begun work on three derelict mine sites at Halls Peak, near Armidale. Mining for copper, lead, zinc and silver has been carried out in this area since 1896. This rugged area and past undesirable mining practices make the project an important site for rehabilitation.

Although minor rehabilitation work was carried out around the former Firefly, Faints and Gibson's open-cut mines, the Government is now working with the community to better protect their local area. We are spending $49,000 on the first phase of restoration, which includes a major environmental study and rehabilitation plan. I am advised that an Armidale company, EA Systems Pty Ltd, which has detailed local knowledge and experience with the site, is carrying out the project. It is anticipated that the study will be completed in a matter of weeks. I look forward to updating the House about the progress on these two projects.

LORD HOWE ISLAND LAND TRANSFER

The Hon. RICHARD JONES: My question is to the Minister representing the Minister for the Environment. Is it the fact that the Minister for the Environment signed a document for the transfer of the land on portion 68 on Lord Howe Island, where irreplaceable rainforests were recently destroyed on 5 March 2002, thus creating a new perpetual lease? Did the transfer indicate that the land was a gift from Stuart King to Neville Prout, when in fact Neville Prout bought the land? Did the transfer state that Neville Prout is an Islander, when in fact he is a New Zealander? Why did the Minister sign the transfer, which allowed the destruction of world heritage rainforests, under false pretences?

The Hon. CARMEL TEBBUTT: The question by the honourable member follows up on issues he asked about two days ago. I believe it is the case that the Minister for the Environment did sign the transfer of a part-perpetual lease, as he is required to do under the Lord Howe Island Act. However, as I indicated to the House two days ago, the consent authority for the subdivision and development application for a residence is the Lord Howe Island Board. I gave a detailed response to the honourable member the other day. The board does not consider that the signing of the transfer had an adverse impact on World Heritage-listed vegetation, as the honourable member has suggested.

I reiterate that this application and subdivision occurred within the settlement area on Lord Howe Island. Lord Howe Island is in a unique situation. It is a World Heritage-listed site, but it is also home to some 300 residents. That poses some very real challenges for the Lord Howe Island Board. Some areas of the island have been established as settlement zones. Portion 87, which the honourable member has referred to, is in the settlement zone. Nonetheless, as I said the other day, the board believes that it has acted fairly and in accordance with relevant planning and development control legislation and due process, and with due consideration of all of the appropriate factors, in line with its responsibility as consent authority.

The Hon. RICHARD JONES: I ask a supplementary question. Why has the Minister not answered my questions that the land was not gifted and was not allowed to be sold, yet it was sold, and that Neville David Keith Prout is a New Zealander and not an islander? The Minister has not answered those questions.

The Hon. CARMEL TEBBUTT: I do not have anything further to add to my previous detailed response. If the honourable member wishes to pursue such specific issues, he should place his questions on notice. TROUT STOCKS The Hon. JENNIFER GARDINER: My question is to the Minister for Fisheries. Given the ongoing representations the Minister has been receiving from the trout fishing fraternity, is there any chance of a review of those streams in which he has banned stocking? Will he guarantee that additional rivers will not be added to those where stocking is banned already? The Hon. EDDIE OBEID: Unfortunately the Hon. Jennifer Gardiner is always late in raising issues that have been well canvassed, not only in the press but by the community. I am happy to say that I did receive a delegation of council mayors from the Snowy. To the best of my belief they went away convinced about what the Government was doing to support trout fishing. Trout fishing is very important to the Snowy. This Government will continue to support trout fishing so that it will continue to bring economic benefits to the community. At the same time we have had to listen to everyone and to accept scientific evidence from experts in the field. When species are threatened we must act as a responsible agency and play a major role in protecting those threatened species. 2722 LEGISLATIVE COUNCIL 6 June 2002

The area the honourable member is referring to represents no more than 1 per cent of all areas that are stocked with trout and other species. We cannot ignore the scientific evidence from scientists from the National Parks and Wildlife Service and the Department of Fisheries. When a river is stocked, the fish do not remain in the one place. They roam the river system. I repeat: the area the honourable member is talking about represents 1 per cent of all stocked areas in the State. The delegation accepted that fishermen in that area say the fish are still biting. I do not understand the object of the honourable member's question. Is she antiprotectionist towards endangered species? Does she want to ignore the scientific advice? Does she want to do whatever she can to endanger native and endangered species? If so, she should declare as much as part of her policy for the next election. So far we have had no policies whatsoever from members of the Opposition. They wait for small lobby groups such as ProFish to raise matters, usually of little significance, before raising anything in the House.

Trout fishing is very important to the Snowy region and very important to the regional economy. It provides more than $70 million in economic benefits. The Government is restocking with record numbers of trout. If the scientists believe that a small area should not be stocked because to do so would threaten certain other species, no stocking will take place. The community is much smarter than the honourable member thinks. The community wants a long-term sustainable stocking program, but it is not getting any lead from the Opposition, which is bankrupt of policies. It raises issues that are of concern to minority stakeholders only. I suggest that the Opposition listens to what the scientists have to say; it just might be impressed.

ROAD FREIGHT DISTRIBUTION INDUSTRY OCCUPATIONAL HEALTH AND SAFETY

The Hon. JOHN HATZISTERGOS: My question without notice is directed to the Special Minister of State, and Minister for Industrial Relations. Will the Minister inform the House what the Government is doing to protect the welfare of workers employed in the road freight distribution industry?

The Hon. JOHN DELLA BOSCA: Honourable members will be aware that the road transport industry has a significantly higher than average incidence of employment injuries. During the year to 30 June 2000 there were more than 2,000 employment injuries in this industry, of which over 500 workers suffered permanent disability and 14 were killed. These levels of injury are unacceptable to the Government and to the people of New South Wales. In view of these injury levels, WorkCover inspectors visited a large number of road freight distribution centres during the latter part of 2001. The visits revealed a number of unsafe procedures and highlighted variations in safety standards.

Using information gathered in the course of these inspections, WorkCover developed Operation Night Owl, a special project intended to assist the road freight distribution sector increase its capacity to systematically manage occupational health and safety, workers compensation and the return of injured employees to work. The active intervention phase of the project was conducted during March and April this year and involved WorkCover inspectors visiting 18 major road freight distribution centres in Sydney's western suburbs. Each of the targeted workplaces was visited on at least two occasions, including one visit during the peak activity times between 6.00 p.m. and 10.00 p.m. Visits generally involved workplace safety inspections, reviews of work procedures and interviews with management and employee representatives. The visits allowed WorkCover to determine the industry's level of compliance with occupational health and safety and workers compensation legislation and to identify specific shortcomings.

WorkCover inspectors issued 140 occupational health and safety notices as a result of the visits. The matters identified for ratification included dangerous goods issues, unguarded machinery and unsafe systems of work. While most companies had or were developing occupational health and safety and workers compensation systems, the inspections indicated that in many cases these procedures were implemented on an ad hoc basis without being effectively communicated to supervisors and employees. In addition to issuing notices, inspectors provided information and assistance to aid employers in the rectification of identified problems. WorkCover followed up on the workplace visits by using a post-intervention questionnaire, which was completed by the managers of those companies targeted by Operation Night Owl. Questionnaire responses indicate that all the companies involved have commenced implementing improvements to their occupational health and safety, workers compensation and injury management systems. All the respondents have also indicated that the WorkCover visits were beneficial.

The next phase of the project will involve WorkCover inspectors returning to the road freight distribution centres involved in order to assess levels of improvement and to identify any matters that might require further action. In addition to improving safety levels by addressing health and safety management 6 June 2002 LEGISLATIVE COUNCIL 2723 deficiencies, Operation Night Owl has contributed to improving the relationship between WorkCover and the road freight distribution industry. It is hoped that a stronger partnership between WorkCover and the road freight distribution industry will be integral to the delivery of long-term safety benefits. I look forward to keeping the House informed of further developments.

POLICE SPECIALIST UNITS

Reverend the Hon. FRED NILE: I ask the Minister for Police a question without notice. Is it a fact that the new New South Wales Commissioner of Police, Mr Maroney, is, with the Minister's support, re- establishing a number of specialised police squads, such as for armed hold-up and car theft, which will greatly improve the efficiency and expertise of the police response to crime? Is it a fact that one remaining area of major concern is the implementation of laws relating to vice, such as prostitution, brothels, live sex shows, strip joints, child pornography, X-rated videos, unclassified films such as Baise-Moi, unclassified videos, et cetera? Will the Minister authorise and support the re-formation of the vice squad to protect community standards and family life, with untouchable police officers to enforce specialised vice laws which are beyond the usual expertise of local police officers? The Hon. Charlie Lynn: Make Joe Tripodi the parliamentary secretary. The Hon. MICHAEL COSTA: Yosemite Sam has spoken. The Hon. Charlie Lynn is awake, is he? Reverend the Hon. Fred Nile has asked a good question. On previous occasions the honourable member has asked me whether we are considering establishing specialised units. It is true that the commissioner has indicated that he will be looking at specialist units, with appropriate protections to ensure that we do not end up with the difficulties that existed before the Wood royal commission. I certainly support specialist units. It is important that we have the expertise required to deal with particularly mid-level to high-level crimes. As to the configuration of those units, currently that is being finalised by the police commissioner and his team. I will wait until that report comes to me as Minister before we make any judgments about the adequacy or not of the specialist units. Many of the issues are rightly operational matters, and they will be determined by the police. Importantly, we have listened to the community in relation to specialist units, which will be part of the restructure that commences from 1 July. STATE-OWNED ELECTRICITY GENERATORS COAL SUPPLY The Hon. JOHN RYAN: My question is directed to the Special Minister of State in his capacity as a shareholding Minister for State-owned electricity companies. Did the Minister's recently tabled directive to the State-owned electricity generators regarding coal contracts with the Powercoal mines contain provisions to ensure that those companies will have access to a continued supply of coal at competitive prices? How will the Government ensure that State-owned electricity generators will not be placed at a disadvantage in terms of coal supply once the Powercoal mines are privatised, contrary to the Government's pre-election commitment not to privatise them? The Hon. JOHN DELLA BOSCA: I am not sure what I am being asked in the question. There was an implication that the honourable member is asking— The Hon. Michael Gallacher: Tell the truth. The Hon. JOHN DELLA BOSCA: There are many truths here. On one hand I am being asked about privatisation and whether that was an election commitment— The Hon. John Ryan: I didn't ask you that. The Hon. JOHN DELLA BOSCA: That is right, you made a statement. The honourable member has just admitted that the question he asked was outside the standing orders. Nonetheless, the rest of the question relates to the security of contracts and a direction that the other shareholding Minister, the Treasurer, and I would have given to the boards of the State-owned electricity generators. I assume that the Deputy Leader of the Opposition has been researching this matter, and I appreciate that. I will ensure that I have a comprehensive answer for the Opposition at the earliest practicable time. SOLITARY ISLANDS MARINE PARK

The Hon. HENRY TSANG: My question is addressed to the Minister for Fisheries. What action has been taken to protect fish and aquatic environments from commercial fishing pressure within the Solitary Islands Marine Park? 2724 LEGISLATIVE COUNCIL 6 June 2002

The Hon. EDDIE OBEID: The Solitary Islands Marine Park was the first of its type in New South Wales and a first for the Carr Government. This vast park, which stretches 70 kilometres along our coastline, is north of Coffs Harbour. It is a unique aquatic environment in which visitors can see tropical, subtropical and temperate marine life co-existing. Community consultation about the park has been going on for more than two years. Last April the Minister for the Environment, the Hon. Bob Debus, and I visited the area to announce zoning plans for the marine park. From August commercial fishing will be banned in 8,700 hectares of the sanctuary zones, and trawling will be banned in 39,000 hectares of the habitat protection zones. Other commercial fishing practices, such as set lining and purse seine netting, will also be banned in the whole park.

Last March I visited the region to announce that the New South Wales Government will provide $4 million to buy out commercial fishers operating in the marine park. This means that the Government has committed $27 million to buy out commercial fishing licences. Of this, $20 million comes from recreational fishing licence funds and $7 million from consolidated revenue. Some $4 million of this consolidated funding will be spent specifically on the buyouts in the Solitary Island Marine Park. The buyouts will protect sanctuary and habitat protection zones and reduce commercial fishing pressure over the entire park. The Government's proposed buyout has been strongly supported by local commercial fishers. I am pleased to advise the House that the Government has accepted the voluntary offers of 30 commercial fishers to sell their entitlements.

Included among those being bought out are eight ocean haul fishers, one purse seine fisher, one estuary general fisher, three ocean prawn trawl fishers and 17 ocean trap and line fishers. The average buyout payment in the Solitary Islands Marine Park is $117,000. An additional amount of up to $20,000 is available for retraining, relocation and depreciation. All up, 30 commercial fishers operating in the Solitary Islands Marine Park have voluntarily sold their commercial fishing entitlements to the Government. The buyout will be completed before the start of new zoning plans, which take effect from 1 August this year.

HISTORICAL SITES PRESERVATION

The Hon. DAVID OLDFIELD: My question is addressed to the Minister representing the Minister for Planning, and Minister for Aboriginal Affairs. Would the Government place more historical significance on the Bullecourt development site at Ultimo if the relics at that site had been found to be Aboriginal rather than non- Aboriginal? If the site had contained Aboriginal artefacts, middens or evidence of Aboriginal occupation, would the Government have attempted to stop or amend this development or any development, and hence stop the destruction of any such evidence on this or any other site? Does the Government view Aboriginal historical sites at all differently or as being more important than non-Aboriginal sites? If so, why? The Hon. JOHN DELLA BOSCA: I will refer the policy question at the end of that sequence of questions to my colleague the Minister for Planning, and Minister for Aboriginal Affairs for a proper and precise answer. In general terms, the implication in the question is that the Government has not taken steps at a planning level or in establishing capital programs to preserve the colonial heritage of Australia. That is a ludicrous implication, given the extent to which conservation measures have taken place in a number of major public projects. [Interruption] As Reverend the Hon. Fred Nile is pointing out, it is everything from the Museum of Sydney through to construction of the Conservatorium of Music. It is ludicrous to imply that some unfair or racist view is behind the notion that cultural heritage should be preserved. Obviously, Aboriginal cultural heritage is of great concern to many people, including many non-indigenous people. The preservation of non-indigenous heritage is of interest to almost all of us, including many indigenous people. So let us not be divisive about these things. Let us be clear: The community of New South Wales supports preservation of its cultural and built heritage, and where possible that is achieved by planning processes or other initiatives. We should not be divisive about that. As to the honourable member's question, I will get an answer from the Minister for Planning, and Minister for Aboriginal Affairs. WOY WOY POLICING The Hon. Dr BRIAN PEZZUTTI: My question is addressed to the Minister for Police. What action has the Government taken to put general duties police back into Woy Woy police station, given that almost 90,000 local residents have signed a petition in support of their reinstatement? The Hon. MICHAEL COSTA: I am always pleased to elucidate a response detailing the achievements of the Government in policing. We are doing many things to ensure that we have front-line visible 6 June 2002 LEGISLATIVE COUNCIL 2725 policing. I would have thought most honourable members would be aware that we are reducing our local area commands from 11 to five on 1 July to enable up to 1,000 police in those regional commands to be deployed through local area commands. We have increased police visibility. Even this week delegates at the shires conference said to me that since the Government announced the restructure they have seen more police on their streets and they congratulated us for that. As honourable members know, we require all police officers—from the commissioner down to probationary constable—to make visible policing part of their roster cycle. Clearly this Government has great respect for the benefits of visible policing, which is precisely what the community of New South Wales wants.

The Hon. Dr Brian Pezzutti: Are you going to answer the question?

The Hon. MICHAEL COSTA: Is that an interjection?

The PRESIDENT: Order! I call the Hon. Dr Brian Pezzutti to order.

The Hon. Dr Brian Pezzutti: I was going to take a point of order but I was just hoping he would answer the question.

The Hon. MICHAEL COSTA: Just sit down, I am answering the question. You asked me what we were doing to increase police visibility and I am telling you.

The Hon. Michael Gallacher: In Woy Woy.

The Hon. MICHAEL COSTA: All over the State. Is Woy Woy a part of the State of New South Wales? We are doing many things. A key component of our strategy is to increase the numbers of police. Clearly this Government is committed to a record number of police.

The Hon. Dr Brian Pezzutti: Point of order: My question related specifically to whether the Minister was going to put police back in Woy Woy police station. The Minister is not going near to being relevant to my question.

The PRESIDENT: Order! The new sessional orders make it quite clear that an answer must be relevant to the question. I ask the Minister to continue to be relevant.

The Hon. MICHAEL COSTA: I am always relevant. As has been pointed out by a number of members of this side of the Chamber, Woy Woy is part of the State of New South Wales. It would make it a lot easier if the honourable member could actually give me the address of that particular police station, given that he has visited it on recent occasions. What is the address? He does not even know where Woy Woy police station is. Clearly this is another stunt by an Opposition that has no policies on policing.

This Government takes its responsibilities in policing extremely seriously. That is why we have embarked on a policy of visible policing, a policy that has been criticised by only two organisations. The New South Wales Opposition and the Council for Civil Liberties are the only critics of Operation Viking. What is the problem with visible policing? I want to know why the Opposition has a principled objection to seeing police on the streets. What is wrong with visible policing? What is wrong with high-impact policing? The Opposition must have an explanation. Only the Council for Civil Liberties and the New South Wales Opposition do not support visible high-impact policing.

The PRESIDENT: Order! I call the Hon. Dr Brian Pezzutti to order for the second time.

PAYROLL TAX

The Hon. RICK COLLESS: My question is to the Assistant Treasurer. What action has the Government taken to address the concerns of the New South Wales Chamber of Commerce, as reported in today's Australian Financial Review, over the broadening of the State's payroll tax base, which will have the effect of capturing fringe benefits and eligible termination payments?

The Hon. JOHN DELLA BOSCA: I draw the attention of the honourable member to the fact that this is a budget initiative. Soon he can go to the Treasury web page and get a full account of the proposals that are before the Parliament. The estimates committee process gives him ample opportunity to canvass— 2726 LEGISLATIVE COUNCIL 6 June 2002

The Hon. Duncan Gay: You refuse to answer.

The Hon. JOHN DELLA BOSCA: No, I do not. Like me, the honourable member is relatively new to this place, and I am explaining to him that during the estimates committee hearings he can ask questions about a revenue initiative and the ways in which it will operate and affect the revenue capacity of small, medium and large enterprises. Generally speaking, as the honourable member well knows, the Budget contains job generation initiatives and overall directions of financial prudence, which is the basis for making the Premier the true inheritor of the Macquarie tradition—not only is he known as Bob the Builder; he has inherited the proud label of Macquarie the Builder. The honourable member has picked on a very narrow basis of criticism of the Budget. Shortly, I and other Ministers will have the privilege of attending a luncheon to listen to our colleague the Treasurer address a large number of members of the business community who are very happy with the way in which—

The Hon. Duncan Gay: Is he away for a fundraiser?

The Hon. JOHN DELLA BOSCA: No, he is not.

The PRESIDENT: Order! I call the Deputy Leader of the Opposition to order for the first time.

The Hon. JOHN DELLA BOSCA: The Treasurer is on important ministerial business. I said that along with some of our colleagues I will shortly be attending a function at which we will see for ourselves the attitude business is taking to the Budget because of the opportunities it provides for business, the generation of jobs and the creation of a better future for our State. I suggest that the Hon. Rick Colless reads that part of the Treasury home page that refers to initiatives to assist business to create jobs and provide security for employment well into the future.

HOMOSEXUAL DISCRIMINATION

Ms LEE RHIANNON: I direct my question to the Special Minister of State, representing the Premier. Will the Minister take a lead from the New Zealand Prime Minister, who has apologised to the gay and lesbian community in that country for the discrimination of past New Zealand Governments? Will the Minister similarly apologise to the gay and lesbian community in New South Wales for the discrimination it has suffered because of the actions of past New South Wales governments?

The Hon. JOHN DELLA BOSCA: I cannot speak for the Government in relation to this question. I will leave the answer to the Premier and the Leader of the Government in this place for a future time, but I will ask them to provide me with a written answer to this question. The member has made no secret that she is a supporter of radical politics, and some of us have had some sympathy for a range of radical causes. I have always been a supporter of the acceptance and tolerance of gay people, and I am sure that many honourable members on both side of the House would take that attitude. However, I would be a little concerned if we started aligning the important cause of indigenous reconciliation with the grievances of specific groups, whether they be gays or others in the community who may have previously suffered some forms of discrimination. We should not elevate those concerns to equate with the task of reconciliation between the Australian community and the indigenous population.

I will leave it to the Premier and the Leader of the Government in this place to respond appropriately on behalf of the Government to the first part of the question. If the implication is that in some ways discrimination suffered by gays, Catholics, Protestants, Jews, or anyone else—

The Hon. Michael Costa: What about us wogs?

The Hon. JOHN DELLA BOSCA: Any suggestion that such discrimination should be equated with the important cause of reconciliation would not advance the honourable member's cause or the interests of the public at large.

MENAI POLICING

The Hon. DON HARWIN: My question is to the Minister for Police. What action has the Government taken to return Menai police station to its former status as a fully operational patrol command, particularly as local residents raise concerns about the rising incidents of petty crime and vandalism in the area? 6 June 2002 LEGISLATIVE COUNCIL 2727

The Hon. MICHAEL COSTA: This is a question which, from memory, has been asked on about four or five occasions. It would greatly assist me if the honourable member would give me the location. The Hon. Don Harwin: Illawarra Road, Menai. Have you ever been there? The Hon. MICHAEL COSTA: Yes, I have been there. Our fabulous dog squad is located there. It is a great location. All honourable members should go there and see the great work that the Menai police station dog squad is doing. A number of very well trained officers there spend a lot of time training our general-purpose dogs, our drug dogs and, in the future, our increasing number of gun dogs. It is a great location. The residents welcome the fact that the dog squad is based at and works out of that location. In relation to crime in the area, I have been to the location on a number of occasions and spoken to local area commanders and local government representatives, and addressed community meetings. They are very pleased with this change to visible policing. I repeat, only two organisations have criticised visible policing—the New South Wales Opposition and the Council for Civil Liberties. What a unity ticket that is! John Brogden—the temporary Leader of the Opposition—has commented that visible policing in the form of Operation Viking is knee-jerk policing. Getting our police back on the street, on the beat and visible, dealing with the community's perceptions of fear, is knee-jerk policing? The PRESIDENT: Order! I call the Hon. Don Harwin to order. The Hon. MICHAEL COSTA: The Opposition wants to lock our police in police stations. This is a hopeless Opposition. It has no policies. It recycles the same questions at question time after question time. I am going to make sure that the New South Wales community knows that the Council for Civil Liberties and the New South Wales Opposition oppose visible policing and are the only organisations to do so. The Government will continue with its policy of visible policing. The Hon. John Jobling: Point of order: The question related to returning Menai police station to its former status as a fully operational patrol command. The Minister has not addressed the question, and is not addressing the question. I ask that he be directed to make his response relevant. The PRESIDENT: Order! I remind the Minister that the new sessional orders require that an answer be relevant to the question. The Hon. MICHAEL COSTA: The question also referred to graffiti and crime in the area, and I was addressing those specific issues. This Government is very committed to dealing with those issues, and will do so by visible policing—a policy opposed by the New South Wales Opposition and the Council for Civil Liberties. Those two organisations have formed a unity ticket to oppose a strategy that is unanimously supported by the community of New South Wales. At every location I have been to the community has told me that it wants police on the streets. That is what we will deliver. Operation Viking is the first step in that process. The restructure from 1 July also is a step in the direction of more visible policing—a policy completely supported by the community of New South Wales. I cannot understand why the New South Wales Opposition and the Council for Civil Liberties have formed a unity ticket to oppose visible policing, which our community wants. The Hon. JOHN DELLA BOSCA: If honourable members have further questions, I suggest they put them on notice. Questions without notice concluded. [The President left the chair at 1.06 p.m. The House resumed at 2.00 p.m.] STANDING COMMITTEE ON SOCIAL ISSUES Report: Safety Net? Inquiry into the Classification (Publications, Films and Computer Games) Enforcement Amendment Bill 2001—Final Report: On-line Matters The Hon. Jan Burnswood, as Chairman, tabled the report entitled "Safety Net? Inquiry into the Classification (Publications, Films and Computer Games) Enforcement Amendment Bill 2001 Final Report: On- line Matters", dated June 2002, together with minutes of proceedings, transcripts of evidence, submissions and tabled documents. Report ordered to be printed. The Hon. JAN BURNSWOODS [2.01 p.m.]: That, according to resolution of the House, the House take note of the report. Debate adjourned on motion by the Hon. Jan Burnswood. 2728 LEGISLATIVE COUNCIL 6 June 2002

DRUG SUMMIT LEGISLATIVE RESPONSE AMENDMENT (TRIAL PERIOD EXTENSION) BILL Second Reading Debate resumed from 5 June. The Hon. Dr PETER WONG [2.04 p.m.]: Today we are debating arguably one of the most contentious social issues affecting our community: drug use. To make things more controversial, we are talking about extending the trial of the medically supervised injecting centre at Kings Cross. Not surprisingly, those who do not support a medically supervised injecting centre would argue that this facility sends out the wrong signal by tacitly supporting the use of drugs. The medically supervised injecting centre is a recommendation from the 1999 New South Wales Drug Summit, which took place for five days between 17 May and 21 May in this Parliament. The Summit brought together a diverse cross-section of our community—including drug experts, families, representatives of interest groups, community leaders and politicians—to examine existing approaches to the drug problem. Those who took part in the Drug Summit were united in the search for ways to lessen the tragic consequences of drugs on our society. A trial of a medically supervised injecting centre was a key recommendation of the Drug Summit. In my mind, the trial was something that we needed to do, otherwise we would always be wondering whether it would work. When the legislation to set up the trial came before this House in 1999, I supported it and argued that far from sending a signal to the community that Parliament is saying that taking drugs is all right, it is more about saving people's lives. Today, armed with the preliminary 12-month process evaluation report on the medically supervised injecting centre, I have not changed my mind. The report, prepared by pre-eminent experts in the areas of health and crime—including Professor Kaldor from the National Centre in HIV Epidemiology and Clinical Research at the University of New South Wales, Ms Lapsley of the School of Public Health and Community Medicine at the University of New South Wales, Professor Mattick of the National Drug and Alcohol Research Centre at the University of New South Wales and Dr Weatherburn of the New South Wales Bureau of Crime Statistics and Research—found that in the first 12 months the medically supervised injecting centre had potentially saved many lives. During the 12 months of operation there were 2,729 registered clients and 250 overdoses—potentially 250 lives were saved because of the medically supervised injecting centre. In additional, the centre referred more than 1,000 users for further assistance—more than 1,000 lives may have been turned around with help from other organisations. Thus far, they are very encouraging positive preliminary results. But what about the downside? A legitimate concern expressed about a medically supervised injecting centre is that it may put off visitors and hurt business through the number of people, potentially drug users and others, loitering around the location of the injecting centre. In particular, the local Chamber of Commerce fears it will negatively impact on its members' business. On Friday 24 May the spokesperson for the Kings Cross Chamber of Commerce, Mr Paul Haege, was quoted on ABC radio as saying "Business is lousy... There are not so many people up here that were there before." His comments were in response to one of the findings of the interim report which concluded:

The overall number of total and drug-related loiterers observed at the front and the back of the MSIC was very low

The numbers of drug-related loiterers at the front of the MSIC was increasing before the MSIC opened but began to decrease after it opened.

Of course, the other legitimate concern is that the medically supervised injecting centre may increase the level of crime in the local area. Members will be aware that the interim report did not find statistics to support this during the first 12 months of operation of the medically supervised injecting centre. The report used weekly recorded crime data obtained from the computer operated police system database for the Kings Cross local area command and for the rest of Sydney from 1 May 2000 to 20 December 2001. The report concluded:

There was no indication that the MSIC had any effect on either theft or violent acquisitive offences in Kings Cross Local Area Command. There was no significant increase or decrease in violent acquisitive offences in the Kings Cross Area Command.

My response to the argument that the injecting centre cost is over the top, given the alleged benefits, is: How do you put a value on one life let alone the 250 lives that may have been saved in the first 12 months of the trial? I regard the interim report and its results as exactly that: interim. While the conclusions I have quoted are generally supportive of the medically supervised injecting centre, let me make it clear that 12 months is not long enough for us to conclude that the injecting centre has been an unqualified success, given the importance of this matter. That is why I will be supporting this bill, which seeks to extend the trial by 12 months. 6 June 2002 LEGISLATIVE COUNCIL 2729

It has been suggested by some that the real motivation of the Government in extending the trial is to conveniently postpone a politically sensitive decision until after the State election in March 2003. I do not know the Government's motivation. However, I can say that perhaps taking this issue off the political and election radar is a positive step. We are talking about saving lives, and in my opinion we should not go down the path of the usual politicking. Regardless of the outcome of this trial in 12 months' time, I reiterate the importance of local community support when it comes to a medically supervised injecting centre. I note that the local member for Bligh, the Hon. Clover Moore, supports the extension of the trial. I understand that the trial also has the support of South Sydney Council. I have also mentioned the opposition by the local Chamber of Commerce.

As honourable members know, I have a strong commitment to and relationship with the Cabramatta community, which is intensely interested in the outcome of this trial. I note that the Cabramatta community does not support having a medically supervised injecting centre in Cabramatta. In conclusion, I make the point that the medically supervised injecting centre was an important outcome of the 1999 Drug Summit. The Government did not pluck this trial from the air. It was a matter of, "If you don't trial something, how will you know if it will work or not". It is important that we started this trial to attack drug use in a strategic manner. The interim report is certainly positive but not necessarily conclusive. That is why, as a member of this Parliament and as a GP and community worker who has worked actively to turn lives around, I strongly support the extension of this trial by 12 months. Not only will the extension give us more data to evaluate the trial but, importantly, it will take this important issue away from the March 2003 election politicking.

The Hon. DON HARWIN [2.12 p.m.]: I have an almost pathological distaste for the use of drugs and a particular distaste for the notion of recreational drug use. However, I have great compassion for those users who struggle to beat their addiction. It is well-known medically that despite every possible effort, a small number of heroin users will always remain impervious to almost every form of rehabilitation. Many medical practitioners see a form of heroin maintenance therapy as a necessary evil for this category of user. As long ago as almost 15 years my branch of the Young Liberal movement, the Georges River Young Liberals, debated this issue and adopted a position. A very good friend of mine, Joanne MacCafferty, moved a motion in support of prescribing heroin to the category of registered users I spoke about. I have always taken the view that we need to give every consideration to innovative ways of getting people off drugs, and that is my preferred position.

At the Drug Summit in 1999 I indicated my willingness to consider a medically supervised injecting room trial. On that occasion my Liberal colleagues—indeed, my Coalition colleagues—had a free vote. It is a matter of record that my colleagues had many misgivings about the trial undertaken by the Uniting Church at Kings Cross, and that when we considered the original legislation a majority took the view that it should be opposed. Following our usual processes, during which there was a party vote, I opposed the original legislation. However, on this occasion Liberal members have a free vote, when they can exercise their conscience and choose to oppose or support the extension of the trial. I will support the extension. I believe that particularly in Sydney there is a widely held view that we need to try a few innovative approaches to try to save lives and get people off drugs. The drug problem touches many families, and there is less resistance to the medically supervised injecting room trial than is understood by many.

As other members have mentioned—most recently the Hon. Dr Peter Wong in his remarks—no doubt the residents in the area principally affected around Kings Cross are overwhelmingly in favour of this trial. Why? There is a very good reason. I speak as someone who, for seven years between 1992 and 1999, lived within 1½ kilometres of where the current trial is under way. Illegal, unsupervised injecting rooms—or, as they are colloquially known, shooting galleries— have been a fact of life in Kings Cross for very many years, in commercially run premises along Darlinghurst Road. It is a fact also that many private residential homes in the streets in the area have become virtually shooting galleries. In 1992, when I first bought a home in East Sydney, I remember taking my employer at the time to see the house I had bought. As a boy from the suburbs, my first introduction to East Sydney was to find on the steps of my terrace a poor man who had overdosed; we had to call an ambulance to get him some help. That was very distressing. However, people who live in the Kings Cross area, in Potts Point, Elizabeth Bay, Darlinghurst, Woolloomooloo and East Sydney, confront this issue all the time. Their perception of the issue is very different from the way some opponents of this trial understand it. That is why there is so much support amongst residents in the area.

The Hon. Dr Peter Wong referred to the position of South Sydney Council. My friend and colleague Councillor Shayne Mallard from the north ward of South Sydney Council has consistently supported this trial. Like many others, he has misgivings on a variety of grounds, but he sits on a community evaluation panel that is watching the trial with interest. He has confirmed to me the overwhelming acceptance of the trial amongst his constituents in the north ward. I add for the record that I have sought the advice of the local Liberal Party 2730 LEGISLATIVE COUNCIL 6 June 2002 branches in the area most directly affected by the trial. In some respects, we are all indirectly affected, but in the area most directly affected the three party branches—Darlinghurst-Surry Hills, East Sydney, and Potts Point- Elizabeth Bay—support the trial. Local amenity is one thing, and that is one reason why there is so much support in the area. However, much more important than the issue of local amenity is the issue of saving lives and getting people off drugs. From the information available at the moment and according to the six-month process evaluation report on the medically supervised injecting centre released by the National Drug and Alcohol Research Centre at the University of New South Wales:

… one in eighteen visits resulted in a referral for further assistance … Among the 610 referrals for further assistance, 42% were to treatment for drug dependence, 33% were to primary health-care and 25% were to social welfare services.

On an even graver note, 87 of the drug-related clinical incidents that occurred at the centre required medical management, which equates to 0.8 per cent of visits. There were 50 heroin overdoses, which were managed by the administration of oxygen—Naloxone was administered in eight cases—28 cases of cocaine-related toxicity, five benzodiazepine and four non-heroin opioid overdoses respectively. That indicates that the centre is playing a significant role in managing drug addiction amongst a large number of people. A number of honourable members spoke about verification; their comments were well made because verification will be absolutely crucial and extremely difficult. Well before Dr Brendan Nelson entered Federal Parliament, when he was speaking as a medical practitioner and as an Australian Medical Association leader, he told gatherings in my party that while supportive of the concept of a trial he was concerned about verification of the results. Frankly, I share his concerns. One factor that will make verification difficult is the so-called heroin drought as a result of events in Afghanistan prior to September 11, where the Taliban regime seemingly limited the heroin supply—

The Hon. John Della Bosca: And the rain in Thailand.

The Hon. DON HARWIN: That is indeed the case. It is of concern that it will be difficult to verify this trial. One of the hardest issues we will have to come to terms with as legislators in verifying the value of the trial is its cost. In a sense I almost hesitate to raise that issue. Honourable members will quite rightly ask: Should we ever place a dollar value on saving even a single life? There will have to be some evaluation of the efficacy of the dollars that we are spending on this injecting room facility versus what those funds could have achieved with respect to rehabilitation programs. That is ahead of us. Quite rightly, most of the bill addresses the merits of the trial. I am disappointed that we have to consider the extension of a trial. It is a matter of record that the extension of this trial is required because the Government lacked the foresight, I suppose, to ensure that the conclusion of the independent assessment would take place before the original date scheduled for the end of the trial.

In some respects, this afternoon we should be debating the long-term future of this program. It is important for me to put that on the record and to express regret about the timing of the trial, as it has turned out. I respect the views of my colleagues, many of whom will wish to maintain their principled opposition to the concept of medically supervised heroin maintenance, one could almost say, with the medically supervised injecting room trial. Despite some misgivings, I think that there is a strong case in favour of letting the trial conclude. Even with the limitations of this trial, and the difficulties with verification, the evaluation of the data nevertheless will make an important contribution to public policy as it relates to drugs. I reiterate that there is no local dissatisfaction to speak of with the centre and it is a matter of record that it is saving lives. However, I will take a lot of convincing that the trial should become a permanent initiative which might be available at other locations, despite the fact that in the peculiar and particular circumstance of Kings Cross the trial seems to be proceeding satisfactorily. I support the bill. The Hon. PETER BREEN [2.26 p.m.]: I am pleased to follow the Hon. Don Harwin in this debate, and to hear him support the bill and the extension of the drug evaluation program of the safe injecting centre. I notice that the Leader of the Opposition, John Brogden, received the support of only three colleagues in the Legislative Assembly on this issue—even though he is their Leader. The Hon. Dr Brian Pezzutti: You are going to get more support than that. The Hon. PETER BREEN: I am glad to hear that from the Hon. Dr Brian Pezzutti. The Hon. Dr Brian Pezzutti: It was a wonderful speech by the Hon. John Jobling—the best I have heard. The Hon. PETER BREEN: I agree with the comments of the Hon. Dr Brian Pezzutti about the speech of the Hon. John Jobling, but I was referring to the speech of John Brogden in the Legislative Assembly. I am 6 June 2002 LEGISLATIVE COUNCIL 2731 glad that this issue has much greater support from the Coalition in this place than it did in the Legislative Assembly. The four Coalition members of the lower House who supported the bill are heroes and are to be congratulated on their principled stand. Earlier the Deputy Leader of the Opposition attacked the Australian Labor Party for not allowing a conscience vote on a matter of principle, but it occurred to me that it is a poor reflection on the Coalition in the lower House when it can get just four votes on what I believe is one of the most principled issues to be debated in this Parliament—that is, the extension of the trial of the safe injecting centre.

The Hon. Charlie Lynn: It is a conscience vote. It is called democracy.

The Hon. PETER BREEN: Yes, democracy does allow a conscience vote, but I was surprised that only four Coalition members in the other place supported the extension of the program. One of the advantages of speaking late in the debate on any issue is that we hear what other honourable members have had to say. I was particularly impressed with the contribution of Clover Moore, the honourable member for Bligh, in whose electorate the medical supervised injecting centre is located. I commend the speech of Clover Moore to the House. It is stating the obvious to say that Clover Moore has more first-hand experience of the safe injecting centre than any other member of the Legislative Assembly or the Legislative Council. In fact, she attends the injecting centre on a regular basis as part of her work in the area. In her speech she supported the work of Ingrid van Beek and her staff, who do a fabulous job trying to get drug use off the streets of Kings Cross and into the medically supervised injecting centre.

The Hon. Dr Brian Pezzutti: That is not meant to be its aim.

The Hon. PETER BREEN: No, but it is one of the objectives that it is achieving. As the Hon. Don Harwin pointed out, the residents of the area are 100 per cent behind the safe injecting centre because it is cleaning up the streets and it is protecting people from needle-stick injuries in back alleys. I can recall my disappointment when the Vatican decided that the Sisters of Charity could not run the safe injecting centre. As a Christian I was always taught that the church looks after the disadvantaged, the poor and the marginalised—but not drug addicts, it seems. The medically supervised injecting centre is keeping drug users alive and providing them with the opportunity to be directed into health and rehabilitation programs. Reverend the Hon. Fred Nile suggested that the medically supervised injecting centre should be scrapped and replaced with a recovery program. May I suggest to Reverend the Hon. Fred Nile that the safe injecting program is indeed a recovery program, as the 1,000 diversions would attest to any fair-minded person.

The Hon. Dr Brian Pezzutti: It is not a safe injecting centre; it is a supervised injecting centre.

The Hon. PETER BREEN: It is supervised, but it is safer than injecting on the back streets of Kings Cross.

The Hon. Dr Brian Pezzutti: Say it is supervised; don't say it is safe.

The Hon. PETER BREEN: It is both safe and supervised from the point of view of drug users.

The Hon. Rick Colless: How is it a safe injecting room?

The Hon. PETER BREEN: If you were in the back streets of Kings Cross, and did not have sufficient light and were looking for a vein, you would not be very safe. A medically supervised injecting centre is much safer. Could I suggest also that people diverted from the supervised injecting centre are the most marginalised, the most disadvantaged and the most vulnerable of all drug users. These people are the biblical equivalent of the man who fell victim to robbers, who was bashed and left by the roadside. He was ignored by a priest, I think by a lawyer and perhaps also by a politician. [Interruption] As Reverend the Hon. Fred Nile correctly points out, the good Samaritan took the person who had been robbed to a supervised injecting centre—an inn! Last week I had the benefit of an inspection of the medically supervised injecting centre. The 31,000 visits from more than 3,000 clients provide a valuable profile on the drug habits of the Kings Cross community. Of those visits, approximately 1,000 referrals to other services were recorded. The Hon. Rick Colless in his comments last night quoted a statistic from the interim report, suggesting that only one in 30 people had been diverted. But, as I endeavoured to point out at that time—and perhaps I am not using accurate figures—if there are 3,000 clients and 1,000 are referred to other services— 2732 LEGISLATIVE COUNCIL 6 June 2002

Reverend the Hon. Fred Nile: But did they arrive at those other services?

The Hon. PETER BREEN: I cannot answer that. But, if a thousand people have the opportunity to receive assistance under other programs and go to other treatment facilities, that is a positive result. It indicates that the supervised injecting centre is achieving the object for which it was set up, namely, to provide people with an opportunity for rehabilitation which they would not otherwise have.

Reverend the Hon. Fred Nile: How many of that thousand are off drugs?

The Hon. PETER BREEN: According to the Sydney Morning Herald—

The Hon. Charlie Lynn: The Sydney Morning Herald?

The Hon. PETER BREEN: There is no other authority at this stage. According to the Sydney Morning Herald, which was quoted by the Hon. Richard Jones last night, something like 80 people have been diverted from drugs as a result of the program. This represents a significant opportunity to get drug users off the streets and back into mainstream society. Here we have a thousand potential success stories of people who might not otherwise have the opportunity to get their lives back together. Yesterday's Radio National had a very interesting program on Julie McCrossin's Life Matters. The program focused on various kinds of addiction, including drug addiction. I was interested to hear that a growing body of psychiatric opinion is disputing the idea that addicts are born and their addictions are burdens they must carry for life. Instead, psychiatrists now appear to be saying that addiction generally, and drug addiction in particular, is more accurately described as bad behaviour commonly associated with conditioning and other learned activities. This is a pretty radical idea. In other words, addicts can be cured, but they need some kind of circuit breaker. I am suggesting to the House that the medically supervised injecting centre is ideally placed to provide an opportunity for escape for those unfortunate human beings trapped in the prison of drug dependence.

As I have said before, I have a sister who is a heroin addict. She is what is called a recovering heroin addict. I could not quite work out where she would fit within the category of the supervised injecting centre, but it appears there is a group of people who take heroin on an irregular basis, and when things get too much for them they relapse into their habits. But they are not regular users. They are not recreational users either. These are people who have a drug problem and relapse on an irregular basis.

The Hon. Charlie Lynn: What are you going to do for people at Orange, Broken Hill and Clarence?

The Hon. PETER BREEN: I suggest safe injecting centres should be established in those areas as well. But that is impossible. Honourable members need to understand that people who have an addiction problem will not be diverted from their problem by a rehabilitation program of the kind which, in an ideal world, Reverend the Hon. Fred Nile would see in operation. They have to make a decision for themselves, based on their own experience.

Reverend the Hon. Fred Nile: That system works in Sweden.

The Hon. PETER BREEN: It works for certain people in Sweden. I do not dispute what Reverend the Hon. Fred Nile is saying, but the vast majority of drug addicts that I have had experience with—and I have had experience with a number of them—are not the kind of people to be diverted into programs of the type that somebody last night called forced rehabilitation. This is wishful thinking of the worst kind. These people have to make decisions for themselves about rehabilitation, and they can make that decision only in the context of a place like the supervised injecting centre, where they get proper, independent health advice and counselling.

My final comment is on the Joint Select Committee into Safe Injecting Rooms, a committee of this Parliament which published its report in February 1998. It was the work of that committee, along with the recommendations of the Wood royal commission the previous year, which became the basis for the Government's Drug Summit plan of action. The minority report suggested a safe injecting centre, and it is the minority report which was subsequently implemented as a result of the Drug Summit. The committee's appraisal was used as the skeleton for the setting up of the supervised injecting centre, and it has worked. The Government committed itself to support of one trial of a medically supervised injecting centre. Originally, the trial was to last 18 months, but the purpose of the legislation before the House is to extend the trial by a further period of 12 months. It deserves the support of honourable members. 6 June 2002 LEGISLATIVE COUNCIL 2733

The Hon. MICHAEL GALLACHER (Leader of the Opposition) [2.37 p.m.]: My contribution to the debate will be brief. I thank the Hon. Dr Brian Pezzutti for his indulgence. It allows me to put a couple of thoughts on record before he commences his contribution, which will be an educational resource for members of the Legislative Council, reflecting his wide knowledge of health matters in this State. The honourable member will address this issue from a health perspective; I will address it from a law enforcement perspective. My experience of dealing with drug users dates back to when I was 18 years of age and was introduced to this small section of our society as a trainee police officer. Over the years I have lost count of the number of cases that I have attended to involving drug overdoses resulting in death and serious crimes in which drug use played a significant role. It is often stated by proponents of a softer approach to drug crime that if heroin were legalised, and thereby made easier to access, there would be less crime, that most of our crime problems would disappear and it would be happy days and cool drinks all round. One question that remains unanswered is: If legalising is the answer to reducing crime, why is it so many people of this State arrested for serious crime are on a methadone program that provides them with access to the drug for free, and when they want it? Under the methadone program they may take the drug away with them. Where is the evidence to demonstrate legalising the use of a drug will lead to a drop in crime in New South Wales? In my view it is arguable—based on my experience on the Central Coast, where the Special Minister of State also lives—that there is probably a more significant problem with locally produced amphetamines on the Central Coast of New South Wales than with heroin, yet the focus of the Government is upon heroin addiction. Strong evidence indicates that bikie gangs in the Hunter, the Central Coast and Western Sydney regions are involved in the local production of amphetamines. The Government contends that much of the heroin problem is traceable to a lack of support for customs services in Australia, but the Howard Government repeatedly disproves that contention. The New South Wales Government fails to acknowledge the significance of what is referred to as home bake, that is, heroin produced in Australia. When the factors of the local production and ready availability of speed and other drugs are combined with a significant number of deaths, one wonders where the tragedy of the drug problem will ever be overcome. Where does the Government draw the line in the sand? Is the Government saying that it will accept heroin addiction only, or will it move on to deal with amphetamines and other drugs that are yet to arrive on Australian shores, for example, cocaine and its derivatives? Providing an environment in which people need only to state that they are en route to an injecting room to avoid prosecution and to possess and use drugs freely could not in any way be described as a serious attempt to address the issue. I said at the outset of this debate, and will continue to say, that legislation that provides a get-out-of- gaol-free card to people who say, "Look, I am on my way to the injecting rooms" sends the wrong message to criminals. Such legislation creates an excuse for drug taking. Offenders need only play that card to avoid responsibility and accountability when appearing before a court. It also sends a very strong message to the police that in the view of the Government the drug problem shares equal importance with the crown-of-thorns starfish. To avoid prosecution offenders need only claim that the reason they are in possession of drugs is that they are on their way to a shooting gallery. The Government has got that wrong. I will continue to seek to provide sufficient evidence to expose as fraudulent this Government's attempts at addressing the drug problem. The Hon. John Jobling made one of the best contributions to this debate that I have heard in the time that I have been a member of this Parliament. It demonstrated his preparedness to undertake research and to combine that with years of professional experience. The honourable member approached the debate scientifically to argue the Opposition's position, calling on his years of experience as a member of Parliament and representative of this State when undertaking research overseas on advances that have been made to address this problem. I commend his contribution to all honourable members. When I read his speech, it weighed heavily on my mind. The Hon. Dr Brian Pezzutti: It is logical. The Hon. MICHAEL GALLACHER: It is a logical argument, and I believe that at the end of the day it will be proved right. It is my view that the Government has put forward little more than a stunt for short-term political effect. The Government is trying to take the issue off the agenda for at least the next nine months in order to be able to claim that, although it may not come up with a complete answer, it is attempting to address the problem and it is having a go. Should this House decide not to support this legislation, the final report will not be presented for another 10 months anyway. The Government will do whatever it has to do to ensure that the report on the injecting room does not see the light of day between now and the next State election. That is one strategy I am able to guarantee. 2734 LEGISLATIVE COUNCIL 6 June 2002

As I said earlier, I have opposed the drug injecting room trial from the outset. However, I believe it is appropriate for every opportunity to be taken to expose the program for what it is—a stunt. For that reason, I intend to support the extension of the trial. However, the Minister should not interpret my vote in any way as a sign of support for the program. I do not believe that the Government has got it right. I believe that when the report is tabled in this House the Government's strategy will be exposed as a worthless short-term stunt. The bill will not provide a long-term answer to the problem of getting people off drugs. Addicts may survive today's overdose and even tomorrow's overdose, but if they are unfortunate enough to overdose while travelling on a train to Gosford, Hornsby or Woy Woy, it will be all over for them. The Government has not presented a long- term strategy to get addicts off drugs.

Therein lies the difference between the approach adopted by the Opposition and that adopted by the Government. The Government is interested in short-term fixes whereas the Opposition is interested in rehabilitation and in a long-term measure to assist people to stop taking drugs forever instead of merely enabling them to survive for minutes, days or weeks before finding themselves in the grip of yet another drug overdose. The Government's focus is on day-by-day solution, whereas the Opposition is focusing on a long-term solution. When the report is tabled in Parliament, I will ensure that the Government is left with no excuses and is unable to claim that, but for more scientific data on which to base its support for the program, the program would have succeeded.

I wish to provide the Government with every opportunity so that I will be able to show that this Government has got it wrong. In 2003, when the report is presented by the Brogden Coalition Government, the Minister will occupy a seat on the Opposition side of the Chamber and people will know that he has been exposed as nothing more than a Mr Fix-it who tried to use a short-term political response to resolve a problem that the Carr Labor Government had no idea how to solve.

The Hon. Dr BRIAN PEZZUTTI [2.47 p.m.]: At the outset of my remarks I state that I have nothing but the strongest support for and recognition of the people who designed the trial and who now run the facility. They are professionals, the facilities they provide are professional, the centre is operated professionally and with a great deal of caring, and they are providing care under conditions that have been set by this Government. I make that clear because of my eagerness to ensure that my comments will not reflect adversely on those who have designed the trial, those who are conducting the trial, or those who are caring for people who have walked into the centre off the street.

I have a concern, however, about the design of the trial, which I believe has been a best-guess attempt at providing answers. No trial is perfect, and I do not think that the design of this trial is perfect. Trials always involve methodological problems and decisions on which matter should be considered, but I will leave examination of those issues for another day. The issue on which I will focus is whether or not the trial should continue. The year before last, as a member of the Commonwealth Parliamentary Association, I undertook a study tour to examine the way in which four different countries with populations very similar to that of New South Wales addressed the drug problem. I visited Washington DC, Quebec Province in Canada, Sweden and Switzerland, all of which have populations of approximately seven million people.

All those countries have a western culture, Washington DC and Quebec have a multicultural background, but none has the same cultural mix as New South Wales—certainly not Switzerland and Sweden. The Swiss deal with interlopers in a simple way. They are picked up, taken to the border and deported and that is the end of the matter. The trial that is being conducted by the Swiss is not the same as the trial that is being conducted in New South Wales.

Reverend the Hon. Fred Nile: It is not a trial in Switzerland.

The Hon. Dr BRIAN PEZZUTTI: Switzerland conducted a trial within its needle exchange program. People participating in that needle exchange program and using injecting rooms had access to dieticians, medical people and so on. Reverend the Hon. Fred Nile: And heroin. The Hon. Dr BRIAN PEZZUTTI: The heroin is sold elsewhere. Reverend the Hon. Fred Nile: No, the heroin is supplied to consumers.

The Hon. Dr BRIAN PEZZUTTI: In some places it is and in some places it is not. 6 June 2002 LEGISLATIVE COUNCIL 2735

Reverend the Hon. Fred Nile: They are doing it in Switzerland.

The Hon. Dr BRIAN PEZZUTTI: When I went to Switzerland it was not providing heroin to consumers. The Swiss took a small sample of people who were using those services to demonstrate that there had been a reduction in crime. I do not think that the trial in New South Wales is as ambitious as the Swiss trial. Switzerland cast its net a little too widely and it did not reap many benefits. Another study was undertaken by the Swiss—which is not being undertaken in New South Wales—to establish whether patients were healthy at the end of the trial.

In New South Wales there are no follow-up services for patients. One of the purposes of the Swiss trial was to establish whether the service provided a better life for drug users and improved their health. In contrast, the court diversion process has worked to improve the health of individuals receiving compulsory treatment. The trial at Kings Cross was not designed to provide follow-up services for patients. The trial, which was meant to cost $1.8 million, has now cost $6 million.

The Hon. John Jobling: It is now at $8 million.

The Hon. Dr BRIAN PEZZUTTI: I am not surprised. My colleague the Hon. Patricia Forsythe said earlier that the cost is worth it if it saves a couple of lives. I If we had $8 million to spend on the dual diagnosis of mentally ill people with a drug problem we could save a lot of lives. The Minister for Juvenile Justice did not state in debate why we are going through this process. When the Minister who has the carriage of this matter made his second reading speech I was able to get him to specify, halfway through his speech, the Government's reasons for setting up such a trial. The major reason for the trial—apart from providing an area in which drug users can inject—would have to be to bring people into care.

The Minister made it clear that the aim of the injecting room was to bring people into care. Reverend the Hon. Fred Nile and the Hon. John Jobling clearly pointed out that, while they can measure the people who are referred to care, there is nothing in those measurements to show that they have gone into care, how many have gone into care, and what will happen to them. A valuable exercise would be to identify—as has been identified in the Minister's speech—that often this is the only contact a drug user has with a health service. After the intervention of medical people, nurses and others, and after referring drug users to other services, it would be nice to know whether those people went to those other services and, if they did go, what the outcome was.

This should be an outcome-focused operation. What does the Minister's speech tell us about this service? One aspect of the trial is to evaluate the centre's operations and service delivery. In other words, are they good customer-focused operations? Does it operate a good shop? The second aspect is an impact evaluation of the centre; in other words, whether the centre is having an impact on the local community. The third aspect is to assess five different areas, for example, the public health impact, the impact on treatment uptake, et cetera. The third of those assessments simply cannot be done by the present trial. We do not know the effect of the trial on our public amenities. We do not know what impact it has had on drug dealing and other crime. There is no reference to community attitudes or to economic evaluation.

Reverend the Hon. Fred Nile: They take the measurements that they know will be successful. The Hon. Dr BRIAN PEZZUTTI: That is right. However, none of the evaluation processes can be addressed by the trial because of the way in which it has been designed. So the trial is doomed to fail in that respect. People who have used the facilities and who have been referred to care are not followed up. The trial is not set up to do that. Effectively, the whole operation is anonymous. Other programs that are operated by this Government have had evaluations done by independent investigators. In his second reading speech the Minister said:

There is evidence that lives have potentially been saved. He did no say that lives have been saved; he said that lives have potentially been saved. Giving somebody advice potentially saves their life. Those involved in the operation of the trial are supposed to collect evidence about whether it has potentially saved lives. There is a reference to a number of people who have taken overdoses within the injecting room and who have been saved. That is held up as reflecting the fact that everyone who took an overdose has been saved. Yet there is no evidence to suggest that a narcotic antagonist was used to save any of those people. There is no evidence to suggest that any of those people were in such a serious state that they might have died and, therefore, they needed a narcotic antagonist. I do not think that is the case at all. 2736 LEGISLATIVE COUNCIL 6 June 2002

The Hon. John Jobling: We do not know. The Hon. Dr BRIAN PEZZUTTI: We do not know. The Hon. Peter Breen: Dr Ingrid Van Beek says they have. The Hon. Dr BRIAN PEZZUTTI: I will refer to that issue later. Ambulance call-out rates for non- fatal overdoses have fallen in the Kings Cross area and in nearby Darlinghurst. As the Hon. John Jobling pointed out earlier, the call-out rate has fallen dramatically in Cabramatta, where we do not have this advantage. Reverend the Hon. Fred Nile: And in Western Australia. The Hon. Dr BRIAN PEZZUTTI: That is the overdose rate. Here we have, if you like, a controlled trial. Cabramatta is being dealt with as law and order and public health issues. Everybody in the community is working hard to reduce that problem. The Hon. John Della Bosca: There is a hard-working local member. The Hon. Dr BRIAN PEZZUTTI: I refuse to make any comment for or against any member in the other place, other than by way of a motion to the House. The number of ambulance call-outs has dropped in Darlinghurst, in Cabramatta, and all over Australia in the same period. Reverend the Hon. Fred Nile: Victoria?

The Hon. Dr BRIAN PEZZUTTI: We do not know the figures for any of the other States. We do not know what is going on in Queensland. No-one knows what is going on in Queensland.

The Hon. John Ryan: There would not have been no deaths in Kings Cross. That program could not have eliminated every death in Kings Cross.

The Hon. Dr BRIAN PEZZUTTI: We do not know whether that is correct.

The Hon. John Ryan: It is highly unlikely, statistically.

The Hon. Dr BRIAN PEZZUTTI: The Hon. John Ryan should be careful before making such a statement. Only the Coroner is in a position to decide whether an overdose has been the cause of death.

The Hon. John Della Bosca: You keep pointing at Charlie when you are talking about mental illness.

The Hon. Dr BRIAN PEZZUTTI: No. I am talking about Western Sydney. The forensic laboratories are on Parramatta Road. The doctors at the forensic laboratories are the people who decide who is dead and who is not.

Debate adjourned on motion by the Hon. Dr Brian Pezzutti.

GOVERNOR'S SPEECH: ADDRESS-IN-REPLY Presentation The House proceeded to Government House at 3.00 p.m., there to present to the Governor its Address-in-Reply to the Speech Her Excellency had been pleased to make to both Houses of Parliament on opening the session. The House returned at 4.50 p.m. The President reported that the Address-in-Reply to the Governor's Speech had been presented, and that Her Excellency had been pleased to give thereto the following answer: 6 June 2002 President and Honourable Members of the Legislative Council, It gives me much pleasure to receive your Address and to thank you for your expression of loyalty to Her Majesty The Queen. I am also glad to have your assurance that earnest consideration will be given to the measures to be submitted to you. I have every confidence that your labours will advance the general welfare and happiness of the people of this State.

Marie Bashir Governor 6 June 2002 LEGISLATIVE COUNCIL 2737

LOCAL GOVERNMENT (ANTI-CORRUPTION) BILL

LOCAL GOVERNMENT AMENDMENT (MISCELLANEOUS) BILL

WESTERN LANDS AMENDMENT BILL

FINANCIAL SERVICES REFORM (CONSEQUENTIAL AMENDMENTS) BILL

Bills received.

Leave granted for procedural matters to be dealt with on one motion without formality.

Motion by the Hon. John Della Bosca agreed to:

That these bills be read a first time and printed, standing orders be suspended on contingent notice for remaining stages and the second readings of the bills be set down as orders of the day for a later hour of the sitting. Bills read a first time. DRUG SUMMIT LEGISLATIVE RESPONSE AMENDMENT (TRIAL PERIOD EXTENSION) BILL Second Reading Debate resumed from an earlier hour. The Hon. Dr BRIAN PEZZUTTI [4.56 p.m.]: Honourable members have just been to see Governor Professor Marie Bashir, who again demonstrated the graciousness that we have come to expect from her towards the people of New South Wales. Her message to the Legislative Council is well received. In relation to this bill, earlier I referred to the failure of the Government to ensure the secondary aim of the injecting room: bringing people into care. The Minister only acknowledged that aim in his speech in reply, but that should be the main aim for many people. I am drawn to the contribution of my colleague the Hon. Kerry Chikarovski in another place, who said that of the 31,675 visits to the injecting room—2,729 different clients—in the 12 months of its operation, on 443 occasions people had been referred to further drug treatments. That is a tiny number. We would expect care and concern for people when they inject, and care and concern for their long-term future. That demonstrates a surprisingly enormous failure of the aims of the injecting room. It is important to recognise that in the Legislative Assembly the Leader of the Opposition said he would not stand in the way of the trial proceeding. He said in his contribution, "but to the extent that it is saving lives I believe the trial should continue". One of the great advantages of being in the Liberal Party is that I can fundamentally differ with my Leader on matters that we have declared to be a conscience matter without fear of being accused of being disloyal to our party or our main thrust as an Opposition. There is no evidence that injecting rooms are saving any lives. The Hon. John Della Bosca: John Ryan thinks there is. The Hon. Dr BRIAN PEZZUTTI: The Hon. John Ryan can think what he likes and he can put that on the record, if he wishes. The Hon. John Della Bosca: But he is right. I don't always agree with him, but he is right about that. The Hon. Dr BRIAN PEZZUTTI: The reality is that of the 31,000 visits, only 443 referrals have been made. The same person could have been referred 443 times. The Hon. John Della Bosca: But that is not likely. The Hon. Dr BRIAN PEZZUTTI: It is just as likely as there being 443 different people because, as the Minister would know, no names are taken. It is simply a record that someone has been counselled. The people who go there do not have numbers. The Hon. John Della Bosca: They are registered by postcode. The Hon. Dr BRIAN PEZZUTTI: They are registered by postcodes and as individuals. They are not named. That is why I find it difficult to believe that they are 2,729 different people. They call them clients, but they are different people. I wish people would stop referring to them as "clients". I wish they would refer to them as "different people". 2738 LEGISLATIVE COUNCIL 6 June 2002

The Hon. John Della Bosca: What would you like them referred to as?

The Hon. Dr BRIAN PEZZUTTI: I refer to people who come to see me as "patients". But I deal with people as very valued customers. There is an important difference between dealing with patients and dealing with—

The Hon. John Della Bosca: Patients are different to customers.

The Hon. Dr BRIAN PEZZUTTI: They are, because if somebody—

The Hon. John Della Bosca: I think you are a better doctor than that.

The Hon. Dr BRIAN PEZZUTTI: No. It is very important that I deal with them as people who are valued and people for whom I take a responsibility. There have been a number of very good trials and good expenditure by the Government on the court diversion program for both young people and older people. I am pleased to say that the Government has taken a different tack on both. That was my experience when I did my studies overseas. I came back and advised the Government that whatever it did—

The Hon. John Della Bosca: We took your advice?

The Hon. Dr BRIAN PEZZUTTI: The Government may have taken my advice or it may have got advice internationally. The worldwide experience—in Washington, DC, Sweden and Canada—is that it is very important to take a different view for adults and young people. As Professor Webster said in evidence last week to the Select Committee on Mental Health, addiction takes time to develop. Equally, it takes time to go away. Anyone who thinks you can suddenly, overnight, stop someone from taking drugs is failing in their understanding of the problem. If it takes a year to become addicted to something, and that is commonly the case—people start off by having a bit of a try but after about a year they become addicted—it takes at least a year to come off it. Without any doubt, the natural history of addiction to heroin is seven years.

The international experience is that if you start taking heroin and become addicted to it, within seven years you will be either cured or dead. Very few people in Australia die as a result of a heroin overdose. However, many heroin addicts die as a result of concomitant illnesses that become part of the drug scene, such as infections, accidents, falls, homicides and suicides. People who are addicted to heroin or other drugs must be treated as people in need of care. They should not be treated as criminals. This is a health problem, not a criminal problem. I have always held that view, and any contributions I have made to these types of debates refer to that. As Kerry Chikarovski said, this is one of the saddest debates this Parliament has had to undertake.

The Hon. Peter Breen: Kerry Chikarovski made a terrible speech.

The Hon. Dr BRIAN PEZZUTTI: That may be the honourable member's view. I think it was a very concerned and caring member who led us through this debate in a very open way. If the honourable member had been in our party room he would know that. She took advice from her colleagues about attitudes and views.

The Hon. John Della Bosca: I think she spoke well.

The Hon. Dr BRIAN PEZZUTTI: She did. She is very concerned because she is a mother of children who are coming into the age group. I am in the very happy situation, as is my colleague the Hon. Patricia Forsythe, that my children have grown up and have come out of the other side without getting involved with drugs. For that I pay a great deal of credit to my wife. Her caring, concern and constant support of the kids have been fantastic. But, as my colleague the Hon. Patricia Forsythe said, that is not the common case in every family.

The Hon. Duncan Gay: It is a lot of luck, too.

The Hon. Dr BRIAN PEZZUTTI: It is a lot of luck, too. My children were confronted, as were the children of the Deputy Leader of the Opposition, in a college at the University of New South Wales with these sorts of problems on a daily basis. I take my hat off to the kids because they were able to resist. But I suspect that it was because they were positive, outgoing kids, as was Anna Gay, whom I know very well. They had everything to do. They were looking forward. They were positive kids. People in this place owe a great deal of gratitude to their wives, who have had to provide that care and concern. Professor Webster has a long history in 6 June 2002 LEGISLATIVE COUNCIL 2739 this area. He is now represented on just about every major organisation that deals with drug and alcohol problems, both nationally and internationally. He is a major adviser to international governments and he was gracious enough to come before the committee last week and give us his views, which are substantial.

Another trial involving those who have drug problems is the Drug Court Diversion Program. I am drawn to a most recent article in the Police News. It is probably a summary of the view of a person in the street—a police officer—of what is going on. The article is highly supportive of the Drug Court Diversion Program, which everyone on this side of the House supported. We had a major debate in our party room about whether the program should be extended to juveniles, but we strongly supported it. We on this side want to get the best value for money and the best value for those kids to ensure they do not become a problem for themselves or the community. We also want to ensure they lead full lives. The Drug Court Diversion Program has been stunningly successful by international and local standards. A small amount of money—$3,000—was provided by NSW Health in the first year of its operation to provide treatment. Another $2 million or $3 million was associated with court appearances and so on.

That small investment by NSW Health has now been extended by the Government to a $25 million program this year for Corrections health. As Reverend the Hon. Fred Nile will willingly accept, it is almost compulsory diversion: you get a choice of going to prison or going into the diversion program. It is one or the other. You face reality and you get a choice. People who choose the Drug Court Diversion Program in many ways choose the more difficult way. A stunning number are compliant with the program. Not only do they have much less dependence on drugs and a lower recidivism rate, but they are so much less likely to commit crime again. More importantly, their general health, sociability and employability improve. The Drug Court Diversion Program, which is outstanding, gives them an opportunity to start a new life. Court diversion programs in New South Wales and a number of other States have been studied and reported on regularly in medical journals throughout Australia. These are rigorous, peer-reviewed reports published in the Australian Medical Journal and other journals. There has been time since the establishment of the injecting room to have that same rigorous reporting on outcomes. Articles on the prison programs have been appearing for at least 12 months, and they have been positive. As a result, the Government is putting more money into those trial programs throughout the State. What a remarkable event! The Government is saying, "Here is something supported by everybody at the Drug Summit. We have tried it, and here are the results. Those results mimic results elsewhere in the world. We will put another $25 million into it." What a shame the drug and alcohol budget in the general health sector was not increased by a large amount. At the moment the system is saying, "If you are desperate to get drug and alcohol treatment, commit crimes and go before the courts and you will be given access to treatment." The $25 million allocation was not extended into the general drug and alcohol budget. That is a shame because it is much better to have preventive medicine than to encourage people to commit crime and expose themselves to the risks associated with committing crimes—not just imprisonment but real harm. Some people cannot get access to this sort of treatment unless they go through the court system. It might be said that the court system is a single, common pathway, a point source for people who need help. Often, a crime is a cry for help. Anyone who looks at the drug court diversion process and the Magistrates Early Referral into Treatment Program could not be but impressed by the results of those processes, which were supported by members from both sides of the House. Those processes are absolutely outstanding. Again, the results were better than those in Washington, which had only an abstinence program. New South Wales uses a variety of programs for court diversion, and we have been stunningly successful at treating people in the community and getting good results, not only for them but for the community. That trial was rigorously investigated by independent observers and found to be good, and the Government is putting more money into it. That same rigour is in the design of the Kings Cross trial—with perhaps a few too many people on the committee—but the trial has been going on now for 18 months, and we should have better results from it than are outlined in the interim report. The investigation on that trial should have been concluded now, so that the Government can decide whether to put more money into it. It could then decide whether this is a valuable program for the individual clients, and whether the centre is achieving the desired results. Many will say that the injecting centre has saved lives. There is no evidence that it has saved lives. That is why I disagree with my leader: there is no evidence that the centre has saved lives—none at all! The Hon. Peter Breen: It speaks for itself. The Hon. Dr BRIAN PEZZUTTI: It does not speak for itself. The interim report does not say anything about that. I am drawn to another contribution to the debate on this trial by a colleague of mine whom I 2740 LEGISLATIVE COUNCIL 6 June 2002 have rarely quoted in this House, namely, the honourable member for Cronulla—not because he has not been worthy of quoting in the past but simply because I have not been drawn to do so. His concern, and mine, is that we are flying in the face of international conventions. I accept that. I accept that is why the Government cannot give out heroin, even though that would make injecting not safe but safer. The Hon. Peter Breen called this a safe injecting room. There is nothing safe about it, because clients can bring all sorts of substances to the centre to inject.

The Hon. Peter Breen: It is safer than injecting in the alleyways at the Cross. That is all I am saying.

The Hon. Dr BRIAN PEZZUTTI: Is it safer than injecting in the alleyways of Cabramatta? The answer is probably no.

The Hon. Peter Breen: The light is better.

The Hon. Dr BRIAN PEZZUTTI: My reference was to the outcomes. I am drawn to a speech by Mr Malcolm Kerr, who again quotes a person I have not quoted in the past.

The Hon. John Della Bosca: Where is he the member for?

The Hon. Dr BRIAN PEZZUTTI: He is the long-term member for Cronulla, and he has survived in Cronulla for a lot longer than the Hon. Michael Egan survived as the member for Cronulla.

The Hon. John Jobling: A resident and good local member.

The Hon. Dr BRIAN PEZZUTTI: A caring and concerned person. He commented that the British tried to make injecting even safer. In 1974 the British ran a program that gave out free, safe heroin. I recall a comment of former Premier Nick Greiner on returning from Britain, where he had seen Maggie Thatcher. He announced as he came off the plane that he was thinking of giving out free heroin. That was, I think, in 1985. I rang Nick Greiner and said, "What are you talking about? The Brits have just given up that program." So, by 1985, when Nick Greiner returned to Australia thinking this was a good idea, the British had already given up that program as a bad joke. They had to give it up because it was not working. There were no good outcomes for any of the people in the program. They were being given their drugs but they were getting sicker. The Hon. John Ryan: We do lots of things with drugs that don't work. The Hon. Dr BRIAN PEZZUTTI: I would hope, if we worked out that things do not work, we would not continue with them. As to the suggestion that honourable members should rush to visit the injecting room and form an opinion for themselves, I rely on medical practice articles from around the world. These are peer- reviewed articles on interventions, their outcomes, success rates and problems. I have relied upon them for many, many years—and successfully! I do not see how anyone, irrespective of whether they are scientifically trained, who visits the injecting room could evaluate whether it is a wonderful program. That is a purely scientific evaluation. The Whip is trying to wind me up. But this is an important issue for the people of New South Wales and I therefore seek a little further indulgence from the House. I support my leader in that I do not support—and I never have supported—the decriminalisation of drugs. I had the unfortunate experience of hearing a person from one of our leading churches suggest to the select committee on mental health that it might recommend giving away free heroin. I do not believe that people have any evidence that that would be in any way successful. Drug use is a problem for all in our society. I am drawn back to the speech delivered by my Whip, who made official visits to many places as a member of a government committee. The Hon. Peter Breen: You said it was a waste of time visiting these places. The Hon. Dr BRIAN PEZZUTTI: He had the opportunity to talk to the people running various programs. That is different from visiting the place itself. He talked to them about what they were trying to achieve and what they did achieve. Reverend the Hon. Fred Nile has spoken to people who ran programs in Sweden. Mr Pedersen, the person responsible for the process in Sweden, came to Australia to talk to us about those programs. I know how he operates and what the results are, because they have been published widely for many years. The Hon. John Jobling has met Mr Pederson, as have many other members. Another issue raised by the Whip is the number of needles and syringes taken away by the 2,700 or so people who visited the injecting centre. An average of 8.25 needles and syringes were taken away. That means 6 June 2002 LEGISLATIVE COUNCIL 2741 that the users attend the centre not for all of their injections but for only a small number of them. This is not a very good trial because it picks up only one in 10 of their injections, that is one in 10 of the occasions on which they inject their drug. It is a major flaw in the program that only that proportion of injections is under study.

The Hon. Peter Breen: That is because they can't be drug affected when they inject.

The Hon. Dr BRIAN PEZZUTTI: I will not respond to that. That comment is not worthy of responding to. In reference to the Cabramatta document the Premier said:

The New South Wales Bureau of Crime and Statistics Research recorded a 63 per cent fall in the number of possessions of narcotics offences since December 2000.

Again this relates to the heroin drought. Other evidence I received from other centres is that the heroin drought has been accompanied by a much more dangerous practice—amphetamine use. If honourable members want to see the most dangerous, most violent and most toxic young people, just find someone with a mental illness, give them amphetamines, and see what happens. The result is explosive! The committee has only had four hearings days so far, but this is the single biggest issue facing public safety and it is part of the crime explosion in our society. It is not related to heroin injecting rooms but to the use of amphetamines by people who have a dual diagnosis of drug dependence.

The number of needles dispensed has dropped dramatically since the heroin drought, but not because they are less available. I am proud of the position we took. Against the opinions of many friends and associates, Peter Collins strongly promoted harm minimisation and the provision of free needles, which is something the Swiss were not prepared to do except in their injecting rooms. Nowhere in Switzerland can you collect a fit outside a hospital, from a vending machine or from anywhere else. Disposable vending places will not be found at Swiss airports, but with bipartisan agreement New South Wales provided them for the protection of its citizens. The Hon. John Jobling's figures are outstanding: in 2000, 195,000 needles were handed out compared with barely 46,000 in 2001. I give credit to the Opposition Whip who, for many years, has followed the progress of this topic and the publications on it.

The argument about whether to continue the trial of the medically supervised injecting room should be finished. At next year's election both parties should indicate whether they will continue with the injecting room. The people of New South Wales should know what will happen for the next four years and the four years after that. The public should know from each party what evidence it has on the trial and what any new government's view is on the issue. This proposal puts off the decision to the never-never. Some bureaucrat will take control of it and then we will not know what will happen under a Liberal or Labor government. When we go to the polls next March we should know whether we are supporting a party coming into government that will provide injecting rooms all over the State or a party that will provide funding for rehabilitation and treatment programs.

There is much international experience about what programs do and do not work. When we took the chance to implement the court diversion program we knew the world's literature said it would work. The Government is prepared to provide $25 million to extend the trial of the medically supervised injecting room in New South Wales because it has worked. What a shame it has not got another $50 million or $70 million to provide detoxification and rehabilitation programs to help those who want to come of drugs. The people who want to come off drugs are turned away or asked to return next week because of a lack of funds. Addicts have an occasional golden opportunity to experience reality and lifestyle changes, but it is no good telling them, "Come back next month." or "Come back next week."

It distresses me that the same Government that supports a program that works does not support other programs that work equally as well. Parliament has many other things to deal with, but this is a most important defining time for us to work out whether to proceed with things that work or go with something along the lines of the Swiss to try to get the people of the street simply so they cannot be seen: just sweep them off the street so they will not interfere with business and are not lying on park benches.

A 16-year-old with a drug problem is turned away from the injecting room, cut off from any chance of being referred to other treatment. That is not good enough. We should be looking after everybody, because people become addicted to drugs when they are 12, 13 or 14 years of age and not just when they are 18, 20 or 28 years. Anybody who supports the continuation of this trial because it puts off the decision until October 2003, which is after the election, is not doing the right thing by the people of New South Wales. The voters have to make a decision in March 2003 as to which party they want in government and what they want done with this issue. I appeal to honourable members to look carefully at the proposed program for the trial of the safe 2742 LEGISLATIVE COUNCIL 6 June 2002 injecting room. The statistics reveal there have been 31,000 service provisions. For heaven's sake, they should have worked out by now whether the trial worked! I appeal to honourable members to examine the current figures so that the Government and the Opposition can decide whether to continue to fund it.

Debate adjourned on motion by the Hon. Peter Primrose.

CIVIL LIABILITY BILL

In Committee

Consideration resumed from an earlier hour.

The Hon. JOHN DELLA BOSCA (Special Minister of State, Minister for Industrial Relations, Assistant Treasurer, Minister Assisting the Premier on Public Sector Management, and Minister Assisting the Premier for the Central Coast) [5.27 p.m.]: The Government does not support this amendment. At the national ministerial meeting on 30 May the Commonwealth Government agreed to use its powers under the Financial Sector (Collection of Data) Act 2001. All licensed insurers in Australia will be required to submit claims data to APRA. Improved data collection is important, but it should be done at the national level. This is what governments of all jurisdictions have already agreed to. The amendment would simply lead to an expensive replication of the work of APRA and unnecessary additional expense for insurers, thus leading to premium increases.

The Hon. JOHN RYAN [5.27 p.m.]: The Opposition's position on this amendment is similar to that of the Government. In some respects this amendment is a replication. Valuable as the information might be, it is available in a far less controversial manner through APRA. The Opposition again adheres to the principle it explained in regard to the previous amendment.

Amendment negatived.

Ms LEE RHIANNON [5.28 p.m.]: I move:

No. 4 Page 3. Insert after line 16:

9 Sunset

This Act and the amendments made by this Act cease to have effect on the day that is 18 months after the date of assent to this Act, unless each House of Parliament passes a resolution before that day that this Act is not to cease to have effect in accordance with this section.

In essence, this amendment provides a sunset clause. It will cause the provisions of the bill to cease to have effect 18 months after the date of assent unless both Houses of Parliament resolve otherwise. We argue most strongly that as there is no confidence that these measures will provide a solution on how insurance plays out in this State, we should not lock ourselves into the provisions of this bill. This amendment does not mean we are rejecting what the bill may offer, but it gives us an out clause if we find it fails.

It will be interesting to see if the Insurance Council of Australia is correct in estimating that the bill will knock 10 per cent to 12 per cent off premiums, in which case the crisis will have continued and effectively we will have gone nowhere. As I said, we have spoken to the council and that was the best figure it could come up with. Surely all honourable members would agree that there will not be much change in the cost of premiums. The Greens argue that, if that happens, the bill should be deemed to have failed and New South Wales should then engage in genuine reform of the insurance industry, which is where the problems really lie, and restore the rights of the injured that have been taken away by this bill.

If this bill does not fail to resolve the premium crisis, the amendment will nevertheless allow for the operation of the provisions of the bill to be extended by a motion of both Houses of Parliament. The amendment represents a simple measure. If the major parties do not agree to the amendment, one would have to wonder why they are so desperate to push this bill through. I suggest that the reason is the power of the insurance industry. This amendment is effectively a test of faith for the Government and the Opposition in this legislation. If they are confident, why would they not support this amendment?

The Hon. IAN MACDONALD (Parliamentary Secretary) [5.30 p.m.]: The Government opposes this amendment. Liability insurance is a long-tail business. It takes considerable time for many personal injury 6 June 2002 LEGISLATIVE COUNCIL 2743

damages claims to be settled or to reach the courts, and premiums are set on that basis. The full impact of the bill will not be realised in only 18 months time, and may not be realised at all if a sunset provision applies. The purpose of the bill is to deliver certainty to the community, the courts, the legal profession and the insurance industry about the rules applying to personal injury damages claims.

Actuaries have advised the Government of their best estimate that premiums will fall by 12 per cent as the effects of the changes flow through the system. Any threat that the rules will change again in such a short period will undermine the positive impact of the bill. Insurers will not be able to set premiums with any confidence about potential future liabilities. The amendment will make the situation worse, not better. It will harm community groups and small businesses that are most vulnerable to the increased cost of premiums.

The Hon. JOHN RYAN [5.31 p.m.]: The Opposition does not support the amendment. I endorse the point made by the Government: the setting of premiums is a long-term issue. If it is not certain that these provisions will operate in the long term, it is possible that insurers will charge a different premium. They are less likely to charge a lower premium. One of the only virtues of this legislation is that the Parliament is trying to work towards lower premiums. For those reasons, the Opposition does not support this amendment.

Amendment negatived.

Reverend the Hon. FRED NILE [5.32 p.m.]: I move my amendment No. 1:

No. 1 Page 3. Insert after line 16:

9 Reports and investigations by IPART

(1) The Minister is to refer the following matters to the Tribunal under the IPART Act for investigation and report under section 12A of that Act:

(a) the operation of this Act,

(b) the determination of the pricing for premiums for personal injury policies,

(c) a periodic review of pricing policies in respect of premiums for personal injury policies.

(2) The Tribunal is to make a determination from time to time of the pricing for premiums for personal injury policies.

(3) The provisions of Divisions 5-7 of Part 3 of the IPART Act apply to and in respect of such a determination as if:

(a) the service of providing insurance under a personal injury policy were a government monopoly service within the meaning of that Act, and

(b) references in those provisions to a government agency were a reference to a corporation that issues personal injury policies, and

(c) such other modifications as may be prescribed by the regulations were made to those provisions.

(4) In this section:

IPART Act means the Independent Pricing and Regulatory Tribunal Act 1992. personal injury policy means a policy of insurance in respect of liability for personal injury damages. Tribunal means the Tribunal under the Independent Pricing and Regulatory Tribunal Act 1992.

I foreshadowed this amendment during my speech at the second reading stage. The concern addressed by this amendment has been expressed by other honourable members, namely, whether this bill provides insurance companies with large profits. I query the statements made about $150 million windfall profits. The overall tenor of the debate has been that insurance companies will potentially make a lot of money as a result of this legislation. I agree in principle with the legislation, but I believe that it should provide safeguards. I discussed with Parliamentary Counsel whether the amendment should take the legislation down the Australian Competition and Consumer Commission [ACCC] path, or come under the control of the Independent Pricing and Regulatory Tribunal [IPART]. The point was made that, because the ACCC is a Federal body, it cannot be directed to perform regulatory functions at State level.

It was also pointed out that IPART performs a function similar to that of the ACCC but at State level. IPART seems to be the appropriate body because the amendment spells out that under section 12A of the 2744 LEGISLATIVE COUNCIL 6 June 2002

Independent Pricing and Regulatory Tribunal Act, IPART is to investigate and report on the operation of this legislation when it is enacted, determine pricing for premiums for personal injury policies, and undertake a periodic review of pricing policies in respect of premiums for personal injury policies. The amendment creates a very open process. It is possible that IPART could carry out those functions by referral, but my purpose in formulating this amendment is to assist the passage of this legislation through the Parliament. The bill is more likely to pass the second reading stage if honourable members are assured that protections outlined in the amendment are being proposed.

I note that the Government has been involved in discussions with the Commonwealth Government and with the other States at ministerial council meetings where it has been suggested that control can be exercised at Federal level by the ACCC. This amendment will not prevent the ACCC from monitoring the cost of premiums. The ACCC is involved in some big legal cases over petrol pricing and has investigated petrol companies, and that begs the question of how much priority the ACCC would give to this legislation, when enacted, without its specific functions being outlined in the amendment.

The amendment will ensure that IPART will exercise a regulatory function and it guarantees IPART's supervision. If the amendment is accepted, insurance companies are more likely to adhere literally to restrictions associated with increases in the costs of premiums if IPART is looking over their shoulder. Although insurance companies may not do anything wrong, even without supervision by IPART, the amendment may provide relief for concerns that have been expressed during the second reading stage and throughout the wider community. For those reasons, I commend the amendment to the Committee.

The Hon. IAN MACDONALD (Parliamentary Secretary) [5.36 p.m.]: The Government opposes the amendment because it could encourage insurers who are offering public liability insurance to get out of the market altogether. The current crisis in insurance is not just a crisis of affordability, it is a crisis of availability, which seems to be a difficult point for the Hon. Dr Arthur Chesterfield-Evans to grasp. People and organisations simply cannot obtain public liability insurance at any price. The amendment does not recognise the supply issue. IPART obviously cannot force insurance companies to offer a public liability insurance product in New South Wales.

The Commonwealth Government regulates insurance industry prudential matters. It would be unworkable for a State body to regulate insurance prices and the Commonwealth Government to regulate prudential matters. As previously mentioned, at the national ministerial meeting on 30 May this year, the Commonwealth Government agreed that the ACCC will monitor insurance premiums to ensure that the insurance industry is adjusting premiums to take account of cost savings produced by tort law reforms.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [5.37 p.m.]: I support the amendment. What happens in this Chamber is extremely depressing because we have evidence-free legislation. Honourable members never have any facts or figures on which to base the decisions we make. If IPART is able to monitor premium pricing structures, which it does for many other industries, that would be reasonable. I am always amazed when the insurance industry cries poor that it is not regulated to the extent that it needs to be. If honourable members think the Australian Prudential Regulation Authority [APRA] has done a great job, they need to think about HIH Insurance.

The Federal Minister for Small Business and Tourism, Joe Hockey, has had the gall to talk about the job that APRA is doing. I am amazed that this Government is quite prepared to leave everything to APRA. It seems to me that in this debate there are very few facts on which to base a determination. If IPART has done a good job on electricity pricing, why should it not monitor the pricing of an insurance product? Recent crises have demonstrated that once a government insurance office is taken out of the market, there is no point of reference to indicate a price that the rest of the players in the market can either match or use as a reason to go out of business.

Either the Government has to have a player in the market as a reference point for deciding insurance matters—regardless of what the rest of the world is thinking after the events of September 11 or whether the gnomes in Zurich are frightened by reinsurance—or the Government has to have some idea of pricing structures, instead of resorting to the mantra "The market will fix it." Clearly, the market is not fixing these problems. The market gets frightened because of factors beyond anyone's control, and September 11 is a good example of that. If the Government does not have hard data on which to make a decision, it will be dependent on a frightened market—and this bill represents a frightened response. The amendment will provide an opportunity to obtain data to ascertain what is going on. Therefore, agreement to the amendment is a step in the right direction. 6 June 2002 LEGISLATIVE COUNCIL 2745

Reverend the Hon. FRED NILE [5.39 p.m.]: The Government's position is flawed. It cannot rely on the Australian Competition and Consumer Commission [ACCC] at the Commonwealth level, because this is State legislation. We have no idea what legislation Queensland, Victoria or Western Australia will pass. It may not be uniform legislation. However, the Independent Pricing and Regulatory Tribunal [IPART] will consider the application of this bill to premium levels and various savings. The views of the Australian Plaintiff Lawyers Association and the Law Society of New South Wales are quite draconian because other States may not adopt similar legislation. Premiums may be higher in Victoria than they are in New South Wales.

The Hon. Ian Macdonald: The ACCC can analyse that.

Reverend the Hon. FRED NILE: It has to take into account all State bills and the application of them.

The Hon. Ian Macdonald: It does so with all legislation.

Reverend the Hon. FRED NILE: We could be courting danger in that IPART looks at New South Wales legislation when making decisions. I do not want to frighten insurance companies out of the market but it does raise the question, if companies are frightened by such minor monitoring, what do they have to hide? It could be just a bluff or an overreaction.

Amendment negatived.

Clause 8 agreed to.

The Hon. IAN COHEN [5.42 p.m.], by leave: I move Greens amendments Nos 6 and 7 in globo:

No. 6 Page 4, clause 9 (2). Insert after line 11:

(b) an award where the fault concerned is the physical abuse of a person who is under 18 years of age,

No. 7 Page 4, clause 9 (2). Insert after line 11:

(b) an award where the injury or death concerned resulted from the smoking or other consumption of tobacco products and the award is against a seller or manufacturer of tobacco products,

These amendments relate to exemptions for physical abuse of a minor and matters relating to tobacco. Clause 9 (2) specifies a number of awards for damages that are excluded from the operation of the Act. They include awards for damages under the Motor Accidents Act, the Workers Compensation Act and the Dust Diseases Tribunal Act because these Acts set up their own systems of damages for injuries occurring at work, in a car or as a result of dust diseases such as asbestosis. However, there are also other exemptions included in the bill, for instance, where the negligence involves sexual assault or sexual misconduct. The Greens believe there should be additional exemptions where there has been physical abuse of a minor or where the injury or death concerned resulted from smoking or other consumption of tobacco products and the award is against a seller or manufacturer of tobacco products. Child abuse is a terrible crime in our community. It is important to send a strong message to those who owe a duty of care to children that physical abuse of a minor will not be tolerated under any circumstances. It is important that the maximum amount of damages be available to those who can prove that the person or persons owing the duty of care have breached that duty by allowing the child to be physically abused. Deterrence is most important in this area and the threat of large payouts will help to deter those who owe this duty so that they are less inclined to allow child abuse to happen. The exemption in relation to tobacco is also important. Over the past few years landmark smoking cases have resulted in better industry regulation and practice and health benefits for consumers. The Greens hope that many more important smoking cases will succeed in court so that tobacco companies are forced to behave more responsibly. This should lead to a decrease in smokers, not just in Australia but globally. The Greens believe that this legislation should have no impact whatsoever on smoking cases. The more cases that come forward and the more damages that are awarded to both smokers and passive smokers, the more likely it is that regulation will tighten around the industry and that the industry will be forced to change its practices and procedures. It is essential that smoking cases are not halted in their tracks because of this legislation. I commend the amendments to the Committee. The Hon. Dr ARTHUR CHESTERFIELD-EVANS [5.44 p.m.]: These amendments are very important. The Government has not thought this legislation through properly and is pushing it through the 2746 LEGISLATIVE COUNCIL 6 June 2002

Parliament in a panic. The idea that insurance companies should simply be let off in cases as serious as physical abuse of children and tobacco-caused death is pretty gross. Why should tobacco companies, which have done outrageous things to people, get a free ride because the Government is frightened about civil liability in parks and amusement centres as a consequence of reinsurance problems arising from the terrorist attacks of September 11? It is an outrageous, broad brush, panic response that will benefit people who deserve to be hit with tort lawsuits.

The tobacco industry has been the most callous industry in the history of the world. Evidence against the tobacco industry was strong from the day of the publication in the British Medical Journal in November 1950 of the aetiology of carcinoma of the lung. Almost 52 years later we still cannot get smoke-free air in our pubs because this Parliament is too cowardly to do something about it legislatively. Therefore, people continue to die. We spend a fortune on our intensive care units and foolishly gauge the temperature of our hospitals, as it were, by the number of intensive care beds.

I have worked in intensive care units and I know that many of the conditions that are treated in such units are caused by tobacco. Why are we paying for intensive care beds when we do not pay for Quit programs to prevent people from smoking before they become ill? We should take a stronger line with our children and set an example in pubs. We have an opportunity to take some small action against the tobacco industry, yet we allow a bill such as this to pass because we are concerned about insurance premiums. That is how trivially Parliament regards the problem. I am extremely disappointed that the Government will not support these perfectly reasonable amendments. I intend to move a similar amendment, which I hope the Government will support. It did not agree to my moving my amendment simultaneously with these amendments so it may be that my amendment will be supported by the Government and the Opposition.

Why should there be no exemptions and why should major public health issues simply be subsumed in a quick-fix, short-term cash flow solution for insurance companies, because of problems that have arisen from the collapse of HIH—an insurer that was a little financially irresponsible and a little unsupervised by APRA— and a terrorist attack in the United States of America? These are not good reasons for undermining a tort system. History shows a paucity of government action against the tobacco industry, and until a number of Davids were able to slay Goliaths occasionally with tort law, the tobacco industry did exactly as it liked. The industry is controlled by tort cases only because the Government has been so slow to act. The most researched subject in the history of medicine has had no effect on this Parliament; there has been no real strong legislative line taken against the tobacco industry. The only thing that has succeeded is tort law, yet here we are undermining tort law just as a by-product of lowering insurance premiums. We are attempting to fix something trivial by destroying something of major significance. It is a poor day for this Parliament. The fact that these amendments are not supported demonstrates a lack of leadership by both the Government and the Opposition.

The Hon. IAN MACDONALD (Parliamentary Secretary) [4.48 p.m.]: The Government opposes Greens amendment No. 6. The physical abuse of children is already exempt from the present injuries damages provisions of the bill because the bill excludes most intentional torts from the scheme. Clause 9 provides that the new limits on damages do not apply to an award where the fault concerned is an intentional tort that is done with intent to cause injury or death or that is sexual assault or other sexual misconduct.

That will cover assaults causing injury to children. The Government opposes Greens amendment No. 7 The bill does not seek to single out particular common law injuries or causes of action and treat them differently. That would defeat the purpose of delivering certainty. The only actions that have been singled out are those that relate to specific statutory schemes which are already subject to complex and specific rules. This amendment would generate unnecessary costs, most of all for plaintiffs. Smoking is known to cause many diseases but those diseases occur also in non-smokers. The amendment will engender avid legal debate about the causes of illness instead of focusing on compensating people who have been injured. The bill, if amended in the manner proposed, could give insurers an avenue for opposing any attempts to obtain compensation for smoking- related illnesses. The Hon. JOHN RYAN [5.51 p.m.]: Opposition members do not support these amendments. Our reason for not supporting them is that, like some aspects of the bill, they will create different categories of claimants. Opposition members believe that to be fair we must adhere to a policy in which all categories of claimants are the same. That is the main reason why the Opposition cannot support these amendments. Amendments negatived. Clause 9 agreed to. 6 June 2002 LEGISLATIVE COUNCIL 2747

Reverend the Hon. FRED NILE [5.51 p.m.]: I move Christian Democratic Party amendment No. 2:

No. 2 Page 5. Insert after line 10:

11 Standard of proof for damages claims

In proceedings on a claim for personal injury damages, the court is not to find the case of the claimant proved unless the court is satisfied that it has been proved beyond reasonable doubt. There has been some confusion in the minds of judges. That has been picked up by the Premier who, in his second reading speech on this legislation, used the phrase "Santa Claus awards", which reflects that, in some cases, the awards are quite exorbitant. Judges have said that they are only following, and they are bound by, the law. The law is vague in this area. It is difficult for claimants seeking compensation for whatever reason to prove that there has been negligence. I understand from people in the legal system that this wording would help to strengthen the position of judges. If this amendment is implemented a judge would be able to say, "I am not satisfied beyond a reasonable doubt that an accident occurred because of the neglect of the owner of a shopping centre or a recreational area." Judges would be able to say in relation to other cases, "It is quite obvious that this accident was caused through the actions of the claimant. The claimant was irresponsible and indulged in risky behaviour, et cetera." I believe that the inclusion in the legislation of the words "beyond reasonable doubt" would be of assistance to the Government. I might be jumping the gun a little because I know that it is the intention of the Government to introduce stage two of this legislation, when some of these issues might be taken up. I might be getting ahead of the Government's reform package, but it seemed to me to be a logical thing to consider. The Hon. JOHN RYAN [5.53 p.m.]: I realise that Reverend the Hon. Fred Nile is seeking to be helpful by moving this amendment. I do not want to be critical of him, but he is seeking to transfer the criminal standard of proof to the civil jurisdiction. The criminal standard of proof is used to determine the guilt of a person. Persons who are guilty face the possibility of being sent to gaol. Honourable members might remember the maxim: It is better that 100 guilty people go free rather than one innocent person be sent to gaol. Because of the horrific consequences of sending an innocent person to gaol, the criminal justice system is geared specifically to ensure that not everybody who should go to gaol will go to gaol. That simply would not be fair. While the maxim seems fair in relation to criminal matters, it would not make sense to use it in the civil jurisdiction. It would not be fair if only one victim was compensated and another 100 victims were not. That would be too fine a screen to apply to civil matters. For that reason the civil courts sensibly work on a balance of probabilities. Most people go to court on the basis that, if they can reasonably prove their case, they ought to be compensated. For that reason the Opposition will not support the amendment moved by Reverend the Hon. Fred Nile. Ms LEE RHIANNON [5.55 p.m.]: The Greens strongly oppose this amendment, which we regard as quite a grubby little move. Reverend the Hon. Fred Nile: I ask Ms Lee Rhiannon to withdraw the word "grubby". The amendment is simply an attempt to assist the passage of this legislation. I object to the use of the word "grubby". It was my idea and I am not a lawyer. Ms LEE RHIANNON: If Reverend the Hon. Fred Nile objects to my use of that word, I am happy to withdraw it. The Greens have strong concerns about this amendment. If the amendment is agreed to it will deliver for the insurance industry in considerable measure. The law is vague, but it is vague to allow the discretion that judges need to exercise at times. Clearly, this is an example of where that discretion is needed. If the honourable member's amendment is agreed to, effectively it would bring all civil liability to an end. That is just not the direction in which we should be heading. The Greens, who have enormous concerns about this amendment, will certainly vote against it. The Hon. IAN MACDONALD (Parliamentary Secretary) [5.56 p.m.]: The Government opposes the amendment. The amendment misconceives the nature of civil proceedings, as I think the Hon. John Ryan pointed out earlier. Civil proceedings are private disputes about injuries to individuals. Criminal matters involve conduct that is so serious it offends against the State. The requirement for the State to provide guilt beyond reasonable doubt is the golden thread that runs through the criminal law. Proof beyond reasonable doubt is the highest standard of proof in the justice system. It is always reserved for cases where there is a risk to the liberty of a person or where the State can impose penalties. The Premier has also announced that the Government will introduce reforms to the law of negligence in the next parliamentary session, which Reverend the Hon. Fred Nile alluded to earlier when he talked about stage two. 2748 LEGISLATIVE COUNCIL 6 June 2002

The Hon. Dr ARTHUR CHESTERFIELD-EVANS: [5.57 p.m.]: I oppose the amendment moved by Reverend the Hon. Fred Nile. I am always bothered about the imprecision of the standards of proof in the legal system. Physicists have a high standard of proof. In some of the medical and biological disciplines the standard of proof usually has a value of 0.05, or a one in 20 chance of something occurring by chance. In other words, there are 19 chances in 20 that something might be true and one chance in 20 that it might by chance not. In statistical terms there is no doubt about the meaning of the term "beyond reasonable doubt". The probabilities cannot be that closely calculated.

The term "balance of probabilities" simply means that it is more likely than not that something will occur, which is the general standard of proof. I think all honourable members understand what that means. Although the term "beyond reasonable doubt" is undefined in statistical or mathematical terms, it means that there is a very small chance of someone not being found guilty by the judge or jury. I cite as an example a case involving my mother. She slipped on a marble floor at the bottom of an escalator in a shopping centre and broke her arm. The lady in a shop that was located nearby approached my mother and said, "Are you going to sue?" My mother said, "No." The lady said, "I will support you if you do. I have been working here six weeks and you are the third person to slip on that floor. Every time it rains someone breaks their arm." It could not be proved beyond a reasonable doubt that the shopping centre was negligent for not putting down some non-slip matting. On the balance of probabilities it would have been a lay-down misère. If the legal process is to offer any sort of redress, we cannot go to a beyond reasonable doubt standard of proof. I think this amendment is unreasonable. Reverend the Hon. FRED NILE [6.59 p.m.]: I did not use the term "balance of probabilities" but other honourable members made my point when defending it. It is easy to get awards—it happens 99 times out of 100—on the balance of probabilities, which is what the court has said. That is why insurance premiums have been blown out of the water. Amendment negatived. Clause 10 agreed to. Clause 11 agreed to. Ms LEE RHIANNON [6.00 p.m.], by leave: I move Greens amendments Nos 8 and 9 in globo:

No. 8 Page 5, clause 12. Insert after line 27:

(3) This section does not apply to an award of damages in respect of an injury to a person who was under the age of 18 years at the time of the injury.

No. 9 Pages 7 and 8, clause 15, line 24 on page 7 to line 16 on page 8. Omit all words on those lines. Insert instead:

(4) The amount of damages that may be awarded for gratuitous attendant care services must not exceed an amount calculated at an hourly rate of one-fortieth of the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for:

(a) in respect of the whole or any part of a quarter occurring between the date of the injury in relation to which the award is made and the date of the award, being a quarter for which such an amount has been estimated by the Australian Statistician and is, at the date of the award, available to the court making the award—that quarter, or

(b) in respect of the whole or any part of any other quarter—the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and is, at that date, available to the court making the award.

(5) If the Australian Statistician fails or ceases to estimate the amount referred to in subsection (4), the amount of damages that may be awarded for gratuitous attendant care services must not exceed an amount calculated at an hourly rate prescribed by the regulations or determined in such manner or by reference to such matters, or both, as may be prescribed by the regulations. Amendment No. 8 will allow minors to be awarded damages for economic loss at a rate set at the discretion of the court. While the bill currently seeks to restrict these damages to three times average weekly earnings, the Greens believe in some cases the circumstances of the individual young person suggest that a greater rate would be appropriate—having regard to, for example, the promise and potential that young person showed at school before the injury. It seems to us to be entirely unfair to place such a restriction on a young person who has had no opportunity to participate in the adult world or to earn wages. This bill seeks to restrict damages for gratuitous attendant care services to 40 hours a week. This is a significant advance on the consultation draft of the bill, which sought to abolish gratuitous attendant care. That 6 June 2002 LEGISLATIVE COUNCIL 2749

was a little hard to believe and I am pleased the Government came to its senses on that issue. However, I argue strongly that the bill is still unfair to those injured people who require care for more than 40 hours a week and for whom that care is provided by a family member. I am sure that honourable members can think of cases involving injured persons who require many hours of care—certainly more than 40 hours a week. I ask honourable members to consider the case of a mother caring for a child who, due to the negligent action of another party, suffers tetraplegia. That poor child cannot feed itself and requires ongoing care in the form of breathing assistance. Such care extends well beyond the standard 40 hours a week for which damages are allowed under this bill. The tragedy that befell that family is unimaginable but it happens: people are living under those circumstances right now. That difficult situation does not need to be compounded by legislation that states that the damages payment for care of that child will stop after 40 hours every week. This amendment removes the 40 hours per week limitation so that a fairer rate of damages can be set in the case of gratuitous attendant care. We appeal to members of the major parties to show some compassion and support our amendments. The Hon. IAN MACDONALD (Parliamentary Secretary) [6.03 p.m.]: The Government opposes Greens amendments Nos 8 and 9. As to amendment No. 8, there is no need to exempt injuries to children from the operation of the bill's limits on damages for loss of earnings. The bill will not disproportionately affect the calculation of a child's likely future loss of earnings. As in the case of adults, the rights of children to recover damages for medical expenses will not be affected by the bill. It is also worth noting that the courts already apply a higher standard of care to cases where children are injured because of their vulnerable status, and this is taken into account when damages are rewarded. The bill does not affect this standard of care. The amendment would simply have the effect of creating anomalies. For example, a 17-year-old would be in a far better position that an 18-year-old even though there may be no appreciable differences in their position, injury or maturity. The Government also opposes Greens amendment No. 9, which would have the effect of removing the upper limit on this type of damages, which the bill sets at average weekly earnings. It is important to remember that these types of damages are not compensation for financial loss. The care in question is provided free. The limits in the bill are largely consistent with the restrictions that already apply to motor accident cases. There is no reason to allow damages for free care by relatives in public liability and other personal injury cases to be recovered for an unlimited number of hours. The bill strikes the appropriate balance between recognising the significant contribution of family carers and the need to ensure that claims for these types of damages are not exaggerated. Amendments negatived. Clauses 12 to 15 agreed to. The Hon. Dr ARTHUR CHESTERFIELD-EVANS [6.05 p.m.]: I move Australian Democrat amendment No. 1:

No. 1 Pages 8-10, proposed Division 3 of Part 2, line 21 on page 8 to line 34 on page 10. Omit all words on those lines. This amendment removes the cap on the maximum award for damages for non-economic loss. The limit of $350,000 will disadvantage those who are most severely injured and are incapable of looking after themselves. The burden of caring for these people, both financially and in kind, would ultimately fall on relatives and friends or on the health and welfare sectors. The schedule that the amendment seeks to delete ensures that people will not receive payment until they are extremely badly injured, and even then the payment is capped. This cap is graded so that the lower awards get even less as a percentage. This provision affects both the people at the top end through the cap and those on the way up through the grading. This makes awarding damages for non- economic loss very difficult. If we do not want this bill to be totally callous, I suggest that we omit the table. I commend the amendment to the Committee. The Hon. IAN MACDONALD (Parliamentary Secretary) [6.07 p.m.]: What a revolutionary! The Government opposes Australian Democrat amendment No. 1. The Government's actuarial advice shows that the proposed threshold for non-economic loss and the proposed upper limit of $350,000 will have the greatest impact on public liability premiums. The proposed amendment would jeopardise the effectiveness of the entire bill. Both the threshold and the upper limits are fair and reasonable. Thresholds already apply in the statutory schemes, and the upper limit of $350,000 reflects the amount awarded in cases involving catastrophic injury.

The Hon. JOHN RYAN [6.08 p.m.]: The Opposition cannot support this amendment. As the Hon. Ian Macdonald explained, it would effectively negate the entire bill. Nice try, but I do not think that is a good idea. The upper level set by the cap is already in place: there are few awards for damages above that level. We must 2750 LEGISLATIVE COUNCIL 6 June 2002 remember that this is a cap on only one category of insurance: pain and suffering. The cap is roughly at the level it is now, except in the most dreadful cases where many of the lost damages may be recovered in general damages. As the Hon. Dr Arthur Chesterfield-Evans said, it is true that the measure will have a much greater impact at the lower end of the scale. However, as I said in my speech during the second reading debate, we are dealing with a resource that must be rationed, and it is fair that those who are least needy miss out and those who are most in need obtain what they need. Therefore, the Opposition cannot disagree with the overall thrust of this part of the bill and cannot support an amendment that essentially throws away the entire bill.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [6.09 p.m.]: I make no apology for my amendment.

The Hon. DUNCAN GAY (Deputy Leader of the Opposition) [6.09 p.m.]: The cap has been a long time coming. As I said during the second reading debate, I recall that when the Hon. Jeff Shaw was shadow Minister for Local Government before the 1995 election he promised the introduction of a cap on public liability insurance. It was certainly a policy that the Coalition took to the last election, as did the Labor Party. It would be totally against what the Coalition stands for if we were to vote against this legislation. I believe that the Government has got the formula pretty right. The Coalition supports the legislation as it stands.

Amendment negatived.

The Hon. IAN COHEN [6.10 p.m.]: I move Greens amendment No. 10:

No. 10 Page 10, clause 16. Insert after line 15:

(5) Despite the provisions of this section, a court may award to a claimant an amount of damages greater than the amount that the court could otherwise award under this section if the court is satisfied that the claimant's individual circumstances justify the award or the award is justified in the public interest.

The amendment relates to a discretion in setting damages for non-economic loss. It would allow the court to award an amount for non-economic loss that is greater than the amount specified in the bill or, where the severity of the injury is less than 15 per cent of the most extreme case where either the claimant's circumstances justify a greater amount or it is in the public interest. Given the diversity of injuries and circumstances of claimants, the Greens reject the idea that non-economic loss can be specified by a strict formula. There may be cases, particularly when it comes to young people, where it is appropriate that claimants should not have to pass the 15 per cent threshold due to their individual circumstances and injuries, or the public interest warrants it. In these cases it should be up to the judge to decide whether individuals should be awarded more than $350,000 for non-economic loss. I commend the amendment to the House.

The Hon. IAN MACDONALD (Parliamentary Secretary) [6.12 p.m.]: The Government opposes this good try by the current leader of the Greens, the Hon. Ian Cohen. The Government's actuarial advice shows that the proposed threshold for non-economic loss and the proposed upper limit of $350,000 will have the greatest impact on public liability premiums. The amendment would remove every ounce of certainty for insurers and would jeopardise the effectiveness of the entire bill. In any event, both the threshold and the upper limit are fair and reasonable. Thresholds already apply in the statutory schemes, and the upper limit of $350,000 reflects the maximum amounts generally awarded in catastrophic injury cases.

The Hon. JOHN RYAN [6.12 p.m.]: The Opposition cannot support the amendment. Just as there is more than one way to skin a cat, this is another way of completely negating the bill. For that reason the Opposition cannot support the amendment. It puts us back to square one: where the courts make the decision according to their discretion.

Amendment negatived.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [6.13 p.m.]: I move Australian Democrats amendment No. 2

No. 2 Page 10. Insert after line 34:

18 Review of insurance premiums

(1) The Auditor-General is to conduct an inquiry to determine the effect of the first 12 months of operation of this Act on levels of premiums for policies of insurance in respect of liability for personal injury damages. 6 June 2002 LEGISLATIVE COUNCIL 2751

(2) For the purpose of facilitating that inquiry, the Minister is to establish by order published in the Gazette procedures for the reporting by insurers to the Auditor-General of specified information in respect of claims for personal injury damages. An insurer must comply with the requirements of those procedures.

Maximum penalty: 100 penalty units.

(3) Within 18 months after the date of assent to this Act the Auditor-General is to report to the Minister on the findings of the inquiry and is certify to the Minister whether or not, following the first 12 months of operation of this Act, there has been a reduction of at least 10% in comparative levels of premiums for policies of insurance in respect of liability for personal injury damages.

(4) If the Auditor-General does not certify within 18 months after the date of assent to this Act that there has been a reduction of at least 10% in comparative levels of premiums for policies of insurance in respect of liability for personal injury damages, sections 16 and 17 do not apply to an award of damages made more than 18 months after the date of assent.

(5) The Minister is to cause a report provided to the Minister under this section to be tabled in both Houses of Parliament as soon as practicable after it is provided to the Minister.

(6) Proceedings for an offence under this section may be dealt with summarily before a Local Court constituted by a Magistrate sitting alone.

This amendment puts in place a review of the comparative level of insurance premiums, with the proviso that if premiums have not fallen by at least 10 per cent after 12 months the cap on damages for non-economic loss will not apply. The amendment also makes it mandatory for insurance companies to provide figures to the Auditor- General annually.

Basically, this legislation is all promise. As it indicated in its response to the Hon. Ian Cohen earlier in this debate, the Government is going almost cap in hand. It does not have any idea what the premium levels are. It just hopes that industry will not withdraw from the market because the gnomes of Zurich are concerned about September 11. The Government hopes that if it cuts all the benefits and fixes all the problems, industry will deign to make profits from it. If this does not work, the rights will be taken away, the profits will be fixed at whatever level insurance companies want, and we will have no knowledge of what went on; we will just pay a premium and get less coverage.

Having been panicked into the situation, the Government does not have a feedback loop. This amendment provides a feedback loop. If premiums do not come down despite benefits being cut, the amendment at least provides some redress so we can go back to where we were—as opposed to the situation with third party premiums where we simply cut the benefits, the premiums were soon back where they were and we were worse off.

If we are to legislate for a single industry to get a very good deal, a monitoring program must be put in place. Reverend the Hon. Fred Nile sought to do that by way of his amendment in relation to the Independent Pricing and Regulatory Tribunal legislation, and Ms Lee Rhiannon sought to do it by way of her amendment in relation to the Auditor-General. The amendment simply asks for a performance standard as a quid pro quo for the legislation, which would help to ensure profits for the industry. I believe it is a very reasonable amendment because it monitors the legislation to ensure it achieves a result. I think the Government is reluctant to admit that it might have to adopt a performance standard and get a result, instead of simply doing something in hope because it has been lobbied. We hope the Government will support the amendment, which provides a feedback loop to the Government's rather hopeful legislation.

The Hon. JOHN RYAN [6.16 p.m.]: The Opposition cannot support the amendment. I noticed that the Hon. Dr Arthur Chesterfield-Evans gave his explanation to the House almost with a wry smile across his face for the entire speech. If the Auditor-General wishes to be in a position where he can negate the laws of New South Wales, he can do what the rest of us needed to do—that is, have himself elected to this place.

The amendment would allow the Auditor-General to completely negate a decision of the New South Wales Parliament—according to a particular regime; nevertheless, it would be the Auditor-General's opinion. Whilst a performance agreement has some appeal—and I partly accept that there is some appeal in that— nevertheless I am a democrat, if not with a capital "D" then certainly with a little "d". Under no circumstances would I, or for that matter my party, ever be in the position of allowing any functionary of the Government, no matter how esteemed, to alter the laws of this State by giving an opinion in the regime suggested in the minute. The Opposition cannot—and passionately cannot—support the amendment. 2752 LEGISLATIVE COUNCIL 6 June 2002

The Hon. IAN MACDONALD (Parliamentary Secretary) [6.17 p.m.]: The Leader of the Opposition in the other place does not often come to this Chamber, but he seems to be ensconced behind the arras and is probably talking to the Opposition Whip about removing the retrospectivity provisions later on. The Leader of the Opposition is probably having a very decent conversation with the Opposition Whip. He should show himself, so that we can see young Brogo in this Chamber.

The Hon. Duncan Gay: You're very excitable, aren't you?

The Hon. IAN MACDONALD: Yes. The Deputy Leader of the Opposition says I am excitable. Let us face it, he is the most excitable person in this Chamber. The Government opposes the amendment. At the national ministerial meeting on 30 May the Commonwealth Government agreed that the Australian Competition and Consumer Commission [ACCC] will monitor premiums to ensure that the insurance industry is adjusting premiums to take account of cost savings produced by tort law reforms.

This amendment would simply lead to an expensive replication of the work of the ACCC and unnecessary additional expenses for insurers, leading to increased premiums. In any event, as I have said before, the New South Wales Auditor-General does not have the power or the relevant expertise to make the inquiries envisaged by the amendment. Many insurers providing insurance to New South Wales residents operate offshore, and they would therefore not be covered by the amendment. Monitoring premiums is properly a matter for the Commonwealth Government. The proposed sunsetting of clauses 16 and 17 of the bill are also opposed, for the reasons outlined in previous amendments. The reforms relating to non-economic loss are essential if the predicted cost savings are to be generated.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [6.20 p.m.]: I would like to reply to a couple of points made by previous speakers. The Hon. John Ryan is correct. It is true that I had a wry smile, having seen the fate of the amendment about the Independent Pricing and Regulatory Tribunal and the amendment from the Greens about the Auditor-General. I must confess I looked at my chances for this amendment and was not encouraged. The facts speak for themselves. Indeed, the idea that the Auditor-General is overthrowing this Parliament is nonsense. The Auditor-General can point out whether or not premiums have fallen 10 per cent, but he is offering a performance measurement tool rather than telling this Parliament what to do. I am disappointed that the Hon. John Ryan, who admits to being a democrat, is not able to become a Democrat. That should not be difficult for him. After all, he became a liberal when he is really a Liberal.

Amendment negatived.

Clauses 16 and 17 agreed to.

Ms LEE RHIANNON [6.21 p.m.]: I move Greens amendment 11:

No. 11 Page 11, clause 18, line 5. Insert "This subsection does not apply to interest on damages awarded in respect of an injury to a person who was under the age of 18 years at the time of the injury." after "section 15).".

This amendment would exempt minors from the prohibition on interest on damages to children. We are advised that many injuries to young people can take much longer to stabilise than they do in adults. Also, not allowing interest payments on these damages can be a significant loss of value to young people. As long as the funds are denied to the young claimant this money remains with the insurer to invest and use to make yet more profits. Thus the provision of the bill that denies interest payment to young people represents yet another windfall to insurers as they gain interest on these payouts. It would be a gain of small measure that will give more support to young people by locking away more money for them in the long run. If this amendment is not passed, we will be giving yet another free kick to the insurance industry.

The Hon. IAN MACDONALD (Parliamentary Secretary) [6.22 p.m.]: The Government opposes the amendment moved by Ms Lee Rhiannon. Damages for non-economic loss represent compensation for pain and suffering. Damages for gratuitous care do not represent financial loss for the plaintiff. There is no place for interest to be awarded on these damages because they are not compensation for a past economic loss such as loss of earnings. There is certainly no place for interest on these damages to be awarded to children but not to adults. The amendment would have the effect of creating unfair anomalies. A 17-year-old would be in a better position than an 18-year-old, even though there may be no appreciable difference in position, injury or maturity.

Amendment negatived. 6 June 2002 LEGISLATIVE COUNCIL 2753

Clauses 12 agreed to.

Clauses 19 and 20 agreed to.

The Hon. IAN COHEN [6.23 p.m.]: I move Greens amendment No. 12:

Page 13, clause 21, line 5. Insert "unless the court is satisfied that such an award is necessary in order to do justice to the party awarded those damages or is necessary in the public interest" after "aggravated damages".

This amendment would allow exemplary, punitive and aggravated damages to be paid where the court is satisfied that it is necessary to do justice to the claimant or it is in the public interest. These forms of damages are rare but important in establishing a safer society. Some cases have led to entire institutions or industries changing their practices and procedures in ways that benefit society as a whole. Again I refer to the smoking cases. The Greens are concerned that by removing the kinds of damages proposed in the bill with our amendment, there will be reduced focus on public safety and a significant deterrent will be removed. I commend Greens amendment No 12.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [6.24 p.m.]: I totally support this Greens amendment. It is extremely important that there be some redress to correct the actions of those who are totally irresponsible. There are some cases in which the industry is totally irresponsible and there are some cases in which the plaintiff makes an unreasonable call that increases premiums. The object of this legislation is to deal with cases where an unreasonable complaint, in public policy terms, is laid against a defendant who has done no wrong. If this legislation is intended to deal with such a situation and the tort insurance costs are out of control, that is one thing. If the plaintiff is entirely justified and the defendant has been totally and completely unreasonable, protection should not be given. The amendment moved by the Hon. Ian Cohen deals only with a very small number of cases in which the defendant is completely unreasonable. I do not believe that they should be sheltered under the same umbrella by legislation that supposedly will stop unmeritorious claims. As such, the amendment ought to be supported.

The Hon. IAN MACDONALD (Parliamentary Secretary) [6.25 p.m.]: The Government opposes the amendment. Even though awards of this type are rare in Australia, the amendment would remove the very certainty that the bill is designed to introduce. This could in turn prevent premiums stabilising and falling. A similar prohibition already exists for health care and motor accident claims. The Government has already ensured that the prohibition applies only to negligence actions. Courts will still have the option to award such damages where there is intent to cause harm, such as in physical assaults.

Amendment agreed to.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [6.27 p.m.]: I move Australian Democrats amendment No. 3:

No. 3 Page 13, clause 21, line 5. Insert “unless the injury or death resulted from the smoking or other consumption of tobacco products or exposure to asbestos and the award is against a seller or manufacturer of tobacco products or a producer or manufacturer of asbestos or asbestos products” after “aggravated damages”.

This amendment seeks to retain exemplary or punitive damages for sellers or manufacturers of tobacco products and the producers or manufacturers of asbestos products. In most cases the manufacturers continued in a most cavalier and callous fashion to produce their products and to encourage their use long after the medical evidence was clear. I have followed the tobacco industry most closely but its parallels with the asbestos industry are such that both industries would fall within the same philosophical and administrative framework.

The tobacco industry has been driven by tort because of its immense political power. That industry nobbled tort law under the Bush administration and was instrumental in giving huge amounts of money for his re-election—and he was not re-elected by a majority of voters. But that is another problem and it is not related to the bill. Tobacco is the most examined subject in the history of medicine. Tobacco continues to be examined medically because there is so little action legislatively.

The Government raised the absurd argument that non-smokers also suffer from tobacco-caused illnesses. However, that occurs far less frequently. Approximately 5 per cent of lung cancer can be attributed to passive smoking. The Opposition says that a level playing field is needed for bodies that face unjustified claims about minor accidents. The tobacco industry has well-documented evidence on the Internet, proven in its laboratories, that tobacco tars caused cancer in the 1960s. 2754 LEGISLATIVE COUNCIL 6 June 2002

Tobacco companies hid those facts and closed down the laboratories. They made hush agreements and threatened scientists, who were not allowed to publish the results. Rumours and other epidemiological evidence emerged, along with pressure from the Royal College of Physicians in England in 1961 and from the United States Surgeon General in 1964, and in the 1970s they had all these experiments repeated at government expense basically to allow them to buy decades of time. Of course, hundreds of thousands, and even millions, of people died in pain and agony, and the health system picked up the tab. The tobacco industry did that and still, to this day, takes the Liberal Party out to dinner at its annual conference and lobbies against progress. It has fought every inch of the way and now has the Australian Hotels Association effectively as its proxy to lobby in this Chamber, although the industry also continues to lobby itself. Despite progress being driven by tort law, because of the lack of government action there is no exemption in this legislation for cases like this. My amendment will include exemption for such cases. I understand that the amendment will not be supported and that the Government and the Opposition are happy to keep premiums down and allow totally amoral actions. The thrust of the legislation is supposedly to stop unmeritorious claims against perfectly upright, honourable and reasonable defendants, yet the exact opposite is occurring because the Government has not thought about the matter or it is too lazy, and it is happy to let wrongdoers go along with councils and other people who have unjustified claims against them. I will be very disappointed and angry if this amendment is not supported by the Government and the Opposition, but I believe they care so little for the people of New South Wales and for justice that they will vote down this amendment. The Hon. IAN MACDONALD (Parliamentary Secretary) [6.32 p.m.]: Those are fighting words from the Hon. Dr Arthur Chesterfield-Evans. Nonetheless, the Government opposes the amendment. Even though awards of this type are rare in Australia, the amendment would remove some of the certainty that the bill is designed to introduce. The Government has already ensured that the prohibition applies only to negligence actions, so courts will still have the option to award such damages where there is an intent to cause harm, such as in physical assaults. The Government has also exempted awards of damages made under the Dust Diseases Tribunal Act from the new limits on damages. The bill does not otherwise seek to single out particular common law negligence actions and treat them differently. This would defeat the purpose of delivering certainty. The only actions that have been singled out are those that relate to specific statutory schemes that are already subject to complex and specific rules. The Hon. Dr ARTHUR CHESTERFIELD-EVANS [6.33 p.m.]: I do not understand why we are going for certainty if that certainty involves a grave miscarriage of justice. We want certainty that the premium writers will not be affected, no matter who they write policies for, and we do not want a situation in which the insurance industry does not have to discriminate between people it insures. Clearly it has to. There is a huge amount of money in the kitty for these cases and there is no reason why that should become a windfall. As for the idea that there is not certainty of intent, does the Hon. Ian Macdonald suggest that physical assault may be proved in cases of tobacco-related illness? I doubt it. It is difficult to gauge the point at which negligence becomes an intent to harm. Tobacco companies' negligence has reached the point of malice, in the sense that this information has been known for the full working life of people involved in that industry and, as such, they are more than negligent; they are malicious. That is a personal view that may not be supported by the courts. If the Government is not going to support this legislation, it might give an opinion on that point. But the idea that a physical assault, such as punching someone in the head, is far less harmful than peddling a product, by buying as many film stars and by telling as many lies as possible to encourage people to take a course of action that has fatal consequences for them and suggesting that it is merely negligence is absurd. That is the danger. If this amendment is not passed, the Government is effectively allowing a misfeasance to continue. That is extremely shortsighted and foolish. The Government should be ashamed of itself. I ask the Hon. Ian Macdonald to answer that point. Does he consider that marketing something that has been known to be harmful for 50 years constitutes intent? Question—That the amendment be agreed to—put. The Committee divided. Ayes, 7 Dr Chesterfield-Evans Mr Cohen Mr R. S. L. Jones Mr Oldfield Mrs Sham-Ho Tellers, Mr Breen Ms Rhiannon 6 June 2002 LEGISLATIVE COUNCIL 2755

Noes, 27

Ms Burnswoods Mr Gay Ms Saffin Mr Colless Mr Harwin Mr Samios Mr Costa Mr Hatzistergos Mr Tsang Mr Della Bosca Mr M. I. Jones Mr West Mr Dyer Mr Lynn Dr Wong Mr Egan Mr Macdonald Ms Fazio Reverend Nile Mrs Forsythe Mr Pearce Tellers, Mr Gallacher Dr Pezzutti Mr Jobling Miss Gardiner Mr Ryan Mr Primrose

Question resolved in the negative.

Amendment negatived.

Clause 21 agreed to.

Reverend the Hon. FRED NILE [6.43 p.m.]: I move Christian Democratic Party amendment No. 3:

No. 3 Page 13. Insert after line 16:

Division 5 Insurance industry ombudsman

23 Definitions

In this Division:

insurance industry ombudsman means the insurance industry ombudsman under the insurance industry ombudsman scheme.

insurance industry ombudsman scheme means the insurance industry ombudsman scheme approved under this Division.

24 Complaints to insurance industry ombudsman

(1) A claimant for personal injury damages may complain to the insurance industry ombudsman that the claimant has not been dealt with fairly by an insurer who is a party to the insurance industry ombudsman scheme.

(2) A complaint may be made free of charge.

(3) The insurance industry ombudsman may investigate a complaint and may make such decisions and recommendations on the complaint as appear to the ombudsman to be fair and reasonable in all the circumstances.

(4) The insurance industry ombudsman has such other functions in respect of a complaint as the insurance industry ombudsman scheme may provide.

(5) The insurance industry ombudsman may decline to deal with a complaint if it has been, is being or should be dealt with by another person or tribunal or there are, in the ombudsman's opinion, not sufficient grounds for further investigation.

25 Insurance industry ombudsman scheme

(1) The Minister may approve an insurance industry ombudsman scheme for the purposes of this Act, being a scheme that provides for the appointment of an insurance industry ombudsman to deal with complaints about whether a claimant for personal injury damages has been dealt with fairly by an insurer who is a party to the scheme.

(2) Before approving such a scheme, the Minister must be satisfied that the scheme meets the following objectives: 2756 LEGISLATIVE COUNCIL 6 June 2002

(a) that all insurers who are required to be members of the scheme are members of the scheme, have agreed to be bound by decisions of the insurance industry ombudsman under the scheme and, as members, are so bound,

(b) that the scheme has satisfactory arrangements in place to deal with all complaints referred to in subsection (1),

(c) that the insurance industry ombudsman will be able to operate independently of all insurers in exercising functions under the scheme,

(d) that the scheme will operate expeditiously and without cost to claimants for personal injury damages.

(3) The Minister may at any time revoke an approval under this section.

(4) The regulations may make it an offence punishable by a penalty not exceeding 100 penalty units for an insurer to fail to comply with a decision of the insurance industry ombudsman under the scheme.

(5) Notice of any approval given by the Minister under this section, and of the revocation of any such approval, is to be published in the Gazette.

26 Insurer must be a member of scheme

On and from the day that is 6 months after the date of assent to this Act, an insurer must not issue a policy of insurance in respect of liability for personal injury damages unless:

(a) the insurer is a member of the approved insurance industry ombudsman scheme, and

(b) the insurer is bound by, and must comply with, any decision of the insurance industry ombudsman under the scheme.

27 Proceedings for offences Proceedings for an offence under this Division or a regulation under this Division may be dealt with summarily before a Local Court constituted by a Magistrate sitting alone. This is another radical amendment from the conservative Christian Democratic Party. It would set up an insurance industry ombudsman. Many areas of industry now have an ombudsman. There is obviously the State Ombudsman, who has been very effective. There is the Banking Ombudsman. In view of some of the concerns about the legislation and the operation of the insurance companies it would be a big advantage for consumers to have an insurance industry ombudsman. People seeking personal injury damages would be able to complain to the insurance industry ombudsman if they felt that they had not been dealt with fairly by an insurer who is party to the insurance industry ombudsman scheme. Lodging of a complaint would be free. The amendment sets out in detail how the scheme would operate. The amount of material covered in it would almost warrant a separate bill but I believe the system is simple and straightforward. The insurance companies would have to accept the authority of the ombudsman or they would not be able to take insurance in this area. It is a very reasonable amendment and it balances the legislation to provide an ombudsman to act on behalf of consumers. The Hon. MALCOLM JONES [6.46 p.m.]: This amendment has been pre-empted by Federal legislation. The Australian Securities and Investment Commission [ASIC] has considered the insurance industry in two parts: one part covering life, disability and personal insurance, and a second part covering the general insurance market. A tribunal has been established under ASIC guidelines. It has been successfully operating for about six years in the life insurance and personal insurance sector following drastic reforms. It works just like an ombudsman. Following the Wallis report, which was received in 1999, a similar tribunal is to be established. I am not exactly sure of the day but it is approximately April 2003. So the suggestion by Reverend the Hon. Fred Nile has already been taken up by the Federal Government and is well in train. The Hon. IAN MACDONALD (Parliamentary Secretary) [6.47 p.m.]: The Government opposes the amendment. There is no need for a new insurance ombudsman scheme. The industry already has a consumer complaints scheme which has been recognised by the Australian Securities and Investment Commission. ASIC is responsible for consumer protection in the insurance industry. The current scheme is an industry-run scheme called Insurance Inquiries and Complaints Ltd. State legislation should not try to replicate the existing model or to introduce new regulatory requirements within New South Wales. This could simply increase insurers' costs and drive up premiums. Also, plaintiffs usually have no direct relationship with the defendant's insurer. Their complaint, if they have one, would be against the defendant or the defendant's solicitors. This amendment, although well-intentioned, would make the situation worse, not better. Amendment negatived. 6 June 2002 LEGISLATIVE COUNCIL 2757

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [6.48 p.m.]: I move Australian Democrats amendment No. 4:

No. 4 Page 13. Insert after line 16:

23 Refund of excess premiums by insurers

(1) An insurer who issued personal injury policies at any time in the period of 5 years before the date of assent to this Act must, as soon as practicable after the date of assent to this Act:

(a) assess the likely reduction in the insurer's liability under those policies that will result from the operation of this Act, and

(b) determine the average level or levels of reduction in premiums paid in respect of those policies that would be necessary to fairly and equitably take account of any such reduction in liability in the redetermination of those premiums, and

(c) publicly notify its determination under this section in accordance with guidelines issued by the Minister for the purpose.

Maximum penalty: 100 penalty units.

(2) Each of those insurers is then to redetermine those premiums on the basis of the average level of reduction determined as applicable to the policies concerned, and accordingly the relevant policy holder is entitled to any refund of premium that results from the redetermination of premium.

Maximum penalty: 100 penalty units.

(3) Each insurer must notify the Minister within 6 months after the date of assent to this Act of the results of the assessment and determination made by the insurer under this section and must provide to the Minister such information as the Minister may reasonably require to verify the reasonableness of any such assessment or determination.

Maximum penalty: 100 penalty units.

(4) Proceedings for an offence under this section may be dealt with summarily before a Local Court constituted by a Magistrate sitting alone.

(5) In this section:

personal injury policy means a policy of insurance in respect of liability for personal injury damages. This amendment seeks to have insurance premiums recalculated due to the reduced risk that this bill will facilitate. All premiums calculated prior to the operation of the bill are based on risk assessments for an open- ended compensation scheme. The scheme is no longer open-ended; it is capped and restricted in all sorts of ways. So the premiums should be adjusted accordingly. If I have a Rolls-Royce and halfway through the term of my insurance policy I change to driving a Hyundai Excel, therefore reducing the cost of any necessary repairs, my insurance premium is reduced. It is a simple principle. I suggest that if there is a drop in the risk, as there will be from this legislation, the industry should not get a windfall profit as it has a reduced risk. Premiums should fall, and they should fall from the time the legislation was introduced. If I had renewed my insurance just before this legislation was introduced, effectively I would have paid for a much greater risk for 12 months than the insurance company is now having to meet. That should be corrected, and this amendment provides one method of doing so. Premiums would be rebated and the insurance industry would provide re-determined premiums and notify policyholders of those premiums. I urge honourable members to support this amendment, in the interests of fairness and because the legislation is not designed simply to deliver a windfall to the insurance industry. The Hon. IAN MACDONALD (Parliamentary Secretary) [6.50 p.m.]: The Government opposes the amendment. It would be extremely difficult, if not impossible, for insurance companies to comply with the refund requirements on a case-by-case basis. To expect rebate calculations to be made on an individual case basis would create an enormous and unnecessary regulatory cost burden for insurance companies. While the Government has made it clear that it is not interested in protecting insurance company profits, these increased regulatory costs would be passed on to the community. Alternatively, insurance companies might get out of the market altogether. Also, there is no sense in covering premiums collected in the past five years. This amendment would simply make the situation worse for the community, not better. Amendment negatived. Clause 22 agreed to. 2758 LEGISLATIVE COUNCIL 6 June 2002

The Hon. JOHN RYAN [6.51 p.m.]: I move Liberal Party amendment:

Page 15, schedule 1, proposed clause 4, lines 1-18. Omit all words on those lines. Insert instead:

4 Application of Act to claims notified before 20 March 2002

Part 2 of this Act does not apply to or in respect of an award of damages against a person if the claim has been notified in writing to the defendant before 20 March 2002, or the claim has not been so notified before that date but an official report, investigation, inquest or inquiry by a police officer, coroner or public authority in respect of the death or injury concerned is pending and not finalised as at that date, and in either case:

(a) the damages are awarded (or are the subject of a settlement or consent order made) before 1 September 2002, or

(b) proceedings on the claim are commenced in a court before 1 September 2002, or

(c) proceedings on the claim cannot be commenced before 1 September 2002 because any injury concerned has not stabilised.

Previously the Opposition has drawn attention to the fact that the scheme outlined by the Government to date will create two types of claimant in terms of those who are affected by the retrospective date of 20 March. The Opposition believes that that is unfair, and that there should be only one type of claimant. Since the legislation was drafted, the Government has prepared an exemption for people who have injury claims against the Crown that are identical to claims covered under public liability largely for a political reason. The Government would have been embarrassed that claims by people injured in the train accident in the Blue Mountains, which are clearly claims against the Government, would have been scuttled by this legislation. The Opposition is of the view that that would have been unfair. The claims of those people are just as legitimate as claims by people covered by private insurance. The Opposition believes that if the Government acts tough by limiting claims made up until 20 March 2002, that should apply to the whole community. The Government introduced this scheme on the basis that it intended to be fair, and it cannot be fair when it must be tough and ration something that has limited availability. To be fair, the Government must have the same rules for all claimants. It is not fair to make rules for one group of claimants and exempt another group of claimants. The Opposition is intensely concerned that the Government, essentially for political purposes, is creating at least two, and possibly three, categories of claimants. I understand that the Government intends to move an amendment relating to dust diseases claims, thus creating a third category of claimants. Either the Government believes in this legislation or it does not. If it believes in this legislation it must apply it fairly across the board. The Opposition understands why the Government believes that claims by people involved in the Glenbrook rail accident deserve reasonably sympathetic treatment. However, some claims covered by the private insurance industry will be just as worthy of sympathetic treatment. Honourable members should remember that these claims relate to injuries for which premiums have already been paid. It must be borne in mind that a person must first suffer an injury in order to make a claim. Few people will line up to be injured deliberately simply to make a public liability claim. So there are limitations on the basis that a person must be injured to qualify to make a claim. The Opposition believes that all public liability injury claims are the same, regardless of how the injury occurred, who the insurer is and whether it is covered by a government scheme or a private scheme. To make this legislation fair to all claimants, the Committee must pass this amendment. I commend the amendment to the Committee. Ms LEE RHIANNON [6.55 p.m.]: I move:

That the amendment be amended by omitting "20 March 2002" wherever occurring and inserting instead "2 May 2002". The Greens have moved this amendment because the date of 20 March 2002 used by the Government in this bill is too retrospective. That date is significant because it is date on which the Premier made a ministerial statement about the proposed legislation. However, the Government did not mention its intention to make the legislation retrospective until 2 May. Honourable members should think carefully about the amendment because the legislation will impact on many cases if the date of 20 March is retained. That is unfair because when the Premier made the announcement on 20 March he did not mention retrospectivity at all; retrospectivity was first mentioned publicly on 2 May. Surely, out of a sense of fairness, the major parties that are committed to retrospectivity must adopt the date of 2 May.

The Hon. PETER BREEN [6.57 p.m.]: I disagree with the amendment moved by Ms Lee Rhiannon. The Government first spoke about retrospectivity on that date in May and it did seek to backdate it to 20 March. 6 June 2002 LEGISLATIVE COUNCIL 2759

However, to be consistent, I believe the Opposition's amendment should stand. The purpose of the Opposition's amendment is to remove the artificial distinction drawn in the bill between public and private personal injury claims. According to the bill as drafted, the old law will apply to claims against the Crown and the new law will apply to claims against private insurers. There is no reason for this artificial distinction to be drawn. In the Government briefing note presented to the crossbench, the Premier, the Treasurer and the Attorney General all signed off on the outline of the bill but no-one explained or attempted to justify the artificial line in the sand between claims against the Crown and other claims against private insurers. In my opinion, the reason for this omission is that the distinction between a claim against the Crown and a private claim is irrational and cannot be explained. It is said that the Government does not carry insurance and therefore the burden of personal injury claims—

The Hon. Dr Brian Pezzutti: It does.

The Hon. PETER BREEN: No, it does not. Nevertheless, it is said that personal injury claims falling on taxpayers can somehow be ignored. Mr Carr, in his second reading speech to the bill in the other place, said:

The Government does not want to disadvantage people who have been negotiating settlements with the Crown.

This raises the obvious question: Why does the Government want to disadvantage people who have been negotiating with private insurers?

The Hon. John Della Bosca: Private insurers are not legislated.

The Hon. PETER BREEN: What is the difference? They must still pay. People in the latter group are disadvantaged twice: once because they get less compensation under the new law and again because they are the subject of discriminatory legislation. That is what it is–—discriminatory legislation. The right to equal treatment under the law is a fundamental principle of human rights.

That right was included in the draft of the Australian Constitution prepared by Tasmania's Inglis Clark and subsequently removed at the Constitutional Convention of 1898, because legal equality was at odds with our discriminatory factory laws that excluded Chinese from the goldfields and race laws that discriminated against Aboriginal people. The principle of the right to equal treatment under the law, nevertheless, remains the cornerstone of our legal system and it is recognised in the universal declaration of human rights. For that reason I support the Opposition's amendment that seeks to treat all people equally so far as the retrospectivity provision is concerned. As the Hon. John Ryan has said throughout the debate, in the Committee stage of the bill all categories of claimants should be treated the same. To that sentiment I say: Hear! Hear!

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [7.01 p.m.]: On behalf of the Democrats I support the amendment moved by the Liberal Party.

The CHAIRMAN: Order! For the information of members I advise that there are three amendments before the Chair: Greens amendment No. 15, consideration of which was deferred earlier, an amendment moved by the Liberal Party; and an amendment to that amendment moved by Ms Lee Rhiannon.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS: Greens amendment No. 15 should be dealt with first because unless it succeeds the Liberal Party amendment cannot succeed.

The Hon. Michael Egan: He got it right.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS: I am surprised that those who are so good at procedure are so poor at concept. I support Greens amendment No. 15 and, surprisingly enough, the Liberal Party amendment, which puts in an alternative. It is simple: first, we omit the existing and then we put in the alternative, but that may be beyond the understanding of some members on the Opposition benches, and indeed some members on the Government benches. It is really very simple, conceptually.

The Hon. Michael Gallacher: But it is not beyond you, is it? The Hon. Dr ARTHUR CHESTERFIELD-EVANS: No, that is correct. As my colleague the Hon. Peter Breen said, we should not have two sets of laws. The Government—which has said that we cannot have one law for tobacco companies, which are immoral—believes we are defending councils that are moral and have unjustifiable claims levied against them. In this case the distinction is drawn between the Government, which 2760 LEGISLATIVE COUNCIL 6 June 2002 may want to do the right thing by people involved in the Glenbrook train disaster, and the rest of the world, who have to put up with their benefits being taken away. That is grossly inconsistent and the Liberal amendment goes towards fixing that. As such, it should be supported, as a matter of consistency, particularly as the Government has demanded such consistency in other cases in which it should not have done so.

The Hon. Dr PETER WONG [7.03 p.m.]: The Opposition amendment is very cleverly drafted in such a way that it is almost misleading. On the surface it seems that everything is backdated to 20 March, but in reality it is not. The amendment states "or the claim has not been so notified", et cetera, which virtually means that everything is dated 1 September 2002. I do not know why the Greens need to move an amendment. I do not support the Liberal Party amendment.

Ms LEE RHIANNON [7.04 p.m.]: Laughter is good for the soul, but when we are considering such disturbing matters as this, the carry-on by honourable members is disturbing.

[Interruption]

Does the Minister for Police want to do that again?

The Hon. Michael Costa: Stop moralising and get on with it.

Ms LEE RHIANNON: I acknowledge the interjection by the Minister for Police.

The Hon. Jan Burnswoods: What was the interjection?

Ms LEE RHIANNON: A large groan, which was rather painful and disturbing to hear.

The Hon. Jan Burnswoods: No, it was not a groan.

Ms LEE RHIANNON: Yes, there were words as well.

The Hon. Jan Burnswoods: But you are dishonest in the way you misuse his words.

Ms LEE RHIANNON: I acknowledge the interjections of Ms Burnswoods too.

The Hon. Jan Burnswoods: What were they?

Ms LEE RHIANNON: If you cannot remember what you said just two seconds ago it is a bit of a pain.

The CHAIRMAN: Order! Members will remain quiet or I will name them.

Ms LEE RHIANNON: There are three amendments before the Committee: Greens amendment No. 15, the Liberal Party amendment, and a Greens amendment to that amendment. I agree that there should be no artificial distinction between claims against the Crown and private claims. That is why the Greens support the Liberal Party amendment. I have already put the case for the change of date. However, the Greens argue that that is not only because of when the Government first announced its belief that there should be retrospectivity, but because many cases will be knocked out if the bill is passed as it is. I hope that members will be sober in their considerations and listen to the case I will relate. It illustrates just one of many people who will be disadvantaged if this bill goes through as it is. I have received a letter from Mr Brendan Sydes, a partner with Slater and Gordon. He wrote:

I am writing to you because I understand that the Legislative Council will this afternoon be considering some proposals to amend the commencement and retrospectivity provisions of the Civil Liability Bill 2002.

Having read yesterday's Council debate, I am concerned that the real impact of the retrospective removal of common law rights may not be fully appreciated by Council members. I am also concerned that the Government's assurance that the changes in the Bill will only affect minor and trivial claims has not been given adequate scrutiny and is in fact wrong.

Yesterday I was consulted by the father of a 5 year-old girl, Amber. Amber suffered very severe burns in a house fire on a property near Moree on 21 March 2002, the day after the day upon which the changes in the Civil Liability Bill will commence if it is passed without amendment. 6 June 2002 LEGISLATIVE COUNCIL 2761

Amber and her parents had just shifted into the house. The owner of the house had apparently not fitted smoke alarms because he thought the expense was not justified. The fire appears to have originated from an electrical fault. The matter is still under investigation by the police and presumably will be the subject of a coronial inquest.

Amber has suffered full thickness burns to every part of her body save for the area covered by her nappy. She has lost several fingers. She will require many operations over many years and extensive care by her family.

The parents have not sought legal advice until now because they have been spending every hour possible by her bedside at Westmead Children's Hospital.

Amber presently has a right to sue for damages unrestricted by the modifications that will be imposed by the Civil Liability Bill. Upon the suffering of the injuries, rights accrued to her. These rights will be taken away by the Civil Liability Bill unless the retrospective operation of the Bill is defeated.

Lest it be thought that the changes will be of no significance to someone with injuries as catastrophic as Amber's, consider the effect of her claim if just a couple of the changes were made to the calculation of damages that forms part of the Civil Liability Bill.

Clause 14 of the Bill changes the method of calculating future economic losses. Assuming that Amber's injuries result in a reduction in her capacity for employment of say $400 per week, the application of the new Clause 14 will result in a diminution of this aspect of her claim by about $150,000.

Amber will require full time care for many years, much if not all of which will be provided by her parents. Clause 15 of the Bill will dramatically reduce the damages that will be available to compensate Amber for her need for this care. Additional examples could be given of dramatic reductions resulting from the removal of rights to claim interest and other modifications.

Amber's situation is not one of a possible future claim.

The potential defendant has purchased insurance on the basis of premiums calculated with regard to the insurer's actuarial assessment of the risks involved. Having suffered injuries she has rights, rights that will be taken away if the Civil Liability Bill is given retrospective operation.

After I met with Amber's father yesterday and explained the effect of the proposed changes to him he asked me to write to you— that is, all members in this place—

to explain his daughter's situation. He is understandably most concerned that Parliament could contemplate the removal of rights in a situation such as Amber's. He has asked me to write to you to explain her situation in the hope that you will be encouraged to demonstrate compassion with respect to the predicament of his family and that of others in a similar situation who find it impossible to comprehend that their elected representatives would entertain a law that retrospectively removes or diminishes accrued rights. I urge honourable members to support the Greens amendment to delete 20 March 2002 and to insert instead 7 May 2002. Only then will we be able to insert changes that will bring about a small amount of justice. The Hon. Dr PETER WONG [7.10 p.m.]: I have also read the letter from Slater and Gordon, which is quite misleading. The intention of the letter is to mislead patients and the injured. Nobody is in any doubt that this bill does not take away the rights of an injured person. Furthermore, even the Australian Plaintiff Lawyers Association acknowledged that, for the critically ill, the amount of compensation is almost the same. That is all rubbish! The Hon. IAN MACDONALD (Parliamentary Secretary) [7.11 p.m.]: The Government opposes the amendment moved by the Opposition and the amendment moved by Ms Lee Rhiannon. The Government's position on retrospectivity is clear. The Opposition has expressed concerns about the retrospective nature of the bill. However, in recent years this Chamber has dealt with other bills that have retrospective provisions.. Amendments to the Legal Profession Act contained in the Legal Profession Amendment (Complaints and Discipline) Bill applied retrospectively to complaints against lawyers initiated at any time before 4 February 200. In other words, the operation of the bill went back in time over several years. However, the Opposition did not oppose that bill. The Opposition said in debate that it was a constructive bill. On 30 June 1992 when the Coalition was in government it introduced the Real Property Amendment (Compensation) Bill. That bill was subsequently passed through this Chamber without dissent on 16 September that year. That bill operated retrospectively to 19 March 1992—in other words, six or seven months prior to its going through theChamber. It prevented certain compensation claims being made by professional indemnity funds against the Registrar General. Why was the restrospective date chosen? According to Hansard, it was because that was the date of the Minister's announcement of his intention to introduce the legislation. That is precisely what happened with the Premier on 20 March this year. Labor supported that legislation in 1992 because there were good policy reasons for applying it retrospectively. In 1994, again when the Coalition was in government, Labor supported its Motor Accidents 2762 LEGISLATIVE COUNCIL 6 June 2002

Amendment Bill. That bill operated retrospectively to overcome the impact of a decision of the New South Wales Court of Appeal in relation to awarding interest on damages. It is ironic that the 1994 bill affected the rights of people to recover compensation for personal injuries sustained in motor accidents. It seems that, back in 1994, the Opposition thought that retrospective legislation in the personal injury area was justified in some circumstances. In 1994 the Minister outlined in his second reading speech the reason for retrospectively applying the change to certain claims and proceedings. He said:

Failure to act in the manner proposed will result in additional liabilities being placed on insurers with little or no ability to recover those costs.

Did Labor stand in the way of that bill? No. The Hon. Judith Walker noted in her contribution:

The Opposition has some problems with the bill but the industry and the Government would be placed in a difficult position if the Opposition did not support it.

Labor did support it because there were good policy reasons for doing so. It is a pity that the same constructive approach is not applied by the Opposition to this bill. Our community is now under a far greater threat from the current public liability crisis, as all honourable members would know. Finally, in 1995 our Government introduced further amendments to the motor accidents legislation. Those amendments changed the way damages were awarded in relation to motor accidents. They applied retrospectively to all accidents occurring after midnight on 26 September 1995. That date was chosen because, according to Hansard, it was "the date of the Government's announcement of the changes". The reason the legislation was retrospective then, as with this bill, was that cost pressures on premiums made it critical that the changes apply as quickly as possible. That bill went through. As I said, the Government's position on retrospectivity for this bill is clear. It is necessary so the bill can have the maximum impact on premiums as soon as possible.

The Opposition's rhetoric about the bill's exemption in relation to claims against the Crown has no foundation. The bill quite properly gives people with claims against the Crown a further opportunity to pursue their claims under existing law. The Government does not wish to disadvantage claimants unnecessarily if they were negotiating settlements with the State prior to 20 March. The State can afford to make this concession without undermining the impact of reforms on premiums offered by private insurers. The State is a self-insurer and therefore anything it does will not have an effect on private insurer premiums. The same considerations do not apply to other claims which are funded through private insurance policies. The exemption does not create two different classes of people, as the Opposition has mischievously suggested. It simply reflects the fact that there are already different consequences in relation to damages paid to people injured by the Crown.

Removing retrospectivity in the manner proposed by the Opposition would allow claimants whose injuries have stabilised, but who have not yet started proceedings for any number of reasons, to rush in and file before 1 September. This could delay the realisation of any reduction in premium prices, which could have serious consequences for the community. If it does impact on premiums in this way, it will be thanks to the ill- conceived pointscoring of the Liberal and National parties. The Government's actuarial advice is that savings achieved from retrospectivity do not automatically translate into an increase in profits for insurers. The fall-out from the collapse of HIH and other upheavals in the industry has suggested that insurers may have been undercharging for their public liability policies—that is quite clear from the royal commission. Only yesterday, an Australian Prudential Regulation Authority manager was reported to have advised a Senate committee that underpricing has brought on the present crisis. Any savings that insurance companies may make from the bill's retrospectivity should help to take the pressure off premiums in the future by covering past losses. It is also ironic that despite earlier statements to the contrary, the Opposition's amendment does not just extend the current exemption for cases against the Crown to everyone. But it will create an additional exemption that will apply the law differently to another group of people. The Opposition's amendment is vague and completely unworkable. Under its exemption, people will be able to file claims before 1 September if some sort of investigation was on foot on 20 March. The bill's exemption for cases against the Crown has a sound policy basis, which has already been outlined. However, there is no good reason for this amendment. It would introduce great uncertainty about who is and is not included in the bill. For example, what is an official report? When is an investigation pending? The amendment is riddled with holes. All Opposition members should pay heed to their Federal colleagues on this matter and support the bill as introduced. The Hon. JOHN RYAN [7.18 p.m.]: The Opposition has some difficulties with the way in which this matter is proceeding before the Committee—which is certainly not of our making. The Greens are attempting to 6 June 2002 LEGISLATIVE COUNCIL 2763 achieve an objective that is far more radical and much more extreme than that proposed by the Opposition. The speech of the Parliamentary Secretary would suggest that the Opposition is not supporting the Government with regard to the retrospective effect of this bill.

Although the Opposition has raised questions about the retrospective effect of the bill we have said publicly time and again that we will support the 20 March starting date. We have no desire to extinguish that aspect of the legislation. Quite responsibly, we have agreed with the Government in that regard. However, in the clever way in which the Government has chosen to put this before the Committee it is asking the Opposition to run the risk of voting for the more radical scheme proposed by the Greens and, therefore, wipe out the impact of the starting date of 20 March in the hope that we might be able to reinstate all those words at a later date. The Government knows how this works.

It is perfectly obvious that our scheme is far less radical than that proposed by the Greens. Our scheme was in the public domain first. We really should vote on our amendment before we consider the amendment moved by the Greens; otherwise we could end up in the rather absurd position of being unable to vote on our amendment. The procedures of the Committee are, and I have been told that the Chairman will rule, that if Greens amendment No. 15 is negatived, our amendment cannot be moved. Notwithstanding the fact that we debated it, we will be unable to move it.

The Hon. John Della Bosca: Why? If Ms Lee Rhiannon is defeated—

The Hon. JOHN RYAN: If the amendment of Ms Lee Rhiannon is defeated, as we would want because it is a more radical option—

The Hon. John Della Bosca: Your amendment is put.

The Hon. JOHN RYAN: No, we cannot put our amendment. The Chairman has said we cannot put our amendment. The result will be that our amendment will not be voted on. I want to make it absolutely clear to the Committee that this is not a situation that the Opposition sought to contrive, as might otherwise be suggested. We would rather have the Committee consider and vote on our amendment. Much of what we heard from the Hon. Ian Macdonald is contrary to the Opposition's position. It does not apply. The Opposition is happy for 20 March to be the starting date, but we believe that it should apply to the entire community and not just a section of it that happens to have some political clout with the Attorney General on a particular day. We cannot support the position put by the Greens. It is not our publicly declared position. We would like the Committee to be able to vote on our amendment.

Ms LEE RHIANNON [7.22 p.m.]: I would like some clarification about process and clarification from the Opposition. The amendment moved by the Opposition seeks to omit all words on those lines, which is exactly what our amendment says.

The Hon. John Ryan: But we also reinsert.

Ms LEE RHIANNON: Yes, then the Opposition's amendment reinserts some words. If the Opposition does not support our amendment it is starting to look very fishy. We have to talk it through. Our first amendment omits all words, which is part of what the Opposition's amendment does. Why can the Opposition not support that and, if it were agreed to, put its amendment, and then we discuss that? If the Opposition is not willing to do that, I would suggest there is a real concern about tactics. Can we please have some clarification?

The CHAIRMAN: Order! Perhaps honourable members are confused about my intentions. I intend to put Greens amendment No. 15 first because it seeks to delete those words. If it is successful, I will put the Liberal Party amendment. If it is unsuccessful the Committee will have decided not to delete those words and, therefore, I cannot ask the Committee a second time to delete them.

The Hon. JOHN RYAN [7.25 p.m.]: I will answer the reasonable question put by Ms Lee Rhiannon. The problem is that if members of the Opposition support the amendment and we are not able to have our amendment voted on at the same time, which is our position before the Committee, we would have to vote for something we do not agree with. We would lose all the words on page 15, and the starting date in the bill would be gone. We certainly do not want the starting date to go altogether. We could vote to support the Greens amendment and lose those words, but then we would be in a position where the Committee, for whatever reason, would not agree with them. 2764 LEGISLATIVE COUNCIL 6 June 2002

Our amendment would be defeated and the Committee would have supported a position that is far more radical than the Government, or we, would want. We are not able to support the Greens amendment without, at the same time, having the Committee reinsert words. If the Greens amendment is put, I do not want anyone to suggest that the Opposition is in any way being fishy. We want the Committee to vote on our amendment. But if we support the Greens amendment without the additional insertion of our words we run the risk of losing the 20 March starting date altogether, and we may not get those words back. The Opposition wants the words in the bill that appear on page 15.

Ms LEE RHIANNON [7.25 p.m.]: I thank the honourable member for the explanation. Having had that clarified, I seek leave of the Committee to withdraw Greens amendment No. 15.

Leave granted.

Greens amendment No. 15 withdrawn.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [7.26 p.m.]: When I moved an amendment to the Workers Compensation Bill asking that self-insurers get different treatment from the Government, I was told that it was unacceptable to have two standards. Now the Government is talking about inconsistencies between it as an insurer and other insurers, having gone against that precedent. I point out the Government's inconsistencies in its legislative record. Amendment of amendment negatived. Question—That the amendment be agreed to—put. The Committee divided. Ayes, 14 Mr Breen Mr Gallacher Ms Rhiannon Dr Chesterfield-Evans Miss Gardiner Mr Ryan Mr Cohen Mr Gay Tellers, Mr Colless Mr Lynn Mr Harwin Mrs Forsythe Dr Pezzutti Mr Jobling Noes, 19 Dr Burgmann Mr M. I. Jones Mr Tsang Ms Burnswoods Mr R. S. L. Jones Mr West Mr Costa Mr Macdonald Dr Wong Mr Della Bosca Reverend Nile Mr Dyer Mr Oldfield Tellers, Mr Egan Ms Saffin Ms Fazio Mr Hatzistergos Mrs Sham-Ho Mr Primrose Pairs Mr Obeid Mr Pearce Ms Tebbutt Mr Moppett Question resolved in the negative. Amendment negatived. Schedule 1 agreed to.

[The Chairman left the chair at 7.35 p.m. The Committee resumed at 8.30 p.m.]

The Hon. IAN MACDONALD (Parliamentary Secretary) [8.30 p.m.]: I move:

Page 17, schedule 2.2 [2], proposed section 198C. Insert after line 15:

(d) costs for legal services provided in respect of a claim for damages in proceedings of the kind referred to in section 11 (Claims for damages for dust diseases etc to be brought under this Act) of the Dust Diseases Tribunal Act 1989. 6 June 2002 LEGISLATIVE COUNCIL 2765

The amendment exempts matters dealt with by the Dust Diseases Tribunal from the provisions in the bill that provide for the maximum costs in personal injury damages matters. The amendment is necessary because of the unusual nature of matters in the Dust Diseases Tribunal. Section 11A of the Dust Diseases Tribunal Act 1989 permits a plaintiff to claim "provisional damages" for the dust-related condition they presently suffer. Those damages are assessed on the assumption that they will not develop another dust-related condition. However, if it is proved, or admitted to be a chance, that an injured person will develop another dust-related condition—for example, carcinoma of the lung or mesothelioma—the tribunal can order that the plaintiff may claim "further damages" at a later stage. This process means that there is still a full hearing on liability, but the damages will be on a provisional basis and may be less than $100,000.

The result is that the plaintiff may in fact receive damages of less than $100,000 on several different occasions in the tribunal. These damages would be against the same defendant for the same breach of duty. Each time the plaintiff came before the tribunal he or she would be subject to the cap on lawyers' costs in the bill, even though his or her total damages might amount to several hundred thousand dollars. These are not the small matters intended to be dealt with by the cap on lawyers' costs. They are big matters which are dealt with over a lengthy period, reflecting the slow onset and tragic results of dust-related illnesses. The Government considers that the amendment is necessary to ensure that plaintiffs in dust diseases matters are treated in the same way as other plaintiffs who receive large damages awards. I commend the amendment.

The Hon. JOHN RYAN [8.34 p.m.]: The Opposition has expressed some concerns about the bill. Because of the way the Government has constructed it, different categories of people are created. It is not that the Opposition objects to any of the specific categories. We just think there ought to be a more general exemption. However, we have no desire to stand in the way of those making claims under the Dust Diseases Tribunal Act. The Opposition will support the amendment.

Amendment agreed to.

Ms LEE RHIANNON [8.35 p.m.]: I move Greens amendment No. 16:

No. 16 Page 17, schedule 2, lines 28-33. Omit all words on those lines. Insert instead:

(2) The regulations may prescribe an amount to replace the amount of $10,000 in subsection (1) if the amount prescribed is greater than the amount it replaces and greater than any amount previously prescribed under this subsection in respect of the amount, and may prescribe a percentage to replace the percentage of 20% in subsection (1) if the percentage prescribed is greater than the percentage it replaces and greater than any percentage previously prescribed under this subsection. When such a replacement amount or percentage is prescribed, it applies for the purposes of subsection (1) in place of the amount or percentage that it replaces.

This amendment, if adopted, would put restrictions on regulations on cost thresholds. The bill as it stands will give the Government the ability to increase the threshold and reduce the amount paid in legal services costs for claims up to $100,000 under proposed section 198D by regulation. As this could have a significantly adverse impact on many injured people, it is a matter that is too important to be left to regulation. Should a need arise to alter these thresholds in a way that will catch even more injured people in its net, or yet further restrict the amount of legal costs that can be paid, the appropriate course of action is to bring in amending legislation so that it can be debated and the Act amended by this Parliament.

This provision of the bill represents an attempt by the Government to sneak through in regulation yet more punishment of the injured, which in turn means more profits for the insurance industry. Tragically, that has been a real theme in the way that amendments have been dealt with. This amendment would restrict the regulating-making power of the bill so that the amount paid in legal services costs could be increased, and the threshold altered, only by legislation. Again, one would expect that to be regarded as a quite reasonable provision.

The Hon. IAN MACDONALD (Parliamentary Secretary) [8.37 p.m.]: The Government opposes the amendment. The bill provides for the cap on damages to be replaced by caps set out in the regulations because the Government recognises that circumstances will change over time. The goal of the bill is to reduce claims costs for consumers, not give a windfall to lawyers. If there is credible evidence in the future that legal costs have fallen, the cap may need to be reduced. The Parliament will have the power to disallow any regulation made under this provision, as it does with all regulations.

Amendment negatived. 2766 LEGISLATIVE COUNCIL 6 June 2002

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [8.38 p.m.], by leave: I move amendments Nos 5 and 6 in globo:

No. 5 Page 21, line 1. Omit "civil". Insert instead "personal injury damages".

No. 6 Page 21. Insert after line 2:

198J Application of Division

This Division applies only in respect of a claim for personal injury damages within the meaning of the Civil Liability Act 2002.

The amendments seek to clarify that section 198J applies only to personal injury claims. As presently drafted, section 198J would apply to all legal proceedings involving damages. I do not think that is the intention of the bill. I believe this amendment is to correct a drafting error. If the amendment is not necessary, the Government could indicate that clearly. I trust the amendment will be accepted as it seeks to clarify that the section applies only to personal injury claims.

The Hon. IAN MACDONALD (Parliamentary Secretary) [8.39 p.m.]: The Government opposes the amendments. The intention of the bill is to apply legal profession amendments to all damages claims, not just personal injury claims. Government's view is that legal costs and disclosure will promote efficiency and accountability in the legal profession. Consequently, the Government opposes the amendments.

Amendments negatived.

Schedule 2 as amended agreed to.

Title agreed to.

Bill reported from Committee with an amendment and report adopted.

Third Reading

The Hon. IAN MACDONALD (Parliamentary Secretary) [8.41 p.m.]: I move:

That this bill be now read a third time.

The House divided.

Ayes, 28

Ms Burnswoods Mr Hatzistergos Mr Ryan Mr Colless Mr M. I. Jones Ms Saffin Mr Costa Mr R. S. L. Jones Mrs Sham-Ho Mr Dyer Mr Kelly Mr Tsang Ms Fazio Mr Lynn Mr West Mrs Forsythe Mr Macdonald Dr Wong Mr Gallacher Reverend Nile Miss Gardiner Mr Oldfield Tellers, Mr Gay Mr Pearce Mr Jobling Mr Harwin Dr Pezzutti Mr Primrose

Noes, 3 Ms Rhiannon Tellers, Dr Chesterfield-Evans Mr Cohen

Question resolved in the affirmative. Motion agreed to. Bill read a third time. 6 June 2002 LEGISLATIVE COUNCIL 2767

SPECIAL ADJOURNMENT

Motion by the Hon. Ian Macdonald agreed to:

That this House at its rising today do adjourn until Tuesday 11 June 2002 at 2.30 p.m.

WITNESS PROTECTION AMENDMENT BILL

Bill introduced and read a first time.

Second Reading

The Hon. MICHAEL COSTA (Minister for Police) [8.52 p.m.]: I move:

That this bill be now read a second time.

The Witness Protection Act 1995 enables special steps to be taken to protect witnesses at extremely high risk when other methods are insufficient. It addresses matters such as close personal protection during court proceedings and providing witnesses and their families with new identities and other assistance to allow them to live safely in the community. Witness protection may be particularly necessary when dealing with organised crime gangs. This Government has already done a great deal to ensure that the police have sufficient powers to investigate and prosecute criminal gangs. This bill will enhance the protection available to people who agree to testify against the gangs.

New South Wales led the way by introducing a legislative witness protection program in 1995. All other Australian jurisdictions now have such systems or are implementing them. In 2001 the Witness Protection Act was reviewed. A report of that review was tabled in both Houses of Parliament earlier this year and this bill implements the legislative recommendations of the report. The review involved consultation with a range of bodies: NSW Police, the Crime Commission, the Police Integrity Commission, the Attorney General's Department, the Ombudsman, the Director of Public Prosecutions [DPP], the Commonwealth and the States and Territories.

The PRESIDENT: Order! Members wishing to engage in private conversation should do so outside the Chamber.

The Hon. MICHAEL COSTA: I thank those bodies for their advice. The report concluded that the policy objectives of the Act remain valid and that the terms of the Act are essentially appropriate. Nevertheless, the report identified a number of areas for amendment which will improve the operation of the Act. I will now outline the amendments. All witness protection cases are governed by a memorandum of understanding between the participant and the Commissioner of Police. The memorandum sets out what protection and assistance may be provided and places certain requirements on the witness. The bill enables the memorandum of understanding to provide for psychological counselling of participants and their families and also vocational training to help them re-enter the community and to be self-supporting. The bill will also permit participants to be photographed by police and for photographs to be retained and kept up to date. This will assist officers of the witness security unit or the Ombudsman to identify participants when they meet them under covert circumstances.

The bill will also make it clear to a protected witness that protection can be withdrawn if the memorandum of understanding is breached intentionally. The provision or withdrawal of protection services is not taken lightly. The Act has built-in safeguards so that when the commissioner refuses to provide protection or to withdraw it, the participant can ask the commissioner to review that decision and can then appeal the decision to the Ombudsman. The bill makes a number of improvements to this process. Currently the Ombudsman has 72 hours to determine appeals against decisions to refuse to include people in the program or to terminate participants from the program. This period is sometimes too short, as it may be difficult to contact the participant. The bill will extend this time frame to seven days. When a person is served notice of termination of their position on the program, the time frame for them to lodge an appeal to the commissioner is 28 days. The 28-day window will be reduced to 14 days. The 28-day period is too long, as there are resource and security issues raised by keeping a participant under protection. A participant's rights are maintained by the avenue of appeal to the Ombudsman and, as I stated, the period of time for the Ombudsman's review is being increased from three to seven days. Currently if the Ombudsman reviews the commissioner's decision to terminate and confirms it, the termination is not complete 2768 LEGISLATIVE COUNCIL 6 June 2002 until the Ombudsman has informed the appellant. However, people in such a position may be very difficult to locate. Termination will now take place if the Ombudsman takes all reasonable steps to locate and inform the person. The bill introduces a power to temporarily suspend protection if the capacity of the witness security unit to provide support and assistance is significantly reduced through some conduct of the participant. Examples are if the participant chooses to travel overseas, or if the participant is sent to prison. There will be the opportunity for a participant to appeal the decision to suspend protection and for the Ombudsman to review the decision. A two-day opportunity to appeal followed by a three-day period for the Ombudsman's review will be sufficient, as the decision being made is only for temporary suspension and the circumstances of such a case make a quick decision necessary. A key aspect of witness protection is providing witnesses with new identities. Very commonly, birth certificates and marriage certificates will be issued in a new name. Currently death certificates cannot be issued. If the spouse of a participant is widowed and desires to remarry, it may be necessary to issue a death certificate to demonstrate that the former spouse is deceased. The capacity to issue appropriate death certificates will also support the new identity of a protected witness who has no apparent relatives. Witness security unit personnel are themselves issued with identity documents in false names to ensure maximum security when meeting participants. Up until now, this has been done through provisions in the Act, but the bill will bring this activity under the general provisions of the Law Enforcement and National Security (Assumed Identities) Act 1998, which was introduced specifically for the purpose of providing law enforcement officers with assumed identities. There needs to be greater clarity as to procedures when protected witnesses are asked questions in court. There also needs to be greater clarity regarding the obtaining of orders from the court protecting the identity of a protected witness. The bill establishes a system whereby a non-disclosure certificate is issued to the court by the Commissioner of Police. The non-disclosure certificate states that the person is a protected witness, that they have a new identity and must state any criminal record. The court can only disclose the contents of the certificate in the absence of the jury and the public. The certificate also requires that questions to the protected witness may not lead to the disclosure of the identity of the witness. Exceptions are provided to permit, for example, an accused's counsel to ask questions relating to the credibility of the witness. Where such questions are asked, the public must be excluded for that part of the proceedings and suppression orders must be made. In order to protect participants, witness security unit personnel and others who assist the program, the Act contains various offence provisions relating to breaches of security of the program. Under section 34 of the Act it is an offence to disclose or compromise the identity of a participant. However, another law may require such a disclosure to be made, for example under a subpoena. This can place people who assist the program in good faith in an invidious position. Consequently, the Act provides that certain classes of people are not required to divulge information relating to the program unless directed to do so by the Supreme Court. The Act lists a range of people who may claim the benefit of this exemption, but it only includes people employed by specified agencies. The bill will amend the Act to protect any person who provides assistance to or for a participant at the request of the Commissioner of Police. The Act currently makes it an offence for participants or former participants to disclose information about the program or the police officers who administer it. The bill expands this to cover people who are assessed for inclusion but who are ultimately not included. Use is often made of identity or other documents from other jurisdictions. Similarly, participants may be relocated interstate. All Australian jurisdictions recognise the importance of this and the need for the various witness protection Acts to recognise each other and facilitate this co-operation. Currently, co-operating witness protection programs of other jurisdictions that wish to obtain New South Wales birth certificates and other documents via a New South Wales Supreme Court order must first approach NSW Police. This increases the number of people aware of the identity of the participant. New South Wales does not benefit from requiring NSW Police to act as intermediary in this way. The bill will amend the Act to allow recognised witness protection programs of other Australian jurisdictions to approach the New South Wales Supreme Court directly. I commend this bill to the House. Debate adjourned on motion by the Hon. Don Harwin. DRUG SUMMIT LEGISLATIVE RESPONSE AMENDMENT (TRIAL PERIOD EXTENSION) BILL Second Reading Debate resumed from an earlier hour. The Hon. MALCOLM JONES [9.03 p.m.]: I wish to speak briefly on the Drug Summit Legislative Response Amendment (Trial Period Extension) Bill. I will not reiterate all the statistics that other honourable 6 June 2002 LEGISLATIVE COUNCIL 2769 members have continued to repeat, nor will I attempt to make a value judgment in advance of formal reports being issued. During the course of the Drug Summit I voted for the trial of the injecting room. That was against my usual beliefs. I do not believe that the Government should be involved in any way in the supply or the administration of narcotics. However, I was persuaded during the Drug Summit by the argument of "Let us keep the children alive long enough to get clean." That affected me deeply and I voted for the trial, but only for a trial to evaluate the progress of a drug injecting room.

I have had a lot to do with people trying to get off hard drugs and I have come to understand quite a deal about the process. My understanding is that those addicted to hard narcotics will not consider entering a rehabilitation program or a detoxification program unless they have reached rock bottom. The definition of "rock bottom" is simply when the pain of taking drugs is worse than the pain of not taking drugs. That is the time when an addict will consider treatment or detoxification. An addiction to hard drugs is a disease with three components: the addict is physically dependent, has a mental obsession and a spiritual illness, which is a hole in the soul that is so painful that heavy narcotics help to ease the pain and fill that void.

About seven weeks ago a close friend of mine died of an overdose. An autopsy was not carried out but he died from either heroin or cocaine. He died alone in a flat in North Sydney. Far from being a destitute junkie, this fellow was a highly accomplished barrister. I will not mention his name or list the substantial court cases that he won for his clients because that would reveal his identity and I do not believe that would be fair to his family, but drug addiction is a dirty, rotten plague of our time.

When the injecting room trial was proposed it was clear to the Government that the trial would end in 18 months time. The Government proposed the terms of the trial, including the reporting that would be required at the end of that 18-month period. I do not believe anything will happen in the next 12 months that has not happened in the previous 18 months, except that an election will take place and that was not in the Government's original calculation. The Government screwed it up because it could not get the trial started early enough. That is hard luck, and the way I feel about the matter is that the election is the only reason this extension has been requested.

If, as the Hon. Richard Jones maintains, the drug trial has been an overwhelming success, let us have reasons to substantiate that claim and let the trial end. Let us then move to either continuing with the facility on a full-time basis or closing it down. The honourable member for Strathfield in his second reading speech in the other place stated that the Government had made the decision to extend the trial based on advice from the New South Wales Expert Advisory Group on Drugs in February 2002 that:

… consideration be given to extending the trial of the medically supervised injecting centre to allow the government of the day to receive the report from the evaluation committee and sufficient time for consideration of the policy implications of all of the findings.

That is all very well, but that should have been factored into the timing of the trial when the terms of reference were being drawn up, as I said earlier. He further stated:

It is logical and commonsense to leave the centre operating while we wait for the independent evaluation of the trial. Such a course is also consistent with this Government's evidence-based approach to drug policy.

That is quite a good idea. It would be stupid to close down the centre and then possibly have to reopen it. The honourable member for Strathfield also said:

Closing the doors without waiting for the scientific evaluation results would be pre-emptive. The Government has funded a very comprehensive and independent evaluation.

I again make the point that that should have been anticipated at the commencement of the trial so that action could have been taken at the end of the trial for the evaluation to be promptly available. It is not good enough for the Government to then ask us for another 12 months so that it can evaluate those results. The argument of the honourable member for Strathfield is a good argument, but I do not think it is good enough.

The issue of the timing of the report will now make the injection room an election topic. The Government obviously does not want drugs as an election issue. I believe that is the only reason why the Government is seeking this extension. I cannot support the bill unless the Minister can produce more compelling reasons that have not yet been put forward. However, I doubt that he will be able to do so. A decision has not yet been made but I think a compelling decision would be required because this is just a stunt to keep drugs off the agenda next March. 2770 LEGISLATIVE COUNCIL 6 June 2002

The Hon. CHARLIE LYNN [9.12 p.m.]: Tonight I am probably speaking on behalf of those Country Labor members who are not able to speak because they have been bludgeoned into silence by the Government— in the true fashion of the New South Wales Right. If this were a conscience vote, Country Labor members would be voting with the Opposition. Only a small group of members would be left on the Government benches. There are some honourable lefties on the benches opposite. I regard the Hon. Ian Cohen as an honourable leftie, but I am not so sure about some other honourable members. I expect a bit of flak from Government members, but I am sure that they will silently nod in agreement with my comments and views on this topic. This bill was introduced by a slick and tricky Government. The legislation goes right back to the Drug Summit. It has its roots in the election campaign in 1999 when the Government made a pledge to hold the Drug Summit. Having won the election and having made that commitment, the Premier gave the job to his new Mr Fix It on the block—the Hon. John Della Bosca. The one thing we knew about the Hon. John Della Bosca is that he never went into a room without organising the numbers. He is very good at that. There is no doubt about the fact that his challenge was to ensure that the Drug Summit was a fair and representative forum. But it soon became evident that the numbers had been carefully stacked. My experience of the Drug Summit is that some good Samaritans who are working at the coalface and who are dealing with drug addicts, and so forth, were carefully excluded from the Drug Summit. I refer to Ron Barr who runs an organisation called Youth Insearch. For over 20 years Ron has been working with thousands of young children. The Hon. Ian Cohen: You had Watters. The Hon. CHARLIE LYNN: That is right, but he was a token figure. As I said, the numbers were carefully stacked. When Major Brian Watters spoke to the Drug Summit he was mocked. Government members would have to agree that the numbers were a bit tilted towards the Left. Major Brian Watters, a bloke who works at the coalface, was present at the Drug Summit to put forward his view, although his view was mocked. However, Ron Barr, who has worked for 20 years with thousands of young children, was not invited to attend. I have been to a number of Ron's camps. Every Easter I help to run leadership programs for these kids. These kids are the same kids that Government members have been talking about. They are kids who have come from disadvantaged families; they have been sexually abused, and they have gone on to drugs as an escape. Ron and these kids have been successfully working through the Youth Insearch program. They were available to come and tell their story, but they were not invited to the Drug Summit. Jeff Gambin is another fellow who was excluded from the Drug Summit. Jeff runs a foundation called Just Enough Faith. Every night for the last seven or eight years Jeff and his wife Alina and a dedicated team of helpers have fed between 200 and 300 homeless people behind St Mary's Cathedral. These genuine people of goodwill are working with these drug addicts every night of the week. Jeff is the last resort for many drug addicts, gambling addicts and so on. Once he finds out what their problem is he works with them on a diversionary program. He sometimes works through the Department of Community Services, Sydney City Mission or through the most appropriate agency to address the problems of these unfortunate people. He arranges accommodation and work for them or whatever he thinks is necessary to help them. Basically, at the end of the day Jeff gives hope to those who have lost everything—those who have fallen right through the cracks. I think Jeff has the formula right. Jeff has a 25-acre farm at Minto. Because a lot of these young people come from the bush Jeff has them working on the farm. They now have a sense of purpose. They are working on that farm today—honourable members can go any day of the week to have a look—growing vegetables and tending pigs and cattle. These young kids look after other animals on the farm. These reformed drug addicts grow food on that farm, it is then transported to Sydney in a van that is driven by another reformed heroin addict and then other reformed drug addicts cook and serve that food every night. As I said earlier, Jeff Gambin gives hope to those who have nothing. Last night I and a lot of other people attended a fund-raising function at the Waterfront Restaurant to support Jeff. When I was at that fundraising dinner last night and I saw some well-connected people—people representing corporations and so forth—once again it reinforced the view that there are lots of people of goodwill in the community who want to help others in need. However, that help has to be directed to the right source. That is what was happening last night. The guest speaker at the function last night was Jason—a hard core heroin addict for 14 years. There is hardly a crime that Jason has not committed. Jason said that there was honour amongst drug addicts, in that they did not steal from homes and so forth; they just stole from businesses. Jason told the audience that one night he found himself in Jeff's food queue. Jeff said to him, "I will give you one chance. I will send you to the farm, but there are three rules. The first rule is you do not lie. You must never lie to me because I will know when you are lying. The second rule is that you do not steal. The third 6 June 2002 LEGISLATIVE COUNCIL 2771 rule is if you break any of the previous rules we will go round to the back of the shed and sort it out the old- fashioned way." I am not advocating that sort of language, but that is the language that Jason understood. For the first time he had a bit of discipline and he knew what the guidelines and the boundaries were. Once he knew what they were—and he knew that he could not break them—he conformed.

He gave a wonderful talk last night about how Jeff Gambin had helped him to break his heroin habit. Addicts cannot come off drugs until they want to, and then there are many people of goodwill—including honourable members on both sides of the House—who will work with them to help them overcome their addiction. People such as Father Chris Riley spoke at the Drug Summit and offered their views about practical, alternative methods of handling the drug crisis. As a result the Hon. John Della Bosca pulled it off: he created the perception that the vote was close, but he had the numbers. The proposal was always going to be passed.

But then there was a hiccup because nobody wanted a shooting gallery in their area. We are supposed to represent the people, the majority of whom do not want it. So the Government is now faced with a problem. The State election is due in March next year and, if this issue is not hidden or put on the backburner, the Government will have to look the people of New South Wales in the eye and say, "A shooting gallery is coming to you very soon because that is our policy." So the Government has decided to extend the trial period—I may be cynical, but I suppose the results will not be available until sometime after March next year—

Reverend the Hon. Fred Nile: April.

The Hon. CHARLIE LYNN: The timing is almost too cute. Then there was a change of leadership in the Liberal Party and the Government saw the opportunity to try some wedge politics. It was a clever tactic employed by a very slick Government. It sought to create the impression that it was addressing the drug problem without upsetting the majority of people who oppose the establishment of shooting galleries, even if they are medically supervised. If I thought for one moment the Government was fair dinkum about trying to help people break the drug habit by providing support and rehabilitation services and facilities where they are needed, I would be the first to support it.

Before I turn to the various issues and arguments about the bill, I compliment the Liberal Leader, John Brogden, on the leadership that he has shown in his approach to this issue. The Government's attempt to test him as a leader as clearly backfired—in fact, it has demonstrated the stark contrast between Bob Carr and John Brogden. The Premier, in the longstanding tradition of the New South Wales Labor Right, has bludgeoned dissenters into submission behind closed doors and told them how to vote on this issue. In contrast, John Brogden has adopted an enlightened leadership approach by allowing a conscience vote on this issue and encouraging mutual respect for all opinions. I will not say whether those who hold a view different from mine are right or wrong. I will respect their view, and if the majority support them I will accept it. However, I will also ask them to consider the views and experiences of people on the other side of the argument. I think John Brogden has responded maturely and earned the respect of his Coalition team, which augurs well for us but not the Labor Party.

Earlier in the debate the Hon. Rick Colless argued that maintaining the family unit was fundamental to solving the drug problem in the long term. I listened with interest to honourable members' contributions to this debate and noted that those who have successfully raised children and guided them through puberty using a combination of love, compassion and discipline oppose the extension of this trial. They know that legally sanctioned shooting galleries send the wrong message to teenagers. Those who have not experienced the trauma and the challenge of safely guiding teenage children through this exciting but extremely vulnerable phase of their lives simply cannot understand that process. I suggest that the scourge of drugs is the greatest fear of modern parents.

Those who do not have teenage children who are subject to peer pressure hold different views. Such people rely on statistics, which, as we know, may be used to support any argument. Unfortunately, statistics have no emotional weight: they do not reveal the trauma of each drug tragedy. I believe the Hon. John Jobling made the most important contribution to this debate. I shall refer to it as I think some of his points bear repeating. He viewed objectively the need for the trial and its results so far. The Hon. Ian Cohen—whose opinion I respect—said in his opening remarks that the drug trial has been a "resounding success". If it has been such a success there is surely no need to extend it. I think that is a fair comment. The honourable member also revealed—this feeds the myth—that drug users overdosed on 250 occasions but there were no deaths. He moved quickly to emphasise that 250 lives had been saved, although we do not know whether that is so. That is an important issue. 2772 LEGISLATIVE COUNCIL 6 June 2002

The Hon. Ian Cohen: It doesn't matter if there were 25 or 250. Surely every life saved is a step in the right direction.

The Hon. CHARLIE LYNN: I agree. However, the Hon. John Jobling offered an objective analysis of the issue when he said that a trial such as this would normally have a scientific basis. As I said earlier, this is a politically motivated debate. The Government is seeking to extend the trial beyond the next election so that it will not have to confront and answer the hard questions that will be asked, particularly in vulnerable areas such as Grafton, Wellington and Dubbo. I note that in the other place the honourable member for Dubbo and the honourable member for Northern Tablelands, both of whom are Independents, opposed the trial. They have sniffed the political breeze. They know that if they support the extension of this trial it will make the front-page headlines and they will be out at the next election. They will be one-term members. I have examined their voting patterns and they generally support the Government, but on this occasion they have taken a strong stance and opposed the trial extension. The Hon. John Jobling said:

Scientific trials, which involve double blind tests and other issues, are normally conducted at more than one location.

That is a very good point. He continued:

As we are restricted to only one injecting room it is difficult to determine the validity of such a trial.

He went on:

The conundrum with which we are faced is how to determine the validity of such a trial.

He then referred to the fact that the Federal Government has had a great deal of success preventing the importation of illegal drugs. Other honourable members have referred to the supposed heroin drought and asked: Are fewer people injecting heroin because the drug trial is working or because heroin is not available? We do not know the answer to that question, and the injecting room trial will not answer it. The Hon. John Jobling went on to say:

Most people would agree that it is desirable to assist drug users and those who have descended into this hell to regain their lives.

I think all members of this House would agree with that statement. The honourable member continued:

However, a large amount of money has to be spent on rehabilitation and support. If drug users who have gone through detoxification find themselves with nowhere to live, no support and no friends they will inevitably regress. We must urgently address that issue.

That is going to cost a lot of money. If we are dinkum about addressing the problem, we have to commit to that. We will not have the Treasurer bleating about the surpluses he has and the amount of money he has squirrelled away in hollow logs leading up to the election. If the Treasurer were dinkum about this problem he would be announcing drug rehabilitation centres in major regional centres throughout New South Wales and in places like Cabramatta which have a drug problem. Later in his contribution the Hon. John Jobling said:

It has been suggested that there were some 446 referrals for drug treatment. However, we need to look at the form of drug treatment administered, whether it was for the purpose of detoxification, whether the treatment involved transfer to a methadone program, how long the treatment was administered, how many people succeeded in completing the treatment program, how many have continued to remain drug free and how many have regressed to their former state. It is very difficult to obtain objective statistics that will stand up to scientific analysis.

That should be what a trial is all about. The Hon. John Jobling has hit the nail on the head. Those questions need to be answered. The honourable member continued:

It has been suggested that one in 31 visits results in a referral to other services, and that this suggests the service is meeting its objective and acting as an interface to drug treatment. I would like to think that that is so, but ultimately what are the outcomes? It is useful to compare the New South Wales figures with those of other States that do not have medically supervised injecting rooms.

This is the key to the argument of the Hon. John Jobling. He has proved that there is no need to have an extension of the trial. The honourable member went on to say:

In Victoria, which to my knowledge does not have a medically supervised injecting room, overdose deaths dropped from 359 in 1999 to 49 in 2001, and to just 11 thus far this year.

In Western Australia, which also does not have a medically supervised injecting room, overdose deaths dropped from 83 in 2000 to 36 in 2001, and to just three thus far this year. 6 June 2002 LEGISLATIVE COUNCIL 2773

The Hon. John Jobling referred to an admission by the Government that drug overdose deaths in Cabramatta have decreased as a result of an increasingly effective policing program and the Federal Government's success in preventing the importation of drugs. The honourable member quoted from a report entitled "Cabramatta—A Report on Progress", an ActNow publication produced by the New South Wales Government in April 2002, which stated that the number of needles dispensed in Cabramatta dropped from 195,420 in October-December 2000 to 46,140 in the equivalent period for 2001. The Hon. John Jobling said it would be interesting to know why that happened in Cabramatta, which does not have a supervised injecting room. The report went on to state that the number of needles dispensed from the Drug Intervention Service Cabramatta van dropped from 40,239 in January 2001 to 9,991 in January 2002. The report further stated:

There has been an overall decrease in the number of drug related deaths. In the six months after 1 July 2001, there were five drug related deaths in the Cabramatta area compared to 24 deaths in the corresponding period for 2000.

The Hon. John Jobling said:

After nothing more than a change in policing and attitude, the number of overdose fatalities fell from 24 to 5. Again, one wonders why.

He again referred to the report, which stated:

The number of ambulance call-outs in Cabramatta to suspected overdose incidents has fallen dramatically. There were 15 call- outs in the six months after 1 July 2001 compared to 385 call-outs in the corresponding period for 2000.

I compliment the Hon. John Jobling on providing that information. That information alone exposes the Government's hypocrisy in seeking to extend the drug trial period. Whether we use programs run by Ron Barr, Jeff Gambin or Father Chris Riley, somewhere we have to draw the line and say, "This is as far as we can go in this direction." A few years ago we started a needle exchange program—

The Hon. Ian Cohen: And it worked. It saved hundreds, if not thousands, of lives.

The Hon. CHARLIE LYNN: That is right, but it was a needle exchange program. The DEPUTY-PRESIDENT (The Hon. Tony Kelly): Order! I acknowledge the presence in the President's Gallery of the former Mayor of Young, Tony Hewson. I welcome him to the Parliament. The Hon. CHARLIE LYNN: I am sure the former Mayor of Young would not want to see a heroin injecting room in Young. The Hon. Jennifer Gardiner: It's Country Labor policy. The Hon. CHARLIE LYNN: As the Hon. Jennifer Gardiner interjects, it is Country Labor policy. Therefore it is a matter that should concern the former Mayor of Young. As I said, the focus changed from being a needle exchange program to a needle issue program, so we just kept on giving. With the latest program we provide drug users with a clinic close to where they live. Many members have said that crime is not their fault. Whose fault is it? In many cases we are getting the blame for their crimes. I take objection to that. I do not hold myself responsible for another person's actions in committing a crime, whether it be robbing a house or stealing a car. The Hon. Ian Cohen: You don't understand what's going on in society, do you? The Hon. CHARLIE LYNN: I do understand what is going on in society. I have had my cars pinched; I have had my houses robbed—I know what it feels like to be a victim of crime. But it is not my fault that they break into my house. People who engage in such behaviour have lost their self-esteem, they do not have respect for themselves, they do not have respect for their families, they do not have respect for their fellow citizens, they do not have respect for the community—they do not have respect for anything. We simply have to draw a line in the sand and say to them, "Look, you just can't go any further than this. If you continue with such behaviour, we have to put you away." With regard to harm minimisation, the Opposition believes we are sending out the wrong message to young people. In my view there is no such thing as harm minimisation. We need to send out the message that drugs will destroy a couple of things. After a quick hit and a good feeling, drugs will destroy a person's quality of life and eventually they will destroy lives. Drugs are illegal, and they cause harm. They cause harm to drug users, their families, their loved ones, the people who care about them and the community. I believe that members of Parliament have a responsibility for those who fall by the wayside. 2774 LEGISLATIVE COUNCIL 6 June 2002

We have a responsibility for those who have not had the advantage of having a family to provide love, compassion and discipline during their formative years. We need to provide support for those who are disruptive or drop out of school. We have a Department of Community Services [DOCS] system, but that system is tremendously overloaded and simply cannot cope with the demands of dysfunctional families and young people with problems. We have many community organisations that are doing wonderful work, but they are also working beyond their limits. They include the Salvation Army, Father Chris Riley, Youth Insearch, the Just Enough Faith Foundation, the Wesley Mission, Sydney City Mission, and so on. DOCS cannot even cope with the phone calls to refer people to those organisations. So again these kids feel betrayed; they feel cheated. They have no-one to go to for help. We are failing them at a government level in the area of the Department of Community Services, and we have to address that issue. Figures show that after 18 months of operation the costs of the trial thus far have been $4.3 million, with indirect costs of a further $1.3 million, and confiscated proceeds of crime $2.4 million—a total of $8 million. That is $8 million from the taxpayers of New South Wales. It is not $5.6 million from the taxpayers and $2.4 million from the criminals, because all that has been taken from the criminals is the money the criminals took from the taxpayers in the first place. It is taxpayers' money. So it has cost $8 million for a trial that has not been able to answer the questions raised by the Hon. John Jobling because it has not been an objective, scientific analysis. As one of the speakers in the other place pointed out, the shooting gallery in Kings Cross is only catering for a very small number of people—3 per cent of drug users. We have spent $8 million for 3 per cent of drug users and we still do not know, after 18 months, whether it has been effective. That in itself is an argument for putting a stop to the trial. Let us have a trial based on terms of reference that the Hon. John Jobling could draw up, because this trial ignores 97 per cent of drug users. There are many facilities in the inner city for people who go off the rails, but there are not as many facilities in rural and regional areas. Teenagers and drug addicts in country areas have a major problem because they do not have the services. They do not have the services in Dubbo, Grafton, Wagga Wagga, Orange or Bathurst. If the Government is dinkum about a trial and what it believes will fix the problem, it has an obligation to establish shooting galleries in each of those rural and regional areas. If members of Country Labor think that is very important they should be arguing for the resources to establish those shooting galleries. But they will not do that because they know that, if they do, the people they represent will reject them and they will be out of a job. We have spoken about the financial cost, but we cannot measure the emotional cost of drug abuse. We probably cannot estimate the health cost or the law and order cost, but there are many other costs involved besides the $8 million in cash that has been directed to 3 per cent of drug users in one small area of this city. I referred earlier to the statement by the Hon. Rick Colless last night that we need to look at long-term solutions to the drug problem; we need to go back to that fundamental unit that has stood the test of time—the family unit and family support. If we get the family right we will go a long way towards solving the problem, because successful parenting is a combination of love, compassion and discipline. It is a delicate balance between a child's rights and a child's responsibilities. Any parent who has been through it will understand that it is a major challenge. If we can provide a framework for parents and teachers to get the balance right, we will be successful in the long term. In the meantime we have a responsibility to send a hard-line message that we have zero tolerance to drugs and get rid of all this harm minimisation and so forth, because it is sends out the wrong message. I believe we should have an uncompromising hard-line attitude to drug dealers and drug traffickers: those who deal in death, who take away the lives of our young ones. There should be prison without privilege for those who do not care, because you cannot help anybody in this game until they want to help themselves. The great thing about this great country is that when people want to help themselves it will provide that support, whether it is Rotary, Lions, Apex, Sydney City Mission, Wesley Mission, Father Chris Riley— The Hon. JOHN DELLA BOSCA: What do you do when they do not want to help themselves? The Hon. CHARLIE LYNN: They cannot be helped until they want to help themselves. So if the Government wants to help them it will find proper rehabilitation centres that have both the services and the support to help them break their drug habit. Unless the Government is prepared to commit the funds to rehabilitation and to service and support in areas around the city of Sydney as well as regional and rural New South Wales it is denying the problem; it is putting it off for another day. This trial is simply a slick trick that the Government has played, but it has backfired because the Government is trying to push it beyond the next election. The Government took the opportunity to test our leader, but he stuck by what he believes in. One cannot ask for any more than that. 6 June 2002 LEGISLATIVE COUNCIL 2775

The Hon. Ian Cohen is not in the Chamber. Although he and I would probably disagree on most things, I have the highest respect for him because when he says he is going to commit to something he stands by his word. He cannot be badgered, he cannot be bribed, because he is a very highly principled member of this House. The Leader of the Opposition has just proved to be the same, because he knew he would have to take some flak. He knew that members of the Government would be scampering around the press gallery this morning like rats, saying, "There's a problem. They're having a fight". Members of the Opposition say, "John, fantastic. We respect your view; you respect ours."

But not Government members; they are going to toe the party line. They are not representing the community, they are representing their superannuation policy. They will not buck the Premier. They are falling into the trap; they have been around too long. They are governing now for the sake of governing. The Government has no vision; it is just putting things on the back burner until it gets over the next hump so it can create a record. Members of the Government have had to subjugate their own values and principles. The people of New South Wales will wake up to this.

The Hon. Jan Burnswoods: I cannot work out what he is saying. He has been going for an hour and he hasn't made any sense yet.

The Hon. CHARLIE LYNN: If I have not made sense to the Hon. Jan Burnswoods this has been a very successful debate on my part because I would hate to walk through her scrambled brain and try to make sense to her. If members of Country Labor are going to oppose the extension of the trial they should put their views on the record: that they support heroin injecting rooms in places like Wellington. They have been sprung, and I believe the result will show at the election in March.

The Hon. JOHN RYAN [9.48 p.m.]: I hate drugs—I do not tolerate drug taking, I do not support drug taking—but I support this trial. Those two views are not mutually exclusive. The operation of the injecting centre at Kings Cross is an attempt to wind back drug taking, it does not promote drug taking. It is doing something that is particularly difficult because in trying to get people to stop taking drugs and in dealing with drug abuse we are seeking to do something that is very difficult: we are seeking to change human nature, human nature that is influenced by chemical addiction. People such as Reverend the Hon. Fred Nile would only need to read the Bible to discover how difficult it is to change human nature. I can do no better than describe the dilemma that was outlined by the apostle Paul in the seventh chapter of Romans, when he was describing something operating within himself. He said:

I don't understand myself at all, for I really want to do what is right, but I don't do it. Instead, I do the very thing I hate.

If that was the description of a saint like the apostle Paul—and I recognise there is some debate about whether Paul was describing himself as he then was or as he was previously—it is an excellent illustration of the human dilemma that quite often faces us all. We aspire to do things that we cannot do; and we frequently find ourselves engaging in things we absolutely hate. That is amplified all the more for people who use drugs. Many people who use drugs are not autonomous, moral individuals making some sort of logical decision to use or not to use heroin—many are from chaotic backgrounds, and some are mentally ill and are self-medicating to keep a mental illness at bay. It is a foolish thing to do, it is not the right thing to do, but it is what many people who take drugs do. They start that way and end up addicted. Others are trying to blot out the experience of abuse. They find that difficult. I accept what they are doing is foolish and is not the best solution, but many do it for those reasons. Although they are doing something foolish, and even something I see as morally wrong, I do not see their dying as a suitable outcome. There is some responsibility on those of us who do not suffer from the same weakness but who understand their weakness to give them the opportunity to live and to be redeemed, to use the Christian expression.

Many honourable members have said that all we need to do is put these people on some sort of forced detoxification program or in a drug treatment program. In part that is true—but if only it were that easy. Many of these people do not have the wherewithal and organisation in their lives to move through detoxification and rehabilitation. Many people who are moving through rehabilitation and treatment continue to use drugs. It is not like giving up smoking: there is a day when they are taking heroin and then a day when they are not. As people move through rehabilitation they tend to reach rock bottom, as was adequately described by another honourable member, and then they get sick and tired of it and give it up for a period. Sometimes they relapse and use it again. If they are lucky they reach a position where they no longer use the drug again. For many that takes years. It is easy to say that all we need is detoxification and rehabilitation. It is not that easy. Reverend the Hon. Fred Nile: It works in Sweden. 2776 LEGISLATIVE COUNCIL 6 June 2002

The Hon. JOHN RYAN: I do not know what works in Sweden. The people who advise us in the New South Wales Parliament and who see plenty of people who take drugs—even Dr Don Weatherburn, for example, who is a well-accomplished researcher and who has a slightly more conservative view than many of us—acknowledge that it takes time for people to give up their drug use. It does not happen overnight and it is not simple. We are dealing with human nature complicated further by a chemical addiction. We do not need only one strategy—that will not work. We need a variety of strategies, some of which should work together. The best thing is to get a number of strategies working together.

I am not an ideologue on this issue. I am intensely pragmatic. We probably need to try a number of things to establish what works. Things that work for some drug addicts do not work for others. We need a range of options, and sometimes we will need to use a few. For example, while I support the trial, I do not take the view that law enforcement does not have a role to play. The case for law enforcement is well put in a research paper released recently by the Bureau of Crime Statistics and Research entitled "Law Enforcement's Role in a Harm Reduction Regime". The writer of the brochure says that useful things happen with law enforcement. The brochure states:

Too often different types of drug control programs are viewed as competing alternatives.

We have seen examples of that in this debate. It continues:

But such thinking is artificially constrained. In some cases law enforcement can enhance the effectiveness of interventions customarily pursued in order to achieve harm reduction ends. In drug policy, just as in life generally, the carrot and the stick together may be preferred to either alone.

We need a range of alternatives. It is not as if this is an either/or issue. We will have to try many things, some of which will be radical and different. We should continue with those that work; we should discard those that do not. Before this trial commenced I was totally opposed to it. However, I visited Kings Cross and I talked to some of the people who attended the Drug Summit. I came to the conclusion that Kings Cross was, by any stretch of the imagination, a unique place. It is unique by virtue of the population density—statistics show that Kings Cross is one of the most densely populated places in the world. A huge number of people live in the square kilometre that makes up Kings Cross. Kings Cross is well known for its bohemian culture and population. It is a hive for tourists and it operates 24 hours a day. No matter how many police have been placed in Kings Cross, police enforcement alone has been totally ineffective in removing the drug menace. Anyone who visits Kings Cross, no matter what view they hold on this issue, will come to the conclusion that it is a desperately sad place in some respects, particularly with regard to drug taking and drug abuse. We need to strive for a solution. In my view, this solution is a neat one for Kings Cross. The drug injecting room at Kings Cross is different from what operates overseas. One gets the impression that many similar facilities overseas are almost like a drug market. Some of the people who run them seem to have a philosophical view that drug taking ought to be encouraged or at least not discouraged. As I perceive it, the people who operate the injecting room have a philosophy that drug taking should be discouraged but they recognise that that is all they can do. By taking drugs people have broken the law, but many have not broken the law to a sufficient extent to become part of the Drug Court program. To qualify for a position in that highly sought after program a person has to qualify to be sent to gaol. Some people would not qualify. The injecting room is meeting the needs of people whose major crime is drug use. Few people are sent to gaol for a drug use offence alone. This appears to be a neat solution for that suburb, but I do not take the view that this is some sort of civil rights program that needs to be distributed to every country town and suburb. It may be a uniquely Kings Cross solution. Reverend the Hon. Fred Nile: What is the point of the trial? The Hon. JOHN RYAN: The point of the trial is to see whether it is not possible to do two things. It is reasonably simple. First, there was an observable large number of drug-related overdoses in the street and in places in close proximity to Kings Cross. Second, it improves the occupational health and safety of ambulance officers and other medical attendants in that they are able to access people who have experienced drug overdoses in a safe and clean environment. We have talked about the addicts who have been rescued in the injecting room, but let us wonder for a moment how many of those sterling people who make up our ambulance— Reverend the Hon. Fred Nile: You have missed the whole point of the trial. The Hon. JOHN RYAN: I have not missed the point at all. One of the people who convinced me to change my mind was an ambulance officer. He said that they prefer to be able to access drug addicts who have 6 June 2002 LEGISLATIVE COUNCIL 2777 overdosed in a hygienic environment. The occupational health and safety of people has been preserved as a result of addicts being able to access the injecting room. The other purpose of the injecting room was to see whether it was possible to clean up drug activity in Kings Cross, take it out of the streets and back lanes and take some of the people into a place where they might see a health professional occasionally and be encouraged into treatment. They were its objectives. I do not think anybody—

Reverend the Hon. Fred Nile: If it works, it will be duplicated in other centres. That was the whole point of it.

The Hon. JOHN RYAN: I do not see that as absolutely necessary. It might be something which just works for Kings Cross alone. It does not have to be placed anywhere else. The trial in Kings Cross was disrupted by a court case and a change in the people who were going to manage it. That is well-known. The trial has not been going for the period it should have been. I accept that there may well be a bit of politics in the decision to move the time of the trial past the next State election. In all integrity, it is probably a good thing to move it on until a later time when it can be debated not in the heated cauldron of the State election—albeit that it may not necessarily be to the political advantage of the Opposition for that to occur.

The other question we might reasonably address is whether the trial is working. That has been debated at length. Its elements were quite well canvassed in many respects in the address given by the Hon. John Jobling. However, I would differ with his interpretation of the data. I do not think is possible to say that if there had not been medical intervention there would not have been one, two, three or half a dozen deaths from the 250 overdoses. It is statistically highly unlikely that there would have been that high level of overdose without some level of deaths. As I understand it, there are no recorded deaths due to overdose in Kings Cross.

Reverend the Hon. Fred Nile: We do not know.

The Hon. JOHN RYAN: If there are some that we do not know about it is certainly not a high number. If there are some that the Coroner has not reported, it would not be more than half a dozen. I have no doubt there would have been more than half a dozen deaths if 250 people had overdosed on the streets of Kings Cross.

Reverend the Hon. Fred Nile: They would not have overdosed if there was not an injecting room.

The Hon. JOHN RYAN: I do not think that is true at all.

Reverend the Hon. Fred Nile: It is. It is proved. Look at Western Australia and Cabramatta.

The Hon. JOHN RYAN: You have had an opportunity to speak in this debate but I do not think you showed that there was a nexus between the drug injecting room and these people overdosing. They overdosed because they had access to heroin, and they would have had access to heroin whether or not the injecting room was there. At least they were able to get medical attention, or be supervised while they were comatose to see whether they needed it.

Reverend the Hon. Fred Nile: Where is the evidence for that?

The Hon. JOHN RYAN: One does not need evidence; that is what occurred. Second, there are people being referred to treatment. I accept entirely the arguments that the Hon. John Jobling put. There is a need for further research on what happens to those people once they are referred to treatment. But I have no doubt that more people were referred to treatment in the injecting room than were referred to treatment from the streets of Kings Cross. I am sure that no people were referred to treatment from the streets of Kings Cross. Some people were at least referred to treatment in the injecting room. There is an observable difference in the level of people using heroin in the streets—not dealing with heroin but certainly using heroin in the streets. Business people in Kings Cross feel that their businesses are safer. Tourists and other customers are not observing drug activity as they previously had done. I do not think that is something to which the public needs to be exposed. If the heroin injecting room is doing something to at least protect the public from viewing that sort of disgraceful exhibition it is doing a good thing.

I fully accept that the results to date, which are hopeful signs—and I would not interpret them as any more than that—have been affected by the recent heroin drought. No sensible person would say otherwise. Nevertheless, they are hopeful signs. If the trial continues a little longer we will be in a position to see whether 2778 LEGISLATIVE COUNCIL 6 June 2002 something useful emerges. But we do know some things. I remember when we last debated this facility. We were told that police would not make arrests in Kings Cross. That is wrong; they make plenty of arrests for drugs in Kings Cross. We were told that Kings Cross would become a greater honeypot and there would be lots of young, underage people flocking to the injecting room in order to buy drugs and use them there. That has not happened. There is no evidence for that and there is no evidence that the injecting room itself is leading more people to take up drugs—and no-one has even made that claim. So it appears to have done little harm. It may not have done none—I would not make that claim; that would be far too absolute—but it appears to have done little harm and there are hopeful signs that it has been successful. Given that, it is worthwhile taking the trial a little further.

I share the view that the expense has been phenomenal. Given that the resources available to the people of New South Wales are scarce, we have to seriously consider whether we would save more lives by spending the $8 million elsewhere. That is a fair question. I do not approach this as an ideologue; I approach it as an opportunity to find some facts, to test the possibilities and to see whether it works. I am not advocating the heroin injecting room; I am saying that this appears to be a sensible opportunity to observe whether it works. I have, one might say, an agnostic view. I want to see whether it works. I want it to be given a fair go.

Reverend the Hon. Fred Nile: It does not sound like that.

The Hon. JOHN RYAN: I do not know how I sound otherwise. I think I have put the case for and against.

Reverend the Hon. Fred Nile: You sound like a most passionate supporter of it.

The Hon. JOHN RYAN: I do not think that is the case.

Reverend the Hon. Fred Nile: It is.

The Hon. JOHN RYAN: The truth is that I am not a passionate supporter of it. I regret that it is there. I do not want people to use it. I look forward to the day when it is closed down because it is unnecessary. But it is a worthwhile trial. I support it and will support it with my vote. I thank my Leader and my other colleagues in the Opposition who have given me the opportunity to exercise my vote in this fashion on this occasion. I respect the fact that others have a different point of view. I understand the other side of the argument, and it is an arguable case. But at the moment I have a different view. Nevertheless, I respect those who have a different one. But today, given this legislation, I am happy to support it with my vote to see the trial go for a little longer. Whilst it goes a little longer, I wish the staff and the people who support it well in the difficult job that they do.

Ms LEE RHIANNON [10.07 p.m.]: I support the comments of my colleague Mr Ian Cohen and other members who support the Drug Summit Legislative Response Amendment (Trial Period Extension) Bill. I congratulate the Government on its decision to extend the trial period by 12 months to enable the medically supervised injecting room to remain open until the final report of the independent evaluation committee is delivered in April next year. With other crossbench colleagues, I had the opportunity recently to view the operations of the Kings Cross safe injecting room. What we saw was a highly professional, dignified and personable operation. The staff are doing outstanding work and have been able to bring these qualities together. What must be pleasing to the Government and all those who have the humanitarian approach to drug use is that the safe injecting room is winning more supporters with every day that goes by.

There are many people outside this Parliament who have done so much to bring this trial to fruition. I think that during this time of assessment it is important that we remember the Wayside Chapel safe injecting room trial that a number of courageous people organised prior to the Drug Summit. Reverend Ray Richmond, Dr Alex Wodak, Ms Ann Symonds and Mr Tony Trimingham are some of the courageous people who helped the decision-makers of this State to take the necessary decision to commence a trial of a safe injecting room at Kings Cross. I also remember the process of the Drug Summit. At the time I had been a member for only a few short weeks and I felt fortunate to be part of the process. It brought together parliamentarians, drug users, families of drug users, police, researchers and government officials in a fascinating experiment. But it was more than an experiment, because really solid outcomes were produced. For once we could talk to each other rather than through the media.

Many non-government organisations have undertaken outstanding work to support this trial. I particularly congratulate the AIDS Council of NSW and the NSW Users and AIDS Association for their work in 6 June 2002 LEGISLATIVE COUNCIL 2779 advocating for a trial of a medically supervised injecting room. While this proposal came out of the Drug Summit, it was only the diverse community campaign that ushered it into existence. These organisations took the clear message to the community that a medically supervised injecting facility is effective in reducing overdose deaths. They and other advocates put the clear case that such a centre would save lives by reducing overdose deaths, provide opportunities for referral to treatment services, facilitate safe needle disposal, and support efforts to prevent the spread of HIV and hepatitis C. This is exactly what has been achieved. Safe injecting centres at Kings Cross and elsewhere are urgently needed.

Information provided by the New South Wales Health Department indicates that about 100,000 people in Australia inject drugs regularly, and that the number of people who inject occasionally is between 180,000 and 230,000. These are sobering figures that highlight our responsibility as members of Parliament to take all steps necessary to minimise the harm associated with drug taking. While the safe injecting room is to be welcomed, it is unfortunate that the Government is not consistent in applying a policy of compassion to all drug users. I note the remarks of the previous speaker, who said that many strategies were needed. If I heard correctly, the Special Minister of State said, "Hear. Hear." It is a shame that that does not play out into the reality of what is happening on the streets, in the suburbs, and in many homes across New South Wales, because at the moment the Government's knee-jerk response to media shock jocks and obsession with aggressive policing methods run counter to this trial.

The Hon. John Della Bosca: We supported you on workers compensation.

Ms LEE RHIANNON: That is an interesting comment. And look at how that played out! There is an increasing body of research that shows that the crackdown on heroin markets can have counterproductive effects. They include serious risks to public health, threats to community safety as a result of geographic, social and substance displacement, and harm to police-community relations. While we agree with the extension of the trial, I look forward to the conclusion of the trial as everything associated with its work to date suggests that such facilities are needed in many other centres. I was a member of the committee that conducted an inquiry into police resources in Cabramatta, and my work on that inquiry reinforced to me the need for a health and safety approach to drug use and the need for a range of strategies. Dr Andrew Wilson, the New South Wales Child Health Officer, told the committee conducting that inquiry that:

… there is a very significant gap at present between the level of service we are able to provide and the level of service we want to provide in Cabramatta.

I am not saying that Dr Wilson was calling for a safe injecting room, but his comments reflect the need for a comprehensive, non-police approach to heroin use. The Greens believe it is vital that this trial examine how a person's socioeconomic background impacts on their decision to access rehabilitation services. A study by Dr Weatherburn in a New South Wales Bureau of Crime Statistics and Research paper highlighted that ethnicity affects entry to treatment. Asian heroin users have been found to be much less likely to seek assistance for their drug use. Reverend the Hon. Fred Nile said today that safe injecting rooms send the wrong message to young people. Once again, he has shown how out of touch he is.

This safe injecting facility sends the clear message that society cares. It tells drug users that they are not on their own, that there is support, care and treatment if they want to take that step. What sends the wrong message to young people experimenting with drugs and to longer-term users is a government that puts teams of police and sniffer dogs onto the streets for publicity stunts that have more to do with photo opportunities and catching a few recreational drug users than with developing a humane approach to drug use. Rather than spending taxpayers' money on programs that to some extent undo the advances of a safe injecting room, the Government should look at being consistent in adopting a harm minimisation approach in all aspects of its drug programs.

Current law enforcement strategies for dealing with street-level drug markets run the risk of causing significant damage to public health, community safety, and relations between the police and the public. While the Greens congratulate the Government on this trial, we would be remiss if we did not highlight the double standards of the Labor Party Government on drug policy. The Carr Labor Government's "tough on drugs" approach ends up being tough on users. I remember that in one recent highly publicised raid the Premier seemed to be embarrassed by the conduct of the raid and said that the emphasis must be on the dealers. But as some police were reported as saying, "Sniffer dogs smell drugs, not job descriptions."

The behaviour of dog squad police who go after cannabis and pill users appears to be impacting on drug behaviour. This is relevant to heroin use in New South Wales. Research by community and justice groups 2780 LEGISLATIVE COUNCIL 6 June 2002 suggests that people in areas frequented by sniffer dog police squads are to some extent shifting to drugs that are harder to detect by sniffer dogs. One wonders whether these police activities will push people to start using heroin. Reports I have received suggest that drug users are learning how they can live with sniffer dog raids and still use drugs. Cannabis and pill users out for the night are not unlike members in this Chamber, who from my observation take alcohol as their drug of choice. On the whole, these people do not take all their drugs at one time on any one evening, but will go out with a few joints or a few pills for later consumption.

Now they know that the dog squad is on the prowl, there is a tendency to consume an evening's drugs in one session. How would honourable members feel if they had to down all their schooners or nips of spirits before they went out of a night? That behaviour is of real concern. Any government action that brings about harmful behaviour needs to be weeded out; otherwise the benefits of safe injecting rooms will have less impact. The impact of policing should be to minimise the social harm of drug use. However, the impact of sniffer dog raids is the opposite and clearly runs counter to the intent of the safe injecting room trial.

The Government's drug policy is also highly inconsistent with respect to needle exchange schemes, which play an important role in reducing the transmission of HIV and other blood-borne diseases. These schemes are recognised internationally. But beware if a shock jock chooses to beat up on a needle exchange program: overnight the program can be pulled. This happened recently with the needle exchange scheme in Ryde; a few minutes of radio criticism and the Government went weak at the knees. The safe injecting room trial and needle exchange schemes are the way of the future. They further distance us from the prohibition policy that once dominated our approach to drug consumption. Other parliaments are grappling with this issue.

I refer members to a report by the British House of Commons Home Affairs Committee, which was released last month. The committee looked at Britain's drug laws and, interestingly, it found that for most young people drug abuse is a passing phase that rarely results in long-term harm. I will repeat that because it is an important comment that members in this place who are sincerely worried about drug abuse among young people need to take on board. The committee found that drug abuse is a passing phase that rarely results in long-term harm. Members need to take this comment on board in order to keep our response to drug taking in perspective.

I wonder whether some members have considered that the interventions they advocate could push people into increasing their drug intake and in engaging in harmful and unhealthy practices. I return to the report of the British members of Parliament. They want to see the creation of a new offence of supply for gain so that the penalties imposed by the courts reflect the difference between the large-scale commercial dealers and social dealing among friends. Maybe this is what the Premier was trying to say when he made his embarrassing attempt to dictate to police how they should use dogs to arrest only certain users. With regard to heroin, the House of Commons report called for a radical extension of the National Health Scheme heroin prescribing system in Britain in order to undercut the illegal market.

The members of Parliament also called for the immediate provision of safe injecting rooms. We believe that there is much that the New South Wales Government could learn from the House of Commons study. The Daily Telegraph columnist Piers Akerman could also learn much from that study. Unfortunately Mr Akerman is on a vendetta against anyone who is working to handle drug use as a social and health issue. He takes a police- and-prison approach to drug taking. Hypocrisy is his stock in trade. Fortunately David Marr has taken him on and on Media Watch put Mr Akerman under the microscope; and like any squib he squirmed when he was put under that focus. Last Thursday Mr Akerman wrote:

Damned lies and a study of junkies The Carr government has shamelessly extended the licence of its Kings Cross shooting gallery and sidelined new-chum Opposition Leader John Brogden who locked his supporters into a disgracefully uninformed conscience vote on the issue.

David Marr responded:

Piers made a big goose of himself here because that vote had not and has still not been taken by the NSW parliament. Akerman's loose approach with the facts continued in that article. He wrote:

In Victoria where the Government has not given junkies a green light, overdose deaths have dropped from 359 in 1999, to 49 in 2001, to just eleven at the most recent count this year. On last Monday's Media Watch David Marr said:

What Piers should have told his readers is that that terrific outcome is the result of a heroin drought. Problem is the Kings Cross injecting room still had to deal with 250 overdoses—and not one life was lost. 6 June 2002 LEGISLATIVE COUNCIL 2781

Mr Akerman responded:

That is a meaningless statistic too, as ambulances whisked the seven people who needed major intervention to hospital for treatment.

But, as we know, never let truth get in the way of a good story. Mr Marr commented:

Not as a matter of fact, Piers. The medical director of the Supervised Injecting Centre, Dr Ingrid van Beek, assured Media Watch those seven were taken to hospital.

Dr van Beek said:

… just for observation. They were completely stable before we rang the ambulances and did not need further treatment, just to be watched.

Mr Marr said:

I'm sorry to say, Dr van Beek, Piers is not listening. You see he is convinced that all the scientists, doctors and statisticians who support the injecting room staying open have just been fooled by junkies.

Mr Akerman said:

By any standards, the methodology for the so called evaluation was laughable, the bulk of the data on the centre's activities coming from the junkies themselves who are, as is widely recognised, almost pathologically incapable of telling the truth.

Mr Akerman cannot leave it alone. In today's Daily Telegraph he continued his attack on drug users and anyone who tries to advocate for a more humane approach. Extending his attacks to the gay community he displays how desperate he is to find arguments to back up his flawed viewpoint. A hypocritical and hysterical stance is becoming more and more irrelevant, but it does need to be answered. I congratulate David Marr on his response. We need a social and health approach to drug taking. The trial of the Kings Cross safe injecting room is a small and welcome shift in emphasis from enforcement to harm reduction. The Greens urge the Government to ensure that all its drug policies work in harmony to achieve harm minimisation.

The Hon. JOHN DELLA BOSCA (Special Minister of State, Minister for Industrial Relations, Assistant Treasurer, Minister Assisting the Premier on Public Sector Management, and Minister Assisting the Premier for the Central Coast) [10.24 p.m.], in reply: I thank all honourable members for their contributions to this debate. As the hour is late and the bill has been dealt with by the Opposition benches on the basis of a conscience vote, I remind the House that the timetable for the completion of the evaluation report in 2003 was not set by the Government, as some speakers assumed during their speeches. The independent evaluation committee, which is responsible for collecting and analysing the data associated with the evaluation, advised the Government that that is the necessary timetable. The Government did not set the timetable, and no contrary conclusions should be drawn.

I advise the Hon. Lee Rhiannon that half a billion dollars has been spent over the past four years on drug programs. I remind Reverend the Hon. Fred Nile that an overwhelming proportion of the $176 million in extra funding from the Drug Summit, $113 million, is for facilities that could be described as treatment or rehabilitation facilities similar to the ones he called for. By implication the Hon. Lee Rhiannon suggested that that was an appropriate way to deal with the problem. It is interesting that we have that level of consensus in this contentious debate. I remind members that the Government has opened three new detoxification centres, which means 3,000 additional detoxifications a year, and has provided an additional 62 residential rehabilitation beds, which means an additional 523 people per year are treated and potentially have their lives turned around. I appreciate the comments of the Hon. Dr Brian Pezzutti, and I remind honourable members that the Government has funded, jointly with the Commonwealth, a further 70 dedicated rehabilitation treatment beds to support the Magistrates Early Referral into Treatment [MERIT] Scheme. That vital crime intervention program catches people early in the crime-drug lifestyle and assists them to try to get them off drugs and out of the crime cycle. The Government has funded more than 2,800 extra places for methadone and buprenorphine treatment and expanded home detoxification and outpatient services which will treat an extra 2,000 people. We are talking about a huge expansion in the Government's capacity to deal with this terrible problem. The Drug Summit response bill deals with only a very small part of the problem. A number of honourable members, including Opposition members, have the idea that we are not discussing a comprehensive approach. 2782 LEGISLATIVE COUNCIL 6 June 2002

The Drug Summit and all subsequent policy statements have been about securing strategies for different communities to deal with the problems in co-operation with police, health services and the State Government in their own way. The Kings Cross community has its own set of problems, a lot of heritage, and a lot of reasons why that is so. The Government has provided facilities for it to deal with the problem. Part of that strategy, though only part, is the medically supervised injecting room trial. The Government is cautious about that, we do not endorse it, and a vote for this bill does not suggest endorsement of the trial. It is important to place on the parliamentary record that the Government does not condone drug use or make any moral judgment about those injecting in the centre; but we are tackling the problem on all fronts, from prevention and education to treatment and enforcement. The Government has not slackened off on enforcement. I give the Commonwealth Government credit for all work it has done co-operatively with the New South Wales Police Service and the Western Australia Police Service on interdiction programs, which have been outstanding. I commend the Commonwealth Government for changing its position from the one it held a couple of years ago regarding intervention programs such as the MERIT Program and other so-called diversion programs. The Commonwealth Government substantially accepts what I regard as the New South Wales agenda with regard to treatment. Most people who need treatment are also committing crime; that is the fact of the matter. Some of them are just greedy, some are criminals, some are profiting by exploiting addicts. The best way to deal with them is to lock them up for as long as the law allows. However, the best way to treat the vast majority of them is to get them into treatment services, and that is fundamentally what our policy is about. I thank all honourable members for their contributions to the debate and I commend the bill to the House. Question—That this bill be now read a second time—put. The House divided. Ayes, 22

Ms Burnswoods Mr Gallacher Ms Saffin Dr Chesterfield-Evans Mr Harwin Mrs Sham-Ho Mr Cohen Mr Hatzistergos Mr Tsang Mr Costa Mr R. S. L. Jones Mr West Mr Della Bosca Mr Kelly Mr Dyer Mr Macdonald Tellers, Mr Egan Ms Rhiannon Ms Fazio Mrs Forsythe Mr Ryan Mr Primrose

Noes, 9

Mr Colless Miss Gardiner Mr Gay Mr Jobling Mr M. I. Jones Mr Lynn Reverend Nile Tellers, Mr Oldfield Dr Pezzutti Question resolved in the affirmative. Motion agreed to. Bill read a second time and passed through remaining stages. BUSINESS OF THE HOUSE Suspension of Standing and Sessional Orders Motion by Reverend the Hon. Fred Nile agreed to: That standing and sessional orders be suspended to allow a motion to be moved forthwith that Private Members' Business item No. 78, outside the Order of Precedence, relating to the Golden Jubilee of Her Majesty Queen Elizabeth II, be called on forthwith. 6 June 2002 LEGISLATIVE COUNCIL 2783

Order of Business

Motion by Reverend the Hon. Fred Nile agreed to:

That Private Members' Business item No. 78 outside the Order of Precedence be called on forthwith.

QUEEN ELIZABETH II GOLDEN JUBILEE

Motion by Reverend the Hon. Fred Nile agreed to:

That this House congratulates Her Majesty, Queen Elizabeth the Second, as she celebrates her Golden Jubilee and reaffirms our loyalty and prayers for her ongoing long and successful reign and leadership of the Commonwealth of Nations. God save the Queen.

SOUTH COAST CHARCOAL PLANT

Report: Claim of Privilege

The Clerk tabled, pursuant to resolution of the House, documents the subject of a disputed claim of privilege by the Hon. Ian Cohen and identified in the report of the Independent Legal Arbiter, Sir Laurence Street, dated 28 May 2002, as not privileged.

ADJOURNMENT

The Hon. MICHAEL EGAN (Treasurer, Minister for State Development, and Vice-President of the Executive Council) [10.39 p.m.]: I move:

That this House do now adjourn.

LORD HOWE ISLAND

The Hon. RICHARD JONES [10.39 p.m.]: I again draw the attention of honourable members to the gradual destruction of Lord Howe Island, a gem of a little island on the same latitude as Port Macquarie. It is gradually deteriorating as a result of increasing development and the destruction of rainforest and habitat. I have previously raised in this House the subdivision of portion 346, and recently I asked two questions about it. The transfer of the part perpetual lease states that portion 346 was gifted by Stuart Henry King to Neville David Keith Prout. But, as the islanders know, it was not a gift at all; the land was purchased by Neville Prout. The transfer also states that the transferee is "an islander within the meaning of the Act". If that is so, the Act should be changed because Neville Prout is a New Zealander, not an islander. He has no relationship to the island at all, apart from the fact that he has resided there for a number of years.

How could the Minister sign a transfer to allow the destruction of important rainforests on the island? Some weeks ago John O'Gorman, Chairman of the Lord Howe Island Board, wrote to me and the Hon. Ian Cohen setting out the reason the board allowed this destruction. Among other things he said that the board was imposing a revegetation program on the island that will replace significantly more native vegetation than will be removed. I have been to the island a number of times, and what is being replaced is palm plantations using Roundup. It is not native habitat. It is nothing like the habitat that is being destroyed by the increasing development. The purpose of the program is to produce more palm seeds.

The habitat that was destroyed on the land now owned by Mr Prout was rainforest and habitat of endangered animals. Mr Prout said there were no land snails on the land, but whilst I was there I picked up a number of land snail shells on that portion of the island. Clearly, it was important habitat but it has now been destroyed as result of the lackadaisical attitude of Mr John O'Gorman, the Minister and the department. The island is dying from a thousand cuts. It has a severe waste disposal problem. A brand new bio waste treatment facility—which cost $850,000—that uses a vertical composting unit is not working properly. The residents of the island are supposed to compost or recycle 85 per cent of their waste, but they are still burning plastic in large quantities. The dioxin fumes from the burning plastic are spreading across the island. They are also burning cardboard. The islanders have to contribute enormous amounts of money towards this facility. Mr Rodney Thompson wrote to the Minister more than a year ago telling him about a number of problems on the island. The letter, which refers to 10 new developments in the last year, was ignored. Rodney Thompson showed me the developments, one of which is on mutton-bird nesting ground right near the beach. 2784 LEGISLATIVE COUNCIL 6 June 2002

No habitat survey or environmental impact study was carried out prior to that development. There seems to be no action by the Minister, Planning NSW or anyone else to ensure that mutton-bird nesting grounds are not destroyed. Houses have been built on the site. There are fewer mutton-birds on the island each year. Habitat clearing continues. Rodney Thomson said that developments near the lagoon, jetty and historic graveyard, were opposed by the National Trust for several reasons. It is clear to me that development on the island is completely out of control. The board should be pulled into line. The Minister should examine this matter much more carefully. Previous Ministers have cared much more about the island than the current Minister has. I know that Neville Wran, Nick Greiner and Tim Moore cared about the island, as does Bob Carr. But for some reason the island has been neglected lately, and its World Heritage values have been gradually eroded. The Act should be revised. We should not allow the board to continue on its rampant, overdevelopment of the island. There are more and more cars and more pollution. There is even a development right next to a well that is the lifeblood of the island. I would ask the Minister to pay much more attention to what is going on. He should visit the island, walk around it, and do something before it is too late. After all, the island is World Heritage listed. AUSTRALIAN LABOR PARTY LIFE MEMBERSHIP AWARDS The Hon. AMANDA FAZIO [10.44 p.m.]: The Australian Labor Party has been in existence since 1891 and I am proud to be a member of the oldest political party in this country. At the State conference of the New South Wales branch of the Australian Labor Party, which was held on 26 and 27 June at the Sydney Town Hall, a quite remarkable presentation took place. On the Sunday morning, life membership was awarded to 83 party members who had each served as members for a minimum of 40 years. The combined years of party membership served by these members totals at least 3,320 years. That a party which is 111 years old can still command such a level of loyalty from so many members is testament to the ongoing relevance of the Australian Labor Party and proof that it is still the party to represent the values of compassionate and committed working-class people. Ask any of these new life members if they subscribe to the commonly put assertion that there is no real difference between the major parties and you will certainly get a lesson, chapter and verse, on the folly of that belief. The levels of activism and dedication of these life members, their unselfish toil over many years, supporting local candidates, working on campaigns and helping to make the Labor Party great, deserves official recognition. During the nearly 10 years that I worked for the New South Wales branch of the ALP, the one task that always seemed the most difficult to me was the preparation of the nominations for life membership and the organising of the presentation ceremony. These responsibilities weighed heavily on me because I was usually so in awe of the contributions made by the nominees and fearful of getting their biographies wrong, or leaving out details that were of particular importance to them. I would like to acknowledge the excellent work in this regard, this year, by Anne Purcell. The number of nominees who, often frail and with mobility problems, would travel into the Sydney Town Hall to walk proudly onto the stage to accept their life membership was inspiring, and the pride with which they wear their life member's badges is heart warming. A number of former members of the New South Wales Parliament were awarded life membership at the conference, being Peter Cox, member for Auburn; Roger Degen, member for Balmain; Bob Harrison, member for Kiama; Peter Nagle, also member for Auburn; Stan Neilly, member for Cessnock; Phil O'Neill, member for Burwood; George Paciullo, member for Liverpool; Terry Rumble, member for Illawarra; John Johnson and Dorothy Isaksen. As well, former Federal member for Hunter, Eric Fitzgibbon, former Senator John Morris and former President of the Senate, Kerry Sibraa, were awarded this great honour. As well, Margaret Daly, who joined the party on 1 January 1955, daughter of the late Fred Daly; Terry Murphy, a former councillor on Sydney City Council; and John Goymour, who joined the party in 1936, which means he has 66 years of party membership, were made life members. But to fully understand the way in which being a member of the Australian Labor Party becomes a way of life, it is worthwhile noting that seven married couples were awarded life membership, including Dorothy and Neville Isaksen and John and Pauline Johnson. Having been helped and encouraged by Dorothy Isaksen from when I first became involved in the party, I was particularly pleased that the service of Dorothy and her husband Neville was recognised. Dorothy and Neville both joined the party at North Sydney branch in 1955 and have been loyal and dedicated members ever since. Dorothy was also active in the ALP Youth Council, the forerunner of Young Labor. As many members will be aware, Dorothy served the party in the Legislative Council from 1978 to 1988 and from 1990 to 1999, and was Government Whip from 1995 to 1999. But what many members would not know is that Dorothy was the first female organiser appointed by the New South Wales branch of the party. 6 June 2002 LEGISLATIVE COUNCIL 2785

In that position, she was instrumental in encouraging and training young women who have subsequently become involved at many levels throughout the party. Senator Sue West, among many others, was a protégé of Dorothy's.

Neville Isaksen was a trade union activist in the Waterside Workers Federation from 1948 until 1967 and was the organiser of the Sydney branch from 1955 to 1966. Neville held the positions of president and secretary of the Water Transport Group of the New South Wales Labor Council and was a regular at ALP conferences. In fact, when I was first involved in the ALP, I can recall seeing graffiti about Neville Isaksen on the shore sheds on Hickson Road at Walsh Bay and asking Dorothy what it was all about. I think that Neville was the first person that I had met who was immortalised in graffiti.

The Labor Party as a whole can take pride that we have so many long-term, loyal and dedicated members, who work so hard, mostly for no personal gain, but simply to ensure the victory of the Australian Labor Party at elections at the local, State and Federal levels. Dorothy Isaksen gave the acceptance speech on behalf of all life members and she noted that this year was the centenary of women getting the vote in New South Wales, and Australia, and supported the measures being taken by the party to increase the number of women in Parliament. I look forward to there being more Labor women in the New South Wales Parliament and would hope that the other major parties would make every effort to ensure that women are better represented in their ranks. I also look forward to next year's life membership presentation at the ALP State conference. I agree with the comments on a note I have been handed: at the conference Dorothy did give a very good feminist speech on behalf of all life members.

Finally, I would like to note the passing of a long-time party and union activist, who must have nearly served his 40 years to become a life member, even though he was only in his mid-50s. Yesterday, Paul Toplis passed away. Paul had been a Young Labor activist who subsequently served as the secretary of the Club Managers Association, as a member of the New South Wales ALP Administrative Committee and a member of the ALP Review Tribunal. Paul was always proud of being on and supporting the "Officers Ticket" at ALP conferences. More recently, Paul was active in the Labor Party in the Maitland area. His contribution to the Labor Party and Labor movement deserve recognition and I extend my deepest sympathies to his family. WORLD CONFERENCE ON RURAL HEALTH The Hon. JENNIFER GARDINER [10.49 p.m.]: Recently I had the pleasure of being a delegate to the fifth World Organisation of Family Doctors [WONCA] world conference on rural health, which was held in Melbourne and attracted 900 delegates, many of whom were medical practitioners with special interests in rural health policy and practice. The conference theme was "Working Together: Communities, Professionals and Services", which emphasised the importance of all health care disciplines and administrators working in partnership, together with local communities, to achieve health outcomes for people in rural areas around the world. The number of abstracts this conference attracted was described by the organisers as overwhelming. In the end there were dozens of symposia presentations and at least 174 papers. The first WONCA conference was held in Melbourne, so the Australian input to this conference was most pronounced. As was the case at the National Rural Health Alliance conference held in Canberra last year, which I also attended as a delegate, it was freely acknowledged by rural health specialists from other parts of the globe that Australia, particularly the Commonwealth Government, is the world leader in devising and implementing solutions to rural health challenges. The particular challenges facing rural communities in providing timely and appropriate health services is not an Australian phenomenon. Many challenges are common to other western economies, as well as to the lesser-developed nations. However, the multitude of innovative programs devised and implemented by the Howard-Anderson Government to redress problems such as the shortage of rural doctors is held in extremely high regard by policymakers and practitioners throughout the world.

The Commonwealth Government has put in place programs that extend the stay of doctors who have already contributed greatly and been appreciated by a particular community, provide regional medical centres, contribute to the innovative multipurpose services, which grew out of the need to adapt Victoria's bush nursing hospitals, assist with the provision of practice nurses to busy doctors' practices, assist divisions of general practice with various medical training and education programs, help the pharmacy profession with projects to attract and retain pharmacists in rural and regional Australia and encourage young medical students to link in with particular communities and become part of those communities as well as undertake much of their training in country areas. The list of Commonwealth programs is extensive and imaginative indeed. The President of the Australian College of Rural and Remote Medicine [ACRRM], Professor Ian Wronski, told the delegates: 2786 LEGISLATIVE COUNCIL 6 June 2002

While working with the community is valuable across the spectrum of primary health care, it is within rural and remote communities that the word "community" acquires a great intensity of meaning. For rural communities community is more than place and population. It is fellowship, identity and affinity. The rural medical practitioner is integral to the community and its sustainability. At the same time, receiving support from the community delivers sustainability for rural medical practice. The relationship is symbiotic.

Rural doctors working in close cooperation and partnership with communities is a scenario that can be witnessed every day in medical practices, and outside medical practices throughout country areas of Australia. It is a defining characteristic of rural and remote medicine.

The multidisciplinary approach to the best ways of delivering hospital and health care to country Australians was also a theme that emerged at the recent summit on the shortage of rural doctors held in Tamworth. Many terrific papers were presented at the WONCA conference and, because I am shadow Minister for Fisheries and assistant shadow Minister for Rural Health, one paper in particular caught my eye. Dr James Douglas, a general practitioner in western Scotland, presented a paper entitled "Occupational health in salmon farming and processing in a new rural industry for Scotland". As the basis of the local economy changed from agriculture to aquaculture, Dr Douglas saw patients presenting with new injuries and new illnesses. Patients were injured whilst handling the salmon cages, suffered repetitive strain injury caused by lifting these rather heavy fish in the processing factories, endured many needle-stick injuries inflicted while inoculating the salmon and some, for the first time in their lives, presented with asthma. Dr Douglas acted on a hunch about the asthma patients, believing that the new work environment of those patients must have had something to do with the emergence of asthma. He conducted research and discovered that indeed the patients were suffering occupational asthma; he had his research published in the Lancet. Learning about that combination of rural health and fisheries was of particular interest to me, but the tremendous variety of papers presented created a terrific body of research on the extremely important subject of rural, remote and regional health. HISTORICAL SITES PRESERVATION The Hon. DAVID OLDFIELD [10.54 p.m.]: Today when I asked a question in the House, the abuse and name-calling made clear the special and privileged place held by people of Aboriginal descent. Many have mistakenly thought that political correctness and the double standards of the bleeding hearts were on the way out, but the interjections of the chatterers today made it clear that a number of parliamentarians still wish to ensure the silence and the cover-up. Many clearly still subscribe to what could almost be called the eleventh commandment—"Thou shalt not question nor query the different and special treatment afforded to those claiming Aboriginal descent." I merely and reasonably asked for a clarification of Government policy regarding the preservation of Aboriginal sites compared to those of the non-Aboriginal people, who make up some 97 per cent of our population. The question used the example of what was described as "a treasure trove of archaeological relics", surrounded by the unearthed footings of the historic buildings that originally stood on the site. Such is the rational way in which these discoveries are being dealt with that the site has been recognised for its significance, and appropriate time has been put aside to carefully examine and record the remnants of how our forebears lived before the development is allowed to obliterate what once was. However, I suggest that had this site yielded some indication of Aboriginal middens, or some other apparent evidence of Aboriginal occupation, the whole scenario would have been entirely different. The developers, Australand, would have found themselves beset by protesters, acting out their most dramatic display of anger at the assault on a sacred site, accompanied by the Aboriginal and Torres Strait Islander Commission and related groups calling for some kind of monetary compensation for the theft of Aboriginal land and heritage. Governments, at the behest of dishonest and irrational lobbyists, have done many things to impair development on the basis of the finding of a few seashells or ridiculous Aboriginal myths of serpents or nonsense like secret women's business. Even in my own suburb of Manly, location changes have been forced on public walking tracks and construction because of reports of middens. Middens, of course, are considered somehow significant because it is said that they identify where Aboriginal people once congregated. But, of course, in reality a midden is nothing more than an accumulation of discarded material. In the case of Aboriginal people, this is characterised by a small mound of shells—food scraps. The dictionary defines a midden as a "dunghill, a refuse heap near a dwelling", but of course Aboriginal people never constructed any permanent dwellings, so we will not find evidence of that kind near any middens in Australia. A friend of mine, who is currently serving as a mayor in Sydney, once described his local tip as a "white man's midden". This, of course, reasonably puts in context the ridiculous time, money and energy wasted on little mounds of shells left behind by Aborigines satisfying their hunger by the seaside. 6 June 2002 LEGISLATIVE COUNCIL 2787

I am sure people like the mayor I have just mentioned wonder if, in years to come, their local tip, which no doubt holds items of far more interest than a few shells, will somehow be considered a valuable time capsule of the twentieth century. I raise such matters not because I enjoy being wrongfully accused of bashing Aborigines, but because there is so much dishonesty attached to the way we approach both the difficulties faced by Aborigines and the difficulties posed by Aboriginal myths. Most of these myths are simply primitive superstitions that draw unnecessary and unjustifiable pandering. The rest are myths invented by non-Aboriginals to create guilt-driven sympathy among the non-Aboriginal population.

I reiterate that I do not raise these issues to attract personal abuse. I raise such matters because they are of significant public interest. If I did not speak out, this Parliament would be silent on such things. When it comes to favourable discrimination available to Aborigines, the members of this House fall into three categories: those whose ideology distorts any chance of rational evaluation and any application of commonsense, those whose party precludes them from speaking the truth, and those wishing to avoid the aggravation associated with such matters. That leaves me as the only person here who is both willing and able to speak such politically detested truth.

INTERNATIONAL CRIMINAL COURT

The Hon. JOHN HATZISTERGOS [10.59 p.m.]: Every time we turn on the television, open a newspaper or listen to the radio these days we learn about yet another shocking atrocity somewhere around the world where acts of war crimes or genocide are being committed. Therefore, it is with equal regret that we hear more recently of the need for the establishment of an international tribunal to bring persons who perpetrate such heinous crime to account. The idea of the establishment of an international criminal court to impose international and humanitarian law was first raised at the Hague Peace Conference in 1987. It was discussed again at the end of World War II to deal with war crimes and crimes against humanity.

By 1953 a constitution for a permanent international court was structured. However, there was relatively little progress on this point, mainly due to the Cold War. In 1993 the International Law Commission recommended an international conference to help finalise a treaty. Australians had a major role in that recommendation and in the conference that followed. In July 1998 a conference was held in Rome at which 120 States, including Australia, voted in favour of establishing a draft statute for an international criminal court. On 9 December 1999 Australia signed the statute. On 12 December 1999 it announced its intention to ratify the treaty through its Minister for Foreign Affairs.

On 10 October 2000 the Federal Government presented to Parliament the text of the statute of the International Criminal Court and a national interest analysis, summarising the objective of the court and the costs and benefits to Australia of ratifying the statute. The statute was then referred to the Joint Committee on Treaties, which reported in May 2002 recommending ratification. It further recommended that complementary Australian legislation be enacted in the form of the International Criminal Court Bill and the International Criminal Court (Consequential Amendments) Bill. These bills are yet to be introduced into the Australian Parliament even though the date for ratification is surely approaching. The statute is due to come into force on 1 July.

Just as the long road towards the court's establishment may be seen to be coming to an end, an increasingly strident campaign is being mounted to urge the Australian Government not to ratify the statute, notwithstanding the intensive role that Australia has played in the establishment of that court thus far. Now, after an 18-month examination and a looming deadline, we see the Coalition divided on this issue. Indeed, we heard of reports out of the Coalition party room this week that some 50 speakers were lined up to speak about this bill and about 25 speakers were lined up to speak in opposition. Amongst some of the people who have expressed strident criticisms about this particular court and the statute which will underpin it have been such people as the failed Liberal Minister Bronwyn Bishop, and other luminaries like Sophie Panopoulos, the member for Indi. Of course, who could forget De-Anne Kelly? Let me quote what Ms Bronwyn Bishop had to say about the proposed court. She said:

It's denying our sovereignty. Australia can pass its own laws and so long as Australia is investigating and/or prosecuting the International Criminal Court can't hear. But the problem is that the International Criminal Court is the body deciding if the country is investigating and prosecuting sufficiently.

De-Anne Kelly went so far as to say that the genocide provisions could be turned against Australian peacekeepers and even the immigration Minister for denying asylum seekers entry into the country. The reality is that such statements are a smokescreen that do nothing but give succour to the butchers who commit war 2788 LEGISLATIVE COUNCIL 6 June 2002 crimes, crimes against humanity and acts of genocide. These are the facts about the International Criminal Court that reinforce the need for Australia to be part of it. First, more than 100 countries have signed the treaty and 66 countries have already ratified the statute, which will come into effect, as I have stated, on 1 July. Second, it will still apply to non-ratifying countries as much as it will apply to ratifying countries.

Third, if Australia fails to ratify before 1 July, it will not be able to take part in the assembly in September, which will shape the court's procedures and nominate the judges and the prosecutors. Fourth, if Australia ratifies, it will sign interdomestic law provisions on genocide and crimes against humanity, ensuring that any accused Australians will be tried and sentenced in Australia if they are found guilty by our courts. Fifth, it will allow Australia to participate in subsequent conferences to review the statute and its operation. Clearly, one of the best ways to influence the new court is to help in its early years of operations. I agree with statements made and reported this week in the Sydney Morning Herald by Malcolm Fraser, who said:

Some nations have objected to the possibility that their nationals might be tried by the court without their consent. This is unlikely. The statute only allows the court to exercise jurisdiction if the territorial state and the state of nationality of the alleged perpetrator are unwilling or genuinely unable to exercise their primary right to domestic jurisdiction.

The wide level of support for the statute is predicated upon the so-called "complementarity principle" and the statute does not allow the court to violate it.

Of course, Malcolm Fraser is not alone in his support of the court. Daryl Williams and the Minister for Foreign Affairs have also expressed their support. I believe that Australia should urgently ratify this treaty and allow the International Criminal Court to take its place in dealing with perpetrators of heinous crimes. [Time expired.]

NEW PRISON SITE

The Hon. DON HARWIN [11.04]: Today has been the culmination of an incredible five days in the Shoalhaven. Recently we discussed in this Chamber the Bail Amendment (Repeat Offenders) Bill, the provisions of which will soon be implemented. Because of the passage of that legislation it will be necessary to accommodate up to 800 additional remand inmates, requiring up to two new gaols across the State. The budget papers confirm that the Government is investigating its options in housing these extra remand prisoners. At the end of last week the honourable member for The Hills and I suggested in a press release that the Government should factor the Shoalhaven into its forward planning as an area where this remand facility should be located.

There has been a range of responses to this proposal, but I think on Monday the South Coast Register got it right in its editorial in which it concluded that what was needed, above all, was "to give the people all the information they need to make their own decision". The reaction of the honourable member for South Coast has been quite extraordinary. His comment was, "Neither the community nor myself is supportive of such an idea", to quote him directly from the South Coast Register of Monday 3 June. I have to ask the honourable member for South Coast: Who has he asked? Never at any stage during the whole five days since this proposal was floated by me and by the honourable member for The Hills have we had anything other than a knee-jerk reaction of opposition from the honourable member for South Coast saying that the community is against this proposal. However, for five days he has refused to say who in the community is against it.

Today the Premier told members in the lower House, in a supplementary answer to a question he was asked yesterday, that the Government would not be proceeding with any proposal to put a remand facility in the Shoalhaven after supposedly receiving strong objections from the honourable member for South Coast. Who has the honourable member for South Coast asked? Who is he representing? Where is the evidence that the community is against it? Certainly that is not the case in relation to any of the local media coverage of the issue. There has been no knee-jerk avalanche of opposition as, seemingly, the honourable member for South Coast would have us believe. He certainly has not asked, for example, the President of Nowra Chamber of Commerce, Gary Kearney, who is in support of this proposal. He certainly has not asked the President of the Nowra Central Business District Promotions Committee, Greg Stephenson, who is in support of the proposal. He certainly has not asked the Shoalhaven Tourism Board Vice-Chairman, John Anderson, who has absolutely rubbished the nonsensical arguments of the honourable member for South Coast that, somehow, a remand facility in the Shoalhaven would affect tourism in the Shoalhaven when the presence of correctional facilities at Grafton has no effect on tourism in Yamba. The presence in the future of a correctional facility at Kempsey is not seen in any way by the community of South West Rocks, or areas such as that which depend on tourism, as a problem. I find it absolutely extraordinary that the honourable member for South Coast is trotting out a tourism argument about why such a facility cannot be located possibly in the Shoalhaven at some time in the future. 6 June 2002 LEGISLATIVE COUNCIL 2789

The Hon. Amanda Fazio: Where do you live, Don? Now you say you live in the Shoalhaven but in the drug debate you said you live in Sydney.

The Hon. DON HARWIN: I did not. The Hon. Amanda Fazio was obviously not listening. She is completely misrepresenting my position. I venture to suggest that on Saturday the honourable member for South Coast announced his opposition before he had talked to anyone else. There is absolute amazement in the Shoalhaven at the honourable member's performance. In fact, he has gone so far out on a limb that today the Premier had to rescue him by announcing that there will be no facility in the area. What have we lost? The local building industry has lost 400 jobs during the construction phase. We have lost initial investment of $80 million that would have been injected into the local economy, the ongoing employment of 160 local people and $8 million annually in recurrent investment resulting from the operation of a remand facility. The honourable member for South Coast has demonstrated by his performance on this issue that he represents no-one, and he will suffer the appropriate fate at the next election. [Time expired.]

ANIMATION PROJECT

Ms LEE RHIANNON [11.09 p.m.]: The Animation Project is an initiative of the St Vincent de Paul Society. This project believes healthy and just communities are those that have the freedom to make choices and the capacity to implement them. Local animators, as they are called, provide an environment in which participants consider their common problems and find solutions. This group has an impressive list of achievements in Claymore, including securing significant changes to local bus services, introducing a food share program, working to establish a community laundromat and making real changes to people's lives. I particularly congratulate Julie Foreman, the Animation Co-ordinator, and Mauro Di Nicola, the Animation Education Co- ordinator, on their impressive work in bringing real change to people's lives. The Animation Project is a credit to all associated with it.

Motion agreed to.

The House adjourned at 11.11 p.m. until Tuesday 11 June 2002 at 2.30 p.m. ______