Legislative Council

Wednesday, 12 April 2006

THE PRESIDENT (Hon Nick Griffiths) took the chair at 2.00 pm, and read prayers. PAPERS TABLED Papers were tabled and ordered to lie upon the table of the house. WESTERN AUSTRALIAN GOVERNMENT’S COMMITMENT TO TRAINING Motion Resumed from 5 April on the following motion moved by Hon Graham Giffard - That this house congratulates the Western Australian government for its commitment to training and condemns the Australian government for its failure to address skills shortages. HON PETER COLLIER (North Metropolitan) [2.04 pm]: I will continue my comments on the federal government’s initiatives on training. As I said at the outset, the opposition will oppose the motion. It is a shame that we will oppose it because, as I said last week, we are very supportive of reforms and initiatives for the training sector in particular. We believe that this motion is a cheap shot on the part of the government to deal with something that is essentially a very serious matter. I have recognised the state government’s education and training initiatives, which I have stated on several occasions. The part of the motion to condemn the federal government is without merit, and that is why we cannot support the motion. I will continue my comments regarding the initiatives of the federal government. Last week I referred to the Commonwealth-State Agreement for Skilling Australia’s Workforce. This includes the provision of 20 000 additional places for new apprenticeship commencements and 26 000 additional training places for mature age people. That is a tremendous federal government initiative. I mentioned also the establishment of 25 Australian technical colleges in 24 regions throughout Australia, which have been provided for in the 2005-06 budget. In addition, the federal government has provided $28.7 million for toolkits to the value of $800 for new apprentices starting a new apprenticeship from 1 July 2005 in a trade experiencing skills needs. The federal government will implement a trade learning scholarship of $1 000 for new apprentices undertaking trades with strong skills needs. They will receive $500 at the end of the first year and $500 at the end of the second year of their new apprenticeship. Hon Barbara Scott: A very good idea. Hon PETER COLLIER: I agree. A further 4 500 prevocational training places in trades will be provided. An additional 7 000 school-based new apprentice positions will be provided through group training organisations. Group training arrangements assist in placing new apprentices in organisations and undertake employer responsibility for the quality and continuity of the new apprentices’ training employment. An additional 20 000 places in the New Apprenticeship Access program will specifically target industries in regions experiencing skills needs. The living-away-from-home allowance will be extended and will be paid to new apprentices during the third year of their new apprenticeship. That is a great initiative. The federal government will provide $22.9 million to establish the Institute for Trade Skills Excellence, which will provide industry, as a key client of the national training system, with the capacity to identify, acknowledge, reward and promote excellence in trade skills development and training. Another federal government initiative is the National Skills Shortages Strategy. The NSSS is a partnership between the Australian government and key industry groups working to develop solutions and models to address current and future industry skills needs in areas of critical skills shortages, particularly in the traditional trades. The strategy supports innovative and strategic lead projects to research and recommend vocational technical education strategies for attracting new employees or the upskilling of existing workers. Projects include streamlined approaches for the recognition of existing workers’ skills, attracting new entrants to particular industries and enhancing their career paths. I move to the area of skilled migration. The Australian government has an ongoing policy of encouraging skilled migration, which complements the Australian government’s commitment to and substantial investment in vocational and technical education for Australians. The government’s increase in the skilled migration program is a responsible way to meet industry’s most pressing needs by providing skills growth in short time frames, thus facilitating Australia’s continued economic growth. The trade skills training visa, which was introduced on 1 November 2005, is another responsible initiative to address skills shortages in rural and regional Australia. It enables regional employers to take on full fee-paying new apprentices from overseas who meet the skill requirements and occupations identified to have a skills shortage, but only when those vacancies cannot be filled by Australians.

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It does not discriminate against Australians who are seeking employment through an apprenticeship. As far as the federal government is concerned, there is also the Council of Australian Governments initiatives. On 10 February 2006, COAG reached agreement on a package of measures designed to underpin a new genuinely national approach to apprenticeships, training and skills recognition and to alleviate skills shortages. They include, firstly, a commitment to quality training through a national outcomes-based auditing model; and, secondly, a more mobile work force to help meet skills needs, with new measures to enable people with trade qualifications to move freely around Australia without undergoing additional testing and registration processes. That is vital; it has definitely been called for by the appropriate industry sector in Western Australia. The third measure is for a more flexible and responsible training system, and includes an agreement that, by December 2006, all governments will have put in place arrangements to allow apprentices and trainees to work as qualified tradesmen and tradeswomen as soon as they have demonstrated competency to industry standards rather than having to wait a set period. I acknowledge that the state government has provided initiatives in this regard. Also, legislative, regulatory and educational barriers will be removed so that school-based new apprenticeships are available nationally as a pathway for school students when there is industry demand. Better processes will be implemented to recognise the existing skills of all people entering training through improved recognition of prior learning. The fourth measure is a targeted response to skills shortages in regions through the establishment of a regional program to improve the supply of skilled labour in industries and regions of strategic economic importance. The fifth measure is the development of new labour market data sharing arrangements to help identify and understand skills shortages. That will help identify the most pressing needs for new apprentices and skills shortages. It is evident from the facts I have isolated here that the suggestion that the federal government is not doing anything to assist apprentices and training is nothing short of ignorant. In fact, the federal government has been extremely proactive in this regard and deserves credit for its initiatives. It has also been suggested that Western Australia has been ignored by the federal government’s policies on training. This is complete garbage. Under the commonwealth-state agreement for skilling Australia’s work force and its predecessor, the Australian National Training Authority Agreement, the federal government has increased its contributions to Western Australia from $71.5 million in 1996, when the Howard government took office, to a projected figure of $448.5 million in 2008. That is an estimated increase of $377 million. Even the most hardened critic or political opponent must concede that these are impressive figures. In addition, Minister Ravlich commented in the chamber last week about federal government grants for new apprentices in response to a question I asked in this place about the subsidy provided by the Building and Construction Industry Training Fund. The minister suggested that, of the federal government’s $4 000 subsidy for new apprentices, $3 900 would be taxed, leaving only $100 for the employer. This is a seemingly effective political line that, yet again, does not stand the test of effective scrutiny. The minister’s picture about the so- called $100 - net contribution to employers - stemming from Australian government incentives of $4 000 does not reflect the facts. Any balanced and transparent analysis of the net value after tax to employers of the Australian government incentives must take into account the full effects of the income received as grants or subsidies, the tax incurred on that income and the effect on allowable business deductions to employers generally. According to the Australian Taxation Office, the real figure is more like $13 000 for each new apprentice employed because the increase in tax is fully offset by the increase in allowable deductions. The Australian government has rejected the view that the tax system is an appropriate vehicle for advancing the take- up of new apprenticeships and skills-needs occupations. All employer incentives from the Australian government or state governments have been subject to normal taxation treatment for many years. As far as the Department of Education, Science and Training is aware, no state or territory has ever criticised the taxation treatment of employer incentives. Of course, the minister was well aware of that fact prior to her ill-informed comments in this chamber last week. At the end of August 2005, she received a response to her letter to the previous Minister for Education, Science and Training, Hon Brendan Nelson, about the federal government subsidy. The contents of that letter from Hon Mal Brough, MP, differ somewhat from the political tirade she presented last week. It reads - Dear Ms Ravlich Thank you for your letter of 28 April 2005, originally directed to the Minister for Vocational and Technical Education, concerning the taxation of employer subsidies. I apologise for the delay in responding to you. The assessability for income tax purposes of business related government grants and other forms of assistance reflects a long-standing feature of the tax law based on the principle that a grant increases the net wealth of a taxpayer and thus ought to be taxed. However, while grants are assessable as income in the year the grant is received, offsetting this is provision in the income tax law for associated business expenditure to be deducted. Therefore, to the extent that allowable ductions offset the amount of the assessable grant, no tax will be payable on the grant as such.

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The assessability of grants and the allowance of associated deductions avoids the potential for a double benefit. If grants were exempt from income tax and the associated expenditure was allowed to be deductible the recipient would not only receive the initial value of the grant but also the value of the deductions. I note that the taxation treatment outlined above would apply to other recipients of business related government grants. I trust this information will be of assistance to you. I have also copied my response to the Minister for Vocational and Technical Education. Yours sincerely MAL BROUGH Hon Ljiljanna Ravlich: Is the federal minister feeding you information? Hon PETER COLLIER: Absolutely not. Hon Ljiljanna Ravlich: Where did you get that letter from? Hon PETER COLLIER: I believe that the scoreboard with regard to this is zero from 10 against the state government. The minister had her say last week, and what she said was manifestly incorrect. Hon Ljiljanna Ravlich: You already have a reputation for forgery. Several members interjected. The PRESIDENT: Order, Minister for Education and Training and Hon Peter Collier! It is unruly to interject, although it is possible to interject on a member who is speaking. However, if the member does not want to take the interjection, which has been made more than once, that is the end of the matter. Point of Order Hon GRAHAM GIFFARD: I ask the member to identify the document he just quoted from. The PRESIDENT: Yes. Hon Ljiljanna Ravlich: The only person who got a copy in the department was me. Hon PETER COLLIER: I did not give it to you. The PRESIDENT: Order! The member has been asked to identify the document. If he would do so, I would appreciate it. Hon PETER COLLIER: It is a copy of a letter sent to the minister from Mal Brough. Hon Ljiljanna Ravlich: Who is he? Hon PETER COLLIER: He is the Minister for Revenue and Assistant Treasurer. Hon Ljiljanna Ravlich interjected. The PRESIDENT: Order, Minister for Education and Training. Hon Peter Collier has been asked to identify a document. He has done that and he is now addressing the Chair. Debate Resumed Hon PETER COLLIER: I refer again to the first aspect of the motion regarding the effectiveness of the state government’s policy on training and apprenticeships. I am afraid that my judgment of the government’s performance has deteriorated since I made my initial comments. As previously mentioned, I am delighted that the government has taken up the coalition’s initiative and progressed the implementation of competency-based apprenticeships. That is something that the coalition has been advocating for some time. It presented it as a policy during the last state election campaign. However, it is becoming quite evident that this is the extent of the government’s initiatives for the reform of the training sector. That concerns me. For example, in response to a question I asked of the education minister last week about incentives for employers, the minister expressed her amazement about my understanding of the BCITF and launched into yet another predictable and theatrical tirade against the federal government while ignoring the actual question. I stand by my original question: what does the state government intend doing to provide incentives for employers to take up apprenticeships? The government cannot hide behind the BCITF. The government does not provide one cent towards the Building and Construction Industry Training Fund contributions of employers. If the government is serious about training reform, how will it assist the foundations of the industry; that is, the

1526 [COUNCIL - Wednesday, 12 April 2006] employers? Too many disincentives exist for employers to take on apprentices. The government must provide some financial incentives to this sector. In addition, what is the government doing about introducing a more realistic ratio of tradesmen to apprentices? What is the government doing to ensure that technical and further education centres across the state are adequately resourced and equipped to cope with the increase in apprentices? What is the government doing to ensure that the shortage of trained lecturers in TAFEs is overcome? What is the government doing to overcome the special problems confronting rural tradesmen and apprentices? What is the government doing to ensure that Western Australia is marketed on the east coast as a viable lifestyle option for apprentices and potential apprentices? What is the government doing within the secondary education sector to ensure that the courses of study with a vocational education training focus provide the flexibility that currently exists? What is the government doing to encourage private providers within the industry? These are not the ramblings of an alternative political viewpoint; these are the concerns of the people most affected. As mentioned previously in my comments, these concerns are not an attempt on my part to make a cheap political point. They are the result of arduous consultation and research. Hon Ljiljanna Ravlich interjected. Hon PETER COLLIER: They are the result of arduous consultation and research, minister. I went out into the community over and again and listened, and I wish the minister would. Hon Ljiljanna Ravlich: I think you might have gone to Julie Bishop. Hon PETER COLLIER: I am talking about the initiatives in the state sector, not about the federal level. If the minister had been listening, she would know that. I have moved on from there. More importantly, these are the concerns of people at the coalface of the building, construction and trades sectors. These views are readily available. All one need do is go to the State Training Board web site at www.stb.wa.gov.au, click on “Consultation Process” under “Skills Formation Taskforce” and then go to “What People said at the Forums”. I guarantee to every member of this chamber that the issues I have highlighted in this place today and previously during this debate are reflected in those opinions. Why on earth would the government go to all the trouble of establishing a task force, consult broadly with the appropriate sectors and then ignore the recommendations it received? This process is precariously close to being labelled “cosmetic”, which is a real shame. The skills shortage in Western Australia is a real problem. Any substantive attempt to overcome this problem will have the complete support of the Liberal Party. If the government is doing such a good job with training and if it is prepared to make the substantial reforms that are desperately needed, it will implement the recommendations that I have isolated in this place today and last week. To this end, I am yet to be convinced that the government intends to make these desperately needed reforms. Several members interjected. The PRESIDENT: Order, members! Just a moment, Hon Peter Collier. I understand that Hon Barbara Scott wants to speak in the debate and Hon Graham Giffard will have the right of reply in due course. However, I ask them to be quiet for a moment and allow Hon Peter Collier to carry on with his remarks. Hon PETER COLLIER: Thank you, Mr President. To conclude, the points that I have raised about my concerns that there has been a lack of progress with some of the recommendations of the forums and the fact that the second part of the motion is entirely without foundation mean that the opposition will oppose the motion. Point of Order Hon LJILJANNA RAVLICH: I understand that the member will be tabling the document. The PRESIDENT: Is the minister asking for the document to be tabled? Hon LJILJANNA RAVLICH: Yes. While I am on my feet, I also ask that he explain where he got that document from. The PRESIDENT: The document has been identified. The minister has asked that the document be tabled, and the document will be tabled. Hon BARRY HOUSE: There is a difference between requesting that a document be identified and seeking leave to have that document tabled. The speaker identified the document when the minister requested him to, and I contend that he does not have to table it. The PRESIDENT: I invite the honourable member to read standing order 48. The document is tabled. [See paper 1438.] Debate Resumed Question put and passed.

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WESTERN AUSTRALIA’S REGIONAL FREEDOM FROM PESTS AND DISEASES, RECOGNITION BY COMMONWEALTH GOVERNMENT Motion HON ADELE FARINA (South West - Parliamentary Secretary) [2.24 pm]: I move - That this house requests the Australian government to recognise and formally acknowledge the prerogatives of Western Australia to determine regional freedom from pests and diseases on a scientific basis, consistent with the obligations of the World Trade Organisation Agreement on the Application of Sanitary and Phytosanitary Measures. Members will be aware of the longstanding concerns that Western Australian growers have had about how the Australian government manages quarantine, particularly in relation to the assessment of agricultural products for import, and whether such imports pose a risk to our existing agricultural produce. Members will also recall the debates on the Trans-Tasman Mutual Recognition (Western Australia) Bill 1999 and concerns raised about the protection of regional differences in the assessment of import risk. Public debate on the importation of New Zealand apples into Western Australia, which occurred recently, served to highlight concerns about import risk assessment by Biosecurity Australia and the application of regional differences in the assessment of import risk. By way of background, the Commonwealth of Australia became a signatory to the Uruguay round of the multilateral trade negotiations in January 1995. In so doing, the commonwealth agreed to establish the World Trade Organisation and to conform to the Agreement on the Application of Sanitary and Phytosanitary Measures - more commonly known as the SPS agreement - and certain other international agreements. One of those is the International Plant Protection Convention, commonly known as the IPPC, which provides the rules adopted under the SPS agreement for international trade in plants and plant products. The SPS agreement and the IPPC provide that countries may exercise their sovereign right to impose appropriate sanitary and phytosanitary measures; however, these measures should be applied without discrimination between countries of the same sanitary and phytosanitary status and if such countries can demonstrate that they apply identical or equivalent risk-management procedures without discrimination between domestic and imported consignments. The IPPC further defines other principles, including the use of restrictive measures advocating a minimum-impact approach; the development of protocols and provisions of rationale for prohibitions - the focus on this being the need for transparency; the recognition of equivalent treatments and control measures - the focus being on the equivalent aspect; and the use of IPPC risk-analysis methods and agreed management policy, which is management risk, including recognition of pest-free areas, which is the regional differences in pest status. Under the SPS agreement, the measures that a country puts in place may be based on international standards, which are set out in the IPPC, and therefore no risk assessment is required; or they can be based on measures to deliver appropriate levels of protection of a country’s own choosing, in which case the measures must be supported by scientific-risk analysis. When measures are based on risk analysis, the analysis must identify the disease or pest, of which the entry, establishment or spread within the territory a WTO member wants to prevent, as well as the potential biological and economic consequences associated with the entry, establishment or spread of the disease or pest; evaluate the likelihood of entry, establishment or spread of the disease or pest, as well as the associated potential biological and economic consequences; and evaluate the likelihood of entry, establishment or spread of the disease or pest according to the SPS agreement that might be applied. The SPS agreement recognises that risk may not be evenly distributed across the country and that, where practical, different risk-reduction measures should be imposed within a country to achieve the country’s appropriate level of protection in the least trade-restrictive manner. It is this tension, and in particular the nexus between the science-based quarantine arrangement and the least restrictive trade measures, that is of concern to growers and is the crux of the problem. Growers are concerned that the science-based quarantine decisions are now subordinate to the requirement for Biosecurity Australia to resolve trade-related quarantine disputes. Growers are also concerned that Biosecurity Australia is trading away our quarantine rights and with them the very foundation of our agricultural competitiveness. Growers are also expressing their concern that Biosecurity Australia is failing to protect the interests of Australian farmers. They argue that Biosecurity Australia is so concerned about its reports being potentially challenged that it is erring on the side of caution. It is important in this debate to also recognise how the Quarantine Act 1908 fits into all this. Under that act the Governor-General may prohibit the importation into Australia of any articles likely to introduce, establish or spread any disease or pest affecting persons, animals or plants. For articles prohibited by proclamation, the Director of Animal and Plant Quarantine may permit the entry of products on an unrestricted basis or subject to compliance with certain conditions. The import risk analysis, to which I have been referring and which is set up through those international agreements, provides the scientific and technical basis for quarantine policies that are referred to by a decision maker when making the decision on whether an import may be permitted and, if so, what conditions should be applied. In deciding whether to grant a permit, the director must consider the level of

1528 [COUNCIL - Wednesday, 12 April 2006] quarantine risk if the permit were granted and, if the permit were granted, whether the imposition of conditions on it would be necessary to limit the level of quarantine risk to one that is acceptably low. The SPS agreement makes it mandatory for member countries to consider regional differences within importing and exporting countries. However, the SPS agreement does not provide exhaustive guidance on what constitutes regional conditions. There is some discussion and some issue about what should be included and whether the provisions of the Quarantine Act should be applied. In that context, regional conditions must reasonably be limited to consideration of the presence or absence of a pest or disease in a country or part of a country. The International des Epizooties animal health code calls for the number of species and other characteristics of the animal and human populations exposed to certain pests or diseases. Examples of those characteristics quoted in the code include properties of the agent, presence of potential vectors, human and animal demographics, customs and cultural practices and geographical and environmental characteristics. It is reasonable, therefore, to expect that each factor relevant to the assessment of risk at the national level will also be considered in an examination of regional distribution of risk within the importing country if SPS agreement requirements are to be met. Import risk analyses conducted to date have not effectively addressed regional freedom from disease or pests of quarantine concern, nor have they effectively considered or dealt with regional differences in levels of risk. For this I turn to issues raised by Hon Kim Chance at council meetings of agricultural ministers and, in particular, to the memorandum of understanding signed in 1995 between the commonwealth, states and territories that articulates the obligations of each of those parties flowing from the establishment of the World Trade Organisation and the SPS agreement. The elements of the MOU state that states and territories shall consult with the commonwealth before implementing sanitary and phytosanitary measures which could inhibit trade into Australia and which may not conform to the SPS agreement; that they shall, in consultation with the commonwealth, review existing SPS measures and identify provisions that may be inconsistent with the SPS agreement; and that they shall not apply any relevant sanitary or phytosanitary measures within their jurisdictions that would not conform to the provisions of the SPS agreement. However, the MOU itself does not commit the commonwealth to addressing regional differences in pest status and risk. All it does is tie the states and territories to the SPS agreement in implementing quarantine measures, which could inhibit trade into Australia. The international agreements, to which I referred earlier, highlight the need to ensure that the commonwealth, state and territories have a consistent approach to the appropriate level of risk and apply this approach consistently to plants and plant products produced domestically and internationally, and that quarantine regulations are technically justified and that equivalent risk management procedures are recognised. In May 2002 Minister Chance raised concerns about addressing regional differences in pest status and risk as part of the import risk assessment, and expressed concern that the MOU did not adequately reflect the recent developments in articulating the partnership approach to biosecurity. It was agreed that this would be addressed through an exchange of letters. Hon Warren Truss, the commonwealth Minister for Agriculture, Fisheries and Forestry, in a letter dated 23 July 2002, set out the proposed terms of agreement. Hon Kim Chance raised some concerns about those proposed terms of the agreement as they did not fully encompass the issues from Western Australia’s viewpoint. In particular, a number of important unresolved issues concerning the import risk analysis process and the handling of regional differences in risks were not assessed. They include the proper interpretation and consistent implementation of the agreement; the apparent inconsistent approach by Biosecurity Australia to recognise official control; and failure to incorporate regional pest status and risk information in an adequate and transparent manner and the way this undermines the whole import risk analysis process. To this end Minister Chance suggested that the methodology for assessing regional differences in the IRA be specified in the technical guidelines for import risk analysis. Another matter that he raised was that the states and territories must be consulted at each stage in the IRA process prior to general release to stakeholders, providing an opportunity for the states and territories, together with the commonwealth, to resolve any differences in scientific interpretation. Unfortunately, not all of Minister Chance’s suggestions were supported by federal Minister Truss. The failure to adopt all of Minister Chance’s suggestions has resulted in continuing problems with Biosecurity Australia’s import risk analysis and the failure of appropriate mechanisms for the resolution of issues regarding regional differences in pest status and risk. In particular, Minister Truss’ revised IRA framework provides only two points of consultation with the states and territories. The first point of consultation does not provide for the consideration of any technical information, particularly of regional differences. This means that the first point of consultation with the states and territories on regional differences in pest status and risk is through the draft IRA, providing no opportunity for resolution of any disagreement between the states and territories on how regional differences have been addressed in the draft IRA ahead of the draft IRA being released to stakeholders. The second point of consultation, which is just prior to the release of the final Import Risk Analysis Handbook, is too late in the process for resolution of the differences. Minister Chance strongly argued in his letter to Minister Truss on 29 November 2002 that in the absence of a requirement for Biosecurity Australia to consult with the states and territories prior to the release of the draft IRA, the only practical means of having regional

[COUNCIL - Wednesday, 12 April 2006] 1529 differences in pest status and risk address is for the state to lodge a formal appeal, which is costly and also time consuming. Regrettably, Minister Truss declined to accept further changes to the agreement as suggested by Minister Chance. As a result, there continues to be dissatisfaction with the way in which the commonwealth has addressed the issue of regional differences in pest risk assessment. I am sure that members understand the importance of regional differences, particularly for a state like Western Australia. Western Australia enjoys isolation from the rest of Australia and, therefore, an opportunity to protect its produce from many pests and diseases which are endemic elsewhere. It necessitates the commonwealth’s acknowledging the different levels of risk; consequently, protection may be necessary in Western Australia as it goes through the import risk analysis process. It is important for members to recognise what is at risk. The state’s agricultural industry has gained competitive and market access advantages from its relative freedom from so many pests and diseases. I understand that WA, as an agriculture producer, enjoys more freedom from pests and diseases than any jurisdiction globally. It is very important that this advantage is maintained, not because it benefits this state’s agricultural producers, but because of the wider environmental and economic costs that are associated with controlling noxious pests and harmful diseases. Many people have argued that Australia has adopted a particularly conservative approach to biosecurity in the world and is increasingly under pressure from trading partners to relax the impediments to trade, which is part of the nexus issue that I raised earlier. In maintaining its conservative level of quarantine protection in the least trade restrictive manner, Australia has risk management options open to it that are not available to many other countries. Australia has a diverse range of environments, from the tropical north east to the highlands of Tasmania. Along with the diverse range of environments are some regional variations in sanitary and phytosanitary status and in the demographics of susceptible populations between regions. Practical and technical feasible options exist to institute measures on a regional basis within the country to protect areas of higher health status and areas that have a greater exposure to risk. These options are well illustrated, particularly by the western region, which is separated from the rest of mainland Australia by vast desert and limited points of access, and the island state of Tasmania, which is separated from the mainland by more than 300 kilometres of sea. In the same way that Australia’s health status is a function of its geographical isolation, so too is the health status of some of its pest-free regions. These pest-free regions, especially those that have high concentrations of susceptible populations, need to be guarded to maximise the opportunities to the country for a productive, efficient and diverse primary sector. Where regional differences can be managed by regional measures, it is inappropriate for Australia to institute national quarantine measures tailored to the region most at risk. This imposes unnecessary trade impediments and leaves the country’s quarantine measures vulnerable to challenge. Any relaxation of measures resulting from a successful challenge could then expose the regions and pest-free areas to risk in excess of the appropriate level of protection. In this era of freeing up impediments to trade, regionalisation of risk management should be seen as an opportunity to adopt the most appropriate approach to quarantine policy for the country; this is consistent with minimising impediments to trade. The SPS agreement defines the appropriate application of sanitary or phytosanitary protection as a level of protection deemed appropriate in establishing a sanitary or phytosanitary measure to protect human, animal, plant life or health within its territory. Australia has one ALOP for international trade that has been defined as very low. However, the risk of some threats to particular regions - for example, Johne’s disease in animals or fire blight in apples - may be greater in one region than in others. This variation may be a function of pests or disease status, presence or absence, or the level of risk expressed as a probability of an adverse event occurring, as well as the magnitude of consequences of such an event. Therefore, it follows that sanitary and phytosanitary measures needed to meet the ALOP can vary from one region to another depending on the level of risk posed by the pest or disease. An example is that the unrestricted risk estimate of fire blight on apples from infected countries to the Northern Territory could be considered negligible, but measures will be needed to achieve Australia’s ALOP. However, the risk to Western Australia may be considered to be slightly higher and, therefore, more restrictive measures are needed. It can be seen that while there is one level of protection for Australia, regions may argue a higher or lower unrestricted risk estimate and, therefore, more or less restrictive measures are needed for imports into those regions to meet, but not exceed, that risk estimate. Regions can only argue on this basis if there are internal quarantine barriers in place, or are practical to put in place, to restrict the entry of the commodity once imported into another part of the country at risk. For example, apples from fire blight affected countries should not be allowed into the Northern Territory without restrictions. From there, they could be easily moved to states that could be at higher risk, like New South Wales, where it is impractical to institute measures sufficient to prevent the entry from interstate. This is what makes Western Australia and Tasmania unique in this respect. However, protections in smaller regions are possible, provided quarantine barriers are practical. Another example to illustrate this point is in respect of Spanish citrus imports into Australia. Current measures include a requirement for fruit to be treated at low temperatures for a specified period to provide effective

1530 [COUNCIL - Wednesday, 12 April 2006] control of Mediterranean fruit fly. This treatment, which can damage the fruit, is relatively costly and adversely affects the shelf life. Mediterranean fruit fly is endemic in Western Australia, but the risk to WA from Mediterranean fruit fly is negligible. Measures are in place in WA and interstate to prevent the movement of domestic hosts that would apply to imported produce to prevent the movement of the pest to pest-free states and territories, yet the current national import requirements for Spanish citrus apply equally to both WA and the remainder of Australia. The national quarantine policy approach that results in the imposition of measures in this manner could well be considered to be overly trade restrictive. It could be argued that the current national measures are not fully SPS compliant and could be open to challenge. The application of a regional approach to risk management has a benefit of being the least restrictive to trade while providing effective protection to regions most at risk. The IRAs conducted so far have not effectively addressed regional freedom from pests. This has exposed pest- free areas to potential introductions over which they have little control. Any measures imposed by states and territories to protect these regional freedoms outside the IRA process could be construed as in breach of the SPS agreement if they are not supported by the commonwealth government. This could expose the state or territory measures, and hence Australia, to challenge. Furthermore, it is open for the commonwealth, using its external affairs powers, to legislate to override state and territory measures affecting external trade should unilateral actions by the states and territories continue. Even if measures imposed by the states and territories were determined by this analysis consistent with international standards and the sanitary and phytosanitary agreement, these, too, would have no standing in an international dispute and would not be supported by the national government as a World Trade Organisation member. Minister Chance highlighted these concerns in his letters to Minister Truss by referring to the importance of ensuring that regional differences are appropriately assessed and appropriate measures are in place to deal with these issues. Members will recall the outrage that resulted from Biosecurity Australia’s proposal to approve, subject to certain conditions, apple imports from New Zealand. The outrage occurred from two directions: firstly, from New Zealand growers who felt that the measures were too onerous; and, secondly, from Western Australian and Australian growers who were concerned about the possibility of pests being brought into this state, together with the control of those pests and the management of spread of disease should that occur. At that time a Senate inquiry was held into the assessment by Biosecurity Australia, and that committee found that the science behind Biosecurity Australia’s decision to allow New Zealand apples to be imported into Australia was not sound and that the risk from the disease fire blight was too great. The Senate committee recommended changes to the protocols for the inspection of New Zealand orchards to detect fire blight symptoms; that Biosecurity Australia be required to implement a better consultation program with growers; and that the quarantine watchdog review the weighting it gives to the economic impact of the disease fire blight. That is the very important issue I referred to earlier about the growers’ concerns: that is, Biosecurity Australia has been required to balance competing interests - the scientifically based import risk assessment protection against the least restrictive trade requirements. As a result, there is concern that Biosecurity Australia has placed too much emphasis on securing trade measures, rather than protecting this state and the growers from pests and diseases. Ultimately, there is a question of working cooperatively with the commonwealth government, especially Biosecurity Australia, to ensure that regional difference is understood, effectively considered, consistently applied and appropriately weighted against the least restrictive trade measures. The process must be transparent and, importantly, the states and territories must be fully consulted throughout the assessment process. I call on members opposite to join with the state government in advocating to the commonwealth government the importance and immediate need to address these issues. Although the exchange of letters between the state and the commonwealth ministers went some way towards addressing these issues, regrettably there is still a gap and more work needs to be done, as was clearly articulated by Hon Kim Chance in his letters to Minister Truss. I hope that the lack of appropriate application of regional differences by Biosecurity Australia in its assessment of risk does not arise again. However, if the matter does arise again, I trust that the state government can rely on members opposite to support this state in its representations to the commonwealth to ensure that Western Australia’s valid concerns are recognised and addressed. On that basis, I commend the motion to the house. HON BARRY HOUSE (South West) [2.56 pm]: The opposition is happy to support this motion on the basis that it means what it says, and that the rhetoric is backed by action and deeds rather than just words. I support the motion on that basis, because it would be irresponsible of me as a Western Australian not to. However, if this motion is merely a vehicle to clear the way for progress of another piece of legislation, then questions must be answered before the opposition will proceed to that step. The legislation to which I am referring, and which was referred to by the parliamentary secretary, is the Trans-Tasman Mutual Recognition (Western Australia) Bill. This legislation has been in this Parliament for some time. My research indicates that it was first introduced into this chamber on Wednesday, 27 October 1999, when the second reading speech was given by Hon Norman Moore representing at that time Hon Monty House, Minister for Primary Industry. The legislation

[COUNCIL - Wednesday, 12 April 2006] 1531 was introduced a second time on Thursday, 28 November 2002, followed by a second reading speech by Hon Kim Chance, Leader of the House and Minister for Agriculture. The third introduction of the legislation was in a statement by the Leader of the House on Tuesday, 21 June 2005, when he clarified that we were referring to the same bill, the Trans-Tasman Mutual Recognition (Western Australia) Bill. As the second reading speeches indicate, the purpose of the bill is very clear and I do not intend to regurgitate that information, but it seeks to recognise, across the Tasman, the mutual recognition of qualifications and movement of goods and services between the two nations and between states. That is all I will say about that bill, except that it is relevant that I mention the reasons for the bill not being progressed to this time, because those reasons are directly applicable to the motion before the house today. The reason that the Trans-Tasman Mutual Recognition (Western Australia) Bill did not progress while we were in government, and since the change in government since 2001, has been the same: that members of the opposition, and, I believe, many members on the government benches, were seeking assurance. There was a lack of assurance regarding protection for Western Australian industries. That is where the direct relevance of this motion comes to the fore. South west members were alerted to the fact that the Western Australian apple industry had some serious reservations about what it might mean for them concerning their disease-free status in some areas and their efforts to keep out diseases and pests like fire blight, codling moth and apple scab, to mention three. The Western Australia apple industry is free of fire blight. There have been outbreaks of the other two, but they have been controlled. The concern of the industry is that fire blight, which is quite prevalent in New Zealand apples, could be introduced into the Western Australian apple industry. Having competition is one thing, I suppose, but I know that the Western Australian apple industry does not shy away from direct competition. It can hold its head high in any commercial apple production environment in the world. The major concern was the introduction of disease, or worse, into the Western Australian apple industry. That creates a classic dilemma for Australian rural industries in particular. Although we want to see freer international trade, it opens up the possibility that the protective barriers we have built up over the years against biosecurity concerns and disease throughout the world might be exposed or, worse still, broken down. We can be very proud as a nation that Australia has been remarkably successful over the years in keeping out some of the major primary industry diseases, like foot-and-mouth disease, bird flu - at this stage - and others. Western Australia, as a subset of the nation, has been particularly successful, and its quarantine stations have operated on the borders over the years. That is the background to the matter. The Western Australian apple industry and other industries are equally concerned about biosecurity breaches and the introduction of insects, animal and vegetable matter and disease. That is the reason the Trans-Tasman Mutual Recognition (Western Australia) Bill has not progressed through this house of Parliament; we have not gained watertight assurances on those matters. I hope that this motion is not merely preparing the ground for the future progress of that bill. I would be disappointed if it was, because if that were the case, we would need concrete assurances that the concerns expressed in this house by members, including the Minister for Agriculture and Food, have been addressed in various forums. This motion seeks assurance through the federal government, which is a signatory to the World Trade Organization Agreement on the Application of Sanitary and Phytosanitary Measures - SPS agreement. The federal government declared that Western Australia, or subregions of Western Australia, as I understand it, can be declared a particular case. The parliamentary secretary quoted extensively from, I think, explanations on notes involved with the SPS agreement. I have a copy of the agreement with me. The first thing we should do is clarify exactly what the definition of “sanitary and phytosanitary measures” is. Annex A, the definitions of that agreement, states - 1. Sanitary or phytosanitary measure - Any measure applied: (a) to protect animal or plant life or health within the territory of the Member from risks arising from the entry, establishment or spread of pests, diseases, disease-carrying organisms or disease- causing organisms; (b) to protect human or animal life or health within the territory of the Member from risks arising from additives, contaminants, toxins or disease-causing organisms in foods, beverages or feedstuffs; (c) to protect human life or health within the territory of the Member from risks arising from diseases carried by animals, plants or products thereof; or from the entry, establishment or spread of pests; or (d) to prevent or limit other damage within the territory of the Member from the entry, establishment or spread of pests. Sanitary or phytosanitary measures include all relevant laws, decrees, regulations, requirements and procedures including, inter alia, end product criteria; processes and production methods; testing,

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inspection, certification and approval procedures; quarantine treatments including relevant requirements associated with the transport of animals or plants, or with the materials necessary for their survival during transport; provisions on relevant statistical methods, sampling procedures and methods of risk assessment; and packaging and labelling requirements directly related to food safety. Annex A goes on to cover harmonisation; international standards, guidelines and recommendations; risk assessment; appropriate levels of sanitary or phytosanitary protection; pest or disease-free areas; and areas of low pest or disease prevalence, as part of the definition. I certainly do not intend to read all of it, but it is available on the Internet to anybody who wants to access that information. It is worth reading the opening paragraph of the agreement that describes the crux of what it is all about. It states - Members, Reaffirming that no Member should be prevented from adopting or enforcing measures necessary to protect human, animal or plant life or health, subject to the requirement that these measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between Members where the same conditions prevail or a disguised restriction on international trade - It goes on from there. Further on, the agreement states - Article 2 Basic Rights and Obligations 1. Members have the right to take sanitary and phytosanitary measures necessary for the protection of human, animal or plant life or health, provided that such measures are not inconsistent with the provisions of this Agreement. That is a pretty broad statement, but it really does confirm the crux of what we are trying to achieve in Western Australia. Article 2 reads - 2. Members shall ensure that any sanitary or phytosanitary measure is applied only to the extent necessary to protect human, animal or plant life or health, is based on scientific principles - That is the key phrase - and is not maintained without sufficient scientific evidence, except as provided for - Another paragraph is referred to. Article 2 continues - 3. Members shall ensure that their sanitary and phytosanitary measures do not arbitrarily or unjustifiably discriminate between Members where identical or similar conditions prevail, including between their own territory and that of other Members. The section of the agreement that relates specifically to what this motion refers to is Article 6, which states - Adaptation to Regional Conditions, Including Pest - or Disease - Free Areas and Areas of Low Pest or Disease Prevalence 1. Members shall ensure that their sanitary or phytosanitary measures are adapted to the sanitary or phytosanitary characteristics of the area - whether all of a country, part of a country, or all or parts of several countries - from which the product originated and to which the product is destined. In assessing the sanitary or phytosanitary characteristics of a region, Members shall take into account, inter alia, the level of prevalence of specific diseases or pests, the existence of eradication or control programmes, and appropriate criteria or guidelines which may be developed by the relevant international organizations. I will not read the other parts to that section at this stage. In their response, either the Minister for Agriculture and Food or the parliamentary secretary might tell me who makes that decision. Is it made by the exporting country? If it is made by the exporting country, a question mark will continue to remain over it. I will use apples as an example. Is the decision on the importation of New Zealand apples into Western Australia made by New Zealand in this case or - Hon Kim Chance: No. Hon BARRY HOUSE: I am pleased to hear that. Hon Kim Chance: If the application is made by New Zealand, it then passes through the import risk assessment process in Australia. However, it then gets even more complicated when referring to regional freedom, because a state or territory law may have a different provision from that provided in the federal Quarantine Act. I will go into that in more detail in my response.

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Hon BARRY HOUSE: That is good. Although the process would obviously have to be initiated by the exporting country, the decision does not lie with it; it lies with a process that involves the weighing up of regional interests. That is the critical part. Hon Kim Chance: Yes. In all those stages there is transparency. Hon BARRY HOUSE: Yes. Article 7 of the World Trade Organisation Agreement on the Application of Sanitary and Phytosanitary Measures - the SPS agreement - is a separate section on transparency. Article 10 of the agreement is headed “Special and Differential Treatment” and refers to developing country members, particularly the least developed country members. That also warrants a question. Australia is a member of the WTO and is therefore required to take into account other less developed nations that are signatories to this agreement that want to export their products into Australia. If Australia has a problem with the disease status of a product being imported from a less developed nation that is a signatory to the WTO, will some allowance be given to the less developed nation, which might expose Australia to some risk? That question must be asked. That is about all I will refer to from the WTO agreement. I was trying to follow the parliamentary secretary’s speech. Obviously the matter has been taken up by Minister Chance on behalf of Western Australia at a Council of Australian Governments meeting, which is appropriate. I was trying to ascertain from the parliamentary secretary the degree of positive response that Minister Chance received. I deduce from what the parliamentary secretary said that there have been positive responses in several areas but that other areas are still outstanding. We all require some assurance on that matter if this motion is preparing the ground for the future passage in this chamber of the Trans-Tasman Mutual Recognition (Western Australia) Bill. That summarises the opposition’s point of view. The Trans-Tasman Mutual Recognition (Western Australia) Bill is still on the agenda for this house. The opposition has baulked at supporting the bill. When I say the “opposition”, the Liberal and National Parties in opposition, and even in government, baulked at the passage of the bill, and will continue to do so unless they receive suitable assurances from the government about the biosecurity risks and Western Australia’s exposure to plant and animal diseases in the future. The opposition supports the motion and I hope that it hears a further explanation from either the minister or the parliamentary secretary on behalf of the government that these measures are under way and that it will be provided with written confirmation of these assurances if and when the Trans-Tasman Mutual Recognition (Western Australia) Bill is presented. HON KIM CHANCE (Agricultural - Minister for Agriculture and Food) [3.15 pm]: Obviously, we will support this motion, and I thank Hon Adele Farina for raising it. I thank also Hon Barry House for putting the motion in the context of the Trans-Tasman Mutual Recognition (Western Australia) Bill. I assure Hon Barry House that this motion is not a precursor to the introduction of the Trans-Tasman Mutual Recognition (Western Australia) Bill. It was not in Hon Adele Farina’s mind when she moved the motion. She might have a different view, but she certainly did not say anything about it to me. However, it has occurred to me that this motion is a handy precursor to that legislation because the issues that have arisen in this debate are fundamentally concerned with the issues that Hon Barry House has indicated will arise in the consideration of the Trans-Tasman Mutual Recognition (Western Australia) Bill. It has occurred to me also that the debate on this motion, and the fact that the Trans-Tasman Mutual Recognition (Western Australia) Bill is not far away in the government’s priorities, might help members’ understanding of the issues concerned with that bill. The two are conceptually linked, but I do not think they were strategically linked. There was no plan to do it in this way. As an Australian jurisdiction, Western Australia is bound by the World Trade Organisation Agreement on the Application of Sanitary and Phytosanitary Measures. We have heard many negative comments about the effect of the SPS agreement, which is a child of the WTO agreement and has a child of its own - the dreaded import risk assessment process. The SPS agreement and the IRA process are both administered by the commonwealth organisation Biosecurity Australia. We have heard negative comments about Biosecurity Australia and the way in which it administers those two agreements. Generally, those negative comments concern a decision by Biosecurity Australia about whether as a result of an import risk assessment a particular commodity from a particular source is suitable for importation into Australia. Most recently there has been some talk about pork and the post-weaning multisystemic wasting disease, which is present in Canadian pork and which Biosecurity Australia decided through the IRA process would be quite okay to import into Western Australia, even though mathematically the odds are almost 50-50 that within a decade that disease would exist in Australia as a direct result of the decision to import uncooked pork from Canada. It is a matter of risk assessment. Many of us believe that Biosecurity Australia applies its duties far too narrowly under the SPS agreement and the import risk assessment process. As a result, some pretty dumb decisions have been made. Indeed, when the Australian pork industry first appealed the Biosecurity Australia decision on imports of raw pig meat, in the first instance, in supporting the appeal by the Australian pork industry, I think the Federal Court of Australia judge made a comment - I should not quote him because I do not have it with me - to the effect that he could not believe anyone could have made such a dumb decision. He wondered how a decision like that could be made.

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Subsequently, the Federal Court decision was overridden, and the original Biosecurity Australia ruling still stands and we can import raw pig meat into Australia. That is an absolute tragedy. Having said that and taking account of the generally negative things that are said about Biosecurity Australia and the way the World Trade Organisation processes work, I will speak in Biosecurity Australia’s defence. I can assure members that I have nothing to gain by defending the process. It is the only process we have. As a state that exports 85 to 90 per cent of its produce, it is the state that has the most to gain by eliminating non-tariff barriers for world trade and agricultural commodities. However, every now and again we hit a painful spot. Non-tariff barriers are every bit as serious an issue and threat to our agricultural producers as are tariff barriers. Quarantine is one of those non-tariff barriers. Also in defence of the Biosecurity Australia process, there are just as many complaints from people outside Australia trying to get goods into Australia that Biosecurity Australia is over-rigorous. We need speak only to the Philippine High Commissioner, as I have in the past year or so, about Biosecurity Australia’s attitude to the importation of mangos, bananas and pineapples, a treble issue that has been before Biosecurity Australia for years without a decision. The Philippine High Commissioner asked me how anything could take that long. The pressure now as a result of the disruption of the Queensland banana crop emphasises the question fairly pointedly. How can it take so long and why? Criticism comes from both sides, and Biosecurity Australia sits uncomfortably in the middle of that process. We should not be uncritical of the Biosecurity Australia process and all that that means, but we should try to be at least constructively critical of it. The fact is that if we did not have the Biosecurity Australia process in place, we would not have anything. There is no alternative system sitting behind the WTO agreement. We either have that agreement, as imperfect as it might be, or we have nothing at all. That would mean a total collapse of our capacity to talk to those many jurisdictions to which we sell food commodities, particularly in the South East Asian region where there are enormous movements of food between, for example, us and the Thais. All the food product that goes through Singapore ends up in not only the South East Asian region, but also the north Asian region. We hear much about the tiny bit of food we import from China. However, does anyone not stop to wonder what would happen if our attitude were translated into their attitude about the food they import from us? It would be a serious issue. We talk about foreign aid, for example. One of the most important foreign aid contributions we have made to South East Asia in the past has been to assist those countries to reach the stage at which their animal population is disease free, particularly from foot-and-mouth disease. Indonesia features prominently in that. Australia played a huge role in getting rid of foot-and-mouth disease from animals in Indonesia. Why? It helps to protect our cattle and sheep from foot-and-mouth disease. It is a very important issue. Similarly, it is important that, if we do not have all the same rules, we at least read from the same hymn sheet on how the rules should be structured. Even with the WTO process - almost every country in South East Asia is a WTO member - we still cannot quite make the gears slide together properly. We all work from the same WTO rules, under the same SPS agreement and on the basis of the rules called Codex Alimentarius - I do not know why big Latin names are used to describe something quite simple - which is a worldwide process for establishing food codes. Somehow we are still crunching gears. I once put to the Agri-Food and Veterinary Authority, the Singapore food regulator, that perhaps it should consider taking responsibility for dragging together the rule-making process, at least throughout South East Asia, so that all our rules would match. That would have made our rules much easier to follow. It would also have made the rules of trade between each country much more amenable to a process that people could understand and work with. We still have not reached that stage, much less the stage of developing an alternative to that process. What goes wrong with the WTO rules? Essentially there will still be people who are, or have the perception that they are, disadvantaged either because of the interpretation of the rules or because the rules are different. In addition, straight-out mongrelism occurs in any trade system. An example of mongrelism happened the other day when I was called by a very substantial exporter of seafood, in this case, from Western Australia. He said that, as a result of a mistake in his consignment, a container of fish had arrived in England that did not carry his assessment number - the number that should have been stencilled onto the container and the boxes within the container. The English authorities said that the consignment had to return to Australia for the numbers to be affixed. The exporter simply wanted his licensed agent to have access to the container so that he could affix the number in England and have it released from bond. However, the answer from the English authority was no, the box had to come back to Australia. I thought that was ridiculous and wondered who I could approach to fix it. I was delighted with the response I got from the Australian authorities. In fact, the Western Australian Agent General was in Perth at the time and, as luck would have it, he was having dinner with the director general of agriculture that same night. I got the call about 5.30 in the evening, so we were able to get straight onto the Agent General. We used all the string-pulling capacity we have within the Australian Quarantine and Inspection Service, which is quite considerable. AQIS and the Agent General supported us, but the British authority still said no. It was rather like the computer saying no. Hon Barry House interjected.

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Hon KIM CHANCE: Exactly. That was just an example. The shipment had to come back or alternative markets had to be found. It was not a lost cargo because it was at least frozen, but it involved much inconvenience for many people. That is just an example of what happens when the rules do not match each other, even when the rules are the same. Another aspect that goes wrong with these rules - this is getting more to the crux of the motion, although I thought I had to go through that process first - is that quarantine and international codification rules impose a requirement, as they are signed by national jurisdictions, but become binding upon those components of a national jurisdiction. They tend by their very nature to set a one-size-fits-all rule. As we know, it is quite possible for a particular problem to exist in some parts of a jurisdiction the size of Australia, Argentina or Brazil, but not in other parts of those jurisdictions. We are familiar with the concept of regional freedom, for example, from foot-and-mouth disease in Brazil and Argentina. We are also aware of examples of regional freedom existing with insect pests, such as Mediterranean and Queensland fruit fly - two examples that were given today. That means that we must have an understanding of the concept of regional freedom, which is quite reasonable. Provided we can establish that we have safe boundaries around an infected area and a non-infected area, there should be no issue about recognising regional freedom. Indeed, Hon Barry House raised the issue of apples - which I will go into in detail later - about which Western Australia and Tasmania have specific issues and which underlines the importance of the recognition of regional freedom. The World Trade Organisation agreement provides the basis for freer trade internationally, and I believe that we have more to gain than we have to lose from it, albeit that it has problems. The sanitary and phytosanitary agreement is the child of the WTO agreement and, essentially, the import risk assessment process is the child of the SPS agreement. In order to underline the concept of regional freedom, a memorandum of understanding also exists between the commonwealth and the states on the application of all parts of the WTO agreement, and a side letter to the MOU deals with the question of regional freedom. Hon Barry House raised the question of the Trans-Tasman Mutual Recognition (Western Australia) Bill 2005. The issue gets a bit clouded and complicated here. The relevance of that bill in this debate is that concerns have been raised in earlier debates on the bill that, as a consequence of the provisions of the bill, will oblige Western Australia to permit the importation of goods from New Zealand that may compromise our quarantine status. This has been a major issue. In fact, the whole issue of quarantine is among those issues that are specifically excluded from the scope of the Trans-Tasman Mutual Recognition (Western Australia) Bill. It is a permanent exemption, not a special exemption, and it is found in schedule 2, part 1, on page 32 of the Trans-Tasman Mutual Recognition (Western Australia) Bill. It is correct that concern for quarantine integrity has caused delays in consideration of the Trans-Tasman bill, and although on the face of it the existence of the permanent exemption in schedule 2 should have allayed that concern, it is not quite that simple, unfortunately. The reason it is not quite that simple is that schedule 2, part 1, clause 1(b) of the bill imposes a conditional qualification on the scope of the exemption. In other words, it is a permanent exemption on quarantine issues but there is a condition. The preamble states that a law of an Australian jurisdiction, including a law relating to quarantine, is exempt to the extent that, and the condition is outlined in paragraph (b) - the law authorises the application of quarantine measures that do not amount to an arbitrary or unjustifiable discrimination or to a disguised restriction on trade between Australia and New Zealand and are not inconsistent with the requirements of the Agreement establishing the Word Trade Organisation. Hon Christine Sharp argued previously in this place that the qualification in clause 1(b) of the bill means that the permanent exemption provided in schedule 2, part 1, has no value. Although earlier attempts to satisfy Hon Christine Sharp were reasonably successful, clever woman that she is, she very quickly worked out that perhaps clause 1(b) made that assurance nonsense. We then had a hot and cold type of approach to the Trans- Tasman Mutual Recognition (Western Australia) Bill. That is why I think Hon Barry House was very perceptive in linking these two issues. As I said, it was not strategic but it was a useful linkage. As a result of concerns expressed by members of this house, but led principally by Hon Christine Sharp, we then went through the process that has been comprehensively described by Hon Adele Farina. I do not propose to take members through all that process again, but that is where the MOU and the side letter to the MOU came from. Hon Paul Llewellyn: Has that side letter been tabled publicly? Hon KIM CHANCE: I think we tabled it as a result of a request from Hon Christine Sharp, but we are more than happy to make it available again to the house; I just do not have it with me in my material. The difficult issue is that on the face of it the MOU contains the same qualification; that is, dependent upon the rules as provided in the sanitary and phytosanitary agreement, the commonwealth recognises the right of the states and territories to maintain their own rules in keeping with their requirement for regional freedom. Again, I

1536 [COUNCIL - Wednesday, 12 April 2006] am not quoting; that was just from memory. However, that in itself caused people, including Hon Chrissy Sharp, to say again that it was worthless, because it would tie the guarantees back to the SPS agreement, or the WTO agreement in the broader sense. In fact, tying the issue back to the sanitary and phytosanitary agreement is actually a strength for regional freedom. That is where I think members have tended to miss the issue. The guarantee for the rights of regions, which includes states and territories but not exclusively, actually exists within the sanitary and phytosanitary agreement itself, so that every time a function is tied back by memorandum of understanding or letter of agreement, we must continually refer to the SPS agreement, as the SPS agreement itself contains that guarantee. Hon Barry House: That is the case only if the WA government gets the cooperation of the federal government. Hon KIM CHANCE: Yes, that is a practical issue and it is timely now to discuss it, as it is also covered in the MOU. We in this place have been asked from time to time whether we are getting that cooperation. I believe the intent of the commonwealth is to supply that cooperation. When we measure spirit and performance, sometimes they do not match up. There have certainly been occasions when we have been disappointed that the agreement that the commonwealth had with us, as expressed in the memorandum of understanding, to supply certain information and to undertake a certain degree of consultation at various stages has simply not been delivered on. When confronted with that, the commonwealth has said that we were right, that it did not happen and that it would do something to fix it. There is a spirit of wanting to cooperate and comply with the rules. Sometimes the commonwealth has not performed according to that spirit, but it has been its intention to do so. Frankly, I am relaxed about that. The other issue, which I have not spoken about very much, goes directly to the question of regional freedom and an action taken under the commonwealth Quarantine Act about, for example, New Zealand apples. If a determination were made under an import risk assessment that the importation of New Zealand apples to Sydney would not pose a risk - for example, if Sydney had discovered fire blight as endemic - the commonwealth Quarantine Act would be triggered and apples from New Zealand would be removed from the excluded list. Many people have said that it would be the end of the Australian apple industry and that if they were allowed entry into Australia, they would be allowed entry into Western Australia because the state legislation could not overrule the commonwealth legislation as a result of the application of section 109 of the Australian Constitution. That section provides that commonwealth legislation overrides state legislation, but only to the extent of the inconsistency between the provisions of the two jurisdictions’ competing legislation. I have had a very close look at the Western Australian legislation, particularly the Agriculture and Related Resources Protection Act, which I have read in conjunction with the commonwealth Quarantine Act. I must say that I have not tested this greatly, although I have asked other people whether they agree with my reading of the two acts; however, when one reads the two acts, it seems very clear that they are designed to operate in parallel. This is quite unusual with commonwealth and state legislation. One usually finds each jurisdiction’s legislation trying to cover the field. When that happens, they will eventually cross and get to a point at which there is the potential for inconsistency between the state and commonwealth legislation, which could lead to a section 109 trigger. This does not seem to be the case with quarantine legislation. The acts refer to each other. They seem to be clearly designed to work, not by covering the field but by working in parallel with each other; that is, one recognises that it has a commonwealth jurisdiction and the other recognises that it has a state jurisdiction. As a result of that, it has always been my view that in the event that New Zealand apples were permitted to be imported into Australia, they would still be excluded as a result of the provisions of the Western Australian Agriculture and Related Resources Protection Act, because the New Zealand apples, while complying with the requirements of the commonwealth Quarantine Act, would not comply with the requirements of the Western Australian legislation. This depends on a number of things still existing; however, the current state of the Western Australian pome fruit industry, which I think is the only pome fruit industry in the world that is free of the big three pests - apple scab, codling moth and fire blight - effectively means that if the dark day were to come when Australia lost its reasonable grounds for objection to the importation of New Zealand apples, that dark day could not apply in Western Australia. Hon Adele Farina: Does the SPS agreement not specifically allow for that different risk assessment anyway, regardless of the legislation? Hon KIM CHANCE: It does. That is why I said there is always the referral back to the SPS agreement, which is a good thing and not a bad thing, because it is article 6 of the SPS agreement that refers to the capacity for regional freedom. This is a bit complex, and I am sorry. I told Hon Sally Talbot that I could explain this to her in five minutes, but I realise now I probably could not do that. However, I have tried not to overcomplicate the matter. It comes back to a relatively simple set of guidelines. The process is complicated, but the guidelines are quite simple if they are followed with some degree of goodwill and the perception, which obviously does not exist in the Philippines just now and which is hard to sell, that we are not using these rules as some kind of non-tariff barrier.

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The Philippine High Commissioner did not believe me when I said that we were not using the rules as a non- tariff barrier. She said that of course we were and that we should talk about the real thing, which is what the Philippine market should do to export bananas to Australia. I said that getting rid of a few diseases might help. Her answer was that we should go to the Philippines to get rid of those diseases so that we could import their bananas. I thought that might be going a little too far. However, it is not such an absurd notion, because that is what we did in Indonesia with foot-and-mouth disease. I thank Hon Adele Farina for raising the question. I certainly thank Hon Barry House for linking it in the way he did with the Trans-Tasman Mutual Recognition (Western Australia) Bill, because I hope that this debate will allow us sometime this year to get on with that bill and deal with it in the absence of the phantoms that have haunted this bill for so long and have prevented us from doing what we need to do. Of course, some of the issues will need to be churned over again. Some assurances will need to be given while we are debating that bill. However, I hope that we have at least flushed the phantoms out into the open and that we can get on with dealing with the bill. HON PAUL LLEWELLYN (South West) [3.48 pm]: It would be very difficult to debate this motion without any discussion of the implications of the Trans-Tasman Mutual Recognition (Western Australia) Bill, which is now fully in the open, and the World Trade Organisation’s impact on our economy. I will have to draw on some of the ghosts of the past, because Dr Christine Sharp has briefed me, and I will lay out the case again. Hon Kim Chance: I would be disappointed if she had not. Hon PAUL LLEWELLYN: That is right. This is the first time that the Western Australian Parliament will defer to WTO rules in any statute, as I understand it. Hon Barry House: It is not a statute; it is just a motion. Hon PAUL LLEWELLYN: In the case of the Trans-Tasman Mutual Recognition (Western Australia) Bill, it would be the first time that the Western Australian Parliament had deferred to World Trade Organisation rules. Along with the WTO comes free trade, which to some extent is good, but we need to have that tempered by good sense with phytosanitary objectives, free movement of capital and materials and, as it might be good to liberalise our markets through the expansion of WTO arrangements, free movement of services, all of which would mean free movement of disease save for the phytosanitary arrangements at state and federal levels. It is clear from the debate on the Trans-Tasman Mutual Recognition (Western Australia) Bill 2005 - another bill I inherited and on which I was given a fat file - that we are exposing Australia, in particular Western Australia, to a set of arrangements that are not favourable to either consumers or producers. I have not kept my eye on the ball on this issue, but I note that the wine industry has taken off, although the apple industry is under pressure from international trade and the pear industry has fallen apart at the seams. It will not be long before the structure of the dairy industry will fall apart at the seams, and milk and pears will be imported from South America and so on. Where is the public interest in relation to this? I am referring to the paper prepared for me by Dr Christine Sharp, in which she considered the regional difference and the practice of national quarantine controls. We must recognise that the trans-Tasman mutual recognition legislation, which was introduced in 1999, was uniform legislation that was passed by the commonwealth and all other state Parliaments some years ago. The repeated delay of its passage in Western Australia has been brought about by the shared concern of the Greens (WA) and the state Liberal Party about the precedent set under the bill for WA’s quarantine sovereignty. Legal advice provided to Dr Christine Sharp in 2000 suggests that the bill has implications for the degree to which Western Australia can practise quarantine controls that are different from, or more strict than, the federal government’s requirements. That information was provided in a discussion paper on the trans-Tasman mutual recognition legislation prepared by Marie Winter from the Research School of Social Sciences at the Australian National University. The concern is based on schedule 1 of the bill, which defers WA quarantine standards and trading across the Tasman with New Zealand to those set out under the rules of the World Trade Organisation and controlled by the federal government. Again, this is the first time that the Western Australian Parliament has enacted legislation that specifically defers to the World Trade Organisation rules, and it sets an important precedent for the whole process of mutual recognition that has been developed between Australia and a range of trading partners. Also, we look to the development of the memorandum of understanding in 1993, when Australia joined the World Trade Organisation. An MOU on animal plant quarantine measures was entered into between the commonwealth and the states of New South Wales, Victoria, Queensland, Western Australia, South Australia and Tasmania, and the Northern Territory and the Australian Capital Territory, on 21 December 1995. The scant document does not give any consideration to the necessary working principles used in the new, and now standard, practice of scientific import risk assessment determined by the federal government’s Biosecurity Australia. Of particular concern is the lack of recognition of the significant variation in what is known as “area freedom” throughout Australia; that is, the freedom from particular pests and diseases and also the different levels of risk

1538 [COUNCIL - Wednesday, 12 April 2006] depending on whether important regional agricultural produce is involved. In other words, that MOU sets down that for the purpose of biosecurity under the World Trade Organisation, Australia shall act as one unit. However, the level of threat of importing pests and diseases varies enormously across the continent and that has been spelt out very clearly. Queensland may have different risks than Victoria or Tasmania etc. Very often Western Australia and Tasmania have a higher degree of area freedom than the eastern states because one is an island and the other is bordered by the desert. These form natural barriers that, in conjunction with the excellent traditional state quarantine service at airports, have provided these states with a very high level of area freedom. It is the question of area freedom that is under discussion. In fact, Western Australia and Tasmania have some of the cleanest agricultural systems in the world, and this is of great significance to the regional economies. The MOU soon ran into its first problem with the well-known fight between the federal government and Tasmania over the importation of Canadian salmon. This issue has been left as a stalemate between the governments of Tasmania and the commonwealth. Tasmania has continued to ban Canadian salmon imports in contravention of the commonwealth position. The federal government has never sanctioned its regional difference from the Australian import protocols accepted on the mainland. Even though Tasmania has implemented its own ban, the operation of this regional difference is not working. In other words, the issue of regional difference remains unresolved. We have talked at length about the subject of New Zealand apples. During the six years that the passage of the trans-Tasman legislation has been delayed in the WA Parliament, there has been a major push by New Zealand, through the World Trade Organisation, to overcome Australia’s current ban on the import of New Zealand apples. In this same period, Biosecurity Australia has issued two separate import risk assessments on New Zealand apples. Both documents have produced such unified rejection by the apple and pear growers throughout Australia, indeed a political uproar, that on both occasions the federal government has withdrawn the import risk assessment and instructed Biosecurity Australia to redo its science. If the import risk assessments are not doing the job, what else can we rely on? At this stage, and in the past, Australia has simply banned New Zealand apples. That is not a bad proposition, regardless of whether we view this as informal protection. However, the World Trade Organisation, which is not in principle rejecting all outright bans under the phytosanitary guidelines, normally treats bans as disguised protectionism. The Australian government has taken a timid approach to provoking any test cases of this traditional approach, even though it is obviously the safest method in which the risk warrants extreme caution. In the case of the apple industry in the south west of Western Australia, we could say that there is a compelling case. Western Australia has particular concern about these apple imports, because of its exceptional level of area freedom from apple pest and diseases. Not only is it free of the dreaded fire blight that afflicts a lot of New Zealand orchards, but also it is free from the codling moth and apple scab that are found across the Tasman and in the eastern states. There is a regional area difference; if it is found on the east coast and not in WA we need to acknowledge that regional difference. All three pests are very difficult to control. Accordingly, it is estimated that WA spends only 18 per cent on pesticides in apple production compared with New Zealand. That information came from WA fruit growers. WA has spent millions of dollars on eradication campaigns to control small outbreaks of these problems. No apples have been imported into WA since the 1920s. Is that still true? Hon Kim Chance: That is correct. That is because of the triple freedom. Hon PAUL LLEWELLYN: That is a beautiful thing. In other words, WA has significantly more risk from New Zealand apples than either Victoria or New South Wales, although Tasmania, being the Apple Isle, shares the same unique position as us. However, the fear of introducing fire blight into Australia - for it cannot be eradicated once established - has provoked a unified national campaign. Fire blight is treated by spraying antibiotics onto affected areas. This is a very dangerous practice because of the rapidly growing international public health problem of antibiotic resistance. If we imported apple scab and fire blight into Australia, we would be contributing to the decrease in the effectiveness of antibiotics, which is not an insignificant matter. I return to the intergovernmental quarantine arrangements between Canberra and Western Australia. According to the Minister for Agriculture and Food, Hon Kim Chance, the federal government has accepted that the principle of regional difference must apply, when appropriate, to Australia’s biosecurity. I suspect that that is the letter that has been tabled. However, federal Minister Truss is apparently reluctant to commit to this principle with a formal public policy document, such as a revised memorandum of understanding. Why can we not renegotiate the MOU? It must be because it would upset the World Trade Organisation, even though it is not contrary to any stated phytosanitary guidelines. On the basis of the unofficial acceptance of the principle of regional difference and the promise of consultation with this state’s agricultural protection division of the Department of Agriculture and Food, in 2004 Hon Kim Chance entered into a rearrangement of the WA quarantine protection mechanism by signing over to the federal government the transfer of 230 Western Australian departmental officers. I understand that that information was contained in the answer to a question without notice asked on Tuesday, 9 November 2004 by Christine Sharp, MLC of the Minister for Agriculture, Forestry and Fisheries, as he was then called. Clearly, signing over our quarantine resources to the federal

[COUNCIL - Wednesday, 12 April 2006] 1539 government and unifying those efforts could, to some extent, help with cost sharing. However, within a few months of the new arrangements being endorsed by both heads of department - an endorsement that included some acceptance of the need to consider regional differences during the import risk assessments and to consult with Western Australia on quarantine matters - the federal government released its import risk assessment on New Zealand apples. This document was prepared without consulting WA, and with no scientific coverage of the additional risks to WA posed by codling moth and apple scab. In fact, the import risk assessment took a national approach, which is what we are talking about, without any recognition of regional difference. It simply focused on fire blight control protocols, which were not in Western Australia’s interests. Fortunately for Western Australia, these protocols were seen to be so inadequate as to require a rewrite of the draft import risk assessment document. That is now being prepared. Has the new import risk assessment document been completed? Hon Kim Chance: Not that I am aware of. Hon PAUL LLEWELLYN: Has it been sent back to the drawing board? In practice, the consequence of running an import risk assessment without consulting with Western Australia basically shows that the commonwealth pays no regard to the acceptance of regional differences - Hon Robyn McSweeney: As part of the import risk analysis, 34 submissions were received from all over Australia, and it ended on 30 March 2006. Hon Kim Chance: But we do not have the new IRA. Hon Robyn McSweeney: No, we do not. Hon PAUL LLEWELLYN: That is the redraft, which is the consequence of them undertaking an import risk assessment without having regard for Western Australia’s regional differences and forgetting the assessment for codling moth and apple scab, which puts Western Australia’s apple industry at risk. Hon Kim Chance: Whilst I acknowledge what the member has said is true, that process of consultation with WA occurred in the latter part of the process. In the end, we were quite satisfied with the consultation that occurred in the second part of the process. Hon Adele Farina: The problem is that the two points of consultation occurred too late. Hon PAUL LLEWELLYN: This supports the notion that regional difference needs to be acknowledged and that we need a functional mechanism for incorporating regional differences into our quarantine arrangements. Where do we go now with the emergence of the Trans-Tasman Mutual Recognition (Western Australia) Bill? That bill sets a legal precedent that affects WA’s quarantine sovereignty. We can make that argument at a later date. The bill should continue to be deferred until the states are collectively confident that Western Australia’s biosecurity requirements will operate in conjunction with natural barriers and protection boundaries to facilitate the highest level of area freedom appropriate to each region. That is the guts of it. This needs to be set out in a formal and binding public policy document, such as an updated MOU. The most important aspect of this motion is - That this house requests the Australian government to recognise and formally acknowledge the prerogatives of Western Australia to determine regional freedom from pests and diseases on a scientific basis, . . . We could leave it right there and delete - consistent with the obligations of the World Trade Organisation - That has basically frustrated our efforts - Agreement on the Application of Sanitary and Phytosanitary Measures. Amendment to Motion Hon PAUL LLEWELLYN: I move - To delete all words after “basis”. In support of improving the motion, I have moved to delete all words after “basis”. Therefore, if my amendment is agreed to, the motion will read - That this House requests the Australian Government to recognize and formally acknowledge the prerogatives of Western Australia to determine regional freedom from pests and diseases on a scientific basis. That is all that is required to make this motion effective. Amendment put and passed.

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Motion, as Amended HON NIGEL HALLETT (South West) [4.11 pm]: My understanding of this motion is that it essentially asks the federal government to allow Western Australia to decide its own quarantine measures without the interference of the commonwealth government if it feels that Western Australia is breaching the World Trade Organisation Agreement on the Application of Sanitary and Phytosanitary Measures - the SPS agreement. I will not go into the meaning of that agreement because Hon Barry House outlined it to the house in great detail. The WTO’s SPS agreement allows countries to set their own standards on quarantine measures that they feel are necessary to protect them from the importation of foreign pests and diseases. It enshrines and protects their sovereign right to decide the level of protection they regard as necessary, but is constructed to ensure that those rights are not misused for trade restrictive purposes. The commonwealth government is party to this agreement. Hon Kim Chance gave a very detailed outline of the trade restrictions that could be used against us. For example, if New Zealand or any other country wanted to export fruit into Western Australia that would raise potential quarantine issues, we would refuse to import the fruit on the grounds that based on scientific assessment it was a definite quarantine risk. New Zealand could protest that there is no risk to Western Australia’s quarantine status and that we were trying to protect our fruit industry by using a false quarantine threat. If New Zealand believed that Western Australia had breached the SPS agreement, it could challenge Western Australia’s determination. If the commonwealth government considered the issue and decided that it did not agree with the Western Australian government’s risk assessment, it could override Western Australia’s decision and allow the importation into Western Australia of a product that was not compliant with WA’s quarantine measures. The amended motion will satisfy that problem. It is essentially about protecting signatories to the SPS agreement against unfair trade restrictions, not keeping regions and areas such as Western Australia disease and pest free. This motion is asking the commonwealth government to formally recognise Western Australia’s right to determine quarantine matters from a regional perspective. The successful job done at the state’s borders to protect our quarantine status must be acknowledged. It has previously been noted that fire blight, coddling moth and apple scab has been kept out of the Western Australian fruit industry. The commonwealth, states and territories entered into a memorandum of understanding on animal and plant measures in 1995. The objective of the MOU was for Australia to comply with the relevant obligations under the SPS agreement. Among other things, the MOU provides that the states and territories will consult fully with the commonwealth government before implementing any relevant sanitary or phytosanitary measures that could inhibit trade into Australia that might not conform to the provisions of the SPS agreement. It provides also that the states and territories must not apply sanitary or phytosanitary quarantine measures that would not conform to the SPS agreement. The state government believes that the MOU does not adequately recognise Western Australia’s regional differences regarding its pest status and risk. Western Australia is free from many international pest and diseases that are prevalent also in other states. When Mr Delane from the Department of Agriculture gave evidence to the Standing Committee on Uniform Legislation and General Purposes hearing, he said that he believed the MOU was designed to reinforce the obligations of the states and territories pursuant to the SPS agreement rather than to express any responsibility that the commonwealth government has to adequately protect all the regions of Australia from products that pose a quarantine risk. He advised the committee that this is a contentious area. Debate interrupted, pursuant to sessional orders. Sitting suspended from 4.15 to 4.30 pm QUESTIONS WITHOUT NOTICE HOUSING - BASIX PROPOSAL 169. Hon SIMON O’BRIEN to the parliamentary secretary representing the Minister for Planning and Infrastructure: I refer the minister to the government’s BASIX proposal to introduce new sustainability criteria for housing in Western Australia. (1) What is the current time frame for the public trials and consultation for BASIX, originally scheduled for January to March this year, and with whom has the government consulted to date? (2) Have any discussion papers been released; if not, why not; and if so, will the minister table them? (3) Has a comprehensive regulatory impact statement been prepared; if not, why not; and if so, will the minister table it? Hon ADELE FARINA replied: I thank the member for some notice of this question. The information was not available in the time required. I therefore request that the honourable member place the question on notice.

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DR STEPHEN VAN DER MYE - COMPENSATION CLAIM 170. Hon SIMON O’BRIEN to the Leader of the House representing the Minister for Energy: I ask this question on behalf of the Leader of the Opposition. (1) Will the minister provide an update on the current status of former Western Power chief executive officer Dr van der Mye’s pursuit of compensation against the government? (2) Will the minister clarify whether the former chief executive officer resigned voluntarily or was made redundant? Hon KIM CHANCE replied: I thank the member for providing some notice of the question asked on behalf of the Leader of the Opposition. (1)-(2) Western Power has done all that is required of it to enable Dr van der Mye to enter the matter for trial. When he does so is a matter for Dr van der Mye. I am advised that, if it is entered for trial shortly, that trial may occur later this year. It is Western Power’s case that the former CEO resigned voluntarily. There is no question of his having been made redundant. Any further comment is inappropriate given that the matter is presently pending before the Supreme Court of Western Australia. LOCAL GOVERNMENT REFORM - REPORT 171. Hon ROBYN McSWEENEY to the Minister for Local Government and Regional Development: I refer to the inquiry into local government reform in Western Australia titled “Ensuring the Future Sustainability of Communities”. (1) Can the minister confirm that the inquiry found that approximately 90 of the 144 councils throughout Western Australia are unsustainable? (2) When will this report be released publicly? Hon KIM CHANCE replied: On behalf of the Minister for Local Government and Regional Development, I thank the member for some notice of this question. (1)-(2) The minister is still considering the report. A decision about when the report will be released will be made once it has been presented to cabinet. WESTERN AUSTRALIAN CERTIFICATE OF EDUCATION - STATISTICAL MONITORING 172. Hon PETER COLLIER to the Minister for Education and Training: I refer the minister to policy 5 from the new Western Australian Certificate of Education manual 2006-09. Item 5.1 states that statistical monitoring will be used to monitor the comparability of judgments about patterns of student cohort achievement in each course, in different schools in each course and across all courses. Statistical monitoring will not be used to automatically adjust school assessments of student achievement. It will be used to inform the ongoing moderation process to minimise the risk of statewide comparability not being achieved. (1) Will the minister explain which method of statistical moderation will be used with new courses of study to monitor the comparability of judgments about patterns of school cohort achievement in each course, in different schools in each course and across all courses? (2) If not, why not? Hon LJILJANNA RAVLICH replied: I thank the member for some notice of this question. I wonder whether he wrote it himself or someone else wrote it for him. The PRESIDENT: Order! I ask the minister to please answer the question. Hon LJILJANNA RAVLICH: He seems to have a bit of a rubbery history in that regard. The PRESIDENT: Order! Will the Minister for Education and Training please answer the question? Hon LJILJANNA RAVLICH: Thank you, Mr President. (1)-(2) Two systems of moderation will be used to monitor the comparability of school assessment of student achievement in the new courses of study. The first is an ongoing process that will include statistical monitoring as described in item 5.1 of the new WACE manual. This applies to all students. It is proposed that for students seeking university entrance, a method of statistical moderation similar to that currently used and agreed by the Curriculum Council and the universities will be implemented. This will ensure compatibility of assessment in different schools and courses, and the current method of scaling will be used to ensure compatibility across all courses.

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WATER CORPORATION - CHARGES RELATING TO SEWAGE OVERFLOW 173. Hon GIZ WATSON to the minister representing the Minister for the Environment: I refer to the minister’s media statement of 3 March 2006 from the Department of Environment titled “Big win for Swan River over Water Corporation spill”. (1) What were the total direct and associated costs of the Department of Environment’s investigation into the two sewage overflows into the Swan River at Bridge Street, Guildford on 10 July and 14 November 2003, and what was the cost of the management of the case for the time it was before the court? (2) How long did the investigation take before charges were brought against the Water Corporation? (3) What was the cost of legal advice provided on this case? (4) What range of penalties were available under the original charges? (5) What was the modified charge? (6) Will the fine of $25 000 be utilised in the reparation of the Swan River? Hon LJILJANNA RAVLICH replied: I thank the member for some notice of this question. The Minister for the Environment has provided the following response - (1) The total direct and indirect costs of this Department of Environment investigation have not been calculated. All resource costs, human and otherwise, for this comprehensive investigation were provided by and met through the environmental enforcement unit budget as part of the EEU’s role in providing investigative capability to the Department of Environment. (2)-(3) The Department of Environment’s EEU commenced an investigation into this incident on 14 November 2003, the day the sewage overflow was discovered. As a result of this investigation, an inspection of Water Corporation’s waste management computer system was conducted, which identified that two previously undiscovered similar overflow incidents had occurred on 29 May and 10 July 2003. A thorough investigation into all three incidents was conducted on behalf of the Swan River Trust. The investigation was finalised and the prosecution launched on 21 April 2004 after all available evidence had been collected and passed established internal and external quality assurance processes. The EEU legal officer provided legal advice concerning the investigation and prosecution. Additional legal advice was provided and conduct of the prosecution undertaken by the State Solicitor’s office. (4) The maximum penalty payable by the defendant, if found guilty, under the original charge was $500 000 for each offence. (5) Two modified penalty notices, each for $12 000, were issued under section 49(5) of the Environmental Protection Act for creating an unreasonable emission. (6) The $25 000 total modified penalty will not be utilised in the reparation of the Swan River. The Environmental Protection Act states that proceeds of modified penalties must be paid into consolidated revenue. It should be noted that, as part of this negotiated outcome, the Water Corporation agreed to provide an additional $325 000 to programs designed to improve water quality in the Swan and Canning Rivers. HOMESWEST PROPERTIES - MARGARET RIVER 174. Hon BARRY HOUSE to the parliamentary secretary representing the Minister for Housing and Works: I refer to question without notice 125 regarding Homeswest housing in Margaret River, which I asked last Wednesday, 5 April 2006. (1) Are any individuals occupying Homeswest accommodation that is more suited to families? (2) How many of the 46 people currently on the waiting list are from places other than the Margaret River area? Hon KATE DOUST replied: I thank the honourable member for some notice of this question. The Department of Housing and Works advises - (1) Yes. (2) There are 12. The Department of Housing and Works accepts applications from any eligible WA resident for accommodation in any part of the state.

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PEAK-PERIOD TAXIS 175. Hon PAUL LLEWELLYN to the parliamentary secretary representing the Minister for Planning and Infrastructure: (1) Is the minister aware that transferable peak-period taxi operators have been disadvantaged by the flooding of the market with government plates? (2) Is the minister aware that this disadvantage means that peak-period taxi operators cannot attract drivers or lessees for their taxis? (3) Given that the peak-period taxi operators cannot find drivers, will the Department for Planning and Infrastructure continue to fine owners for not operating their taxis? (4) If yes to (3), why? (5) Will the minister indicate whether she is prepared to negotiate with the transferable peak-period taxi operators group to resolve this impasse? (6) If no to (5), why not; and if yes, when? Hon ADELE FARINA replied: I thank the honourable member for some notice of this question. Unfortunately, I do not have an answer for the member at this time. I suggest that he ask the question again tomorrow.

ROYAL PERTH HOSPITAL - REHABILITATION ENGINEERING CLINIC 176. Hon BARBARA SCOTT to the parliamentary secretary representing the Minister for Health: (1) Will the minister advise whether he is prepared to consider an increase in staffing levels at the Royal Perth Hospital Shenton Park Campus Rehabilitation Engineering Clinic with the addition of one qualified engineer to assist with the backlog of work and to expedite the completion of toilet facilities in Monica McGhie’s chair? (2) If not, why not? (3) If the minister is not prepared to increase the staffing levels, will he advise how the completion of the chair may be expedited? Monica McGhie is an artist who has no arms or legs. Hon SUE ELLERY replied: I thank the honourable member for some notice of this question. (1)-(3) The key technician assigned to this project resigned in June 2005. Since that time the Rehabilitation Engineering Clinic has undertaken to fill the position on two occasions without success due to a lack of suitably qualified and skilled personnel. The severe skills shortage in this area hampers the ability to attract suitable personnel. Presently the REC is in discussion with a prospective applicant to fill the position on a contract basis. There is an appointment with the REC on 2 June 2006 to test the toileting system. If the test is successful, the system will be installed.

PROPOSED NORTHAM SHEEP SALEYARDS 177. Hon BRUCE DONALDSON to the Minister for Agriculture and Food: The minister was quoted in an article in the Farm Weekly of 6 April 2006 on the saleyards being built at Muchea and Northam and the existing Katanning saleyards as saying - . . . if one of the saleyards were to fail, it would be Northam. (1) Does the minister stand by his comment? (2) What basis or facts underpin the minister’s comment? (3) Is it correct that the majority of WA sheep are in the Northam region? Hon KIM CHANCE replied: (1) Yes, I do. (2) The basis for my forming that view is that I think there is less underpinning capacity in the Northam proposition than there is in either Muchea or Katanning. Were the Northam facility to go ahead, it would certainly impact to some degree on the Muchea saleyards and to a greater degree on the Katanning saleyards. Indeed, it could threaten the viability of the Katanning saleyards to the extent that

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the new facility may not even be built, which would be a tragedy given that the vast majority of the state’s sheep are within a 100-mile radius of Katanning. Obviously Katanning is and should always be our major sheep-selling centre. (3) The third part of the question asked whether Northam controlled the catchment area of the majority of the state’s sheep. I do not know whether that is true. I think Katanning is the area that has the greater catchment area of sheep. There are sheep, of course, in the eastern wheatbelt and the Avon valley. One of the peculiarities that have come to light by virtue of advice from the agents is that, although there are sheep in the eastern wheatbelt, the numbers of sheep cannot be correlated to the flowthrough to a central saleyard because eastern wheatbelt producers tend to consign direct to clients rather than to saleyards. This is partly because of a greater degree of professionalism that comes from operating larger farms. I am therefore not at all sure of the capacity that Northam actually has to garner these sheep numbers. Muchea, of course, would be a stand-alone operation based on cattle alone. However, we also seek to service the sheep producers of the northern wheatbelt, the Gascoyne and the Murchison - to the extent that sheep still exist there - and the northern midlands area where a very large number of sheep still exist. For those producers, the location of a selling facility at Northam would be of little interest. I imagine that were it not for the existence of the Muchea yards, those sheep would have to continue their journey all the way south to Katanning. In terms of producers of prime stock, including those in the Avon valley adjacent to Northam yards, I am afraid that members are assuming that prime stock would be attracted to the Northam facility simply because they are in the Avon valley area. I do not believe that to be the case. There are prime stock producers who use saleyard facilities, but they tend to be pretty much rusted onto using the sheep abattoir at Katanning. I cannot foresee such producers being attracted to a new facility in Northam knowing that they would then lose the capacity to control the transport phase of prime stock. Of course, once they lose control of that transport phase, they would also lose their capacity to control bruising and other elements that would diminish the carcass value. I am therefore not convinced that there is a case for the Northam facility. Further to that, I am not convinced that a business case for the facility can be established such that would give a lender confidence that any reasonable internal herd rate of return could be achieved to justify a loan of that scale, bearing in mind that the loan would be in the order of $3 million. PASTORAL LEASES - PERMITS 178. Hon KEN BASTON to the parliamentary secretary representing the Minister for Planning and Infrastructure: I refer to the part 7, division 5 of the Land Administration Act 1997, which allows lessees of pastoral land to obtain non-transferable permits for diversification projects such as silviculture, including sandalwood plantations. (1) Given that some plantations will not have matured when the current leases expire in 2015, and as 60 per cent of the current lessees have been offered a lease renewal for 40 to 50 years - (a) are the permit expiry dates synchronised to the expiry dates of the lease renewals when the lessee remains unchanged; and (b) if no to (a), why not, and will the minister rectify this? (2) Does the minister agree that lack of synchronisation could deter lessees from establishing silviculture projects that would add significantly to the gross value of rangeland production, particularly sandalwood which is a highly prized export? Hon ADELE FARINA replied: I thank the member for some notice of this question. There are no current diversification permits for silviculture, including the growing of sandalwood. (1) (a) No. (b) All pastoral leases, and consequently diversification permits on those leases, expire on 30 June 2015. It is not possible to issue a diversification permit to a pastoral lessee beyond the expiry of the lease. Offers of renewal of pastoral leases post-2015 are conditional and should those conditions not be satisfied, the offer of lease renewal may not be realised. Thus, there is no guarantee of continuity of the lease, and the permits cannot be issued beyond the term of the current lease. (2) Persons, including pastoral lessees, should not be deterred from embarking on a silviculture operation as they may apply for a lease under section 79 of the Land Administration Act 1997, which could be granted beyond 2015.

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GENETICALLY MODIFIED FOODS - ASSESSMENT 179. Hon ANTHONY FELS to the Minister for Agriculture and Food: Last Saturday the minister was reported in The West Australian as attacking Food Standards Australia New Zealand, the national food watchdog, claiming that it does not adequately assess the health impacts of genetically modified crops. Abstracts and citations of more than 60 independent scientific papers on GM animal feeding trials have been drawn to the minister’s attention. (1) What does the minister expect to accomplish with a $92 000 budget in six months? (2) What does the minister expect to accomplish by undermining public confidence in our country’s regulatory system, and does he realise that if each state were to start developing its own testing systems for GM products, business in Australia would become impossible? Several members interjected. The PRESIDENT: Order! With respect to members on my right, question time is due to be cut off at 5.00 pm sharp. Taking that into account, a number of members wish to ask questions. Hon KIM CHANCE replied: (1)-(2) What do I expect to achieve by undermining FSANZ and other regulatory authorities? I seem to recall, although it may not have been printed, that I took a bit of a pot shot at another regulatory authority. Hon Ken Travers: They get their briefing notes from federal ministers, so they know nothing else. Hon KIM CHANCE: That is true. Since the government announced it would fund quite a small animal feeding trial to determine the safety of genetically engineered foods, it has received this huge wave of protests from what amounted to eight or nine American scientists. They sent letters to the Premier and to me. They sent e-mails and a whole chain of information saying what a terrible thing it was that we had appointed an independent person to carry out this work. I thought those eight or nine people were obviously eminent scientists who had an issue, so I did some checking of their backgrounds. Every one of those eight or nine scientists is in the pocket of the GE companies. They are all recipients of grants from Monsanto, Bayer or another such company. Let us acknowledge, first, that no authority does any testing on food safety or GM food, and has never done in the history of Australia. Hon Anthony Fels: What about your department? Hon KIM CHANCE: Including my department. My department is not a public health agency. Those eight or nine scientists expected us to say that the people from the University of Adelaide, who are carrying out testing on our behalf, are not independent; however, the people who do the testing, and upon whom FSANZ relies for the data on which it assesses food safety in Australia, are the proponents of the technology. The people who do the testing are from Bayer and Monsanto. It means that they think Bayer and Monsanto are objective, but a university-based agency is not! Members might try to work that one out. Of course, when we test the objectivity of that handful of scientists - or nearly two handfuls - we find not one of them is in any sense objective. As to what we expect from the trial, it is a modestly funded trial, with $92 000 funding from the Western Australian government, but the agency at Adelaide University obviously has other sources of funds. We expect to achieve for the first time in Australia, and indeed one of the first times in the world, an animal feeding trial using exclusively GE foods, which is carried out objectively over a period of time. It has been done on only a handful of occasions around the world. On every other occasion when this kind of testing has been carried out, it has been carried out by the proponents of the technology. The only way in which one could say that there is some middle ground is when the Commonwealth Scientific and Industrial Research Organisation, which I do regard as objective, carries out testing on its own GE issues. When the CSIRO produced a genetically engineered pea and carried out extensive animal feeding trials, it stopped its work on that GE pea because it caused lung dysfunction in the animals that were being fed. There are issues involved that need to be followed through. I do not know whether feeding GE food injures animals, but I do know that I would rather trust an independent person to carry out that testing than somebody who must make money out of it. In the political horserace, if there is a horse called self-interest, always be on it. It might not necessarily win, but we know it will be trying. COUNTRY HOUSING AUTHORITY GRANTS - INCREASE 180. Hon NIGEL HALLETT to the parliamentary secretary representing the Minister for Housing and Works: As Country Housing Authority grants to regional local governments have not increased over a maximum of $50 000 since 2000, are local government authorities expected to absorb the extra costs incurred over the past five years as a result of the significant increase in building costs?

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Hon KATE DOUST replied: I thank the member for some notice of this question. The grants are designed to make regional housing more affordable. Local governments can partner with private sector and non-government organisations when making their application for a grant. Having regard to the number and an assessment of the applications, the Country Housing Authority board could recommend a higher contribution.

CANNABIS INFRINGEMENT NOTICES 181. Hon DONNA FARAGHER to the minister representing the Minister for Police and Emergency Services: (1) How many individuals received a cannabis infringement notice, of the 6 909 cannabis infringement notices issued since 23 March 2004? (2) Of those individuals issued with a cannabis infringement notice, how many - (a) elected to be prosecuted for the alleged offence in court; (b) paid the modified penalty for the offence within 28 days after the issue of the notice; or (c) completed a cannabis education session within 28 days after the issue of the notice? Hon KIM CHANCE replied: On behalf of the minister representing the Minister for Police and Emergency Services, I thank Hon Donna Faragher for some notice of this question. The Western Australia Police advises - (1)-(2) This information is currently captured on a stand-alone system. It would require considerable time to review the data manually in order to retrieve the specific data requested.

FORTESCUE METALS GROUP - STATE AGREEMENT 182. Hon SIMON O’BRIEN to the Leader of the House representing the Minister for State Development: Some notice of this question has been given. I think this question may be in Hon Norman Moore’s name. Several members interjected. The PRESIDENT: Order, members, I will be cutting off question time at five o’clock. Hon SIMON O’BRIEN: I refer the minister the Iron Ore (FMG Chichester Pty Ltd) Agreement Bill. (1) Why is the government advancing this mining agreement before the company has proved the resource base it requires? (2) Why has the government proceeded with the Chichester agreement when Fortescue Metals Group Ltd failed to meet its initial state agreement requirement to deliver detailed plans of the railway and port infrastructure by December 2005? (3) Why does the government’s agreement with Fortescue Metals bypass the government’s new Mining Act rules, including reversion licence applications for those with exploration licences and the need to prove a resource and submit detailed plans for the mining operation prior to being granted a mining lease? Hon KIM CHANCE replied: I thank Hon Simon O’Brien for providing notice of the question. I cannot find it in my file but it seems vaguely familiar. I think I have read an answer. Hon Simon O’Brien: Notice was given yesterday. Hon KIM CHANCE: I thought I had seen it. If one arrives during the course of question time, I will give the answer, otherwise we will do it tomorrow.

QUESTION ON NOTICE 3233 Answer Advice HON KIM CHANCE (Agricultural - Leader of the House) [5.00 pm]: Subject to standing order 138, I inform the house that the answer to question on notice 3233, asked by Hon Peter Collier on 14 March 2006 to me representing the Premier, will be provided in due course.

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QUESTION ON NOTICE 3231 Answer Advice HON ADELE FARINA (South West - Parliamentary Secretary) [5.01 pm]: Subject to standing order 138, I inform the house that the answer to question on notice 3231, asked by Hon Paul Llewellyn on Tuesday, 14 March 2006 to me representing the Minister for Planning and Infrastructure, will be provided on Tuesday, 2 May 2006. QUESTION WITHOUT NOTICE 168 Answer Advice HON SUE ELLERY (South Metropolitan - Parliamentary Secretary) [5.02 pm]: Yesterday Hon Helen Morton asked question without notice 168, for which an answer was not available. I would like to inform the honourable member that the minister was contacted today and has provided an answer, which I seek leave to table and have incorporated in Hansard. Leave granted. [See paper 1439.] The following material was incorporated -

I thank the Hon. Member for some notice of this question. 1. The Lease for 189 Royal Street including outgoings is approximately $3.2 million per annum. The breakdown of lease payments is: Lease $2,090,000 Maintenance $ 326,000 Cleaning $ 254,000 Security $ 106,000 Electricity $ 342,000 Gas $ 12,000 Water (incl rates) $ 30,000 2. The estimated full FTE located in the Department of Health Building at 189 Royal Street, East Perth is approximately 496.

COMMITTEE REPORTS AND MINISTERIAL STATEMENTS - CONSIDERATION Committee The Deputy Chairman of Committees (Hon Louise Pratt) in the chair. Standing Committee on Estimates and Financial Operations - First Report - Legislative Council Financial Processes and Procedures - Motion Resumed from 5 April on the following motion moved by Hon Norman Moore (Leader of the Opposition) - That the report be noted. Hon KIM CHANCE: Honourable members will recall that as I finished my contribution to this debate on Wednesday, 5 April, I was rushing to complete the comments I sought to make, which were largely directed towards a response to the invitation made to me by the Leader of the Opposition to comment on the future of the Legislative Council’s budget. Of course, I cannot comment on the future of the Legislative Council’s budget except to say that, acting on the invitation of the President, I sought to address some of the things about the determination of our budget that, as I said on 5 April, were clearly wrong. However, we will have to wait until 11 May to determine whether we were successful in that. I support the motion moved by the Leader of the Opposition that the report be noted. In relation to the content of the report, I note that, at that time, the Acting Clerk advised that the inquiry into the Legislative Council’s procedures and processes has in fact increased the accountability of the department and has resulted in additional funding being provided. That is an achievement that was noted at that time. The question of future funding is, of course, something that will not be discovered until the budget is brought down. I welcome the report and I am happy to support the Leader of the Opposition’s motion. Hon GIZ WATSON: This is the first report of the Standing Committee on Estimates and Financial Operations. As chair of that committee, it is beholden upon me to at least note it. I thank members for taking the call last week to allow the debate to be still alive by the time I returned; otherwise other matters would have taken its place. The committee decided to undertake this fairly limited but important inquiry into the Legislative Council’s financial processes and procedures. Obviously, part of the impetus was the event that occurred in relation to the

1548 [COUNCIL - Wednesday, 12 April 2006] finances of this house last year. In light of that, there was a public interest in ensuring that as a standing committee that was given the task of looking at financial operations, we did not shy away from looking at the financial operations of the Council. It was timely that the committee did that and it was in the interests of Parliament. Members were interested to get answers to what sort of review of the financial processes within the Legislative Council had occurred. The committee undertook to carry out this inquiry. It is fair to say that it is a relatively short report - a whole four pages. The report states - 5.1 The Committee notes that the Auditor General is undertaking an audit and review of the Department and is reassured that any recommendations made will be addressed by the Department. 5.2 The Committee notes the advice of the Acting Clerk that the Department has reviewed the financial processes and procedures of the Department and has put into place a number of initiatives that increase the accountability of the Department. The Committee also notes that it is intended to implement further initiatives to further increase accountability. 5.3 The Committee is satisfied that actions have been, and are being, taken to address any issues that have arisen and that the processes and procedures are adequate to ensure the integrity of the Legislative Council. 5.4 It is the Committee’s intention to review the implementation of the new accountability measures of the Department within the next 12 months. That accountability will be forthcoming with the new procedures that have been put in place to assure both members and the public that the Legislative Council procedures are now more watertight. I encourage members to read the report if they have not already done so, because it outlines the additional checks and balances that have been put in place to ensure accountability. Neither of the previous speakers mentioned that, so I will refer to it at this point. The Acting Clerk advised the committee that the current processes and policies of the Legislative Council were being reviewed by the department. That review has now occurred. A number of new initiatives, policies and procedures have been implemented to ensure the integrity of the Legislative Council. A number of changes have been made to the management structure of the department. To provide greater transparency and accountability, the Clerk Assistant, the Executive Officer (Committees) and the personal assistant to the President have been appointed as financial managers for the house, its committees and the President’s office respectively. The financial managers are responsible for incurring all accounts prior to certification by the accountable officer under the Financial Administration and Audit Act 1985, and for monitoring and reviewing their budgets and providing regular reports to the accountable officer. The committee also noted that no person alone can now incur and certify an account. There has been a change in the policy for the appointment of consultants. The report states at paragraph 3.5 - A policy has been adopted by the Department for the appointment of consultants which requires a panel of three to consider any appointments. The panel’s recommendation is forwarded to the Clerk for approval. On the issue of financial accountability, the report states - 3.6 To ensure that there is proper financial accountability, an Executive Management Team and a Financial and Risk Management Team have been established. 3.7 The role of the Executive Management Team will include: • the provision of leadership and ensuring effective management, coordination and performance of the Department; • consideration of reports from each management team leader; • oversight of the development and implementation of the management plans, Departmental and parliamentary policies and procedures, management information systems and controls; and • the review and a recommendation to the President of the annual budget for the Department. A corporate governance strategy has also been prepared, incorporating a number of dimensions, including management structure, management systems and management standards. In addition, the department will establish key performance indicators, or corporate outcomes. These will provide an overview of the critical or material aspects of service provision and achievements, including matters pursuant to the Financial Administration and Audit Act 1985.

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My final point, which was also made by the two previous speakers, is that the committee noted that the department had been under enormous financial pressures. I add my voice to that. Although I was not in the chamber for the contributions made by the Leader of the Opposition and the Leader of the House on this matter, I also note the discrepancy between the finances made available to Legislative Assembly members and those made available to members of the Legislative Council. Legislative Council members need to continue to put the case for a fully and adequately resourced Legislative Council, particularly for the committee system, which does such a good job. I hope that the Standing Committee on Estimates and Financial Operations will continue to play a role in not only scrutinising government departments and bodies, but also from time to time looking at the operation of the department of the Legislative Council. The committee has indicated that it will look at this issue again in 12 months, which would be a useful contribution to the transparency and accountability of the Legislative Council. Hon KEN TRAVERS: I concur with the comments made by the chair of the committee. It was perhaps unfortunate at one level but fortunate at another level that the committee’s first task was to take the opportunity to look at this place’s own actions and procedures. Hon Giz Watson has adequately covered the many issues referred to in the report. However, I formally place on the record my thanks to the Acting Clerk at that time, the current Deputy Clerk, for the actions he took and the way he conducted himself when dealing with some very difficult issues. He is to be commended. I congratulate him and say well done, great job! Question put and passed. Salinity and Natural Resource Management - Responsibility of Minister for Agriculture and Forestry - Statement by Minister for Agriculture and Forestry Resumed from 17 May 2005. Motion Hon BRUCE DONALDSON: I move - That the ministerial statement be noted. This ministerial statement was made on Tuesday, 17 May 2005. The only issue at stake at that time was how the government was handling resource management. The Minister for Agriculture and Forestry, as he was then called, and the Minister for the Environment were to take responsibility for resource management, and certain things were to happen after 1 July. The rangelands and national action plan programs were be developed for the Avon, south coast, rangelands, northern agricultural, south west and Swan catchment councils. On 1 July 2005, Hon Kim Chance stated that we would move to an implementation phase, with funding to be allocated to implement the strategies. Will the Minister for Agriculture and Food bring us up to date: did it all take place and is it working? I think $316 million was involved in developing the national action plan for salinity and water quality. Hon KIM CHANCE: As Hon Bruce Donaldson has noted, it is almost a year since that statement was made at the member’s invitation. I will comment briefly on some things that have occurred since 17 May 2005 and the role of the lead minister in that area. I will not take too much time of the committee, but I will refer to a couple of paragraphs from what is in effect a briefing note to me. I am happy to table the whole briefing note because it deals individually with the progress made not only statewide but also by each of the regional resource management groups. Rather than go through and put all of that briefing note on the record, I will table it, because members will have a particular interest in certain areas. Nevertheless, I propose to comment on a couple of the main things that have occurred since 17 May 2005. All six regional natural resource management group strategies covering the whole of Western Australia have been accredited in that period. The regional NRM strategies identified the high-priority assets that are under threat and allowed the government to target investment through the identification of NRM assets and priorities at a regional level. All six regional NRM groups in Western Australia have now developed investment plans that identify the specific projects required to achieve outcomes identified in those aforementioned strategies. All investment plans have now been approved by the Australian and Western Australian governments, and the regional NRM groups are undergoing phase 2 of the investment planning and approval process - that is basically for the second year after it started. Some very good things have been achieved in that time. Significantly, since 17 May we have moved from the planning and construction phase of the NRM process to the operational phase, and money is now getting to the ground. All regional NRM groups are implementing NRM projects across the state and are focusing on high-value, high-threat priority assets that will result in the best outcomes for the government’s investment. Rigorous contracts have been put in place to secure funding totalling $90.3 million. Literally scores of projects are being implemented. Additionally, several strategic cross-regional projects totalling more than $13 million are now under way. I will not comment any further on the statewide issues because I will table this document. However, I will refer briefly to two of the regions. As I said, each of the regions has a very tight brief on their achievements. I will

1550 [COUNCIL - Wednesday, 12 April 2006] refer to the Avon region, which a number of members represent. The Avon Catchment Council covers 12 million hectares of Western Australia’s wheatbelt. They are the farming regions that cover the river systems of the Avon, Lockhart and Yilgarn Rivers. The council has received $13.79 million through the national action plan for salinity and water quality and through the Natural Heritage Trust to deliver 15 natural resources management projects in this calendar year. The Northern Agricultural Catchment’s Council is implementing $8 million worth of NRM projects across the region, covering 7.5 million hectares to the north and north east of Perth. I have referred to this project in particular because one of the region’s standout initiatives being considered is a variety of drainage projects to combat salinity in the Yarra Yarra catchment. The pilot scheme to establish catchment benchmarks for regional Western Australia, but which is significant for the whole of the state, involves constructing 150 kilometres of leveed deep drains, leading back from the 13 most significant discharge points along the Yarra Yarra lake system. Complementary surface water channels are flanked by significant areas of vegetation and will create environmentally friendly corridors throughout the drainage network. Feasibility and engagement projects are currently under way. I will not comment further on that. I seek leave to table this document headed “Briefing Notes, NRM progress”. Leave granted. [See paper 1440.] Question put and passed. Standing Committee on Procedure and Privileges - Eighth Report - Matters Referred to the Committee and Other Miscellaneous Matters Resumed from 16 November 2005. Hon GEORGE CASH: I will move to postpone consideration of this report until the next sitting. Members will not have to waste a lot of time discussing the report under this heading because in due course there will be an opportunity to debate it when another order of the day is introduced, and I hope that that will occur shortly. Consideration of report postponed, on motion by Hon George Cash. Storm-Damaged Schools - Statement by Minister for Education and Training Resumed from 17 May 2005. Motion Hon BRUCE DONALDSON: I move - That the statement be noted. Immediately after the Leader of the House made a ministerial statement on salinity and natural resource management, a good deal of damage was caused by storms. In her statement of 17 May, Hon Ljiljanna Ravlich explained to members some of the storm damage she had seen first-hand, especially at Bicton Primary School. It was very lucky that no children were injured because quite significant damage was caused. The minister said that the government would make sure that it gave priority to repair a number of storm-damaged schools. Many other schools suffered damage, including Shelley Primary School, Roleystone District High School, Roleystone Primary School, Serpentine Primary School, Bunbury Senior High School, Newton Moore Senior High School, Teakwood Community Kindergarten and Ellenbrook Primary School. The minister pointed out that most of the schools had been able to reopen on that day and she gave a commitment that the government would get stuck into it and make sure that the schools were brought back into a good and safe working condition for the children. I know that it was a long time ago, but it would be handy for the minister to explain the program and to give members some idea of the length of time it took to repair the damage. Hon LJILJANNA RAVLICH: The heading of this statement on the notice paper is incorrect. The statement was not about a relief fund. The original statement I tabled in this place was titled “storm-damaged schools”. No specific relief fund has been set up for storm-damaged schools. The funds are sourced from the capital works and maintenance budgets and are recovered from insurance claims. That is how the system works. The storm happened very soon after I became the Minister for Education and Training. When it first happened, I visited the site expecting to find some damage, but I had no idea about the power of the storm and the impact it had. It was amazing to see trees ripped in half and pianos 300 metres from where they originally had been. The damage certainly demonstrated the intensity of the storm. I was relieved that no child had been injured. The roof at one part of the school had totally collapsed. Had it happened 45 or so minutes later, at least 80 or 100 students would no longer be with us. I am very grateful that no children were injured. Bicton Primary School suffered major damage in May 2005. A decision was made then to enhance the school’s facilities at the same time as undertaking the restoration and repair work. A new teaching block with four classrooms, new toilets and a new music room were built, and the administration and staff facilities were renovated and repaired. A contract has been let to the builders Geo. A. Esslemont and Son, and work has commenced and is expected to be completed by December 2006. Not only were the storm-damaged parts of the

[COUNCIL - Wednesday, 12 April 2006] 1551 school repaired, but also the government took it upon itself to undertake additional capital works for the benefit of the students. The estimated cost of that is about $2.4 million. That was not an isolated incident; in fact, many schools suffer from storm or cyclone damage. Most recently, damage has occurred to Karratha Senior High School and Karratha Primary School as a result of cyclone Glenda passing through Karratha. The Department of Housing and Works has called for repairs to the roofs and facias of both schools. Work on both of them is expected to commence shortly. In addition, the Department of Education and Training has advanced the maintenance funding for these schools under the $65 million Fixing our Schools program. The amounts for the high school and primary school are $604 622 and $176 492 respectively, and the maintenance work is expected to commence in the early part of 2006-07. This government obviously has a very strong commitment to education, given the total education take in the annual budget. It is unprecedented that some $3.7 billion annually is allocated to education. A big part of that will finance the government’s commitment to spending $1 billion on schools over the next four years on capital works, upgrades, maintenance and new buildings. The government has made a commitment to establish 39 new schools over the next four years. Of these, 12 new or redeveloped schools will open in 2006. By anyone’s standard that is a remarkable achievement. Bertram, Bushby Grove, east Butler, Hopetoun, Neerabup, south Secret Harbour, Tapping and Two Rocks primary schools will be built; replacement schools will be built at Mt Barker and Shark Bay; a new middle school will be built at Ellenbrook; and a new college will be built at Comet Bay. In addition, the four-year $65 million Fixing our Schools maintenance program is being implemented across the whole education system. In light of the adversarial nature of politics, I do not think the government has been given the credit it deserves for its commitment to education and to the capital works component of the education system. It is worth remembering that $1 billion out of a $13 billion annual state budget is a substantial sum of money. In fact, the coalition commitment in the lead-up to the last election revealed that if the coalition won office, it would implement only a quarter or a third of this government’s education and training capital works and maintenance programs. I have taken that information from the opposition’s policies, which are posted on the Internet. The rest of the money would have been blown on the famous canal proposal. Hon Bruce Donaldson: How many schools did you build in the previous four years? Hon LJILJANNA RAVLICH: Rather than 39 new schools being built, only 17 schools would have been built. Even if that promise had been kept, the existing schools would have been starved of maintenance funds. That is what I inherited. Schools would have been in dire straits. The opposition’s credibility on capital works and the building of new infrastructure falls well short of community expectation and of what Labor has delivered. The government is proud of its record in responding to situations. I put on record my appreciation for the way the education community got together in support of the students of Bicton Primary School. Students, administrators, schoolteachers, parents and the Department of Education and Training joined forces in a rapid response to ensure that the students were adequately catered for with an alternative site to minimise any impediment to their learning program. They worked together to make sure that students could once again work in a good environment and have the opportunity to learn. I commend all the stakeholders for their excellent work in that regard. Hon BRUCE DONALDSON: I cannot let the minister’s comments pass. She indicated to the chamber that she had inherited a cash-starved education capital works program. She took over as minister in May 2005. Hon Ljiljanna Ravlich: I was talking about what Minister Carpenter inherited. Hon BRUCE DONALDSON: The minister said that she inherited a cash-starved education capital works program. Hon Ljiljanna Ravlich: I meant that Labor inherited it. Hon BRUCE DONALDSON: No; the minister said that she inherited it. Hon George Cash: In that case the statement is correct. The minister forgot that she inherited it from one of her own colleagues! Hon Ljiljanna Ravlich: I did not use those words and Hon George Cash knows that. Hon BRUCE DONALDSON: To me, her remarks were like pennies from heaven! Hon Ken Travers: You are highlighting the failure of your government to fund the budget. Hon BRUCE DONALDSON: Madam Chairman, I am clearly focused on this. I am sure the minister did not realise what she was saying. At least it is now on record. I am glad she inherited a cash-starved education system after four years of a Labor government. She has turned it around and I applaud her for that. The DEPUTY CHAIRMAN (Hon Louise Pratt): Order! I remind members that the preferred terminology for addressing me while I am in the chair is Chair, not Chairman, thank you. Question put and passed.

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Standing Committee on Environment and Public Affairs - Tenth Report - Inquiry into Chemical Use by the Agriculture Protection Board Resumed from 21 October 2004. Motion Hon KATE DOUST: I move - That the report be noted. This report was tabled in the last Parliament. It was completed somewhat earlier than the tabling date. It came about as a result of a motion moved by Hon Robin Chapple for the committee to inquire into the matter. The terms of reference were very narrow and followed the tabling of the Harper and Armstrong reports into the use of 2,4,5-Trichlorophenol by spray workers for the Agriculture Protection Board in the Kimberley in the 1970s. The terms of reference are listed in the report, and I remind members how narrow they are. One of the difficulties the committee faced during the inquiry was the effect of the length of time that had passed and, consequently, fading memories. Not only had people moved on but also many of the significant players in the area had passed on. That caused some difficulty for the committee’s pursuit of information. The terms of reference are set out in the first page of the report as follows - That in relation to the use of 245T and related toxins (the “chemicals”) from 1970 to 1985 by the Agriculture Protection Board (the “APB”), the Standing Committee on Environment and Public Affairs inquire into and report to the House on the following - a) the sources of supply, the terms and conditions under which the chemicals were supplied to or acquired by the APB and the destinations of the chemicals; b) the purchasing arrangements and sources of chemicals supplied to the APB and if material sourced from overseas was supplied to and/or included in material provided by chemical companies to the APB; and c) what accounting systems were used by the APB to track the quantities and location of chemicals and how those systems might be improved to ensure accurate information is readily available and so that better information is available for protecting worker and community health. The terms of reference therefore were indeed extremely narrow and were aimed at looking at systems, record- keeping and methods of distribution. One outcome the committee found was that over such an extensive period, as one would expect, there was probably a far better concentration and acknowledgment of the delivery systems in workplaces, particularly in the manufacturing area. The committee was therefore keen to look at the systems that were in place at that time, because a series of allegations had been made about events that had occurred at that time, particularly surrounding a suspicious batch of chemicals that had been allegedly brought into the country and used in the north west of Western Australia. The committee received a number of submissions on the issues into which we were inquiring. The Minister for Agriculture and Food provided a submission to the inquiry. He is one of the most knowledgeable people on this issue, having been involved with it for a lengthy period, and we were very appreciative of the information he provided to us. We found interesting the evidence given to the inquiry by some witnesses. Again the passage of time proved to be a difficulty for some of them, and in particular we heard evidence on two occasions from the former national manager of Kwinana Chemical Industries Pty Ltd, Mr Robert John Telford, who is the son of the former owner and who had worked on site during the period that we were considering. On the second occasion the committee issued a subpoena for Mr Telford to appear, because although we were seeking additional information from him, there was a concern that he would not be available to provide it to us. We found that getting information from some people was like extracting blood from a stone. I do not know whether that was because of a reluctance on their part or because they had simply forgotten. We found that written information was quite difficult to access because of a change in ownership of the company and because the requirements to obtain information about manufacturing processes or storage or distribution had not been very stringent. With the change in ownership of that company, the bulk of those records, if not all, have disappeared. In fact, the committee heard evidence about that from people who had worked with the company prior to the sale and also with Nufarm Chemicals Pty Ltd, the company that took over from Kwinana Chemical Industries. There was therefore a lot of difficulty obtaining information, but the committee was able to source some documents that helped clarify some of our concerns. Members can find some of those documents at the back of the report. The committee was very keen to find out where the chemicals had been bought and whether they had been brought in from Singapore. We were advised that a lot of the Kwinana company’s chemicals had been purchased from different parts of Europe. Mr Telford gave evidence that he was uncertain whether chemicals

[COUNCIL - Wednesday, 12 April 2006] 1553 came from parts of Asia. There were issues about telexes on the so-called rogue batch of chemicals that had been sent under the son’s name, although Mr Telford said they had actually been written by his father. That was quite interesting, as he was unaware of them. He said that they were not actually his telexes and had, in fact, been written by his father. After hearing all the evidence from various people involved in this business, the committee is keen to ensure that systems are improved so that the types of problems with handling, storage and disposal of these chemicals are not repeated. There were problems with disposal of the chemical in that if there was a bad batch or an improper mix of the chemical, it was simply dumped. We heard some quite interesting stories about the methods of disposal of some of these chemicals in Kwinana. Admittedly, 20 or 30 years ago people did not have the same level of appreciation of exposure to particular chemicals, and perhaps those chemicals were treated more roughly than they would be now. I think we would take much more care in handling those chemicals now, particularly their disposal. The committee therefore found that at the time a number of legislative and departmental accountability mechanisms existed for the tender, supply and purchase of chemicals 2,4-D and 2,4,5-T that were supplied to the Agriculture Protection Board. The evidence made available to the committee supports the view that those accountability mechanisms were adhered to by the APB between 1970 and 1985. The committee also found that the legislative requirements, tender agreements and departmental policies and practices were at that time considered sufficient to ensure the veracity of the content and traceability of the chemicals supplied to the APB, and indeed the safety of the workers in the community. However, the committee noted that if the legislative provisions and tender agreement conditions had not been adhered to by the manufacturers or suppliers, room would have existed for the supplier acquisition of chemicals that exceeded regulatory limits of the dioxin or were not the chemicals they claimed to be. There seemed to be a bit of a grey area, particularly about that rogue batch of chemicals, what they actually were and what ultimately happened to them. Members should feel free to look through the committee’s findings. I am sure Hon Bruce Donaldson will make comment on some findings in relation to the rogue batch. The committee concluded that although there were some problems back in the 1970s and there were frameworks in place for handling chemicals, over time people have become increasingly aware of how to establish more appropriate procedures and policies to deal with our current attitude towards the management, handling and tender process of chemicals that we deal with today; there is therefore a recommendation in the report on those procedures. However, again with the passage of time and in light of the other reports that have been tabled on this issue, the government has probably taken on board this recommendation and is already applying those practices, procedures and policies on how to deal with tendering, purchasing, handling and storage of chemicals. Hon Kim Chance: It has been for many years. Hon KATE DOUST: Yes, it has been for many years; that was evident from the information provided to us. Ultimately, this was an important inquiry to conduct at the time, as it came on the back of the Harper and Armstrong inquiries, and I think filled a bit of a gap in information that needed to be filled. There are difficulties in substantiating information about the rogue batch from Singapore simply because the information is just not physically available. There were suggestions at the time that we could get information from a person living outside the state. There had been some roundabout discussion in the media at the time about the rogue batch, where it had come from, how it had been distributed and the possibility that it had ended up not only in the north of the state, but also perhaps in other parts of Australia. None of that could be proved through this inquiry. In some ways it was a very frustrating inquiry, because when we tried to go back to a period between 1979 and 1985, we found that people were not always around, for whatever reason, and it was fairly difficult to get relevant information. Hon Robin Chapple, who initiated the inquiry, was satisfied with the outcome and felt that the inquiry would be able to provide some degree of comfort to those people who had been involved in this issue for quite some time. I ask members to read the report. The committee has been able to provide some interesting historical information. This issue has been very important over an extended period of time because of Agriculture Protection Board workers’ use of chemicals in the north west. It has been very painful for some people who worked with the chemicals and who experienced some quite disastrous outcomes. The inquiry did not look at any of those types of issues; it simply looked at mechanisms, procedures and policies. Given the information that we were able to access, I believe that the committee dealt with it appropriately. Question put and passed. Metropolitan Region Scheme Amendment 1058/33 - Statement by Parliamentary Secretary Resumed from 17 May 2005. Motion Hon GEORGE CASH: I move - That the statement be noted.

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Members will be aware that the statement was read to the house on 17 May 2005, which, given that it is now April 2006, is nearly 12 months ago. The statutory part of the metropolitan region scheme has now been completed, but just for information purposes, it related to the east-west regional road link between West Coast Highway and Underwood Avenue, which is in my electorate of the North Metropolitan Region. The particular amendment proposed to extend certain other regional road reservations along the existing Stephenson Avenue and the Rochdale Road alignment and was intended to resolve some issues that result now that Rochdale Road and Stephenson Avenue have been identified as the ultimate through route from Underwood Avenue to West Coast Highway. The Environmental Protection Authority considered this particular MRS amendment. It believed at the time that no formal assessment was necessary. When the MRS went out for public comment, nine submissions were received. I should just indicate that none of the objections received sought any modification to the proposed reservation and, in a statutory sense, the MRS is now in force. I just provide that information by way of record, as in the past 12 months the statutory process has been completed. Question put and passed.

Standing Committee on Environment and Public Affairs - Eleventh Report - Alcoa Refinery at Wagerup Inquiry Resumed from 28 October 2004. Motion Hon BRUCE DONALDSON: Acting Chair - Hon Ken Travers: Hon Louise Pratt is not the Acting Chair. Hon BRUCE DONALDSON: My apologies, Chair. I know the standing orders. I was informed of them by the Chairman of Committees, so I have to abide by your request, I would say reluctantly, but nevertheless - Hon Ken Travers: You are pushing your luck. Hon BRUCE DONALDSON: I said “reluctantly”. I did not dissent from the Chair’s ruling. When one becomes more senior in age in this place, some allowances are made for him wandering around the traps a bit. I think that is fine. The DEPUTY CHAIRMAN (Hon Louise Pratt): Shall I make allowances on the basis of the honourable member’s age and forgetfulness? Hon BRUCE DONALDSON: I move - That the report be noted. The report consists of 516 pages and makes 29 recommendations. The self-referral occurred on 8 November 2001. The report was tabled in October 2004, almost three years later. It contains 10 chapters, 16 appendices and a minority report, which was noted. First, I congratulate the committee staff, whom we all know. They spent a lot of time on the inquiry and listened to a lot of robust debate. Hon Christine Sharp and Hon Jim Scott were members and, of course, those members had some very strong ideas! Maybe two or three of us had equally strong ideas in the opposite direction. I thank Felicity Mackie and Rhys Brown, who was part of the committee for a while, and of course Mark Warner, the committee clerk. The committee took a long time on this report because it dealt with a very hot and sensitive issue, but one thing has arisen out of it. Irrespective of whether people believe that there should be further expansion at Wagerup, which is irrelevant, the inquiry brought Alcoa to the table. Alcoa implemented a lot of reforms and changes within its operations, which at the end of the day have been very beneficial to Alcoa at Wagerup. Some of those changes have been to work practices. We met with the unions at Kwinana and Wagerup. Alcoa Kwinana is an Australian Workers’ Union site. I am not saying there were not some health problems, but the unusual aspect is that the unions made it clear to us that the work force was not rushing to them and wanting them to beat the drum. The effect occurred away from that particular refinery. It is getting late, and I am sure the Deputy Chairman will soon report progress. I am sure that my colleagues will want to speak the next time that we deal with these committee reports. Maybe Hon Louise Pratt, who was on that committee, would rather be in her seat than in the Chair so that she could have a few words. Maybe Hon Kate Doust would also like to contribute. I thought, therefore, that I would get this debate started tonight. One aspect of the Wagerup site is the catabatic winds on the Darling escarpment, which create eddies and inversion layers that are typical of the climate in that area. If people wanted to build a new refinery today, they would probably want to build it away from that escarpment. I have made no secret of the fact, and I said it through the whole inquiry, that I would be content as long as the environment and emissions from that refinery were well monitored independently. We suggested that Alcoa could undertake certain modifications with the buffer strip, and Alcoa followed up much of that. The report states quite clearly that Wayne Osborn, who is now

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President of Alcoa World Alumina Australia, apologised because Alcoa had not viewed more seriously some of the issues that had been raised. Progress reported and leave granted to sit again, pursuant to sessional orders. Sitting suspended from 6.00 to 7.30 pm CENSORSHIP AMENDMENT BILL 2005 As to Remaining Stages Leave granted to proceed forthwith through remaining stages. Report Report of committee adopted. Third Reading Bill read a third time, on motion by Hon Sue Ellery (Parliamentary Secretary), and returned to the Assembly with amendments. TERRORISM (PREVENTATIVE DETENTION) BILL 2005 Receipt and First Reading Bill received from the Assembly; and, on motion by Hon Kim Chance (Leader of the House), read a first time. Second Reading HON KIM CHANCE (Agricultural - Leader of the House) [7.33 pm]: I move - That the bill be now read a second time. The events of 11 September, the Madrid and London bombings and, closer to home, the spate of Indonesian bombings that culminated tragically in the loss of 16 Western Australian lives, has meant that we can unfortunately no longer take for granted the security and freedoms that previous generations fought so hard for and we now so readily enjoy. Today we are introducing laws that this government has willingly conceded would normally be considered extraordinary. However, we have ensured that the appropriate balance is maintained between powers needed to protect the safety and security of all persons and the important rights concerning freedoms and liberties that are so essential to the preservation of our democracy. This bill will place our state police in a position to prevent an act of terrorism occurring within Western Australia and to facilitate the prosecution of the perpetrators of terrorist acts in the event that they do occur. On 27 September 2005 the Council of Australian Governments held a special meeting to discuss counter-terrorism measures. Leaders received a comprehensive briefing from the Office of National Assessments and the Australian Security Intelligence Organisation. On that basis, COAG agreed that it is appropriate to strengthen Australia’s counter-terrorism laws. A terrorist act in Australia is unfortunately not beyond the realm of possibility. Specifically, COAG agreed to introduce legislation to give effect to measures that, because of constitutional constraints, the commonwealth could not enact, including preventative detention for up to 14 days and stop, question and search powers in areas such as transport hubs and places of mass gatherings. As members will be aware, stop, question and search powers are provided for in the Terrorism (Extraordinary Powers) Act 2005 that was passed last year. It is important to remember that the key component of the COAG agreement is that any strengthened counter- terrorism laws must be necessary and effective against terrorism, and contain appropriate safeguards against abuse, such as parliamentary and judicial review, and be exercised in a way that is evidence based, intelligence led and proportionate. For the information of members, all other states have passed similar legislation. Consequently, this bill has been drafted with reference to those bills as well as the commonwealth’s Anti-Terrorism Bill (No. 2) 2005. To assist members, I will now outline the principal features of the state bill. Preventative detention orders may be issued in circumstances relating to preventing an imminent terrorist act that is expected to occur at some time in the next 14 days, or in circumstances relating to preserving evidence within 28 days of terrorist acts that have occurred. The Commissioner of Police, after being satisfied that such circumstances exist, may authorise a Western Australian police officer to apply to an issuing authority for a preventative detention order. Importantly, the issuing authority must be either a Supreme Court judge acting in a personal capacity or a retired Supreme Court judge. The permitted detention period must not exceed 14 days. Therefore, any time spent under another state or commonwealth preventative detention regime must be deducted from the 14 days. For example, if a person had been detained for 48 hours under the commonwealth regime, he could be detained for a maximum of only 12 days under the state regime.

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Once an issuing authority issues an order, the person must be taken into custody within seven days. If a person has not been detained within that time, the police must make a new application to the issuing authority. Consistent with this state’s position regarding “shoot to kill”, a police officer, when taking a person into detention or preventing the escape of a person being detained, must not use force that causes death or grievous bodily harm unless that force is used lawfully in self-defence or defence of another. Importantly, police officers who detain a person must inform the person being detained of a number of essential matters, including the details of the order, the detained person’s right to contact certain people, and his or her right to have a lawyer. It is an offence, with a maximum penalty of two years’ imprisonment, to fail to inform a detained person of these details. The detained person and his or her lawyer will also receive a copy of the order and summary of the grounds on which the preventative detention order is made. The bill does not permit a preventative detention order to be made against a person who is under 16 years of age. Also, special treatment will be available for persons who are 16 or 17 years old and persons who are incapable of managing their own affairs, such as contact with a parent, guardian or another person who is able to represent their interests for a minimum of two hours each day. In addition, as a matter of administrative policy, these juveniles will be given support to minimise any sense of isolation; for example, they will be offered continued educational support. A person may be detained in police custody or in a state prison. Another important safeguard is that the jurisdiction of the Inspector of Custodial Services has been extended to police facilities. Therefore, from the moment a person is taken into detention, and irrespective of whether he or she is detained in police custody or a prison facility, his or her treatment and wellbeing will be observed by the Inspector of Custodial Services. Juveniles may be detained in either a juvenile detention facility or an adult prison, as deemed appropriate to meet humanitarian concerns and security standards. In addition to the role of the Inspector of Custodial Services, while a person is detained, an independent police officer of the rank of superintendent or above must be appointed to oversee the detention. For example, this senior officer must ensure that police comply with their obligations to seek a revocation of the preventative detention order when the grounds on which it was made have ceased to exist, and must receive and consider any representations made by the detainee, the detainee’s lawyer, or a person the detainee contacts about his or her treatment while in detention. The bill requires that a person detained must be treated with humanity and respect for human dignity and must not be subjected to cruel, inhumane or degrading treatment. Any contravention is an offence with a penalty of two years’ imprisonment. As a further safeguard, the person being detained is entitled to contact the Parliamentary Commissioner for Administrative Investigations to make a complaint about an administrative matter, the Corruption and Crime Commission if the person wishes to make an allegation of misconduct, and the Inspector of Custodial Services relating to the exercise of the jurisdiction of the inspector. Additionally, while in preventative detention, the person is entitled to contact people who are close to him or her to let them know that the person is safe, and to contact a lawyer. These contact rights can be restricted only if police obtain a prohibited contact order from an issuing authority. To ensure that there is no inappropriate use of such contact, police can monitor communications. The government introduced an amendment in the other house that allows for unmonitored communication to take place if a detained person is represented by a security-cleared lawyer. The communication between a security-cleared lawyer and the detainee can be monitored only if the issuing authority issues an order to allow for monitoring. Police will be able to continue to exercise discretion about whether monitoring communication is necessary in relation to contact between the detainee and any other lawyer who may not be security cleared. Police are prohibited from disclosing any communication between the detained person and his or her lawyer when that communication has a proper basis, such as giving instructions to a lawyer about the review proceedings. Again, there are safeguards; that is, breaches carry a penalty of five years’ imprisonment, and any communication between the detained person and his or her lawyer is not admissible in evidence against the detainee in court proceedings. While under a preventative detention order, a person cannot be questioned other than for identification, safety and wellbeing purposes. However, a person can be temporarily released for questioning by the Australian Security Intelligence Organisation if an ASIO warrant is in force, or by Western Australia Police in relation to a suspected offence. Most significantly, as soon as practicable after a person is first taken into custody or is in detention, the police must bring the person before the Supreme Court for a review of the preventative detention order; that is, there will be an immediate opportunity, with legal representation, for a person to challenge in court his or her detention. A further amendment was introduced by this government in the other house that removes the requirement for more than one Supreme Court judge to review the preventative detention order. This will have the effect of expediting the Supreme Court review process, ensuring that the full judicial review of the order takes place as quickly as possible. The reviewing judge cannot be the issuing authority who issued the order. A person under 18 years of age or a person incapable of managing his or her own affairs may also have his or her parents or guardians or other specified persons present at these court proceedings. In these proceedings, the Supreme Court may confirm the order, quash the order and release the person from detention, remit the matter to

[COUNCIL - Wednesday, 12 April 2006] 1557 an issuing authority with the direction to revoke the order and replace it with a new order with a reduced detention period, or, if the person has been released, declare the order void. Proceedings may be brought in a court for a remedy, including compensation, to a preventative detention order or to the treatment of the person while in detention. Parliament will also have an important role in the operation of the legislation; for example, the minister will be required to table a quarterly report in Parliament on any preventative detention orders made within the preceding three months. This starkly contrasts with the commonwealth bill’s yearly reporting requirement and the Senate’s six-monthly review recommendation. Additionally, the government is proposing a parliamentary review after 12 months and then three-yearly reviews, consistent with the Terrorism (Extraordinary Powers) Bill 2005. Again, this contrasts favourably with the commonwealth bill’s requirement for a five-yearly review. Finally, the power to make orders under the legislation will expire after 10 years, and any order then in force will expire. There is no doubt that these powers are extraordinary, but I stress that the bill is not about increasing ordinary police powers. These powers can be used only in specified extraordinary circumstances and are consequently accompanied by rigorous safeguards, including full judicial and parliamentary reviews. The bill achieves the appropriate balance between ensuring the safety and security of all Western Australians and protecting our rights, freedoms and liberties. I commend the bill to the house. Debate adjourned and bill referred to the Standing Committee on Uniform Legislation and Statutes Review, pursuant to standing orders. SWAN AND CANNING RIVERS MANAGEMENT BILL 2005 Receipt and First Reading Bill received from the Assembly; and, on motion by Hon Ljiljanna Ravlich (Minister for Education and Training), read a first time. Second Reading HON LJILJANNA RAVLICH (East Metropolitan - Minister for Education and Training) [7.47 pm]: I move - That the bill be now read a second time. The Swan and Canning Rivers Management Bill 2005 is a major step in improving the state’s ability to coordinate and manage activities that affect the Swan and Canning Rivers. In 2004, the then Premier’s declaration of the Swan River as the first of Western Australia’s heritage icons recognised that Perth’s rivers are one of our most vital natural assets. Our challenge is to sustain and balance the environmental, social and economic benefits of the rivers for current and future generations. We need to make sure that our use of the rivers and our activities in the catchment do not degrade them. We also need to manage the impact of historical activities and further development, in both rural and urban areas. The Swan River Trust Act 1988 and the Environmental Protection (Swan and Canning Rivers) Policy 1997 do not provide an adequate basis for meeting this challenge. This bill replaces both. It will integrate the efforts of the state agencies, local governments and the community to protect the rivers. The bill does not affect native title rights or interests. In summary, the key elements of the bill are - establishing the Swan Canning Riverpark and setting targets to protect it; developing a river protection strategy and management programs to achieve and report on the targets; providing opportunities for community involvement in establishing targets and management arrangements; streamlining and providing more transparent processes for assessing development proposals affecting the river; and improving the enforcement arrangements. The riverpark will consist of the waterways and adjacent crown reserves and will allow the community to continue to enjoy their many uses while protecting the environment. It does not include private land, and local government and state agencies will continue to manage the adjacent crown reserves. Riverpark targets must be developed through consultation, and will be subject to parliamentary scrutiny to ensure they reflect community values and aspirations. To support the creation of the riverpark, the bill reserves the waters and riverbed of parts of the Swan, Canning, Helena and Wungong Rivers in the care, control and management of the Swan River Trust. This establishes the Swan River Trust as the agency responsible for the ecological and community benefits and amenity of the rivers.

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The bill also clarifies responsibility for controlling erosion and maintaining river walls. This matter has been the cause of tension between local governments and the state government over many years, and the government addresses this clearly and equitably through this bill. To provide greater integration, the bill requires the development of a river protection strategy to set the broad management arrangements. Supporting the river protection strategy will be a series of management programs developed by local governments, state agencies or others. The bill provides for extensive consultation in developing the river protection strategy and management programs, and agreement of other ministers whose portfolios may be affected. This will maintain accountability of agencies to their ministers and provide the basis for ensuring implementation. Collaboration between state agencies and others is an increasingly important means of implementing environmental management programs. Collaboration may involve financial commitments and may need to be in place for extended periods. Collaborative arrangements set out in the bill will provide certainty in implementation, reporting and performance standards. Although the collaborative approach is an essential element of the legislation, a new approach is needed to address situations in which cooperation cannot be achieved. River protection notices will establish, on a case-by-case basis, the action required to resolve problems not effectively dealt with by traditional one-size-fits-all regulatory approaches. For a notice to be issued, a causative link must be established between the subject of the notice and the health and the amenity of the riverpark. The potential recipient must be consulted before a notice is issued, and can appeal to the State Administrative Tribunal, in which case the notice will not come into effect until the appeal is determined. This will ensure that a river protection notice is issued only when it is necessary and appropriate. A notice will be binding on the recipient and failure to comply with a notice will be an offence. The bill will also enable more cost-effective enforcement arrangements. Any officer of a state agency or local government can be appointed as an inspector. To avoid duplication of regulations in other legislation, the bill also provides that, within the riverpark, offences under regulations listed in schedule 8 are offences under this bill. Under the Swan River Trust Act 1988, the minister is responsible for determining development proposed within the management area. The bill is consistent with the current act but will streamline processes, increase transparency and extend opportunities for public comment. The former management area has been renamed as the development control area. It consists of the waterways and adjacent land within the metropolitan region scheme parks and recreation reservation. The bill will enable the Swan River Trust to make decisions on certain types of developments prescribed by regulations. This will enable the trust to deal with proposals that do not warrant ministerial consideration, such as non-commercial works by a public authority in accordance with an approved management plan; and non-commercial works on privately owned land. When the development approval processes are not appropriate, the bill will enable activities to be dealt with under regulations. These will include like-for-like repairs and maintenance; emergency works to prevent pollution or ensure public safety; erosion control undertaken by a public authority; erosion control on the foreshore of a privately owned property; and ongoing commercial activities. The bill will require the eight-member Swan River Trust board to have knowledge of and experience in conservation, natural resource management, recreation, tourism, planning, development, matters of interest to the rural community and matters of interest to the Nyoongah community. The bill retains the existing requirement for one member to be a nominee of the Western Australian Local Government Association. It also provides for the appointment of the chief executive officer of the Department for Planning and Infrastructure. This will maintain the connection between the planning functions of the Western Australian Planning Commission, local governments and the trust. In closing, in drafting the bill, more than 130 organisations have been consulted over the past two years. This provided valuable feedback, which helped to refine the bill to achieve what I consider to be a very important step in ensuring the long-term health of the Swan and Canning Rivers. I have much pleasure in commending this bill to the house. Debate adjourned, pursuant to standing orders. SWAN AND CANNING RIVERS (CONSEQUENTIAL AND TRANSITIONAL PROVISIONS) BILL 2005 Receipt and First Reading Bill received from the Assembly; and, on motion by Hon Ljiljanna Ravlich (Minister for Education and Training), read a first time. Second Reading HON LJILJANNA RAVLICH (East Metropolitan - Minister for Education and Training) [7.54 pm]: I move - That the bill be now read a second time.

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The Swan and Canning Rivers (Consequential and Transitional Provisions) Bill 2005 makes changes to legislation to support the Swan and Canning Rivers Management Bill 2005 in providing protection for one of the state’s most vital natural assets. The bill repeals the Swan River Trust Act 1988 and revokes the Environmental Protection (Swan and Canning Rivers) Policy 1997. These statutes are no longer necessary because their functions have been included in the Swan and Canning Rivers Management Bill. The bill provides for transitional regulations when these are necessary to clarify the relationship between the Swan and Canning Rivers Management Act and other legislation. The bill provides for the continuation of the Swan River Trust as the same legal entity as before, but provides for the appointment of a new set of members to the trust. It also ensures that existing leases within the river reserve remain in effect as though they had been made under the Swan and Canning Rivers Management Act. This bill streamlines processes under clause 30A of the metropolitan region scheme for considering proposed development that is adjacent to, or partly within, the development control area. The Swan and Canning Rivers (Consequential and Transitional Provisions) Bill 2005 amends clause 30A to provide for these development applications to be dealt with directly between the Western Australian Planning Commission and the Swan River Trust. The involvement of ministers will, in future, be required only when agreement cannot be reached. The remaining provisions of the bill deal with changes to other legislation that are necessary to ensure consistency in references to the Swan and Canning Rivers Management Act. I have much pleasure in commending this bill to the house. Debate adjourned, pursuant to standing orders. BHP BILLITON (TERMINATION OF AGREEMENTS) AGREEMENT BILL 2005 Receipt and First Reading Bill received from the Assembly; and, on motion by Hon Kim Chance (Leader of the House), read a first time. Second Reading HON KIM CHANCE (Agricultural - Leader of the House) [7.57 pm]: I move - That the bill be now read a second time. The purpose of the bill is to ratify an agreement between the state and BHP Billiton Ltd and BHP Billiton Minerals Pty Ltd for the termination of an agreement made on 7 October 1952 and subsequently varied, titled the Broken Hill Proprietary Steel Industry Agreement Act 1952; and an agreement made on 18 November 1960 and subsequently varied, titled the Broken Hill Proprietary Company’s Integrated Steel Works Agreement Act 1960, between the state and BHP Billiton Ltd under its former name, Broken Hill Proprietary Company Ltd. This proposed legislation is necessary to terminate legislation that is redundant, since the activities under the agreements have essentially ceased, and it is government policy to remove spent legislation. To put this in context, I will provide some background on the activities previously carried out under the agreements. From the 1950s onwards, Broken Hill Proprietary Company Limited conducted operations at Kwinana under the two state agreements. Past activities at the site included a steel rolling mill, from the 1950s to 1995, and a blast furnace and pig-iron mill, from the late 1960s to the early 1980s. Bulk handling of cargoes for other industries was a major on-site activity from the mid-1980s onwards. The 1952 agreement provided for the construction of the steel rolling mill at Kwinana and BHP’s iron ore operations on Cockatoo Island. BHP ceased mining on Cockatoo Island in 1984 and the leases were subsequently subleased to Portman Mining Ltd. BHP undertook operations at Koolyanobbing under the 1960 agreement, which involved mining iron ore that was mainly used to feed its Kwinana blast furnace. Mining at the Koolyanobbing operations ceased in 1983 following the closure of the Kwinana blast furnace, which also operated under the 1960 agreement. The Koolyanobbing mining operations were excluded from the 1960 agreement in 1990. BHP Billiton met its downstream processing obligations under the 1952 and 1960 agreements through the construction of the steel rolling mill and blast furnace at Kwinana. As part of an overall rationalisation program, BHPB - formerly BHP - entered into negotiations with the state in 2001 to dispose of the Kwinana site and bulk handling business. BHPB’s objective was to relinquish entirely its on-site assets and obligations, and it sought comfort that the state would use all reasonable endeavours to determine the state agreements. On 27 August 2001, following negotiations between the state and BHPB, cabinet approved the purchase of BHP land at Kwinana by LandCorp and the Fremantle Port Authority, with the FPA purchasing the BHPB bulk handling business. This secured the future use of strategic heavy industrial land at Kwinana to facilitate the establishment of a pig-iron plant, together with the possible establishment of steel making on part of the land by HIsmelt Corporation Pty Ltd.

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On 23 August 2004, cabinet approved the execution of an agreement to determine the 1952 agreement and the 1960 agreement - the determination agreement - and the preparation, printing and introduction into Parliament of a bill to ratify the executed agreement. The determination agreement in schedule 1 of the bill has been executed by the state and BHPB. The agreement provides that the government must introduce a bill into Parliament by 30 June 2005, or such later date as the parties may agree. In mid-2005, BHPB wrote to the Premier agreeing to extend the date by which the determination agreement is required to be introduced into Parliament to 30 June 2006, thus enabling sufficient time for the bill to be considered and ratified by Parliament. Once passed by Parliament, the bill will - allow the two state agreements to be terminated, as previously agreed to by both BHPB and the state, on and from the date the bill comes into operation as an act; provide for certain mineral leases on Cockatoo Island set out in the schedule to the 1952 agreement to continue in full force - the leases were subsequently subleased by BHPB to Portman, which is currently carrying out operations on the island; grant a full unconditional release of BHPB’s and BHPM’s obligations under the two state agreements, including obligations of BHP Steel (AIS) Pty Ltd under the state agreements assumed by BHPM under the deed of covenant; grant a full unconditional release of BHPB’s and BHPM’s obligations under former and existing Western Australian legislation to the extent that such obligations were excluded from applying to the activities of BHPB or BHPM under the terms of the 1952 agreement and the 1960 agreement; and confirm the grant of similar releases of AIS’s obligations by deed of covenant. I commend the bill to the house. Debate adjourned, pursuant to standing orders.

APPROPRIATION (CONSOLIDATED FUND) BILL (NO. 3) 2005 Receipt and First Reading Bill received from the Assembly; and, on motion by Hon Ljiljanna Ravlich (Minister for Education and Training), read a first time. Second Reading HON LJILJANNA RAVLICH (East Metropolitan - Minister for Education and Training) [8.04 pm]: I move - That the bill be now read a second time. This bill seeks to appropriate out of the consolidated fund the sums of $159 187 516.82 for recurrent payments made during the financial year ended 30 June 2003, for the purposes and services detailed in schedule 1 of the bill; $146 527 783.50 for recurrent payments made during the financial year ended 30 June 2004, for the purposes and services detailed in schedule 2 of the bill; and $492 858 461.52 for recurrent payments made during the financial year ended 30 June 2005, for the purposes and services detailed in schedule 3 of the bill. These payments, which were all of an extraordinary and unforeseen nature, were made under authority of the following acts: Treasurer’s Advance Authorisation Act 2002, Treasurer’s Advance Authorisation Act 2003 and Treasurer’s Advance Authorisation Act 2004. The payments were charged to the consolidated fund under authority of section 28 of the Financial Administration and Audit Act 1985, and reflect excess expenditures against appropriations and expenditures for which there were no appropriations during these three years. In 2002-03 recurrent expenditure transactions amounted to $9 823.7 million, a net increase of $26.3 million from the 2002-03 budget estimate of $9 797.4 million. The unforeseen expenditure appropriation of $159.2 million sought in this bill was offset by underspendings of $117 million against other votes and lower expenditure of $15.9 million authorised by other statutes. In 2003-04 recurrent expenditure transactions amounted to $10 379.5 million, a net increase of $32.7 million from the 2003-04 budget estimate of $10 346.8 million. The unforeseen expenditure appropriation of $146.5 million sought in this bill was offset by underspendings of $111.4 million against other votes and lower expenditure of $2.4 million authorised by other statutes. In 2004-05 recurrent expenditure transactions amounted to $11 290.6 million, a net increase of $455.8 million from the 2004-05 budget estimate of $10 834.8 million. The unforeseen expenditure appropriation of $492.9 million sought in this bill was offset by underspendings of $46.9 million against other votes and increased expenditure of $564.9 million authorised by other statutes.

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As underspendings against other votes cannot be netted against excesses or new items approved under the Treasurer’s Advance Authorisation Act, parliamentary authorisation is required for each vote for which expenditure exceeds appropriation or for a new item. I commend the bill to the house. Debate adjourned, pursuant to standing orders. APPROPRIATION (CONSOLIDATED FUND) BILL (NO. 4) 2005 Receipt and First Reading Bill received from the Assembly; and, on motion by Hon Ljiljanna Ravlich (Minister for Education and Training), read a first time. Second Reading HON LJILJANNA RAVLICH (East Metropolitan - Minister for Education and Training) [8.09 pm]: I move - That the bill be now read a second time. This bill seeks to appropriate out of the consolidated fund the sums of $13 073 030.00 for capital payments made during the financial year ended 30 June 2003, for the purposes detailed in schedule 1 of the bill; $81 776 310.87 for capital payments made during the financial year ended 30 June 2004, for the purposes detailed in schedule 2 of the bill; and $180 918 654.05 for capital payments made during the financial year ended 30 June 2005, for the purposes detailed in schedule 3 of the bill. The payments, which were of an extraordinary and unforeseen nature, were made under authority of the following acts: Treasurer’s Advance Authorisation Act 2002; Treasurer’s Advance Authorisation Act 2003; and Treasurer’s Advance Authorisation Act 2004. These payments were charged to the consolidated fund under authority of section 28 of the Financial Administration and Audit Act 1985, and reflect excess expenditures against appropriations and expenditures for which there were no appropriations during these three years. In 2002-03, capital expenditure transactions amounted to $463.4 million, a net increase of $2.4 million from the 2002-03 budget estimate of $461 million. The unforeseen expenditure appropriation of $13.1 million sought in this bill was offset by underspendings of $49.4 million against other votes and increased expenditure of $38.7 million authorised by other statutes. In 2003-04, capital expenditure transactions amounted to $567 million, a net increase of $58.2 million from the 2003-04 budget estimate of $508.8 million. The unforeseen expenditure appropriation of $81.8 million sought in this bill was offset by underspendings of $23.7 million against other votes and decreased expenditure of $0.2 million authorised by other statutes. In 2004-05, capital expenditure transactions amounted to $1 267.8 million, a net increase of $563.5 million from the 2004-05 budget estimate of $704.3 million. The unforeseen expenditure appropriation of $180.9 million sought in this bill was offset by underspendings of $71.9 million against other votes and increased expenditure of $454.4 million authorised by other statutes. As underspendings against other votes cannot be netted against excesses or new items approved under the Treasurer’s Advance Authorisation Act, parliamentary authorisation is required for each vote for which expenditure exceeds appropriation or for a new item. I commend the bill to the house. Debate adjourned, pursuant to standing orders. YALLINGUP FORESHORE LAND BILL 2005 Second Reading Resumed from 11 April. HON SIMON O’BRIEN (South Metropolitan) [8.13 pm]: I will conclude my remarks which were interrupted by the effluxion of time yesterday evening. I was talking to the house about a bill of attainder - which we should probably call a common law historical oddity from antiquity - that we are told was extinguished in British law in 1870. Just to remind members, a bill of attainder was a form of English common law in which a person could be condemned for a crime - most commonly treason - by being declared attainted. In addition to any penalty prescribed, including being hung, drawn and quartered, a condemned person could also find his or her civil rights nullified, and property, titles and rights confiscated and indeed denied to the person’s heirs and successors. There are a number of quite interesting examples of a bill of attainder. I mentioned Lord Lovat - that is, the eleventh Lord Lovat, Simon Fraser - who was attainted not once but twice. In 1697, after the ninth Lord Lovat died, Simon Fraser, his brother, kidnapped and forcibly married the late lord’s widow, Amelia. However, Amelia’s powerful family, the Atholls, were angered and prosecuted Fraser, who fled the country. Fraser was

1562 [COUNCIL - Wednesday, 12 April 2006] convicted in absentia, attainted and sentenced to death. Due to his attainder, he could not succeed to the lordship when the tenth lord, who was also his brother, died. However, in 1715 Fraser supported the government against a Jacobite uprising and was rewarded by being pardoned for his crimes. In 1730 he won litigation seeking to confirm his title of Lord Lovat. He was therefore fully redeemed. Unfortunately, 15 years later, in 1745 he then participated in an uprising against the Crown. How the political cycle turns, and turns full circle! He was convicted of attainder, was sentenced to death and was beheaded on Tower Hill in London, becoming the last man to die in that manner in that place. His titles were forfeited. I acknowledge in passing that I believe Lovat’s last words to the executioner were along the lines of, “Don’t make a hash of it.” Unfortunately, that must have been a self-fulfilling prophecy because, reportedly, in this very public execution the executioner made an awful hash of ending the unhappy life of Lovat. Subsequently, in 1854, that attainder of Simon Fraser, the eleventh lord was reversed and now the sixteenth Lord Lovat, who was born in 1977 and also called Simon Fraser, holds that position. That is one story of how a bill of attainder can be used. I mentioned last night about how sometimes, with the reversal of political whim, such acts of attainder could be reversed; in this case not only reversed but also subsequently reinstated as the wheel continued to turn over the years. Hon Kim Chance: Did they give him his head back? Hon SIMON O’BRIEN: Yes. There is another example of this law being used. After the Restoration, the regicides, John Bradshaw - not our John Bradshaw - Oliver Cromwell, Henry Ireton and Thomas Pride, were served with a bill of attainder on 15 May 1660 backdated to 1 January 1649. After the committee stage, the bill of attainder passed both the House of Lords and the House of Commons - does the Leader of the House not wish this bill would do the same thing? - and was engrossed on 4 December 1660. There was then a resolution of the House of Commons, which reads - That the Carcases of Oliver Cromwell, Henry Ireton, John Bradshaw, and Thomas Pride, whether buried in Westminster Abbey, or elsewhere, be, with all Expedition, taken up, and drawn upon a Hurdle to Tiburne, and there hanged up in their Coffins for some time; and after that buried under the said Gallows; And that James Norfolke Esquire, Serjeant at Arms attending the House of Commons, do take care that this Order be put in effectual Execution. We do not pass resolutions like that any more, Mr Deputy President! Hon Kim Chance interjected. The DEPUTY PRESIDENT (Hon Ken Travers): Order! Hon SIMON O’BRIEN: How is this relevant to the bill, Mr Deputy President? The DEPUTY PRESIDENT: I was about to ask that. Hon SIMON O’BRIEN: Bills of attainder evolved into a convenient way for the King to convict subjects of crimes and confiscate their property without the bother of a trial and without the need for a conviction, or, indeed, any evidence at all. Is this not what Hon Paul Llewellyn was criticising when he was talking about traditional lands or normal land ownership being usurped at the whim of the Crown? In this case, the Crown sits over there on the government side and sponsors this bill, seeking to take away, without a man’s day in court, his rights under law to this property. However, bills of attainder were abolished in 1870; or were they? I do not know to whom to attribute these words, but I found this comment when I was searching this subject on the web - . . . “bill of attainder” can be eventually discovered - That is, today - in the crude tool of legislative intervention if such intervention is used to cut the Gordian knot of a difficult court case. Does an element of attainder attach itself to this bill? Perhaps it does. I think the parallels I am drawing are obvious. We have before us a bill that is targeted on this occasion against simply one person or one family. It seeks to do away with, by the crude tool of legislative intervention, the rights of that man to have his day in court, and to provide that what might well have been invalid or ineffective in law at any time in the past decades does not matter, because by this bill it will be considered forthwith to be valid and effective - a very crude instrument of legislative - Hon Kim Chance: It is like taking away a worker’s rights to his day in the Industrial Relations Commission. Hon SIMON O’BRIEN: I knew I would finally strike a sympathetic chord with the honourable Leader of the House. Let us hope we have a division on this bill - I think I can see one coming - so that he can vote with his

[COUNCIL - Wednesday, 12 April 2006] 1563 feet, as well as his conscience, against what the Crown, in the form of the government of the day, has decided to do with this chap. I am addressing all my remarks through you, Mr Deputy President, but I hope that Hon Paul Llewellyn, in particular, notes my remarks. I followed Hon Paul Llewellyn’s speech with interest, because he and his colleague have a very important role to play in this debate. I was confused by Hon Paul Llewellyn’s final remarks. I will quote, if I may, from the uncorrected Hansard of Tuesday, 11 April, when Hon Paul Llewellyn said - We - Presumably, the Greens - are prepared to move on in the case of one individual whose rights we respect and whose case is compelling. Then he said - We are prepared to move on and the Greens will support this bill. Sorry; if the Greens respect this person’s rights, and if they think his case is compelling, they should not support this bill. Whether or not his case is compelling, the Greens should not support this bill, because this guy needs to have his day in court. If he is denied by this bill - this crude legislative instrument - his day in court, the chances are that Hon Paul Llewellyn and I and everyone else may also be denied our day in court. That is why the Greens should oppose this bill. If they will not do that, they must find some other way to give this person his day in court; that is, if the Greens are dinkum about respecting this man’s rights, and if they think the Crown should not act arbitrarily. If we cannot give him his day in court by preventing the passage of this bill, we need to refer it to another forum in which he can have his day. It is not as good, but maybe a committee of this house would provide the only vehicle, in this saga stretching from 1938 to 2006, by which this person might have some sort of day in court, and we could consider the relative merits of the case. Discharge of Order and Referral to Standing Committee on Legislation - Motion Hon SIMON O’BRIEN: For that reason, and because the Greens have indicated that they will support this bill - it is not too late for them to change their mind - I will now move without notice - That order of the day 90, the Yallingup Foreshore Land Bill 2005, be discharged and referred to the Standing Committee on Legislation for consideration and report. The Greens now have the opportunity to indicate whether they will support that motion, and then the house can follow its logical course from there. HON GEORGE CASH (North Metropolitan) [8.24 pm]: I stand to support the motion moved by Hon Simon O’Brien. I believe it is a proper motion, having regard to the manner in which this bill has been introduced and the manner in which the government wants to deal with the bill; that is to say, it wants to deal only with the government’s side of the equation and not let the plaintiff have his day in court. Hon Simon O’Brien is right when he suggests that this Legislative Council, if it is to make decisions, needs to make informed decisions. In this case, all we have at the moment is almost an ex parte application whereby one party has put its case, but the other party is yet to be heard. It is almost a case of the Zimbabwe solution. Members may have been to or read about Zimbabwe and the way in which there are land grabs in Zimbabwe. The President decrees that land will be taken, and then the army moves in and takes it. However, before the army moves in, the owner is given a first warning. If he does not respond to that first warning, in some cases he is hacked to death. I am not suggesting that the plaintiff to this action is being hacked to death in a physical way, but certainly his evidence is being shredded inasmuch as nobody will be able to hear it. This bill, as has already been said, prevents the plaintiff from airing his evidence in court and having that evidence tested. We are now seeing a process under which the plaintiff is required to rely on just a few letters being read to this house and recorded in Hansard that present a flimsy example of what has occurred over many years. I say “flimsy example” because just a few letters and a few notations on memorandums certainly do not present the evidence that the plaintiff has. No doubt relevant points have been made and raised, but certainly the evidence as such has not come forward, and that is the reason that I say that this bill needs to be referred to the Standing Committee on Legislation. The DEPUTY PRESIDENT (Hon Ken Travers): I am glad Hon George Cash is making those references, as he has already made his second reading contribution. Hon GEORGE CASH: Indeed, I have, and that is why I have often said to others when I have been in the chair that members must stick to the motion before the house. The motion is a referral motion, and I am giving the house the reasons that it should refer this bill to the Legislation Committee. For example, the Legislation Committee was set up to enable members of the public and other interested parties to come forward and present

1564 [COUNCIL - Wednesday, 12 April 2006] their side of an argument, and to present technical information on particular issues to enable the Legislation Committee to become more informed about matters that are brought before this house. As members know, the Legislation Committee considers all the evidence that is put forward and reports to the house in due course. However, the Legislation Committee affords an opportunity to people to produce and present evidence. We have been doing that in the Legislative Council, in its present form, since 1989. I was one of those who was a member at that stage, and I helped set up the Standing Committee on Legislation. In those days we were more interested in government officers going before the committee, but we also wanted members of the public - interested parties - to be able to go before committees and explain what they had to offer. That remains the modern committee system in the Legislative Council. I am arguing that this bill should be referred to the Legislative Council Standing Committee on Legislation, because the impact on the plaintiff in this case is huge. I have said on a number of occasions that the man has evidence and he wants to provide that evidence in a public forum. If the government is to refuse him his day in court, at the very least he must be given the opportunity to bring that evidence before a parliamentary committee. When I spoke last night on this bill, I mentioned in one instance three particular QCs who have provided opinions on the plaintiff’s claim. They were David Malcolm, QC, who later became the Chief Justice of this state; Geoffrey Miller, QC, who is currently a Justice of the Supreme Court; and Malcolm McCusker, QC, who is regarded by those who have some knowledge of the legal profession to be the most eminent silk in Western Australia. I would expect that the Legislation Committee would want those three people to come before it to explain their particular view on the plaintiff’s case. As I say, if this Parliament is to make informed decisions on this matter, at the very least it must be given information and must be provided with the opportunity to learn what this is all about. It seems to me that if we do not agree to this motion, what we will do is deny the defendant not only his day in court, but also any chance of that information coming forward. I would suggest that the denial of this motion would in fact be a contempt of the justice system of Western Australia. There is no doubt that courts insist upon hearing evidence. They then test that evidence. It seems to me that if it is the government’s intention that the Parliament usurp the position of the courts in this case - that is, be the judge and jury of the circumstances surrounding this resumption - at the very least the Parliament should be given the facts. I mentioned yesterday that I thought that it was absolutely critical that certain officers from the Department of Land Information and officers from the State Solicitor’s Office should be required to come forward and explain their position to the Legislation Committee, because I am told that if the correct questions are put to certain individuals, they will be obliged to recount a pattern of conduct that will show just where the state stands in this matter. I would argue that the Legislation Committee, if it is able to consider this bill, will be able to determine very clearly whether or not over the past 70-odd years a concealed fraud has been perpetrated against the plaintiff or the estate of the original owner. I respectfully ask the Greens (WA) to consider the decision they make on the second reading of this bill so that it is an informed decision; that means hearing the plaintiff and expert witnesses who are able to speak with authority on matters affecting the original resumption. The Parliament is entitled to the facts. We are not, as a Parliament, entitled to close our eyes and our ears to evidence that is not only readily available but that a particular plaintiff wants to bring before the Parliament. I say again that the Parliament is entitled to be informed. In the past the house has used the Legislation Committee or other committees of the Legislative Council to seek further information so that the Parliament can be better informed. I ask the house to support this motion, because if this plaintiff is not to be given his day in court as the result of a decision of this Parliament, at the very least he should be given the opportunity to appear before one of the Legislative Council’s committees so that he can not only table the evidence he has, but also give evidence to the committee. More than that, other people, such as the former Chief Justice of Western Australia, David Malcolm, QC, Malcolm McCusker, QC, and, if it is appropriate, Justice Geoffrey Miller, QC, can come forward to the committee to explain the reasons behind the opinions that they provided in this case. I ask the house to support the motion. HON BARRY HOUSE (South West) [8.35 pm]: I also support the referral to the committee and urge the house to support the motion before us tonight. The debate now gives me the opportunity to inform the house of a telephone conversation I had with Garth Hammond just a couple of hours ago. I was briefly updating him on what happened yesterday and where the debate was currently at. I also asked him how the Supreme Court mediation order, to which I referred yesterday, had gone today. Members might recall that the Supreme Court mediation order was due to take place at 11.00 am today, 12 April. Guess what? Surprise, surprise! The Crown did not turn up. Hon Norman Moore: Did not turn up? Hon BARRY HOUSE: Yes. Hon Norman Moore: With no explanation? Hon BARRY HOUSE: Absolutely nothing happened.

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Hon George Cash: It is relying on this bill for a stay of proceedings. Hon BARRY HOUSE: That is precisely right. If that is not a breach of an individual’s right to justice, I know nothing. That makes this motion even more important, because this motion will provide possibly the last opportunity that we will have anywhere in the system to allow Mr Hammond, and other people, to air their views on this matter. If the Parliament, as it seems now, is of a mind to be the decision maker in this case - the judge and jury - let us get some information and let us provide a forum in which the different views, attitudes, legal opinions and positions on aspects of this whole case can be heard. That is the first point I make. If this Parliament is of a mind to deny this individual his day in court, which is a denial of natural justice, at least let it refer the matter to the Legislation Committee at this point to provide a forum for all the evidence that is available and all the views that might be available on this matter to be heard. If the Parliament is determined to be the judge and jury, at least let us do it with some semblance of weighing up the evidence and assessing it on its merits before the Parliament finally makes its decision. I am sure that most members in this place are familiar with committee procedures. Committees of this house adopt procedural fairness. Members will know that it involves informing individuals or organisations of the points to be made in a committee report, so that they get the opportunity to put their response to the committee and for that response to be incorporated in the report. If there is to be an adverse finding against an individual or an organisation, they are informed of that intention by the committee and get the opportunity to make a response. That is called procedural fairness. The Parliament does not at present even entertain the thought of giving this individual any sort of procedural fairness unless it agrees to this motion to refer this bill to a committee. If Parliament is of a mind to reject this motion - I certainly hope it does not - we will proceed to the second reading vote and then through the committee stage to the third reading without any opportunity for this Parliament to assess, weigh up or even hear any other legal points of view, and there are plenty around. We have only scratched the surface in this debate over the past couple of nights. Many people in the legal fraternity and in the community have valid points of view on this matter, and we will not be doing the right thing by the community, to say the least, if we charge ahead and make a decision without those views being aired. This could be the last opportunity for any of those issues to be aired. We have already heard Hon George Cash refer to opinions from eminent legal minds in this state - former Chief Justice Malcolm, Malcolm McCusker, QC, and Justice Geoffrey Miller, to mention only a few. Parliamentary debates that have taken place over the past few years on this matter should also be considered. The Solicitor General’s point of view should also be considered. It seems that the government has just grabbed that legal view and taken it as gospel, and is charging ahead with the case on the say-so of just one legal view. There are others, as we have already heard, but, by the sound of it, they will not get a chance to have any airing. This motion is aimed very squarely at Hon Paul Llewellyn and the Greens (WA), because, as they know, the balance is in their hands. They hold a very responsible position, but they should at least give Parliament an opportunity to hear the alternative points of view and assess the situation on its merits. Parliament should be insisting, by supporting this referral to a committee, that it hear from the Busselton Shire Council, which has a vested interest: it has built a road and a car park on the disputed land, and has various other concerns that are pertinent to the future of that area. We should hear from the caravan park lessee, Don Ferguson. I mentioned Mr Ferguson last night. He has a very important stake in this whole exercise. We should know what his arguments are about the issue. We should know the position of the Yallingup fire brigade, which has a shed on the land. We should also know the arguments of the Yallingup Residents’ Association. Last night in this debate several members referred to individuals as well as that organisation. They have a very legitimate right to put their point of view to this Parliament and be heard by a forum. The only forum that is possible now is a committee of this Parliament. I cannot plead with members more than that. We should also hear from the Department for Planning and Infrastructure to get a bit more information about the process that it adopted in assessing this matter over a long time. I quoted some figures from 1985 in the contributions I have made to two second reading debates on this matter. Hon George Cash interjected. Hon BARRY HOUSE: I have tabled documents. I have quoted from a summation of the situation which pointed to various delays, some of them over a year. I think the department has not only a right, but also an obligation to explain that to the people of Western Australia. The only way it can do that and the only way we can access any information on that is through a committee hearing. The planning processes which have been referred to need clarification. It has been mentioned that one of the selling points for this legislation to the community was that here was one greedy individual who wanted to pinch back $70 million worth of valuable, pristine beachfront land. Last night, in my comments on this debate, I tried to explain that that is a fallacy because the future of this land lies with the planning process. We should hear from the Western Australian Planning Commission, which is responsible for the “Leeuwin-Naturaliste Statement of Planning Policy”, the document that covers the planning processes over

1566 [COUNCIL - Wednesday, 12 April 2006] this land. What is the situation? We have been told by Mr McGinty that it involves $70 million plus. I know and he knows that that is total rubbish because the “Leeuwin-Naturaliste Ridge Statement of Planning Policy” provides for the possibility of only a very small section of this disputed land being considered for any form of development in the future, regardless of the ownership of the land. That is the planning process and this Parliament has a duty and a right to hear the arguments from the WA Planning Commission. As a house, we should appeal to the Greens (WA). Hon Paul Llewellyn has a very weighty decision to make on this matter. In his time in this house he has taken his responsibilities extremely conscientiously and has considered issues on their merits and considered debates as they occur. I appeal to Hon Paul Llewellyn not to be afraid of committee scrutiny. Members should bear in mind that parliamentary committees can report only to the house. A parliamentary committee can only hear the evidence and report back to the Legislative Council. If it is deemed that this place is the place to make a decision, which I vigorously oppose but some people have other views, let us hear from a committee that is in a position to get some information to report back to this house. That is all a committee can do. A committee cannot make a judgment on the issue. A committee cannot be a court of law. A committee can only hear the facts and lay them on the table. It is still for the house to decide on that matter. I cannot support this motion any more strongly. It is vital that the Parliament of Western Australia restores some credibility in this matter. We will not have any credibility as a Parliament if we do not at least provide the opportunity for an airing of these issues through a committee structure and allow a committee of this house to make a wider assessment of the situation and provide a report to the house, so that if the house deems that it is the body that should make the decision, it can make its decision based on much better advice. HON NORMAN MOORE (Mining and Pastoral - Leader of the Opposition) [8.50 pm]: I support the motion moved by Hon Simon O’Brien. We might save some of the time of the house if the government were to indicate whether it will be supporting this motion. Hon Sue Ellery: You must be joking! No, we will not. Hon NORMAN MOORE: I am sorry the parliamentary secretary has said that, because that demonstrates to me a very poor attitude towards this bill and the processes of this house. Just last week, the parliamentary secretary’s side of the house agreed to send the Energy Safety Levy Bill to a committee for consideration because it thought it was worth getting people’s views about whether a levy should be imposed upon the public. It was not a problem. In fact, it was agreed to without debate. Tonight we are debating a bill that is vastly more significant in its outcome than the Energy Safety Levy Bill, yet the parliamentary secretary says I must be joking when I ask whether the government will be supporting the motion to send this bill to a committee. This is not a joke, parliamentary secretary. This is a very serious matter. If the parliamentary secretary has not worked that out by now, I regret that her future will be limited - I never would have thought that until now. Hon Barry House and Hon George Cash have pointed out clearly why this is a reasonable course of action to propose. The purpose of the motion is not to defeat the bill. It is to provide an opportunity for members to become more aware of the circumstances that surround this issue. That is what our committees do. The reason we have set up our committees is to enable us to engage in a far more in-depth analysis of complicated and complex legislation than is normally available in the house. Indeed, it saves a lot of the time of the house. The house could save a lot of time on this bill if it were to agree to the motion moved by Hon Simon O’Brien tonight. The matter could go to the Legislation Committee, which has a very good reputation, as you well know, Madam Deputy President (Hon Louise Pratt). That committee will not make serious political judgments about this matter. Rather, it will consider this bill on its merits. I would love to hear a committee’s interpretation of the views of the three eminent legal persons mentioned by my colleagues; namely former Chief Justice David Malcolm, who is regarded by many people as being one of the most respected legal minds in Western Australia; Geoffrey Miller, who is now a Supreme Court judge; and Malcolm McCusker, who most people would acknowledge is also one of the most respected legal minds in Western Australia. I would love a committee of this house to hear their views. All we know at this time is what members prosecuting the argument on behalf of Mr Hammond have told us those people have said. I do not know what Mr Malcolm thinks, I do not know what Mr Miller thinks and I do not know what Mr McCusker thinks. However, I know that no-one on the government side knows what they think either. It would be good to know what they think, and the thoughts of anybody else in the legal world who might have a view about this sort of legislation. I hope I made my views about this sort of legislation clear last night. I would be very interested to know what members of the legal profession think about this sort of legislation. They should be invited to appear before the Standing Committee on Legislation to give their views on this sort of legislation: whether it is as bad as Hon Simon O’Brien has portrayed - I am sure it is - or whether it is just some reasonable legislative process that the government should be allowed to undertake. If those in the legal world say this is okay, then I guess my next speech on this subject will be a lot less passionate. I would like to know what those in the legal profession think, because I know what I think.

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I was also interested to hear from Hon George Cash, when he promoted the argument yesterday against this bill, some of the history in the departmental files. At the present time, at least, we as a house do not have access to those files. They are available to the State Solicitor’s Office and, if the matter were to go to court, they would be available to the legal people and the judge involved in the court hearing, but it seems this matter will not go there, so why should we not have access to those files that might put a completely different interpretation on this issue? If the house votes against the motion to send this matter to a committee, it will in fact deny itself the ability to access evidence that may, on the one hand, lead to members changing their minds, or, on other hand, having their views reaffirmed. It might transpire, if this matter goes to a committee, that the committee will report that it has looked at all the evidence, it has heard from the legal people and it has seen the files, and it thinks the government is right. We never know. Over the years I have read some committee reports that have been a bit of a surprise, and that is because a committee, particularly the Standing Committee on Legislation, with the reputation it has gained over the years, has the ability to see through the political jargon surrounding many issues and present well-reasoned and sensible conclusions. It is not out of the question that the committee might come down with a decision that this particular legislation should be passed. I do not know what the numbers are like on the Legislation Committee, but I suspect they do not support the opposition. Therefore, we are not asking for this bill to be referred to some opposition-dominated committee that will produce the report we want. We are asking not only the Greens, but also those in the Labor Party, the government, to seriously contemplate this proposition. If the government fails to put a time limit on this matter, it should move an amendment, as it did the other day with the Energy Safety Levy Bill, that the committee must report by a certain date. That is better than doing nothing. Tonight, all we are asking for is something that is better than nothing. At the moment, nothing is available. The only thing facing Mr Hammond and the opposition is the passage of legislation that will deny him the right to go to court, which will in fact validate everything the government has done since 1938. The issue will be all over, red rover, unless he can somehow appeal to a superior court in due course at great expense to himself. I would like the committee to consider the issues that Hon Barry House so clearly pointed out a moment ago relating to the planning processes. It was only last night that the parliamentary secretary representing the Minister for Planning and Infrastructure made the point by way of interjection that there cannot be high-rise buildings on the land because the planning processes will not allow it. I was very grateful for that interjection. She was effectively saying that the argument we were promoting was correct. The bottom line is very simple: the planning processes will decide what happens to the land, not Mr Hammond, high-rise developers or mad land sharks who might want to rape the land. It would be very useful to have the people who are involved in the planning processes of Western Australia make it very clear to this house, through a committee of the house, what can and cannot be done on that land. It would be a very useful addition to the collective knowledge of all members, and particularly useful in the context of our making a decision about Mr Hammond’s position. The government certainly made it very clear that it sees this attempt by Mr Hammond to go to court as somehow or other a vehicle for him to rip millions of dollars out of the system for a very miserable amount of money. I will quote the end of the second reading speech, which refers to two former Liberal ministers - Their extraordinary decision to grant waivers to a key defence argument in ongoing court actions against the advice of departmental officers and the Crown Solicitor’s office has seriously compromised the state’s ability to successfully defend this litigation. If this legislation is not enacted to protect the land, a real risk is that this prime beachfront land, which is worth many millions of dollars, will be handed to Mr Hammond for the mere sum of $3 900. That quite outrageous conclusion to a second reading speech at least gives us some indication of the government’s mentality on this matter. If I cannot, I would like a committee of this house to, hear the advice of the departmental officers and the Crown Solicitor’s Office that is supposed to have suggested that the actions taken by former ministers to give Mr Hammond his day in court have seriously jeopardised the state’s ability to successfully defend the litigation. The last part of the speech is the reason the bill is before the house: the government thinks that it will lose if the case proceeds. That is why it has to use this sledgehammer of legislation to defend its position. It would be lovely if every time we went to court and we thought we were going to lose, we got Parliament to pass a bill to ensure that we would win. What a fantastic state of affairs. We could have changed the result of the last election! We could have got Parliament to pass a law that the election result was wrong, and have it turned around. We would have a lovely state of affairs if we started doing that sort of thing. I am very keen to hear the advice of those officers - or at least to read it - that has led the government to come to this conclusion which is outlined in the concluding paragraph of the second reading speech. When Hon Barry House told the house that the court appearance - or whatever it was today - did not take place because the Crown did not turn up, I became very concerned. It should concern everybody. I hope that the government has a good explanation. Hon Sue Ellery: Very good. Hon NORMAN MOORE: Did they get caught in traffic or something?

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Hon Sue Ellery: You will hear it - keep going. Hon NORMAN MOORE: I have not been there; I do not know. All I know is what I have been told tonight. If it is true, and I have no reason to doubt it, the government will need a very good explanation. Last night it was suggested that this bill is before the chamber today because the matter is now before the courts and some action is taking place after all these years. That brings to mind another matter I want the committee to investigate; that is, why this matter has taken so long to get to this point from the very beginning of the litigation action. Who has been holding up the process? We all know that the court system takes a long time. No-one would want to get into if it could be helped. Once a person is the system, it takes a long time to get out of it; however, it should not take this long. Has the government deliberately sought to delay, defer and frustrate Mr Hammond’s legal processes over the years, or has Mr Hammond done it himself? I do not know. I know only what I have been told. We would prefer it if all these arguments were heard in a court not by you, Deputy President (Hon Louise Pratt), but by an independent judge who has no axe to grind and no political views on the matter and who would listen to the evidence from both sides before making a decision. We argued that last night, but it seems that we did not argue the case successfully. The Greens (WA) and Labor Party members are entitled to make that decision. The second-best option is for members - who will determine this decision - to find out more about this matter than they already know. I refer to not only members on this side of the house, but also government members. If I asked government members privately whether they knew all the facts surrounding this matter, whether they had gone into it in detail and whether they would like to know more about it, I believe that most of them would tell me that they have not gone into it in a lot of detail but had only a rough idea of what it is about. They have heard Mr McGinty’s point of view and they know what the decision of caucus is, and so that is what they will do. I believe that privately they would not mind knowing more about it. Last week they agreed to learn more about the Energy Safety Levy Bill. We were not joking then; we were deadly serious. The house determined that the Energy Safety Levy Bill would impose a levy on taxpayers in four years and sent the bill to a committee to find out what people thought about that. The house accepted the decision to send that bill to a committee, yet the government considers Hon Simon O’Brien’s motion to send this bill to a committee a joke. A joke? That is absolutely appalling. It demonstrates that the government does not understand how serious this issue is as a matter of principle. It demonstrates also that government members have been told what to say and do by the Attorney General and his departmental officers, and are simply carrying out their wishes. Those departmental officers are the people who the government alleges led the previous Liberal ministers down the wrong path. Those officers will get their day before a committee of this house. It beats going to the court. When a case is heard before a court, information must be provided through discovery, evidence must be given to the opposing side, questions must be answered and witnesses can be cross-examined. All those things can happen in a court. Is it not much easier for those who are promoting this course of action to decide to have it dealt with by the Legislative Council? They are only members of Parliament; they are not legal people. They will have a political argument about it, the legislation will be passed and it will all be over, red rover. It is no wonder the departmental officers want to go down this path; it is an absolutely guaranteed win. It is like knowing that the jury will vote its way 6-5 every time, because the jury has been hand-picked. This matter is coming before this jury - the Legislative Council. The course of action taken by the government is slightly more favourable to their interests than is the course of action proposed by the other side of the argument. What a lovely scenario it would be if every time a person wanted to win a court case, he or she picked a jury that would guarantee a win. That would be fantastic. I will not prolong my comments any further other than to say to the Greens (WA) and government members that this motion provides us with an opportunity - it does not have to be a long opportunity - for members of the Standing Committee on Legislation to sit down, unencumbered by the process and pressures of this house, with those who know about this matter to learn what it is all about. The committee can ask the eminent lawyers why they came down on one side of the argument some time ago. It can ask the departmental officers why they are so strident about going down this path. It can ask why it is necessary for Parliament, and not the courts, to make this decision. It can ask why the government has chosen this course of action and not the normal course of action. It can find out what is in the files that have accumulated over the years. Let us look at them. I would like to see them - I am sure everybody would. These are the sorts of things that a committee of this house can and should do. Quite frankly, this bill is the sort of bill that should be placed under scrutiny. As I said at the beginning of this debate, the opposition would much prefer that the courts decide this matter. Sending the bill to a committee is a second-best option. It will not make any difference to the outcome of the bill; rather, we will be given information that we do not have now. Sending the bill to a committee will not mean that the bill is defeated. It will simply mean that the house can do its job better than if the bill does not go to a committee. Members know that the house does its job better when it has a chance to consider bills through the committee process, because the committee can interview people who know better than we do. That has been done successfully on many occasions and it will continue to be done successfully in the future. For all the reasons that opposition members outlined yesterday during the second reading debate, this bill desperately needs that

[COUNCIL - Wednesday, 12 April 2006] 1569 scrutiny. I ask the Greens and government members to please take this motion seriously. They must understand that it will not necessarily affect the outcome. Sending this bill to a committee is the proper and right thing to do, and it should be done. HON ROBYN McSWEENEY (South West) [9.13 pm]: I support Hon Simon O’Brien’s motion to send the Yallingup Foreshore Land Bill to a committee. Garth Hammond must be very frustrated with the law, our legal processes and Parliament, given that the Greens (WA) have already indicated that they will not the support Liberals in their fight for justice. He must also be frustrated by the fact that the law has ignored him. Perhaps the Greens will be fair and just and agree to send this bill to a committee. If for no other reason, the bill should be sent to a committee in accordance with the fair and just processes of Parliament. I certainly hope that Hon Paul Llewellyn and Hon Giz Watson agree to what I call procedural fairness. Given that a committee can look at the facts, invite professionals to appear before it, considers the factual merits of an issue and compiles a report that is evidentiary based, I support this bill being sent to a committee. The Parliamentary Secretary to the Attorney General just said that we have to be joking if we want to send this bill to a committee. I assure the parliamentary secretary that Garth Hammond, who has fought for justice for 14 years, does not think that this is a joke. Three judges have given their opinions. Having spoken to Mr Hammond on many occasions, I can only imagine his frustration when doors are slammed in his face and all avenues are closed. That takes a toll on a person. I support Mr Hammond having his day in court; however, if that is not possible, the next best thing is to send this bill to committee because that is the only way that Mr Hammond will receive a fair hearing. A fair hearing is what is needed with the Yallingup Foreshore Land Bill. I support the bill being sent to a committee. HON NIGEL HALLETT (South West) [9.14 pm]: I take this opportunity to support Hon Simon O’Brien’s motion and I applaud the impartiality that Hon Paul Llewellyn and Hon Giz Watson bring to this Parliament. I find it very encouraging that Hon Paul Llewellyn has acknowledged that the law is imperfect. I appeal to him to acknowledge the law and let Parliament give to a citizen of Western Australia, in this case Garth Hammond, an opportunity to have his day in court; indeed, that should apply for anyone who seeks a decision from a court. If the land in question were a quarter-acre block out the back of Southern Cross, we would not have spent four or five hours in this Parliament debating the matter. Is it the amount of land that worries us? Is it the amount of money that worries us? These matters should not cloud the issue. As members of Parliament, it is not our role to be judge and jury; it is our role to deliver fair legislation. I appeal to the Greens (WA) and to the Labor members of Parliament that if they are in doubt, they should support the referral of the bill to a committee. If members want to earn the respect of Parliament and the community of Western Australia, they should acknowledge the real role of Parliament and gather all the information that will enable Parliament to make an informed decision. If this Parliament is to make an even-handed and fair decision based on the information available, it will not hesitate to support the motion moved by Hon Simon O’Brien. We as members on all sides of this house have nothing to lose by supporting this motion. It comes back to having a court decide Mr Hammond’s future. What do we have to lose? Absolutely nothing. We can make fair and just legislation. We can let the court decide. I urge all members of Parliament to give unbiased support to this motion of Hon Simon O’Brien. HON PAUL LLEWELLYN (South West) [9.17 pm]: From time to time we are all confronted with long-term perennial grievances that people bring to us. Even in my short time as a member of the Standing Committee on Environment and Public Affairs we have heard such a grievance. Very often the grievance is not exactly as it might seem. It is not just a grievance about an injustice or wrongdoing or litigation; it is in fact rolled up in an emotional argument and a commitment, and in this case possibly a deathbed commitment, to continue a case. Hon Norman Moore asked why this commitment ended up in this place. It ended up in this place for a very good reason. It ended up here because Mr Hammond brought it to not only one member of this house but also to just about every regional representative. Any lower or upper house member who would listen has heard Garth Hammond’s story, and that is why our files are full of the Hammond story and the Yallingup story. I do not believe this is a fight for justice, to quote another member. This is not a fight for justice and some higher good. We dealt with the imperfections of the law and the imperfections of our history last evening. There is a series of injustices and imperfections which we inherited and which this place represents and embodies. This place is what it is: a place where we must make difficult decisions from time to time. In the view of the Greens (WA) - it is not just my view; I inherited this case - this has been a vexed and long- term grievance tied up in emotional argument that involves not just a matter of justice, but also attachment to an outcome and to the process. I make the distinction between attachment and commitment. We can be very committed to achieving and moving forward. In this case, if the Yallingup Foreshore Land Bill is referred to the Standing Committee on Legislation, we will be committed to getting all the evidence on the table and so forth versus being attached to that outcome. When we debate issues in this house, we tend to take one side or the other. We tend to become attached to an outcome, rather than committed to justice or to inquiry. This issue has undergone a longstanding inquiry as part of a very public process. That is why we all know fragments of the case. However, it is a vexed issue because of the passage of time and because people’s

1570 [COUNCIL - Wednesday, 12 April 2006] perceptions and memories have been attached to the facts. There comes a time when we must move forward and put the past where it belongs, which is in the past. It is time to move forward without compromise on principle, but with a commitment to moving forward and achieving an outcome to relieve the state and the community of this longstanding vexed issue. The committee process also will be imperfect. What if the committee delivers an outcome that Garth Hammond or the Hammond family believe has not done them justice? Whose door will they knock on then? Will they ask future new members of Parliament to bring it back to the house again for a decision? What happens if a satisfactory outcome is not delivered by the courts? This case will return again and again because not only is it about the facts or procedural fairness but it is tangled up in a series of values, some mythology and some facts. I see no advantage in referring the bill to a committee. That process will not reveal further information that will change the nature of the conflict. The nature of this conflict is complicated, in the same way as a divorce case gets complicated and the evidence is coloured. This case will inevitably result in a tangle of ideology around justice, fairness, just rights, historical grievances and vexed issues. Democracy is expensive. In my short time in this place, I have come to understand that democracy is expensive. The process that we have involved ourselves in, not just as a Parliament, but also as individual members of Parliament, has been an expensive, long-winded exercise. Hon Barry House interjected. Hon PAUL LLEWELLYN: Democracy is an expensive process. This issue has already occupied the minds, attention and resources of a considerable number of people in our region. It is time to move on, and that is where the Greens started this conversation. The Greens and the community have heard a considerable amount of evidence and have had a considerable amount of discussion, and we should avoid running an ideological debate in this place - Hon Norman Moore interjected. Hon PAUL LLEWELLYN: We should avoid running an ideological debate in this place about just terms, because in some ways that is just as much an abuse of this case as any other injustice. The Greens will not support the motion. More than enough resources have been put into this matter already. Hon Simon O’Brien: What about we have a bill to declare invalid the election of any Greens member to this house and that it be effective from the last polling day? What if we support that? The DEPUTY PRESIDENT (Hon Louise Pratt): Order, members! Hon Paul Llewellyn is clearly not entertaining interjections, so members will allow him to continue his speech. Several members interjected. The DEPUTY PRESIDENT: Order, members! Hon PAUL LLEWELLYN: We have made the case, and I will make it again, that the Greens are committed to fair and just outcomes. One of our central planks is that social justice, fairness, just outcomes and intergenerational values be considered - Several members interjected. Hon PAUL LLEWELLYN: The Greens do not support the motion to refer the bill to a committee. It would serve no more purpose to the case. HON BRUCE DONALDSON (Agricultural) [9.27 pm]: I support the motion to refer the bill to a committee because of two or three factors that have stuck in my mind. The first glaring factor was the second reading speech. I have been in this place for 13 years and I have never heard a speech like that. It was gutter politics at its worst. I do not know who was the author of the second reading speech. Did it come from the Attorney General’s office? Did it come from the State Solicitor’s Office? I hope that the parliamentary secretary will identify how that second reading speech, which was absolutely disgusting - Hon Ken Travers: This is a referral motion. Hon BRUCE DONALDSON: I am talking about the referral motion. I am giving the reasons that the bill needs to be referred to a committee. That was clearly the worst second reading speech I have heard in this place in 13 years. It showed contempt for this house and the Parliament and abused parliamentary privileges. The other factor is what I call the conscience clause, clause 7, which needs to be examined. It clearly states that the government is prepared to pay the legal costs of Mr Hammond, yet it will deny him his day in court through this legislation. I await the introduction of a bill that will validate the claim by the contractors who deepened the Geraldton port for $70 million from the state government. Will we see a bill very soon validating that situation? Will a piece of legislation prevent those contractors from having their day in court over that $70 million claim? We will never know what the advice of the State Solicitor’s Office was or is. However, we do know that there has been an unholy rush to bring on this bill all of a sudden, after it has been languishing for a number of years.

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Eminent legal people are also being denied the opportunity to appear before a court. The people mentioned by Hon Barry House and Hon Norman Moore are very highly regarded in the legal fraternity. I have yet to see two lawyers agree. Also, no lawyer can say that he is the sole fount of knowledge. Some lawyers might like to think that they are. However, I can give the house an example of a matter involving Crown Law, as it was previously known, and the Solicitor General. Many years ago I went to school with a person who became Solicitor General. Some years ago, the Court government introduced the Young Offenders Bill. Prison rules were to be transferred to accommodate young offenders. A very eminent Queen’s Counsel, Mr Len Roberts-Smith, advised the Joint Standing Committee on Delegated Legislation. The committee said in its report to the Attorney General at the time that that move was completely out of order because many of those prison rules had legislative effect and could not be transferred and used for young offenders; there needed to be other legislation to give validity to those laws. We were pooh-poohed at the time. However, by the time we had finished, surprise, surprise, Crown Law removed half those prison laws that it was going to transfer because the committee was right. I made up my mind then that Crown Law is not the sole fount of knowledge. I would like the government to have the intestinal fortitude to stand in the court and present its case. I do not know what the result would be. I have always believed that if a person can go to court, at least there is the opportunity for justice to be done. That justice may not be done in the way in which a plaintiff would wish it be done, but so be it. Hidden beneath all this is gutter politics. I have become suspicious. I have become more suspicious every day over the past three or four years as I have watched this legislation unfold. From my observations, the State Solicitor’s Office is hell-bent on making sure that this legislation goes through. I am not a lawyer but, reading between the lines, my assessment is that Mr Hammond has a very good case. However, with this bill he will never be allowed to present it in a court. As a member of Parliament, I feel ashamed that this is happening. It disappoints me greatly. It is not often that I get very upset. However, I believe in justice for people. The court should decide whether that justice should be in favour of Mr Hammond. How many times have I heard that there is a separation of powers between the Parliament and the judiciary? All members of Parliament stand and fly the flag for that separation; for keeping the judiciary separate from the Parliament. How many members of Parliament across Australia were horrified when a High Court judge said that judges not only interpret laws, but also make them? Do members remember that? I do. People across Australia were not very happy with that statement, because judges are not elected and they are not responsible to anyone. That judge - I think it was Mr Justice Kirby - was talking about not only interpreting but also making laws. I have listened, I have seen the urgency and I have seen the absolute contempt illustrated by the body language of members on the other side of the house. Hon Sue Ellery: By whom? Hon BRUCE DONALDSON: I am just saying, it has been shown by those sitting on the member’s side of the house. The DEPUTY PRESIDENT (Hon Louise Pratt): Order! The motion before us is a referral motion. Hon BRUCE DONALDSON: I am saying that this is all part of the integral reason, Madam Deputy President. We may or may not have a vote at some stage this evening. We are waiting with absolutely bated breath to hear the parliamentary secretary representing the Attorney General. Hon Ken Travers: She tried to get the call. Hon BRUCE DONALDSON: She will get the call in due course, but I did not know there was a prohibition on members speaking in this house or any rules or regulations preventing them. I think that every member should be heard. Hon Ken Travers interjected. Hon BRUCE DONALDSON: If Hon Ken Travers wants to be heard, he should get up and make a speech. He should have the intestinal fortitude to stand up, have a sense of decency and defend what his government is about to do. He will not do it. Hon Ken Travers: I have no problem with what we are about to do. Hon BRUCE DONALDSON: He should stand up and say so, and give his reasons. I am absolutely disgusted at the way in which the Yallingup Foreshore Land Bill has been advanced over the past few years. I am disgusted because I see a chamber of this Western Australian Parliament being used and abused. I never thought I would ever see it. I have seen some funny events take place in this chamber, and some bits and pieces of which we have probably all been ashamed at times, but every member on the other side should be hanging his or her head in shame at what is happening tonight and has been happening for some time. I am pretty disappointed in all of them. I believe that deep down many of them have the decency to believe that somebody should at least be given the chance of his day in court to seek justice. If his argument were rejected by the court, we would all cop

1572 [COUNCIL - Wednesday, 12 April 2006] it because that would be it, but at least he could walk away knowing that he had had his day in court. If he lost the argument, that would be tough, but that is what life is all about. I support the referral of this bill to the Standing Committee on Legislation, because it is important. I am a great advocate of the committee structure of this house and always have been. I have enjoyed committee work. Many of the reports presented to this house have been of a very high standard. That is a reflection on the staff and the fact that when we sit around a committee table - surprise, surprise - every person takes his or her political cap off. I have always enjoyed that aspect of committee work. This matter could have been advanced. The Legislation Committee could have handled it and reported back to the house. As Hon Norman Moore quite clearly said, the committee may have found that Mr Hammond did not have a case. That could easily have been the case; who knows? At least it would have been done. This Parliament could then have made the point that it had looked at the matter and that the committee had not agreed with his case. Some might still have wanted to fight on, but at the end of the day at least this man would have had access to the first part of justice. I support the motion of Hon Simon O’Brien. This is a very sad day for this house because of the way this bill has been generated. We have slowly but surely slid into the gutter. I am disappointed in those people who have been responsible for this. I go right back to the State Solicitor’s Office and the Attorney General’s office. Underneath it all, my mind will never be altered unless I have proof that this has been generated for one reason only; that is, the State Solicitor’s Office gave the advice that the government could not win. HON SUE ELLERY (South Metropolitan - Parliamentary Secretary) [9.41 pm]: Madam Deputy President - Point of Order Hon NORMAN MOORE: Can you clarify the status of this speech, Madam Deputy President, and whether it closes the debate on the second reading? Can the parliamentary secretary speak on the referral motion and then speak on the substantive motion? The DEPUTY PRESIDENT (Hon Louise Pratt): The parliamentary secretary is in a position to speak to the referral motion at this point, but that does not close the debate. Debate Resumed Hon SUE ELLERY: The government opposes the referral motion. The essential elements of the argument are that a fraud was committed against Mr Hammond; that this legislation offends an individual’s rights and deprives him of his day in court; and, if we do not let him go to court, at least we can let him go to a committee. No fraud was committed against Mr Hammond Snr. In 1937, he purchased 96 acres of land for £300. The following year, 1938, he was offered, and accepted, compensation for the amount of £250 for about a third of that area - 33 acres. There has been no breach of his rights. He has had several days in court, both before and after the state’s rights were compromised by a decision to waive, in the broadest terms, that proper instrument of the law, the limitations provisions. Of greater concern to me tonight is that one of the key supporting arguments being relied on to prove the motivation of the government in this matter, and why this should be referred to a committee is that the government is using this bill to create some kind of artificial device to avoid a court proceeding that was listed for today. That was mentioned in the formal contribution by Hon Barry House; by several other members in their speeches; and in by others, including Hon George Cash, through interjections. I have in my hand a document that states - IN THE SUPREME COURT OF WESTERN AUSTRALIA CIV/2353/2003 BETWEEN William Garth HAMMOND As Executor Of The Estate Plaintiff Of Thomas Garfield HAMMOND -and- STATE OF WESTERN AUSTRALIA Defendant CONSENT ORDER REGISTRAR S BOYLE DATE: 4 April 2006 PURSUANT TO ORDER 43 RULE 16 AND BY CONSENT IT IS ORDERED THAT: 1. The directions made by Registrar S. Boyle on 22 February 2006 be varied as follows: 2. The plaintiff file and serve a reply to the defence by 5 April 2006.

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3. The parties are to file and serve affidavits of discovery by 21 April 2006. 4. The case evaluation conference listed for Wednesday, 12 April 2006 is vacated. 5. The Case Evaluation Conference be adjourned sine die. BY THE COURT SANDRA BOYLE REGISTRAR I seek leave to table the document. Leave granted. [See paper 1441.] Hon SUE ELLERY: I am also advised that this order was made on application by Mr Hammond himself. So, what happened tonight? Hon Barry House needs to check his facts, because either Mr Hammond misled Hon Barry House during that phone call that Hon Barry House says he made in the past couple of days to apprise Mr Hammond of the events in the house, or Hon Barry House misled us tonight. It is not the case that the government was using this legislation as some kind of artificial device, and it was certainly not the case that the government did not turn up today or failed to appear. In fact, what happened is that on application by Mr Hammond, the date was vacated, and that order for vacation was issued on 4 April 2006. The government opposes the referral motion. Debate interrupted, pursuant to sessional orders. ANZAC DAY SERVICE - BLACKBOY HILL, GREENMOUNT Statement HON DONNA FARAGHER (East Metropolitan) [9.45 pm]: I advise the house of an Anzac Day service that I had the opportunity to attend today at Blackboy Hill in Greenmount. It is a special service that is hosted every year by the Greenmount Primary School, the Bellevue Sub-Branch of the Returned Servicemen’s League and the Shire of Mundaring. In involves a number of schools within the local area, including, of course, Greenmount Primary School, St Anthony’s School and Swan View Senior High School. It is also attended by other RSL subbranches as well as the wider community. The particular significance of the service is perhaps its location. As I mentioned, the site is located at Blackboy Hill. Blackboy Hill, now a heritage-listed site, hosted Western Australia’s biggest training camp during World War I. The training camp is of personal significance to my family. My great-grandparents, Archibald Jamieson, mayor of the then Midland Junction municipal council around the time of the war, and his wife, Sarah, spent a great deal of time at Blackboy Hill in a voluntary capacity. Sarah, in particular, is recorded in a newspaper clipping as providing an invaluable service to the local Red Cross, whose activities mainly extended to the training camp. The Blackboy Hill training camp was extremely significant. More than 32 000 World War I soldiers trained at the site before serving overseas in places like Gallipoli and France. At the service today the State President of the RSL, Mr Bill Gaynor, OAM, RFD, said that Blackboy Hill is recognised as the birthplace of Western Australia’s first Australian Imperial Force and that nine of the state’s Victoria Cross recipients trained at that site. Although only two concrete slabs of the original camp are left, much has been done by the community to ensure that those who trained at the camp are forever remembered. Some of the more recent history that was provided to us at the service today is as follows - About 1957 the Returned Servicemen’s League managed to have the land reserved to commemorate the birthplace of the Spirit Of Anzac, which arose with those young Western Australians. The site was dedicated and the first sod turned in November, 1958. The stone Ellipses and the arches were erected in 1962 and the Gallipoli Legion Seat was added in 1965. In recent years progress has been marked by the completion of stone retaining walls, pathways and an extensive tree planting programme. Brick paving and steps and an Information Centre have been added. The site is classified as one of national importance. The design of the Central Feature is simply a sculptural form commemorating the rising of the Spirit Of Anzac and symbolising in abstract form the passing of this Spirit from generation to generation of young Australians. The axial line running though the whole conception is the line of sunset on the 24th April each year. In 1963 Companions Of Legacy sought permission to hold a Sunset Service being aware that much of our heritage began at this spot. A year or two later the Dianella Boy Scouts joined the Companions at their Service and maintained a vigil. From then on Blackboy Commemoration has taken on a new concept in the thoughts of many people.

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I would like to congratulate Greenmount Primary School, the Bellevue Sub-Branch of the RSL and the Shire of Mundaring for today’s service. Anzac Day forms a very important part in Australia’s history and such services on and around the actual day enable one to quietly reflect on the lives of many thousands of brave soldiers who gave selfless service in defence of Australia and the allied countries. I hope that services like the one I attended today at Blackboy Hill will ensure that the memory of these solders lives on, and lives on throughout the generations. HAWAIIAN RIDE FOR YOUTH 2006 Statement HON KEN TRAVERS (North Metropolitan) [9.50 pm]: I can tell Hon Donna Faragher that I know the site well. Our family has a picture that was taken many years ago of a number of my nephews sitting with some diggers on a fence at the Blackboy Hill site. My nephews are now all grown up, but they were at Swan View Primary School, and that photo of them holds pride of place. Therefore, as I have said, I know that site well, and I can imagine how moving it must have been to be up there. Tonight I want to talk briefly about an activity that I undertook last week when I was honoured to join 39 other men and women in Western Australia to participate in the Hawaiian Ride for Youth 2006. The route of the ride was from Albany to Perth, and it comprised some 700 kilometres of pushbike riding in four and a half days. I was privileged to join with a number of other people, mostly parents, who care about the issues that we face in our society, particularly youth suicide. I am sure all members in this place would share the concern about the ever-increasing number of young people who take their own lives. In recent times there has been a bit of media coverage - which has been good to see - highlighting the fact that every year we now lose more people from suicide than we do from road deaths. We can roll off the statistics about the loss of life during the Second World War and the number of people we now lose through suicide. There are a thousand-and-one statistics. However, I do not want to focus on that tonight. I want to talk about the ride. The purpose of the ride was not only to present a personal challenge for the participants but also to raise the profile of the issues and raise funds for the organisation Youth Focus. It was a fantastic experience. It challenged me personally, not only because of the physical effort involved but also because I had to do some fundraising and think about what we as individuals and as members of Parliament can do to try to make a difference. The ride was not just about what took place last week. It involved many months of training for those who were involved and took almost 12 months to organise. I pay tribute tonight to the members of the organising committee. The ride has been taking place for the past four years. All the organising is done by volunteers so that all the money that is raised can go into delivering programs within Youth Focus and not into the fundraising side of the organisation. The idea for the ride began at Floreat Primary School when a group of parents decided they wanted to do something to make a difference. In the beginning there was only a small number of riders, but they have now gathered in people from around Western Australia. This year the organising committee was ably led by Graham Iddles. I congratulate Graham and his team. I also single out James Sutherland, the chair of the sponsorship committee, and the spokesperson for the ride. During the ride he spoke at many schools that we visited. He also organised the media coverage. Graham, James and the other committee members put in many hours in organising and preparing the ride so that it was a great success. They had to search out and gain numerous sponsors. The major sponsor was Hawaiian Management Group, a major property developer in Western Australia. The major team sponsors were Avoca, Budget Hire Car, Capital Partners, Corporate Sports, Dome, EquiGold NL, Home Building Society, Perth Airport, Perrott Painting and Scott Park Homes. There were also numerous product and media sponsors whom I do not have time to go through tonight, but to all of them, congratulations. All the people who participated in the ride went down different paths to raise money. Each of us was given the challenge of raising at least $4 000. Many of us raised significantly higher amounts than $4 000. For some people, like me, it was probably easier, because we had the contacts and we could write to people and seek support in that way. For others it meant organising things like quiz nights. Two families in particular brought together some 500 people for a quiz night a couple of weeks ago and raised over $12 000 between them. They also spread the word and raised the profile of the issue. For others it was about sitting on a wind trainer at Herdsman Fresh Essentials in Churchlands on a Saturday afternoon rattling the can as people went though the markets. For others it was about selling wine to their families and friends or teachers getting their schools to assist them with fundraising. Everyone played a different part, but they all put in tremendous effort. The ride required significant training. They said this year was the best peloton that they had had, and that was because people committed themselves to some five months of training, which in many cases meant getting up at five o’clock in the morning or earlier on Tuesdays, Thursdays and Saturday mornings, and often not getting back until lunchtime on the Saturday and being extremely tired. That training was led by Peter Trench from Trench Health and Fitness. He is a recent 40under40 award winner, and someone whom I greatly admire. He gave up

[COUNCIL - Wednesday, 12 April 2006] 1575 his own time to give us the support and confidence that we could do the ride. He did that whilst continuing to run a small business on his own. Peter, along with many other people, is to be commended for the time he put into the ride. During the ride we were fortunate to visit many schools in the south west. We led off from the North Albany Senior High School and moved to the Denmark High School. A number of the riders went to the Walpole school, to the Pemberton District High School and to the MacKillop Catholic College in Busselton. To all the teachers and students who were involved at those schools and welcomed us, I say thank you very much. An important part of the ride was to also talk to students and to make sure that if they do have problems, they can reach out and ask, because there is help and there are people who do care. They should not give up on their lives, because there are many in society who care for them and want to assist. There were 39 other riders, ranging in ages from 24 to 61. Rob Martin had his sixty-first birthday during the ride. That shows that we can all participate in the ride in future years. Some riders, such as Laney and Devo, were on their first ride, and rode as if they had been doing it all their lives. Fortunately, there was only one accident, which was not serious, when Karin Marsh fell off her bike. She showed great courage to get straight back on and to finish the ride; she did not miss a beat. I also refer to the Cousins family, whose father joined the ride when it first started. A couple of years ago his young daughter Danielle joined him and this year Jarrad joined, meaning three of them were riding. A support crew went along for the ride, and I would like to thank Jenny Allen, the chief executive officer of Youth Focus; Paul Hopwood the event director, who did a fantastic job in making sure that it ran like clockwork; Sam Prince; Mel Peci; Rik Thorton; Hughie Sutherland; and our four sports masseurs, Kate, Ingrid, Melanie and Maria, who made sure that they inflicted pain on us so that we would have less pain the next day. They need to be congratulated for their work. Youth Focus is a great organisation. It is doing some great work in our community to assist young people because its members value young lives and want to ensure the emotional wellbeing of young people, develop their self-worth and offer them the opportunity to reach their full potential. As a result of the funds that were raised, Youth Focus will be able to continue to do that work and concentrate on areas such as youth and family counselling, the development of programs in rural WA, further development of its peer support program, its school-based programs and its mentoring programs, all of which are fantastic. Youth Focus carries on these activities right across Western Australia, particularly in Perth. I am pleased that the ride raised at least $470 000, and I hope we will have close to $500 000 by the time fundraising is complete. I thank all the members in this house who sent donations to Youth Focus as part of their sponsorship for me on that ride. I appreciate the support that came from all sides of the house. I was pleasantly surprised at the amount that members were prepared to donate. I put on record my very sincere thanks and, once again, my absolute congratulations to all the organisers of the Ride for Youth. I consider it a complete honour and privilege to have shared a magnificent five months but more particularly another week with those who participated in the ride. I hope we can make a difference about the issue. CONTINENCE AIDS SCHEME Statement HON GIZ WATSON (North Metropolitan) [9.59 pm]: I will make some comments about an issue that quite a few members have had raised with them by constituents. The issue is the provision of continence products. I have asked questions in this house about this. I know members on the other side have as well. Western Australia is currently the only state in Australia that does not operate a continence aids scheme to assist people with disabilities and health conditions to meet the cost of continence products. Children with disabilities and health conditions, adults of working age with disabilities and health conditions, and the seniors in our state are significantly disadvantaged by the failure to address this basic health need. The eligibility for the commonwealth continence aids assistance scheme excludes many people in need, and the level of subsidy is insufficient to meet the needs of many working age adults with disabilities. A means-tested continence aid program is urgently required for Western Australians of all ages and abilities. Constituents of mine have raised this concern with me, as have their representative organisations, People with Disabilities (WA) and the Health Consumers’ Council. It is useful to put the words of some of my constituents on the record because they are the ones who are suffering as a result of the lack of subsidy for continence products. One constituent said to me - “I am thirty-eight years old. My continence needs are only partially met by the Commonwealth Continence Aids Assistance Scheme and each year I pay approximately $1500-$1800 towards these basic health products. Any attempt to do without or limit the products I use would leave me housebound and ultimately lead to my kidneys being damaged. This situation is not uncommon for people with quadriplegia and other significant disabilities.” Another constituent stated - “I am 48 years old, I receive limited financial support through the Commonwealth Continence Aids Assistance Scheme. This funding does not meet the cost of the continence products I need; I am on the

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Disability Support Pension and I spend in excess of $700 per year to meet this basic health need. If I did not spend this amount I would be housebound and my health and quality of life would deteriorate. This impacts significantly on my ability to meet other essential costs of daily living.” Another stated - “I am a mother of an 18 year old man who has severe physical and intellectual disabilities. With incredible difficulty, being a single mother with major health problems, I have to spend a minimum $1,400 a year extra to purchase the necessary nappies to cover this basic health need.” A further constituent stated - “My daughter is 17 years old and has Autism and an intellectual disability. Until last year my daughter received limited funding for continence aids through Lotterywest supported Incontinence Pad Scheme. She now receives limited financial support through the Commonwealth Continence Aids Assistance Scheme. Both the schemes are inadequate in meeting the needs of children and adults with disabilities as funding is capped. They fail to meet the costs of this basic health need. While I am in the fortunate position of being able to support my daughter in this regard I am well aware of the cost burden it places on families who do not have the same financial advantages. Families and people receiving the Disability Support Pension struggle to meet the extra burden placed on them by the inadequacy of these schemes. Families in this situation need and deserve greater support.” A further comment is - “My son, aged 20, is totally incontinent. Although he receives limited financial support through Commonwealth Aids Assistance Scheme, the funding meets his incontinence products needs for less than 6 weeks per annum. Consequently, over 25% of his Disability Support Pension is used each fortnight, to purchase these products.” Finally - “I am 59 years old. I have had transverse myelitis (triggered by glandular fever for nearly 12 years and am paralysed from T8 down. I have no movement or feeling (except pain) in the lower half of my body. I am able to self catheterise and have to purchase catheters and assorted continence aids. I do not receive any financial support and do not know if I am eligible. I anticipate increased costs of continence aids as I age and I will need to apply for financial assistance.” The point I am making is that there are hundreds of people of all ages with disabilities and health conditions who are struggling to meet the cost of continence aids. One of my constituents reported that these products consume more than 25 per cent of his income. Members must get their heads around that. That is an extraordinary imposition for a basic health need that should be covered. The correspondence continues - The Western Australian economy is leading the Nation and yet we are the only State who does not assist with these costs. A continence aids scheme is urgently required and I would argue that the forthcoming State Budge budget provides the Carpenter Government with an opportunity to show they care. It is very important that this money be provided by the state for not only seniors, but also people of all ages who have a disability. I urge the government to show some compassion for the many members of the community who are spending significant amounts of money from their own resources to cover this basic health need. I hope that the upcoming budget will redress this issue. House adjourned at 10.05 pm ______

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QUESTIONS ON NOTICE

Questions and answers are as supplied to Hansard.

GOVERNMENT DEPARTMENTS AND AGENCIES - UNFILLED AND ACTING POSITIONS 1368. Hon Ray Halligan to the Minister for Local Government and Regional Development representing the Minister for Justice For each Department and Agency under the Minister’s control, including the Minister’s office - (1) How many unfilled positions are there? (2) Of those positions that are unfilled, how many are occupied in an acting position? (3) What is the length of time each position has had an occupant in an acting position? Hon JON FORD replied: MINISTERIAL OFFICE (1)-(3) In regards to the Ministerial Office please see question on notice 1327. THE DEPARTMENT OF JUSTICE The Department of Justice advises: (1) Approximately 406 (2) 268 (3) Length of Acting No of Acting Records Less than 6 months 153 6 - 12 months 60 12 - 24 months 36 More than 24 months 19 Total 268 THE OFFICE OF THE INSPECTOR OF CUSTODIAL SERVICES The Office of the Inspector of Custodial Services advises: (1)-(2) One (3) Seven months PRISONS - INCIDENCE OF HEPATITIS C INFECTION, SECURITY BREACHES, ROOFTOP DEMONSTRATIONS 3234. Hon Peter Collier to the Minister for Local Government and Regional Development representing the Minister for Justice (1) How many inmates were found to have Hepatitis C and from which prisons? (2) How many security breaches occurred and from which prisons? (3) How many major security breaches occurred where inmates assessed unauthorised or restricted areas, and from which prisons? (4) How many high-risk restricted articles within prisoner access zones were lost and from which prisons? (5) Has security been compromised through loss or damage of security equipment or negligence? (6) If so, which prisons? (7) How many rooftop demonstrations have occurred and in which prisons? Hon JON FORD replied: (1) The Department of Corrective Services advises all blood-borne virus testing conducted in WA prisons is voluntary in accordance with community standards and that under this system at any given time 40- 60% of prison entrants consent to testing. While an inmate may test positive to hepatitis C on entry, experience indicates that a proportion of those results are actually negative. By this it is meant that entry testing only tests for the presence of antibodies, not for the presence of a virus; it is only the monitoring of persons with antibody positive tests, that further testing demonstrates that they have cleared the virus and are no longer infectious. Health Services tends to place greater reliance on specific periodic hepatitis C prevalence studies to monitor trends: the last such study was released in 2004 (National Prison Entrants Blood-borne Virus Survey Report). The results of the aforementioned study reflect similar data as for other jurisdictions, but it should be noted that male inmates nationally have a

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prevalence rate of 30-35%, whilst the prevalence rates for female inmates are 60- 80%. Given the movement of prisoners through the system, any data on a site by site basis would be irrelevant. However, it is acknowledged that the prevalence rate is highest in the women's prisons and the lowest prevalence rates occur in regional prisons that have a high percentage of indigenous inmates. (2)-(3) Security breaches occur in a number of different forms within the prison environment. The Department of Corrective Services computer systems are currently unable to readily produce the statistics requested. The provision of this information would require considerable research which would divert staff away from their normal duties and I am not prepared to allocate the State's resources to provide a response. (4) The Department of Corrective Services advises high risk articles are defined as keys, radios and restraints. For the period 14 March 2005 until 14 March 2006 no loss of high-risk restricted articles from prisoner access zones within the prisons have been reported. (5) The Department of Corrective Services advises no. (6) Not applicable. (7) The Department of Corrective Services advises nil during the preceding 12 months. POLICE - BOOZE BUS AVOIDANCE 3245. Hon Nigel Hallett to the Minister for Local Government and Regional Development representing the Minister for Police and Emergency Services I refer to The West Australian article of 22 February 2006 titled ‘Copycat Booze Bus Bolters are a Worry’ where the Attorney General said ‘he would monitor the situation and if it became a significant problem he would look at whether laws to punish those dumping cars near booze buses were adequate’, and ask - (1) Has the Police Minister and/or his Department had contact from the Attorney General and/or his office requesting details concerning the number of ‘booze bus runners’? (2) If so, for data that is available, please provide details of - (a) the number of people who have run from a booze bus; (b) whether attempts were made to catch the runner/s; and (c) whether charges were laid in regard to the running from a booze bus? (3) If no data is kept, can you please provide details of when the data will begin being kept; and collected, so the Attorney General can make an accurate assessment as to whether it is a ‘significant problem’? Hon JON FORD replied: The Western Australia Police advise as follows: 1) The ministerial office has had general discussions regarding this issue with both the Commissioner of Police and the Attorney General's office. 2) Not applicable. 3) There are no plans by WAPOL to record data on the number of persons allegedly attempting to avoid a booze bus operation. SUSPENDED DRIVERS’ LICENCES - NEWSPAPER ADVERTISEMENT LISTING NUMBERS 3247. Hon Nigel Hallett to the Minister for Local Government and Regional Development representing the Minister for Justice I refer to the advertisement in The West Australian of 16 September 2005, regarding suspended drivers licences, and ask - (1) How many licence numbers appeared in the advertisement? (2) How many of those numbers did pay their outstanding fines - (a) in total e.g. by cash, credit card, direct debit, cheque; (b) by Centrepay; and (c) by entering into a ‘time to pay’ agreement? (3) How many of those people who did not pay in total (i.e. who paid by Centrepay or entered into a time to pay agreement) have subsequently defaulted on that agreement to pay their outstanding fines? (4) Please provide a breakdown of those defaulting who agreed to pay their outstanding fines by - (a) Centrepay; and (b) time to pay?

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Hon JON FORD replied: The Department of Corrective Services advises as follows (1) 38,822 (2)-(4) The information systems used are designed to address operational and statutory requirements and do not facilitate the ready provision of the information being sought by the member. To obtain answers to these specific questions would be costly and divert key personnel from regular activities. DEPARTMENT FOR COMMUNITY DEVELOPMENT - CARE APPLICATIONS FOR CHILDREN - INTERIM ORDERS 3255. Hon Nigel Hallett to the parliamentary secretary representing the Minister for Community Development (1) How many interim orders relating to ‘care applications’ for children were made in the following years - (a) 2001; (b) 2002; (c) 2003; (d) 2004; and (e) 2005? (2) What is the quickest, average and longest time delay between the initial application and the subsequent court hearing for the years - (a) 2001; (b) 2002; (c) 2003; (d) 2004; and (e) 2005? Hon KATE DOUST replied: (1) Until the introduction by this government of the Children and Community Services Act 2004, which came into effect on 1 March 2006, Interim Orders relating to care applications were not recorded electronically by the Department for Community Development. Therefore, unless every care and protection file created between 2001 and 2005 is physically perused, the Department is unable to answer this question. (2) This answer is based on records held by the Department for Community Development and does not take into account applications initiated other than by the Department. There are usually a number of Mentions between the filing of the application and the final hearing. Assuming the Member is asking about the time between the application being filed and the final court hearing, departmental records indicate the following: 2001 quickest: 66 days; average: 281 days; longest: 872 days 2002 quickest: 12 days average: 299 days; longest: 847 days 2003 quickest: 36 days; average: 302 days; longest: 780 days 2004 quickest: 30 days; average: 229 days; longest: 590 days 2005 quickest: 19 days; average: 177 days; longest: 373 days (note: this figure will change as some 2005 matters are still before the court). While generally protection applications should be dealt with by the Children's Court as quickly as possible, there are circumstances in which a significant adjournment would be in the child's best interests, for example to enable the Department and the family to work cooperatively to enable reunification before finalisation by the Court. PLANNING - SHIRE OF NANNUP - RIVER CROSSING FEASIBILITY STUDY 3262. Hon Nigel Hallett to the parliamentary secretary representing the Minister for Planning and Infrastructure I refer to the news summaries of Wednesday 8 February as transcribed below - ‘River crossing feasibility study: The State Government says it’s open to doing a feasibility study to investigate ways of improving the safety of a South-West river crossing where two children drowned more than two years ago; Alannah MacTiernan says she’s open to the idea’ ABC Reg 10.30 12.30 (MacTiernan), and ask - (1) Has the Minister agreed to facilitate the feasibility study? (2) If ‘yes’ to (1), - (a) when is the feasibility study to begin;

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(b) when is the feasibility study due to be completed; and (c) who is undertaking the study? Hon ADELE FARINA replied: (1) Following a recent approach from the Shire of Nannup, the Minister has agreed to provide assistance to undertake a study aimed at identifying improvements to the river crossing. The State Government has committed a 50 per cent funding contribution towards a study, from the $500.000 commitment towards this road. (2) (a) A meeting has been arranged between Council and Main Roads representatives in the coming weeks to discuss the aims and possible outcomes of such a study. (b)-(c) This will be an outcome of the meeting. POLICE - DIGITAL SPEED CAMERAS AT LEVEL CROSSINGS 3263. Hon Nigel Hallett to the Minister for Local Government and Regional Development representing the Minister for Police and Emergency Services I refer to the Government’s plan to place digital speed cameras at level crossings (as reported on the TV news summaries Wednesday 15 February 2006), and ask - (1) At which crossings will the cameras be installed? (2) What is the roll out program for each location? (3) When is the roll out program due to start? (4) When is the toll out program due for completion? (5) Where will the cameras be monitored? Hon JON FORD replied: (1)-(5) The project to place digital cameras at train crossing intersections is a partnership between the Western Australia Police and the Public Transport Authority and is in the early stage of discussions. Therefore I am unable to provide you with any further information at this time. POLICE - SPEEDING - MOTORCYCLISTS IDENTIFIED BY DIGITAL VIDEO CAMERA 3270. Hon Nigel Hallett to the Minister for Local Government and Regional Development representing the Minister for Police and Emergency Services How much did it cost to the State Government to develop the new speed trap designed to catch motorcycles by photographing them from behind? Hon JON FORD replied: The Western Australia Police advises in response to concerns for public safety caused by speeding motorcyclists that a digital video camera is used as motorcycles do not have a front registration plate and previously have not been able to be identified. There have been motorcyclists who have taken advantage of knowing they couldn't be identified by speed camera and taken dangerous risks with excessive speed, endangering their lives and the lives of other road users. As a deterrent and enforcement mechanism the Western Australia Police purchased a digital video camera at a cost of $6,092.00. ASSAULTS ON POLICE - REVIEW OF PENALTIES 3271. Hon Nigel Hallett to the Minister for Local Government and Regional Development representing the Minister for Police and Emergency Services I refer to media reports that the Government will be reviewing penalties for attacks on Police (The West Australian Monday 13 February 2006 page 10), and ask - (1) When did this review commence? (2) Who is undertaking the review? (3) Will submissions be sought from - (a) serving police officers; (b) the Police Union; and (c) family of serving officers? (4) If ‘no’ to any of (3), can you please give reasons for submissions not been called from those people? (5) When is the review scheduled for completion?

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Hon JON FORD replied: The Western Australia Police advise as follows: (1) Following recent comment by the Minister for Police and Emergency Services that he would be asking for submissions from the Commissioner of Police and the Director of Public Prosecutions. (2) The Commissioner of Police and the Director of Public Prosecutions. (3)-(4) Discussions have taken place between the Police and the Director of Public Prosecutions incorporating suggestions from serving members and the Western Australian Police Union of Workers. It is not intended to broaden the submission to include families; however, as it is open to all members of the community, family members may make a submission on legislative change to their Member of Parliament. (5) It is not expected that the review will be completed until late April 2006 which will enable proper assessment and consideration of all relevant factors POLICE - CHILD PROTECTION SQUAD AND CHILD INTERVIEW UNIT 3272. Hon Nigel Hallett to the Minister for Local Government and Regional Development representing the Minister for Police and Emergency Services (1) How many FTE sworn police officers are within the Police’s Child Protection unit? (2) How many FTE support staff (unsworn officers) are in the unit? (3) For (1) and (2), as at what date do the answers apply? (4) Is the number of FTE (sworn and unsworn), available for any other years? (5) If ‘yes’ to (4), can you please supply the available data for the other years? Hon JON FORD replied: The Western Australia Police advises as follows: (1) 26 (2) Two - a Customer Service Officer and an Intelligence Analyst. (3) 17 March 2006 (4)-(5) Originally WA Police had a Unit known as the Child Abuse Investigation Unit which consisted of 23 police officers and two police staff. Following the Gordon Inquiry and a recommendation from the Australasian Police Ministers Council the WA Police formed two Units. These Units are known as the Child Protection Squad and the Child Interview Unit. The Child Protection Squad incorporates the Cyber Predator Unit and includes the online covert capability. As at 17 March 2006 the Child Protection Squad and Child Interview Unit consist of 33 police officers, two Aboriginal Police Staff and three police staff. POLICE - SPEEDING - NUMBER OF MOTORISTS APPREHENDED AND ESTIMATED REVENUE 3275. Hon Nigel Hallett to the Minister for Local Government and Regional Development representing the Minister for Police and Emergency Services For the following dates, please state - (a) the number of motorists caught speeding; and (b) the estimated revenue for - (i) Friday 10 March 2006; (ii) Saturday 11 March 2006; (iii) Sunday 12 March 2006; (iv) Monday 13 March 2006; (v) Tuesday 14 March 2006; (vi) Wednesday 15 March 2006; and (vii) Thursday 16 March 2006 Hon JON FORD replied: The Western Australia Police advise that due to the recency of these offences the Western Australia Police is unable to provide this data due to time required for processing both speed camera and on the spot infringements. ______