7657

LEGISLATIVE COUNCIL

Wednesday 4 December 2002 ______

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

The President offered the Prayers.

AUDIT OFFICE

Report

The President tabled, pursuant to the Public Finance and Audit Act 1983, a performance audit report entitled "Managing Grants", dated December 2002.

Ordered to be printed.

COUNCIL OF THE UNIVERSITY OF NEW ENGLAND

Appointment of Representative

Motion by the Hon. Michael Egan agreed to:

That under section 9 of schedule 1[3] of the University of New England Act 1993, Ms Fazio be elected as the representative of the Legislative Council on the Council of the University of New England.

STANDING COMMITTEE ON SOCIAL ISSUES

Extension of Reporting Date

Motion by the Hon. Michael Egan agreed to:

That the reporting date for the Standing Committee on Social Issues inquiry into the Department of Community Services be extended to Tuesday 10 December 2002.

PADDINGTON PAVILION AND FOX STUDIOS DEVELOPMENT APPLICATION

Motion by the Hon. Richard Jones agreed to:

1. That, under Standing Order 18, there be laid on the table of the House by 5.00 p.m. on Wednesday 11 December 2002, and made public without restricted access, all documents and correspondence in the possession, custody and power of any Minister, government department or agency in relation to Development Application No. 189-6-2002–Demolition of the Paddington Pavilion (Building 36) and three sheds (Buildings 40, 41 and 42) and the erection of a craft shop in the Working Studio Precinct at Fox Studios Australia, from BBC Consulting Planners.

2. That an indexed list of all documents tabled under this resolution be prepared showing the date of creation of the document, a description of the document and the author of the document.

3. That anything required to be laid before the House by this resolution may be lodged with the Clerk of the House if the House is not sitting, and unless privilege is claimed, is deemed for all purposes to have been presented to or laid before the House and published by authority of the House.

4. Where a document required to be tabled under this order is considered to be privileged and should not be made public or tabled:

(a) a return is to be prepared and tabled showing the date of creation of the document, a description of the document, the author of the document and reasons for the claim of privilege,

(b) the documents are to be delivered to the Clerk of the House by the date and time required in paragraph 1 and:

(i) made available only to members of the Legislative Council, (ii) not published or copied without an order of the House. 7658 LEGISLATIVE COUNCIL 4 December 2002

5. (a) Where any member of the House, by communication in writing to the Clerk, disputes the validity of a claim of privilege in relation to a particular document, the Clerk is authorised to release the disputed document to an independent legal arbiter, for evaluation and report within five days as to the validity of the claim.

(b) The independent legal arbiter is to be appointed by the President and must be a Queen's Counsel, a Senior Counsel or a retired Supreme Court Judge.

(c) A report from the independent legal arbiter is to be lodged with the Clerk of the House, and:

(i) made available only to members of the Legislative Council,

(ii) not published or copied without an order of the House.

BILLS UNPROCLAIMED

The Hon. Eddie Obeid tabled a list detailing all legislation unproclaimed 90 calendar days after assent as at 3 December.

STANDING COMMITTEE ON PARLIAMENTARY PRIVILEGE AND ETHICS

Report

The Hon. Helen Sham-Ho, as Chair, tabled report No. 21, entitled "Report on Inquiry into the Pecuniary Interests Register: Supplementary Returns", dated December 2002.

Ordered to be printed.

PETITIONS

Genetic Engineering Freeze

Petition calling for protection of the rights of farmers who wish to remain free from genetic engineering contamination, establishment of genetic-engineering-free zones, declaration of a freeze on the intentional release of new genetically engineered crops, and consultation with all farming groups, received from the Hon. Duncan Gay.

Freedom of Religion

Petition praying that the House reject legislative proposals that would detract from the exercise of freedom of religion, and retain the existing exemptions in the Anti-Discrimination Act applying to religious bodies, received from Reverend the Hon. Fred Nile.

Suncorp Metway Employees Working Conditions

Petition praying that the House request Suncorp Metway Ltd not to transfer employees of GIO Australia Ltd to non-union agreements, and to ensure that GIO conditions and the role of the Finance Sector Union of Australia are protected, received from the Hon. Ian West.

THE HONOURABLE MALCOLM JONES INDEPENDENT COMMISSION AGAINST CORRUPTION INVESTIGATION

Personal Explanation

The Hon. PETER BREEN by leave: Yesterday I was roundly condemned by a number of members for unleashing the dogs of the Independent Commission Against Corruption [ICAC], which earlier this week undertook a search and seizure operation at the Hon. Malcolm Jones' parliamentary office and home. The Hon. Malcolm Jones told me how he stood by helplessly while the ICAC investigators systematically rifled through his daughter's worldly possessions, including her personal clothing. When he attempted to locate audio equipment to record the operation, access was denied on the grounds that he might emerge with a shotgun and blow the investigators away. As it turned out, the only shooting that occurred was undertaken by the ICAC investigators, who filmed the entire operation. I understand that they did eventually allow the Hon. Malcolm Jones to use his recording equipment. 4 December 2002 LEGISLATIVE COUNCIL 7659

Some members have informed me that the Greiner Coalition Government made a grave error in giving such extensive powers to the ICAC. Those powers are now being used against members of Parliament. Somehow Ms Lee Rhiannon and I are held to be responsible for this perceived injustice. Apparently we conspired to bring down the Hon. Malcolm Jones. According to the allegations we have engaged in some kind of legal frolic for our own selfish political purposes. The truth is very different. Ms Rhiannon and I were approached, separately, by a former staffer of the Hon. Malcolm Jones and a former member of his party. Both people made serious allegations about a misuse of parliamentary resources and they requested a joint meeting with Ms Rhiannon and me. The whistleblowers requested that the meeting take place under a Morton Bay figtree in the Domain.

Ms Rhiannon and I approached the Clerk, John Evans, and outlined the claims being made by these two people about the Hon. Malcolm Jones. Mr Evans advised us to refer the matter to the ICAC. He canvassed the possibility of a referral to the Standing Committee on Parliamentary Privilege and Ethics, but alerted us to the fact that any evidence taken by the committee would become privileged and therefore be placed beyond the reach of the ICAC. I made a decision to pursue the ICAC path and I believe that it was the right decision. I ask honourable members who believe I made the wrong decision to consider what they would do if approached by whistleblowers who appear to have a legitimate complaint about the misuse of public resources. Personally, I am outraged about the way the ICAC has treated the Hon. Malcolm Jones and I regret that I was the source of the complaint. I had no idea that the ICAC took itself so seriously.

The Hon. Duncan Gay: What did you expect?

The Hon. PETER BREEN: The honourable member can have his say later. Given the importance of public confidence in the independence of members of Parliament, if the same circumstances were to arise again I would act no differently. In many ways members of Parliament are the last cards in the pack. Many think that I am the two of spades and that Ms Lee Rhiannon is the two of clubs. I would like to think that we have upheld the traditions of Parliament and that all members remain free to articulate concerns raised by whistleblowers on any issue.

MOTOR ACCIDENTS COMPENSATION FURTHER AMENDMENT (TERRORISM) BILL WORKERS COMPENSATION AMENDMENT (TERRORISM INSURANCE ARRANGEMENTS) BILL TERRORISM (COMMONWEALTH POWERS) BILL TERRORISM (POLICE POWERS) BILL

Second Reading

Debate resumed from 3 December.

The Hon. Michael Gallacher: Point of order: This is without doubt one of the most important packages of legislation this House will debate during this session and, indeed, this Parliament. Will the Parliamentary Secretary indicate why the Minister is not here to steer this legislation through the House?

The Hon. Ian Macdonald: The Minister requested a pair which the Hon. John Jobling granted.

The PRESIDENT: Order! There is no point of order.

The Hon. IAN COHEN [11.17 a.m.]: It is clear that the legislation is being handled by a more experienced member. This is extremely important legislation and I am sure it has not escaped the notice of a number of honourable members that certain accusations have been made about its carriage through the House. Perhaps I should ask for the Government's permission to keep speaking on this matter. This morning, media reports and a Government press releases stated that the Greens, crossbenchers and Opposition are inappropriately holding up the passage of this legislation and that we are breaking the Government's appropriate momentum by daring to foreshadow amendments to this draconian legislation. The Government's position, as stated in the media today, shows how easily it can twist the fragile democracy of this State and spread a series of lies in the media to twist around something that is clearly in the control of the Government of the day. 7660 LEGISLATIVE COUNCIL 4 December 2002

Last night, admittedly late, I was prepared to read out my speech and, along with every other member of this House, to debate this series of terrorism bills to the very end, including the moving of amendments in Committee. But for the Government to say that we were perverting Parliament and controlling the House is an outrageous lie. The Government should apologise. That statement shows how clearly the Government, through the media, can subvert the democratic process. That is why the Greens are taking this stand on this legislation; that is why we have serious concerns about the erosion of civil society; that is why we do not trust politicians with certain aspects of the legislation; that is why we would like to include the judiciary in the process; that is why we see merit in the Opposition's foreshadowed amendment—and I hope the Committee will not be forbidden from passing it; and that is why we have grave concerns about a society that leads the community through a tame media to make accusations that are not properly analysed, except by a few who bravely stand up—which leads to the erosion of civil society.

The Greens take this legislation very seriously. It is important that the Government is aware that very dangerous things could occur in the near future through this type of legislation. I ask all honourable members to think about what I have said, because these issues are of the utmost importance. We are different from many other nations and States in that we have a very robust democracy. I think it is very important that we keep it.

The Hon. John Della Bosca: We are keeping it.

The Hon. IAN COHEN: The Minister said, "We are keeping it." Today the Government claimed that the Opposition and the crossbenchers are holding up reasonable process, and implied that we are controlling the agenda of the House. Last night debate was stopped at a late hour by the Treasurer. He requested that I stop speaking and adjourn the House until today. It is quite clear that we all feel the weight of recent acts of terrorism that have caused loss of life, particularly when these acts were committed close to home. But the sense of injustice and concern within our community should not be exploited by governments in order to erode our fundamental democratic rights.

The Greens are strongly opposed to the Terrorism (Police Powers) Bill and related bills for a number of reasons, and later I will speak about the bill that I have carriage of. The Greens consider that there are a number of significant reasons for that opposition. The Terrorism (Police Powers) Bill defines a "terrorist act" in apparently identical terms to the final definition used in the Federal bill—now part 5.3, division 100 of the Criminal Code Act—earlier this year. This is a long, convoluted and broad definition that appears to exempt advocacy, protest, dissent or industrial action. It is important to note why the definition of a terrorist act must be broad and convoluted, and must threaten "advocacy, protest, dissent or industrial action". That is because every conceivable actual terrorist act—bombing, kidnapping, hijacking, murder, wide-scale destruction of property, et cetera—is already illegal, and has been so for many decades, if not centuries.

The special feature of this bill is that it gives senior commissioned police the power to authorise intrusions without warrant upon targets, including persons, vehicles or areas. These targets seem likely to include whole groups of people, and groups of premises. These intrusions—after an act of terrorism, for example, during an investigation, or before an anticipated act of terrorism—will in most cases require the concurrence of the Minister for Police. That I do not accept. This is an unusual extension of ministerial power into operational policing. These authorisations are exempt from challenge by the courts and involve special powers that remain in force over several days. The time will vary depending on the type of authorisation. The special powers are above ordinary police powers, and empower any police or law enforcement officer.

The special powers include the power to demand identification, to search persons, to search premises and vehicles, to seize things, and to use "such force as is reasonably necessary to exercise the power". There are various penalties for obstructing police from carrying out such operations, including two years imprisonment, and for failing to identify oneself, which includes the penalty of 12 months imprisonment. Police have a fairly broad indemnity from prosecution for any act carried out under such operations and they cannot be held liable due to some fault in the authorisation process. Several types of search are identified, including strip searches, which may be carried out on anyone over the age of 10. There are some guidelines for strip searches; for example, they cannot include touching, or a search of, body cavities. Children between 10 and 18 "must, unless it is not reasonably practicable" be strip searched in the presence of a parent or guardian.

Another problem with this bill relates to the test of reasonable grounds, which has been applied to determine when and where the Commissioner of Police or other senior police can call upon the new powers conferred upon them by this legislation. Basically the special powers can be invoked only if there is satisfaction on reasonable grounds for believing that there is an imminent threat of a terrorist act, or in situations 4 December 2002 LEGISLATIVE COUNCIL 7661 immediately after a terrorist act. To invoke the use of these powers there must be reasonable suspicion that a terrorist act is imminent. Given the wider concerns within the community regarding the threat of terrorism, the Greens are concerned that a reasonable use of these powers may prove impossible. We are concerned about the sole reliance upon the grounds of reasonable suspicion before additional police powers are invoked to search, detain and interrogate suspects.

The Greens do not believe this is an adequate test. More time is required to seek advice from the legal and civil rights experts to determine what effect these broader search powers could have. As with the Government's earlier introduction of arbitrary search powers, under the Crimes Legislation Amendment (Police and Public Safety) Act 1998, the extension of arbitrary power in this bill is cloaked in the language of "reasonable cause". The Police and Public Safety Act redefined "reasonable grounds" for searching for weapons to include a person's mere presence "in a location with a high incidence of violent crime". A subsequent Ombudsman's investigation confirmed that this power was being used arbitrarily, in certain areas and against young people.

The Terrorism (Police Powers) Bill allows the authorisation of targets if there are "reasonable grounds for believing there is an imminent threat of a terrorist act". The link between an imminent threat and the target need not be made out, as the authorising police officer need only be satisfied that the power will substantially assist. This legislation does not leave police conduct open to any kind of judicial review. Even the draconian Australian Security Intelligence Organisation legislation proposed by the Federal Government contains an avenue for review by the Federal Court. Under the proposed New South Wales legislation, police officers will effectively answer to no-one but the Commissioner of Police. Police officers who purport to act under the auspices of this legislation should be able to have their actions reviewed if they are found to be abusing their powers, given the extent of the powers that are being granted. It is insufficient to leave this review to the Police Integrity Commission; it should rest with the courts.

The Hon. Michael Gallacher: The Government is not interested in this. Not many of them are present. They are showing contempt for this legislation.

The Hon. IAN COHEN: I know that. In explanation of where the checks and balances should lie, I will quote from a letter sent to me by Tim Anderson. Tim was wrongly gaoled for a terrorist crime, the infamous Hilton bombings of 1978, but was later cleared. Tim has campaigned both from within gaol and outside gaol. He was able to maintain his balance and equanimity through that trying time, and his efforts were heroic. The man was locked up falsely. He now lectures in political economy at the University of Sydney. Tim Anderson said:

And then there is Australia. Allow someone who was wrongly jailed as a "terrorist" in this country, over 20 years ago, to sound a few notes of caution about the process of "terrorisation" …

This new war is on three fronts: actual defence force engagement, international diplomacy and domestic repression …

War breeds doublespeak,— we heard that this morning—

and the "war on terrorism" is no exception. Every tinpot dictator and political opportunist around the world has hitched his or her bandwagon to his new circus.

Criticism is suppressed because of the popular but mistaken belief that almost anything in the name of a "war on terrorism" may do something to stop mad bomb throwers, or ruthless people flying planes into tall buildings.

So Russian President Putin pursues his shocking slaughter against "terrorists" in Chechnya, Dr Mahathir in Malaysia jails his political opponents as "terrorists", Ariel Sharon terrorises the entire Palestinian population and President George W. Bush renews the US tradition of political assassinations.

Clearly, this is someone who has been deeply affected by an inappropriate attack under the guise of defensive terrorism in Australia more than 10 years ago. Arbitrary detentions and invasions of privacy are unlawful under the International Covenant on Civil and Political Rights [ICCPR], which Australia has signed and ratified. The Human Rights Commission has given a broad meaning to "arbitrary", saying it contained "elements of injustice, unpredictability, unreasonableness, capriciousness and unproportionality", as well as a lack of due process. All of this is to say that there must be some specific reason to detain someone or to invade his or her privacy. It is not enough to say there is some general "reasonable cause" that allows the targeting of groups or types of people. Nor does the mere passage of a domestic law make police action legal under international law.

Police use of a power that enables them to search a person simply because he or she belonged to a target group—without specific reason to suspect that person of specific wrongdoing—would most likely breach international law. Similarly, personal searches, particularly strip searches, carried out on a person, including 7662 LEGISLATIVE COUNCIL 4 December 2002 children between 10 and 18 years, with no specific cause—other than a general cause that led to the authorisation of action against targets—would most likely breach international law. Strip searching is widely recognised as a repugnant practice, akin to sexual assault, and likely to traumatise or retraumatise individuals, or, when used repeatedly, desensitise whole groups. Institutionalisation of strip searching should be shunned in any civilised community.

The relevant international law, which prohibits arbitrary searching, is the Australian commitment to the ICCPR article 9 (1); in the case of children, the Convention on the Rights of the Child article 37 (b), which prohibits arbitrary detention; the ICCPR article 17; and Convention on the Rights of the Child article 16, which prohibits arbitrary interference with privacy. The proposed legislation, however, provides for arbitrary detentions and arbitrary invasions of privacy. The extension of ministerial power into operational policing is further reason for concern, as this appears to breach the Westminster convention on the separation of powers. In human rights terms, this would add to the arbitrariness of the police interventions, in possible breach of article 9 of the ICCPR. The provision in the bill which denies even the possibility of legal challenge to the operation of these special powers is also in breach of article 3 of the ICCPR, which provides:

… any person whose rights or freedoms … are violated shall have an effective remedy … [including to] have his right determined by competent judicial, administrative or legislative authorities.

Individual victims of police actions under these new arbitrary powers are entitled, under the First Optional Protocol of the ICCPR, and after they have exhausted domestic remedies—even if these seem to be denied at the outset by clause 13 of the bill—to complain directly to the United Nation's Human Rights Committee. If the committee issues an opinion against Australia, it would be up to the Federal Government to have the New South Wales Government change its law and practice. Such a process took place after the Human Rights Committee's decision in Toonen v Australia in 1994, which led to the overturning of Tasmania's anti-gay laws.

The New South Wales Government has provided no real evidence that this kind of legislation is required. The Minister for Police has not presented to the Parliament any proof that the New South Wales Police are currently incapable of protecting the people of New South Wales from threats of terrorism. Until he does so, the Greens argue that this proposed legislation is unnecessary. The New South Wales Council for Civil Liberties has stated that the police already enjoy strong search powers, and believes that the Carr Government's proposed legislation sounds more like an exercise in being seen to respond to the threat of terrorism. Last week David Burnie from the New South Wales Council for Civil Liberties said:

Search warrant powers that already exist are quite wide and powerful for the NSW police in relation to any terrorism or serious offence. There is real doubt for the necessity for additional powers.

Unaccountable investigative or search powers can cause a great deal of damage within the community as police can be perceived as reacting with too much force and causing further fear and violation within the community. The Premier has claimed in the media that the legislation has been drafted with care to protect people’s civil rights. Of particular interest to the Greens, the Premier has guaranteed that the legislation will not apply to political and industrial protests. The Greens are concerned that this may not be the case. In practice, the subjects of the intrusions which will be conducted by police in the form of arrest, detention, search and forcible seizure may be those involved in "advocacy, protest, dissent or industrial action", which is supposedly excluded in the definition of a terrorist act.

Preventive national security measures in Malaysia—the SI, for example—have been used exclusively against dissidents, protesters and miscellaneous troublemakers. Such measures are almost never used against armed groups. The way in which the State will subvert the exclusion of "advocacy, protest, dissent or industrial action" in Federal and State law is quite simple. Under both the Federal and New South Wales definitions, the exclusion does not apply if the action may be seen as intended to cause serious harm or create a serious risk to the health and safety of the public. Once such an intention is suggested by police, the "advocacy, protest, dissent or industrial action" becomes terrorism.

Knowing, as we do, the New South Wales Police record of routinely lying about themselves as innocent victims, in a range of confrontations, including demonstrations, and that police Ministers and many media commentators routinely accuse disruptive protesters and dissidents of being violent, it is easy to see how terrorist threats will be constructed. Time and again I have seen the media beat up situations, at the same time being supported by the authorities, when people have not been violent or the violence has come from the authorities themselves.

Already Federal and New South Wales members of Parliament have openly branded pro-asylum seeker demonstrators and anti-World Trade Organisation demonstrators as potential terrorists. There is no need for guns or bombs; the labelling has been made. Specific comments from Minister Costa in the lead-up to the 4 December 2002 LEGISLATIVE COUNCIL 7663 introduction of this bill have been particularly concerning. Recently the Minister made the following comment in regard to protesters against the World Trade Organisation:

I am sure that all right-minded members will join me in thanking our hardworking police for their efforts last week. As we feared, some activists joined the two days of protest with an agenda of violent conflict, inflicting damage and inciting chaos.

I think we were all shocked to see the footage … of ratbags abusing and provoking police officers doing their duty. This included a hysterical mob who complained about police so-called snatch squads but who obstructed police as they moved in to arrest violent troublemakers. These ratbags posed for newspaper photographers wearing balaclavas and holding mock molotov cocktails. They screamed insults and abuse at police and assaulted officers.

Not only are the Greens concerned about the Minister's comments in relation to protesters, there are also legitimate fears about how police will unfairly target persons from a Middle Eastern background, as evidenced in comments Minister Costa made recently. In his commentary regarding the terrorism bill, the Minister has described how police will have powers in relation to a particular type of target person. In this context Minister Costa has also said:

We have made it very clear, for example, that the description of Middle Eastern appearance would not be sufficient, it would have to go further … it may well be a person with a beard and identification scarring …

In the media last week a lawyer who represented families raided by the Australian Security Intelligence Organisation after the Bali bombings said that the motivation behind this legislation is "getting very very close to racism or religious bigotry". He went on to say that ethnic groups within the community would now be more vulnerable to police activity. He also stated:

We know the police are targeting Islamic or people of Middle Eastern backgrounds.

If the Minister for Police cannot avoid rampant generalisations and comments with racist undertones in relation to this legislation, how can we ever hope that the police service in general will be able to manage these powers appropriately? Ultimately, the broader Police Force will have the responsibility for implementing this legislation, if and when it gets a call from above in regard to a particular piece of intelligence. The Greens are concerned about the effect that these powers could have on the community if they are implemented hastily and without appropriate consideration of their impact, as was demonstrated by the Minister for Police in the media this week.

That begs the question: does the Carr Government really have the interests of the people of New South Wales at heart in introducing this bill, or does it merely wish to be seen to be doing something about the terrorist threat? With the kinds of additional powers that the bill proposes, we hope that people around this State will not be terrorised and intimidated by gung-ho police officers authorised by the Government to conduct unwarranted and unnecessary searches of persons, homes and cars. Our protests against this legislation are limited. While Opposition members and many other honourable members support the direction of this legislation, people in the judiciary and in academia have expressed concern about it. On 27 November Aidan Ricketts, Associate Lecturer, School of Law and Justice, Southern Cross University, said:

There is no doubt that these powers provide the machinery for the institution at the whim of the executive government of a full police state. The exclusion of the judiciary serves no useful anti terrorist purpose, unless the parliament is suggesting that the supreme court would be sympathetic to terrorism, or unless the executive actually intend to use this power illegitimately.

On 1 December Margo Kingston, a journalist who analysed this legislation and who, unfortunately, was vilified by the Premier in a press conference, said:

Bob Carr solemnly asserts that he is deeply committed to our freedoms and liberties. If this is so I ask: Why do you exempt the police minister from any accountability whatsoever—by the courts or anyone else—for the exercise by your police minister of the new powers you want to give him. If you were committed to the protection of our civil liberties while ensuring our safety from terrorist attacks, wouldn't you want judicial oversight? Wouldn't you want a citizen who believed he was wronged the right to test the validity of Mr Costa's actions? Wouldn't you want to be sure that the new police powers you insist are now necessary are properly exercised, and not abused?

Remember, this bill gives any police minister, at any time in the future, these powers.

Whilst I am critical of the way in which the Minister for Police, a Minister of the Crown, performs in this House, I agree with the point made by Margo Kingston. Ministers must not abuse the powers that are given to them. Margo Kingston further said: 7664 LEGISLATIVE COUNCIL 4 December 2002

This is a fundamental structural change in the relationship between the citizen and the State. Neither Australia or New South Wales has a bill of rights. When rights and liberties are removed in NSW, there is no way back.

Mr Carr wants to give the police minister, for now the confrontational, controversial and openly divisive Michael Costa, the responsibility for authorising what are, in effect, serial states of emergency. Target areas, people and objects can be declared, allowing police untrammelled power to break into your home or vehicle and search it, and to frisk or strip search you. Giving any minister this power, let alone one with Michael Costa's record, is too awesome to also give him total immunity from scrutiny. It's called absolute power.

Those who have been subject to these types of unjustified raids and searches by police in the past would almost certainly be concerned about the introduction and passage of this proposed legislation. Margo Kingston also recently wrote:

Unaccountable power always produces abuse of power. Abuse of power means innocent people get hurt. It means people lose more trust in the integrity and trustworthiness of their government, and that they come to fear it instead. The deliberate or careless fostering of fear within a fearful community facing a terrible threat to its collective security is the antithesis of leadership, and a recipe for the disintegration of our democracy.

We live in a time of national crisis, when our safety is threatened by terrorist attacks without warning. Often the first instinct of government in such circumstances is to grant itself more power and control over us and to sweep away the checks and balances which keep government honest.

The Greens are mindful of the circumstances in which this bill is being introduced. The current political climate is one of growing intolerance, disquiet and fear, as many Australians grapple with rapid technological and social change, as well as an increasing atmosphere of economic, and now physical, insecurity. The response by governments around the world has been to clamp down on protest and dissent, to increase incarceration rates and to erode the civil rights of people around the globe. In that way, governments can be seen to be doing something about the terrorist threat.

Recently the Government released information about security people wearing fluorescent uniforms and patrolling Sydney Harbour Bridge. What trite window-dressing that was! What security measures are in place for the nuclear reactor at Lucas Heights? Thousands of people who live in areas surrounding that reactor are under potential threat, even though authorities at that site have said that there is no potential threat of radiation. The Government has no plan in place to distribute stabilised iodine tablets in the event of any terrorist attack. It has no plans in place for sites that are vulnerable to attack. It is not beefing up security at that site. Why is the Government proposing to build another reactor at that site in such close proximity to residential areas? I was shocked to see that people in Bankstown and Cronulla—heavily populated areas—will also be affected. The Government has no constructive measures in place. If the reactor at Lucas Heights is required it should be moved. However, the Greens believe that it is no longer required.

The Hon. Amanda Fazio: Is this an election speech?

The Hon. IAN COHEN: How typical of the Hon. Amanda Fazio to interject when I am referring to sensitive issues such as the nuclear reactor at Lucas Heights. Government members do not acknowledge, as do the Greens, the potential danger that exists for the citizens of Sydney. This Government, with its window- dressing law, wants to erode the rights of people in the community. Why is the New South Wales Government not standing up to the Federal Government and saying, "We do not want a nuclear reactor in this State"?

As history has demonstrated, fear breeds intolerance. It is vital at this time that our governments show leadership on social and cultural issues to ensure that the gains we have made socially and culturally over the past 20 years are not eroded by governments using divisive language and refusing to stand up to racism and intolerance when it emerges. The Terrorism (Police Powers) Bill is of concern to the Greens principally for that reason. The Government is walking on very thin ice. This bill, which has been drafted hurriedly, is riddled with problems and is open to abuse.

The Greens strongly oppose the Terrorism (Police Powers) Bill. However, if it is introduced we fervently hope that these new police powers will not be used except in the most exceptional circumstances. We fervently hope that these powers will not be abused. However, unfortunately there are good grounds to suspect that they will be. Powers such as these have been abused in the past. An extremely inexperienced Minister for Police is about to be given additional responsibilities and power. I hope that the Government seriously considers the proposed amendments of the Greens, the Opposition and the crossbenchers to this legislation, even though it has stated publicly that it will not agree to those amendments.

The Government complains about delaying the parliamentary process. I have never heard anything so ridiculous as the assertion that members of Parliament should not speak in this House because it is somehow 4 December 2002 LEGISLATIVE COUNCIL 7665 against the interests of the State. One wonders why we are here. Nevertheless, honourable members have a role in this place and the Greens will continue to play it. I commend my colleague Ms Lee Rhiannon for the material that she placed before the House in her speech during the second reading debate. This bill is ill-timed and ill conceived. I believe existing police powers are adequate without resorting to this legislation.

We are also debating the Motor Accidents Compensation Further Amendment (Terrorism) Bill. Earlier this year the Government passed legislation that temporarily excluded from the Compulsory Third Party Motor Accident Insurance Scheme liability arising from a terrorist act involving a motor vehicle. At the time the Greens expressed concern about the impact of leaving innocent victims caught up in a terrorist attack completely uninsured if they were injured while in their car or injured by a car. The Greens believe the State Government or the Federal Government should step in and provide insurance in these types of situations when the insurance industry refuses to insure individuals. The insurance industry has once again pulled out of a risky area while continuing to make massive profits and refusing to take seriously its responsibility to the public. The Greens strongly oppose that approach.

I hope that Parliament will listen patiently to the concerns raised both by the Greens and by other honourable members. We have received a great deal of support from the legal profession and I know that members of the public have not been fully apprised of the nature of these bills. The Greens support taking appropriate action and we do not resile from acknowledging the reality of the terrorist threat at this time. However, it is extremely important that civil society in this State and in this nation—which has been nurtured over generations and which we should all hold dear—is not eroded for the sake of scoring some cheap political points. In the headlong rush towards an election the Government is setting in train legislation that could have a disastrous impact on the social fabric of our nation. We are different in Australia: we have a fantastic, robust democracy. The Greens seek purely to protect that democracy while ensuring the security of the population of New South Wales.

The Hon. PETER BREEN [11.52 a.m.]: I will speak briefly about the Terrorism (Police Powers) Bill. This legislation is unique in New South Wales in that it gives the police—and particularly the Commissioner of Police and the Minister for Police—unrestricted power during times of crisis when threats of terrorism are perceived. This raises serious concerns for me about police investigation powers. When thinking about this issue last night I turned to a book entitled "Police Reform: Building Integrity" published by Hawkins Press. I was reminded that the first terrorism experience of the New South Wales police service was the Hilton Hotel bombing and that on that occasion police managed to arrest the wrong people. It seems to me that the police should be honing their investigative skills and relying on their existing powers rather than seeking to expand them when there is no real threat to security. The Australian Federal Police and ASIO have confirmed that there is no specific threat to be addressed through these powers, which represent a general increase in police powers. The bill gives police officers the power to deal with what they consider to be a perceived threat but I believe it is completely out of proportion certainly to any existing threat.

Giving a police Minister these kinds of powers—particularly the present Minister for Police who is so difficult and who for some reason deals with matters so angrily and aggressively—is also of great concern. I have dealt with many people over a number of years—including some very difficult lawyers—regarding various issues, but the police Minister is a most difficult person to deal with. He builds up no store of goodwill towards anyone and negotiating with him is very difficult. Since his appointment I have requested information from him from time to time. For example, I asked him to produce a guidebook about sniffer dogs that he had waved around in Parliament but he took months and months to do so—and then he produced it only because I threatened to make an order for papers under Standing Order 18.

I also asked the Minister for Police in June simply for a copy of a police report in order to provide some information to a constituent. I wrote to the Minister in June and received a reply acknowledging my correspondence. I subsequently wrote again on several occasions and finally on 15 November the Minister replied saying, "Thank you for your letter seeking details about the New South Wales police investigation of a criminal matter". He enclosed with his letter a freedom of information application and said that if I wanted information I could go to police headquarters and pay $30 for it. That raises several issues. I was under the impression that a member of Parliament is entitled to receive from a Minister documents that members of the public might have to obtain under freedom of information provisions. It seems to me that the Minister is failing to meet his obligations to other members of Parliament—he certainly did so in this case. The Minister sent me the application on 15 November after I had requested the information in June. On 20 November I received another letter with the same reference—RML177120—from the Minister's office, which stated:

The Minister has asked me to acknowledge your further letter concerning a request for information. The matters raised are currently being examined and a reply will be forwarded in due course. 7666 LEGISLATIVE COUNCIL 4 December 2002

The Minister sent me two different letters within five days that took completely different approaches to the same issue. I suggest simply that the Minister is running his office in such a way as to make it very difficult for people to deal with him. Conferring upon him the kinds of powers set out in this legislation seems to me to be exceeding what is reasonable as experienced by me during my many years as a legal practitioner. I have received a number of letters about the bill, the latest of which arrived in the mail just this morning. Dr Matthew Ford of Terrigal wrote:

This is not a law and order bill. This bill allows the Minister or any police officer at or above the rank of superintendent to turn New South Wales into a police state.

The issues raised by Mr Ford have been canvassed extensively by the Law Society and the Bar Association. The Bar Association wrote to the Attorney General just a few days ago to highlight particular issues about clause 13 of the bill, which gives unrestricted powers to the police Minister. Clause 13, which is headed "Authorisation not open to challenge", states:

An authorisation (and any decision of the Police Minister under this Part with respect to the authorisation) may not be challenged, reviewed, quashed or called into question on any grounds whatsoever before any court, tribunal, body or person in any legal proceedings…

Pursuant to sessional orders business interrupted.

QUESTIONS WITHOUT NOTICE

______

POLICE INVESTIGATION INTO Mr SCOTT WYATT ASSAULT

The Hon. MICHAEL GALLACHER: My question is directed to the Minister for Police. What is the current status of a police investigation into the bashing of Scott Wyatt at Newcastle on 30 May 2001? Is the Minister aware that the prime suspect has been interviewed by a Sydney journalist in the presence of the secretary of the Newcastle branch of the Australian Workers Union, at which time a number of admissions were made? Will the Minister tell the House why on 1 November 2002 Mr Wyatt was advised by a solicitor from the office of the Director of Public Prosecutions that the matter would not proceed when the journalist, who is therefore a witness, is only now in the process of being interviewed?

The Hon. MICHAEL COSTA: The Opposition is really scratching again. Yesterday I answered a question relating to the same matter. This is an operational policing matter—

The Hon. Michael Gallacher: Point of order: The Minister is getting confused. Yesterday's question related to a fraud investigation involving the New South Wales secretary of the Australian Workers Union [AWU]. This question refers to the bashing of a Newcastle AWU official. I would be interested if the Minister knows that the same person is involved.

The PRESIDENT: Order! There is no point of order.

The Hon. MICHAEL COSTA: The Leader of the Opposition obviously does not understand what I have said. The matters asked about both yesterday and today concern operational police and the same answer as yesterday applies today. If the honourable member wants details, I will obtain them from operational police, if appropriate, and come back to the House.

The Hon. MICHAEL GALLACHER: I ask a supplementary question. Why does the Minister for Police continue to deflect any questions that relate to his responsibility to the public and which involve his mate, the New South Wales secretary of the AWU?

The Hon. MICHAEL COSTA: The Opposition is really struggling. As the Leader of the Opposition is a former police officer he should know that the police Minister is responsible for some matters and police are responsible for other matters because of their ability and requirement to operate within the office of the constable. The Leader of the Opposition is again mistaken. This is an operational matter. I will continue to take operational advice on all operational matters.

CUMNOCK No. 1 COLLIERY

The Hon. TONY KELLY: My question is directed to the Minister for Mineral Resources. What is being done to help Cumnock No. 1 Colliery to extract resources for the benefit of the community in the Hunter region? 4 December 2002 LEGISLATIVE COUNCIL 7667

The Hon. EDDIE OBEID: I commend my colleague the Hon. Tony Kelly convener of Country Labor, for his continued interest in the coal industry in the Hunter region. The Carr Government continues to support our coal industry. I am pleased to advise the House that the Government has approved an extension to another Hunter mine—the Cumnock No. 1 Colliery. The lease, which covers 165 hectares, means the company can proceed with an extension to its current operations. The lease means the company can maximise extraction of coal with both open cut and underground operations. I am advised that due to the lease, the mine will continue to inject up to $10 million a year into the local economy. That is good news for communities in Singleton and the Upper Hunter.

The lease means the company can maintain current levels of production of between 2 and 2.5 million tonnes of coal a year. It is expected that the company will spend $2.5 million in developing the new mine. When fully operational, I am advised that 42 people will be employed at the open cut site. Twenty of those workers would formerly have worked in the underground operations. Cumnock No. 1 Colliery first began operating more than a decade ago, close to the old Liddell State Coal mine, which dates back half a century. The new lease means operations can continue on this site for at least another five years. That is good news for the security of families in the Hunter region.

TRANSGRID STAFF OVERSEAS TRAVEL EXPENSES

The Hon. DUNCAN GAY: My question is directed to the Treasurer. What is the total cost to New South Wales taxpayers of the travel spree of TransGrid staff which in the past financial year included more than 30 overseas trips fully funded by the company, and 20 partly funded by the company to destinations including France, Belgium, Austria, Germany and Iceland? Why is the full cost of airfares and accommodation associated with this extensive overseas travel program not disclosed in the annual report of TransGrid? Why is the international travel schedule of TransGrid far in excess of any other State-owned corporation?

The Hon. MICHAEL EGAN: I am not aware of the details to which the Deputy Leader of the Opposition refers. I will take his question on notice and obtain a detailed response.

The Hon. DUNCAN GAY: I ask a supplementary question. If the Treasurer is unaware of the details in the annual report of TransGrid, why is his photograph and the photograph of the Assistant Treasurer incorporated in the front of that report?

The Hon. MICHAEL EGAN: Probably because we both take a very nice photo.

WOLLEMI NATIONAL PARK RESCUE WORKERS ACCESS

The Hon. MALCOLM JONES: I address my question to the Minister for Community Services, representing the Minister for Emergency Services. On the weekend of 23-24 November three canyoners required assistance in the Wollemi National Park in the Newnes area, which sadly resulted in a fatality. In 42- degree temperatures, with bushfires burning in the area, rescue workers were prevented from accessing a five- kilometre stretch of road which had a permanent barrier constructed across it. In light of this tragedy, will the Minister urgently review permanent barriers, especially for rescue workers?

The Hon. CARMEL TEBBUTT: I will refer the honourable member's question to the Minister for Emergency Services and undertake to get a response as soon as possible.

KIDS IN CARS CAMPAIGN

The Hon. IAN MACDONALD: My question is directed to the Minister for Community Services. What action is the Department of Community Services taking to advise the community about the dangers of leaving children in cars this summer?

The Hon. CARMEL TEBBUTT: The question asked by the Hon. Ian Macdonald is particularly pertinent today, as it is very hot outside. We are now in the official summer season and the Bureau of Meteorology predicts continued hot days, so the message behind the Kids in Cars campaign of the Department of Community Services [DOCS] is important for the community. Each summer, DOCS issues warnings to parents and carers about the dangers of leaving children in parked cars. On a typical summer's day like today, the temperature inside a car could be as much as 30-40 degrees hotter than the outside temperature, which means the temperature inside a car could be as high as 75 degrees. Despite the department running this 7668 LEGISLATIVE COUNCIL 4 December 2002 campaign every summer, some parents and carers are still not getting the message. There is a lack of awareness about how quickly the temperature can rise inside a locked car.

Last year alone, DOCS received 166 reports of children being left unattended in cars. The key message for parents is that when they park their car, they should take their kids with them, even if they think they will only be away for a few minutes. Some parents who think they will be very quick in returning to the car take the risk, but one never knows how long one will be. No errand, meeting or task is so important that a child should be left unattended in a car and placed at serious risk of harm. Seventy-five per cent of the temperature rise occurs within the first five minutes of closing the car door. In other words, on a 36-degree day, the car will have reached 55 degrees within five minutes. It does not take long for a child to suffer from dehydration and heat exhaustion. That can lead to organ failure and, in the worst case scenario, death, so it is extremely serious.

People who leave children in a car risk not only the health and wellbeing of the child, but also risk incurring a hefty fine. Under the Children and Young Persons (Care and Protection) Act 1998 it is an offence to leave a child unattended in a car, and the maximum fine is $22,000. DOCS and the police are serious about pursuing parents who leave their children in cars. Last year, DOCS successfully prosecuted two people. The aim of the campaign is to educate parents and carers to stop and think before a tragedy occurs. Of course, looking after our children is a community responsibility. Another important part of the campaign is to educate everyone on what to do if they see a child left alone in a parked car. The message is simple and clear: parked cars can kill children.

DOCS will keep reinforcing the message through posters, bumper stickers, and radio advertisements during the summer months. They will also send out periodical alerts to the media on really hot days to remind people not to leave their kids in parked cars. I also acknowledge NSW Police, Convenience Advertising, the NRMA and Kidsafe for their support in this important community education campaign. Now it is more important than ever, as the summer months come upon us, to educate everyone on the dangers of leaving kids in cars and to urge them to be vigilant in helping to care and protect the children of New South Wales.

INTENSIVE CARE UNITS INFECTIOUS DISEASE OUTBREAKS

The Hon. RICHARD JONES: I ask the Treasurer, representing the Minister for Health, is there a major crisis in intensive care units in New South Wales hospitals as a result of an epidemic of multiresistant staphylococcus aureus, or golden staph? Do up to 40 per cent of patients get infected and how many die each month? Are vancomycin resistant enterococci and multiresistant streptococcus pneumoniae also causing serious and increasing problems? What is the Department of Health doing about this crisis, if anything, or is it too preoccupied in trying to destroy the complementary health industry?

The Hon. MICHAEL EGAN: It shall hardly come as a surprise to members of the House that I am not an expert in iatrogenic illnesses. I will refer the question to the Minister for Health and obtain a response.

SHOALHAVEN POLICE NUMBERS

The Hon. DON HARWIN: My question is directed to the Minister for Police. Will the Minister inform the House of the status of the commitment made by Commissioner Moroney in July that 11 officers would be assigned to the Shoalhaven local area command from the December graduating class at the Goulburn police academy? The Premier confirmed that promise during his visit to Nowra on 8 October. Will the Minister give the people of the Shoalhaven an assurance that the Premier's promise will be delivered in full and that 11 officers will come to the Shoalhaven local area command from the December graduating class?

The Hon. MICHAEL COSTA: Obviously it riles the Opposition that it is going into an election period and on 20 December this Government will have another large class of attesting police officers. We have more police than we have ever had, and we will have more.

The Hon. Don Harwin: Are we getting the 11 officers in Shoalhaven?

The PRESIDENT: Order! The Minister has the call.

The Hon. MICHAEL COSTA: As I was saying, I thank the Treasurer for the record funding that has made this all possible. It is pleasing that after 12 months as police Minister I can say that we have record numbers of police—and more to come. In answering questions from Opposition members, I have made it a policy never to take their questions at face value. I will not take this question at face value; I will certainly seek advice. 4 December 2002 LEGISLATIVE COUNCIL 7669

The Hon. DON HARWIN: I ask a supplementary question. Is the Minister reneging on his Government's policy and will only five officers from the December graduating class join the Shoalhaven local area command?

The Hon. MICHAEL COSTA: Obviously the honourable member cannot comprehend the English language. I just made the point that I do not take any questions put to me by the Opposition at face value, because they have an appalling record of distorting the facts. So I will do precisely what I said in the previous answer.

DEPARTMENT OF INDUSTRIAL RELATIONS ABORIGINAL AND TORRES STRAIT ISLANDER UNIT

The Hon. AMANDA FAZIO: My question without notice is directed to the Minister for Industrial Relations. Will the Minister inform the House of the progress made by the Aboriginal and Torres Strait Islander unit of the Department of Industrial Relations in assisting indigenous people and business?

The Hon. JOHN DELLA BOSCA: Earlier this year I informed the House of the achievements of the Aboriginal and Torres Strait Islander unit of the Department of Industrial Relations in helping indigenous Australians understand their rights and responsibilities in the workplace. As honourable members are aware, the unit provides information and advisory and referral services to the indigenous community in New South Wales. Since it was established three years ago, the unit has served as an effective link between the indigenous community and the services offered by a variety of government agencies. Just last week the unit played a key role in organising a two-day information forum with WorkCover, the Department of Fair Trading, the Anti- Discrimination Board and the Working Women's Centre for the Aboriginal community in Dubbo and the central west.

The forums, entitled "Murrambul mali"—in the language of the Wiradjuri community—or "Do it right", brought together Aboriginal advisers from four government agencies. The advisers from the government agencies provided information and advice on issues relating to employment, discrimination, workplace safety and workers compensation, and consumer rights. The forum was well attended, with some people travelling from as far away as Coonamble to find out about their rights and obligations. Already people who were able to attend are requesting that the forum be repeated as soon as possible. Participants have also followed up to ask for more detailed advice.

Over the past year the unit has doubled its visits to workplaces to provide information and conduct education seminars. Regional visits have included Kempsey, Coffs Harbour, Nowra, Nambucca Heads, Moree, Dubbo and Armidale. On top of all this activity, the unit also produces a range of resources, maintains a prominent Internet presence, produces a quarterly newsletter and actively participates in networks within the indigenous community. The core service of the unit is a statewide telephone inquiry service. Indigenous staff provide advice to employees and employers on issues such as pay rates, employment conditions, workplace practices and procedures. In the past year telephone and email inquiries to the service have increased by 77 per cent, compared to the same period of the previous year.

The unit's close links with other agencies ensure that clients have good access to specialist advice offered by various government agencies in the business and employment area. A good indication of the increasing profile of the unit is that readership of the Two Rivers quarterly newsletter has increased substantially from 140 for the first issue to well over 1,000 for the fifth issue. Feedback from clients has been overwhelmingly positive. The success of this unit demonstrates the value of specialist access for indigenous communities to government services. I take this opportunity to thank officers from the Aboriginal and Torres Strait Islanders unit. Ms Chris Capper, Ms Rae Hamilton and Ms Yim Chan are here today in the public gallery. I thank them for the wide success of the Dubbo forum and for their hard work at the Aboriginal and Torres Strait Islander unit.

SMOKING IN MOTOR VEHICLES

Reverend the Hon. FRED NILE: I ask the Minister for Community Services, representing the Minister for Emergency Services, a question without notice. Have a large number of recent bushfires been caused by burning cigarette butts being carelessly thrown from cars? Will the Government consider a prohibition on persons smoking in cars, especially during the bushfire season, similar to the prohibition on smoking in public places, which would have the double value of preventing bushfires and reducing road accidents, and reducing the health dangers of passive smoke on passengers, especially children. 7670 LEGISLATIVE COUNCIL 4 December 2002

The Hon. CARMEL TEBBUTT: It defies belief that in the current climate people would smoke and throw a burning butt out of the window. It seems extraordinary. The issue relating to a prohibition on smoking in cars has arisen before in this House with debates about different issues but arriving at the same point. There would be some real difficulties with policing such a prohibition, let alone implementing it. Nonetheless I will refer the honourable member's important question to the Minister for Emergency Services and undertake to get a response?

COOTAMUNDRA HOSPITAL

The Hon. JENNIFER GARDINER: My question is addressed to the Minister for Police. Did the Minister's recent community newsletter distributed to the Burrinjuck electorate include references to a supposed increased access to Cootamundra Hospital? Is the Minister aware that Cootamundra is not in the Burrinjuck electorate and has not been for ages? Why has he put his name to this misleading information? Will he now distribute another newsletter to correct this glaring example of the Carr Government's lack of knowledge about the location of the hospitals that it is supposed to be running?

The Hon. Michael Gallacher: Here he comes—the new frontman for Midnight Oil.

The Hon. JENNIFER GARDINER: That would not be a bad job. At least the audience would be better than this one. Let me answer the question by dealing with the most serious part of it. I know where Cootamundra is located. When I was a railway official I visited Cootamundra on many occasions. In fact, we used to have a branch at Cootamundra. The honourable member opposite is laughing about that. The Greiner Government closed down the railways that used to operate in Cootamundra, so I would not laugh. I would have thought that members of the National Party would consider the terrible impact of the railway closures on Cootamundra. The answer is that I have been to Cootamundra recently.

The Hon. JENNIFER GARDINER: I ask a supplementary question. Is the Minister aware that on the New South Wales web site listing the addresses of New South Wales hospitals some country addresses of hospitals are listed as "address unknown" or "not available"? Perhaps the Minister could send out a posse to track down the hospitals that seem to be missing from the New South Wales list of hospitals.

The Hon. MICHAEL COSTA: Silly question—very unbecoming.

MOTOR ACCIDENTS AUTHORITY NORTHCOTT SOCIETY GRANT

The Hon. RON DYER: My question without notice is addressed to the Special Minister of State. Will the Minister inform the House how the Motor Accidents Authority is helping the Northcott Society?

The Hon. JOHN DELLA BOSCA: Honourable members may recall that yesterday was the International Day of People with a Disability. A number of honourable members, including the Hon. Patricia Forsythe, the President and the Minister for Community Services, marked the day with an orange ribbon on their lapels.

The Hon. Dr Brian Pezzutti: I wore mine, too.

The Hon. JOHN DELLA BOSCA: So did the Hon. Dr Brian Pezzutti. I apologise for overlooking that.

The Hon. Dr Brian Pezzutti: So did the Hon. Ron Dyer.

The Hon. JOHN DELLA BOSCA: I did not notice, but I will take it as read that the Hon. Ron Dyer did also. The worldwide celebration occurs on 3 December each year. The Minister for Community Services outlined to the House how thousands of individuals and organisations throughout New South Wales and across the country took part in a variety of celebrations. One organisation that no doubt was involved in yesterday's festivities is the Northcott Society. Established in 1929 as the New South Wales Society for Crippled Children, the Northcott Society provides support and services to over 3,500 individuals and families across New South Wales.

I am pleased to inform honourable members that last week I attended the setting of the foundation stone for the new Northcott building at Parramatta. The New South Wales Motor Accidents Authority provided 4 December 2002 LEGISLATIVE COUNCIL 7671

$2 million towards the construction of a new multipurpose facility for the Northcott Society. The $2 million grant from the Motor Accidents Authority will allow for the construction of a purpose-built facility to provide services and support for people with disabilities, including those injured in motor vehicle accidents. It is anticipated that the new facility will be completed in July 2003 and will be a centre of excellence for people with disabilities and people seeking advice on disability issues.

The new facility will include seminar and conference rooms that can accommodate up to 300 people. It will include a library and resource centre that is available to all medical and health care professionals, carers, clients and students and a playground area for children aged under six to support their integration into mainstream schools and help with their introduction to appropriate specialist equipment. The Northcott Society's new facilities will provide a centre of excellence—a one-stop shop—for a range of services for people, especially young people and children, with disabilities. Most importantly, it will provide the most comprehensive range of equipment and specialist services ever offered from a single location to people with disabilities in Australia. The State Government is delighted to be able to support the construction of the facility, in recognition of the Northcott Society's services to people with disabilities for more than 70 years.

PEDESTRIAN FATALITIES

Reverend the Hon. Dr GORDON MOYES: I ask the Minister for Police a question without notice. Is the Minister aware that, according to NRMA research, one in three pedestrians killed on New South Wales roads was drunk? Nearly 75 per cent had blood alcohol levels above 0.15, three times the legal driving limit of 0.05, and nearly 90 per cent of alcohol-affected pedestrian fatalities occurred at night. In more than half of these fatalities the victim had a reading of over 0.05. Can the Minister provide the annual numbers of drunken pedestrians taken to proclaimed places, and how many proclaimed places in Sydney are able to take drunken pedestrians over the Christmas period?

The Hon. MICHAEL COSTA: That is a detailed question. I will get advice and come back to the House.

DEPARTMENT OF HEALTH FORWARD BUDGETS

The Hon. Dr BRIAN PEZZUTTI: My question is directed to the Treasurer, representing the Minister for Health. Will the Minister tell the House why he has reneged on his Government's promise to provide three- year forward budgets for the health portfolio, particularly given that the three-year forward budgets estimates did not appear in the budget papers this year as they have done previously? When will he provide the estimated health budgets for the next three years?

The Hon. MICHAEL EGAN: The Hon. Dr Brian Pezzutti referred to me as the Treasurer for a short time.

The Hon. Michael Costa: I think he said a short Treasurer.

The Hon. MICHAEL EGAN: If he said that, it would be true. I am not much shorter than the Hon. Dr Brian Pezzutti.

The Hon. Dr Brian Pezzutti: Point of order: I did not, and I never, reflect on the honourable member's stature. I am not a sizist.

The PRESIDENT: Order! There is no point of order. I advise the Treasurer not to be diverted by interjections.

The Hon. MICHAEL EGAN: I agree that the Hon. Dr Brian Pezzutti is generally not a sizist. I have been the Treasurer for 7¾ years, which means that I am the second-longest serving Treasurer since responsible government was introduced in New South Wales. The sesquicentenary of responsible government will be upon us in a few years. By that time, I will have exceeded the period in the office of Treasurer that was established by Sir Robert Askin. He is the longest-serving Treasurer and I am the second. After the next election, provided the Labor Party gets 4.54 per cent of the vote in New South Wales, which I think it will and which will see my re- election, I will be the member of Parliament with the longest term of any sitting member in either House.

The Hon. Duncan Gay: No, you won't. 7672 LEGISLATIVE COUNCIL 4 December 2002

The Hon. MICHAEL EGAN: I was elected in 1978, and if you take the time I was out of Parliament, my period of service will be—

The Hon. Duncan Gay: This is Eganomics!

The Hon. MICHAEL EGAN: It is basic calculation. I have a couple of months on Reverend the Hon. Fred Nile.

The Hon. Dr Brian Pezzutti: Point of order: I ask the Treasurer to address the question I asked. I ask him to be relevant.

The PRESIDENT: Order! I remind the Leader of the House that sessional orders require an answer to be relevant to the question asked.

The Hon. John Ryan: To the point of order: Not only do I take the point on relevance, but for anybody to suggest that any time spent in the other place is anything like equivalent to time spent in this Chamber is ridiculous.

The PRESIDENT: Order! There is no point of order.

The Hon. MICHAEL EGAN: The Department of Health is given a three-year rolling budget. That enables the department to plan for growth in the system. I will take the indexation factor on notice, but a growth factor is factored into the Department of Health's budget year by year and that growth factor is over and above any indexation for inflation.

GOVERNMENT ACCOMMODATION COSTS

The Hon. IAN WEST: My question without notice is addressed to the Treasurer, and Minister for State Development. Will the Treasurer update the House regarding the latest savings to government from improved departmental office arrangements?

The Hon. MICHAEL EGAN: I am pleased to report that the Government's accommodation costs are now $87 million less each year as a result of implementing the Office Accommodation Reform program. Due to a recent decision the Government will save a further $1.3 million in rent over the next 10 years following the relocation of a number of government agencies to Sydney's southern business district. The Department of Public Works and Services has secured approximately 8,000 square metres of office space after calling for expressions of interest from the property market earlier this year. A further 8,000 square metres is under negotiation.

The Hon. John Ryan: Longest serving MP?

The Hon. MICHAEL EGAN: It is a very important consideration, I might say. It will be quite a distinction to be the longest serving member in the Parliament. I was only a boy when I was first elected in 1978—and I am still only a boy! I will be the longest serving MP in the New South Wales Parliament.

The Hon. Rick Colless: Who cares?

The Hon. MICHAEL EGAN: The Hon. John Ryan cares, because he is disputing the point I was making, as was the Deputy Leader of the Opposition. Government agencies will begin relocating from their current premises to new accommodation in the southern Sydney central business district early next year. The Department of Juvenile Justice will be moving to Sydney Central at 477 Pitt Street, and the Department of Aboriginal Affairs will be relocating to 280 Elizabeth Street. Those buildings are both located near Central railway station. Buildings offered to the Government were rated on a range of criteria, including energy efficiency, disabled access and facilities, good security and close proximity to public transport.

The Health Care Complaints Commission has secured 1,650 square metres of office accommodation at 323 Castlereagh Street. The commission will be co-located with other government agencies, including the Legal Aid Commission and the Department of Gaming and Racing. The Casino Control Authority also reduced its office space in its current accommodation in Kent Street by around 100 square metres, achieving savings of approximately $40,000 per year in rental costs. The very significant $87 million to which I referred is an annual saving resulting from the Government's Office Accommodation Reform Program. I intend to obtain some 4 December 2002 LEGISLATIVE COUNCIL 7673 further details on that for the House because that shows how a Labor Government has been able to reduce the enormous waste under the Fahey and Greiner governments.

These Government cuts mean more dollars for important public services and tax decreases through cuts in tax rates. Indeed, during the previous Government's term of office it increased tax rates cumulatively by about a billion dollars in a full year. We have managed to reduce that by a billion dollars in a full year, as well as providing more finance and more funds for health, education, public transport and roads, and community services. We have done that because we have cut waste, but not only in government accommodation. The biggest item of waste that we have cut is in the huge bill we were paying on the Greiner and Fahey debt. When I was preparing my first budget it was a matter of some concern to me that almost $1 in every $10 received from the taxpayers was going to pay the interest bill of the Fahey and Greiner governments. [Time expired.]

RURAL LIQUEFIED PETROLEUM GAS PRICES

Ms LEE RHIANNON: I direct my question to the Treasurer. Is the Treasurer aware that liquefied petroleum gas in country New South Wales is usually 15¢ to 20¢ dearer than it is in Sydney? Can he explain why there is such a big price difference? Does the New South Wales Government support the use of liquefied petroleum gas as a way to reduce air pollution? What is the Government doing to reduce the cost of liquefied petroleum gas for rural drivers?

The Hon. MICHAEL EGAN: I will take the question on notice. I am not sure that it is appropriately directed to me as Treasurer. It is probably more a question for the Minister for Energy. But I will obtain a response from the appropriate source and provide it to the House when I am able to do so.

AUSTRALIAN NAVY CADET UNIT TRAINING SHIP SIRIUS

The Hon. JOHN JOBLING: My question without notice is to the Treasurer, and Minister for State Development. Is it a fact that the building used by the Australian Naval Cadet unit TS Sirius at Cahill Park, Arncliffe, was condemned in May 2001? Is it further a fact that Rockdale City Council may reject a proposal to rebuild by converting the land to open space? Will the Treasurer give a commitment to, and support, the rebuilding of TS Sirius at Cahill Park, Arncliffe?

The Hon. MICHAEL EGAN: Again, I am not quite sure why the question was directed to me. I am not the Minister for Rockdale council. Even the Minister for Local Government does not control the activities of local government bodies in the way that the question suggests. I am not familiar with the issue at all, although during last night's adjournment debate one of our colleagues spoke on it. I just forget who it was.

The Hon. Duncan Gay: The Hon. Dr Arthur Chesterfield-Evans.

The Hon. MICHAEL EGAN: Who is not here for question time. He should be here.

Reverend the Hon. Fred Nile: He was here. He has only just left the Chamber.

The Hon. MICHAEL EGAN: I am informed he has just left the Chamber for a moment, and I accept that. I think I know Cahill Park. I spent many, many years of my life going past it on the train every day. It is just near the Cooks River, as I understand it, very close to where the old Good Samaritan convent used to be.

The Hon. John Della Bosca: It is right near the Good Samaritan convent.

The Hon. MICHAEL EGAN: Is the Good Samaritan convent still there?

The Hon. John Della Bosca: The building is.

The Hon. Greg Pearce: Wasn't this within your electorate?

The Hon. MICHAEL EGAN: Good heavens no! These people from the North Shore have no idea where Cronulla and Rockdale are. The Cooks River Bridge, where Cahill Park is, is about 40 minutes by car from Cronulla.

The Hon. Jan Burnswoods: Less now, I think. 7674 LEGISLATIVE COUNCIL 4 December 2002

The Hon. MICHAEL EGAN: Less now. But it is a long way away. You can tell that the Liberal Party is purely and simply a North Shore party when its members think that Cronulla and Rockdale are close together, or indeed think that Rockdale is in the electorate of Cronulla. No wonder the Liberal Party is in danger of losing every seat in the St George and Sutherland shire area.

The Hon. Greg Pearce: Point of order: I am trying to hear the Minister's reply to this important question. Unfortunately, he is turning his back to the Chair and addressing his reply to some Government backbenchers. I ask that he be instructed to direct his reply to the Chair.

The PRESIDENT: Order! Given the poor acoustics of the Chamber, it would assist members if the Minister spoke into the microphone on the table in front of him.

The Hon. MICHAEL EGAN: I am happy to speak into the microphone, but it does occur to me that there would have been—

The Hon. Dr Brian Pezzutti: Point of order: The Minister's response should be relevant to the question. Further, it is highly offensive that an intercity dweller and cappuccino set person should be making any derogatory reference to the North Shore.

The PRESIDENT: Order! There is no point of order.

The Hon. MICHAEL EGAN: If the Hon. Dr Brian Pezzutti wants to argue the merits of Glebe as against Surry Hills, I am quite happy to engage him in that argument. He is a Glebe cappuccino drinker. I think people who drink cappuccino are not really coffee drinkers at all. It is a bit like people who start drinking wine drinking Lindeman's porphyry pearl sauterne or something that is very flat. Anyone who is still drinking cappuccino after 11 o'clock in the morning is not a coffee drinker.

DEPARTMENT OF COMMUNITY SERVICES YOUTH PROGRAM AWARDS

The Hon. HENRY TSANG: My question without notice is directed to the Minister for Community Services. What recognition has the Department of Community Services won recently for its programs to help young people?

The Hon. CARMEL TEBBUTT: I take great delight in focusing on some positive recognition of the Department of Community Services [DOCS]. I am pleased to inform the House that two DOCS-funded programs were winners in the 2002 Premier's Public Sector Awards, which were announced on 25 November. In addition, a youth project funded by the department won a Community Relations Commission 2002 National Multicultural Marketing Award. Members opposite can make all the noise they like because Government members know, given the activities of Coalition members when they were in government, that they do not have a huge commitment to public service, let alone the Department of Community Services. Nonetheless, for those who work in the Department of Community Services, it is important to focus on the positives, acknowledge when it gets things right and when it is recognised for having done so. That is why I am very pleased to announce in this House the good work of the Department of Community Services.

The awards are significant. The Premier's Public Sector Awards comprised a bronze medal for a joint initiative of DOCS and the Computer Sciences Corporation [CSC] that offers young people in care in New South Wales $10,000 scholarships to develop information technology skills, and a gold medal in the social justice work force diversity category for a parenting magazine for Arabic communities, which was developed by DOCS as part of the Youth Partnership with Arabic Speaking Communities initiative. I am sure all honourable members would agree that these are both very innovative programs. The joint DOCS-CSC "Give IT a Go" scholarship program gives 10 young people aged between 15 and 17 who are in care in New South Wales the chance to receive information technology [IT] industry exposure and on-site work experience. The "Give IT a Go" scholarships were launched this year and will run again next year. They include workshops in Canberra and Sydney where young people in care may learn computer and business skills, as well as communication and presentation skills, leadership and problem solving. The scholarships also allow young people to learn about careers in business and technology and to discover more about work and study opportunities in IT.

Poorer educational outcomes for young people in care are well known. This is an important initiative that provides opportunities for young people in care to increase their knowledge and understanding in IT and business technology. The Arabic parenting magazine covers a range of key parenting issues that have been 4 December 2002 LEGISLATIVE COUNCIL 7675 identified by Arabic families. It includes building good relationships with children, coping with intergenerational conflict, supporting children at school and protecting children from harm. The free, 36-page magazine was developed by the Department of Community Services New South Wales Parenting Centre and contains information in both Arabic and English. Twenty-five thousand copies of the magazine were printed and distributed through local libraries, community health centres, DOCS offices and Arabic organisations in south- western Sydney. They have been very well received.

I turn now to the other awards. The HomeBass Youth Cafe, which provides services for young people aged between 12 and 24 years in the Bankstown area, recently won the Government award in the Community Relations Commission's 2002 National Multicultural Marketing Awards. The HomeBass Youth Cafe is the result of a successful partnership between DOCS, the Bankstown City Council, the Police and Community Youth Club and the Bankstown Multicultural Youth Service. DOCS provides recurrent funding of $200,000 to the Bankstown City Council to auspice the project, which benefits from dedicated volunteers, who hold daily activities for young people. In the July school holidays this year, HomeBass organised six young volunteers to operate craft classes for children in Bankstown Square. In just three days, approximately 800 children, parents and grandparents attended. A youth advisory committee, which meets monthly to make decisions on the structure of HomeBass and to organise daily activities for young people, has a sense of ownership and responsibility that helps to make the cafe safe and accessible. It is a significant achievement to win medals in the Premier's Public Sector Awards and to be a winner in the National Multicultural Marketing Awards. I congratulate the department. [Time expired.]

COMPLEMENTARY MEDICINE

The Hon. HELEN SHAM-HO: In directing a question to the Treasurer, representing the Minister for Health, I refer to issues relating to complementary and alternative medicine and to the Health Claims and Consumer Protection Advisory Committee. What is the formal position of the Government regarding the practice of traditional Chinese medicine [TCM], which is one of the main complementary health practices and which is widely used and trusted by the Chinese community in New South Wales? Is the Minister aware that Professor John Dwyer, who is chair of the committee, was reported in the Inner Western Suburbs Courier on 26 February last year to have stated and implied that TCM is unscientific, that its healers are misguided and base their practices on a complete misunderstanding of the function of the body's major organs, that every evidence of the effectiveness of the so-called "herbal cocktails" used were just anecdotes, and that any benefit was due to the placebo effect? Will the Minister make inquiries into those outrageous claims? Will he reconsider the appointment of Professor Dwyer as the chair of the committee reviewing complementary health care? [Time expired.]

The Hon. MICHAEL EGAN: I am not sure that I could say that the Government has a policy position on traditional Chinese medicine, and I am not sure that it would be appropriate for the Government to have such a policy.

The Hon. Helen Sham-Ho: Why not?

The Hon. MICHAEL EGAN: It is not possible to have a policy on everything. I do not know what Professor Dwyer's views are on traditional Chinese medicine, but I assure the House that my mother absolutely swears by traditional Chinese medicine, and I would much prefer to take her view than the view of any professor. That is probably not a very scientific approach, but I am not a very scientific person. I look around at all the doctors in this Chamber and I think, "Heaven help us." Who on earth would put himself in the hands of the Hon. Dr Arthur Chesterfield-Evans?

The Hon. John Della Bosca: I might use the Hon. Henry Tsang, once.

The Hon. MICHAEL EGAN: I might let the President, Dr Meredith Burgmann, treat me, I might let the Hon. Dr Henry Tsang treat me, and I think I would be inclined to let the Hon. Dr Peter Wong treat me because I am assured that he is a first-class physician. As for anaesthetics, if I needed an anaesthetist, I think that the Hon. Dr Brian Pezzutti would be pretty good, but I would not take any other type of medical advice from him because he said he did not know what lateral epicondylitis was when I was suffering from it.

The Hon. HELEN SHAM-HO: I ask a supplementary question. In view of what the Treasurer has said, which has not really answered the question, will he ask the Minister for Health to reconsider the appointment of Professor Dwyer as the chair of the committee that will be reviewing complementary health care, owing to his insensitive, disparaging, biased and patronising comments? If not, why not? 7676 LEGISLATIVE COUNCIL 4 December 2002

The Hon. MICHAEL EGAN: My colleague the Deputy Leader of the House, the Special Minister of State, Minister for Industrial Relations, Assistant Treasurer, Minister Assisting the Premier on Public Sector Management, and Minister Assisting the Premier for the Central Coast has suggested that perhaps my mum would be a good chair of the committee. I am not sure that that is appropriate, so I will not take that suggestion any further. But as I stated yesterday, Professor Dwyer, even though obviously on this issue he disagrees with my mother nevertheless is an eminent medical practitioner and academic, so I would not in any way disparage him, his qualifications or his integrity.

The Hon. Duncan Gay: Just because he is not into hippie healing.

The Hon. MICHAEL EGAN: Hippie healing, as the Deputy Leader of the Opposition puts it, might have something going for it—who knows? For example, the Southern Cross University is doing a lot of work on herbal medicine.

The Hon. Ian Cohen: It is very successful.

The Hon. MICHAEL EGAN: What does the Hon. Dr Arthur Chesterfield-Evans think about it?

The Hon. Dr Arthur Chesterfield-Evans: I was on the joint committee that was assessing it.

The Hon. MICHAEL EGAN: The Hon. Dr Arthur Chesterfield-Evans believes in alternative medicine. I would be very wary of any assessment made by the Hon. Dr Arthur Chesterfield-Evans. The new member of this House, the Hon. Melinda Pavey, may appreciate learning that it was the Hon. Dr Arthur Chesterfield-Evans, a medical practitioner, who once suggested to the House that fathers could breastfeed. That statement appears in Hansard. Nobody else has managed to work out how that could be done, but because that statement came from the mouth of an expert, none of us is prepared to dismiss it completely.

SYDNEY WATER SEWERAGE PROGRAM

The Hon. PATRICIA FORSYTHE: My question is to the Minister for Community Services, representing the Minister for Energy. Is it a fact that Sydney Water's $2 billion Sewer Fix Program will not achieve the targets Sydney Water originally set because money has been spent providing six-monthly mechanical and electrical maintenance to the new equipment despite its still being under contractor warranty? Is this because Sydney Water failed to update its maintenance scheduling system? Will the Minister order an immediate investigation into the mismanagement of yet another project at Sydney Water?

The Hon. CARMEL TEBBUTT: That is not a question that I can respond to but I will refer it to Minister Yeadon and undertake to get a response as soon as possible.

SNOWY MOUNTAINS LAKES TROUT STRATEGY

The Hon. PETER PRIMROSE: My question is to the Minister for Mineral Resources, and Minister for Fisheries. What has been done to improve our State's prestigious Snowy lakes trout fishing?

The Hon. EDDIE OBEID: In May last year after extensive community consultation the New South Wales Government introduced a plan to better manage trout fishing in the Snowy Mountains. This strategy includes Lake Jindabyne, Lake Eucumbene and Tantangara Reservoir. All local businesses and anglers had been concerned for some time about rainbow trout catches. A survey funded by freshwater anglers found that this prestigious fishery is worth up to $70 million a year. Each year 34,000 anglers visit this world-recognised region. The Snowy lakes trout strategy provides sensible measures to make sure that this fishery remains the best in Australia and that it continues to attract visitors, who support local businesses. The strategy protects spawning trout and reduces bag limits, making sure that all anglers get a fair chance to catch a fish. And we are working with the community in regard to New South Wales Government fish stockings. We have given a five- year guarantee of consistent trout stocking. That has never been done before. Each year Lake Eucumbene gets 150,000 rainbow trout fingerlings. Lake Jindabyne gets 50,000 rainbow trout fingerlings, 200,000 Atlantic salmon fry and 50,000 brook trout fry. The Tantangara Reservoir will remain a wild brown trout fishery.

I am pleased to advise the House that our strategy has been hailed as an outstanding success. The Snowy Mountains Lakes Working Group was established in December 2000 to help us develop this strategy. Last month its members met with the Director of NSW Fisheries in Cooma to review the progress and the 4 December 2002 LEGISLATIVE COUNCIL 7677 implementation of the strategy. Representatives from the tackle and tourism industries, the Monaro Acclimatisation Society, angling media and the Snowy Mountains Hydro Electric Authority all attended the meeting. I am advised that the group was unanimous in its praise for the strategy, stating that it was the best thing to happen to the fishery for 20 years—high praise indeed from the Snowy Mountains trout industry. Large rainbow trout are now being caught consistently in Lake Eucumbene and a bumper summer season is being forecast. This year's rainbow trout spawning run was the best for many years—more great news for anglers, visitors and local businesses. The success of this strategy is a magnificent achievement for New South Wales.

COMPLEMENTARY MEDICINE

The Hon. Dr PETER WONG: My question is to the Treasurer, representing the Minister for Health. Does the Minister accept the important role of complementary medicine in New South Wales? Does he also accept that the Chair of the Health Claims and Consumer Protection Advisory Committee should be unbiased and also have some understanding of complementary medicine in our State?

The Hon. MICHAEL EGAN: The Hon. Dr Peter Wong has asked for my opinion, and that is out of order. I do have opinions on complementary medicine, alternative medicine and Chinese traditional medicine but they are personal.

The Hon. Tony Kelly: It is out of order to ask for your opinion but it is not out of order for you to give your opinion.

The Hon. MICHAEL EGAN: That is right. That is a very learned observation by the Chairman of Committees. I suspect that all those forms of medicine have some merit. I do not know the scientific reason for their beneficial effects, but a lot of people swear by them. I do not know whether the effects are merely psychological or whether there is a scientific basis. But certainly one could argue empirically that traditional Chinese medicine has stood the test of time. I recall when Gough Whitlam made that historic visit in 1971 to mainland China just a week or two before Richard Nixon announced his intention to go to China. It was on that visit of Whitlam to China that we were first introduced to acupuncture. We saw on television operations being performed for which the only anaesthetic was acupuncture. We had hardly heard of it and we hardly believed it. But acupuncture is now widespread in Australia. I am not sure whether it is being used as anaesthetic; it is used for all sorts of things. People have even told me that acupuncture works in taking away nicotine cravings. I have not tried that and I would not try it without the recommendation of the Hon. Dr Brian Pezzutti.

SINGLE-OFFICER POLICE STATIONS

The Hon. RICK COLLESS: When will the Minister for Police provide the necessary police numbers in regional areas to increase staffing levels at one-officer police stations, including the Coolah police station? Is he aware that the only police officer at Coolah, Senior Constable Michael Daley, was severely beaten while responding to an incident several weeks ago and he has now called for an end to one-officer stations? What guarantees can the Minister give officers at these stations that they will be safe, considering that backup officers often have to travel long distances?

The Hon. MICHAEL COSTA: Again the research of the Opposition extends to the Sun-Herald on the weekend. But, then again, that is better than making it up, as with most of the questions we get from the crossbenchers.

The Hon. Ian Cohen: What a towering intellectual!

The Hon. MICHAEL COSTA: The melon party is interjecting.

The Hon. Michael Egan: He used to be a Trot too.

The Hon. MICHAEL COSTA: No, he is a Stalinist.

The Hon. Michael Gallacher: Point of order: This is a very serious incident involving the beating of a police officer, and the Minister continues to make jokes. I ask you to bring him back to the question and answer it.

The PRESIDENT: Order! There is no point of order. 7678 LEGISLATIVE COUNCIL 4 December 2002

The Hon. MICHAEL COSTA: The Leader of the Opposition has been to his acting lessons. The mock indignation is wonderful. This is the bloke who, on every occasion I have put up a positive story about what policing has done, has bagged our police. He forgets the Vikings operations. He called them stunts. He forgets what he said in this House, but I will not forget and the police in New South Wales will not forget.

The Hon. Rick Colless: Point of order: My question specifically related to Senior Constable Michael Daley, who was severely beaten. The Minister continues to ignore the question. He is trifling with the House by introducing other issues. He should be answering the question relating to Constable Michael Daley. That is what I want to hear about.

The PRESIDENT: Order! I ask the Minister not to be diverted by interjections, which are always disorderly.

The Hon. MICHAEL COSTA: If Opposition members were to keep their voices down, I would be able to answer the question, but they constantly interject and, unfortunately, on occasion I am diverted by some of the comments. This is an important matter. I raised it this week with the Deputy Commissioner (Operations), David Madden. I have asked him for a full report on the incident.

The Hon. MICHAEL EGAN: If honourable members have further questions, they might like to place them on notice.

DEFERRED ANSWER

The following answer to a question without notice was received by the Acting Clerk during the adjournment of the House:

NYMAGEE POLICING

On 30 October 2002, the Hon. Rick Colless asked the Minister for Police a question without notice concerning police presence at Nymagee. The Minister provided the following response:

I am advised the resident police officer at Nymagee was transferred to Kogarah in March 2002. I am informed the town is currently serviced by police from Nyngan and Cobar.

NSW Police advise an officer has been appointed to Nymagee. The officer is awaiting a replacement for his position at Enngonia prior to commencing work at his new post. The position at Enngonia is currently under advertisement.

Questions without notice concluded.

[The President left the chair at 1.01 p.m. The House resumed at 2.30 p.m.]

BUSINESS OF THE HOUSE

Postponement of Business

Committee Reports Orders of the Day Nos 1 to 4 postponed on motion by the Hon. Peter Primrose.

DISTINGUISHED VISITORS

The DEPUTY-PRESIDENT (The Hon. Tony Kelly): I draw to the attention of the House the presence in the gallery of Major General Jioji Konroti, the new High Commissioner for the Republic of the Fiji Islands, and Mrs Sarote Konroti. I extend to them a warm welcome.

MOTOR ACCIDENTS COMPENSATION FURTHER AMENDMENT (TERRORISM) BILL

WORKERS COMPENSATION AMENDMENT (TERRORISM INSURANCE ARRANGEMENTS) BILL

TERRORISM (COMMONWEALTH POWERS) BILL

TERRORISM (POLICE POWERS) BILL

Second Reading

Debate resumed from an earlier hour.

The Hon. PETER BREEN [2.30 p.m.]: The Premier has indicated that the Terrorism (Police Powers) Bill is subject to the jurisdiction of the Independent Commission against Corruption [ICAC], but with great respect to the Premier, clause 13 specifically excludes any court, tribunal or body from interfering with the 4 December 2002 LEGISLATIVE COUNCIL 7679 authorisation or decision of the Minister for Police. If the Premier intends that the ICAC have the relevant power over the Minister for Police, I trust that the Government will support Opposition amendment No. 4. As I stated earlier, allowing the ICAC to exercise its considerable powers is a decision not to be taken lightly. But I would prefer to be answerable to the ICAC than have the Hon. Michael Costa exercise unfettered police powers. I hope that honourable members will support the Opposition's amendment.

I turn now to what I believe lies at the heart of the bill, namely, the fear and loathing that has been generated against the Muslim community since the events of September 11, 2001 in New York, the so-called Tampa crisis and, more recently, the tragic bombings in Bali. Nowhere is this fear and loathing more apparent than in the activities of Reverend the Hon. Fred Nile, who has been widely criticised for his comments. Even this morning's issue of the Sydney Morning Herald included an article by Mark Baker entitled "A friend of Fred Nile's is no friend of South-East Asia's". Mr Baker referred to certain comments made by Reverend the Hon. Fred Nile in this House. Reverend the Hon. Fred Nile might speak for a lot of people, as the Prime Minister so shrewdly noted, but my observation is that his intemperate remarks do not reflect mainstream Christianity. Reverend the Hon. Fred Nile is anchored a good way offshore so far as mainstream Christianity is concerned.

A cursory glance at the pages of the latest edition of the Family World News reveals the theological and pastoral concerns of Reverend the Hon. Fred Nile. I could not help but look at the Family World News in the context of this debate. Each page shows some kind of vilification of either the Islamic religion or the Muslim community. The photographs are the most appalling I have ever seen in a newspaper, apart from pornographic photographs. One article headed "Muslim father murders virgin daughter" is accompanied by an appalling photograph of a woman with her neck chopped open, with blood and gore streaming out of the wound. The next page, which contains articles about the Islamic persecution of Christians and a photograph showing, presumably, a Christian who has been murdered for his or her faith—I cannot tell from the mangled appearance of the body whether it is a male or female—is equally appalling.

The opposing page contains photographs of blood and gore pouring out of the bodies of other so-called Christian victims of Islamic terror. The newspaper is an appalling representation of the beliefs that motivate Reverend the Hon. Fred Nile. He is entitled to express those views, but they do not represent mainstream Christian opinions. One can contrast the Family World News with Impact, a publication by Reverend the Hon. Dr Gordon Moyes, in which not one article demonises the Islamic faith or the Muslim community. Similarly, not one article in the latest edition of the Catholic Weekly demonises other people. The articles and photographs in Family World News are the most unchristian and unprincipled way to deal with what is a real problem in the community.

Reverend the Hon. Dr Gordon Moyes: Point of order: I have been fairly patient. We should listen to various viewpoints, but the standing orders do not allow members to vilify other members in the House.

The Hon. PETER BREEN: To the point of order: I did not vilify Reverend the Hon. Dr Gordon Moyes, nor was that my intention. I would be surprised if anything I said would cause him any kind of discomfort.

Reverend the Hon. Dr Gordon Moyes: Further to the point of order: I was not referring to myself. I was referring to remarks made about Reverend the Hon. Fred Nile, who was absent at the time.

The DEPUTY-PRESIDENT (The Hon. Tony Kelly): Order! There is no point of order.

The Hon. PETER BREEN: I refer to an article published in the Sydney Morning Herald on 15 October entitled "Beware Christ's zealots as they fan the flames" by Chris McGillion in which he quotes the Reverend Franklin Graham, son of evangelist Billy Graham, as saying:

The God of Islam is a different God to the Christian God and Islam is an evil and wicked religion.

That is absolute garbage! If there is a God it is the same God for Judaism, Christianity and Islam. I was reminded by the article that George Bush senior consulted widely before the Gulf War, including with the Reverend Billy Graham. Bush senior was worried that he might cause Armageddon. To the then President's eternal relief, the Reverend Graham advised him not to worry, saying:

In the event of Armageddon, you and I are going to heaven.

In 1991 Saddam Hussein made similar claims to represent the divine will of Allah, and questioned whether God could support two opposing forces. At the time I was told about an unfortunate psychiatric patient who suffered 7680 LEGISLATIVE COUNCIL 4 December 2002 from the delusion that he was God. The poor fellow spent the whole of the Gulf War in a straitjacket because he could not work out which side he was on.

The Hon. Michael Gallacher: That sounds like the ex-Trots.

The Hon. PETER BREEN: The ex-Trots come from the left and right. The Minister for Police should have got the award from Alex Mitchell the other night. I was surprised that the Hon. Ian Macdonald got the Michael Knight award: moving from left to right. I cannot understand why the Minister for Police did not get it. Zealots on all sides would do well to follow the biblical imperative to find a quiet room. God works in mysterious and unpredictable ways. We believers are sometimes driven mad trying to work out which side He/She is on. Others would say that any belief in God is delusional, with religious prophecy at the top of the psychosis pile. That might be right, too.

The Hon. Ian Macdonald: You're getting to be a hard-hitting MP.

The Hon. PETER BREEN: I am not. I do not want to be. It is not part of my character. It is not in my character to be a hard-hitting member of Parliament.

The DEPUTY-PRESIDENT: Order! All interjections are disorderly. The member has been speaking peripherally to the bill. However, I suggest he confine his remarks to the subject of the bill.

The Hon. PETER BREEN: Certainly. It has been about the bill. It is about the underlying themes, concerns and fears in the community that motivate the need for this bill, according to the Minister for Police. The Terrorism (Police Powers) Bill will not improve policing. As I said earlier today, the police need to sharpen their investigative skills rather than bolster their powers. I mentioned the Hilton Hotel bombing. In that case the police charged the wrong person. They need to hone their skills, not increase their powers. The Minister for Police certainly does not need any more power to be hairy-chested. He comes in here every day and does whatever he likes.

This bill will serve only to reward religious hatred and bigotry. The Muslims are simply the latest ethnic migrant group to be vilified in Australia. In the nineteenth century the victims were the Chinese in the goldfields, then the refugees from two world wars arrived—the Greeks, Italians, Maltese, Polish, Hungarians and so on. After the Vietnam War we had the Asian boat people, and prior to the Tampa incident it was the Iranians, Iraqis and Afghans. Apart from Israel, Australia is the most ethnically diverse culture in the world. We enjoy a tolerant and accommodating democracy. We have not experienced unfettered police powers, and for the life of me I cannot understand why we need to go down that track. There is no specific threat that must be countered and no enemy is coming over the hill, apart from Reverend the Hon. Fred Nile's Family World News.

The Premier said in his second reading speech that legitimate, non-violent protest could not trigger the proposed laws. The corollary of that statement is that illegal protest and public assembly, such as that witnessed during the World Trade Organisation meeting, will trigger the laws. This is a matter of great concern. In 1993 I worked for the public body established in Queensland following the Fitzgerald inquiry. One of the issues I helped to examine was the erosion of personal liberties and the abuse of police powers that took place in the Bjelke-Petersen years. Members may not recall that Premier Bjelke-Petersen frequently had breakfast with his Minister for Police to find out who intended to protest on any given day. He would then ban the protest or march using the procedures of his unicameral Parliament and the protesters would suddenly find themselves acting outside the law. The bill before the House is much more oppressive than anything that Joh Bjelke-Petersen had in his legislative armoury. Premier Carr will be able to trigger these powers simply by telephoning Police Minister Costa and declaring a credible terrorist threat. They can skip breakfast and the Parliament altogether. For these reasons I urge honourable members to oppose the Terrorism (Police Powers) Bill.

The Hon. IAN MACDONALD (Parliamentary Secretary) [2.44 p.m.], in reply: In reply to debate on the Motor Accidents Compensation Further Amendment (Terrorism) Bill, I advise that the statutory third party policy prescribed by the Motor Accidents Compensation Act 1999 requires a compulsory third party [CTP] insurer to indemnify an at-fault owner-driver of a vehicle for death or injury which is a result of and is caused while the vehicle is being driven, when it is involved in a collision or near miss, by the vehicle running out of control or by a defect in the vehicle during its use or operation. For example, a terrorist attack that involved driving a motor vehicle as a weapon could technically meet those policy definitions. However, such a deliberate and grotesque act is not what is commonly understood as a motor vehicle accident, nor is it the reason New South Wales motorists buy green slip insurance. The CTP scheme is simply not set up to cover such events. A different response is required for acts of terrorism. 4 December 2002 LEGISLATIVE COUNCIL 7681

Since the issue of insurance cover and terrorism emerged post 11 September 2001 the State Government has been urging the Commonwealth Government to develop a national response to address the withdrawal of terrorism cover. In response to the comments made by the Hon. Ian Cohen, I remind the House that the Premier wrote to the Prime Minister about this subject in November last year calling for an urgent national summit to be convened. Although the Commonwealth Government has taken until October this year to announce its plan for a national approach, the Government welcomes the announcement of a national scheme for replacement terrorism insurance to commence on 1 July 2003. The Commonwealth Government has advised the States and Territories that the national scheme will be structured with the potential to accommodate the State and the Territory statutory classes of workers compensation and compulsory third party motor vehicle insurance. The Commonwealth Government has also indicated that it is prepared to negotiate with the States and Territories to include coverage of their State-based arrangements in the national scheme. This Government will take up the Commonwealth Government's offer to discuss the inclusion of the New South Wales CTP and workers compensation schemes within the proposed national scheme for replacement terrorism insurance. However, the national scheme will not be in place before 1 July 2003 at the earliest.

In enacting the Motor Accidents Compensation Amendment (Terrorism) Act 2002 to temporarily exclude terrorist acts involving a motor vehicle from the CTP scheme the Parliament accepted that such action was necessary in the short term to maintain the effective operation of the green-slip scheme in New South Wales. The terrorism exclusion approved by this Parliament in the budget session is in place only until 1 January 2003. I reiterate, there will be no alternative national scheme in place before 1 July 2003 at the earliest. It is therefore necessary to continue the terrorism exclusion for a further period, pending discussions with the Commonwealth Government to include the New South Wales CTP scheme within the national scheme for replacement terrorism insurance.

Question—That the Motor Accidents Compensation Further Amendment (Terrorism) Bill be now read a second time—put.

Motion agreed to.

Motor Accidents Compensation Further Amendment (Terrorism) Bill read a second time and passed through remaining stages.

The DEPUTY-PRESIDENT (The Hon. Dr. Brian Pezzutti): Order! The House will now continue to deal with the Workers Compensation Amendment (Terrorism Insurance Arrangements) Bill.

The Hon. IAN MACDONALD (Parliamentary Secretary) [2.46 p.m.], in reply: In relation to the Workers Compensation Amendment (Terrorism Insurance Arrangements) Bill, the Government has consulted with affected parties. As a result it has agreed to a minor amendment to enable insurers to pay contributions to the Terrorism Reinsurance Fund [TRF] by way of instalments to reduce the potential burden on insurers if a major terrorist event were to occur. I intend to move this amendment in Committee. I also indicate to the House that the Commonwealth Government has recently announced its intention to establish a scheme for reinsurance cover for terrorism risk from 1 July 2003. The Commonwealth Treasurer has written to the New South Wales Treasurer in relation to the proposed scheme to provide reinsurance cover. The Hon. Peter Costello stated:

The scheme will operate from 1 July 2003 and will be structured with the potential to accommodate the state and territory statutory classes of insurance of workers compensation and compulsory third party motor vehicle insurance.

This Government will pursue that option with the Commonwealth Government with a view to establishing a broad-based solution to this issue. The bill contains provision for a review of the arrangements to establish the TRF as soon as possible after 30 June 2004. In light of the Commonwealth Government's announcement of its intention to establish a scheme for replacement of terrorism insurance from 1 July 2003, this review will be brought forward to 2003 to coincide with the introduction of the Commonwealth arrangements. This review will also provide two specialised insurers who have taken a particular interest—Catholic Church Insurance and Guild Insurance—an opportunity to consult further with the Government and explore what further arrangements may be necessary if negotiations with the Commonwealth Government do not deliver a satisfactory national solution. The measures contained in this bill will provide an interim solution for New South Wales to what is a serious national problem until such time as a truly national approach can be adopted. I commend the bill to the House.

Question—That the Workers Compensation Amendment (Terrorism Insurance Arrangements) Bill be now read a second time—put.

Motion agreed to. 7682 LEGISLATIVE COUNCIL 4 December 2002

In Committee

The CHAIRMAN: Order! The Committee will deal with the Workers Compensation Amendment (Terrorism Insurance Arrangements) Bill.

Clauses 1 to 3 agreed to.

Schedule 1

The Hon. IAN MACDONALD (Parliamentary Secretary) [2.49 p.m.]: I move:

Page 7, schedule 1, proposed section 239AG, lines 16 to 19. Omit all words on those lines. Insert instead

"The notice must specify the date or dates (the date being (or, if more than one date is specified, the first date being) a date not less than 15 days after the notice is given) by which the insurer must pay the amount or specified instalments of the amount (or, if the notice requires payment of a lesser amount in accordance with subsection (5), that lesser amount or specified instalments of that lesser amount)".

Discussions with the insurance industry have raised concerns with the provisions relating to contributions to the Terrorism Re-insurance Fund that are required under proposed section 239AG. Proposed subsection (6) permits the WorkCover Authority to make further determinations of the amount to be paid. However, there is some concern that the wording of subsection (4) could require the imposition of just one contribution that could significantly impact on the premium levels in the event of a very large claim. It is the Government's intention that insurers should be able to provide their contributions to the Terrorism Re-Insurance Fund by way of instalments rather than as a one-off payment. That will be in keeping with the ongoing nature of claims and the periods in which it is expected that they may be met. Accordingly, the amendment makes it clear that contributions to the fund can be by way of instalments to be determined by the authority issuing notices under section 239AG (4). The proposed amendment addresses those concerns. I commend the amendment to the Committee.

Amendment agreed to.

Schedule 1 as amended agreed to.

Title agreed to.

Workers Compensation Amendment (Terrorism Insurance Arrangements) Bill reported from Committee with an amendment and passed through remaining stages.

Second Reading

The PRESIDENT: Order! The House will now continue to deal with the Terrorism (Commonwealth Powers) Bill.

The Hon. IAN MACDONALD (Parliamentary Secretary) [2.52 p.m.], in reply: I thank honourable members for their contributions to debate on the Terrorism (Commonwealth Powers) Bill, which will ensure that there are no gaps in the constitutional basis of the new Commonwealth terrorism offences. The bill will prevent any political uncertainty or complexity being exploited to frustrate prosecutions of terrorists. Terrorists will not be able to avoid prosecution on legal technicalities. I commend the bill to the House.

Question—That the Terrorism (Commonwealth Powers) Bill be now read a second time—put.

The House divided.

Ayes, 30

Ms Burnswoods Mr Hatzistergos Mr Ryan Mr Colless Mr M. I. Jones Ms Saffin Mr Costa Mr Kelly Mr Samios Mr Della Bosca Mr Lynn Mrs Sham-Ho Mr Dyer Mr Macdonald Mr Tsang Mr Egan Reverend Dr Moyes Mr West Ms Fazio Reverend Nile Mrs Forsythe Mr Oldfield Mr Gallacher Mrs Pavey Tellers, Miss Gardiner Mr Pearce Mr Jobling Mr Harwin Dr Pezzutti Mr Primrose 4 December 2002 LEGISLATIVE COUNCIL 7683

Noes, 7

Mr Breen Dr Chesterfield-Evans Mr Cohen Mr Corbett Ms Rhiannon Tellers, Mr R. S. L. Jones Dr Wong

Question resolved in the affirmative.

Motion agreed to.

Terrorism (Commonwealth Powers) Bill read a second time and passed through remaining stages.

The PRESIDENT: Order! The House will now continue to deal with the Terrorism (Police Powers) Bill.

The Hon. MICHAEL COSTA (Minister for Police) [3.01 p.m.], in reply: The Terrorism (Police Powers) Bill is fair and balanced legislation. The New South Wales Government has a heavy responsibility and a duty to respond to a threat on domestic soil. We are upholding the civil liberties and freedoms that our community holds dear. At the same time we realise that New South Wales may face an imminent terrorist attack. As a result of the events of September 11 and the events in Bali we have been forced to change our view about our safety as a nation.

The Government has a duty to provide our law enforcement bodies with the resources they need to protect and respond. We have carefully time limited these increased powers. When there is a terrorist act or a credible threat police will have these powers for seven days and two days respectively. Other authorisations could then be provided with ministerial concurrence. We will not have an open-ended power without the requirement for civilian concurrence. We have created a special trigger before the authorisations can be invoked, and the authorisations are confined to limited circumstances.

In clause 3 of the bill the Government has adopted the Commonwealth definition of a terrorist act. Clause 13 makes it clear that the decisions of senior police are reviewable by the Police Integrity Commission. The jurisdiction of the Ombudsman to oversight complaints about inappropriate exercise of these powers is unaffected by the bill. Clause 36 provides for annual reviews of the Act. In concert with the Commonwealth Government, the New South Wales Government has taken a responsible leadership role. In spite of the threat we all face, we must maintain our lifestyle and not surrender our freedoms. This legislation upholds and protects those freedoms.

One slur raised during the debate requires a response. In the face of the threat of terrorism, the Premier has been a leading figure. He has been a voice for calm and tolerance. The Premier has expressed his support for religious freedom for all Australians. He has expressed his solidarity with Muslim Australians. He has spoken of Islam as a great religion. The Premier deserves our thanks and admiration for his response, his tolerance and for the example he has set. It is an absolute scandal for the Hon. Dr Peter Wong to suggest that the Premier has played the race card. That is a dangerous attack. It is an attempt to polarise and it is simply untrue.

This legislation is a fair, effective and balanced response to a new climate the world must face. New South Wales must be able to react effectively at short notice, but we must also remain calm in the face of a terrorist threat. The bill maintains our lifestyle and protects our freedoms. It is a measured response to a genuine threat. Whilst it gives police exceptional powers in limited circumstances, these powers are, unfortunately, necessary to help prevent, and manage the response to, a terrorist attack. The bill also contains a range of safeguards to ensure police are accountable for the way they exercise their special responsibilities under the bill. Like all members, I hope the powers under the bill will never need to be invoked. However, again like all members, I am pleased those powers are available if ever they are needed.

Ministerial accountability has also been raised in the debate. Clearly, the bill has been misunderstood. The commissioner exercises the powers under the bill, and the role of the Minister is to either concur or not 7684 LEGISLATIVE COUNCIL 4 December 2002 concur when the commissioner exercises those powers. It is not the Minister who exercises the powers; it is the Commissioner of Police and the New South Wales Police Force. It is an absolute furphy for people to argue that this bill is about ministerial accountability. However, given that it has become an issue I sought the Crown Solicitor's advice on the matter, which reads in part:

I conclude that the Minister would be accountable for his decisions under Part 2 of the Bill in the sense that it will be open to the PIC in an investigation under the Act to review or call into question those decisions.

To ensure that there is a bipartisan approach to this matter I table the Crown Solicitor's advice, which should meet the Opposition's concerns in respect of the Independent Commission Against Corruption. I call on the Opposition to support the bill in full.

The Hon. Michael Gallacher: They were fair concerns. You had to go out and find out yourself.

The Hon. MICHAEL COSTA: The Leader of the Opposition interjects that they were fair concerns. I say once again that they were not; they were silly concerns. They had to do—

The Hon. Greg Pearce: Point order: I wish to clarify whether the Minister intends to table the document he has referred to. I suggest that he seek leave to do so, rather than continue to rant and rave.

The Hon. MICHAEL COSTA: I seek leave to table the Crown Solicitor's advice.

Leave granted.

Document tabled.

The Hon. MICHAEL COSTA: In response to the interjection of the Leader of the Opposition, the fact of the matter is that the amendment that was proposed—and I hope we do not have to go through it in Committee—was silly because it did not seek to deal with the issue raised, that is, the accountability of the Minister when exercising the power. We all know what the ICAC is about: it is about corrupt behaviour of public officials. The ICAC was an inappropriate body to deal with the concerns raised, assuming that those concerns were legitimate. The Government has tabled the advice provided by the Crown Solicitor. That should make it easier for the Opposition to accept the logic of the position the Government has put in the public debate on this issue. On that basis I commend the bill to the House.

Question—That the Terrorism (Police Powers) Bill be now read a second time—put.

The House divided.

Ayes, 30

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

Noes, 7

Mr Breen Mr Cohen Mr Corbett Mr R. S. L. Jones Dr Wong Tellers, Dr Chesterfield-Evans Ms Rhiannon 4 December 2002 LEGISLATIVE COUNCIL 7685

Question resolved in the affirmative.

Motion agreed to.

Terrorism (Police Powers) Bill read a second time.

In Committee

CHAIRMAN: Order! The Committee will now deal with the Terrorism (Police Powers) Bill.

Part 1 agreed to.

Part 2

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [3.16 p.m.]: I move Australian Democrats amendment No. 1:

No. 1 Page 4, clause 4, lines 7-13. Omit all words on those lines.

The bill will give the police additional powers to deal with any threat of terrorist action. The powers conferred on police will include the power to require a person to disclose and prove his or her identity, the power to stop and search a person and things in the person's control, the power to stop and search a vehicle and the power to enter and search premises without a warrant. The powers in the bill appear to go beyond those that are normally available to police in that they can be exercised without a warrant. The powers in the bill can be invoked by authorisation of the Commissioner of Police, a deputy commissioner of police or any officer above the rank of superintendent. The authorisation must have the concurrence of the Minister for Police. Officers other than the Commissioner of Police or a deputy commissioner can make an authorisation only if the officers to whom I referred earlier are not contactable.

The Minister's office claims that this power is necessary in situations in which senior officers are themselves subject to a terrorist attack. An authorisation is not open to challenge in the courts other than under the Police Integrity Commission Act. The Government will argue that this is required as terrorist action needs a speedy response and legal action could result in the power being unnecessarily frustrated. The bill makes it an offence to obstruct or hinder a police officer in the exercise of any power. The onus of proof of reasonable excuse falls on the person accused. That provision, which seems unnecessary, goes against the basic principle that a person is innocent until proven guilty. The Criminal Law Committee of the Law Society of New South Wales is concerned that these powers will be available to be exercised whether or not an officer has been provided with or notified about the terms of the authorisation.

The Law Society does not understand how a police officer can act under an authorisation or form a suspicion based on reasonable grounds if he or she does not know the terms of the authorisation. It is of even greater concern that the powers contained in this bill can be triggered merely as a result of an officer being present in a target area, being able to enter an area, or having recently left an area. There is no need for police to suspect on reasonable grounds that a person was involved or will be involved in suspected terrorist activity. Further, police are allowed to use such force as is reasonably necessary in exercising these powers under clause 21.

The application of the powers in the bill to people or vehicles who are not the target of an authorisation should be predicated on police forming a suspicion on reasonable grounds that the powers must be exercised to prevent a terrorist attack or to apprehend the person responsible of committing a terrorist attack. The Democrats' amendment aims to ensure that the "reasonable suspicion" provisions apply. A police officer must be convinced that reasonable grounds exist for a suspect to be apprehended. The provisions in the bill are flawed. They do not require the suspicions of police officers to be based on reasonable grounds. This amendment will correct that anomaly. I commend the amendment to the Committee.

The Hon. MICHAEL COSTA (Minister for Police) [3.19 p.m.]: The Government does not support the Australian Democrats amendment.

Amendment negatived.

Part 1 agreed to. 7686 LEGISLATIVE COUNCIL 4 December 2002

The Hon. IAN COHEN [3.19 p.m.], by leave: I move Greens amendments Nos 1, 2 and 6 in globo:

No. 1 Page 4. Insert after line 14:

5 Eligible judges

(1) In this Act:

eligible Judge means a Judge in relation to whom a consent under subsection (2) and a declaration under subsection (3) are in force.

Judge means a person who is a Judge of the Supreme Court.

(2) A Judge may, by instrument in writing, consent to be nominated by the Attorney General under subsection (3).

(3) The Attorney General may, by instrument in writing, declare Judges in relation to whom consents are in force under subsection (2) to be eligible Judges for the purposes of this Act.

(4) An eligible Judge has, in relation to the exercise of a function conferred on an eligible Judge by this Act, the same protection and immunity as a Judge of the Supreme Court has in relation to proceedings in the Supreme Court.

(5) A Judge who has given consent under this section may, by instrument in writing, revoke the consent.

(6) The Attorney General may, by instrument in writing, amend or revoke a declaration under this section.

No. 2 Page 6, clause 9, lines 10-24. Omit all words on those lines. Insert instead:

9 Concurrence of eligible Judge

An authorisation may be given only with the concurrence of an eligible Judge.

No. 6 Page 7, clause 11, line 12. Omit "the Police Minister". Insert instead "an eligible Judge".

In these amendments the Greens have included a definition of an "eligible Judge", which means a judge of the Supreme Court. The Greens have removed the concurrence powers of the police Minister from clause 9 and replaced references to "the Police Minister" with "an eligible Judge". The Greens believe it is not appropriate for the Minister for Police to have the power to confirm an authorisation under this clause. Under the separation of powers a Minister of the Crown should not possess those kinds of decision-making powers. The Greens believe it is more appropriate for a Supreme Court judge to possess the power to give these kinds of authorisations.

It is important to note that the Greens reject the argument that it would take time for a Supreme Court judge to give an authorisation as authorisations are meant to be descriptive and a judge can be contacted immediately. We have heard of past situations involving search warrants when judicial representatives were contacted at all hours by police. Consent can be provided by telephone, by fax or in writing and the Greens see no reason why this basic protection cannot be maintained in a civil society without impinging in any way on the practical intent of this legislation. We believe it is important not only for the present incumbent but for any future police Minister that the Minister for Police is somewhat removed from that decision-making process. I commend the Greens amendments Nos 1, 2 and 6 to the Committee.

The Hon. MICHAEL COSTA (Minister for Police) [3.21 p.m.]: The Government does not support the amendments, which we believe are bureaucratic and unnecessary.

The CHAIRMAN: Order! The amendments moved by the Hon. Ian Cohen conflict with other amendments that I will allow also to be moved. I will then put questions in relation to them seriatim.

The Hon. MICHAEL GALLACHER (Leader of the Opposition) [3.22 p.m.], by leave: I move Opposition amendments Nos 1, 2 and 3 in globo:

No. 1 Page 6, clause 9, line 19. Omit "in the case of an authorisation under section 5—".

No. 2 Page 7, clause 11, lines 6-10. Omit all words on those lines. Insert instead:

(2) The period an authorisation has effect must not exceed 7 days beginning with the day on which it is given.

No. 3 Page 7, clause 11, lines 14-18. Omit all words on those lines. Insert instead "exceed 14 days beginning with the day on which it was first given." 4 December 2002 LEGISLATIVE COUNCIL 7687

These amendments are consistent with those foreshadowed in the contribution of Andrew Tink, the shadow Minister for Police, during debate in the Legislative Assembly. In the past 24 hours the Minister for Police has attempted to misrepresent the passage of the Terrorism (Police Powers) Bill in this place, and his actions are inexcusable. He is a complete disgrace. During the past few years this House has continued its tradition of smooth working. However, interaction between Government, crossbench and Coalition members has been called into question by the Minister's actions this morning.

Be that as it may, the Opposition has never sought to weaken, deflect, dilute or to undermine this legislation in any way. That has never been our position. The Minister knows that. He is contemptuous of Parliament and of his role as the Government face of policing. He bangs the table now as though he were in a little theatre and no-one could see him. But the fact is that more and more people are seeing him. The Minister handles the police portfolio in a bureaucratic manner, but the Opposition amendments deal with police operations. They recognise the need to ensure that police can seek a 14-day extension beyond the one-day to two-day time frame that this legislation provides. The Minister says that the legislation permits police to seek such an extension.

The Hon. Helen Sham-Ho: Yes.

The Hon. MICHAEL GALLACHER: The Hon. Helen Sham-Ho falls for the trap: she is the first guppy to take the bait. Anyone who has been part of a bureaucracy knows that the wheels turn slowly. There would be paperwork to process every day; every 24 hours police would have to seek another extension of time. The Opposition is trying to streamline police officers' requirements so that in the event of a terrorist act in this State they will not have to keep returning to Mr Moroney, the Minister or to anyone else for that matter to ask, "Can you sign this bit of paper to give us another extension? Can we have another 24 hours? But make sure your diary is clear, Mr Moroney, because we will be back in another 24 hours to get another 24-hour extension".

Police need a time frame of 14 days in which to continue their investigations. If an act of terrorism is perpetrated in this State police should not have to worry about seeking authorisations. The Opposition is about ensuring that police have the tools necessary to do the job. We have never suggested in any way that we are about weakening the legislation, and it is absolutely disgraceful for the Minister to claim that we are. His conduct in the past 24 hours is equally disgraceful.

I will not move a foreshadowed fourth amendment because the Minister has provided the Crown Solicitor's advice. I wish the Minister had spent more time in the past 24 hours seeking the Crown Solicitor's advice and responding to Opposition concerns rather than playing politics. This morning while people were eating their cornflakes the Minister claimed that Opposition and crossbench members had stalled the passage of this legislation. He failed to report that the Hon. Michael Egan walked into the Chamber at 10.27 last night and said to the Hon. Ian Cohen, "Look, Ian, do you mind if we adjourn until tomorrow because Michael Costa needs his beauty sleep?" Boy, he sure does. The Government halted the passage of this legislation, not the Opposition, and it is a complete disgrace that the Minister should make that claim this morning.

The letter from John Brogden, which I read onto the record yesterday, spells it out. We are seeking clarification that in the event of a terrorist act no mistakes will be made. We want an assurance because, for the first time, this legislation gives a Minister of the Crown in this State operational powers regarding the police. It gives the Minister a much stronger role.

The Hon. Michael Costa: It does not. Read the bloody bill!

The Hon. MICHAEL GALLACHER: We do not need to hear the Minister swearing and ranting and raving. He will have an opportunity to contribute to this discussion. This bill puts the Minister in a strong position. The letter from John Brogden was not irrational or rude. It asked the Premier for a meeting to discuss some concerns because the Opposition wants to make this legislation work. We wrote to the Premier and we have telephoned him at least three or four times in the past 24 hours but he has not had the decency to return our calls.

The Premier did not have the decency to reply to those phone calls. The Premier did not have the decency to say that he did not have time to meet with us but that he would ask the Minister for Police or one of his staff to meet with us. We could not even meet with the carpark attendant! That is the attitude of the Government. We sought to ensure that the necessary protections were in place. They are now guaranteed because we forced the Government to get advice from the Crown Solicitor to clarify the situation. The Minister 7688 LEGISLATIVE COUNCIL 4 December 2002 said our position was ludicrous. If that is so, why did he get advice from the Crown Solicitor? Why did he leave it until the end of the debate to introduce the advice from the Crown Solicitor? The Government is showing its contempt. Honourable members and the public need to recognise that the Government is trying to politicise terrorism.

The Hon. MICHAEL COSTA (Minister for Police) [3.30 p.m.]: Today I have seen the Leader of the Opposition engage in mock indignation on two occasions—and he has just done it again in relation to this bill. These matters were debated and canvassed in the lower House. The Opposition should have sought clarification in the lower House but it did not do so. The Opposition has sought to become relevant. However, more and more it is becoming irrelevant in relation to policing matters in this State. I congratulate the Prime Minister on his exemplary role. He has led the nation in relation to these difficult matters. We should support our leaders in a bipartisan manner during a crisis. I put on record once again my admiration for the Prime Minister in relation to his dealing with these matters. I would have thought that the Opposition would support a bill that is well thought out and that the Commissioner of Police supports. Instead, it is grandstanding and trying to make itself relevant. The Opposition is not relevant in this State at the moment.

This bill did not come out of my head or the heads of my staff members. We sat down and worked through what would be required in the event of terrorist action. The Government does not support the Opposition's amendments. We are absolutely amazed that the Opposition moved them. The Opposition has no basis for moving these amendments other than to appear to be tougher on police powers and terrorism than the Government. The Opposition is trying to appear to be tougher on terrorism and to be relevant in the process—it is clearly not relevant. The powers conferred in this bill have been discussed with the police. The police believe that the powers are appropriate and they support them. The Government urges all honourable members to reject the Opposition's amendments.

Under proposed section 6 the powers can be used for 24 hours after an attack and can be extended to 48 hours, which is appropriate. If a further extension is required checks will be in place so that the Commissioner of Police will have to go back to the Minister for concurrence to extend those powersA fresh authorization could also be made under section 5 provided that process is gone through. The Opposition is grandstanding by saying that it is giving more powers to police with these amendments. Given that we have to strike a sensible balance between what are extraordinary powers—we admit they are extraordinary powers but we live in extraordinary times, which is why they are needed—and civil liberties, the Government's proposals are sensible.

The provisions contained in the bill with respect to search powers after an incident are a significant improvement on international legislation. I refer to the United Kingdom's Terrorism Act 2000. Unfortunately, the United Kingdom has had to deal with terrorism for a long time and it has developed mechanisms to respond to it. The powers that the Government is putting in place go further than those mechanisms, so clearly they have to be effective. For example, the powers in the United Kingdom allow only for post-incident cordoning off of areas for the purpose of managing the crime scene. We go one step further and enable the police to do a range of things. However, checks need to be put in place, and we have proposed sensible checks. As I have said, the ultimate test is that the Commissioner of Police supports this measure.

The Minister does not exercise operational police powers under the provisions of this bill. A number of members are either deliberately confused, as is the case with crossbench members, or they are ignorant, as is the case with Opposition members. The powers will be exercised by operational police. The Minister will assess whether the situation is one that requires the utilisation of these powers—he either concurs or vetoes. It is as simple as that. As I have already indicated, the bill provides oversight in relation to these powers. We want to get a sensible balance to manoeuvre through a difficult situation. Some of us want to extend police powers—my contributions to debate in this House show that I am on that side. However, in order for these powers to be accepted sensible checks need to be put in place. The checks the Government proposes are sensible and relate to an incident having occurred. There is reference to seven days before an incident because we need powers to try to prevent an incident.

We do not know when an incident may occur. If we have intelligence that an incident may occur at a location with a certain vehicle, by a certain type of individual, it makes sense to extend those powers for prevention purposes. If a terrorist event has already occurred, the police require powers to apprehend people responsible. The police have told me that 24 hours is sufficient, and it can be extended to 48 hours. If more time is required, they can present to the Commissioner the information that justifies a fresh authorisation of those powers. The extension will be granted if the information justifies it. Under those circumstances, no Minister would refuse that. They are sensible powers that provide a sensible balance between civil liberties and the need to protect our community. 4 December 2002 LEGISLATIVE COUNCIL 7689

I know that sensible members of the crossbench are inclined to support the Opposition's amendments, but I ask them not to. This bill is structured in this way for a number of reasons. We are seeking to put some constraints on the usage of the powers post an incident. In any event, the Commissioner of Police supports these powers in their current form. We need to get that balance. In no way does the 48-hour authorisation limit the police if they need additional powers to go forward. I ask honourable members to support the bill and to reject the grandstanding. I ask honourable members to support the Government. We need a continued bipartisan approach. I hope the Opposition will withdraw its amendments so that this bill can be passed in a bipartisan manner. The Premier has also indicated his support for what the Prime Minister is doing. We have tried to operate in a bipartisan manner. It is unfortunate that the Opposition is playing politics with respect to this bill. There is no rationale for these amendments.

The Opposition had its chance to reject the bill in the lower House. The Opposition should support the decision of the lower House to let the bill pass. If the Commissioner of Police wanted additional powers, I would be the first person to argue for them. I am not embarrassed or shy about coming into this House and asking for additional police powers. I am the last person who would seek to constrain the police when they need powers for operational purposes. This bill is sensible and it is what the police have asked for. It does not hinder their operations in any way. I ask honourable members to reject the Opposition's amendments to ensure that we maintain the balance between sensible police powers and civil liberties. Civil liberties are impinged by these proposals.

The Hon. Dr PETER WONG [3.39 p.m.], by leave: I move Unity Party amendments Nos 2 and 3 in globo:

No. 1 Page 6, clause 8, lines 8 and 9. Omit "a police officer above the rank of superintendent who is able to be contacted may". Insert instead "2 police officers above the rank of superintendent who are able to be contacted may jointly".

No. 2 Page 6, clause 9, line 21. Omit "48 hours". Insert instead "12 hours".

Amendment No. 2 will limit from 48 hours to 12 hours the time the powers will operate without civilian oversight. Amendment No. 3 provides that within that 12-hour limit another Minister can take the role of the Minister for Police under section 37 of the Constitution Act 1902. This is to preserve civilian control of the powers in the event that the Minister is unable to fulfil that role. I believe that the position adopted by both the Government and the Opposition is draconian because it takes away the rights of citizens. I am amazed—I was not here; I was upstairs—that the Minister mentioned that I played a racist card against Bob Carr or something to that effect.

The Hon. Charlie Lynn: You are a racist.

The Hon. Dr PETER WONG: Point of order: I ask the member to withdraw the remark.

The Hon. Charlie Lynn: I withdraw that.

The Hon. Dr PETER WONG: In fact, the Minister was not in the Chamber when I read the media release. At no time did I accuse the Premier or anybody of being a racist. I only mentioned Mr Carr's agenda of playing the terrorism card to instil fear in the citizens of New South Wales and to create his own Tampa. In the press release I referred to an Islamic woman who said that the Muslim community will be vilified and victimised even further as a result of the passing of this legislation. I fear for the safety of our women and children. If the Minister is genuine about this he should talk to the Islamic community and understand why they are so fearful of the Minister. Perhaps the Minister forgot to take his medication today.

Reverend the Hon. FRED NILE [3.41 p.m.]: The amendments moved by the Hon. Dr Peter Wong show the two extremes: The Unity Party is trying to reduce the time period down to only 12 hours, and the Opposition wants to increase the time period to seven days and 14 days. I agree with the Minister for Police in seeking to get a balance. In our view the Government has achieved that balance, although the Greens, the Hon. Peter Breen and others are attacking the bill as they believe it will make New South Wales a police state. The amendments moved by the Opposition indicate that the bill will not do that. That is the whole point. If honourable members were more dispassionate and objective I believe they would support this bill.

The Hon. HELEN SHAM-HO [3.43 p.m.]: If it is any comfort to the Minister for Police, I strongly oppose the Opposition's amendments Nos 1, 2 and 3. I think it is absolutely ludicrous. I must choose the lesser of two evils so I have chosen the Government's stand. As honourable members know, I support the police 7690 LEGISLATIVE COUNCIL 4 December 2002 having proper and necessary powers. I think the Opposition's amendments would take the position from bad to worse. The Government is bad enough; the Opposition is worse. Having listened to the Leader of the Opposition, I do not think he believes in accountability. I accept the Minister's point of view that the police commissioner can come back after two days and get another authorisation. In a sense, that is a sensible check. There must be a check because there is potential for an abuse of this power. As honourable members know, I will move to add another clause to provide a further review of the police Minister's power. In this case, the Opposition trying to outdo the Government is absolutely unacceptable. I urge the crossbenchers and Government members to oppose the Opposition's amendments.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [3.44 p.m.]: The Australian Democrats believe that the effect of these amendments is to increase the power of the Minister vis-a-vis senior police. Theoretically, in the normal course of events that would increase accountability, and as such we would support it. In the case of this police Minister I have doubts. Indeed, he did not even bother to respond on my previous amendment about the need for reasonable grounds. My amendment did not even warrant a reply from this arrogant man. Indeed, he trifles with the Chamber when he answers questions during question time. The idea that he is a greater safeguard than senior police is a dubious proposition, although I take the Opposition's point that it is probably attempting to achieve a more accountable system. In terms of this Minister, I do not know whether it is succeeding with its amendments.

The Hon. MICHAEL COSTA (Minister for Police) [3.45 p.m.]: The Government does not support the amendments moved by the Hon. Dr Peter Wong. As I have said all along, the reality is that 48 hours is a sensible time frame. It does not mean that it must be 48 hours. Clearly, the police can get the authority within 12 hours, five minutes, 10 minutes or whatever is required, but we must have a sensible outer limit. What happens if, unfortunately, the Minister for Police is subject to a terrorist incident and is killed in that incident? We must think of all contingencies. We must have a system in place that enables the police commissioner to exercise these powers without frustration.

The Hon. Greg Pearce: What happens if the police commissioner is killed?

The Hon. MICHAEL COSTA: If the Hon. Greg Pearce read the bill he would know that it would go down the chain of command to the deputies, and then go all the way down. The honourable member should read the bill and understand that. I think the 48 hours is a sensible provision. It means that we plan for all contingencies. The Government opposes the amendments.

Question—That Greens amendment No. 1 be agreed to—put.

The Committee divided.

Ayes, 8

Mr Breen Ms Rhiannon Tellers, Mr Cohen Mrs Sham-Ho Dr Chesterfield-Evans Mr R. S. L. Jones Dr Wong Mr Corbett

Noes, 25

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

Question resolved in the negative.

Greens amendment No. 1 negatived.

Greens amendment No. 2 negatived. 4 December 2002 LEGISLATIVE COUNCIL 7691

Greens amendment No. 6 negatived.

Question—That Opposition amendments Nos 1, 2 and 3 be agreed to—put.

The Committee divided.

Ayes, 15

Mrs Forsythe Mr Lynn Mr Samios Mr Gallacher Mr Oldfield Miss Gardiner Mrs Pavey Mr Gay Mr Pearce Tellers, Mr Harwin Dr Pezzutti Mr Colless Mr M. I. Jones Mr Ryan Mr Jobling

Noes, 25

Mr Breen Mr Egan Mrs Sham-Ho Dr Burgmann Mr Hatzistergos Ms Tebbutt Ms Burnswoods Mr R. S. L. Jones Mr Tsang Dr Chesterfield-Evans Mr Macdonald Mr West Mr Cohen Reverend Moyes Dr Wong Mr Corbett Reverend Nile Mr Costa Mr Obeid Tellers, Mr Della Bosca Ms Rhiannon Ms Fazio Mr Dyer Ms Saffin Mr Primrose

Question resolved in the negative.

Opposition amendments Nos 1 to 3 negatived.

Unity amendment No. 2 negatived.

Unity amendment No. 3 negatived.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [4.02 p.m.], by leave: I move Australian Democrats amendments 2 to 5 in globo:

No. 2 Page 5, clause 5, line 6. Omit "is satisfied that there are reasonable grounds for believing". Insert instead "believes on reasonable grounds".

No. 3 Page 5, clause 6, line 15. Omit "is satisfied that there are reasonable grounds for believing". Insert instead "believes on reasonable grounds".

No. 4 Page 5, clause 7, lines 26-29. Omit all words on those lines. Insert instead "particular kind, described in the authorisation,".

No. 5 Page 5, clause 7, line 31. Omit " vehicle or area". Insert instead "or vehicle".

As I have said previously, the current test of "suspicious grounds" in the bill is flawed. It does not require the police officer to have reasonable grounds for suspicion. The Democrats amendments are aimed at ensuring that the current test of suspicion applies. A police officer must be convinced that there are reasonable grounds for suspicion before apprehending a suspect. The test in the bill is flawed because it does not require the police officer to entertain that belief on reasonable grounds. The Democrats amendments will fix that flaw. Amendment No. 5 reduces the power from one applicable to a whole area, and confines it to a vehicle. So the amendments somewhat limit police powers and introduce a test of reasonableness. I commend the amendments to the Committee.

The Hon. MICHAEL COSTA (Minister for Police) [4.04 p.m.] The Government does not support the Democrats amendments.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [4.04 p.m.]: Minister, I would like the reasons. This sort of arrogance is quite offensive. 7692 LEGISLATIVE COUNCIL 4 December 2002

Ms LEE RHIANNON [4.05 p.m.]: The Greens strongly support the Democrats amendments. I am concerned about the attitude of the police Minister. Statements have been made outside this Chamber that members should not even move amendments. That is clearly our job if we wish to correct a problem with the bill. Those comments amount to intimidation of members. Now the Minister chooses to ignore his moral responsibility to respond. His attitude is insulting. It belittles members and this Chamber. Clearly, the Minister is not up to his job.

Question—That the amendments be agreed to—put.

The Committee divided.

Ayes, 8

Mr Breen Mr Corbett Mr R. S. L. Jones Ms Rhiannon Mrs Sham-Ho Dr Wong Tellers, Dr Chesterfield-Evans Mr Cohen

Noes, 29

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

Question resolved in the negative.

Amendments negatived.

The Hon. Dr PETER WONG [4.12 p.m.]: I move Unity amendment No. 1:

No. 1 Page 6, clause 8, lines 8 and 9. Omit "a police officer above the rank of superintendent who is able to be contacted may". Insert instead: "2 police officers above the rank of superintendent who are able to be contacted may jointly."

Amendment No. 1 will ensure that two police officers above the rank of superintendent will be required to bring the additional powers of this bill into use. This follows the usual protocol in these circumstances where the delegation of major powers descends the hierarchical ladder. It is intended to safeguard against inappropriate decision making.

The Hon. MICHAEL COSTA (Minister for Police) [4.12 p.m.]: This amendment is a needless complication and the Government cannot support it. Apart from the Commissioner of Police and two deputies, the only officers who may otherwise give an authorisation are the senior Assistant Commissioner of Police and seven officers who hold assistant commissioner rank, namely, five regional commanders, the Commander of the State Crime Command, and the Assistant Commissioner, Operations Support. The amendment suggests that two senior police officers will squabble about the scope of an authorisation, which is not the case. The Government does not support any of the amendments proposed by the Unity party.

Amendment negatived.

Ms LEE RIANNON [4.13 p.m.], by leave: I move Greens amendments Nos 3 and 4, in globo:

No. 3 Page 6, clause 10, line 26. Omit "orally or". Insert instead "only".

No. 4 Page 6, clause 10, lines 27 and 28. Omit all words on those lines. 4 December 2002 LEGISLATIVE COUNCIL 7693

These amendments seek to stipulate that authorisation to exercise the special powers shall be given in writing only, and not orally. As the bill stands, it allows authorisation to be given either orally or in writing. There are very sensible reasons why oral authorisation should not be allowed. These special powers have far-reaching implications for the people of New South Wales.

A verbal authorisation involves significantly less accountability than a written version and is also less clear. Surely we need clarity of direction during emergencies. The authorisation must describe the general nature of the terrorist threat, and name or describe the person, vehicle or area targeted. Surely that information should be set down in writing. The task would not be time consuming and it would not be difficult in this era of high- tech equipment. It could be written as quickly as a verbal direction is given. Surely such vital information should be provided in writing to remove any potential for miscommunication or misunderstanding. When exercising such far-reaching powers, it is crucial for the details to be right.

Up to this point, the Minister has shown reluctance to enter into debate. I hope that he will give a clear response and agree to the Greens amendments, which are very reasonable and will strengthen the intent of the bill, if the intent of the bill is to make this State safer. But honourable members are beginning to wonder more and more about the true intent to of the Government with regard to this legislation, judging by the responses from the Government. Given the resources of the NSW Police, it should not be difficult for the commissioner or the deputy commissioner to fax a handwritten authorisation to a relevant police station or to command headquarters. It is a small step that will go a long way towards ensuring that the powers are exercised effectively, accurately and responsibly.

Reverend the Hon. FRED NILE [4.16 p.m.]: The Christian Democratic Party does not support these amendments because in some circumstances police officers could be in a position where they have no ability to write, such as while they are in a police vehicle or while engaged in other police activities. The passing of any amendment that restricts the ability of an officer to act rapidly, if not instantly, would not be in the interests of the public.

The Hon. MICHAEL COSTA (Minister for Police) [4.16 p.m.]: If the Greens had actually read the bill, they would have realised that it provides that authorisation may be given in writing or orally, but that, if it is given orally, it must be followed up in writing as soon as is practicable. That will create the necessary paper trail. Authorisation in writing is already provided by the bill and a paper trail will be created. The Government does not support these amendments.

Ms LEE RHIANNON [4.13 p.m.]: The key words are "as soon as is practicable". The provision will not provide direction on all the issues that require clear instruction so that the authorities will know what they are targeting and how it will be targeted. Those instructions can be made clear and that can be done very quickly. The Minister still has not responded to the key issue of why the Government is blocking this amendment. Authorisation can be committed to writing as quickly as a verbal instruction can be given, and an authorisation in writing would not be misinterpreted.

Question—That the amendments be agreed to—put.

The Committee divided.

Ayes, 5

Mr Cohen Ms Rhiannon Dr Wong Tellers, Mr Breen Mr R. S. L. Jones

Noes, 26

Dr Chesterfield-Evans Mr Gay Mr Pearce Mr Colless Mr Harwin Dr Pezzutti Mr Ryan Mr Corbett Mr M. I. Jones Mr Samios Mr Costa Mr Lynn Mrs Sham-Ho Mr Dyer Mr Macdonald Mr Tsang Ms Fazio Reverend Dr Moyes Mrs Forsythe Reverend Nile Tellers, Mr Gallacher Mr Obeid Mr Jobling Miss Gardiner Mrs Pavey Mr Primrose 7694 LEGISLATIVE COUNCIL 4 December 2002

Question resolved in the negative.

Amendments negatived.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [4.22 p.m.]: I move Australian Democrats amendment No. 6:

No. 6 Page 6, clause 10, line 33. Omit ", vehicle or area". Insert instead "or vehicle".

The amendment would prevent a whole area being declared a terrorist area and police having powers related to that large area. Instead the power would be restricted to a vehicle.

The Hon. MICHAEL COSTA (Minister for Police) [4.23 p.m.]: I know that I have been criticised for not taking the Democrats seriously but how can one take seriously an amendment that effectively negates a third of the bill? Clearly, police need to have the ability to search an area if they have had intelligence that the area may well contain a bomb or something that a terrorist would use. We cannot take these people seriously because they do not think through what they are talking about. Passage of the amendment would make this a pale shadow of an anti-terrorist bill. Therefore the Government cannot support the amendment.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [4.23 p.m.]: How do the police manage to search anything at the moment? Gosh, without this word they are gone!

Ms LEE RHIANNON [4.24 p.m.]: The Minister hit the nail on the head: the bill would be fundamentally changed if the amendment were adopted. This bill is not necessary. So many of its provisions are already in common law. They are in case law. The police can already search on very limited grounds of suspicion. They are able to carry out their exercises and their searches and follow through on all sorts of concerns. The Minister has gone too far with this bill, engaging in a whole number of scare tactics. The Democrats amendment is very responsible.

Amendment negatived.

The Hon. IAN COHEN [4.25 p.m.]: I move Greens amendment No. 5:

No. 5 Page 7. Insert after line 1:

11 Notification of Premier and Attorney General

The police officer who gives an authorisation must notify the Premier and the Attorney General of the authorisation as soon as is reasonably practicable after the giving of the authorisation.

This amendment concerns the notification of the Premier and the Attorney General. A police officer who gives an authorisation must notify the Premier and Attorney General as soon as is reasonably practicable after the authorisation has been given. This broadens the range of persons who are aware of the authorisation and therefore lessens the likelihood of an inappropriate authorisation or an abuse of power. I commend Greens amendment No. 5 to the Chamber.

The Hon. MICHAEL COSTA (Minister for Police) [4.26 p.m.]: Again, I wish the Greens would read the bill. If they are opposed to the bill they ought to be up front about it rather than constantly talk about the need to understand terrorism and the need to deal with terrorism and try to have it both ways. They are totally opposed to the bill. They should not seek to insert unworkable amendments. This amendment is unworkable. It means the Commissioner of Police would have to chase around to find the Premier and the Attorney General rather than conduct police operations to prevent a terrorist act. It is silly. It again shows that the Greens are about grandstanding.

The Hon. IAN COHEN [4.26 p.m.]: It is a shame that the Minister for Police does not comprehend the nuances of making legislation, not that I set myself up to be any expert. His lack of experience, combined with his arrogance, shows so clearly. The words I used, and I repeat them, were "as is reasonably practicable after the authorisation has been given". The Minister earlier defended a similar situation. The amendment does not say that it has to be done before the action can be undertaken. It includes the Premier and the Attorney General as checks and balances in the system. Although the Greens for obvious reasons oppose the bill, under the Westminster system that does not stop us from also putting forward amendments that will improve the bill. 4 December 2002 LEGISLATIVE COUNCIL 7695

The Hon. Michael Costa: By removing a third of it.

The Hon. IAN COHEN: I do not know how the Minister has worked out that a third of the bill would be removed. Is anyone who opposes his single-minded development of this policy a terrorist?

Question—That the amendment be agreed to—put.

The Committee divided.

Ayes, 8

Mr Breen Mr Corbett Tellers, Dr Chesterfield-Evans Ms Rhiannon Mr R. S. L. Jones Mr Cohen Dr Wong Mrs Sham-Ho

Noes, 24

Mr Colless Mr M. I. Jones Mr Ryan Mr Costa Mr Lynn Mr Samios Mr Dyer Mr Macdonald Mr Tsang Ms Fazio Reverend Dr Moyes Mr West Mrs Forsythe Reverend Nile Mr Gallacher Mr Obeid Miss Gardiner Mrs Pavey Tellers, Mr Gay Mr Pearce Mr Jobling Mr Harwin Dr Pezzutti Mr Primrose

Question resolved in the negative.

Amendment negatived.

Ms LEE RHIANNON [4.30 p.m.]: I move Greens amendment No. 7:

No. 7 Pages 7 and 8, clause 13, line 26 on page 7 to line 3 on page 8. Omit all words on those lines. Insert instead:

13 Court to take account of certain matters

(1) In any challenge, review or action to quash or call into question an authorisation given under this Part, a court must, in determining whether to grant a remedy, take into account the likelihood of an increased risk of a terrorist act if any such remedy is granted.

(2) Subsection (1) applies in addition to any other matter that the court is required to take into account. The amendment relates to clause 13, and that is where the Government's legislation comes unstuck. If this amendment were to pass, this proposed legislation would be kept on the rails. I will be very interested to hear the Minister's comments on this matter. I wish to share with honourable members the comments made by the Premier earlier today. The amendment seeks to delete the existing clause 13 and replace it with a more responsible provision. Currently, clause 13 states:

… an authorisation (and any decision of the Police Minister under this Part with respect to the authorisation) may not be challenged, reviewed, quashed or called into question on any grounds whatsoever before any court, tribunal, body or person in any legal proceedings, or restrained, removed or otherwise affected by proceedings in the nature of prohibition or mandamus.

In other words, clause 13, as it stands, cuts the courts out completely from overseeing the exercise of new police powers. It is an unreasonable provision and an excessive curtailment of the vital check exercise by the judiciary on executive power. At a press conference this morning Premier Carr played dumb on the separation of powers—and that is not like him. It shows, however, that the Government knows that it has real problems with this clause. The Premier said:

We are accountable to the court of public opinion.

What a way of fudging it! That approach might work on the evening news but it will not save the bill. The Premier is effectively denying that the Parliament must pass laws that are lawful. The Minister for Police talks about unlawful protests. Remember all those great speeches in this House designed to associate the Greens with 7696 LEGISLATIVE COUNCIL 4 December 2002 violent protests and to belittle protesters exercising their legitimate rights? Remember all that talk about unlawful protests? The Minister for Police is attempting to usher unlawful legislation through this House. I will be interested to hear what the Minister has to say about that. The Premier also said:

All our legal advice is that this legislation is valued. We do believe it is legal.

I will get back to the Premier. He is now responding to advice released by the Greens today that this bill is unconstitutional. Well, Mr Premier, it is quite possible you will have your day in court to defend this shoddy legislation before the election. The Greens amendment seeks to replace clause 13 with a provision stating that in any challenge, review or action to quash or call into question an authorisation, a court must take into account the likelihood of an increased risk of terrorist attack if any such remedy is granted. In other words, the courts would still be able to oversee the exercise of the powers but in doing so would have to consider the risk that granting a remedy to an exercise of the powers would increase the chance of a terrorist attack.

This more responsible provision will retain a judicial check on executive power whilst balancing it against the need to prevent terrorist attacks. The clause does nothing to enhance the speed of security response to a valid terrorist threat but does everything to elevate above the law the Minister for Police and his counterterrorism co-ordination. That is why the Greens believe this bill is unconstitutional. Let us remember that centuries of Westminster tradition separating the powers of the legislature and the judiciary are under attack here. That is, in essence, what is happening. Destroying our democratic rights in the struggle against terrorism is like throwing the baby out with the bathwater. After bullying to pass the bill, and without proper debate, the Government may face the humiliation of having the Supreme Court of New South Wales strike out this bill. By adopting the Greens amendment the bill would be saved. I look forward to hearing the Minister's comments.

The Hon. HELEN SHAM-HO [4.36 p.m.]: I had intended to move an amendment to omit clause 13 in its entirety because it proposes to give the Minister for Police unfettered power. As the clause stands, no-one will be able to challenge this power, and that offends the basic tenet of our legal system, in which there are checks and balances between the executive, the judiciary and the legislature. Ms Lee Rhiannon referred to the separation of power. The judicial review of government action is central to our democratic society. It must not be sacrificed, not even in these uncertain and unstable times.

I am not sure whether the bill is unconstitutional, as Ms Lee Rhiannon pointed out, but given that it proposes to confer very broad, indeed extraordinary, powers on police, it is important that the new powers are subject to judicial review. Many of these extra capabilities will involve infringing the civil liberties of citizens of this State—I refer to the powers to stop and search suspicious people, investigate vehicles and search premises without a warrant. With no avenue for judicial review police will essentially be answerable only to themselves. With such obvious potential for abuse, the scrutiny of the courts is absolutely essential.

As I indicated in my contribution to the second reading of the bill, both the Law Society of New South Wales and the New South Wales Young Lawyers Human Rights Committee have already expressed similar opposition to clause 13. Justice John Dowd, speaking on behalf of the Australian branch of the International Commission of Jurists, and journalist Michael Kingston, have also voiced concerns about this clause. With so many people expressing their concerns about it I would think that the Government and the Opposition would support an amendment to omit it.

I understand that we are living in new and dangerous times. However, we cannot allow our democratic rights to be lost. This would only mean that terrorists have succeeded in further diminishing our quality of life. Therefore, clause 13 should be removed. The second part of the amendment is also sensible amendment and I support it.

The Hon. Dr PETER WONG [4.40 p.m.]: I move Unity amendment No. 5:

No. 5 Page 7, clause 13, lines 27 and 28. Omit "An authorisation (and any decision of the Police Minister under this Part with respect to the authorisation)". Insert instead "The giving of an authorisation".

This amendment will tighten up and clarify the intent of this part of the bill. Legal advice suggests that unamended the immunities of clause 13 could extend not just to the decision-making process but also to the execution of the authority, and if so would limit any review or oversight to such actions with only the Police Integrity Commission [PIC]. This would limit at law individual actions against any wrongdoing in the execution of an authority. 4 December 2002 LEGISLATIVE COUNCIL 7697

The Hon. PETER BREEN [4.41 p.m.]: I move the following amendment:

Page 8, clause 13, line 3. Insert the words "or the Independent Commission Against Corruption Act 1988" after "Commission Act 1996."

The purpose of the amendment is to introduce the Independent Commission Against Corruption [ICAC] as a brake on the Minister's power. The advice of the Crown Solicitor tabled by the Minister confirms the meaning of the words in the bill, namely that a legal proceeding under the Police Integrity Commission Act is an exception to the principle of special power in the hands of the commission and the Minister. But the Minister is not a police officer, and the authority of the PIC to investigate would depend on the conduct complained of involving a police officer. The advice does not say whether the PIC could investigate a matter involving the misuse of executive power by the Minister for Police. This is the area of greatest concern, which can be allayed only by allowing the Independent Commission Against Corruption to exercise jurisdiction over the Minister, as contemplated by the amendment.

The Independent Commission Against Corruption Act 1988 sets out the functions of the commission. The paramount concern of the legislation is to protect the public interest and prevent breaches of public trust. As the Minister said, the main function of the ICAC is to investigate alleged corrupt activity involving public officials, but the Act also provides that the principle function of the ICAC includes "the power to investigate any matter referred to the commissioner by both Houses of Parliament." When the Opposition originally proposed the amendment it clearly had in mind the excellent work of the Greiner Coalition Government, which set up the ICAC. The ICAC legislation makes the Executive Government, including the Minister for Police, accountable to the Parliament. For this reason the amendment should be supported.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [4.43 p.m.]: I also had intended to move an amendment in a form similar to that circulated by the Hon. Helen Sham-Ho, and that is to delete clause 13, which is in reality the police state clause. It provides effectively that the court cannot challenge anything the Minister does. In essence that is the difference between a State that is responsible to the judiciary in a balance and one in which the Minister for Police has absolute power. Clause 13 is probably the most offensive clause in this offensive bill. The Greens moved an amendment to ensure that the assessment by the judiciary does not worsen the risk of terrorism—and that is most sensible. The courts must bear that risk in mind. I am inclined to support that amendment. Clause 13 is very important; it constitutes the difference between a police state and a balanced judicial system.

The Hon. IAN COHEN [4.44 p.m.]: As has been said, clause 13 is essentially the centre of the transfer of power to create a police state. I do not resile from that statement. It leaves the door open for the erosion of civil society. We must safeguard our civilian population. Any responsible government has an obligation to respond in a forthright manner. However, the amendment seeks to deliver immense power into the hands of the Minister for Police, which could, in turn, result in a state of emergency similar to that faced by Joh Bjelke- Peterson in Queensland. I support the amendment moved by Ms Lee Rhiannon, and I commend the amendments moved by other crossbenchers who are concerned about this matter. We cannot take this matter too seriously. The Government and the Minister for Police are laughing this off; they do not comprehend the concern expressed from educated legal sections of the community. This clause is extremely draconian. It should be amended to accord with the values of civil society.

The Hon. RICHARD JONES [4.46 p.m.]: I support the comments of my colleagues on the crossbench. Clause 13 is most offensive. We have witnessed the Minister acting erratically and emotionally. I understand that he may be on medication. We are giving powers to a Minister who is not suited to be a Minister. It is quite dangerous to give such powers to a Minister, particularly this Minister.

The Hon. PETER BREEN [4.47 p.m.]: The people I have spoken to from the Council for Civil Liberties, for example, have suggested that Australia is a party to the International Covenant for Civil and Political Rights, which provides certain basic protections for people who are arrested. The legislation flies in the face of those protections. That is the basis on which they believe it can be rendered liable to a challenge. The Constitution provides certain protections for the people of Australia, particularly the foreign affairs power that gives the Commonwealth Government the power to enter into covenants, such as the International Covenant for Civil and Political Rights. Because the bill flies so seriously and flagrantly in the face of that covenant, the legislation is liable to challenge. That fact should not be understated.

The Hon. MICHAEL COSTA (Minister for Police) [4.48 p.m.]: The last point is the essence of the argument. The Government has already outlined the accountability and review mechanisms available under the 7698 LEGISLATIVE COUNCIL 4 December 2002 bill. I will not restate them. I have been advised that clause 13 is modelled on legislation already in place for the Casino Control Act. A section of the crossbenchers continually complain that I do not take them seriously. But it is extremely difficult to take people seriously when they grandstand for their own political gain.

The Hon. Ian Cohen: Point of order: I ask the Minister to refrain from presuming that everything the Greens do is somehow grandstanding for the media. Even if people believe we are wrong, I and many others in the House take very seriously the erosion of civil rights, which I believe will be the result of this bill. I find it extremely offensive that the Minister can think, talk and act only for the media.

The CHAIRMAN: Order! There is no point of order.

The Hon. MICHAEL COSTA: I have to respond to the proposition raised by the honourable member. I have outlined for the crossbench members who are opposed to this legislation that a precedent exists for this type of provision in an Act of Parliament. That is a sensible point to make. Honourable members may laugh about the fact that it already exists in other legislation, but that does not mean it is invalid. Their only response to these matters has been invective and rhetoric about police states. If they think that is a substantive argument, they are kidding themselves. These provisions are sensible and have been well thought out; there is a balance.

In relation to the point consistently made about the Police Integrity Commission [PIC], I reiterate that the PIC has broader scope to investigate than that possessed by the Independent Commission Against Corruption. The PIC is not limited to investigating only police conduct. Section 130(2) of the Police Integrity Commission Act provides that the PIC may investigate and otherwise deal with a matter involving the conduct of public officials provided that that is done in the context of matters that also involve police officers. Clearly, the exercise of this power would do that. "Public officials" has the same meaning as in the Independent Commission Against Corruption Act and includes a Minister of the Crown. Therefore, the PIC may, if it sees fit and in accordance with its functions under the Police Integrity Commission Act, examine the Minister's decision to concur with, confirm or revoke an authorisation.

I have made that point three or four times during this debate. Obviously, honourable members are sticking to set scripts because they do not understand the context of the debate or someone else has prepared their contributions. I make it clear again that the police and not the Minister for Police will exercise these powers. The Minister will deal with the authorisation process. The powers will be exercised by the appropriate people—the police. I will not repeatedly restate the point because the crossbench members who oppose this legislation are not prepared to deviate from the scripts prepared by their researchers.

Ms LEE RHIANNON [4.52 p.m.]: The Minister has stated that the legislation covering the Casino Control Authority contains the same provision. I find that interesting given that clause 13 removes the courts' ability to oversee the exercise of the new police powers. How will this aspect of the casino legislation operate and in what section is it? It is extraordinary. The Minister must be more precise with his references when supporting his argument, otherwise it looks like a con job. He repeatedly belittles the ability of crossbench members. His main argument against the Greens' proposition to delete clause 13 and replace it is that this is nothing new and already exists in the casino legislation.

The Hon. Michael Costa: That is not my argument.

Ms LEE RHIANNON: I will be interested to hear the Minister's argument. That is the basis of his attempt to win the support of crossbench members. Will the Minister explain the reference to the casino legislation?

The Hon. MICHAEL COSTA [4.53 p.m.]: I do not intend to go into any further detail because obviously the Hon. Lee Rhiannon does not understand the point. I said that the Government's main argument is outlined in the accountability and review mechanisms in the bill. She tried to make a spurious point about the Government relying on the casino legislation. I merely made the point in passing that that Act allows the commissioner to ban someone from a casino on the basis of intelligence. That is similar to what is proposed in this bill.

The Hon. Dr PETER WONG [4.54 p.m.]: The Minister is not aware of the seriousness of clause 13. Judicial oversight of police powers is to be removed. This is serious business; it is not grandstanding. Concern has been expressed by many lawyers and the Law Society of New South Wales. 4 December 2002 LEGISLATIVE COUNCIL 7699

The Hon. PETER BREEN [4.54 p.m.]: The Minister is seeking to draw a distinction between his position and that of the Commissioner of Police. Clause 9 of the bill clearly states:

An authorisation may only be given with the concurrence of the Police Minister—

He has as much power as the commissioner under this legislation. His attempts to diminish the value of his power are misleading. The Crown Solicitor's advice makes no reference to the ICAC. The Minister has referred to and is relying on that advice regarding the accountability mechanism in the legislation, but it does not give any indication of the position of the ICAC under the amendment I have moved. The amendment is very important because it makes the commissioner's activities accountable to this Parliament. As it stands, the Minister is not accountable to anyone. That is the reason the clause is a problem and that it will be found deficient if the amendment is rejected. If the Minister were accountable to this Parliament, there would be no problem about the legislation being struck down in a court and it would have the community credibility that it would not otherwise have. I commend my amendment.

Question—That Greens amendment No. 7 be agreed to—put.

The Committee divided.

Ayes, 8

Mr Breen Mr R. S. L. Jones Tellers, Mr Cohen Ms Rhiannon Dr Chesterfield-Evans Mr Corbett Dr Wong Mrs Sham-Ho

Noes, 28

Ms Burnswoods Mr Hatzistergos Dr Pezzutti Mr Colless Mr M. I. Jones Mr Ryan Mr Costa Mr Lynn Ms Saffin Mr Dyer Mr Macdonald Ms Tebbutt Ms Fazio Reverend Dr Moyes Mr Tsang Mrs Forsythe Reverend Nile Mr West Mr Gallacher Mr Obeid Miss Gardiner Mr Oldfield Tellers, Mr Gay Mrs Pavey Mr Jobling Mr Harwin Mr Pearce Mr Primrose

Question resolved in the negative.

Greens amendment No. 7 negatived.

Unity amendment No. 5 negatived.

Question—That the Reform the Legal System amendment be agreed to—put.

The Committee divided.

Ayes, 8

Mr Breen Mr Cohen Mr Corbett Mr R. S. L. Jones Ms Rhiannon Dr Wong Tellers, Dr Chesterfield-Evans Mrs Sham-Ho 7700 LEGISLATIVE COUNCIL 4 December 2002

Noes, 28

Ms Burnswoods Mr Hatzistergos Dr Pezzutti Mr Colless Mr M. I. Jones Mr Ryan Mr Costa Mr Lynn Ms Saffin Mr Dyer Mr Macdonald Ms Tebbutt Ms Fazio Reverend Dr Moyes Mr Tsang Mrs Forsythe Reverend Nile Mr West Mr Gallacher Mr Obeid Miss Gardiner Mr Oldfield Tellers, Mr Gay Mrs Pavey Mr Jobling Mr Harwin Mr Pearce Mr Primrose

Question resolved in the negative.

Reform the Legal System amendment negatived.

Ms LEE RHIANNON [5.05 p.m.]: I move Greens amendment No. 8:

No. 8 Page 8, clause 14, lines 7 and 8. Omit all words on those lines.

This amendment seeks to delete clause 14 (2), which states that a police officer may exercise special powers whether or not the officer has been provided with, or notified of, the terms of the authorisation. In other words, under this bill as it stands, an officer may exercise special powers even though he or she is unaware of the crucial information contained in the authorisation, namely, the general nature of the terrorist threat and the nature or description of the person, vehicle or area targeted by the authorisation. It is extraordinary that a police officer could be sent into a terrorist threat situation armed with special powers but without knowing the nature of the threat or what he or she is looking for.

Apart from being nonsensical, this provision is clearly dangerous for the police involved and also risky in terms of the responsible exercise of the powers. I ask the Minister how he believes this will play out for police officers, and how he will minimise the potential harm that police officers will be exposed to because insufficient information is provided to them.

The Hon. MICHAEL COSTA (Minister for Police) [5.08 p.m.]: This is another attempt by the Greens to gut the Terrorism (Police Powers) Bill. It is quite clear that officers who do not receive advice, as may be the case in many circumstances at present, can operate under the direction of a commander who is acting in accordance with the authorisation. That is the normal chain of command in any police or similar structure. I do not understand the point of the amendment, other than that it will create legal minefields for officers who are seeking to protect our community. There is no doubt that the amendment plays into the hands of terrorists.

Amendment negatived.

Question—That clause 13 be agreed to—put.

The Committee divided.

Ayes, 22

Ms Burnswoods Mr Hatzistergos Dr Pezzutti Mr Colless Mr M. I. Jones Mr Ryan Mr Costa Mr Lynn Mr Tsang Mr Dyer Reverend Dr Moyes Mr West Ms Fazio Reverend Nile Mr Gallacher Mr Obeid Tellers, Miss Gardiner Mr Oldfield Mr Jobling Mr Gay Mrs Pavey Mr Primrose

Noes, 8

Dr Chesterfield-Evans Ms Rhiannon Tellers, Mr Cohen Mrs Sham-Ho Mr Breen Mr R. S. L. Jones Dr Wong Mr Corbett

Question resolved in the affirmative.

Clause 13 agreed to.

Part 2 agreed to. 4 December 2002 LEGISLATIVE COUNCIL 7701

Part 3

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [5.15 p.m.], by leave: I move Australian Democrats amendments Nos 7 to 10 in globo:

No. 7 Page 9, clause 16, lines 14 and 15. Omit all words on those lines. Insert instead "reasonable grounds is the target of an authorisation.".

No. 8 Page 10, clause 17, lines 6 and 7. Omit all words on those lines. Insert instead "reasonable grounds is the target of an authorisation.".

No. 9 Page 10, clause 18, lines 21 and 22. Omit all words on those lines. Insert instead "on the vehicle is the target of an authorisation.".

No. 10 Page 10, clause 19, lines 31 and 32. Omit all words on those lines. Insert instead "the target of an authorisation may be in the premises.".

These amendments address the notion that a whole area is deemed an authorised area in terms of police power, which we do not believe should occur. The amendments effectively narrow the scope of the bill so that it does not apply to whole areas. Police will still have the power to deal with individuals. The amendments simply limit the scope of the bill, which on my reading of it could apply to the whole of the State.

The Hon. Dr BRIAN PEZZUTTI [5.16 p.m.]: It is a good thing that the Opposition is here in force today to ensure that some of these unnecessary amendments are defeated. Despite the continuous onslaught by the Minister, both inside and outside the House, only 10 members of the Labor Party are in the Chamber to support this legislation.

The Hon. PETER PRIMROSE [5.17 p.m.]: As the Hon. Dr Brian Pezzutti would be aware, there is a major problem in the Parliament with regard to access to lifts and the electricity supply to the building, and there are also serious bushfires. Following discussion and agreement between the Opposition Whip and me, we have been quite reasonable in accommodating members who have experienced difficulty getting to the Chamber or have other concerns related to the fires. In those circumstances it is not appropriate to seek to score points on that matter.

The CHAIRMAN: Order! That is the case. However, both comments were out of order because they had nothing to do with the measure under consideration. Amendments Nos 1 and 2 of the Hon. Richard Jones conflict with Australian Democrats amendments Nos 7 to 10. I ask the Hon. Richard Jones to move those amendments in globo so they can be debated together.

The Hon. RICHARD JONES [5.18 p.m.], by leave: I move my amendments Nos 1 to 6 in globo:

No. 1 Page 9, clause 16, line 15. Insert "and the police officer suspects on reasonable grounds that exercise of the power under this section in relation to the person may prevent a terrorist act or may assist in apprehending the persons responsible for committing a terrorist act" after "authorisation".

No. 2 Page 10, clause 17, line 7. Insert "and the police officer suspects on reasonable grounds that exercise of the power under this section in relation to the person may prevent a terrorist act or may assist in apprehending the persons responsible for committing a terrorist act" after "authorisation".

No. 3 Page 10, clause 17. Insert after line 14:

(4) A police officer who detains a person for a search must not detain the person any longer than is reasonably necessary for the purpose of the search.

No. 4 Page 10, clause 18, line 22. Insert "and the police officer suspects on reasonable grounds that exercise of the power under this section in relation to the person may prevent a terrorist act or may assist in apprehending the persons responsible for committing a terrorist act" after "authorisation".

No. 5 Page 10, clause 18. Insert after line 24:

(3) A police officer who detains a vehicle for a search must not detain the vehicle any longer than is reasonably necessary for the purpose of the search.

No. 6 Page 11, clause 23, line 29. Omit "if requested to do so". Insert instead "unless the urgency of the circumstances would make it unreasonable to do so".

Amendments Nos 1 to 3 provide that the application of the powers in the bill to people or vehicles who are not the target of an authorisation should be predicated on police forming a suspicion on reasonable grounds that the 7702 LEGISLATIVE COUNCIL 4 December 2002 powers must be exercised to prevent a terrorist attack or to apprehend the persons responsible for committing a terrorist attack.

Amendments Nos 4 and 5 provide that a police officer who detains a person or a vehicle for a search must not detain the person or vehicle any longer than is reasonably necessary for the purpose. The amendments are consistent with section 204 of the recently passed Law Enforcement (Powers and Responsibilities) Bill. Amendment No. 6 provides that a police officer exercising powers under this bill must supply his or her name, place of duty and reason for exercising the power, unless the urgency of the circumstance would make it unreasonable to do so. Currently the officer must provide this information only if requested to do so.

The Hon. MICHAEL COSTA (Minister for Police) [5.20 p.m.]: The Government cannot support any of the amendments, which go to the heart of the bill.

The Hon. Dr Brian Pezzutti: You can but you won't.

The Hon. MICHAEL COSTA: The Government will not support any of the amendments, which go to the heart of the bill. In fact, these amendments will limit the ability of police to use their powers in a number of scenarios in which we believe they should apply if intelligence is available.

The CHAIRMAN: Order! Amendment No. 6 of the Hon. Richard Jones conflicts with amendment No. 12 of the Hon. Dr Arthur Chesterfield-Evans and with amendment No. 10 of the Greens. I will therefore ask the Hon. Dr Arthur Chesterfield-Evans and Ms Lee Rhiannon to move those amendments.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [5.21 p.m.]: I move Australian Democrats amendment No. 12:

No. 12 Page 11, clause 23, line 29. Omit "if requested to do so".

This amendment would omit the phrase "if requested to do so" from clause 23 (1). If the amendment is agreed to, clause 23 would read:

(1) A police officer must, before or at the time of exercising a power under this Part, or as soon as is reasonably practicable after exercising the power, provide the person subject to the exercise of the power with the following:

So, police officers have to provide evidence that they are police officers. They have to provide their names and state their place of duty. They have to do that routinely as they would normally do when issuing a caution. In other words, this amendment would guarantee the retention of the normal range of activities that are engaged in by police when exercising their powers. The amendment should be supported.

Ms LEE RHIANNON [5.23 p.m.]: I move Greens amendment No. 10:

No. 10 Page 11, clause 23, line 29. Omit "if requested to do so".

Through the media and in debate leading up to the introduction of this legislation, the Premier made great play of the fact that this legislation would ensure that civil liberties are protected. This amendment will test the sincerity of the Government on that score. Clearly, innocent people will get caught up in anti-terrorist operations.

The Hon. Dr Brian Pezzutti: They will.

Ms LEE RHIANNON: They will. For that reason I hope all Opposition members will support the amendment. Inevitably, many innocent people will get caught up in police operations—an issue that is acknowledged by the Greens. Those people need protection. This amendment seeks to remove the words "if requested to do so" from clause 23 (1). The effect of that would be to require police officers to provide a person subject to the exercise of a special power with, most importantly, the reason for the exercise of the power as well as evidence that the police officer is a police officer, as well as the name and place of duty of the officer. Police officers would be required to provide that information irrespective of whether they are requested to do so.

This amendment is about safeguarding ordinary people from the arbitrary or misguided application of special powers. If such a terrible situation arose and police engaged in an anti-terrorist operation, there would be chaos and mayhem and it would be difficult for police. We must include provisions in this legislation to ensure 4 December 2002 LEGISLATIVE COUNCIL 7703 that people are not mistreated by police and, as a result, end up on the wrong side of the law. As I said earlier, this amendment is about safeguarding the rights of ordinary people. Vital information should be supplied to people as a matter of course. If innocent people are accused of somehow being a part of terrorist activities, it is essential that they are able to defend themselves. Therefore, they should be informed at the time of why the special police powers are being used against them. This amendment would not in any way lessen the ability of police to pursue genuine terrorists.

Time and again in this debate the Minister for Police said the Greens were being irresponsible by moving amendments to the legislation. The Greens amendments provide—and this amendment is yet another example—protection for innocent people while, at the same time, allowing police operations to continue. The amendment is necessary to protect innocent people who may be caught by the new powers simply by virtue of being in a target area or in a target vehicle and who will not understand what questions they need to ask to obtain the information they need to defend themselves. Genuine terrorists are far more likely than ordinary people to know they can obtain information from police. These necessary safeguards will not lessen the power of this proposed legislation. I commend the amendment to the Committee.

The Hon. PETER BREEN [5.26 p.m.]: This amendment will also protect police officers. There will be occasions when dangerous terrorist activity is occurring and it is in the interests of police officers to make it known that they are police officers. They should identify themselves as such for their own protection. The America bill of rights protects these kinds of due process rights in that country. There is an obligation on police officers in every situation to identify themselves and to inform people of their rights. We do not have a bill of rights in Australia and we do not have proper protection for due process rights. I believe that has been overlooked. This amendment will not only protect citizens and ensure that their rights are protected but also protect police officers. It will maintain their physical wellbeing and enable them to be identified.

Australian Democrats amendments Nos 7 to 10 and 12 negatived.

Amendments Nos 1 to 6 of the Hon. Richard Jones negatived.

The CHAIRMAN: Australian Democrats amendment No. 12, which has already been negatived, is the same as Greens amendment No. 10. Therefore, I cannot put the question on Greens amendment No. 10.

The Hon. IAN COHEN [5.30 p.m.]: I move Greens amendment No. 9:

No. 9 Page 10, clause 19, line 32. Insert "and the officer suspects on reasonable grounds that a person or thing (including a vehicle) connected with a terrorist act may be in the premises" after "authorisation".

This amendment is about the clarification of where an authorisation to enter and search a premises may apply. It makes an addition to clause 19 (1) (c). A police officer must have a reasonable suspicion before conducting a search; it is not reason enough that a person, car or premises is in a target area. The Greens believe this clause is worded to apply too broadly, and making the wording too open-ended leaves the clause open to abuse. Under this provision whole suburbs could be target areas and dozens of innocent householders could have their doors kicked in. This amendment at least requires an officer to have reasonable suspicion that a person or thing connected with a terrorist act may be on the premises. I commend Greens amendment No. 9 to the Committee.

The Hon. MICHAEL COSTA (Minister for Police) [5.30 p.m.]: The Government cannot support the amendment as it cuts across the intention of the bill.

Amendment negatived.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [5.31 p.m.]: I move Australian Democrats amendment No. 11:

No. 11 Page 11, clause 21, lines 14-17. Omit all words on those lines.

This amendment removes from the bill a provision that states it is lawful for a police officer exercising a power under this part in relation to a person or thing and anyone helping the police officer to use such force as is reasonably necessary to exercise the power. We believe the police powers are already adequate and that this is a redundant provision. The Law Society also believes it is unnecessary.

The Hon. MICHAEL COSTA (Minister for Police) [5.31 p.m.]: The Government cannot support this amendment. 7704 LEGISLATIVE COUNCIL 4 December 2002

Amendment negatived.

Part 3 agreed to.

Part 4 agreed to.

Part 5

The Hon. Dr PETER WONG [5.32 p.m.]: I move Unity party amendment No. 6:

No. 6 Page 14, clause 26, line 5. Insert ", the Police Integrity Commission, the Review Committee established under section 37" after" Attorney General".

This amendment provides that the Police Integrity Commission, which will oversight powers conferred by this bill, will also receive the report by the Commissioner of Police to the Minister and the Attorney General. This will ensure improved oversight.

Amendment negatived.

Ms LEE RHIANNON [5.32 p.m.]: I move Greens amendment No. 11:

No. 11 Page 14, clause 26. Insert after line 12:

(2) The Police Minister is to present the report to each House of Parliament within 1 month of receiving the report from the Commissioner of Police.

(3) If a House of Parliament is not sitting when the Police Minister seeks to comply with subsection (2), the Minister must present copies of the report to the Clerk of the House of Parliament.

(4) The Police Minister may expunge sections of the report presented to each House of Parliament, if it is reasonably necessary to do so for security purposes.

This amendment seeks to insert in clause 26 provisions requiring the Minister for Police to present to each House of Parliament the reports that he or she receives from the Commissioner of Police, thereby providing parliamentary scrutiny of the exercise of these special police powers. This scrutiny would be entirely post-facto and would therefore not hinder in any way police anti-terrorist operations. If this Government has a skerrick of commitment to transparency and accountability it can easily accept this amendment, which will not impact on anti-terrorist operations.

Existing clause 26 requires the commissioner to furnish a report to the Minister for Police and the Attorney General as soon as practicable after an authorisation ceases to have effect. The report is to set out the terms of the authorisation, the period during which it had effect, the matters that were relied upon in giving the authorisation, the powers that were exercised pursuant to the authorisation, the manner in which they were exercised and the result of the exercise of those powers. This amendment simply requires the Minister to, in turn, present this report to each House of Parliament within one month of receiving it or to the Clerk of the Parliament if the House is not sitting. The amendment allows the Minister to expunge sections of the report if it is reasonably necessary to do so for security purposes. This amendment will not compromise security or hold up the operations of the bill. Surely the Government and the Opposition could do the right thing by the people of New South Wales and support this amendment.

The Hon. MICHAEL COSTA (Minister for Police) [5.34 p.m.]: The Government believes this amendment is unnecessary and cannot support it.

Amendment negatived.

The Hon. IAN COHEN [5.34 p.m.]: I move Greens amendment No. 12:

No. 12 Pages 16 and 17, clause 36, line 25 on page 16 to line 3 on page 17. Omit all words on those lines. Insert instead:

36 Monitoring of operation of Act by Ombudsman

(1) For the period of 6 months from the date of assent to this Act, the Ombudsman is to keep under scrutiny the exercise of the powers conferred on police officers under this Act. 4 December 2002 LEGISLATIVE COUNCIL 7705

(2) For that purpose, the Ombudsman may require the Commissioner of Police to provide information about the exercise of those powers.

(3) The Ombudsman must, after the expiration of that 6 month period, prepare a report of the Ombudsman's work and activities under this section, including information about any complaints received by the Ombudsman in relation to the exercise of the powers conferred on police officers under this Act.

(4) The Ombudsman is to furnish a copy of the report to each House of Parliament.

This amendment covers the monitoring of the operation of the Act by the Ombudsman. It provides the Ombudsman with the power to review this Act. Under this provision the Ombudsman is to keep under scrutiny the exercise of the powers conferred on police officers under this bill and to report to Parliament six months after the date of assent. The Greens propose this amendment as we believe it takes positive steps towards ensuring that the powers are not abused under the Act. As Ms Lee Rhiannon indicated in speaking to the previous Greens amendment, this amendment will not interfere in any way with police operations during any sort of emergency. I commend Greens amendment No. 12 to the Committee.

The Hon. MICHAEL COSTA (Minister for Police) [5.35 p.m.]: The Government cannot support this amendment. We have already outlined processes for review under this legislation, and I do not intend to do it again. They are detailed in both the bill and my comments about the bill in this place.

Amendment negatived.

The Hon. IAN COHEN [5.36 p.m.]: I move Greens amendment No. 13:

No. 13 Page 17. Insert after line 3:

37 Expiry of Act

(1) This Act expires on the day occurring 7 months after the date of assent to this Act.

(2) Despite section 2, this section commences on the date of assent to this Act.

The Greens propose that the Act be repealed seven months after the date of assent. The Premier has stated that the Act will have serious implications for the civil rights of the people of New South Wales. Therefore, the Greens believe the powers conferred upon the police by this bill must have a clear time limitation. In seven months much will have happened and hopefully the threat of terrorism will no longer be on our doorstep. We believe the provisions of this bill are so important they should be reconsidered and the duration of this bill restricted accordingly. I commend Greens amendment No. 13 to the Committee.

The Hon. MICHAEL COSTA (Minister for Police) [5.36 p.m.]: The Government cannot support this amendment. We have outlined all the protections that will be in place, and I cannot see the sense of this amendment.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [5.36 p.m.]: If the Minister does not think seven months is an appropriate time frame, can he give some indication of how long he expects the provisions in this bill to be in force? Does he expect them to continue forever?

Reverend the Hon. Fred Nile: Ring up bin Laden and ask him.

The Hon. MICHAEL COSTA (Minister for Police) [5.37 p.m.]: The interjection answers the Hon. Dr Arthur Chesterfield-Evans' question. How would anyone in this place know how long the bill should be in operation? We will make that assessment in light of the international terrorist situation at the time. To do anything less than this would be irresponsible.

Amendment negatived.

The Hon. Dr PETER WONG [5.37 p.m.]: I move Unity amendment No. 7:

No. 7 Page 17. Insert after line 3.

37 Review Committee

(1) The Minister is to establish a Review Committee to review the Act and to determine whether the policy, practice and operation of the Act remain valid. 7706 LEGISLATIVE COUNCIL 4 December 2002

(2) The Review Committee is to consist of the following persons:

(a) the Police Minister,

(b) the Chairperson of the Community Relations Commission,

(c) a Judge of the Supreme Court nominated by the Chief Justice,

(d) a police officer above the rank of superintendent selected by the Minister,

(e) the Ombudsman,

(f) the Privacy Commissioner.

(3) The Committee has the power to call witnesses, receive submissions and contract research.

(4) The Committee must undertake the review referred to in subsection (1) as soon as possible after the period of 12 months commencing on the date of assent to this Act and at the end of every 12 months thereafter.

(5) A report of the review is to be tabled in each House of Parliament as soon as is practicable after the end of each period referred to in subsection (4).

This amendment introduces an independent review external to the police Minister's report to Parliament. Members of the committee will be the police Minister, the Chair of the Community Relations Commission, a judge of the Supreme Court, the Ombudsman and the Privacy Commissioner, and it will report to both Houses of Parliament annually. This amendment will bring the New South Wales legislation into line with similar legislation in other Westminster systems of democracy where reviews are conducted externally to the system that operates and triggers the powers. For example, the United Kingdom Anti-Terrorism, Crime and Security Act 2001 requires no less than seven members of the Privy Council to review the Act once. Further reviews are considered unnecessary as the United Kingdom has enshrined European Union human rights provisions and also has a Bill of Rights. As New South Wales lacks these safeguards the Unity amendment is appropriate. I commend it to the Committee.

The Hon. MICHAEL COSTA (Minister for Police) [5.38 p.m.]: The Government cannot support this amendment. The Attorney General is more than capable of reviewing the Act. I have sat around the Cabinet table with the Attorney General and I assure honourable members that he scrutinises with great intensity every Cabinet proposal in relation to police powers and the exercise of those powers.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [5.38 p.m.]: If the Attorney General is scrutinising all the bills that increase police powers it is no wonder that he is getting paranoid. Since I have been in this place the Government has increased police powers at such an extraordinary rate that the Attorney General must be reeling from blow after blow. In fact, the previous Attorney General gave up and went home. No wonder the Attorney General is reviewing the situation. The question was not satisfactorily answered. Apparently bin Laden will be allowed to determine how this country is going to be run. We need to specify in the bill, by amendment, a finite time for a review. We should not accept that that will happen only when bin Laden says so, or when the Attorney General manages to get on top of the Cabinet. That is not good enough. This amendment is a sensible one and I believe it should be supported.

Question—That the amendment be agreed to—put.

The Committee divided.

Ayes, 8

Mr Breen Mr R. S. L. Jones Tellers, Mr Cohen Ms Rhiannon Dr Chesterfield-Evans Mr Corbett Dr Wong Mrs Sham-Ho

Noes, 22

Ms Burnswoods Mr Harwin Mr Ryan Mr Colless Mr M. I. Jones Mr Samios Mr Costa Reverend Moyes Mr Tsang Mr Dyer Reverend Nile Mr West Mr Egan Mr Oldfield Ms Fazio Mrs Pavey Tellers, Mrs Forsythe Mr Pearce Mr Jobling Miss Gardiner Dr Pezzutti Mr Primrose 4 December 2002 LEGISLATIVE COUNCIL 7707

Question resolved in the negative.

Amendment negatived.

Question—That clause 33 be agreed to—put.

The Committee divided.

Ayes, 24

Ms Burnswoods Mr Hatzistergos Mr Ryan Mr Colless Mr M. I. Jones Mr Samios Mr Costa Mr Macdonald Mr Tsang Mr Dyer Reverend Moyes Mr West Mr Egan Reverend Nile Mrs Forsythe Mr Oldfield Mr Gallacher Mrs Pavey Tellers, Miss Gardiner Mr Pearce Mr Jobling Mr Harwin Dr Pezzutti Mr Primrose

Noes, 8

Mr Breen Mr Corbett Tellers, Dr Chesterfield-Evans Mrs Sham-Ho Ms Rhiannon Mr Cohen Dr Wong Mr R. S. L. Jones

Question resolved in the affirmative.

Clause 33 agreed to.

Part 5 agreed to.

Schedule 1

The Hon. IAN COHEN [5.49 p.m.]: I move Greens amendment No. 14 as circulated:

No. 14 Page 19, schedule 1, clause 4, line 14. Omit "the police officer". Insert instead "a police officer above the rank of sergeant".

This amendment relates to strip searches. The Greens propose that only a police officer above the rank of sergeant may conduct a strip search. The Greens believe that this is the very least that the legislation can deliver in terms of ensuring that strip searches are conducted in a responsible and lawful fashion. Inexperienced police officers should not be given responsibilities for which they are not ready. This limitation will help prevent the arbitrary searches that I referred to in my earlier speech regarding this bill. I commend Greens amendment No. 14 to the Committee.

The Hon. MICHAEL COSTA (Minister for Police) [5.49 p.m.]: The Government cannot support this amendment. It should be noted that the strip search provisions are borrowed from the Law Enforcement (Powers and Responsibilities) Act 2002. It would be ridiculous to have two sets of provisions governing strip searches.

Amendment negatived.

Ms LEE RHIANNON [5.50 p.m.]: I move Greens amendment No. 15:

No. 15 Page 19, schedule 1, clause 4, line 17. Insert the following after "carried out":

, and

(c) in the case of a child who is at least 10 years of age but under 18 years of age, the police officer suspects on reasonable grounds that the child is in possession of an explosive device. 7708 LEGISLATIVE COUNCIL 4 December 2002

This amendment refers to strip searches of children. The bill as it stands allows strip searches of children as young as 10 years old. The Greens believe that this is an unacceptable breach of the rights of children. Intrusive physical searches at such a young age may have ongoing adverse psychological impacts. The amendment will insert a new provision to state that for a child between the ages of 10 and 18 years a strip search may only be undertaken when a police officer suspects, on reasonable grounds, that the child is in possession of an explosive device. In other words, a strip search of a child would be prohibited unless the police reasonably suspected that the child had explosives on his or her person. The Greens believe that this would provide a much more responsible balance to the competing demands of security and the rights of the child. Again, police operations would not be compromised, and there would be less intrusion on the delicate childhood of many young people.

The Hon. MICHAEL COSTA (Minister for Police) [5.51 p.m.]: The Government cannot accept this amendment. Again, I make the point that the powers contained in this bill are similar to those found in the Law Enforcement (Powers and Responsibilities) Act 2002. Having two different sets of powers does not make sense, even if there were any justification in terms of the argument that has been put.

Amendment negatived.

The Hon. Dr PETER WONG [5.52 p.m.], by leave: I move Unity Party amendments Nos 8 to 11 in globo:

No. 8 Page 21, schedule 1, clause 6, line 13. Omit ", unless it is not reasonably practicable in the circumstances,".

No. 9 Page 21, schedule 1, clause 6, lines 17 and 18. Omit ", as far as is practicable in the circumstances,".

No. 10 Page 21, schedule 1, clause 6, line 18. Insert "or who is an eligible officer of the Department of Community Services or who is the legal representative of the child or person" after "the person".

No. 11 Page 21, schedule 1, clause 6. Insert after line 32:

eligible officer of the Department of Community Services means an officer of that Department who has been included on a list of officers whom the Director-General of the Department considers to be suitable to be present during the strip searching of children.

Amendments Nos 8 and 9 will remove the three qualifying "if unreasonable" provisions on the grounds that under the common law a police officer—or a civilian, for that matter—who believes that someone is armed and dangerous, or poses a threat to themselves or others, may use whatever force is reasonable to detain that individual and to stop him from continuing that threat. That use of force is then reviewable at law. To have contained in section 3 provisions such as "unless it is not reasonably practical in the circumstances" will give a green light to police officers to do strip searches in a wide range of circumstances.

This amendment will not stop police from strip searching suspects for concealed documents or evidence, et cetera, but will constrain them in doing so by adding the need to get an independent person who has the child's best interests at heart, so as to stop this power being abused in coercive questioning or interrogation scenarios. For example, a parent may be the subject of investigation, in which the threat to strip search a child could be a useful casework tool. This amendment will make a decision to use such coercive countermeasures more difficult.

Amendment No. 10 adds to clause 6 the requirement to have an officer of the Department of Community Services present when the strip search of a child occurs if the child does not want his or her parents, or legal representative, to be involved. This will ensure that someone with the child's best interests at heart will be involved, and will ensure that police do not use this power unnecessarily. Amendment No. 11 requires the Director-General of the Department of Community Services to keep a list of departmental officers who are suitable to be present during strip searches of children. I commend these amendments to the Committee.

The Hon. MICHAEL COSTA (Minister for Police) [5.54 p.m.]: The Government cannot support these amendments. I make the same point I made in relation to previous amendments, that is, the powers contained in this bill come from the Law Enforcement (Powers and Responsibilities) Act 2002. I cannot see why we would have two different sets of powers in legislation. In any event, it does not make sense to have a higher threshold in relation to terrorist events.

Amendments negatived.

Schedule 1 agreed to. 4 December 2002 LEGISLATIVE COUNCIL 7709

Schedule 2 agreed to.

Title agreed to.

Terrorism (Police Powers) Bill reported from Committee without amendment, and report adopted.

Third Reading

The Hon. MICHAEL COSTA (Minister for Police) [5.56 p.m.]: I move:

That this bill be now read a third time.

I acknowledge on the record the co-operation of the Opposition and those crossbenchers who supported the Government on these particular matters. There were some difficulties, but we have worked through them. We will have an Act of Parliament that gives the police the powers they require to deal with terrorist situations and at the same time contains an appropriate balance to ensure that civil liberties are protected. I continue with the bipartisan position that we have adopted on this issue. It is a great credit to the nation that we can come together in such terrorist situations and put forward policies which we all support and which are all directed at the one thing we need to do—that is, to protect our community from these threats.

Question—That the Terrorism (Police Powers) Bill be now read a third time—put.

The House divided.

Ayes, 27

Ms Burnswoods Mr M. I. Jones Mr Ryan Mr Colless Mr Kelly Mr Samios Mr Costa Mr Lynn Mrs Sham-Ho Mr Dyer Mr Macdonald Mr Tsang Mr Egan Reverend Dr Moyes Mr West Ms Fazio Reverend Nile Mrs Forsythe Mr Oldfield Mr Gallacher Mrs Pavey Tellers, Mr Harwin Mr Pearce Mr Jobling Mr Hatzistergos Dr Pezzutti Mr Primrose

Noes, 7

Dr Chesterfield-Evans Mr Cohen Mr Corbett Ms Rhiannon Dr Wong Tellers, Mr Breen Mr R. S. L. Jones

Question resolved in the affirmative.

Motion agreed to.

Terrorism (Police Powers) Bill read a third time.

GUARDIANSHIP AND PROTECTED ESTATES LEGISLATION AMENDMENT BILL

Second Reading

Debate resumed from 21 November.

The Hon. IAN MACDONALD (Parliamentary Secretary) [6.02 p.m.]: I move:

That this bill be now read a second time.

I seek leave to have my second reading speech incorporated in Hansard.

Leave not granted. 7710 LEGISLATIVE COUNCIL 4 December 2002

This bill provides a simple, cheap and quick process for appeal to the Administrative Decisions Tribunal [ADT] from decisions of the Guardianship Tribunal, the Mental Health Tribunal and magistrates against guardianship and financial management orders. It also allows the ADT to review the decisions of the Public Guardian and the Protective Commissioner. The bill implements the recommendations of the Public Bodies Review Committee report, "Personal Effects: The Roles of the Public Guardian and the Protective Commissioner in Managing Clients Affairs". The committee recommended that the Protective Commissioner function independently from the Supreme Court and that an external right of appeal to the ADT should be available for clients. The bill makes amendments to four Acts—the Guardianship Act, the Protected Estates Act, the Administrative Decisions Tribunal Act and the Defamation Act.

Under the current Act, any decision of the Guardianship Tribunal is subject to appeal to the Supreme Court. This right of appeal continues under the provisions of this bill. The amendments in schedule 1 supplement this right of appeal by allowing parties to appeal to the Administrative Decisions Tribunal against certain decisions made by the Guardianship Tribunal. Appeals to the ADT are cheaper, quicker and easier for parties. The procedures are simple, and parties usually do not need legal representation. The ADT acts with as little formality as the circumstances of the case permit. It is not bound by rules of evidence and has a duty to act as quickly as is practicable. The provisions of this bill allow access to a fair, transparent, independent tribunal for people who may not be capable or willing to mount a Supreme Court case.

The simple appeal process from the Guardianship Tribunal to the ADT is available to people who are affected by decisions relating to the appointment of enduring guardians, the making of guardianship orders, the making of financial management orders, and giving directions to guardians. The bill makes it clear that parties must be provided with reasons for the decision by the Guardianship Tribunal and be advised of their right to appeal. In addition to the appeal rights, the bill provides a process for review of decisions made by the Public Guardian. The bill gives the ADT jurisdiction to review these decisions on the application of the person to whom the decision relates, their spouse or carer or any other person whose interests have been adversely affected by the decision.

Historically, the Protective Commissioner was an officer of the Supreme Court who performed judicial as well as administrative functions relating to financial management orders. This is not consistent with modern best practice. The bill separates the functions of judicial decision making from financial management. Under the new scheme the Supreme Court and the Guardianship Tribunal will continue to have power to make financial management orders, and the Protective Commissioner will act exclusively as the financial manager or the supervisor of private financial managers. The bill promotes transparency and independence in the decision- making process.

It allows the Ombudsman to review the administrative decisions of the Protective Commissioner. This provides clients and their families with a cheap and simple avenue for resolving complaints and is consistent with the recommendations of the Public Bodies Review Committee. Alternatively, clients can ask the ADT to review the decisions of the Protective Commissioner relating to the approval of a private manager to authorise a protected person to deal with part of the estate, and general management of the estate of protected persons. The bill also allows the Protective Commissioner to supervise the functions of private estate managers who have been appointed by the Supreme Court or Guardianship Tribunal.

The Hon. John Jobling: If the honourable member wishes to incorporate the remainder of his speech, I am sure the House would be happy to accede to that request.

The Hon. IAN MACDONALD: I seek leave to incorporate the remainder of my second reading speech in Hansard.

Leave granted.

It creates an offence for failing to comply with a direction of the Commissioner. The provisions were necessary because the Protective Commissioner needs statutory power to perform the duties previously undertaken as an officer of the Supreme Court and coercive powers to ensure compliance

The decisions of the Protective Commissioner in relation to the functions of private managers will be reviewable by the ADT unless the decision was as a result of a direction by the Supreme Court.

The Bill allows private estate managers to lodge estate funds with the Protective Commissioner and allows the Commissioner to invest the funds. These provisions give private estate managers greater choice in where they lodge their investments and will allow the Protective Commissioner to compete with private sector trust companies for estates which are managed privately. 4 December 2002 LEGISLATIVE COUNCIL 7711

The Bill provides a right of appeal against orders by magistrates or the Mental Health Review Tribunal making estates subject to management under the Protected Estates Act 1983. Any person to whom an estate management order relates, or who was party to the proceedings may appeal to the ADT against the order.

To further safeguard the interests of protected persons, the Bill requires the decision maker, either the Mental Health Review Tribunal or the magistrate, to provide formal written reasons for the decision at the request of any party to the proceedings. The decision maker must also inform the party of their appeal rights.

Amendments to the Administrative Decisions Tribunal Act 1997

The Administrative Decisions Tribunal (ADT) is now well established as a multi-disciplinary body which has jurisdiction over a diverse range of decision making. Since its inception the ADT has demonstrated the capacity to adapt its procedures to accommodate new areas of jurisdiction in a client-oriented and accessible manner. It is imperative that clients subject to decisions made by the Protective Commissioner, the Public Guardian, the Guardianship Tribunal, the Mental Health Review Tribunal and magistrates be given access to this specialist forum for dispute resolution.

The Bill gives the ADT the jurisdiction to review many of the administrative decisions made in relation to protected persons and the jurisdiction to hear and determine appeals from tribunals.

The Bill provides for a specialist panel to determine the appeals from external judicial decisions. The Appeal Panel consists of a presidential judicial member of the ADT, one other judicial member and a non-judicial member who has experience in dealing with people with a disability. This structure provides a combination of extensive legal expertise and specialist knowledge and empathy with specific client needs to ensure that the rights of people with a disability are vigilantly protected.

The Bill provides for the review of administrative decisions by the Public Guardian and the Protective Commissioner in the General Division of the Tribunal.

Further, to ensure that people with disabilities are able to comprehensively put their case to the Appeal Panel, the Bill allows the ADT to appoint a representative to any person who is a protected person within the meaning of the Guardianship Act 2002 or the Protected Estates Act 1983 or in respect of whom a guardianship order has been made or refused.

Amendments to the Defamation Act 1974

Under section 79 of the Protected Estates Act 1983, the Protective Commissioner may direct a person to provide a written report on a protected person. The report may contain sensitive information about the protected person such as comments about their: • state of mind, • bodily health, • general condition, and • care and treatment.

The amendment provides that the person preparing and publishing the report has a defence in any action for defamation arising from the contents of the report. This ensures that the report can provide a full and frank assessment of the person and the circumstances without the author risking a law suit for defamation.

The Bill confirms the ADT as the principal forum for reviewing the decisions of public authorities and establishes the ADT as an accessible appeal forum for people aggrieved by the decisions of tribunals. It implements the key findings of the Public Bodies Review Committee and provides a simple and accessible means of review and appeal by people with disabilities and their relatives and carers.

This Bill demonstrates the continuing commitment of this Government to the delivery of access to justice, and fair and transparent administrative and judicial decision making. It ensures that parties are provided with a cheap and quick appeal process. More importantly, it ensures they are given information and assistance to enable them to understand their rights, and a specialist, informal appeal forum in which to exercise them.

I commend this Bill to the House.

The Hon. PATRICIA FORSYTHE [6.06 p.m.]: For many families in this community this is one of the most important pieces of legislation that could be passed in this House. In the gallery today are some people who have waited a very long time to see this legislation passed. I am talking about the years they have waited to see changes in the system involving guardianship and the Protective Commissioner. For many reasons the Opposition will be giving strong support to the legislation, which arises out of the work of the Public Bodies Review Committee in 2001. It looked at the work of the Protective Commissioner and the Guardianship Tribunal. This bill goes much further than the work of the committee at that time but we have to acknowledge that it was a bipartisan committee that took significant evidence, and the Government could not have ignored that weight of evidence.

Having been shadow Minister for Community Services and Disability Services I am very conscious of how the work of the Guardianship Tribunal and the Protective Commissioner has impacted on many families in this State. It is a sad fact that in matters before the Guardianship Tribunal, the Protective Commissioner or the Mental Health Review Tribunal, families are often pitched against each other. Often what is seen as being in the best interest of one member of the family is not seen that way by others, and that has been the cause of 7712 LEGISLATIVE COUNCIL 4 December 2002 significant dispute. Until this time resolution of those disputes has been through the Supreme Court. There has long been a view that that is costly to families, cumbersome, time-consuming and very legalistic, when many issues require a more fundamental mediation approach.

As the Parliamentary Secretary said, the bill provides a simple, cheap and quick process for appeal to the Administrative Decisions Tribunal [ADT] from decisions of the Guardianship Tribunal, the Mental Health Review Tribunal and magistrates against guardianship and financial management orders. It allows the ADT to review decisions of the Public Guardian and the Protective Commissioner. The bill implements the recommendations of the Public Bodies Review Committee report entitled "Personal Effects: The Roles of the Public Guardian and the Protective Commissioner in Managing Clients' Affairs". The Opposition is pleased to support the bill.

However, I note that during the debate in the other House the honourable member for Hawkesbury made a number of points. It is important that one of those be noted in this debate. The honourable member said that this bill will not resolve all of the problems and all of the issues; that some are so complex that there will still remain a need for opportunity of further appeal to the Supreme Court. However, this bill is an important step along the way to improving the operation of the Guardianship Tribunal and the Mental Health Tribunal and facilitating the work of the Protective Commissioner.

There is no doubt that our community is ageing and that the incidence of dementia is increasing. Therefore the call on those bodies will become even greater. I want to thank Patty Costa, who in my time as shadow Minister displayed a great interest in and knowledge of work done by carers of protected persons. Others mentioned in the other place included particularly Judie Stephens, who obviously worked very hard to get this reference to the Public Bodies Review Committee. Those people deserve acknowledgement for the work they put into these measures. I am sure they will welcome the passing of this legislation as a way forward in the interests of families in this State who are impacted by various tribunals.

The Opposition will not delay the House further. We give this bill full support. In the other place honourable members who have strong involvement with families impacted by various decisions put a number of cases on the record. I have many similar cases that I became aware of as shadow Minister for Community Services, Disability Services, and Ageing that I would not know where to start to highlight the sorts of cases that could have been more easily resolved had there been an opportunity to appeal to the Administrative Decisions Tribunal. The Opposition welcomes the bill and commends it to the House.

Ms LEE RHIANNON [6.12 p.m.]: The Greens are pleased to support the bill, which we believe is long overdue. The bill will provide for an appeal mechanism to the Administrative Decisions Tribunal from decisions of the Guardianship Tribunal, the Mental Health Tribunal and magistrates against guardianship and financial management orders. The bill also provides for the Protective Commissioner to function separately from the Supreme Court. These are all measures which the Greens very much welcome.

All honourable members would be aware of the tremendous difficulties some people have experienced with the Guardianship Tribunal, in the highly emotionally charged area of guardianship orders. I imagine that every member of this place would at some time have been contacted by a constituent who has been aggrieved by some aspect of this process. It is a basic element of a fair legal process that parties to the process should have a right of appeal. Therefore we are pleased that this measure has been put in place. Hopefully, these measures will allow more of these often difficult cases to be resolved to the satisfaction of all parties. That is an aim that we should strive for. This bill goes a long way to achieving that aim.

Reverend the Hon. FRED NILE [6.13 p.m.]: The Christian Democratic Party is very pleased to support the Guardianship and Protected Estates Legislation Amendment Bill. Over a number of years we have received many complaints from people who believe they have been treated unjustly by the respective bodies, the Public Guardian and the Protective Commissioner. A number of allegations have been made about misuse of some assets of individuals whose estates were under the control of those bodies. In particular, the bill will allow appeals to the Administrative Decisions Tribunal against certain decisions of the Guardianship Tribunal, such as decisions relating to guardianship orders and financial management orders.

It also allows appeals to the Guardianship Tribunal against orders of magistrates or the Mental Health Review Tribunal making estates subject to management under the Protected Estate Act. That is another positive move. All decisions made by the Public Guardian and the Protective Commissioner will be reviewable by the Administrative Decisions Tribunal. A most important part of the legislation is that it separates the role of the 4 December 2002 LEGISLATIVE COUNCIL 7713

Protective Commissioner from the functions of the Supreme Court and gives additional functions to the Protective Commissioner regarding the management of estates. These are all steps in the right direction. We are pleased that the Public Bodies Review Committee conducted a review of the Protective Commissioner and the Public Guardian as well as the Council on the Cost and Quality of Government to ensure that their work is not wasted. That is because it often happens that a report is produced and we see no result from it.

Therefore we are very pleased that this report of the Public Bodies Review Committee of October 2001 at last has borne fruit. That it has taken 12 months to do so has frustrated many people involved with the review. I mention in particular those who gave evidence to the committee, especially Reverend George Capsis and Patty Costa-Hope, who did a marvellous job, at considerable emotional cost to themselves, to bring the concerns of many people out into the open and have them considered by the review committee. That has resulted in the legislation before the House. This legislation will provide the option of a cheap, quick, transparent and simple review and appeal process in the Administrative Decisions Tribunal where an appeal is lodged against decisions of the Protective Commissioner, the Public Guardian, the Mental and Health Tribunal and magistrates relating to guardianship and financial management orders.

I would like to raise a number of matters so that the Parliamentary Secretary can seek the advice of advisers. Does this legislation ensure that officers of the Guardianship Tribunal, the Office of the Protective Commissioner and the Office of the Public Guardian are removed as officers of the Supreme Court? We understand that the Administrative Decisions Tribunal is now a very important part of the system, but there remains some concern as to whether there is any restriction on public servants who worked previously with the Office of the Protective Commissioner, the Office of the Public Guardian and the Guardianship Tribunal being now members of the Administrative Decisions Tribunal. The reason I raise this question is that I have been advised by Reverend George Capsis that Frieda Hillson was a Senior Public Guardian until a few months ago and now works for the Administrative Decisions Tribunal.

The whole point of the bill was to provide honesty and transparency regarding the decisions of the bodies to which I have referred. If some of those who worked for those bodies are now working for the appeal tribunal, that could indicate some conflict of interest because some of the complaints could involve actions that they had taken while working for those bodies. There must be some check by the Government to ensure that that does not happen. Also, does the bill allow for an appeal to the Ombudsman regarding misbehaviour of guardianship staff? That does not appear to be clearly provided for in this legislation. Perhaps that is a matter that the Government could consider. Because legislation is not usually retrospective, when will this legislation take effect from the point of view of people who have made complaints? In other words, does the bill provide any new appeal opportunities for persons who are already caught up in the current system? If not, why not? After all, it was agitation by these people that led to the current proposals for reform.

As this legislation is very important, will the Government also advise the House of its plans to advise thousands of New South Wales citizens who will be affected by this legislation of their rights? This legislation should be accompanied by an education program. I do not believe that the task of informing people of their rights should be left to individuals whom I mentioned previously, namely, Patricia Costa-Hope and the Reverend George Capsis, who have been very much involved in those matters. Because a large number of people are affected, an education program will be a necessity and perhaps even individual letters should be sent to people who have had dealings with the officers to whom I have referred, informing them of their rights of appeal through the Administrative Decisions Tribunal [ADT]. If no-one tells these people of their rights, how can those rights be exercised? It should also be remembered that many of the people affected, because of age or disabilities, have already been disadvantaged and therefore need assistance; otherwise, they would not be under the care of a public official.

Before the Hon. Elaine Nile resigned as a member of this House, she asked questions on 25 October 2001 about two staff members of the Office of the Protective Commissioner who had been convicted of fraud and whether all the moneys involved were recovered and reimbursed to the clients' accounts. I also ask the Minister whether such moneys were recovered from those staff members, or from consolidated revenue, or from the estates of the Office of the Protective Commissioner's clients? How much money was involved? I request that the Government, through its advisers, examine these practical matters and provide further advice to the House and members of the community, especially those who are represented by the Christian Democratic Party in this place. We are pleased that the bill has been introduced into the Parliament and look forward to its speedy passage and implementation.

The Hon. Dr BRIAN PEZZUTTI [6.21 p.m.]: Put simply, the bill does not go far enough, as honourable members will realise when they read the report of the Select Committee on Mental Health. Concerns 7714 LEGISLATIVE COUNCIL 4 December 2002 have been raised by relatives and friends of a large number of people who are mentally ill. When people are well, they do not want their relatives involved, but virtually at the instant they become mentally ill they want their relatives to become involved so that people close to them will become part of the decision-making process for their care. Under current circumstances the relatives cannot be involved. Some type of guardianship provision that takes over when people become ill is required. This legislation will need to be reviewed after presentation of the report by the Select Committee on Mental Health. The Administrative Decisions Tribunal does not offer an easy, simple or transparent process. Under this Government the tribunal has become lumbering and elephantine.

It takes forever before people have the opportunity to appear before the tribunal, and there are huge delays involved in determining whether a case needs to be handled by a judicial officer. The tribunal has only one judicial officer and cases grind to a halt. If people want instant action and wish to avoid the Supreme Court they may as well forget going anywhere near the Administrative Decisions Tribunal because even a simple determination involves a delay of two or three months. The Government should allocate more resources to the tribunal if it is to have any chance of providing what honourable members have described during this debate as a simple, transparent and quick-and-easy process. At the moment it is not doing so because it is starved of funds and has not nearly enough officers to do the jobs that need to be done. The tribunal presents a gross disincentive for people who are looking for a simple process. I advise many people who are seeking a determination to go straight to the Supreme Court where their case will be heard much more quickly and probably with much greater effect.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [6.23 p.m.]: I have received many representations on this issue, particularly regarding the Office of the Protective Commissioner and protests against the decisions made by that office. Obviously a conflict of interest exists between those who are having their money managed for the long term and family members who may wish to have the money managed differently in the short term. Accusations are levelled at family members, suggesting that they are trying to get at the money against the interest of the person who owns the estate. I have heard of many accusations about money being totally mismanaged or not being managed in the interests of the person who is supposedly being looked after by the Protective Commissioner.

The issues must be brought out into the open and discussed. I congratulate the Government on bringing the Administrative Decisions Tribunal into the process and concluding the role of the Public Guardian. This is a good solution for a problem that has been drawn to my attention. Because the computers in Parliament House are down I do not have all the details of cases that have been brought to my attention, but I believe that this is good legislation which will address problems that currently exist. When the light of public scrutiny is trained on the examples of officers who are brought before the courts, I hope that will result in beneficial feedback and improvement in the way that the office and procedures are managed. I hope that this legislation will provide better outcomes for people who need these types of offices to look after their welfare in the long term.

The Hon. Dr PETER WONG [6.25 p.m.]: This bill is intended to streamline and simplify appeals to the Administrative Decisions Tribunal against decisions of the Guardianship Tribunal, the Mental Health Tribunal and magistrates in regard to guardianship and financial management orders. It will also allow the ADT to review the decisions of the Public Guardian and the Protective Commissioner. The Public Bodies Review Committee produced a report entitled "Personal Effects: The Roles of the Public Guardian and the Protective Commissioner in Managing Clients' Affairs", which recommended that the Protective Commissioner should function independently from the Supreme Court and that an external right of appeal to the ADT should be available for clients.

This bill amends four Acts: the Guardianship Act 1987, the Protective Estates Act 1983, the Administrative Decisions Tribunal Act 1997, and the Defamation Act 1974. The bill promotes transparency and independence in the decision-making process. It allows the Ombudsman to review the administrative decisions of the Protective Commissioner. This provision will allow many people to resolve their complaints or grievances at a local level because it is an inexpensive option, supported by the Ombudsman, which many people should avail themselves of in the first instance. Furthermore, the ADT can be requested to review the decisions of the Protective Commissioner relating to the use of a private manager to authorise a protected person to deal with part of the estate and the management of estates of protected persons generally.

The bill also allows the Protective Commissioner to supervise the functions of private estate managers who have been appointed by the Supreme Court or the Guardianship Tribunal. It creates an offence for failing to comply with a direction of the commissioner. The provisions are necessary because the Protective 4 December 2002 LEGISLATIVE COUNCIL 7715

Commissioner needs a statutory power to perform the duties that were previously undertaken by an officer of the Supreme Court, and to provide coercive powers to ensure compliance. The decisions of the Protective Commissioner regarding the functions of private managers will be able to be reviewed by the ADT unless the decision was made as a result of a direction given by the Supreme Court. These provisions give private estate managers greater choice as to where they lodge their investments and will allow the Protective Commissioner to compete with private sector trust companies for estates that are managed privately. It will also ensure that better protections exist for the estate owners and that the process is more open and transparent.

As the honourable member for Lane Cove pointed out in the other place, the Protective Commissioner does not have a great history because the systems that were meant to provide safeguards for individuals who experienced difficulties in managing their affairs was overly legalistic. This was because any review of the decision by the commissioner required the matter to be heard in the Supreme Court. What people really encountered in a theoretically just judicial system was the reverse—a system whose structure and process was a prime example of what is termed systems abuse. No doubt the expense of many matters contested by individuals who are under protection and the expense incurred by their relatives who contested decisions have eroded the care that the Public Guardian or Protective Commissioner was able to provide. It is to be hoped that that standard of care will be improved with the passing of this bill. I, for one, will be watching, as I understand a large number of homeless people are under the care of the commissioner.

The assets under the commissioner's power are considerable. I take this opportunity to note from the report of the Public Bodies Review Committee that as at June 2001 the common fund held $1.532 billion as cash and real estate, and that the value of jewellery, furniture and personal effects has not been valued. I note that the Government has gone some way towards addressing some of the major recommendations of the committee's report, and I believe that this bill will result in improved services to those under the care of the Protective Commissioner and the Public Guardian. That said, I believe that continued improvement in this most important area, as in all areas where the State and its officers look after individuals directly, must undergo a continuing process of improvement and reform. The bill is a good start in that direction and the Unity party supports it.

Reverend the Hon. Dr GORDON MOYES [6.31 p.m.]: I will not delay the House by going over ground that has been covered by other members. The Christian Democratic Party supports the bill but I have a question for the Parliamentary Secretary. Would the Government consider, under the educational program, a government-funded helpline? Those of us who have been involved in the helping professions over a number of years know that clients have a lot of questions and trying to help them work through their issues takes a lot of time. Will the Government consider a funded helpline?

The Hon. IAN MACDONALD (Parliamentary Secretary) [6.31 p.m.], in reply: I thank honourable members for their comments on the bill. In reply to the first point made by Reverend the Hon. Fred Nile, it is true that the bill removes the Protective Commissioner from the Supreme Court. In reply to his second point, the Government and the President of the Administrative Decisions Tribunal [ADT] will take all steps necessary to avoid conflicts of interest. Because the Office of Protective Custody will be no longer attached to the Supreme Court it will automatically be subject to reviews by the Ombudsman. Aggrieved people can apply to the Guardianship Tribunal to vary existing orders, which will then be subject to appeal under the Act. On the question of education, the ADT will work with individuals to ensure that they are fully advised of their rights, and will assist them to make applications. The Government is not in a position to comment today on the specific case raised. The matter would be best dealt with by Reverend the Hon. Fred Nile asking a question on notice about it.

In relation to the comments of the Hon. Dr Brian Pezzutti, delays in the ADT are minimal. The honourable member was referring to one specific case in the Retail Leases Division. The Government will ensure that the General Division of the ADT is adequately resourced to deal with these cases quickly and effectively. In reply to the question of Reverend the Hon. Dr Gordon Moyes, the Government will undertake immediate consideration of a government-funded helpline. I thank honourable members for their contributions and commend the bill to the House.

Motion agreed to.

Bill read a second time and passed through remaining stages

[The Deputy-President (The Hon. Dr. Brian Pezzutti) left the chair at 6.34 p.m. The House resumed at 8.15 p.m.] 7716 LEGISLATIVE COUNCIL 4 December 2002

GENERAL PURPOSE STANDING COMMITTEE NO. 2

Government Response to Report

The Hon. Ian Macdonald, pursuant to a resolution of the House of 17 September 2002, tabled the Government's response to Report No. 14, entitled "Quality of Care for Public Patients and Value for Money in Major Non-metropolitan Hospitals in NSW", tabled 4 September 2002.

Ordered to be printed.

BUSINESS OF THE HOUSE

Suspension of Standing and Sessional Orders

Motion by the Hon. Ian Macdonald agreed to:

That standing and sessional orders be suspended to allow the moving of a motion forthwith relating to the conduct of the business of the House.

Order of Business

Motion by the Hon. Ian Macdonald agreed to:

(1) That the Workers Compensation Legislation Amendment Bill, the Pay-roll Tax Legislation Amendment (Avoidance) Bill and the Industrial Relations Amendment (Industrial Agents) Bill be considered together at the second reading stage, and

(2) That the questions on the motions for the second readings of these bills and subsequent stages be dealt with separately in respect of the separate bills.

WORKERS COMPENSATION LEGISLATION AMENDMENT BILL

PAY-ROLL TAX LEGISLATION AMENDMENT (AVOIDANCE) BILL

INDUSTRIAL RELATIONS AMENDMENT (INDUSTRIAL AGENTS) BILL

Second Reading

The Hon. IAN MACDONALD (Parliamentary Secretary) [8.17 p.m.]: I move:

That these bills be now read a second time.

I seek leave to incorporate the second reading speeches in Hansard.

Leave granted.

WORKERS COMPENSATION LEGISLATION AMENDMENT BILL

The bill before the House introduces a number of further reforms to the workers compensation legislation.

The Workers Compensation Legislation Amendment Bill can be summarised as follows.

Schedule 1 to the bill establishes a scheme to address cross-border issues in workers compensation.

Schedule 2 introduces amendments to improve employer compliance with workers compensation insurance obligations.

Schedule 3 contains amendments to the Sporting Injuries Insurance Act to permit insurance exemptions for sporting organisations that have adequate private insurance.

Schedule 4 provides for the establishment of a single notification scheme for injuries to workers under both the occupation health and safety legislation and the workers compensation legislation.

A further amendment in schedule 4 extends protection from personal liability to approved medical specialists who exercise functions under the Act in good faith.

I now turn to each of these amendments in more detail. 4 December 2002 LEGISLATIVE COUNCIL 7717

For a number of years, there has been concern about the need for employers to take out workers compensation insurance for individual workers in more than one State or Territory even if these employees are working only temporarily in another State. Over the past 10 years there have been a number of attempts to resolve these cross-border issues. Discussions with all of the States and Territories at ministerial and officer level have recognised the need for a legislative solution. Attempts were made to prepare national template legislation, but these attempts have foundered because the proposed solution became too complicated and unworkable. However, national principles have been agreed. These aim to eliminate the need for employers to obtain workers compensation coverage for a worker in more than one jurisdiction. These principles also are intended to ensure that workers working temporarily in another jurisdiction will only have access to the workers compensation entitlements—and common law benefits—available in their home State or "State of connection" and to provide certainty for workers about their workers compensation entitlements and ensure that each worker is connected to one jurisdiction or another.

In addition, it has been agreed between New South Wales, Queensland and Victoria that each State should pursue complementary legislation establishing a single rule for workplace-related accidents, consistent with the national principles.

Queensland introduced amendments to deal with this issue on 7 November. As Victoria is currently preparing for elections, legislative action in that State has been delayed. It is hoped that the provisions in all three eastern States will be operative by the middle of next year. It is also hoped that the other Australian States and Territories will adopt the template legislation that has been developed.

Schedule 1 to the bill introduces the necessary legislative framework to give effect to these principles by amendments to the Workers Compensation Act. The test for home State connection is set out in proposed section 9AA (3). If a single home State cannot be clearly determined by the first test, that is, what is the usual place of employment, the second test—where is the worker usually based—will be applied.

If no one State is identified by the application of the first two tests, the final test will be applied. That is, what is the employer's principal place of business in Australia? In deciding whether a worker usually works in a State, section 9AA (6) provides that temporary arrangements under which a worker works in a State for a period of not longer than six months are to be disregarded.

This will remove the need for employers to have two workers compensation policies for employees working temporarily interstate for up to six months. Other provisions in schedule 1 will enable the recognition of a determination of the State of connection made in another State and will enable the State of connection tests to also apply to common law claims against an employer. The reforms contained in schedule 1 will be of significant benefit to both workers and insurers. It will give employers with workers in different States clear guidelines on their workers compensation responsibilities. It will also provide injured workers with increased certainty about their workers compensation entitlements and common law rights.

Schedule 2 to the bill relates to compliance amendments. In June 2000 strategic directions for the WorkCover scheme were announced. One of the key aspects of the Government's workers compensation reform agenda, which I outlined at that time, is the development of strategies to improve employer compliance with workers compensation insurance obligations.

Where employers are not insured, or have not paid the correct amount of premium, the cost of any claims made by injured workers is picked up by the scheme. Also, if no premium is paid there is no economic incentive for employers to give priority to injury prevention. This is unacceptable and the Government takes the issue of employers avoiding their premium obligations very seriously. Major legislative reform of the compliance provisions was undertaken in December 2000 and July 2001. These amendments included an extension of liability for premium debt to directors of corporations; the ability to recover audit costs and charge employers interest on avoided premiums due to underdeclaration of wages; and increased penalties for non-insurance, failure to provide wage records for inspection, and failure to produce a workers compensation policy for inspection. The Government recognised that further strategies beyond these were necessary to ensure employer compliance with workers compensation.

In April 2001 a compliance working party was established under the Workers Compensation and Workplace Occupational Health and Safety Council to focus on strategies to address premium avoidance. The working party was comprised of representatives from peak employer and employee bodies. The working party identified a number of factors contributing to non-insurance, underinsurance and premium avoidance in the WorkCover scheme and put forward a number of proposals to address these factors. Proposals included options to extend the WorkCover scheme coverage to individual contractors, sole traders and partnerships; options to address underinsurance through monthly reporting; and options to address premium avoidance by related corporations and employers.

In September 2001 the Government released a workers compensation compliance green paper inviting public comment on the working party's proposals.

Earlier this year the Government appointed two special advisers on compliance, Ms Penny Le Couteur, an independent consultant, and Dr Neil Warren, Associate Professor of Economics at the University of New South Wales. The special advisers were asked to consider options and make recommendations on measures to substantially improve the level of employer compliance with workers compensation insurance and payroll tax obligations.

The submissions received in response to the green paper were considered as part of this broader review of employer compliance. During the course of the review, the special advisers undertook considerable consultation with stakeholders, including WorkCover, the Office of State Revenue and employer and employee representatives.

Broadly speaking, the special advisers have recommended that the WorkCover Authority and the Office of State Revenue adopt consistent approaches to the assessment and collection of payroll tax and workers compensation premiums using consistent definitions.

The recommendations contained in the final report include the alignment of definitions of "wages"; revision of payroll tax grouping provisions and their adoption for workers compensation purposes; and new provisions to oblige principals to be concerned with the workers compensation policies of contractors. 7718 LEGISLATIVE COUNCIL 4 December 2002

Schedule 2 to the bill amends the Workers Compensation Act 1987, to implement the special advisers' recommendations to improve workers compensation premium collection and minimise avoidance by employers.

The amendments contain provisions to adopt the recommendations made by the special advisers in relation to the definition of wages, the adoption of grouping and measures to oblige principals to be concerned with the workers compensation policies of contractors.

The amendments proposed in schedule 2 to the bill provide for the definition of "wages" to be amended to include the grossed-up value of fringe benefits, employer superannuation contributions, long service leave special expenses, allowances, director's fees or other sums given by the employer. The amendments also provide explicitly for distributions from trusts to beneficiaries to be considered to be wages, where the beneficiaries perform unpaid work. These changes will more accurately reflect true wages paid by taking into account different forms of remuneration and will reduce the scope for premium avoidance.

This definition of wages will apply to all policies written on or after 1 July 2003 and there will be an appropriate reduction in the workers compensation tariff rates to offset the additional premium, which will be collected as a result of broadening the definition. Proposed section 175B requires principal contractors to verify that their subcontractors comply with their workers compensation premium obligations. Principal contractors will be liable for payment of any amounts of workers compensation premiums not paid by their sub-contractors for work conducted for the principal contractor unless the principal contractor has a written statement and certificate of currency from contractors indicating that the correct premiums have been paid. This provision is similar to section 127 of the Industrial Relations Act 1996, which makes principals liable for any unpaid remuneration for employees of sub-contractors.

If a statement given by a contractor is known to be false or the principal does not receive a statement, the principal may withhold any payment due to the contractor until they receive an accurate statement. Each contractor is required to have a statement from any sub-contractor of its own, ensuring compliance along chains of contractors. This proposal provides principal contractors with a means of ensuring that correct workers compensation premiums have been paid by contractors and sub-contractors.

Schedule 2 to the bill inserts a new division into the Workers Compensation Act 1987 providing for the assessment of workers compensation premium based on employer groups. The grouping provisions in the Pay-roll Tax Act 1971 ensure that wages paid within a group, which is defined by reference to common ownership and control, are assessed together. The grouping provisions under the payroll tax legislation assess related employers as a group to prevent employers from splitting activities and reducing liabilities.

While there are currently provisions in workers compensation legislation that require some related entities to have their premium assessed on a group basis, these focus only on clerical and administrative support companies that are separated from core businesses.

They do not address the large numbers of parallel companies which would otherwise be part of one entity, which are used as a device to minimise premiums. The bill requires each group to have one workers compensation policy. Employers who are part of a group will need to nominate a principal employer to represent the group and to act on its behalf for correspondence and insurance information. The nominated member, usually the controlling entity of the group, will be required to submit a declaration specifying all members of the group, and that there are no other related entities.

Groups will include related trusts, partnerships and corporations. All members of a group will be jointly and severally liable for all premiums, penalties and all other liabilities under the Act.

Further consideration needs to be given as to how the grouping provisions will apply to organisations currently exempt from payroll tax, such as charities and religious organisations. Consultation with these organisations will be undertaken and any special issues will be considered.

The bill provides for a regulation making power giving WorkCover the discretion to determine how grouping will apply to such organisations. The provisions contained in schedule 2 will assist in ensuring employers comply with their workers compensation obligations.

Schedule 3 to the bill deals with a proposed amendment to the Sporting Injuries Insurance Act 1978. The purpose of this amendment is to enable the Sporting Injuries Committee to exempt a sporting organisation from participation in the Sporting Injuries Insurance Scheme under certain circumstances. An insurance exemption may only be granted if the committee is satisfied that the sporting organisation will have adequate private insurance for the period for which the exemption will be in force.

Professional sports people, those who receive remuneration, are regarded as workers under workers compensation legislation. Therefore, sporting organisations which employ professional sports people are required to take out workers compensation insurance.

This does not apply where the professional sports person is covered under the Sporting Injuries Insurance Scheme. Under the proposed amendment, sporting organisations that participate in private insurance schemes providing adequate private insurance may be exempted from the requirement to take out workers compensation insurance cover or participate in the Sporting Injuries Insurance Scheme. This will eliminate duplication as sporting organisations that have exemptions will no longer need to take out workers compensation cover or cover under the Sporting Injuries Insurance Scheme, in addition to a private scheme organised by the organisation.

The amendment requires the insurance provider to be an organisation that is authorised to carry on insurance business subject to regulation by the Australian Prudential Regulation Authority. Under the amendment injury and death benefits that will be paid under the private scheme should be at least equal to those offered under the Sporting Injuries Insurance Scheme. This makes it possible for sports persons to enjoy more generous benefits than are currently provided under the Sporting Injuries Insurance Scheme. 4 December 2002 LEGISLATIVE COUNCIL 7719

Sporting organisations will be required to pay a 10 per cent levy based on the rate of premium that they would otherwise have to pay, on each occasion of a grant or renewal of an insurance exemption, for the period of the exemption. The levy will be paid into the Sporting Injuries Fund to finance research into injury prevention. This will benefit all participants in the Sporting Injuries Insurance Scheme, and could reduce premiums for both the Sporting Injuries Insurance Scheme and approved private schemes.

The exemption may be granted for a period of up to 12 months renewable for further periods of up to 12 months, and is subject to approval by the Sporting Injuries Committee on satisfaction that the sporting organisation maintains adequate private insurance.

Schedule 4 to the bill addresses two issues: it facilitates the establishment of a single notification system for employers in relation to workplace injuries; and it makes a minor amendment to the Workplace Injury Management and Workers Compensation Act 1998 to confer protection from personal liability on approved medical specialists for acts and omissions in good faith in the exercise of functions under that Act.

These amendments will establish a single notification system for reporting workplace injuries and incidents, replacing the current dual reporting requirements for employers imposed by the Occupational Health and Safety Act 2000 and the Workplace Injury Management and Workers Compensation Act 1998.

The amendments will permit the notification required to be given by employers under the Workplace Injury Management and Workers Compensation Act 1998 to be given to either the insurer or to WorkCover. If notification is given to WorkCover, the authority is to forward the notice to the insurer. Similarly, if notice is given to the insurer, the insurer is to forward the notice to the authority.

The bill also provides for an amendment to the Occupational Health and Safety Act to provide that the giving of notice under the WorkPlace Injury Management and Workers Compensation Act 1998 will satisfy the notification requirements of section 86 of the Occupational Health and Safety Act. The effect of these changes will be to ensure prompt and accurate notification of all injuries, accidents and work-related illnesses and that a comprehensive database of these occurrences can be established.

The bill permits the making of regulations that will simplify the current notification requirements and facilitate the notification of data by telephone and over the internet. These regulatory changes will be matched by administrative changes that will be established in consultation with unions, employers and insurers to establish systems to encourage an exchange of information about notifications between WorkCover, insurers and employers.

To encourage prompt notification of workplace injuries by employers, financial incentives will be introduced. The bill specifically permits the making of regulations to prescribe different excess amounts payable by employers to their insurers in response to notification of injuries in certain time frames. For example, employers who notify within the specified time frames may pay a lower excess, or no excess, for that claim.

Conversely, employers who do not notify within the specified time frame may be required to pay a higher excess for that claim. These amendments should benefit employers by reducing their administrative burden in the area of reporting of workplace injuries, leading them to potentially benefit from a reduction of up to 50 per cent in costs as they move from two reporting systems to one. Simplification of the notification process will promote higher compliance and more reliable, accurate and timely information on injuries, illnesses and incidents.

The President of the Workers Compensation Commission may appoint approved medical specialists. An approved medical specialist may make an assessment of the degree of permanent impairment of an injured worker for the purposes of the workers compensation Acts where a medical dispute is referred by a court, the commission or the registrar. Accordingly, approved medical specialists are essentially carrying out functions related to the commission. The proposed amendment confers protection from personal liability on approved medical specialists for acts and omissions in good faith in the exercise of functions under the Act. The protection proposed for approved medical specialists is similar to that given to mediators under section 318G of the Act. The amendments contained in the bill will achieve significant reforms: to resolve cross-border issues, to improve compliance with workers compensation insurance requirements and to enable exemptions to be made available under the Sporting Injuries Insurance Act.

They merit the support of honourable members.

I commend the bill to the House.

I would like to add the following:

Concerns have been expressed about the width and impact of proposed clause 175B of the Bill.

Clause 175B ensures that a principal contractor who engages sub-contractors to perform work as part of their business undertaking have workers compensation insurance. For example, it is intended to apply to a builder who engages a series of sub- contractors to carry out the work and those sub-contractors engage employees to carry out the work.

However, a possible problem with proposed section 175B(13) is that it may extend to any contract undertaken by a person who runs a business, even if the connection with the business is tenuous. It has been argued that it may apply to a person in respect of their own home.

It is the government's intention that proposed section 175B should apply to work done as a core part of a business undertaking on business premises, not ancillary or incidental work.

Consequently, I will be moving an amendments in committee to clarify the operation of clause 175B (13) 7720 LEGISLATIVE COUNCIL 4 December 2002

PAY-ROLL TAX LEGISLATION AMENDMENT (AVOIDANCE) BILL

The Pay-roll Tax Legislation Amendment (Avoidance) bill contains amendments to the Pay-roll Tax Act 1971 and the Taxation Administration Act 1996. The amendments were recommended by two special advisers in a recently completed Report on Compliance with Workers Compensation Premiums and Pay-roll Tax.

Earlier this year, the Government appointed the two special advisers, Ms Penny Le Couteur, an independent consultant, and Dr Neil Warren, Associate Professor of Economics at the University of New South Wales, to undertake a review and make recommendations to improve compliance with pay-roll tax and workers compensation legislation.

The advisers were asked to examine measures to increase the level of compliance, and make recommendations on various issues including aligning definitions and administrative processes for pay-roll tax and workers compensation purposes.

The special advisers consulted with peak employer, employee and industry bodies and also with the Office of State Revenue and WorkCover.

An Interim Report was released for public comment on 7 June 2002, and attracted fifteen written submissions from a range of organisations including professional advisers, and peak industry and union bodies.

After taking these submissions into account, the special advisers presented their final Report to the Government in mid- September.

The report's recommendations include immediate, short term, and long term changes.

The Report proposes that consistent definitions of workers, employers and wages be adopted for pay-roll tax and workers compensation purposes.

The Report also recommends that WorkCover and the Office of State Revenue adopt consistent approaches to the assessment and collection of pay-roll tax and workers compensation premiums.

Implementation of these recommendations should significantly reduce compliance costs for employers, increase the ease of enforcement for WorkCover and the Office of State Revenue, and improve the transparency of the system.

As a first step it is proposed to amend the pay-roll tax and workers compensation legislation, with effect from 1 July 2003, to implement certain short-term recommendations.

These include common definitions of ordinary wages; the introduction of common grouping provisions; and placing an obligation on principal contractors to ensure their sub-contractors comply with workers compensation and pay-roll tax legislation.

This bill contains amendments to the Pay-roll Tax and Taxation Administration Acts to implement these short-term measures.

The remaining recommendations will require longer lead times and have significant implementation and operational implications.

These recommendations will be subject to further consultation with stakeholders to ensure they provide equitable and practical outcomes.

I will now explain in greater detail the pay-roll tax amendments contained in the Bill.

Definition of Wages

The special advisers recommended that the definition of wages for pay-roll tax be amended to tax certain payments which are part of the remuneration for services performed by employees, but which are not currently subject to pay-roll tax.

The changes include taxing the GST-inclusive grossed-up value of fringe benefits.

Currently, GST is excluded from the taxable value of fringe benefits, which provides an untaxed benefit to employees, equivalent to the amount of the GST. The changes also include removal of an exemption for lump sum payments of leave paid on termination where the leave accrued prior to 1 January 1990.

This exemption is redundant in many cases, but creates administrative difficulties, particularly in relation to record-keeping which means many employers may incorrectly claim the exemption, or may be unable to verify that they are entitled to claim it.

These changes will bring the New South Wales pay-roll tax legislation into line with most other States and Territories.

An avoidance practice identified by the special advisers will be dealt with by taxing distributions from trusts to beneficiaries, where the beneficiaries perform unpaid or under-paid work.

Grouping related employers and businesses

The existing grouping provisions under the pay-roll tax legislation assess related employers together as a group to prevent employers from splitting their businesses amongst several legal entities to reduce their pay-roll tax by claiming multiple threshold deductions. 4 December 2002 LEGISLATIVE COUNCIL 7721

The advisers recommended that the pay-roll tax grouping provisions be strengthened in relation to trusts, and simplified using recent A.C.T. legislation as a model.

The advisers also recommended that the upgraded provisions should be applied for workers' compensation purposes.

There are approximately 24, 000 employers registered for pay-roll tax, and about 4,600 separate groups consisting of approximately 9,500 separate employer entities.

The A.C.T provisions have a similar outcome to the NSW provisions in most respects, but have been written in simpler format. This makes the legislation easier to understand and should ensure a higher level of compliance by employers.

The bill will transfers the simplified grouping provisions from the Pay-roll Tax Act to the Taxation Administration Act.

This will facilitate the application and maintenance of uniform provisions for both workers compensation and pay-roll tax purposes.

The bill extends the circumstances in which the Chief Commissioner may exclude a business from a group where it is conducted by a trustee but is owned and operated independently of all the other members of the group.

Currently this discretion may only be applied where two businesses are grouped because they use common employees but the businesses are owned and operated substantially independently of each other.

Application of Principle in s.127 of the Industrial Relations Act 1996

The consultants have recommended that provisions similar to section 127 of the Industrial Relations Act 1996 be introduced to require principal contractors to verify that their subcontractors have complied with pay-roll tax and workers compensation premium liabilities.

The bill inserts such a provision into the Taxation Administration Act for pay-roll tax purposes.

The bill requires a principal contractor to obtain a certificate from their sub-contractors within 21 days after entering into a contract, indicating that the sub-contractor has complied with the pay-roll tax legislation.

A principal contractor who does not obtain a certificate, or knows that a certificate is false, will be liable for payment of any amounts of pay-roll tax not paid by the sub-contractor for work done for the principal contractor.

However, the principal contractor will be able to recover any such liability from the sub-contractor.

If a sub-contractor fails to provide a certificate as required, the principal contactor will be able to retain any amounts payable to the sub-contractor unless or until a correct statement is provided.

These obligations are not new to principal contractors as they already exist in section 127 of the Industrial Relations Act, in relation to remuneration payable but not paid by the sub-contractor to its employees.

I table a summary of the bill for the assistance of Honourable Members and seek its incorporation into Hansard.

I commend the bill to the House.

INDUSTRIAL RELATIONS AMENDMENT (INDUSTRIAL AGENTS) BILL

Termination of employment can be one of the most traumatic events in anybody's working life. Loss of a job and the security it brings are heavy burdens to bear, particularly for lower paid or less skilled workers.

For many years now, this State has had laws which recognise that the loss of a job is a burden that should not fall on a person without good reason, dependent on impulsive decisions of an employer. Where a dismissal was unfair, whether in substance, in process or in effect, the dismissed employee has the right to challenge it in the Industrial Relations Commission of New South Wales. Where the Commission finds there has been unfairness, it has power to order a remedy. The remedies, in descending order of priority, are reinstatement, re-employment or compensation.

However, this Government acknowledges the time, effort and money that it takes both to prosecute and to defend a claim of unfair dismissal. The burden of defending a claim may fall particularly heavily on smaller businesses, with less capacity to absorb such unexpected costs.

Because it believes in the integrity of the unfair dismissal system, the Government is also concerned about the unfair burden on business of defending vexatious or unreasonable claims.

The fact is that unfair dismissal is becoming, for some, a money game. And a money game attracts those prepared to take a gamble on getting a big payout. It is undeniable that claims that some claims are a 'try on'. Some employers may find it cheaper and quicker to 'pay off' the claimant than to expend time and energy on attending conciliation hearings and then preparing for the formal procedures of an arbitral hearing of the merits.

The Government has committed to take a complete overview of the unfair dismissal legislation as it operates in New South Wales. This has already commenced through the five-year review of the Industrial Relations Act. Restoring the primary remedy of reinstatement and examining the historical context of the dispute based role of unfair dismissals will be included in this review. 7722 LEGISLATIVE COUNCIL 4 December 2002

The first phase of this review will focus on the conduct of unscrupulous agents, who are not legal practitioners nor union or employer representatives.

Large numbers of industrial agents are a recent phenomenon in the Commission. They are not bound by the requirements that apply to either legal practitioners or industrial organisations. Some of them feed off the system, encouraging weak or baseless claims and holding out for the biggest monetary settlement possible. Such agents not only rip off the system – some of them rip off their clients as well. They promise 'no win, no pay', but then charge like wounded bulls for a win.

A system that permits such unethical behaviour and inappropriate outcomes is not doing anybody a favour. It is not in the best interests of the sacked employee or their former employer.

A survey by the Department of Industrial Relations has revealed a significant increase in the number of applications in which the applicant was represented by an agent. In a survey undertaken in 1998, only 4 per cent of applicants were represented by agents. In the 2001 survey, 18 per cent of applicants were represented by an agent. This is a significant increase and is not a issue which is going to go away.

I should point out that not all agents are simply money hungry. Of course, some of them are decent advocates, working for their clients best interests. The Government does not want to prevent these good people from doing their work. We simply want to put a stop to money hungry agents clogging the system and taking employers for a ride.

The proposed amendments will regulate the activities and conduct of industrial agents and deal with the difficulties that I have identified.

I now turn to the specific amendments.

A new definition in the Dictionary of the Act will define 'industrial agent' to mean a person, other than a legal practitioner or an employee or officer of an industrial organisation, who represents a party in proceedings before the Commission for fee or other award. Services performed by an industrial agent will be defined as 'industrial agent service'.

It is very important to note that the issue here is fee-charging agents. We are not seeking to prevent friends or family from assisting the applicant or employer in running a claim or response in relation to an unfair dismissal allegation.

Also, for the most part, these amendments do not deal with the conduct of industrial organisations in representing their members in unfair dismissal proceedings.

As has long been recognised, by High Court decisions as well as in the reality of the everyday functioning of the industrial relations system, industrial organisations of employees and employers are in themselves parties to that system, not mere delegates of their members. They have a unique place in the industrial relations system, and a commitment to maintaining the integrity and effective operation of that system. Such organisations have rules that regulate their relationship with their members. Certainly, I have had no complaints about industrial organisations failing to service their members appropriately in relation to unfair dismissal claims.

However, I have heard numerous complaints about the conduct of certain fee charging agents and it is appropriate that their conduct be regulated to protect their clients and also the integrity of the Commission's processes.

Most of the proposed amendments go no further than imposing on industrial agents similar restrictions to those that are currently imposed on legal practitioners under the Legal Profession Act 1987. There is evidence that some of these industrial agents are in fact persons who have been admitted as legal practitioners, who have allowed their practising certificates to lapse so that the rules of conduct that apply to legal practitioners no longer apply to them. This is clearly unacceptable.

Industrial agents representing either an applicant or employer in a claim where compensation is sought will be required to file a certificate certifying that the agent has reasonable grounds for believing, on the basis of provable facts, that the claim or the response to the claim has reasonable prospects of success. This is similar to the requirement imposed on legal practitioners by section 197L of the Legal Profession Act. The Commission will be able to award costs against an industrial agent who lodges a certificate in circumstances where the Commission considers there was no reasonable prospect of success.

Whilst legal practitioners are required to maintain trust funds in which to hold moneys on behalf of their clients, there is nothing that presently prevents an unethical agent from holding onto moneys received in relation to their clients' cases and not passing those moneys on to their clients. Under this bill, a payment made to an industrial agent will not be effective to extinguish the rights or liabilities of the parties. Where a party uses an industrial agent, the payment will have to be made directly to the party.

Section 166(2) of the Act currently requires legal practitioners to obtain the leave of the Commission before appearing in conciliation proceedings. The bill proposes that this requirement be extended to industrial agents. Although it can be expected that the Commission will grant leave in most cases, this amendment will empower the Commission to refuse leave in the case of notorious industrial agents, or industrial agents who do not comply with any of the other requirements that the bill will impose on them.

There was one complaint about industrial agents that concerned me more than any other. This was that some agents charge their clients, not for the work they actually do, but on the basis of how much money they get from their former employer. And this is based on a sliding scale. That is to say, the greater monetary payment they can obtain for their client, the greater a proportion of the winnings the agent claims for themself. With such a payment system in place, it is easy to see the incentives for the agent in chasing outrageously high settlements from the employer, and for resisting offers of reinstatement.

Legal practitioners are not permitted to charge fees in this way. The bill proposes to impose the same prohibition as that set out in section 188 of the Legal Profession Act on all fee-charging agents (including industrial agents, and employees and officers of 4 December 2002 LEGISLATIVE COUNCIL 7723

industrial organisations). Costs agreements will not be permitted to provide that costs are to be determined as a proportion of, or are to vary according to, the amount recovered in any proceedings to which the agreement relates. If a prohibited costs agreement is made, the client will not be bound to pay the costs and the agent will not be able to maintain proceedings for the recovery of those costs.

The costs of industrial agent services will have to be disclosed both to the client and to the Commission at or before the commencement of proceedings. If the industrial agent fails to make the required disclosure, the client will not be required to pay the costs of the representation and the agent will not be able to maintain proceedings for the recovery of those costs.

The proposals in this bill will protect participants in the unfair dismissal system from unscrupulous and unethical industrial agents. Agents will have to comply with the new requirements or get out of the unfair dismissal system. The amendments will ensure the smoother running of the system. This will be a benefit to all parties.

I commend the bill to the House.

The Hon. MICHAEL GALLACHER (Leader of the Opposition) [8.17 p.m.]: The Opposition intends to move amendments to the Workers Compensation Legislation Amendment Bill. It will probably come as no surprise to the Government that the Opposition has some serious concerns about the compliance aspect of the bill. It is our intention to vote against schedule 2. I will address the reasons for that in my contribution, and. I will also talk about other aspects of the bill that we do not oppose. We do not oppose allowing the Sporting Injuries Committee to exempt a sporting organisation from participation in the Sporting Injuries Insurance Scheme when those organisations have adequate private insurance. It was obvious from our consultations with a number of stakeholders in this area that the issue had to be addressed, and the Government is obviously taking this opportunity to do so. The Opposition also does not oppose protecting medical specialists from personal liability for acts or omissions in good faith.

The single notification of injuries and incidents under occupational health and safety legislation and workers compensation, rather than two notifications, is a sensible move that the Opposition is pleased to support. It simplifies matters for employers in the industrial relations system, which involves occupational health and safety, workers compensation and unfair dismissals. Employers need simplification, and this amendment is a step in the right direction. The Opposition does not oppose the proposed cross-border arrangements.

However, these amendments have a certain element of deja vu. I read with some interest the second reading speech, which was delivered in the other place by Ms Reba Meagher on 14 November. She said that for a number of years there has been concern about the need for employers to take out workers compensation for individual workers in more than one State. She said that during the past 10 years there had been a number of attempts to resolve these cross-border issues. Members should cast their minds back to 31 May 1995, when the Hon. Jeff Shaw, the Minister responsible for workers compensation at that time, said in the second reading speech on the Workers Compensation Legislation Amendment Bill:

A major issue in the bill is the proposed elimination of duplicated insurance requirements where a worker works in one or two of the States or Territories for the same employer ...

Based on consultations involving the Labor Ministers council, a proposal has been adopted for matching provisions to be placed in all State and Territory Workers Compensation Acts.

We have heard the words from Jeff Shaw and we have heard them from Reba Meagher. One would like to think that the Government, after all of its trying, may have got it right. However, the legislation was dropped not only on the Parliament but on the employers of this State. The Government may suggest that it consulted widely with employers, and particularly with employers involved in the advisory council, but there is no evidence of that when one speaks to employers. If 24 hours notification, consultation and involvement are sufficient, then it qualifies. But the legislation contains major reforms that require significant consultation, which means that the Government has failed.

The Opposition sought advice from a Queens Counsel about cross-border amendments. The Opposition would like to have worked with the Government during the last months of this Parliament to resolve cross- border arrangements but the Government did not involve too many people in its final decision. Consequently, there are still concerns and it is my intention to put them on the record. The advice I have been given is as follows:

The preamble to the amending legislation under clause 3.3 refers to the concern for the need for employers to take out workers compensation insurance in other jurisdictions. This need arose after the amendments were made to the Workers Compensation Act in 1987 and the subsequent amendments to the statutory policy which commenced on 1 November, 1996. Under the previous 7724 LEGISLATIVE COUNCIL 4 December 2002

1926 Act all policies of workers compensation covered liability under the Act and liability independently of the Act provided that the employment relationship existed.

The current wording of the statutory policy excludes liability to pay compensation under the laws of another State or Territory or indeed another country. Under the present law there is no confusion, and there has not been for many years.

A worker if he brings himself within the provisions of Section 13 of the Act, that is if he is employed in New South Wales by an employer who has a place of employment or a presence in New South Wales and he receives injury outside of New South Wales, then he is paid compensation under the New South Wales Act.

The problem arises in that he may have entitlements for compensation to be paid under the Act of another State. If he does make such a claim then and only in respect of compensation is there a need for the employer to have a policy not in New South Wales, but in another State. Thus, it becomes a forum shopping exercise.

In respect of common law damages the same situation applies although the New South Wales policy must respond to claims for common law damages because they are not compensation under an Act if proceedings are taken in another State or Territory. There is however no need for an employer to have a policy in another State to protect himself from the liability to pay damages in another State.

If the statutory policy reverted to the 1926 Act wording, that is, to pay workers compensation under the New South Wales Act or to indemnify the employer in respect of any claim either at workers compensation or common law independently of that Act, then the need for these amendments would disappear.

The view of the person giving the advice is that the complicated arrangements that are drafted in schedule 1 lead to more confusion and are unnecessary in light of the simple suggested amendment. If the Government were at all interested it would have consulted more widely and been prepared to consider it. Be that as it may, it has been a long-held view of the Opposition that we should continue to work towards solving these cross-border anomalies. However, it would appear on the advice we have been given that, as well meaning as these amendments are, they may not live up to their promise, in the same way that the contribution by the Hon. Jeff Shaw on 31 May 1995 failed to live up to the promises he made all those years ago. Schedule 2 makes principal contractors liable for workers compensation premiums when subcontractors are not insured or not adequately insured. The Opposition is fundamentally opposed to this principle.

There can be no doubt whatsoever that this revisits earlier legislation. It was Jeff Shaw who, in 2000, tried to sneak through legislation about independent contractors. He was caught up very quickly by the Opposition. The revelation subsequently required Jeff Shaw to split into two separate bills the proposed reforms for independent contractors and a raft of other industrial relations reforms. Consequently, the industrial relations reforms languished on the notice paper until the House was prorogued earlier this year, when they finally went off into the ether.

However, that does not mean that the Government is not fixated on subcontractors and independent contractors. It would appear that, yet again, the Government will have another go at subcontractors and principal contractors. We have sought advice from a broad spectrum of employee representatives who represent other principal contractors and subcontractors. They have spoken to members of the Opposition and crossbenchers and painted a stark and clear picture of exactly what will be the end result of this legislation if it is passed by the Legislative Council.

Members on the crossbenches should be under no illusion that these are the employer groups that spoke to them during earlier debates about workers compensation. They were supportive of the Government's workers compensation reforms. I know that their contributions weighed heavily on the minds of many members on the crossbenches and had an impact on their final decision. I know that Reverend the Hon. Fred Nile was persuaded by the argument put by employers about the impact of any delay in enactment of the legislation and what that would mean to premiums and jobs in this State. Those groups still have the same level of credibility with members on the crossbenches and other members of the House and they are now saying that they have not been consulted on this issue and that the Government is simply ignoring their predictions. Ron Jeffs, who represents contractors undertaking cleaning, facilities management, ground maintenance and security work, referred to the effect of the proposed changes on the definition of wages to include superannuation and long service leave. That amendment will add a minimum of 10.7 per cent to workers compensation premiums due to a larger wage base.

These and other proposed amendments to the legislation will have serious consequences for industry and the State. They will cripple the contract cleaning industry and put people out of business; they will increase unemployment and encourage illegal subcontracting. I ask honourable members to give serious thought to the process that the Government has used to progress this legislation through this place. It is hurried legislation and it is undoubtedly designed to revisit the issue of subcontracting that this House dealt with decisively in 2000. This is a sleight-of-hand tactic by the Government to revisit that issue. This legislation will have a significant effect on the ability of employers to pay premiums. 4 December 2002 LEGISLATIVE COUNCIL 7725

The Housing Industry Association is equally concerned about the effect this legislation will have on its members. It was very outspoken and said that the State Government was attacking small business and that this legislation would have a devastating effect on the housing industry in this State. It focused on the amendments regarding workers compensation and the broadening of the definition of wages, which is a key part of this legislation, together with the changes I have already outlined relating to making principal contractors liable for workers compensation premiums. All in all, the employers of this State have resoundingly rejected this legislation. If the Government continues with the bill in its current form it will do so knowing that employers and employees will suffer the consequences of the lack of consultation. I draw members' attention to new section 175B in schedule 2. Again, the Opposition sought advice about this issue. That advice states:

The subsection (2) makes the principal subcontractor liable in respect of workers compensation premiums for work done in connection with the contract during any period of the contract unless the principal contractor has a written statement given by the subcontractor under this Section for that contract.

Workers compensation insurance premiums are defined as including not only the original premium assessed but any amounts relating to double premiums and/or late payment fees payable.

This Section does not have a commencement date in respect of contracts entered into after a particular date.

Under subsection (4) the statement required from a subcontractor is to contain the following information:

(a) that all premiums in respect of the work being carried out for workers compensation have been paid together with a Certificate of Currency number for the policy:

(b) a statement as to whether there are any subcontractors working for the contractor;

(c) a statement by that subcontractor that his subcontractors provided him with such a written statement.

Pursuant to subsection (13) the Section is said to extend to owners or occupiers of the building carrying out work in connection with the building while ever they own or occupy the building. The intention of the Section is no doubt to make easier to recover premiums from employers who did not take out proper workers compensation, the practice that is rife in the building industry at the present time. Tactically, because the Section does not differentiate between any type of contract it will become an administrative nightmare for many corporations and for individuals.

This is best illustrated by some examples:

(a) The call to the neighbourhood plumber to fix the leaking pipe would require a householder to obtain the necessary form from the plumber before he could commence work. The householder would then have to keep that form for seven years in case no doubt the plumber failed to pay his insurance during the period;

(b) The same householder has a gas leak and calls AGL to repair the leak. The AGL repair man would have to have with him a form, no doubt signed by a person in authority, saying that AGL has workers compensation, a Certificate of Currency and therefore is able to do the job. If not, then the householder would under the draftsmanship of this Bill, be responsible for the premium for workers compensation for AGL in respect of that job;

(c) In an owner/builder situation where there are many tradesmen and suppliers providing single individual items under contract, each such supplier would have to provide the documentation, eg the company providing ready mixed concrete, the company providing bricks, the company providing the roofing tiles, in short anyone who was providing goods under a contract would have to provide the documentation.

The administrative nightmare this will cause is beyond imagination. Small business people who call in AGL to do repairs will be required to keep records for seven years to protect themselves. What will happen if five years down the track a claim is made and a company's records need to be investigated to work out how long a repairman worked on a particular job and what proportion of that work constituted the overall work done during the week in question so that any payment can be evenly distributed among the head contractors? Members can imagine the administrative nightmare that will cause WorkCover. These are not the ramblings of Opposition members who are concerned about confusing an issue sufficiently to stop any further reform. Heaven knows, we want continuing workers compensation reform to reduce premiums. We said that at the outset and we have continued to say it.

The Government has not been able to show how workers compensation premiums will be reduced. The Deputy-President, Reverend the Hon. Fred Nile, knows that better than I do. We are hanging out for a reduction in premiums in this State. There must be respite for employers. What has been the Government's answer? It has responded with more bureaucracy and red tape. It is pushing more responsibility down the line to employers and, in particular, to small business people. If the advice I have been given is correct, they will find this legislation unworkable. We still have substantial legislation to deal with this evening, so I do not intend to labour the point. The Opposition will oppose schedule 2, which deals with the compliance aspects of this legislation, simply because it is ill thought out. There is still too much work to be done to let this legislation go through. 7726 LEGISLATIVE COUNCIL 4 December 2002

I am quite happy for other legislation to proceed because the changes will hopefully address some problems. However, according to advice I have received, it does not appear that that will be so. The Opposition hopes that other aspects of the legislation will rectify problems faced by certain sectors in the workers compensation scheme. The Opposition will not agree to the ill-thought-out compliance reforms contained in schedule 2 becoming law in this State because of the effect they will have on employers and people in the building industry. If the building industry experiences a marked increase in its premiums home buyers will bear the cost. Builders, carpenters and plumbers will push that increase down the line to consumers. This could be avoided if schedule 2 were removed from the bill. The Government should redraft schedule 2 and reconsider its position. The Government has put employers and small business people in an unworkable position.

I turn to the Industrial Relations Amendment (Industrial Agents) Bill. This would have to be one of the greatest industrial backflips by this Government in recent times. During the past two months, while out in the public domain, the Premier specifically said the Government would reform unfair dismissal laws, in particular the matter of reinstatement. Honourable members might recall that there was a fair degree of media interest when the Premier said, "We are going to reform unfair dismissal laws in this State, and really get stuck into the issue of reinstatement." Under the Premier's proposals people were no longer to receive cash payment in unfair dismissals, but workers were to get their jobs back. The Premier made quite a song and dance about that. The Government released a paper that was an absolute lemon.

The only reform to come out of the proposed changes to unfair dismissal laws is this bill, which refers to industrial agents. The Government has run with that change because industrial agents are the smallest group to be affected by the reforms. The Government was assured that that group would have employers, unions and legal practitioners on side. That group is the one area within the industrial relations reforms that had consistency in decision-making at the Industrial Relations Commission. The remainder of the reforms have gone by the wayside. Some workers compensation reforms were astronomical. For example, one reform proposed that an employee could not be dismissed whilst his workers compensation case was ongoing. Of course, the law currently provides that someone in receipt of a workers compensation claim cannot be dismissed from the workplace for a period of six months whilst that matter is proceeding.

The Government was proposing to make that period indefinite, so that a worker could not be dismissed whilst his workers compensation claim was proceeding through the system. In some cases, a worker may be out of the workplace for years. Who would that affect? It certainly would affect all the small business people that I mentioned earlier when speaking about reforms to workers compensation legislation, people whom the Government seems to have completely ignored. I do not know which rocket scientist in the Government thought up changes to reinstatement laws. However, the Government again failed to consult with employers because, in real terms, it simply did not work. It may well be an objective of the Industrial Relations Commission, but if one considers the breakdown in any work relationship—which is similar to a breakdown in a personal relationship— once an irreconcilable point is reached no court and no jurisdiction can force the two parties back together or make the relationship work.

The Government's stand on forcing reinstatement down the line—to ensure that employees got their jobs back, to make that a primary focus—was inconsistent with the reality in the workplace. When a relationship breaks down in a small business it will not matter what the courts say. It is very difficult to get an employee and employer to patch up their differences and go back to work. It cuts both ways. In many instances employees do not want to go back into a working relationship where they no longer feel valued, wanted or liked. Similarly, employers do not want employees who no longer fit into the team to return to the workplace. The Government's position was incredibly bizarre considering that no consultation had taken place. Be that as it may, the Opposition was very quick to jump on this because it was a significant shift in focus by the Government. It was designed, first and foremost, to get union support back in line in the lead-up to the State election campaign.

Apart from the Premier, the only person who had been pushing the reform of unfair dismissal laws was the current State Secretary of the New South Wales Labor Council. He was incredibly supportive of this, and I can understand and respect the position that he took. However, I believe now—as I did when these matters were first raised—that his position about what was occurring in the workplace was unrealistic. This legislation, as with the workers compensation legislation, is nothing more than a last minute grab back of support from the union movement in the dying days of the Carr Government as it approaches the election campaign. The Government is still suffering from its earlier workers compensation reforms, and it is most certainly suffering in the minds of rank and file unionists who are thinking, "What is the use of backing these guys? This Labor Party in New South Wales doesn't want to listen to workers any more." 4 December 2002 LEGISLATIVE COUNCIL 7727

We all saw that on the steps of Parliament House when the Hon. Bob Carr, the Premier of New South Wales, gave the unionists in Macquarie Street the peace sign in reverse. We know what this Government's attitude to workers really is. The Government had to go a long way to rebuild some of the union's support, without pushing employers too far. The Government has tried to cover up the workers compensation legislation in such a way that it really affects only the building industry. This is all about ensuring that the right premium is being made in the building industry. The reality is that this goes beyond the building industry; it affects the road transport industry, the information technology industry, the film industry, the cleaning industry and all industries that rely on independent contractors in a significant way. The application of the legislation is very broad.

The industrial agents legislation is merely a replication of what I have just said—it is all about the Government trying to claw back union support in the lead-up to the State election campaign. The Government probably would not be too upset if it lost schedule 2 to the workers compensation legislation, because it knows that it is bad legislation. However, the Government is locked in on that legislation and has received delegations from employers. No doubt the Government has received communications from significant employers in the city concerning the impact the legislation will have on them. I would not be surprised if the Minister would not be all that upset if schedule 2 was knocked out. The Government has not been fighting very hard on this issue; it knows the Opposition has been pushing it. The employers have interviewed a number of the crossbenchers and I am told that they put a legitimate case to them. It is a matter for us to determine whether it was a strong enough case to get their support—that is a test we will see shortly.

The Industrial Relations Amendment (Industrial Agents) Bill will change the way in which industrial agents operate in the Industrial Relations Commission. Philosophically, I am not happy with the idea that industrial agents must disclose their fee structure to a client and the commission before or after the commencement of proceedings. I fully understand a requirement to disclose the fee structure to the client, because it is a master-servant relationship with regard to the service being supplied, but a requirement to disclose the fee structure to the commission is a little bizarre. What if the commission does not approve the fee structure as advised by the agent? What will the commission do about it? It appears that the legislation does not address the situation of the commissioner not accepting the fee structure as advised by the industrial agent. Is it suggested that the commissioner should advise the applicant to obtain another agent, or to perhaps sit down with the agent and reassess the fee structure? It appears that the legislation is not consistent in relation to the way in which others who appear before the Industrial Relations Commission are treated.

I acknowledge that there have been problems in the Industrial Relations Commission. I, for one, have often spoken about fishing expeditions in the commission, in which people encourage unfair dismissal cases to come forward when the matters are based on frivolous or vexatious allegations and there is little likelihood of the cases being successful. We have all heard anecdotal evidence of employers —and many of us have spoken to employers—who have been confronted with the reality that it will cost them $10,000 to $15,000 to defend a matter, and they have been advised that they should pay the employee concerned $5,000 simply to get rid of the problem. I will not use the expression that my learned colleague Tony Abbott uses to describe this unacceptable and probably illegal practice in Australian law, but employers find themselves in a situation where they are forced to pay off people to get rid of their problems, and of course that does not do the scheme any justice whatsoever.

I suspect that many industrial agents would be extremely hardworking, but if one believes the stories that emerge from the Industrial Relations Commission there are instances of industrial agents—as there probably would be instances of representatives of various unions and even employer representatives— encouraging cases that are baseless or without substantiation to proceed. The Government is simply seeking to tidy up this aspect with regard to industrial agents who, I am told, are not subjected to the same level of review as are legal practitioners and union representatives who appear before the Industrial Relations Commission. The Opposition will not oppose the Industrial Relations Amendment (Industrial Agents) Bill. I took this opportunity to place on record the Opposition's concerns. I reiterate that the Opposition will oppose schedule 2 to the Workers Compensation Legislation Amendment Bill.

Ms LEE RHIANNON [8.53 p.m.]: The Greens are generally supportive of the Workers Compensation Legislation Amendment Bill, which seeks to make further amendments to workers compensation legislation. The Greens are certainly concerned about the management of workers compensation in this State. We vividly recall the huge demonstration that was held in the precincts of the Parliament. It was an issue on which we campaigned long and hard in the many workplaces around the State. Labor's approach appears to be highly reactive and piecemeal, lurching from crisis to crisis, which is disappointing but not surprising because Labor can never accommodate its two competing constituencies—the big end of town and the remainder of the labour 7728 LEGISLATIVE COUNCIL 4 December 2002 movement that it tries to work with. We do not accept that the reforms to date, which have focused on reducing the compensation payable to injured workers, will either fix the problems with the system or deliver a fair amount of compensation to injured workers. The Greens have been highly critical of Labor's attacks on the rights of injured workers in the past, and we realise the need to continue to be vigilant on this aspect.

Throughout the debate on previous bills, the Greens consistently maintained that one of the key failings of the system is employer compliance. We constantly hear reports of shonky employers, particularly in the construction industry, who deliberately underpay their workers compensation premiums. It is not simply that they underpay their workers compensation premiums; they also do not put aside enough money for basic occupational health and safety measures. We read about many tragedies in the industry, and as legislators we need to take responsibility for those tragedies. It is shameful that, on average, one person in that industry dies every week. Of course, when this happens WorkCover has to pick up the bill for any compensation payments and its financial position is weakened accordingly. We are pleased that the Government is finally moving on this issue.

The Government's effort to tackle employer non-compliance is long overdue. It is too early to tell whether it will be successful. Certainly there has been opposition to it from the Housing Industry Association and the Opposition, and only time will tell whether the Government has found the best way to go about addressing the issue. Although the Greens support the Government's intention, we will certainly not hesitate to be critical down the track if this approach either does not work or brings about inadvertent hardships. The remaining provisions in the bill seek to make more minor reforms, such as addressing cross-border issues, with which the Greens do not take issue. The Greens will not oppose the Workers Compensation Legislation Amendment Bill.

The Greens support the Pay-roll Tax Legislation Amendment (Avoidance) Bill, which seeks to improve compliance with payroll tax legislation. The bill has arisen from the same review that led to the Workers Compensation Legislation Amendment Bill, and the Greens are supportive of it for largely the same reasons. We believe it is important to tighten up the many loopholes with regard to payroll tax. We acknowledge that there is an ongoing debate about whether payroll tax should be maintained, but while it is in existence we believe it should be applied across the board. The Greens also support the Industrial Relations Amendment (Industrial Agents) Bill. We believe there is a need for greater regulation of industrial agents, and we welcome that change.

The Hon. JOHN RYAN [8.57 p.m.]: The comments I wish to make relate primarily to the Pay-roll Tax Legislation Amendment (Avoidance) Bill. Essentially, the bill introduces what might be regarded as five amendments to the manner in which payroll tax is collected in this State. The Government's rationale is that these amendments reduce avoidance and make the collection of payroll tax more consistent across business. The Opposition agrees with four of the five reforms that the bill seeks to introduce. One of the reforms relates to trust distributions. The definition of "wages" is expanded to include any distribution from a trust to a person in lieu of wages. The purpose of that amendment is to close a loophole relating to the avoidance of payroll tax by paying employees through distributions from trusts. The Opposition supports that tightening up of payroll tax.

There is also the provision of an exemption of certain leave provisions from wages. Currently, any leave accrued prior to 1 January 1990 is excluded from the definition of "wages" for the purposes of a retirement or termination of employment. The legislation removes that exemption and makes the definition of "wages" consistent for the purposes of payroll tax and workers compensation premiums. The Opposition is pleased to support that reform. The definition of "fringe benefits" is to be expanded. The definition of "wages" currently includes fringe benefits exclusive of GST. The legislation amends the definition to include GST, and the Opposition supports that amendment.

Additionally, the legislation contains some grouping provisions that will be transferred to the Taxation Administration Act so that common provisions can be used for both payroll tax and WorkCover premiums. The definition of "business" will also be extended to include trusts. The Chief Commissioner of State Revenue can now exclude persons from a group if those persons carry on a business independently from the rest of the group. As I understand it, this provision has been included in the legislation because of the way some people structure their businesses. Businesses that were regarded as one large enterprise and which were taxed right across the enterprise were reducing their payroll tax burdens by specifying various parts of their businesses as separate enterprises. Businesses globally fell below the payroll tax schedule, and this enabled them to avoid payroll tax. That might have been understandable at the beginning, but it would not have taken long before the Government was unable to collect any form of payroll tax. The Opposition supports this reform. It will modernise and simplify grouping provisions. Trusts will now be included in groups for the purposes of payroll tax. 4 December 2002 LEGISLATIVE COUNCIL 7729

The Opposition has a concern about the liability of principal contractors for payroll tax debts. The bill states that principal contractors will have to obtain a certificate of compliance from their subcontractors verifying that payroll tax has been paid. A contractor who does not obtain such a certificate or who knows such a certificate to be false will become liable for payroll tax. Many contractors will find that provision extremely onerous and difficult to comply with. Contractors do not have the resources that government agencies have to check the veracity of subcontractors. It would be unfair to hold one law-abiding citizen responsible for the misdeeds of another, even though the law-abiding citizen might not be aware of another's misdeeds. This legislation will require principal contractors to be extremely rigorous in their supervision of subcontractors— which might prove difficult. Principal contractors would be liable for the payment of any amount of payroll tax not paid by contractors for work done unless they have a written statement from their contractors that indicates payroll tax has been paid. In our view, it will be difficult for principal contractors to comply with that onerous provision.

Small business groups that are extremely concerned about this provision expressed distress to Opposition members when this bill was being debated in another place. The Opposition subsequently moved amendments in an attempt to remove that provision from the bill. The integrity of the bill will not be jeopardised if that provision is removed. All the other provisions, which are not controversial, are acceptable reforms. Payroll tax has increased under this avaricious Government. The revenue that the Carr Government currently receives from payroll tax is more than sufficient. It does not need to implement an onerous regime of compliance against principal contractors. The Opposition will move an amendment in Committee that seeks to delete item [11] from schedule 1, which relates to the recovery of tax from principal contractors. If the Opposition's amendment is successful, it will also be seeking to move a consequential amendment to remove proposed clause 15. The Opposition attempted to delete those provisions in another place. If the Opposition's amendments are accepted by the Committee, we will happily support the bill. However, if the Opposition's amendments are not successful, we will oppose a bill that is fundamentally flawed and that will impact adversely on small businesses.

Reverend the Hon. FRED NILE [9.05 p.m.]: The Christian Democratic Party supports the Workers Compensation Legislation Amendment Bill, the Industrial Relations Amendment (Industrial Agents) Bill, and the Pay-roll Tax Legislation Amendment (Avoidance) Bill. The Workers Compensation Legislation Amendment Bill will continue the process commenced by the Government some years ago to reform the workers compensation system in this State. All members would be aware that the system is in deficit and is in need of radical surgery to reduce that deficit. It is obvious to me from the number of committee inquiries that I have chaired that some of the Government's reforms are working. There is still no dramatic change to the deficit, but it has not increased. The Government implemented a number of reforms to stabilise and reduce that deficit. A year or so ago that seemed to be an impossible task but we are now seeing some progress in that regard. There are some areas that can be improved.

The bill will provide a practical test for determining the State with which a worker's employment is connected. The bill, which was introduced to solve the problem of cross-border jurisdictional issues, will tie in with legislation that has been passed in other States, in particular in Queensland and that will be passed in due course in Victoria. The bill also seeks to improve employer compliance with the payment of workers compensation insurance premiums. A number of loopholes have added to the deficit. We must ensure that everyone is contributing fairly to the workers compensation scheme. The amendments adopt the recommendations of special advisers on compliance—Penny Le Couter, an independent consultant, and Dr Neil Warren, Associate Professor of Economics, University of New South Wales—in relation to the definition of wages, the adoption of grouping and measures to improve the compliance of contractors. I am sure that Opposition members still have reservations about whether those amendments will provide a degree of compliance. Every step that is taken, however small, is still important.

The bill will provide for a single system of notification to WorkCover of injuries, illnesses and other serious accidents—a positive move. The Government is not enthusiastic about self-insurance, but this legislation will enable the Sporting Injuries Committee to exempt a sporting organisation from participating in the Sporting Injuries Insurance Scheme if it is satisfied that the organisation has private insurance that provides benefits that are no less favourable than those that are available under the scheme. That is another positive aspect. Another amendment will extend protection from personal liability to approved medical specialists.

I refer next to the Industrial Relations Amendment (Industrial Agents) Bill. Complaints have been made about some fee charging agents who do not represent unions or employer organisations and other non-fee charging persons such as families or friends. There have been complaints about the conduct of some fee 7730 LEGISLATIVE COUNCIL 4 December 2002 charging agents, and this legislation will provide some regulation of industrial agents, who were virtually operating in a vacuum. It will prohibit industrial agents from appearing before the Industrial Relations Commission [IRC] and before conciliation proceedings without the leave of the IRC. This provision will introduce a form of accreditation for such agents. The bill will require industrial agents to disclose their fee arrangements both to their client and to the IRC. We support those practical arrangements.

The Pay-roll Tax Legislation Amendment (Avoidance) Bill attempts to close some loopholes that have been identified. It will extend the definition of ordinary wages, modernise the payroll tax grouping provisions and extend the obligations of principal contractors to ensure compliance by their subcontractors. The Opposition criticised the latter requirement as placing an added administrative burden on employers. However, I do not see any other way of proceeding as some people seem to be exploiting the subcontractor arrangements so as to avoid their responsibilities. This bill seeks to introduce controls for unpaid or underpaid services, particularly to trusts, in order to close a tax avoidance loophole. There is much talk about loopholes in the Senate at present, and it is important to legislate in this place to close any similar loopholes that may be exploited. That is the aim of this bill. We understand that it places some administrative pressure on, and creates an additional workload for, principal contractors, but we do not see how that can be avoided. We support the bills.

The Hon. IAN MACDONALD (Parliamentary Secretary) [9.11 p.m.], in reply: I thank honourable members for their contributions to the debate on the Workers Compensation Legislation Amendment Bill, and I will address some of the issues that have been raised, particularly regarding the compliance amendments. I note that concerns were expressed about the bill's grouping provisions and their impact on multi-tariff policies. Sections 168 and 169 of the Workers Compensation Act 1987 provide for insurance premiums to be calculated in accordance with the insurance premiums order. These provisions are not affected by the bill. Employers who carry on two or more distinct business activities will continue to be eligible for the multi-tariff policies. Furthermore, with regard to grouping, proposed sections 175D and 175E allow WorkCover to make determinations on a case-by-case basis in relation to members of groups. These provisions have been included to address potential impacts on some employers, particularly those currently exempt from the payroll tax grouping provisions. WorkCover will be consulting with employers about this issue prior to the implementation of grouping for workers compensation purposes from 1 July 2004.

I have committed to offsetting the broadened definition of wages for workers compensation premiums with a corresponding reduction in the tariff rates. The determination of an appropriate level of reduction will be referred to the WorkCover scheme actuaries as part of the premium-setting process for the 2003-04 policy year. Issues have been raised in the debate about the practicality of proposed section 175B. It is essentially the same as section 127 of the Industrial Relations Act 1996, which makes a principal contractor liable for the remuneration of the employees of subcontractors when the work carried out is in connection with a business undertaking of the principal contractor, unless the principal contractor has a written statement given by the subcontractor that all remuneration payable to the relevant employees has been paid.

Proposed section 175B will operate in a similar fashion. I believe it will not have an undue impact on business; it will simply build on the existing requirements imposed on principal contractors under section 127 of the Industrial Relations Act. The existing requirements under section 127 can be easily modified to include the additional requirements under proposed section 175B. Far from weakening the ability of employers to control risk through the imposition of liability to make payment for premiums on behalf of subcontractors, the provision recognises that in most cases it is the principal contractor who has the greatest capacity to control risk. The proposed section is intended to ensure that, as a matter of good business practice, principal contractors will ensure that their subcontractors are covered properly for workers compensation insurance and that subcontractors make their appropriate contribution to the payment of workers compensation premiums. The Government amendments to these provisions make it absolutely clear that they apply only to work done as a core part of a business undertaking. The Leader of the Opposition has expressed concerns about the width and impact of proposed section 175B, and I have just addressed those concerns. I commend the bill to the House.

Question—That the Workers Compensation Legislation Amendment Bill be now read a second time—put.

Motion agreed to.

Workers Compensation Legislation Amendment Bill read a second time. 4 December 2002 LEGISLATIVE COUNCIL 7731

In Committee

Clauses 1 to 3 agreed to.

Schedule 1 agreed to.

Schedule 2

The Hon. IAN MACDONALD (Parliamentary Secretary) [9.16 p.m.], by leave: I move Government amendments Nos 1 and 2 in globo:

No. 1 Page 18, schedule 2[10], proposed section 175B (1) (c), lines 31 and 32. Omit all words on those lines. Insert instead:

(c) the work is carried out in connection with a business undertaking of the principal contractor and is work that is an aspect of the work of that business undertaking.

No. 2 Page 21, schedule 2[10], proposed section 175B (13), lines 1-5. Omit all words on those lines. Insert instead:

(13) This section does not apply in respect of a contract entered into by the principal contractor for carrying out of work at the principal place of residence of the principal contractor.

(14) The regulations may exempt from the operation of this section any contract, work, principal contractor or subcontractor of a class or description specified in the regulations.

As I indicated previously, the purpose of these amendments is to clarify the intended operation of clause 175B of the bill. The first amendment makes it clear that for a person to be a principal contractor the work done by employees of a subcontractor must be work that is carried out in connection with a business undertaking of the principal contractor. The additional words "and is work that is an aspect of the work of that business undertaking" have been added to make it clear that the operation of the clause is confined to the core part of the business undertaking. Amendment No. 2 removes the existing words in clause 175B (13) and inserts a new form of words, as follows:

This section does not apply in respect of a contract entered into by the principal contractor for carrying out of work at the principal place of residence of the principal contractor

This makes it clear that clause 175B does not apply to work carried out in a person's home. In response to representations from many people in regional areas, including Country Labor members, amendment No. 2 also inserts subclause (14) in clause 175B. Subclause (14) will allow regulations to be made to exempt classes of business undertakings from the operation of clause 175B. The Government will exercise its power to exempt farmers from this obligation as the responsibility lies more correctly with the principals they retain to carry out necessary farm works. The Government believes these amendments will address concerns that have been expressed about the operation of the clauses, and I commend them to honourable members.

The Hon. MICHAEL GALLACHER (Leader of the Opposition) [9.19 p.m.]: The Government has prepared these amendments very hastily. I note from the bottom of the amendment sheet that they were typed at 8.51 p.m., so they are only half an hour old.

The Hon. Jan Burnswoods: It might have something to do with there having been no computers.

The Hon. MICHAEL GALLACHER: This legislation has been on the books for some time now. The Hon. Jan Burnswoods should stay out of issues about which she has no understanding. She should stick with what she does best.

The Hon. Duncan Gay: She has not done so in the past, so why would she do so now?

The Hon. MICHAEL GALLACHER: If we want her contribution we will call on her. The Government has dealt with these amendments in globo. The Opposition has not had an opportunity to speak to anyone within the building community in relation to amendment No. 1, which deals with proposed section 175B (1) (c) as follows:

(c) the work is carried out in connection with a business undertaking of the principal contractor and is work that is an aspect of the work of that business undertaking.

The Opposition does not oppose that amendment, but questions may be raised in the fullness of time. Having seen this legislation only half an hour ago it is very difficult to know of its impact. The Opposition does not 7732 LEGISLATIVE COUNCIL 4 December 2002 oppose amendment No. 1, but has significant concerns about amendment No. 2, which relates to clause 14. It is an absolute ripper. It states that the regulations may exempt from the operation of this measure any contract, work, principal contractor or subcontractor of a class or description specified in the regulation. That is probably best described as work in progress.

The Government has not yet made up its mind but it wants us to trust that it knows what it is doing, just as it did with the independent contractors legislation. The Government wants to work on this legislation during the next few weeks and then amend it by regulation. There is no way in the world that the Opposition could support an amendment worded in that way. The Government has not worked out the legislation yet but wants us to give it a chance because the computers are not working, as the Hon. Jan Burnswoods said. The Opposition will oppose amendment No. 2. The Opposition is also concerned about compliance, for example, in relation to the grouping issue, about which there has not been enough consultation. I am told that that will have an enormous impact on some corporations and that it will be devastating in terms of employment in New South Wales. For that reason the Opposition will continue to oppose amendment No. 2.

The Hon. JOHN JOBLING [9.22 p.m.]: As the Opposition agrees with amendment No. 1 but has problems with amendment No. 2. Under Standing Order 106 I request that these questions on these two amendments be put seriatim.

Amendment No. 1 agreed to.

Question—That amendment No. 2 be agreed to—put.

The Committee divided.

Ayes, 21

Dr Burgmann Mr Hatzistergos Ms Tebbutt Dr Chesterfield-Evans Mr R. S. L. Jones Mr Tsang Mr Cohen Mr Macdonald Mr West Mr Corbett Reverend Dr Moyes Mr Costa Reverend Nile Mr Della Bosca Mr Oldfield Tellers, Mr Dyer Ms Rhiannon Ms Burnswoods Mr Egan Ms Saffin Mr Primrose

Noes, 12

Mr Gallacher Mr Lynn Miss Gardiner Ms Pavey Mr Gay Mr Pearce Tellers, Mr Harwin Dr Pezzutti Mr Jobling Mr M. I. Jones Mr Ryan Mr Colless

Pairs

Ms Fazio Mrs Forsythe Mr Obeid Mr Samios

Question resolved in the affirmative.

Amendment No. 2 agreed to.

Question—That schedule 2 as amended be agreed to—put.

The Committee divided.

Ayes, 21

Dr Burgmann Mr Hatzistergos Ms Tebbutt Dr Chesterfield-Evans Mr R. S. L. Jones Mr Tsang Mr Cohen Mr Macdonald Mr West Mr Corbett Reverend Dr Moyes Mr Costa Reverend Nile Mr Della Bosca Mr Oldfield Tellers, Mr Dyer Ms Rhiannon Ms Burnswoods Mr Egan Ms Saffin Mr Primrose 4 December 2002 LEGISLATIVE COUNCIL 7733

Noes, 12

Mr Gallacher Mr Lynn Tellers, Miss Gardiner Mrs Pavey Mr Gay Mr Pearce Mr Harwin Dr Pezzutti Mr Colless Mr M. I. Jones Mr Ryan Mr Jobling

Pairs

Ms Fazio Mrs Forsythe Mr Obeid Mr Samios

Question resolved in the affirmative.

Schedule 2 as amended agreed to.

Schedules 3 and 4 agreed to.

Title agreed to.

Workers Compensation Legislation Amendment Bill reported from Committee with amendments and passed through remaining stages.

Second Reading

The PRESIDENT: Order! The House will now resume the second reading debate on the Pay-roll Tax Legislation Amendment (Avoidance) Bill.

The Hon. IAN MACDONALD (Parliamentary Secretary) [9.36 p.m.], in reply: I thank honourable members for their contributions to the debate on the Pay-roll Tax Legislation Amendment (Avoidance) Bill. I seek leave to incorporate in Hansard my response to the issues raised in debate on this bill both here and in the other place.

Leave granted.

Under certain artificial structures, a trust may provide a link in a chain of ownership or control, but the trustee may claim not to be conducting a business.

The amendments will overcome this potential avoidance mechanism.

However, the chief Commissioner's power to grant relief from the grouping provisions will also be extended so that trust businesses can be excluded from a group if there is no substantial business connection between the trust and other businesses in the group.

Liability of principal contractors

I turn now to issues raised by the Opposition in relation to the proposal to extend an existing certification process under the Industrial Relations Act which currently applies only to unpaid wages.

The Bill extends this concept to include pay-roll tax as recommended by the special advisers.

Similar amendments contained in another Bill will also apply a similar certification process to unpaid workers compensation premiums.

The existing requirements in relation to unpaid wages, and the new requirements in relation to pay-roll tax and workers compensation premiums will be capable of being combined into a single statement of compliance, to minimise the additional administrative burden on employers.

The Industrial Relations Act currently requires a principal contractor to obtain a statement from each sub-contractor that all remuneration payable to the sub-contractor's employees has been paid.

The principal contractor becomes liable to pay any unpaid remuneration to the sub-contractor's employees if such a certificate is not obtained.

In a similar vein, this Bill will make principal contractors liable for payment of any amounts of pay-roll tax not paid by their sub- contractors for work done for the principal contractor, unless the principal contractor has a written statement from the sub- contractors indicating that the pay-roll tax liability has been paid. 7734 LEGISLATIVE COUNCIL 4 December 2002

The principal contractor's liability in relation to pay-roll tax will only arise if a sub-contractor has failed to pay tax within 60 days after the end of a financial year. All liable employers are required to lodge their annual pay-roll tax return within 21 days after the end of each financial year, so the principal contractor will only have a liability where a sub-contractor is already in default.

If a principal contractor does not hold a statement of compliance provided by the sub-contractor, but becomes aware that the sub- contractor is a pay-roll tax defaulter, the principal may withhold any payments due to the sub-contractor until a statement is provided.

These requirements will not destroy the independent business status of sub-contractors who themselves employ workers, because the primary liability to pay tax remains with the sub-contractor. Even if a principal contractor fails to obtain a statement and is required to pay the sub-contractor's liability, the principal contractor will be able to recover that amount from the sub-contractor, and will be able to retain and use any money owed to the sub-contractor for that purpose.

The legislation will have little impact on the majority of contractors who comply with their pay-roll tax obligations. However, it will help put an end to collusion between principal contractors and sub-contractors to gain a competitive advantage by evading their tax obligations.

The special advisers Report states that there is a common belief that significant premium and tax revenues are being lost as a result of such evasion, although it is impossible to quantify the extent of the problem.

The measures in the Bill will go a considerable way towards limiting the problem of evasion of pay-roll tax, at least to the extent that it relies on complicity between principal contractors and sub-contractors.

Question—That the Pay-roll Tax Legislation Amendment (Avoidance) Bill be now read a second time—put.

Motion agreed to.

Pay-roll Tax Legislation Amendment (Avoidance) Bill read a second time.

In Committee

The CHAIRMAN: The Committee is dealing with the Pay-roll Tax Legislation Amendment (Avoidance) Bill.

Clauses 1 to 4 agreed to.

Schedule 1

The Hon. JOHN RYAN [9.38 p.m.], by leave: I move Opposition amendments Nos 1 and 2 in globo:

No. 1 Pages 8-10, schedule 1 [11], proposed Part 5B, line 1 on page 8 to line 22 on page 10. Omit all words on those lines.

No. 2 Page 11, schedule 1 [14], proposed clause 15, lines 19-25. Omit all words on those lines.

As I explained during the second reading debate, the purpose of these amendments is to remove iniquitous clauses in the bill which make an outrageous impost on contractors. Those clauses will make contractors liable for the pay-roll tax of some of their sub-contractors if they are unfortunate enough to discover that they have been misinformed about whether they have met these liabilities.

This is an outrageous impost on subcontractors, who are the backbone of small business. The Government is being unfair. To use the Treasurer's description, this is a silly provision that is not worthy of being passed by Parliament. The clauses of this bill should be returned to the drawing board and reconsidered. They are outrageous; they are onerous on small business; and they are iniquitous. The only fair thing to do is remove them. The Opposition urges the Committee to support it in removing these outrageous clauses. In doing so, we will have the support of small business in this State. I commend the amendments to the Committee.

The Hon. IAN MACDONALD (Parliamentary Secretary) [9.40 p.m.]: The Government opposes amendments Nos 1 and 2 moved by the Hon. John Ryan. The existing certification process under the Industrial Relations Act currently applies only to unpaid wages. The bill extends this concept to include payroll tax, as recommended by the special advisers. Similar amendments contained in another bill will apply similar certification processes to unpaid workers compensation premiums. The existing requirements in relation to unpaid wages and the new requirement in relation to payroll tax and workers compensation premiums are capable of being combined into a single statement of compliance to minimise the additional administrative burden on employers. 4 December 2002 LEGISLATIVE COUNCIL 7735

The Industrial Relations Act currently requires a principal contractor to obtain a statement from each subcontractor that all remuneration payable to the subcontractor's employees has been paid. The principal contractor becomes liable to pay any unpaid remuneration to the subcontractor's employees if such a certificate is not obtained. Similarly, this bill will make principal contractors liable for payment of any amounts of payroll tax not paid by the subcontractors for work done for the principal contractor unless the principal contractor has a written statement from the subcontractor indicating that the payroll tax liability has been paid. In other words, it puts the onus back.

The principal contractor's liability in relation to payroll tax will only arise when a subcontractor has failed to pay tax within 60 days after the end of the financial year. All liable employers are required to lodge their annual payroll tax return within 21 days after the end of each financial year so the principal contractor will only have a liability when a subcontractor is already in default. If a principal contractor does not hold a statement of compliance provided by the subcontractor but becomes aware that the subcontractor is a payroll tax defaulter, the principal may withhold any payments due to the subcontractor until a statement is provided.

These requirements will not destroy the independent business status of subcontractors who themselves employ workers, because the principal liability to pay tax remains with the subcontractor. Even if a principal contractor fails to obtain a statement and is required to pay a subcontractor's liability, the principal contractor will be able to recover that amount from the subcontractor and will even be able to retain and use any money owed to the subcontractor for that purpose. The legislation will have little impact on the majority of contractors, who comply with payroll tax obligations. However, it will help put to an end to collusion between principal contractors and subcontractors to gain a competitive advantage by evading their tax obligations.

The special advisers' report states that there is a common belief that significant premiums and tax revenues have been lost as a result of such evasions, although it is impossible to quantify the extent of the problem. The measures in this bill will go a considerable way to limiting the problem of evasion of payroll tax, at least to the extent that it relies on complicity between principal contractors and subcontractors. As a consequence, the Government opposes the two amendments moved by the Hon. John Ryan.

The Hon. MALCOLM JONES [9.43 p.m.]: According to the Australian Taxation Office a subcontractor is somebody who receives income from multiple sources. If a person does not receive income from multiple sources, he is an employee. The Hon. Ian Macdonald rattled off his answer like a Gatling gun and I was trying to pick out what he said. I will ask him about a specific example and I would like him to tell me the situation. If a building contractor employs a large subcontractor bricklayer and the bricklayer subcontractor receives income from multiple sources, how will the building contractor be able to determine what payroll tax he is responsible for, when the payroll tax liability of the bricklayer would include other income? Does the honourable member understand my question?

The Hon. Ian Macdonald: When you have finished I will provide you with an answer.

The Hon. MALCOLM JONES: I am asking whether you understand it.

The Hon. Ian Macdonald: It is irrelevant whether I understand it. I will give you an answer.

The Hon. MALCOLM JONES: I would like it on the record that it is irrelevant whether the Hon. Ian Macdonald understands the question or not.

The Hon. IAN MACDONALD (Parliamentary Secretary) [9.45 p.m.]: The short answer to the question asked by the Hon. Malcolm Jones is that the principal contractor's liability is restricted to wages paid by the subcontractor, and that only.

Question—That the amendments be agreed to—put.

The Committee divided.

Ayes, 12

Mrs Forsythe Mrs Pavey Mr Gallacher Mr Pearce Miss Gardiner Dr Pezzutti Tellers, Mr Gay Mr Ryan Mr Colless Mr M. I. Jones Mr Samios Mr Jobling 7736 LEGISLATIVE COUNCIL 4 December 2002

Noes, 21

Dr Burgmann Mr Hatzistergos Ms Tebbutt Dr Chesterfield-Evans Mr R. S. L. Jones Mr Tsang Mr Cohen Mr Macdonald Mr West Mr Corbett Reverend Moyes Mr Costa Reverend Nile Mr Della Bosca Mr Oldfield Tellers, Mr Dyer Ms Rhiannon Ms Burnswoods Mr Egan Ms Saffin Mr Primrose

Pairs

Mr Harwin Ms Fazio Mr Lynn Mr Obeid

Question resolved in the negative.

Amendments negatived.

Schedule 1 agreed to.

Schedule 2 agreed to.

Title agreed to.

Pay-roll Tax Legislation Amendment (Avoidance) Bill reported from Committee without amendment and passed through remaining stages.

Second Reading

The PRESIDENT: Order! The House will continue to deal with the Industrial Relations Amendment (Industrial Agents) Bill.

The Hon. IAN MACDONALD (Parliamentary Secretary) [9.53 p.m.], in reply: I thank honourable members for their contributions to debate on the Industrial Relations Amendment (Industrial Agents) Bill. This bill deals with industrial agents representing parties in proceedings before the Industrial Commission of New South Wales. The industrial relations framework in New South Wales is aimed at offering a relatively low-cost means of dealing with industrial issues. The Act has always recognised that parties may want assistance in putting together their claims and being represented in the commission. Section 166 of the Act recognises the right of parties to choose to be represented by a variety of persons, including agents, whether fee charging or otherwise.

The vast majority of agents are ethical and scrupulous in their conduct and their presence assists both the parties and the commission in achieving appropriate outcomes. This bill is not intended to interfere with the role played by such agents. The proposals in the bill are clearly focused on the problems that have been revealed to the Government in its consideration of this issue. By focusing on reducing the excessive and unreasonable profits that agents can make from representing parties in the commission, the bill reduces the motivation for agents to exploit the system and their clients. The bill will protect parties from unethical agents and reduce the number of vexatious or unreasonable claims that businesses are forced to deal with. It will make the unfair dismissal system in particular operate more professionally and predictably. I commend the bill to the House.

Question—That the Industrial Relations Amendment (Industrial Agents) Bill be now read a second time—put.

Motion agreed to.

Industrial Relations Amendment (Industrial Agents) Bill read a second time and passed through remaining stages. 4 December 2002 LEGISLATIVE COUNCIL 7737

GENERAL PURPOSE STANDING COMMITTEE No. 5

Government Response to Report

The Hon. Ian Macdonald, pursuant to a resolution of the House of 4 June 2002, tabled the Government's response to Report No. 10, entitled "Inquiry into Oil Spills in Sydney Harbour", tabled on 29 May 2001.

Ordered to be printed.

GENERAL PURPOSE STANDING COMMITTEE No. 5

Government Response to Report

The Hon. Ian Macdonald, pursuant to a resolution of the House of 4 June 2002, tabled the Government's response to Report No. 13 "Sydney Water's Biosolids Strategy", tabled on 29 November 2001.

Ordered to be printed.

ADJOURNMENT

The Hon. IAN MACDONALD (Parliamentary Secretary) [9.57 p.m.]: I move:

That this House do now adjourn.

Mrs CHRISTINE AND Mr BARRY MILLER RURAL PROPERTY ELECTRICITY CONNECTION

The Hon. DUNCAN GAY (Deputy Leader of the Opposition) [9.57 p.m.]: Yesterday I spoke about bureaucratic bungling in local government. Tonight I want to speak about another case of bureaucratic bungling, this time in the State-owned energy sector. I have been contacted by Christine and Barry Miller, a couple who purchased a rural property at Glen Davis, which is near Lithgow, to fulfil the great Australian dream of home ownership in a rural setting. The Millers first contacted Integral Energy to arrange electricity connection in February this year. The Millers have informed me that it took some seven weeks for an Integral staff member to visit their property to discuss connection options. Apparently the original design for connection was not acceptable, and in May this year the Millers submitted a revised plan to Integral's Lithgow office. After a further delay, the Millers were apparently advised that design staff were snowed under and that they should try a private contractor.

The Millers contacted Country Energy in Bathurst, obtained a quote and decided to utilise that organisation's services in the hope that their electricity would be connected quickly. That has not been the case. They were told it would still take two to three months to complete the works. In July the Millers were advised by Integral Energy that a bond payment of $6,600 must be made. The payment was made, and the design brief, which had been prepared by Integral Energy, was delivered to Country Energy in Bathurst. Country Energy subsequently had to lodge the design brief with Integral Energy for approval, which can take up to four weeks. What a ridiculous situation! How can it take four weeks for Integral Energy to approve a design that it had prepared in the first place?

On 30 September the Millers were advised that approval had been given by Integral Energy, and the design was sent back to Country Energy for a quotation. The Millers also sought a quotation from Integral in an effort to determine how to get the power on quickly. Some eight months after the initial contact there was still no sign of a connection being made. On 11 November this year the Millers were advised by Integral that the quotation was complete, with an estimated construction time of between six and eight weeks. I am sure that all honourable members understand the frustrations of the Millers. This is not a Third World country. Glen Davis is not thousands of kilometres from civilisation, but just beyond the Blue Mountains. There is a problem here that needs to be resolved. Although the Millers have been given a firm pre-Christmas completion date for the connection of electricity, I remain concerned that it took the best part of a year to arrange a relatively simple connection. As Christine Miller pointed out in a letter to me:

All we need are two power poles, running from the pole on the road right outside our front gate, to the termination point about 240 metres from Integral's pole, in a straight line. It is dead simple.

It should have been dead simple, and it should not have taken such a long time. I have written to the Chief Executive Officer of Integral Energy to seek an explanation and I have also asked for details of the number of design staff at Integral Energy now, compared to what it had five years ago. I believe that the case of Barry and 7738 LEGISLATIVE COUNCIL 4 December 2002

Christine Miller, who have been living with a gas fridge and limited on-site power sources for the best part of a year, is symptomatic of a wider problem in the State-owned electricity industry. The Coalition is already committed to a full, independent audit of the State electricity industry to determine where investment in staffing levels need a boost to provide a reliable service. The Minister for Energy talks about the importance of alternative and sustainable energy sources. That is fine—it should be commended—but the Minister also should ensure that the basic structures of the energy industry in this State are working properly, and that people such as the Millers are looked after.

INDEPENDENT COMMISSION AGAINST CORRUPTION ANNUAL REPORT

The Hon. JOHN HATZISTERGOS [10.02 p.m.]: Last month the Independent Commission Against Corruption [ICAC] released its annual report for 2001-02. The report shows the extensive inroads that the commission has made in the investigation and prevention of corrupt conduct. It also positively highlights the commission's continued efforts in the education and promotion of corrupt-free practices in the community and in the public sector. Those successes aside, it is disturbing that the commission found that while individuals had acted corruptly and had been recommended for prosecution, their cases had never reached the courts because the Director of Public Prosecutions had determined that there was insufficient evidence. I will discuss four cases in particular.

The first involved an investigation into the conduct of local council waste depot weighbridges at St Peters and elsewhere. The commission's focus was on two particular weighbridges. The first was at St Peters, where the operators were alleged to have accepted bribes from operators of commercial waste disposal businesses to understate the quantity of waste tipped at the depot by those businesses. The second was at south Woy Woy, where operators were alleged to have accepted bribes from the proprietors of a number of commercial waste depot businesses in return for permitting those businesses to tip waste at the depot without charge. In chapter 7 of its report the commission found that six individuals and one company had acted corruptly and, accordingly, recommended that consideration be given to prosecution for an offence under section 249b (1) of the New South Wales Crimes Act 1900. None of those charges eventuated.

The second investigation involved the conduct of an alderman of Fairfield City Council. The commission analysed the conduct of Alderman Morizzi and specifically his dealings with Neeta Homes Pty Ltd and Neeta Constructions Pty Ltd. It was alleged that Alderman Morizzi corruptly solicited $50,000 from the Neeta group of companies in relation to the development of the Neeta City Shopping Centre at Fairfield. His dealings with the management and staff of the business trading as Wanless Scrap Metal at Wetherill Park were also scrutinised. It was found that he had acted corruptly in receiving sums of money in relation to the construction and continued operation of a car fragmentiser or shredder at the Wetherill Park premises. In those matters the commission found, in page 3 of its report, that five individuals had engaged in corrupt conduct, and recommended their prosecution. Once again the director found that the evidence was insufficient to justify such action.

The third investigation related to the former State Rail Authority of New South Wales. Following an extensive investigation the ICAC found a number of instances involving theft and sale of SRA property and laundering of the proceeds. It also found overtime abuse, bribery and favouritism in the allocation of rail structures maintenance work, and conflicts of interest and dishonesty in allocation of carriage cleaning contracts. A large number of individuals were recommended for prosecution but once again that did not occur.

The fourth investigation concerned the 1993 Byron residential development strategy. The commission scrutinised the circumstances surrounding the formulation and adoption of Byron Shire Council's residential development strategy, particularly as it dealt with McGettigans Lane and the conference centre site. The ICAC found in its report that, whilst none of the persons directly involved in the decisions relating to that matter had acted corruptly, an individual by the name of Paul McMahon had acted corruptly, had given false evidence at commission hearings and had conspired to create a public mischief. He also was recommended for prosecution but once again no prosecution was to follow.

Those four extensive reports highlight corruption unpunished. Unfortunately, the substantial investigative work and financial commitment by the commission has led to 14 recommendations being made for consideration of prosecution and not one recommendation being taken up. The concerning issue, and the one highlighted in the annual report, is the advice of the Director of Public Prosecutions [DPP] on the four investigations that due to lack of sufficient evidence the DPP could not prosecute the persons found to have acted corruptly in these matters. Clearly, this absence of sufficient evidence underlines a flaw in the ICAC's investigations. [Time expired.] 4 December 2002 LEGISLATIVE COUNCIL 7739

SUNCORP METWAY EMPLOYEES UNION REPRESENTATION

The Hon. IAN WEST [10.07 p.m.]: It is a pleasure to see from the timer that I do not have to compete with those horrible computers and we are back to the good old days with the egg timer. I think a one-minute egg timer would be much more appropriate on this occasion. In September this year I raised the issue of Suncorp Metway, as the new owners of GIO Australia, trying to cut the working conditions of GIO staff. Today I presented a petition to the House on behalf of 483 citizens of New South Wales advising that Suncorp Metway was proceeding to institute a new industrial agreement for its GIO employees that has many disturbing clauses. Suncorp Metway proposes to institute an industrial agreement which goes to the heart of freedom of choice, or the important but subtle distinction between freedom of choice and free choice.

The company is effectively saying to the employees that they are free to join whichever organisation they like. It does not mind if the employees join the Finance Sector Union [FSU] but the company says the employees should join the company union because there is no fee to join the company union but there is a fee to join the FSU. The employees have a free choice as to which union they join. However, the difficulty with that is if employees choose to join the FSU they are effectively told that because the company does not recognise the FSU, that employees' right to communicate via the office email will be taken away.

Paying to join the FSU is not a good idea: joining the company union is free and the company provides employees with representatives to advise the employees on their industrial rights. The employees get that for nothing. Why would they not take it up? The problem is that the employees of the GIO are being a little resistant. They believe that one of the cornerstones of our democratic society is the freedom of choice to join an independent trade union and pay union fees out of their own pockets to that organisation to represent them. If employees want to be represented in court they go to the lawyer of their choice—whether it is Dennis Denuto or some other lawyer. Employees do not want to be told they have to go to a particular legal representative. [Time expired.]

RETIREMENT OF CHARLES STURT UNIVERSITY CHANCELLOR Mr DAVID ASIMUS

The Hon. JENNIFER GARDINER [10.12 p.m.]: Recently I had the pleasure of attending a dinner at Charles Sturt University [CSU] chancellery to mark the outstanding service and retirement of the university's foundation chancellor, Mr David Asimus.

The Hon. Henry Tsang: He is a good chancellor.

The Hon. JENNIFER GARDINER: The Hon. Henry Tsang is quite right. Mr Asimus became chancellor of Charles Sturt University in 1989 and presided over its governance from its multi-campus birth to its current status as a high-profile, premier regional university. Upon his retirement Mr Asimus said:

Where it is tempting just to talk about the vocational value of our university, that would be selling us short. I think CSU, as with all universities, has to do more than just impart knowledge. We have this responsibility to develop alert, ethically driven, critical minds that are able to relate to other disciplines, that are able to form judgments effectively based on an intellectual rigour rather than on the notion of where they have come from or where they have grown up so you get young people in key positions that have the ability to assess what's best for society in a moral way.

Under the stewardship of David Asimus and his team, the number of students at CSU has increased from about 10,000 to 40,000. The university spends $200 million in regional areas each year, and its students spend another $70 million. It is one of the most important contributors to the regional economies of this State. In 1997 the CSU was awarded the University of the Year for its commitment to first-generation university students, an achievement of which David Asimus is rightly very proud.

Bringing a wide range of university education options to the back door of young people brought up in the Murray, the Riverina, the Central West and, more recently, the mid-west and Far West of the State—or at least much closer to them—means that many more young people from country areas have the benefit of obtaining a tertiary education closer to home. In the first place David Asimus was an admirable choice to guide the university's transition from several colleges of advanced education, each with an important history and culture in the cities and districts of Bathurst, Wagga Wagga and Albury, to a fully fledged but far-flung university.

David Asimus was born at Tumut, which is in the area now served by Charles Sturt University. Until a couple of years ago he was a grazier on a property not far from Wagga Wagga. I know that a number of members of this House have enjoyed David and Jane's hospitality at "Alabama" in those beautiful undulating 7740 LEGISLATIVE COUNCIL 4 December 2002 areas outside of Wagga Wagga. A woolgrower, David became chairman of the Australian Wool Corporation and the International Wool Secretariat. He has a distinguished record of service in the corporate world, serving on boards of Wesfarmers, BHP, Delta Electricity, Australian Eagle Insurance Company, Rural Press and the Industrial Bank of Japan, Australia Ltd. David Asimus has pointed to the contribution by Charles Sturt University to a range of research programs, as well as its role as a vocational tertiary education institution. On his retirement he said:

For example, our Centre for Applied Philosophy and Ethics based in Canberra in partnership with Melbourne University is doing marvellous work in a whole range of important social issues such as cloning and genetic engineering. World class research work is being done within our university and I find that is really putting us fair square with all universities in terms of internationally recognised research. We employ more philosophers than any other University in Australia, which comes as quite a surprise.

Other obvious research areas include agriculture where we are particularly strong. Our work in weed resistance to herbicide is critically important as is the sociological research on small towns and rural areas. Equally so is the environmental research into water, irrigation and the Murray Darling Basin. We are even doing some wonderful work based on Montague Island with fairy penguins. There is such great diversity.

David Asimus firmly believes in the need to retain that research capacity. He said that good teaching flourishes alongside research. He continued:

We have to develop an intellectual climate in our campuses by making sure we have a flow of visiting scholars who can contribute to the intellectual atmosphere which will continue to challenge our students.

He said:

We started from zero as far as research is concerned and we have built up—not a large—but a significant research area where we have key people and we're able to specialise.

David Asimus has a vision for a fully fledged school of medicine to be part and parcel of a non-metropolitan university such as Charles Sturt. Recently, a number of clinical schools and university departments of rural health have emerged, but he has a much bigger vision for an institution like Charles Sturt University in the field of teaching doctors and other health professionals. I certainly support that vision. I pay tribute to the superb contribution that David Asimus has made to regional education. I wish both he and his wife, Jane, well in their retirement.

WILLIAMS RIVER CARE ASSOCIATION INCORPORATED

Ms LEE RHIANNON [10.17 p.m.]: Members of the Williams River Care Association Incorporated, which operates in the Hunter region, have informed me that as concerned land-holders living along the Williams River they believe that the best way to improve the health of the river is to remove as many man-made impacts as possible and to allow nature to readjust to the new regime. In 1996 the Healthy Rivers Commission published its final report of its inquiry into the Williams River. The report contained 17 recommendations for ways and means to improve the health of the river. In 1997 the State Government supported all of the recommendations except one, WR3, which recommended a moratorium on powerboat use on the Seaham Weir Pool to put a halt to damage due to boat wash. It is interesting to note that although the recommendation was not adopted, the Government has put in motion a process to adopt a boating traffic management plan aimed at mitigating that damage. The Waterways Authority was put in charge of the process. I understand it has spent more than $100,000 to protect the interests of powerboat users on the river.

After a considerable period of time had elapsed the remainder of the boating traffic management plan was released in October 1999. However, it did not protect any more sections of the river and did not, in itself, aim to reduce the impact or number of boats on the river. The Waterways Authority failed its key performance indicator by not achieving the designated timetable. It has not released results of the attendant study of the effects of the plan. Those results were reported to have been completed in October 2001. Observations of members of the Williams River Care Association Incorporated since the plan was released have recorded the following: continued erosion and damage to the aquatic environment, increased boating in other areas, effective no wash being the only way to bring about the required natural regeneration, and lack of agency leadership in planning an integrated approach to the catchment.

The Williams River group is frustrated and has asked me to help get answers to two key issues. With reference to section 11.2 of the Healthy Rivers Commission Independent Inquiry into the Hunter River System, which government agency will take responsibility for leading agencies and the community in making a more concerted and effective effort to improve the river's health? Will the Government take the opportunity during the current redrafting of the Hunter Water (Special Areas) Regulation 2002 under the Hunter Water Act 1991 to 4 December 2002 LEGISLATIVE COUNCIL 7741 introduce an additional regulation to put a stop to heavy powerboat wash on the Williams River? I am seeking a response from the Minister because the community deserves it. It certainly should not be left to flounder and wonder what the Government plans in the lead-up to the election. The community's proposition will cost the Government nothing and will provide the area with an enduring benefit from the supply of healthy, clean water and equitable river access.

LIVERPOOL CROWN LAND DEVELOPMENT

The Hon. GREG PEARCE [10.21 p.m.]: I wish to draw the attention of the House to the motion I moved on 19 September 2002 requesting the Government to produce certain papers. The Government did indeed produce a series of papers, but the Premier has claimed privilege in relation to some of them. These documents relate to the Woodward Park development at Liverpool. Among the documents not subject to the privilege claim is a memorandum issued by the Premier's Department dated 14 June 2002. It includes the draft minutes of the CEO venue management task force.

The task force was set up by the Premier's Department and comprises representatives from a wide range of government departments, including the Department of Sport and Recreation, the Sydney Olympic Park Authority, the Department of Land and Water Conservation, the Centennial Park and Moore Park Authority, and the Sydney Harbour Foreshore Authority, as well as various representatives from Treasury, the Department of Transport and other government units. During the meeting that was the subject of the minutes, the committee heard from Mr Brian Carr, the General Manager of Liverpool City Council.

The Hon. Peter Primrose: Point of order: Matters have been referred to the Independent Commission Against Corruption [ICAC] on which it is still deliberating. I am concerned that the sub judice convention may cover the matters the honourable member is seeking to raise.

The Hon. Greg Pearce: To the point of order: I am not referring to anything before the ICAC; I am referring to a document produced pursuant to an order of this House. I should be allowed to continue.

The Hon. Jan Burnswoods: To the point of order: I think the Chair of the Standing Committee on Parliamentary Privilege and Ethics, the Hon. Helen Sham-Ho, gave notice of a motion this morning—it might have been yesterday—requesting that the House take note of the committee's report. I am not a member of that committee but from what I know of its deliberations it appears that the material being mentioned by the honourable member comes within the ambit of the matters that the committee has addressed. Given that that notice of motion is before the House, the honourable member is out of order in seeking to raise these matters tonight. I know he is a member of that committee, and he would obviously have some knowledge about these matters.

The Hon. Peter Primrose: No, he is not.

The Hon. Jan Burnswoods: I have been corrected by the Hon. Peter Primrose. The Hon. Greg Pearce is not a member of the committee. I think he is breaching the rule that, in an adjournment speech, members must not anticipate debate on a motion before the House.

The Hon. GREG PEARCE: Further to the point of order: I am clearly referring to a motion. I began my address by referring to the motion of 19 September that has already been passed by the House. I am talking about documents that were produced pursuant to that order. I am not talking about anything before the ICAC or any other committee. Indeed, I have referred to the CEO venue management task force, established by the Premier's Department. I have referred to a claim of privilege pursuant to an order of the House of 19 September, which was made by the Premier's Department. Indeed, I am not referring to anything that any witness before the ICAC has raised, nor any other matter in relation to that. However, I note that the Hon. Jan Burnswoods, as usual, wants to take up the time of anyone who wants to say anything of any importance in relation to this State.

The Hon. Jan Burnswoods: Are you speaking to the point of order, or just being personally offensive?

The Hon. GREG PEARCE: I am speaking to the point of order. First, the Hon. Jan Burnswoods raised the ICAC; and I have clearly addressed that. Second, the member tried to raise a committee report. I have not addressed anything that is the subject of that committee report. Indeed, I am trying to make plain that Mr Carr has lied and misled Parliament about the Woodward development. He has continued to do that, and he has lied about the venue management committee. 7742 LEGISLATIVE COUNCIL 4 December 2002

The Hon. Peter Primrose: Further to the point of order: I wish to raise two matters. First, in debates on this matter the honourable member has alluded to and specifically mentioned the matters he is raising now. Obviously, he believed that they were appropriate to the matters before the ICAC. Second, if the honourable member wishes to impugn or make comments about a member of this House or, indeed, as he is now doing, the other House, when speaking to the point of order, he should do so by way of a substantive motion.

The Hon. GREG PEARCE: Further to the point of order: In response to those new comments, I was certainly not impugning any member of this House at all. I simply made the point that the Hon. Jan Burnswoods is well known for wasting speakers' time by taking spurious points of order. I have made that point and I want to move on to the Government's venue committee, major projects committee, which was chaired by Sam Fiszman, an admitted criminal and bagman for the Labor Party, who was approached by Mr McIntyre as the conduit.

The PRESIDENT: Order!

The Hon. Tony Kelly: Point of order: The Hon. Greg Pearce was not debating the point of order but had started his substantive speech again.

The PRESIDENT: Order! I will rule on the various points of order. Certainly, the member was out of order in making implications against a member of another House. The issue whether the material that he was traversing was in fact sub judice has been the subject of a number of rulings of former occupants of the chair in this Chamber. Deputy President Solomons ruled:

The sub judice rule applies to matters which have been referred by the Parliament of New South Wales to a judicial body such as the Independent Commission Against Corruption.

It is quite clear that some of the material that the Hon. Greg Pearce was referring to may be relevant in an inquiry by the Independent Commission Against Corruption [ICAC]. I warn the member not to traverse into any area that may be the subject of an ICAC inquiry. The time for debate on this motion has expired.

Motion agreed to.

The House adjourned at 10.30 p.m. ______