8037

LEGISLATIVE COUNCIL

Wednesday 4 June 2008 ______

The President (The Hon. Peter Thomas Primrose) took the chair at 11.00 a.m.

The President read the Prayers.

ENVIRONMENTAL PLANNING AND ASSESSMENT AMENDMENT BILL 2008

BUILDING PROFESSIONALS AMENDMENT BILL 2008

STRATA MANAGEMENT LEGISLATION AMENDMENT BILL 2008

Bills received, and read a first time and ordered to be printed on motion by the Hon. Tony Kelly, on behalf of the Hon. Michael Costa.

Motion by The Hon. Tony Kelly agreed to:

That standing orders be suspended to allow the passing of the bills through all their remaining stages during the present or any one sitting of the House.

Second reading set down as an order of the day for a later hour.

CHINA EARTHQUAKE

Motion by Reverend the Hon. Fred Nile agreed to:

That this House:

(a) recognises the human tragedy that is unfolding in the People's Republic of China,

(b) expresses its sympathies to the victims of the earthquake in Sichuan Province, China, and

(c) calls on State and Federal governments to offer, where practical, all available assistance to those suffering as a result of this disaster.

STANDING COMMITTEE ON STATE DEVELOPMENT

Government Response to Report

The Hon. John Della Bosca tabled the Government's response to report No. 32, entitled "Aspects of Agriculture", dated 28 November 2007.

Ordered to be printed on motion by the Hon. John Della Bosca.

UNPROCLAIMED LEGISLATION

The Hon. Eric Roozendaal tabled a list detailing all legislation unproclaimed 90 calendar days after assent as at 3 June 2008.

PETITIONS

Cooma Hospital Kidney Dialysis Service

Petition requesting the provision of a kidney dialysis service for patients in the Cooma region, received from the Hon. Melinda Pavey.

Princes Highway Speed Zone

Petition requesting that the House reintroduce the 100 kilometre per hour speed limit between Omega Hill and Fox Ground and immediately upgrade the Princes Highway between Gerringong and Bomaderry, received from the Hon. Don Harwin.

8038 LEGISLATIVE COUNCIL 4 June 2008

TABLING OF PAPERS

The Hon. Eric Roozendaal tabled, pursuant to the Annual Reports (Statutory Bodies) Act 1994, a report of the Trustees of the Anzac Memorial Building for the year ended 31 December 2007.

Ordered to be printed on motion by the Hon. Eric Roozendaal.

BUSINESS OF THE HOUSE

Postponement of Business

Government Business Notices of Motion Nos 1, 2 and 3 postponed on motion by the Hon. Tony Kelly.

APPROPRIATION (BUDGET VARIATIONS) BILL 2008

Second Reading

The Hon. HENRY TSANG (Parliamentary Secretary) [11.12 a.m.], on behalf of the Hon. Michael Costa: I move:

That this bill be now read a second time.

The Appropriation (Budget Variations) Bill 2008 is a key part of the annual budget process. The 2007-08 budget was delivered before the start of this financial year. Throughout the year the Government is required to cater for unforeseen and urgent expenditures that were not forecast at budget time. This bill ensures that variations to the 2007-08 budget are appropriated by Parliament and ensures a transparent process for examining this expenditure. The practice of seeking approval for supplementary funding to cover expenditure not provided for in the annual Appropriation Act has now become an important part of the annual budget process. This process has been endorsed by the Auditor-General and in the report of the Legislative Council's General Purpose Standing Committee No. 1 on the appropriation process.

The Parliament is aware that it is not always possible to seek the Parliament's authority in advance for unforeseen and urgent expenditure and has established provisions for such situations, such as the Treasurer's Advance. The Treasurer's Advance is an amount that is made available to the Treasurer in the annual Appropriation Act to be used for unforeseen and urgent expenditure. This amount is available for both recurrent services and capital works and services. The bill has three key features. Firstly, it provides an account to Parliament of the way in which the Treasurer's Advance has been applied for recurrent and capital expenditure. Secondly, it seeks an adjustment of the 2007-08 Treasurer's Advance prior to the end of the current financial year. Thirdly, it seeks appropriation for payments which are intended to be made in the current financial year when no provision was made in the annual appropriation bill. The Government, in presenting further appropriation bills, has sought as far as possible to ensure that the Parliament has the opportunity to scrutinise anticipated additional funding requirements prior to expenditures being incurred.

The Appropriation (Budget Variations) Bill 2008 in respect of the 2007-08 financial year seeks appropriation of $190 million in adjustment of the advance to the Treasurer and an additional appropriation of $218 million for recurrent services. Schedule 1 to the bill is an account of how the Treasurer's Advance has been applied this year. The Treasurer's Advance payments in 2007-08, which highlight the commitment of the Iemma Government to ensuring appropriate services for the community, include $46.9 million to match federal funding for irrigators; $25 million towards the construction of the new hill grandstand at the Sydney Cricket Ground; $20.2 million for other emergency drought assistance, on top of the $350 million for drought relief provided in the 2007-08 budget; $10 million for a new educational wing at the Museum of Contemporary Art; $7.9 million under the equine influenza response plan; $34.8 million for out-of-home and foster care allowances; $10 million as part of a $30 million plan to provide an additional 150 acute care hospital beds; $10.3 million to extend the school safety zone plan; $11.1 million to establish Events New South Wales, which will help attract major cultural, commercial and sporting events; and $4.4 million to cover World Youth Day planning costs.

The Treasurer informs me that the bill includes $140 million to reduce debt accrued during the construction of the Epping to Chatswood rail link, on top of the $960 million in rail debt repayments announced in this year's budget. With the Iemma Government investing a record $17.7 billion over the next decade on new 4 June 2008 LEGISLATIVE COUNCIL 8039

rail infrastructure, including $12 billion on the North West Metro project, it is prudent financial management for the Government to pay down debt where it can. Top-up funding has occurred in four of the past five years. This request before the Parliament is less than half that required in previous years and constitutes less than 1 per cent of the total State budget. The Federal Government introduced 12 such bills for additional spending over and above its normal budget requirements over the past five years. The practice of introducing further appropriation bills has enhanced accountability for the expenditure of public moneys from the Consolidated Fund. It is further evidence of the Government's commitment to transparent and full financial reporting to Parliament and the community. I commend the bill to the House.

The Hon. GREG PEARCE [11.18 a.m.]: The Appropriation (Budget Variations) Bill 2008 is a disgraceful example of the Government elevating financial management to an art form. In his speech, the Parliamentary Secretary the Hon. Henry Tsang attempted to justify the fact that the Treasurer cannot forecast or manage his budget. The Treasurer has had three years now to try to get it right, and he has an abysmal record when it comes to trying to forecast expenses or revenues. But in this bill we see a new level of adhocery by the Treasurer in that he has now increased his Treasurer's Advance to more than half a billion dollars, which means, effectively, that the Treasurer is personally managing that sum of money in such a way that it is reported to Parliament through one of these bills well after the expenditure is incurred. It is a very significant amount of money and it raises very serious questions about the Treasurer's ability to keep his eye on the ball and, in particular, about his ability to manage and rein in his high-spending fellow Ministers.

This budget can be seen in the context of the Labor Government's consistent pattern of allowing expenses to blow out every year, as noted in its own audit of State finances. Premier Iemma regarded that as such a serious problem that his first action as Premier was to appoint Messrs Stokes and Burdekin to work out what was happening with the budget that was rapidly heading this State into very nasty, choppy waters. The Stokes Vertigan report revealed a number of things but expressed key concern about the Government's bad habit of allowing expenses to grow faster than revenues, in breach of the requirements of the Fiscal Responsibility Act. I am sorry the Treasurer is not in the Chamber to respond to me about that Act's requirements—his own legislated fiscal targets.

The Government's very poor management practice also depended virtually every year on unforecast windfall revenues to allow it to meet its budget outcomes and generally to keep the budget in surplus. To last year the Government had received $15.75 billion of unforecast revenue windfalls. The 2007-08 budget projected that approximately $1.75 billion of extra revenue would be received that was not budgeted for. That incredible result—another example of the Treasurer's poor forecasting—means that about $17.5 billion has been received by this Government and squandered as extra unforecast revenues.

The overview of the bill says that additional amounts are required to be appropriated for the exigencies of government. That is a very interesting term. Most people understand that the exigencies of government require expenditure that is unforecast, but they would also assume that it cannot be forecast and is unlikely. The budgetary process anticipates expenditure on natural disaster relief or the equine influenza emergency, and no-one would quibble with such payments. But rather than accounting for such payments in a timely way, the Government prefers to introduce legislation regularly to cover expenditures that occurred well after the close of the relevant financial year and even after production of the State's final audited accounts.

We need to look very closely at these expenditures because some of them are quite extraordinary. It is very difficult to see why they were not picked up much earlier and in many cases it is very difficult to see why they would not have been funded out of the normal agency or ministerial budget during the relevant financial year. This bill appropriates additional amounts for recurrent and capital works and services in 2007-08 and it is broken into two parts, which is quite interesting: the Treasurer's Advance, which is increased or replenished by $190,367,000, and additional recurrent services of $218,584,000.

Labor consistently overruns its expenditure budget and relies on those windfall revenues to rescue the budget result. As a result of Labor's practices, budget transparency and accountability have deteriorated. In fact, Parliament is treated as a rubber stamp throughout the budget process. Far from being a strong economic manager, Treasurer Costa's record has been abysmal in terms of forecast and fiscal discipline. The mid-year review published last December anticipated a $1.2 billion expenses blowout. It was not quite that, as appeared in yesterday's budget—I suppose that is as a result of the Treasurer taking his razor to his ministerial colleagues— but the Treasurer still did not manage to bring in expenses anywhere near budget: they run about a billion dollars over budget. 8040 LEGISLATIVE COUNCIL 4 June 2008

The 2007-08 budget appropriated to the Treasurer's Advance $325 million, which one would think is a very ample sum to cover exigencies of government and unexpected and unforecast expenditures. The Treasurer's Advance was allocated $215 million for recurrent services and $110 million for capital works and services. Until this bill was introduced the Treasurer had not accounted for how much of that money has been spent or committed and we still do not know what will be the final outcome with the Treasurer's Advance. The $190,367,000, which is referred to in schedule 1 to the bill, apportions $179,333,000 to specific portfolios for recurrent purposes and another $11,034,000 for capital works and services. Assuming the 2007-08 budget appropriation for the Treasurer's advance is spent, the additional sums to be appropriated under the bill means the Treasurer has taken control of some $505 million to dole out in overruns.

In bypassing the Parliament, the Treasurer's Advance is regularly used to fund items that ought to have been funded from non-agency budgets. For example, in last year's Appropriation Act included more than 70 tems of expenditure totalling nearly $400 million, which related to the 2005-06 financial year, and they included expenditures such as $2.5 million for advertising for the Premier's Department. How could that be an exigency of government and unforecast? They also included $1.083 million for the appointment of a private sector partner to manage the property portfolio, and $3.8 million for additional construction of the Western Sydney dragway, which no doubt was intended to cover up one of Premier Iemma's mess-ups when he first became a Minister—as Minister for Public Works and Sports—and the Western Sydney dragway had expenses blow-outs. These were items appropriated 12 months after the close of the relevant financial year; that is, well after the audited statement of the budget result was released.

The blatantly political nature of some of these payments was demonstrated in the $25-million compensation payment for the Government's revision of the timetable for transitional arrangements after the opening of the Lane Cove Tunnel, which occurred in the lead-up to the 2007 election. Members will all remember that rort—the $25 million to put off the disastrous aboveground works. That was accounted for in only June 2007—after the election—as a Treasurer's Advance.

The bill contains a number of obvious expenditures that any competent government would have budgeted for and included in the general expense allocation for the various departments. They include, for example, election funding of $3.244 million. As far as I know, pretty well everyone knew an election was due. One would have thought that any competent government could have forecast a March 2007 election and allocated enough money to pay for it. Perhaps the Government took a similar approach to that as it did to government election advertising—it just kept spending and spending.

The Hon. Matthew Mason-Cox: It was $100 million, wasn't it?

The Hon. GREG PEARCE: Yes, it spent $100 million on government advertising in the lead-up to the election. There is other expenditure that, again, anyone who was awake would have anticipated. For example, the Treasurer's Advance includes $4.415 million for planning World Youth Day. Hello! Is anyone in government awake? Most of us knew that World Youth Day was coming up. Any competent government would have been able to budget for the planning of that event.

Recently we witnessed a prize-winning example of this Government's absolute incompetence when it comes to delivering infrastructure projects. I refer to the long-promised Bathurst hospital. At various times it was referred to as the Orange and Bathurst hospital development; it was on again and off again and public-private partnerships were discussed. When the hospital was finally opened, it could not deal with patients—which was a bit of a problem. The Government forgot to check the plans to the extent that it overlooked the hydrotherapy pool. It had to pay for that using a further payment of $2.3 million from the Treasurer's Advance. What sort of Government cannot plan a hospital that can accommodate patients and be used by doctors? How could it have missed something like the hydrotherapy pool? It had to be added on at a cost of $2.3 million. These payments cover sloppy mismanagement throughout government. In presenting the bill in the lower House, the Parliamentary Secretary stated:

The Government, in presenting further appropriation bills, has sought as far as possible to ensure that Parliament has the opportunity to scrutinise anticipated additional funding requirements prior to expenditures being incurred.

Specific expenditure details are included in schedule 1. It appears to me—perhaps I am misreading it—that the expenditures listed in schedule 1 have already be incurred or committed. The Government's statement that it gave Parliament an opportunity to scrutinise the additional anticipated funding requirements before they were made is a joke. It is still not clear what additional expenditures the Treasurer intends to undertake before 30 June with his now fully reimbursed Treasurer's Advance. At this stage I will not touch on the appropriation bills that have just been introduced and that deal with the 2008-09 budget. 4 June 2008 LEGISLATIVE COUNCIL 8041

Under this legislation, the Government also authorises expenditure under sections 22 and 26 of the Public Finance and Audit Act, which further allow expenditure to be incurred before being authorised by Parliament. These expenditures will probably be disclosed only later. It could be said that this bill is simply a machinery-of-government measure. I suppose that is the Government's argument—that it is a housekeeping matter and a mere precursor to bringing down the 2008-09 budget. The timing seems odd given that the bill was introduced during the last sitting weeks and could have been dealt with then, but we are dealing with it the day after the 2008-09 budget was introduced.

One of the most important functions of Parliament is the oversight of appropriations. It follows that this bill should be given detailed parliamentary scrutiny because it effectively increases authorised expenditure by $400 million. The principle underlying the Treasurer's Advance is that it involves additional appropriations under the Public Finance and Audit Act to cover certain government expenditures that cannot be reasonably foreseen at budget time. The Parliamentary Secretary made that point a number of times in his speech. He said that the Treasurer's Advance was to be used for unforeseen and urgent requirements. As I mentioned, what might be deemed to be required as exigencies of government could be and should be narrowly defined to include items such as natural disasters, drought and occurrences that might be truly unforeseen, such as matching unanticipated Commonwealth initiatives and minor ancillary items. However, other payments—such as for additional schoolteachers because of higher and unexpected enrolments—should be explained and disclosed in a much more timely manner than they are in this bill, and this should not be done so late in the financial year.

The balance of the expenditures included in schedule 1 should also be evaluated as much from a political perspective as from a fiduciary perspective. I ask members to consider some of these payments. A $140-million additional rail grant has been allocated for debt repayment. That is apparently associated with the Epping to Chatswood railway. This comes after a similar grant of $960 million was made in 2006-07 to the Transport Infrastructure Development Corporation to repay debts associated with the Epping to Chatswood railway. However, that payment appeared only after the original budget was handed down—it was not included in the original budget. It was also included after the corporation's annual report was handed down for the previous year and after the 2007-08 budget was introduced. It surfaced only in the audited state accounts published in October last year. One would think that the public is entitled to know about a grant of almost a billion dollars. It is indicative of the contempt in which the Government holds Parliament and the public that the granted has been slotted through so late, without explanation.

There is also in this bill an unbudgeted, unexplained additional grant of $140 million—a very significant amount of money—for the Epping to Chatswood railway, which we all know is way overdue. It has been delayed again. It will not open until later this year or early next year. The project was mismanaged incredibly by the Treasurer in one of his former guises as Minister for Transport. It was cut in half. Instead of the Chatswood to Parramatta railway it became the Chatswood to Epping railway, and we will pay the same price for half a railway. It has been a project of continual overruns, and there have been constant concerns about the competence of those who planned it and who have oversighted its delivery. The latest concern is that future trains will not make the gradient in the tunnels. It will be interesting to see that happens in that regard.

It is yet another unforecast, significant payment. Instead of being part of the normal budgetary process and properly planned for, it has been sprung on us through this bill, the purpose of which, supposedly, is to cover exigencies of government. Surely no-one can seriously suggest that an allocation of $140 million to repay debt is an exigency of government. The situation is even worse than that. Last year's annual report of the Transport Infrastructure Development Corporation shows that a payment of $960 million last year was not required to cover any loans that were currently due. The vast majority of the loans were out to three to five years. The Government brought forward payment on these loans—which may have incurred a penalty, I do not know. There has been no explanation given or discussion held about that.

Schedule 1 refers to a payment of $10 million for the Department of Planning's storage facility at Lilyfield. What irony! The Department of Planning could not plan for a storage facility in time for the budget. The need just happened to pop up one day, and the department said, "We have to get a storage facility. Why not go and see our friendly Treasurer, who will give us $10 million from his personal cheque account and we can build ourselves a storage facility." Surely this type of capital expenditure should have been considered in the budget formulation process. One has to be deeply concerned about the Government's budget planning process when even the Department of Planning comes up with such a major expenditure item after the budget is delivered. 8042 LEGISLATIVE COUNCIL 4 June 2008

Several major grants for capital works have been allocated through the Minister for the Arts. I will speak in more detail about those later. But it defies belief that such capital works were not well and truly planned, workshopped, lobbied for and developed at the time of the budget planning process. That such expenditure is treated in this manner defies logic. Earlier I asked whether the bill reflects the total additional appropriations required for the 2007-08 year? I can answer that question myself. We see from the appropriations bill that were tabled yesterday that there will be additional appropriations, and we will deal with those in the course of the budget estimates process. However, if there are even more appropriations, it is incumbent on the Government to start to deal with these payments in a timely manner. It should manage the budget process to ensure that these types of payments are planned for and are incorporated in the budget. The fact that the Government seeks approval retrospectively of expenditure in prior years highlights further the Government's appalling mismanagement. It is yet another example of the Government's failure to implement even the most rudimentary and basic principles of good financial management.

The 2007-08 budget contained retrospective approval for $27.25 million incurred in 2005-06 for essential maintenance and upgrading work on the Sydney Opera House. I would be most pleased if the Treasurer or the Parliamentary Secretary could explain why the Government waited until the delivery of the 2007-08 budget to seek approval for expenditure of $27.25 million that it said was incurred in 2005-06. Did no-one notice? Who signs the cheques? What happened? How was it that this meagre amount of $27.25 million slipped through in 2005-06 and was not picked up until last year's budget appropriation bill? It was not as if it was some financial transaction mired in secrecy. It was expenditure listed for essential maintenance and upgrading work on the Sydney Opera House. Again, one would think that, even among this sleepy bunch, someone would have noticed that more than $27 million was being spent on maintenance and upgrading work at the Opera House.

Labor has a well-recognised pattern of overspending its budget. As I said at the beginning of this contribution, that pattern is reinforced and actively encouraged by its cavalier approach to obtaining parliamentary expenditure approval. I draw honourable members' attention again to the Stokes Vertigan report, because it was meant to be a new pathway, if you like, for the Government with regard to its very poor economic management of the State. In relation to the Treasurer's Advance, the bill states, "… the sums appropriated [in this] … Act are in addition to any other sums [that may have been] appropriated." So, half a billion dollars is paid into the Treasurer's personal chequebook for him to dispense as he likes. What are some of those other expenses?

There is reference to another payment for World Youth Day, this time to the Deputy Premier, Minister for Transport, and Minister for Finance. I note that the Deputy Premier does not have much to do with the Finance Ministry; he leaves the Hon. John Della Bosca to do all the work. Perhaps that reflects the competence of the two Ministers. Under the Deputy Premier's allocations a payment is made out of recurrent services for World Youth Day coordination. An amount of $4.415 million will meet the planning costs of government services for World Youth Day.

There is an additional appropriation of $6 million to the Department of Transport for the expansion of contract private bus services. How could that be considered an exigency of government? Surely the Government should be capable of producing a transport budget that covers bus services for an entire year without the need to look for an extra $6 million! Expenditure payments on out-of-home-care allowances to the Community Services portfolio are fair enough, but I am concerned about the quantum of those payments. One might ask why $34.8 million was not allocated for that purpose in the budget. The additional expenditure may have been unforeseen, but we have not been given any explanation about that. The Minister for Community Services is clearly out of his depth. The community is greatly concerned that the Minister does not seem to understand or show compassion for those impacted upon by his portfolio. What is the basis of the extra payment, and why was it not budgeted for and incorporated in the department's allocation?

No-one would quibble with an allocation of $10 million for additional hospital beds, but one must ask why that allocation did not appear in the budget in the first place. We have not been given an explanation. It is simply not satisfactory to include such an allocation in this bill and say, "Here is another $10 million for hospital beds." We applaud the allocation of $5.5 million to the Arts, Sport and Recreation portfolio to assist the horseracing and equestrian industries under the equine influenza package. That is a correct use of the process, as it is clearly an unexpected exigency of government.

This is all about process and whether the Government has been responsible. It is about whether it can claim credibility when it comes to its budgeting process. The Parliament gives the Treasurer and the 4 June 2008 LEGISLATIVE COUNCIL 8043

Government an important and special privilege to allocate such expenditure, but they must then report back to the Parliament on the payments that are made. Their continual abuse of the process by making payments to cover their failure to properly plan expenditure reflects the Government's appalling economic mismanagement.

No-one would object to a grant of $25 million out of the Treasurer's Advance to the Arts, Sport and Recreation portfolio to match the Commonwealth's commitment to construct "The Hill" grandstand at Sydney Cricket Ground. Perhaps it was a genuine unforeseen payment to match the a Commonwealth commitment—

The Hon. Rick Colless: That has been planned for years.

The Hon. GREG PEARCE: The Hon. Rick Colless suggests that it has been planned for years. I should have thought that the Government could have planned for it. Perhaps less likely an exigency of government is a grant of $10 million towards the new educational wing for the Museum of Contemporary Art. A few weeks ago I had the good fortune to visit the museum. I am sure all members applaud the Government for supporting these sorts of expenditures. They are the glue that holds together our community, and they should be supported. However, this expenditure should have been provided through the normal budgeting process. The museum should have been treated in the same way as everybody else who applies for grants. The Government has not explained the reason for this allocation at this time.

Other payments relate to the drought. That constitutes proper use of this facility, and I have no quibbles with those payments. However, I query the additional expenditure of the New South Wales Coal Compensation Board of $4.076 million, which appears as a Treasurer's advance without any explanation or accountability to the Parliament or to the public. It is another example of the Government's poor management of the budget.

Perhaps the Treasurer, who has just come into the Chamber, can explain the additional rail grants for debt repayment of $140 million through the Crown finance entity for the Epping to Chatswood railway, which are additional to the $960 million that he pushed through the previous year. The Treasurer does not make any attempt to explain his strategy for these payments—that is if he has one—or the $1.1 billion in payments through Transport Infrastructure Development Corporation. Perhaps he cannot control his spending Ministers. When he has a pile of money that he cannot waste, he squirrels it away so that his high-spending Ministers do not have access to it. He knows that the money will disappear into a black hole if he does not grab it and get rid of it. That is the only thing he can do.

The purpose of these bills, the purpose of these appropriations, and the purpose of the Treasurer's Advance is to deal genuinely with unforeseen and urgent expenditures, such as those relating to drought and equine influenza, which we referred to earlier. As I said, other examples of unforeseen expenditures, such as those matching Commonwealth grants, had not been anticipated. However, we consistently see in these bills poor management, poor planning, and a lack of budgeting of items of recurrent or capital expenditure, which should go through a proper planning and budget process. Instead, they simply appear when the Treasurer gets around to signing off on them from his advance.

In these bills we see the trend to increase the Treasurer's Advance to the point that he has half a billion dollars to play with. Instead of properly accounting to the Parliament and explaining these expenditures to the Parliament and the public, often we see these expenditures coming in a year or two years after they are supposedly made, for items that clearly should have been part of the proper budgeting process at the time.

Pursuant to sessional orders business interrupted and set down as an order of the day for a later hour.

QUESTIONS WITHOUT NOTICE ______

POLICE SALARIES

The Hon. MICHAEL GALLACHER: My question without notice is directed to the Treasurer. Can he provide some hope to the more than 15,000 police officers throughout the State that when their pay agreement expires in the middle of next year they will receive the same pay rises as they received under the current agreement? In particular, can he confirm that they will receive the same 4 per cent increase they had received at the commencement of the current agreement? Can he give all these officers—particularly young officers who are forced to rent, let alone be in a position to buy a home—the hope that they will be able to afford to feed their families and keep a roof over their heads? 8044 LEGISLATIVE COUNCIL 4 June 2008

The Hon. MICHAEL COSTA: I am pleased the Leader of the Opposition has asked me this question. It gives me an opportunity to remind members that this Government increased real salaries for public servants by more than 17 per cent. If I were to check Hansard, I am sure I would find the Hon. Greg Pearce and others— including the Leader of the Opposition—criticising the Government on public sector wage rises.

This Government is very proud to have under its jurisdiction the highest paid police officers in the country, as well as the highest paid nurses and the highest paid teachers. Clearly, this Government has a very proud record on public sector salaries. In contrast to the 17 per cent increase in public sector salaries, in the private sector there has been an 8 per cent real increase in salaries over the same period. Indeed, in the national public sector the increase has been even more substantial. We are offering to our public servants the opportunity to protect the real value of their salaries and to enhance the value of those salaries, and at the same time to offer the community expanded services, better quality services and better access to services. Is it any wonder that the business community, the traditional constituency of the Coalition, has endorsed our budget? In fact, one of the organisations said it is a trifecta: increased spending on infrastructure, increased access to quality services, and a reduction in payroll taxes—

The Hon. Michael Gallacher: You hang around the boardrooms but you wipe out the workers. You don't care about the workers.

The Hon. MICHAEL COSTA: Hang around the boardrooms? They just shut the doors on you blokes! They don't want to see you! They think you are a joke! Your response to the budget is, "Too much debt." I was surprised to hear the Opposition yesterday criticising this Government for spending on infrastructure. The onus is now on the Opposition to tell us what infrastructure it is going to put back—

The PRESIDENT: Order! The Leader of the Opposition will cease interjecting.

The Hon. MICHAEL COSTA: The Opposition is embarrassed by its inability to put together a fiscal strategy that has credibility, by its traditional constituency walking away from it, and by the success of this Government, success that will ensure its re-election at the next election. Paul Ritchie yesterday said that this is a trifecta for New South Wales—

The Hon. Michael Gallacher: Point of order: The question put to the Treasurer was whether he can give hope to police officers in relation to future pay rises. If the Treasurer wants to talk about the business sector, he can do so in answer to another question. This question is about police.

The PRESIDENT: Order! The Leader of the Opposition will resume his seat. There is no point of order. The Minister will continue to be generally relevant. However, his time for speaking has expired.

RURAL AND REGIONAL BUDGET EXPENDITURE

The Hon. AMANDA FAZIO: I addressed my question to the Minister for Education and Training. Can the Minister inform the House how students and families in rural and regional New South Wales will benefit from the 2008-09 State budget?

The Hon. JOHN DELLA BOSCA: I am pleased to inform the House that as part of the Iemma Government's record Education and Training budget public schools and TAFE colleges in rural and regional areas will receive more than $4.6 billion in the upcoming financial year. And the funding has been welcomed in the regions. The Illawarra Mercury reported, "Region's schools welcome funding". The Newcastle Herald headline said, "Boost to frontline services" and "Record infrastructure spending continues".

The Iemma Government is delivering on its commitment to improve literacy and numeracy, vocational training, school maintenance projects, school security, and information technology for students in rural and regional New South Wales. This is part of a record statewide Education and Training budget of $11.8 billion— an increase of $614 million on last year's budget. This massive investment will enable the Iemma Government to meet its commitments to students and families, to provide clean, safe and efficient schools and TAFE colleges. This budget will provide students and teachers with cutting-edge learning technology. It reinforces our commitment to deliver better services and more investment in infrastructure.

Our capital works program will include major upgrades of facilities at The Kalinda School, in Griffith, Casino Public School, Kempsey High School, and Carenne School, in Bathurst. We will build new classrooms 4 June 2008 LEGISLATIVE COUNCIL 8045

to replace demountables at Cobargo Public School, Byron Bay Public School, Kororo Public School and Wyrallah Road Public School. In addition, Brewarrina Central School will have its demountable administration and library building replaced with permanent facilities. We will also build a new hall at Narranga Public School and a new gymnasium at Ulladulla High School.

Our capital works budget also extends to rural and regional TAFE colleges. Ballina TAFE will have its learning facilities for retail, marine, information technology and welfare upgraded. Tourism and hospitality facilities will be relocated to the main campus at Mudgee TAFE. Metal fabrication, and welding and fitting and machining facilities will be upgraded at Tamworth TAFE, and a campus upgrade will take place at Temora TAFE. These new facilities will compliment the quality of training provided by TAFE New South Wales and will ensure that students are learning with top-quality facilities and resources, and keeping pace with industry.

Not only does this budget provide funds for new capital works projects, but the Government will also continue work on a further 35 major capital works projects in schools and TAFE colleges across rural and regional New South Wales. This includes completing the trade school at Nambucca Heads High School. The budget provides an estimated $121 million for maintenance programs in rural and regional schools, and TAFE colleges. This year the Iemma Government will deliver 36 toilet upgrade projects in rural and regional schools at an estimated total cost of $2.7 million.

Students and families in rural and regional New South Wales will benefit from $53.9 million for the department's 11 primary and 8 secondary distance education centres. We are also supporting teachers in rural and regional New South Wales with $13.1 million for small and central school staffing entitlements. This investment will allow the Iemma Government to meet its commitments to students and families to deliver high quality education in clean, safe and efficient schools.

IRON COVE BRIDGE DUPLICATION

The Hon. DUNCAN GAY: I direct my question to the Minister for Roads. Does the Minister recall allocating $150 million in the road's budget to the Iron Cove Bridge duplication? How does that relate to the public comments of his ministerial colleague, and member for Balmain, Verity Firth that:

Current plans for the Iron Cove Bridge duplication are too big, they are not acceptable and I have told Mr Roozendaal this. I've called for a smaller design.

Has she spoken with the Minister about this? Given that both the member for Balmain and the Minister cannot be right, is it going to be the Minister's $150-million grand plan or Verity Firth's smaller option?

The Hon. ERIC ROOZENDAAL: I have provided the House with extensive information on the Victoria Road upgrade on previous occasions. I refer the honourable member to those comments, but it is worth addressing some of the comments made in relation to the Victoria Road upgrade. The Roads and Traffic Authority goes through an extensive consultation process with any major roads project undertaken in New South Wales. In an urban area, such as the proposed upgrade area—which will deliver substantial benefits to public transport users in that very busy corridor—one would expect a number of people to have different views and comments.

The Hon. Duncan Gay: Point of order: My point of order is on relevance. It was a discrete question. Has the member for Balmain spoken to the Minister for Roads on this matter, and who is right?

The PRESIDENT: Order! I ask the Minister to be generally relevant.

The Hon. ERIC ROOZENDAAL: It is reflective of the honourable member's view of the world that he thinks everything is in black and white. Minister Firth has raised concerns with me about a number of issues in her electorate. She has certainly communicated to me her views on the upgrade of Victoria Road. She is supportive of improving Victoria Road, particularly for public transport users. It is worth noting that the Victoria Road upgrade is not just about the Iron Cove Bridge duplication but also about improvements to public transport. I welcome the input of the honourable member because she is one of the hardest working members in the Parliament. Minister Firth is committed to representing her community and she has been very forthright in expressing views to me on behalf of her community. I welcome and encourage the input of the Minister. Many views have been expressed on the Victoria Road upgrade and the Roads and Traffic Authority will consider them in the consultation process. When dealing with an urban project in such a busy area, the various opinions expressed are taken on board. That is why we have consultation. 8046 LEGISLATIVE COUNCIL 4 June 2008

The Hon. Michael Gallacher: Verity told you that you were wrong.

The Hon. ERIC ROOZENDAAL: The Leader of the Opposition does not understand that the point of consultation is first to allow people to express their views and then to have their views taken into account. Verity Firth is one of the smartest and most hard-working members of Parliament and I welcome her views, which will be taken into account.

The Hon. Duncan Gay: Not acceptable.

The Hon. ERIC ROOZENDAAL: I say to the Leader of the Opposition that I get a lot more support from Verity Firth than he gets from Melinda Pavey. We will see who is smiling after The Nationals conference, Duncan. Where is Trevor Khan? Oh, he is there doing the numbers with Melinda as we speak.

HERONS CREEK POWER PLANT

Dr JOHN KAYE: I direct my question to the Minister for Energy. Is the Minister aware of International Power's proposal to build a 140-megawatt diesel power station specifically for peaking power duty at Herons Creek, 2.5 kilometres from Kew? Is the Minister aware that Country Energy's regional general manager, Andrew Latter, is reported in the Port Macquarie News of 26 May as saying that the distributor was not aware of any need for peaking power capacity in the region in the near future? What steps is the Minister taking to ensure that an unnecessary and polluting peaking power station is not imposed on the residents of the pristine Camden Haven?

The Hon. IAN MACDONALD: I do not know where Dr Kaye was yesterday because The Nationals got in ahead of him—I think he should have a bit of a chat to the Hon. Melinda Pavey. I was going to present this material at the end of question time but Dr Kaye was obviously elsewhere yesterday.

The Hon. John Della Bosca: That was a Dorothy Dixer you gave to The Nationals?

The Hon. IAN MACDONALD: I will answer the question, and, yes, normally a question from the Hon. Melinda Pavey is a Dorothy Dixer. Yesterday the Hon. Melinda Pavey, who according to the Hon. Eric Roozendaal is the future Leader of The Nationals in this House, asked a question about the proposed power plant at Herons Creek, south of Port Macquarie. The proposed location was selected on the basis that it has the least overall environmental and community impacts in solving regional power supply problems. The proposal is consistent with the New South Wales Government policy of promoting private-sector investment in energy infrastructure. The $110-million proposal will produce up to 150 megawatts of power and is a direct response to increased electricity demand in the region and, in particular, the need for greater generation capacity during peak periods such as during the height of summer and winter.

The facility proposed by International Power would operate on an as-required basis for an anticipated maximum period of up to 10 per cent. This is part of the licence condition for normal operations of the power station in any year to provide support to the national electricity market at times of high demand and/or constraints. It is not just about that area. That support includes transmission network support to ensure reliability and quality of electricity supply, and security of local electricity supply at times of planned or accidental system shutdown. International Power also considered a range of renewable alternatives, including hydro, wind and solar power, but those alternatives were not suitable. At present natural gas is not a viable option—

The Hon. Duncan Gay: Tell us about your clean diesel.

The Hon. IAN MACDONALD: I will do that later. Give me time. Please do not interrupt. At present natural gas is not a viable option because the nearest commercially available supply point would be at Newcastle, some 200 kilometres south of the proposed development site. Nevertheless, International Power would select plants capable of conversion to firing natural gas should future gas supplies become commercially available.

It should also be noted that the gas turbine combustion technology fuelled by distillate is different from the internal combustion technology generally associated with automotive diesel engines. The level of air emissions and resulting ground-level concentrations of substances of concern, primarily particulates and volatile organic compounds, are significantly less from gas turbine technology than from internal combustion engines. The specialist area emission reports attached to the environmental assessment demonstrate that, given the infrequent operating time of the peaking power plant and the conservative nature of the air quality assessment, use of diesel fuel is considered to have negligible potential adverse air quality impacts. 4 June 2008 LEGISLATIVE COUNCIL 8047

PACIFIC HIGHWAY UPGRADE

The Hon. KAYEE GRIFFIN: My question is addressed the Minister for Roads. Can the Minister update the House on the Iemma Government's investment in upgrading the Pacific Highway as part of its record 2008-09 Roads budget?

The Hon. ERIC ROOZENDAAL: Let me begin by saying that the Pacific Highway upgrade is one of the biggest infrastructure projects ever undertaken in Australia and the Iemma Government is committed to the completion of this massive project as soon as possible. I am pleased to report to the House that the new Rudd Labor Government is also committed to this project and that the Iemma and the Rudd governments are getting on with the job cooperatively.

Last month I travelled to the mid-North Coast and the far North Coast with the Federal Minister for Infrastructure Anthony Albanese to inspect ongoing work on the Coopernook to Herons Creek upgrade and to announce the start of preliminary site work on the Ballina bypass. What a great job Anthony Albanese is doing as the Federal Minister for Infrastructure—it is refreshing to see a Federal Government that cares about the nation's infrastructure and has appointed a Minister specifically to get things built. What appals me is the barefaced hypocrisy of the New South Wales Coalition as it is always talking this State down.

The Government announced an allocation of $613 million for the Pacific Highway in 2008-09, and all the Deputy Leader of the Opposition can do is complain. It is a travesty. I point out that 15 per cent of the State's entire Roads budget will be spent on the Pacific Highway. Yet all we hear from the Opposition is whinging and complaining. Let me correct the record. Since 1996 the New South Wales Government has invested more than $1.66 billion in the Pacific Highway. That figure will increase to $2.45 billion by the end of 2009. The Opposition had an opportunity to do something about it when John Howard was in power, yet it did nothing. John Howard's failed Government spent a pathetic $600 million on this national highway, when over the same period the New South Wales Government spent more than double. That is shameful. While I was on the North Coast, I bumped into Mark Vaile, who was quite embarrassed about it. I am too embarrassed to reveal our private conversations about the quality of the Opposition representatives in this House.

The Hon. Duncan Gay: That would be unusual, Eric.

The Hon. ERIC ROOZENDAAL: You are the one we were talking about. I understand that the Hon. Melinda Pavey has been lobbying in Canberra.

The Hon. Michael Gallacher: You are fixated with Melinda.

The Hon. ERIC ROOZENDAAL: It is funny the Leader of the Opposition should raise her name. When I was in Canberra recently I saw someone who looked suspiciously like the Hon. Melinda Pavey walking around the Federal Parliament and talking to people. I do not know what it was all about, but she was very busy. More than 263 kilometres of the Pacific Highway already has been upgraded to double-lane divided road and more than 91 kilometres of the Pacific Highway is currently under construction. The rest is either planned or preferred-route identified.

The Hon. Duncan Gay: Seventy-five per cent is in planning.

The Hon. ERIC ROOZENDAAL: It is worth acknowledging the interjection of the Deputy Leader of the Opposition. Let us look at the maths and ask why The Nationals are so smug. Of the 660 kilometres of the Pacific Highway, already 263 kilometres is dual carriageway and another 91 kilometres is being constructed, and that genius says 75 per cent is still being planned. That is why the Hon. Melinda Pavey and the Hon. Trevor Khan are doing the numbers. The Deputy Leader of the Opposition cannot add up. As I said, the rest of the Pacific Highway is either planned or preferred-route identified and 48 projects have been opened to traffic.

CANNABIS DEPENDENCY

Reverend the Hon. Dr GORDON MOYES: I ask the Attorney General, on behalf of the Minister for Health, the following question without notice. Is the Minister aware that cannabis continues to be the most popular illicit drug in Australia, with new figures showing that more than 200,000 Australians are believed to be dependent on cannabis and about one in 10 people who try the drug becoming dependent on it? In particular, is the Minister aware of recent studies conducted by the University of New South Wales, which found:

As the number of Australians who have problematic cannabis use has increased, so has the number of people seeking treatment, particularly young people. Treatment rates for people seeking help with cannabis problems have more than tripled since 1992. 8048 LEGISLATIVE COUNCIL 4 June 2008

And 50% of presentations to drug treatment among 10 to 19 year olds are related to cannabis, compared with 25% for alcohol and 10% for amphetamines.

Will the Minister elucidate on specific health and rehabilitation programs that are in place to turn community attention to this previously neglected drug?

The Hon. JOHN HATZISTERGOS: I will refer Reverend the Hon. Dr Gordon Moyes's question to the Minister for Health.

BUDGET REVENUE AND EXPENSES GROWTH RATE

The Hon. GREG PEARCE: My question without notice is addressed to the Treasurer. Does the Treasurer recall the statement in the 2005 Stokes and Vertigan report that:

The financial challenges defined primarily by the prevailing growth rates in budget revenue and expenses. The challenge is first to close this gap in growth rates in future budgets.

As the Treasurer has now entrenched the position where expenses grow faster than revenues, what has changed since the Stokes and Vertigan report?

The Hon. MICHAEL COSTA: I must apologise because my staff obviously did not send a copy of the budget or my Budget Speech to the Hon. Greg Pearce. In my Budget Speech I pointed to the fact that we are closing the gap between expenses and revenues. I will ask my staff to give the honourable member a copy. Is he still the shadow Treasurer? I thought that any Opposition remarks on the budget would have been about the infrastructure spend, the tax cuts and the new funding for services or in relation to the positive comments from the business community and other stakeholders. But the Opposition has referred to a 2005 report that the Government commissioned and set the strategic agenda for this budget. All we hear from the Opposition is criticism of the Government's infrastructure spending. Rather than criticising the Government, the Opposition should explain what it would cut from the infrastructure spending. Yesterday the Leader of the Opposition, Barry O'Farrell, made the absurd proposition that the State could not afford to spend any more on infrastructure. I challenge the Opposition to explain on which particular items in the infrastructure budget we should not spend money.

Clearly, the budget has been well received. As to the honourable member's question, the Government is closing the gap. Of course, there are challenges that relate to a number of external pressures on the budget, the key one being the demographic wave that will hit us when the baby boomers retire. That will put pressure on the budget going forward. We have made no secret that that is an issue for the future. I look forward to the honourable member's questions on our fiscal indicators. It will give me the opportunity to reinforce what I said in yesterday's Budget Speech that we have achieved a number of our fiscal indicators because we chose consciously to increase spending on infrastructure. It is up to the Opposition to explain which areas of our infrastructure program it would cut to meet its commitment to lower debt. I am very surprised by the Opposition's approach to the budget. It clearly shows an Opposition that has no policies or ideas for the future and is confused about its objective.

BUSINESS AND ECONOMIC DEVELOPMENT

The Hon. HELEN WESTWOOD: My question without notice is addressed to the Minister for State Development. Will the Minister inform the House about initiatives in this year's budget to support business and build the State's economy?

The Hon. IAN MACDONALD: I am pleased to report that the Government's 2008-09 budget has backed business, investment and innovation across this State. The budget has delivered $185.9 million to support the New South Wales Department of State and Regional Development's important work of strengthening the New South Wales economy. With a strong economy, the Government can continue to deliver better services and invest in infrastructure, which will benefit the hardworking families and individuals of New South Wales. The Government's key priorities in the coming year are simple: one, to attract new business investment; and, two, to help the existing companies in New South Wales to grow and prosper.

New South Wales is Australia's largest and most dynamic economy. We continue to attract more business investment than any other State. Sydney is Australia's main global city, and this year the New South Wales Government will continue to target potential investors across the world, including from Europe, China, India and the United States. We will work to build a strong and vibrant State that can continue to compete and 4 June 2008 LEGISLATIVE COUNCIL 8049

win in global markets. The $185.9 million budget allocation to the Department of State and Regional Development includes $38.3 million to be spent on State development, $44.9 million on regional development, $22.1 million on small business development, $36.9 million on science and medical research, and $43.7 million on tourism. In the last financial year, the Department of State and Regional Development helped secure investments valued at $1.6 billion. This massive investment led to the creation of 7,700 jobs. Significant projects included the establishment of Virgin's international airline, V Australia, in Sydney; the attraction of major film projects, including Hugh Jackman's Wolverine; and major trade missions to China and India to target business and investment in those key growth markets.

I will spend a moment explaining the importance of one of those achievements, V Australia. Virgin chose New South Wales over Queensland and Victoria for V Australia's operational headquarters. The company's $44 million investment is a massive vote of confidence in this State and our workforce, and it means 1,000 new jobs for New South Wales. It will create an additional 500,000 tourism bed nights and around $76 million of additional visitor spending a year for Sydney and our regions. Finally, it reconfirms Sydney's status as Australia's global city and main international tourism and aviation gateway.

The Government's 2008-09 budget will ensure this important economy-building work continues. In 2008-09, as well as helping businesses establish and grow in New South Wales, we will focus on attracting valuable international investment projects and promoting innovation across key industry sectors. We will continue to implement the Government's innovation strategy, which is focused on developing the innovative capacity of five priority sectors including logistics, financial services, creative industries, manufacturing, and resources—specifically, coal. Our priorities will include growing the State's financial services sector, including attracting the funds management and major international financial institutions.

We will also target high-value projects in the manufacturing sector, such as medical devices and aerospace. We will work towards attracting and retaining school professionals to maintain a pool of workforce talent for key industries and regional areas of New South Wales. We will continue to support science, research and innovation, such as our $5 million allocation to the information and communication technology research centre NICTA as part of a five-year $25 million commitment. The New South Wales Government, through the Department of State And Regional Development, is continually delivering programs and services to help us win new business and strengthen the economy of New South Wales. This year's $185.9 million budget demonstrates the Government's leadership and commitment to further increasing business investment.

MR MARK STANDEN ARREST

NEW SOUTH WALES CRIME COMMISSION OPERATIONAL OVERSIGHT

Reverend the Hon. FRED NILE: I ask the Minister for Education and Training, representing the Premier, a question without notice. Is it a fact that there is widespread concern over the integrity and operations of the New South Wales Crime Commission in view of the arrest of its Assistant Director of Investigations, Mr ark Standen? Is it a fact that the Independent Commission Against Corruption and the Police Integrity Commission have parliamentary oversight committees and also an inspector? Will the Government adopt a similar policy for the New South Wales Crime Commission and appoint the parliamentary Independent Commission Against Corruption committee or another parliamentary committee to give oversight to this important anti-crime body?

The Hon. JOHN DELLA BOSCA: In relation to the first part of the question, I do not think it is appropriate to confirm what the member considers is a widespread lack of confidence, or words to that effect.

The Hon. Michael Gallacher: It was backed by comments.

The Hon. JOHN DELLA BOSCA: Indeed, the events of recent times, as the Leader of the Opposition confirms, indicate a level of confidence in the processes relating to what has happened. The important point in the member's question about the Independent Commission Against Corruption is that that is something that is constantly under consideration by the Government. In relation to whether or not it is the Government's view that there should be an inspector in relation to the New South Wales Crime Commission, I will communicate that matter to the Premier and ask him for a response at the appropriate time.

TEACHERS SALARIES

The Hon. ROBYN PARKER: My question is directed to the Minister for Education and Training. Given the Premier stated in another place yesterday that any salary increases in addition to the 2.5 per cent cap 8050 LEGISLATIVE COUNCIL 4 June 2008

will need to be funded by agencies through offsets, can the Minister tell the House what exactly he will cut to fund any rise in teacher salaries above the Government's deemed rate of inflation? Will the Minister ask New South Wales teachers to take real pay cuts or will the Minister cut school maintenance programs or infrastructure funding?

The Hon. JOHN DELLA BOSCA: I am very disappointed with the member's question; I thought she was much more intelligent than that. Clearly, whoever is writing questions for her has no understanding of the way in which a budget is developed and the way in which departments go about expenditure. For a start, the very last part of the question is clearly wrong: it is not possible to transfer salaries from a maintenance budget. The second point is that some of the assumptions in the rest of her question are very, very wrong. In regard to the idea that the Government's wages policy represents a loss of income, the Treasurer's answer to a question about three questions ago clearly outlined the facts in relation to that matter.

The Hon. Michael Gallacher: No, he didn't.

The Hon. JOHN DELLA BOSCA: Yes, he did. He answered it very well. The first point is that the Government's policy is to maintain the real purchasing power of our employees. The second point is that our teachers, our police, our emergency service workers, our nurses and our public sector doctors are already the highest paid in the country. Indeed, in virtually every category of public service employment employees are the highest paid in the country: it is in our budget documents, it is in the Commonwealth budget documents and it is in the latest Australian Bureau of Statistics figures. The member is simply wrong. We do not have the highest cost of living in the country.

The Hon. Michael Gallacher: Tell that to the cops and the nurses.

The Hon. JOHN DELLA BOSCA: You've got a new wages policy. Your wages policy is to give anybody anything they ask for. I do not think that is a very good policy. That is the first problem with the member's question. Then, beyond that, there is the simplistic notion in the question that productivity involves offsets and cuts, enhancements to work processes and other things. The notion of productivity enhancements as part of a bargaining process between employers and employees, whether they are public sector employees or private sector employees, is now nearly 20 years old. It has been part of the industrial landscape for 20 years.

Indeed, while I remain a very strong supporter of award systems, as appropriate, the fact of the matter is that negotiating around a claim plus productivity arrangements is a very, very normal part of the way in which governments and both private sector organisations and community organisations go about finding proper ways within productivity to improve the salaries of their employees and improve the quality of services they provide. The Opposition has simply been out of government for too long. It has forgotten anything about it. Clearly, the Opposition has no generational memory and I think Opposition members need to go back and do a little research. Anywhere in the economy you will find productivity arrangements put in place that are not zero-sum, and that is obviously what our Government's intention will be in any of these salary negotiations.

DEPARTMENT OF LANDS BUDGET

The Hon. GREG DONNELLY: My question without notice is directed to the Minister for Lands. Can the Minister provide details of the initiatives for coastal infrastructure and mapping technology, as well as practical support for Aboriginal people, as contained in the Iemma Government's budget?

The Hon. TONY KELLY: The Iemma Government has allocated more than $266 million to the Department of Lands for the coming financial year. This funding will ensure that the Department of Lands continues to work towards the objectives of its core business areas—land and property information, Crown lands management, the Soil Conservation Service and the Office of Rural Affairs. The Department of Lands is accountable to the current and future generations for the management of the important public assets under its care.

I am delighted to advise the House that as part of this commitment, the Iemma Government has provided $2.7 million for improvements of minor ports and river entrances along the coast. The highlights of this year's work include dredging of the outer harbour at Coffs Harbour at a cost of $400,000; reinforcing the Coffs Harbour eastern breakwater, costing $250,000—greatly acknowledged by the Coffs Harbour newspapers; dredging of Terranora Inlet at Tweed Heads at a cost of $300,000; reinforcing the Coffs Harbour eastern breakwater, and concrete repairs to the Eden mooring jetty, at a cost of $500,000; maintenance at Ulladulla 4 June 2008 LEGISLATIVE COUNCIL 8051

mooring jetty costing $200,000; and repairs to the north and south Urunga breakwaters costing $250,000. These works will improve navigation and safety for commercial and recreational boat owners and make an important contribution to regional economies in New South Wales.

Additionally in this budget, the Department of Lands is investing in state-of-the-art mapping technology. This technology helps to underpin the State's spatial infrastructure and is an integral part of planning, delivery of services and natural resource management across the State. In addition, $19 million has been allocated to expanding land information services that underpin some $100 billion of economic activity in New South Wales each year. This funding for the department's land and property information division is for services such as aerial digital photography, electronic conveyancing, online property services and topographical map updates. These services support the Government's decision-making in areas including infrastructure, transport and environmental planning, and preparations for counterterrorism and emergency management.

The Iemma budget includes: $1.6 million for new aerial imaging and mapping technology; $1.35 million for improvements to spatial systems; $1 million for New South Wales to prepare for a national e-conveyancing system; $1 million for EPlan—the electronic processing of digital survey plans; $3.3 million to convert Crown land and remaining old system and paper land titles to a single, integrated title system; and $2 million to digitise historic aerial photography, plans and land titles and to make them available online. This funding will ensure that the Iemma Government delivers more efficient and up-to-date customer services in keeping with technological advances.

This year's budget also provides $570,000 to assist Aboriginal people to resolve native title claims. This funding will help the Department of Lands to fast-track many of the actions required to finalise agreements to the benefit of local communities. Many native title claims are resolved through indigenous land use agreements. This Government is committed to working with indigenous communities to negotiate pragmatic solutions that will benefit all parties. Indigenous land use agreements allow for Aboriginal people to hold non-exclusive native title rights and interests in the land. An important principle of the agreements is that they uphold the access rights of the wider community, such as visitors to national parks.

PUBLIC SECTOR WAGES

Ms LEE RHIANNON: I address my question to the Treasurer. With the Reserve Bank currently recording inflation at 4.2 per cent and the Federal Treasurer stating that inflation is at a 16-year high, is it not true that the Treasurer's offer to State public servants of a paltry 2.5 per cent wage increase is actually a wage cut? How does he propose that firefighters achieve productivity trade-offs sufficient to satisfy him that they are worthy of a wage increase above 2.5 per cent? Is the Treasurer preparing to apologise to the people of New South Wales and to this Parliament for stating on 6 June 2006—and these are his words: "The Government is committed to maintaining the real value of wages for frontline workers with additional scope to reward workers for further productivity gains"?

The Hon. MICHAEL COSTA: How does one respond to this? A party that has a range of policies that would drive inflation through the roof is worried about real wage increases for public servants and inflation. I find it staggering. Members should consider a list of the Greens' policies: close down the coal industry; close down mining; and increase the cost of a whole bunch of services to the public. They would drive our economy not only into a negative zone but would probably kill it once and for all. People would not have jobs. That is a way to avoid worrying about real wage rises, because people will be unemployed.

Ms Lee Rhiannon: Point of order: I am happy to ask the Treasurer to elucidate, to let him answer the question. Mr President, I draw your attention to Standing Order 65—the answer must be relevant to the question. The Treasurer also should not debate the question.

The PRESIDENT: Order! I ask the Treasurer to be generally relevant.

The Hon. MICHAEL COSTA: I acknowledge the concerns of the Greens about inflation. That is why I am pointing out that some of their policies may exacerbate the problem. I am surprised that they are worried about public service wages, because in many cases their policies would abolish the revenue sources that public servants require. For example, the Government's budget included an increase in coal royalties as a result of the mineral boom.

Ms Lee Rhiannon: You did not have the courage— 8052 LEGISLATIVE COUNCIL 4 June 2008

The Hon. MICHAEL COSTA: Hang on. Control yourself. The Greens want to eliminate those coal royalties, which would mean that we would have no capacity to employ public servants, let alone give them wage increases. This is a very opportunistic question asked by a bankrupt party that is being repeatedly exposed for its economic incompetence. It is fascinating to hear the Greens quoting the Reserve Bank of Australia with regard to wages policy. The Greens have never taken responsibility for anything to do with sound economic management. The Government's policy is clear: It has said that it will fund 2.5 per cent for wage increases out of the budget. That is prospective, not retrospective. Most of the agreements in place have more in the final years than the current figures for inflation for the last quarters. The member must understand that to understand the Government's wages policy.

The Reserve Bank has said that it will keep inflation in the middle range of its target band; that is, at 2.5 per cent. What are the consequences of its going over 2.5 per cent? They are increasing interest rates as the bank tries to slow the economy to deal with inflation pressure. What is the consequence of that for most people who work and have a mortgage? It is increased budget pressure. The Greens do not understand the policy. Their policies are foolish and anti-growth, and they would remove the revenue source for the very public servants that they purport to represent and support. They are full of hypocrisy and it is amazing that they have the gall to come into this place and purport to have any knowledge of economic affairs.

FUEL SUBSIDY

The Hon. CATHERINE CUSACK: My question is addressed to the Treasurer. Given that Queensland's 8.35 cents per litre fuel subsidy is effectively funded by New South Wales taxpayers through the reallocation of the GST, what is the Treasurer's reaction to news that our residents are about to be specifically excluded from access to that scheme? In view of today's announcement that the Government is rethinking the northern New South Wales petrol shading scheme, can he advise the House what form this review will take and what consultation has been undertaken with New South Wales residents and businesses? While he is thinking about slugging northern New South Wales with an extra 8.34 cents per litre for fuel, will he also think about the struggle we already face living on the doorstep of Queensland, which has substantially lower taxes, lower workers compensation costs, cheaper registration, licensing and compliance costs and lower charges for land development? What hope is Labor offering for our future? [Time expired.]

The Hon. MICHAEL COSTA: What hope is Labor offering for our future? Let me tell members. We are offering an infrastructure budget allocating record amounts, cuts to business taxation and investment in front-line services. There is a lot of hope in that—more hope than is offered by that hopeless lot opposite who do not have a policy other than to cut our infrastructure funding. The Leader of the Opposition in the other place is saying that the Government is running up too much debt and getting out the credit card, and needs to cut infrastructure spending. How would that help people in New South Wales? The reality is that because of the GST imbalance that we have had to face relative to Queensland—that State was using our GST to subsidise petrol prices—this Government had a policy to protect petrol stations in northern New South Wales that were adversely affected. The Queensland budget removed that benefit for people from interstate.

The Hon. Catherine Cusack: From New South Wales.

The Hon. MICHAEL COSTA: No, from interstate. Tourists visiting Queensland from Victoria still would not get it. Members opposite do not understand the policy. It makes a lot of sense for the Government to review this measure because motorists from the rest of New South Wales have been subsidising motorists on the North Coast and along the border. The Government will review the policy and a decision has not yet been made. I look forward to advising the House about it. But I am very surprised that The Nationals do not understand how this imbalance was subsidised by other people in New South Wales, particularly country New South Wales. They should understand that. But there are also more areas that were not receiving that subsidy. Between Albury and the Queensland border there are many parcels of land and many towns that were not getting the subsidy. This move by the Queensland Government necessitates us looking at the subsidy, and we will look at it.

CORRECTIONAL CENTRE INFRASTRUCTURE

The Hon. EDDIE OBEID: My question is to the Minister for Justice. What is the latest information on the Government's commitment to correctional centre infrastructure?

The Hon. JOHN HATZISTERGOS: Infrastructure upgrades to New South Wales jails are the centrepiece of a record Corrective Services budget of more than $1 billion. This includes a $97 million capital 4 June 2008 LEGISLATIVE COUNCIL 8053

works program to expand the State's jails to accommodate our growing prison population. The sum of $70 million will go towards our commitment to provide an extra 1,000 beds in jails across the State by 2012. This $300 million project is a necessary measure to ensure the expectations of the people of New South Wales are met. It includes $11 million for the initial stages of a 250-bed maximum security expansion of Cessnock Correctional Centre and $59 million for the planning and first stage of a 500-bed correctional centre at Nowra.

The New South Wales Government is delivering on its commitments to enhancing correctional centre infrastructure, and we are seeing the results of this investment. New South Wales has the strongest sentencing regime and the toughest bail laws in the country, and consequently the prison population has increased. Over the past decade, the number of full-time inmates has increased by almost 50 per cent, while the number of remandees has risen by 130 per cent. With forecasts that the prison population in the State's 32 correctional centres will grow by about 300 a year, the Government will continue to invest in these facilities. Other funding for projects in 2008-09 includes $10 million to upgrade infrastructure at Silverwater Women's Correctional Centre; $1.5 million to refurbish and upgrade security at Kariong Juvenile Correctional Centre, near Gosford; and $1.5 million towards the new $83 million 85-bed hospital at Long Bay Correctional Complex.

The Government makes no apologies for this expansion. Those in our society who thumb their noses at our collective values ought to be dealt with, and that is precisely what the Government has done, and will continue to do. However, this does not mean the Government is not committed to tackling the causes of crime and breaking the cycle of crime through rehabilitation and early intervention. In 2008-09, programs to target re-offending will receive further financial support in line with the Government's State Plan commitment to reduce re-offending by 10 per cent by 2016. Almost 15 per cent, or $133.6 million, of the Department of Corrective Service's recurrent expenses for correctional centre programs is specifically allocated to reducing re-offending. The Department of Corrective Services will also contribute $2 million to the Drug Court of New South Wales; $6 million to the third drug budget to combat illegal drug use; and $970,000 towards interagency efforts to address alcohol and family violence issues in Aboriginal communities.

These days, the case management of offenders is one of the fundamental aspects of correctional work. To facilitate best practice in that area, the Government is providing $8.9 million towards the Department of Corrective Services' electronic case management project. In this year's budget, close to $2 million will be directed towards this project, which consolidates and integrates information, thereby improving decisions, services and programs for high-risk offenders in particular. Importantly, a significant component of the project utilises the information to manage offenders towards the end of their sentence as they make the transition back into the community. This is a vital tool that first and foremost is designed to protect the community by reducing re-offending. So, as the Opposition struggles with its own internal disquiet, the Government will get on with tackling the problem of reoffending to ensure our community remains safe.

SOUTHERN REGIONAL FORESTRY AGREEMENT

Mr IAN COHEN: My question is directed to the Minister for Primary Industries. Will the Minister indicate whether the sustainable yield figures for sawlogs and pulpwood for South Coast-Southern subregion have been reviewed as per clause 47 (g) of the Southern Regional Forestry Agreement? If there has been no review, when will the review occur? What are the current sustainable yields for pulpwood and sawlogs in the South Coast subregion and what is the net harvestable area to which these figures relate? Will the Minister advise whether the Southern Regional Forestry Agreement places a maximum limit on pulpwood harvested from either the South Coast-Southern subregion or the Tumut-Southern subregion?

The Hon. IAN MACDONALD: The member is prescient because the Minister for Climate Change and the Environment, who has carriage of this matter, and I will shortly be making an announcement in relation to the assessments to proceed in relation to those forestry agreements. The basic data that the member is seeking about those agreements and the output in them will be the subject of discussions throughout the assessment. The regional agreements we have made along the coast have been very successful in ensuring that we have a modern timber industry on the north and south coasts of New South Wales, and that this timber industry provides employment directly and indirectly for thousands of the workforce along the coast. It is ensuring we can reduce the demand for imported logs by producing our own timber products and thereby take some of the pressure off countries such as Indonesia and Malaysia, and South American countries, for the export of their logs, basically from tropical rainforests. So I am sure the member joins with me in welcoming these regenerated forests in New South Wales.

The latest technology has been put in place on the back of the industry development fund provided by State and Federal governments over the past few years, and this has ensured we have the most modern 8054 LEGISLATIVE COUNCIL 4 June 2008

equipment in our forests along the coast. I am sure the member joins with me in praising the timber industry's efforts in regenerating itself and for being environmentally responsible. I look forward to the regional assessment that will be going ahead shortly.

SYDNEY AIRPORT SALE STAMP DUTY

The Hon. MATTHEW MASON-COX: My question without notice is to the Treasurer. Is the Treasurer aware that his fearless leader told ABC radio listeners on 20 June last year, in relation to claims that the Commonwealth owed $400 million in stamp duty from the sale of Sydney airport, "I find it unbelievable that they would seek to cheat their way out of paying tax and behave in this cowboy like fashion." Given that the Labor Prime Minister confirmed last month that it was fraud all along, has this Government given up its claim to be owed $400 million? If the Treasurer intends to continue to pursue his claim with the Rudd Government, will he outline to the House what he believes his chances are of success?

The Hon. MICHAEL COSTA: I cannot understand the question. I do not know whom the fearless leader the member was referring to is. It would be appropriate for him to clarify that so I can respond properly. Secondly, I am very aware of this because the President chucked me out of Parliament for answering a question on this matter. I am not reflecting on his ruling. I still disagree with it but I have paid the price for disagreeing with that ruling. We are taking legal action on this matter and it is quite appropriate that we do so.

HIGHER SCHOOL CERTIFICATE STUDENTS ONLINE ASSISTANCE

The Hon. HENRY TSANG: My question is addressed to the Minister for Education and Training. Will the Minister outline the new initiatives the Government is taking to assist higher school certificate students?

The Hon. JOHN DELLA BOSCA: Through the combined efforts of all schools systems, parents, teachers and government, New South Wales has the finest leaving credential. The Higher School Certificate is the gold standard in Australia and has become a global school leaving credential. Schools in Hong Kong, Singapore, Malaysia and the Australian Capital Territory offer the Higher School Certificate. It is rigorous, which is why we must provide students with as much support as possible during this crucial time in their lives.

Earlier today I launched a one-stop online study shop for Higher School Certificate students, the first of its kind in Australia. As part of the Iemma Government's technology in education the Students Online website has been overhauled to offer a personalised experience for year 12 students. This generation of students prefers to obtain their information via the Internet. Google was invented when they were five or six years old, Facebook when they were in year 8, YouTube when they were in year 9 and MySpace when they were in year 10.

Indeed, at today's launch, a demonstration of the capacities of the new website was given by Lauren Fong, the school captain of Willoughby Girls High School. She brilliantly put on display intuitive familiarity with the world of information technology of students of her generation and she made a telling point when she said:

… in my opinion, this new set of online materials provided by the Board of Studies is an example of the Board of Studies meeting our generation half-way.

New South Wales has been underwriting a quiet revolution in methods of learning with the steady introduction of new technologies and the professional development needed to help our teachers turn technologies into real learning. The new website gives students a customised site, allowing quick access to details of all courses that they are studying and their own personalised examination timetable; access to a variety of pods, such as news, past examination papers, practise tests, and the ability to keep the pods they want and hide the ones they do not to create their own home page; links to all relevant Higher School Certificate materials, including key dates, syllabuses and notes from markers of previous examinations; an interactive "to do" area, answers to more than 100 frequently asked questions and access to assessment rank order notices.

Student personal identification numbers will be issued in schools next week and I encourage all Higher School Certificate students to log in to Students Online to take advantage of this invaluable study tool. The Board of Studies will provide $50 book vouchers, donated by the University Cooperative Bookshop, to randomly selected students who log in up until 30 November. The 2008 advice line will continue to provide support for students in 26 of the largest candidature Higher School Certificate courses, the same number supported in 2007. This year a more targeted advice line service will use a streamlined timetable to more 4 June 2008 LEGISLATIVE COUNCIL 8055

effectively meet the usage patterns of students. Although there is clear evidence that this advice line service has now much reduced patronage from students and will be even more marginal with the new capacities launched today, I have authorised its continuation in a revised form for this year to ensure maximum continuity with the new resources.

The Hon. Melinda Pavey: Just as well.

The Hon. JOHN DELLA BOSCA: The upgraded reception service will ensure that all students receive prompt answers to their inquiries. Students Online will be regularly updated to include even more customised features and will eventually be expanded to provide a service to year 11 and year 10 students. I am glad I have so much support from the Opposition benches. The new website is located at studentsonline.bos.nsw.edu.au. This is another initiative that will help us meet our State Plan targets to lift the attainment of all students and to provide greater customer satisfaction with government services. I wish this year's Higher School Certificate cohorts well and I hope this initiative will further assist them to find the right balance between their recreation and productive Higher School Certificate studies.

If members have further questions, I suggest that they place them on notice.

Questions without notice concluded.

[The President left the chair at 1.03 p.m. The House resumed at 2.30 p.m.]

AUSTRALIAN JOCKEY CLUB BILL 2008

HUMAN TISSUE AMENDMENT (CHILDREN IN CARE OF STATE) BILL 2008

CHILDREN AND YOUNG PERSONS (CARE AND PROTECTION) AMENDMENT (BODY PIERCING AND TATTOOING) BILL 2008

Bills received from the Legislative Assembly.

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

Motion by the Hon. Tony Kelly agreed to:

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

Bills read a first time and ordered to be printed.

Second readings set down as orders of the day for a later hour.

COMMITTEE ON THE INDEPENDENT COMMISSION AGAINST CORRUPTION

Report No. 2/54: Review of the 2005-2006 Annual Report of the Inspector of the Independent Commission Against Corruption

Debate called on, and adjourned on motion by the Hon. Michael Veitch.

GENERAL PURPOSE STANDING COMMITTEE NO. 2

Report No. 25: Inquiry into the Operations of the Home Building Service

Debate resumed from 14 May 2008.

The Hon. CATHERINE CUSACK [2.33 p.m.]: I congratulate the committee on its excellent inquiry into the operation of the Home Building Service. I know it was harrowing work because there are many victims of the dysfunctional New South Wales home warranty scheme. The repeated claims by the Minister and the Government that these are old cases that have been addressed, and that have somehow been exaggerated by unfortunate individuals who have been frustrated by legal advice they have received, are a complete and utter cover-up of serious dysfunctional problems in the scheme. 8056 LEGISLATIVE COUNCIL 4 June 2008

The Office of Fair Trading has failed to accept any responsibility for consumer complaints relating to the home building industry. The immediate response of the Office of Fair Trading to consumers who ring up and say, "I need to make a claim on home warranty as my house is falling apart or my builder has disappeared", is the suggestion for them to go away and get a lawyer. People are told to try to fight it out with their builder in the Consumer, Trader and Tenancy Tribunal [CTTT]; they are basically left to their own devices. Most of these people have never had interaction with the legal system. Many of those I have been seeking to assist are children and single parents with jobs. Many of them have been fighting for their entitlements as consumers for three to seven years and are a shell of their former selves.

I shall briefly describe some of the people I meet every week who are fighting the Office of Fair Trading and the Vero insurance company, in many cases because of stupid mistakes made in the Consumer, Trader and Tenancy Tribunal, that they are forced to take to the Supreme Court to have overturned. These people are ordinary Australians, just like you and me, who wanted to build a new home or make extensions to their existing home. Things have gone wrong for them and they now find themselves in an absolutely ruinous fight for their legal entitlements. They enter the process believing they have home warranty insurance and that they are covered. They are then horrified to discover that they are completely on their own, fighting people who are often very experienced in the system. A dodgy builder who has been before the Consumer, Trader and Tenancy Tribunal many times has an enormous advantage over the consumer. Consumers are doing this all by themselves.

There are real problems in the Consumer, Trader and Tenancy Tribunal, and I will highlight those problems should a certain item of business on the Notice Paper ever come before this House. In a disturbing number of cases I find that people of non-English-speaking backgrounds are naively going to the tribunal only to be told by an officer quite arrogantly that he does not like them and will not listen to their case. Those consumers are forced to go to the Supreme Court for a formal ruling that it was wrong for the member to ignore them and their case. They can then return to the tribunal. But they are out-of-pocket every step of the way.

The system requires people who have a problem with their builder to go to the Consumer, Trader and Tenancy Tribunal for an order for rectification. However, if the builder fails to rectify the problem, or if a new matter emerges the tribunal will not consider—they are told that they have one shot at their insurance scheme and that is it—they then have to go to the Supreme Court. Having proved in the tribunal that there is a problem with their house—a wall is falling down or whatever—they then get an order against the builder. But if the builder fails to comply with that order, they must return to the tribunal for an enforcement order and then go to the District Court for a court order. If the builder still fails to comply, they have to go back to the tribunal again.

The Office of Fair Trading will not help them at this point because it claims that until the builder is in liquidation a claim cannot be made on their home warranty. They are then required to take the builder to the Supreme Court for liquidation proceedings. In one of the cases documented by this inquiry builder went off and reinvented himself, Phoenix like, in a new company. The builder, who already had numerous breaches of his licence recorded by the Office of Fair Trading, commenced working as a supervisor in his son's company. Because it was a different arrangement, he could continue business as usual despite all the problems and misery he had caused. Meanwhile, the consumer is still trying to chase up all these matters in the Supreme Court. Finally they go to Vero insurance and say, "I have done all of this work. I am now completely ruined. My children have not seen me for a long time." In one tragic case a man told me that he had been robbed of his children's childhood because he had spent so many nights looking at legal papers. The enormous toll on these individuals cannot be overstated. When I have spoken to them, they cling to their documents, which they know back to front.

This has taken an incredible toll on some people. Many have ended up financially ruined and emotionally exhausted and their relationships have broken down. A gentleman who lives at Cabramatta who won all his court cases against his builder and the Consumer, Trader and Tenancy Tribunal is now virtually bankrupt and lives in a caravan adjoining his house. His father is angry with him for fighting the insurance company, which had offered him an inadequate settlement that he refused to accept on principle. His mother had a stroke when a sheriff's officer arrived with a court order to take away all the family possessions. He now faces four separate legal actions. The bank has taken legal action against him. For the past six years he has repaid a construction loan for a house he cannot live in. Because of increases in interest rates, his repayments are now $4,100. The bank is now foreclosing and he will lose the house that he has fought to have rectified. A solicitor has taken legal action against him for unpaid fees. He also faces legal action from the council. He has been ordered by the Land and Environment Court to fix the house, but he does not have the money to do so. Ironically, this council certified the house. Prior to construction of the two-storey house, the ground was not impacted properly and now the house is sinking and falling apart. Council officers certified every stage of construction. Now the council has taken action against him to fix the house. 4 June 2008 LEGISLATIVE COUNCIL 8057

The fourth legal action is from the insurance company. He again beat the insurance company in the Supreme Court earlier this year and the insurance company has appealed that decision. It seems that the insurance company does not care how many times it loses in court. The aim of the game is to financially drain, bully and destroy in order to teach people a lesson: when the insurance company offers an inadequate settlement, take it or be destroyed. This man, who came to Australia as a very young man, has fought his case on principle. I detect in him a measure of disbelief in the way the system operates. I am distressed by my dealings with these poor people. I know that the information I get on my desk is the same information the Minister for Fair Trading gets on hers. I am dismayed that anyone, particularly a Labor Minister, could be so impervious to the misery and wreckage of these people's lives. Minister Burney promised a response to this report early this year. That response has not been provided. I hope a response will be forthcoming by the due date, which is approximately one week's time.

The Hon. ROBYN PARKER [2.44 p.m.], in reply: I thank all honourable members who participated in this debate for their considered and thoughtful comments. I particularly thank the committee members who conducted the inquiry and the Hon. Jennifer Gardiner, the former chair of General Purpose Standing Committee Standing Committee No. 4, which commenced the inquiry. It is relevant to note that since this report was tabled a major building company in New South Wales has collapsed. The Home Building Service, the Minister for Fair Trading and the insurance company, Vero, are under the microscope. The longer this goes on, the more issues arise about the Home Building Service and the Office of Fair Trading and the glaring and obvious deficiencies in the home building process. The frustration of people and the stress and strain on families who are involved with the recently collapsed building company are evident. They try to get solutions, while their buildings fall apart and their bank balances dwindle. Their circumstances are dire. Many are living in caravans. Turmoil swirls around them and everything is beyond their control. As the Hon. Catherine Cusack said, the longer it takes, more people fall into an ever downward-spiralling debt trap.

Almost every consumer who participated in our public forums spoke of incredibly stressful and distressing times that have seen their dreams fall apart. It is hard on families and individuals. We need a better system. This report is a step towards making a better system and improving the Home Building Service. It is not a panacea because there are problems at almost every step. The committee made recommendations to improve the operations of the Consumer, Trader and Tenancy Tribunal. We did not go so far as to recommend that we turf out the home warranty insurance scheme and return to the original scheme. But we highlighted issues relating to the operations of the home building warranty scheme and insurance, which is a policy of last resort. The committee indicated the need for an additional trigger. That is absolutely essential if consumers are to be protected.

The committee also raised concerns about conflicts of interest with the home warranty insurance. Builders are frustrated with the whole process. If they are unable to get insurance, they are financially disadvantaged. I note that at the same time as our report and inquiry into the Home Building Service, the Senate held an inquiry into home warranty insurance. I note also that Tasmania has taken steps to address its home warranty insurance issues. Queensland has a different system to ours in New South Wales. These matters must be addressed and improvements made. The recent collapse of Beechwood Homes has brought these issues to the public's attention. I hope that the consumers and builders who presented to the inquiry have a quick resolution of their matters, which will assist in alleviating their stress. For some of them it is a life-changing issue that they can never repair, but we hope there are ways that their lives can move forward.

The inquiry receives ongoing correspondence and I note that some of the consumers who participated have concerns about the feedback they receive from the Office of Fair Trading. We urge the Office of Fair Trading and the Minister to focus on those cases presented to our inquiry and on ongoing cases following the HIH Insurance collapse, prior to the establishment of the Home Building Service, so there is some resolution and people can get on with their lives.

These are strong recommendations and well received by consumers and builders alike. We hope the Government takes note that with goodwill on the part of the Minister and the Government, the recommendations would go some way in resolving many of the problems within the Home Building Service. We look forward to the Government's response and we certainly look forward, on behalf of consumers, to improvements along the way. There is more work to be done in terms of the Consumer, Trader and Tenancy Tribunal and the home building warranty process: the whole process is under the microscope. I again thank all participants in the inquiry—the committee, the secretariat staff, and all honourable members who have participated in today's debate. I commend the report to the House.

Question—That the House take note of the report—put and resolved in the affirmative.

Motion agreed to. 8058 LEGISLATIVE COUNCIL 4 June 2008

COMMITTEE ON THE HEALTH CARE COMPLAINTS COMMISSION

Report: Review of the 2005-2006 Annual Report of the Health Care Complaints Commission

Debate resumed from 14 May 2008.

The Hon. DAVID CLARKE [2.51 p.m.]: When debate on this motion was adjourned on 14 May I was discussing the role of the parliamentary committee in oversighting the Health Care Complaints Commission. The purpose of the parliamentary committee is not to investigate complaints against the health care system but to ensure that the commission does so, and does so effectively. Today we have before us for consideration the parliamentary committee's Review of the 2005-2006 Annual Report of the Health Care Complaints Commission.

As a member of the parliamentary committee I do not propose to speak at great length because the committee's chair, the Hon. Helen Westwood, both in her Chair's forward and subsequent comments in this House, has effectively, concisely and competently encapsulated the views and concerns of the committee. However, I take the opportunity to make a few observations. The parliamentary committee has in the past expressed concerns about aspects of the commission's operations. The delay in the processing of complaints had become a major issue, with a large and unacceptable backlog of complaints having been allowed to build up. There was a view that the commission was not operating as effectively and as efficiently as it should.

The committee previously expressed concerns that many complaints faced inadequate assessment and unacceptable delays. It is pleasing to see that the large backlog of complaints is being cleared and the processing of complaints has been greatly streamlined. Although the time taken to complete complaints investigations is still too high, substantial improvements have been achieved in recent times. The implementation of a number of internal reforms by the commission, including the creation of an internal audit committee, clearly has been fruitful. I believe it is of pivotal importance that the New South Wales public, particularly those with concerns about and complaints against the health care system, is aware of the commission and its purpose, which is to provide a complaints mechanism for those who believe they have complaints and who believe they have been aggrieved.

There is a great and growing public focus on inadequacies in the New South Wales health system. Enormous publicity has been given to the escalating instances of negligence, misconduct and unsatisfactory standard within the New South Wales health care system. We have had the saga of Royal North Shore Hospital; we have had problems arising from Camden Hospital; and daily new horror stories come forth. Probably now more than ever before, the New South Wales public needs to be aware of the existence of the Health Care Complaints Commission and the avenue it provides for their complaints to be properly investigated and remedial action taken. Apart from its obvious but so far neglected and undischarged duty of finally getting around to undertaking a complete shake-up and reform of the woeful public health care system in this State, I believe that it is of paramount importance that the New South Wales Government also pursue a much greatly accelerated campaign of promoting public awareness of the Health Care Complaints Commission, its purposes and its powers. If it does this it will be performing a genuine and worthwhile service for health care and for the citizens of New South Wales.

The Hon. HELEN WESTWOOD [2.55 p.m.], in reply: I thank members for their contributions to the debate. As I noted in my original contribution, section 65 (1) (c) of the Health Care Complaints Act 1993 empowers the Joint Parliamentary Committee on the Health Care Complaints Commission to examine each annual and other report made by the commission and presented to Parliament. The committee takes very seriously its responsibilities to undertake such examinations, and I am confident that members will agree that it has done so thoroughly in respect of the 2005-2006 annual report of the commission, which is the subject of this debate.

As I also noted previously, due to the re-establishment of the committee in the wake of the 2007 State election, the committee has only recently completed its examination of the commission's 2006-2007 annual report. The committee will be in a position to table to the Parliament its review of that report in the near future. The Health Care Complaints Act defines the scope of the commission's work, which is to receive and assess complaints relating to health service providers in New South Wales, to resolve or assist in the resolution of complaints, to investigate serious complaints that raise questions of public health and safety and to prosecute serious complaints. In exercising these statutory functions the commission is to have as its primary object the protection of the health and safety of the public. 4 June 2008 LEGISLATIVE COUNCIL 8059

The commission is an independent body that has a responsibility to deal with complaints, in particular by way of the investigation and prosecution of serious complaints. However, I note, for example, that the commission has no power to award damages or determine compensation, and it cannot direct a health service provider to take specific action to resolve a complaint. In addition, it is important to bear in mind that, despite the commission's independence, the Act specifies that the Health Care Complaints Commission is to operate in consultation with relevant registration authorities, which are also responsible for protecting the public through promoting and maintaining professional standards in New South Wales. The commission also works cooperatively with the Director General of the Department of Health, who has a wide range of health policy and regulation responsibilities, and with public health organisations conducting health services, which are responsible for achieving and maintaining adequate standards of patient care and services.

The breadth of the Health Care Complaints Commission's responsibilities is evidenced by the fact that a complaint may be made to the commission about any health service provider in New South Wales—this includes practitioners, such as doctors, nurses, dentists, pharmacists, psychologists, chiropractors, podiatrists and others—regarding the clinical care and treatment of an individual or their professional conduct, and also health service organisations such as public or private hospitals, clinics, medical centres, day surgery centres, the ambulance service and others, affecting the clinical care or treatment of any individual.

Complaints can be made also about service providers who currently do not require registration to practice in New South Wales. This includes acupuncturists, naturopaths, psychotherapists, dieticians, audiologists and others. On this point, members who predate my arrival in this Chamber may recall that in November 2006 the Parliament passed the Health Legislation Amendment (Unregistered Health Practitioners) Act 2006. That Act made amendments to the Public Health Act 1991, the Health Care Complaints Act 1993, and the various health professional registration Acts, including inserting section 10AM into the Public Health Act to provide for the development of a code or codes of conduct for unregistered health practitioners. Developing such a code of conduct ensures that breaches by unregistered practitioners may be dealt with by the Health Care Complaints Commission, and where the practitioner represents a substantial risk to the health of members of the public, the practitioner can be either banned from practice or have conditions placed on his or her practice.

I am pleased to note that the Department of Health is currently finalising this code and that the committee has played a part in this process by bringing to the department's attention the recommendations in the committee's 2006 report entitled "Unregistered Health Practitioners: The Adequacy and Appropriateness of Current Mechanisms for Resolving Complaints". While the investigative powers of the commission are appropriately broad, I note that the Health Care Complaints Act strictly limits the committee's powers. Section 65 (2) of that Act provides:

(2) Nothing in this Part authorises the Joint Committee:

(a) to re-investigate a particular complaint, or

(b) to reconsider a decision to investigate, not to investigate or to discontinue investigation of a particular complaint, or

(c) to reconsider the findings, recommendations, determinations or other decisions of the Commission, or of any other person, in relation to a particular investigation or complaint.

Much of the correspondence and many of the representations the committee receives involve health consumers who assume that the committee has the power to reinvestigate. That is something we perhaps need to communicate a little better to the general public.

The aim of this limitation is to ensure that the committee is not constantly second guessing the commission's decisions and that the committee can take an overarching view of the commission's effectiveness and competency by examining system-wide issues and reporting them to Parliament. However, I assure members that the commission's decisions are subject to examination by the New South Wales Ombudsman and that the committee refers complaints to the Ombudsman where it does not have the necessary statutory remit to consider such complaints.

I acknowledge the way members of the committee have been willing to work in a bipartisan manner in executing the committee's responsibilities to the Parliament and the community of New South Wales. My only disappointment was the contribution by the member for North Sydney in the other place. Regrettably the member erroneously claimed that, apart from myself, government members of the committee did not bother to attend a meeting to discuss complaints against Dr Graeme Reeves. In fact, two government members were 8060 LEGISLATIVE COUNCIL 4 June 2008

unable to attend because of the changes to the parliamentary sitting hours. Two government members, two opposition members and Reverend the Hon. Fred Nile attended the meeting. It is important to note that the committee members' non-attendance was not due to a lack of interest.

[Interruption]

It is disappointing to hear those interjections because members of the committee have taken a bipartisan approach. All committee members recognise the importance of the work we are doing, particularly now. It is regrettable that the committee's work appeared on the Liberal Party website. In fact, that was an unauthorised disclosure of the committee's work. All members of the committee—both government and non-government members—have been willing to take a bipartisan approach and I believe they are committed to ensuring that the Health Care Complaints Commission fulfils its obligations. As a committee, we are committed to reviewing any aspects of the commission's investigations and actions relating to complaints against Dr Graeme Reeves to ensure that any systemic failures are identified and rectified.

Members will be well aware that we live in a society in which the standard and quality of health care is often at the forefront of public policy debate, as indeed it should be. The past 12 months have been a time of particular foment in this area, with the commission of inquiry into Royal North Shore Hospital, the establishment of the Garling Special Commission of Inquiry into Acute Care Services in New South Wales Public Hospitals and the recent moves to create a national registration scheme for health practitioners. Undoubtedly, the Health Care Complaints Commission will continue to play an important role in protecting the health and safety of the New South Wales public. I assure members that the joint parliamentary committee will continue to monitor and review the work of the commission and its function and to report to the Parliament without fear or favour on any matter relating to the commission to which in the committee's opinion the attention of the Parliament should be directed.

Question—That the House take note of the report—put and resolved in the affirmative.

Motion agreed to.

GENERAL PURPOSE STANDING COMMITTEE NO. 2

Report: Budget Estimates 2007-2008

Debate resumed from 5 March.

The Hon. ROBYN PARKER [3.06 p.m.]: Having already tabled the Budget Estimates General Purpose Standing Committee No. 2 report, I will make a number of comments. I first thank Hansard, the committee staff and the participants for the way in which the committee's inquiries were conducted. They can often be quite stressful experiences. However, at the end of the day we were all there to get answers about expenditure during the four public hearings on the portfolios of Fair Trading, Youth and Volunteering, Ageing and Disability Services, Education and Training, Industrial Relations, Finance, the Central Coast and Health.

Where Ministers gave the committee more time and opportunity for questions, the hearings were fruitful. Where Ministers and their departmental officers were prepared to give honest answers there were greater benefits and outcomes for everyone concerned. Those Ministers who played games with long introductions and lengthy Dorothy Dixers do not do themselves any favours and certainly do not add anything to the process.

During the hearings on Fair Trading and Youth and Volunteering members asked questions about financial counselling services, and particularly financial counselling on the North Coast. That was the subject of further committee inquiries and letters to the Minister to verify some of the comments that she made about financial counselling and the drought, and to follow up concerns the counselling services raised about those comments. They felt they were somewhat misleading. The committee undertook that work and got a result on behalf of the counselling services on the North Coast. It was not necessarily a result in terms of increased funding—which is what they really need to do the job—but the committee did get some answers.

The committee also reviewed the Residential Tenancies Act and asked questions about housing affordability, the Consumer, Trader and Tenancy Tribunal, consumer protection for residential home building, product safety laws, car rebirthing, the "Breaking the Silence: Creating the Future" report, World Youth Day, 4 June 2008 LEGISLATIVE COUNCIL 8061

the Youth Advisory Council and the Volunteer of the Year Award. From my perspective, given my role as Opposition Parliamentary Secretary for Aboriginal Affairs, it was very disappointing that during the hearing process the Minister was unable to provide any concrete figures or information about the "Breaking the Silence: Creating the Future" report, particularly in reference to her Youth portfolio.

Even though the report recommends a whole-of-government response to the sexual abuse of Aboriginal children in New South Wales and the Government's own response talked about its whole-of-government approach, the Minister and the Director General of the Department of Community Services said the whole-of-government response was being led by the Minister for Aboriginal Affairs. The Minister for Aboriginal Affairs had a different view when his time came to present the budget estimates. I found this to be extremely disappointing.

Even though we are talking about helping Aboriginal youth in the State, the Minister for Youth was unable to provide any concrete answers or figures about what her portfolio was doing other than to say that questions should be directed to the Minister for Aboriginal Affairs. The Minister for Fair Trading has also failed consumers and motorists in this State on the issue of rising fuel prices. The New South Wales Liberals and Nationals introduced a policy to review fuel pricing, but the Minister for Fair Trading on 20 March made comments that these policies and ideas were shambolic. I wonder whether the Minister has changed her tune now. New South Wales consumers are at the forefront of the portfolio, so it was a good opportunity to ask the Minister some searching questions on their behalf. I am not sure we got the answers we need but we got the answers we expected.

The next hearing was on the ageing and disability services portfolio, which covered the issues of the Stronger Together and Better Together programs; issues associated with respite care and services, including length of stay in respite care; and availability of beds and flexibility of respite packages. The hearing also covered the prevalence and incidence of abuse allegations and the role of independent consultants, the nature of allegations and the cost of back filling the positions of those under investigation. It also covered the disability audit in Parliament House; remuneration for carers, services and families of children with disabilities; waiting lists for therapy places; the response to recommendations of the New South Wales Ombudsman's 2004 children's report; meeting Aboriginal disability needs and the provision of culturally appropriate disability services. In the interests of time I will not go through every issue we discussed but certainly one issue was the provision of public dental services for older people and the Commonwealth-State-Territory disability agreements funding.

A number of issues were raised, and particularly during this hearing respite services and the availability of beds were major issues. The shadow Minister for Disability Services has noted the plight of carers. The Minister's answer in response to questions about respite places was that there were more than ever before and the number of blocked beds was at a lower point than at any time in a decade. It was evident that 15 per cent of the 238 beds operated by the department were blocked, and the Minister refused to confirm the number of blocked beds in the funded centre-based respite services in the sector. A year since the last budget, we look with interest to see what this budget delivers to respite care services and aged services, but carers needing respite did not get the sort of comfort they deserved from the last budget.

Our third hearing related to the education and training, industrial relations and the assistant finance and Central Coast portfolios. It looked at a range of issues including the distribution of political material at schools, the protection of the independence of schools from partisan politics; fees and rebates for apprentices and trainees at TAFE, together with the current funding arrangements for TAFE; reform of the New South Wales school curriculum; the quality of teaching and teacher training in New South Wales; and issues in relation to particular schools. Time was spent on the closure of Macquarie Boys High School and the impact of the proposed sand mine at Somersby on Somersby Public School. Questions were asked about the number of school counsellors and speech pathologists available and the training required. Questions were asked about the industrial relations portfolio, WorkCover and the lifetime care and support scheme. Particular questions were also asked about vocational and educational training and costs passed on to non-government schools and the non-government school students participating in that scheme, and the feedback was passed on to those students.

There were some disappointing responses from the Minister, particularly in relation to the Investing in Our Schools Program. He commented that it did nothing to improve the delivery of quality education. However, it was highlighted that the maintenance backlog in schools was something in the order of $82 million and the money was going to a number of schools to fix up basic infrastructure and maintenance repairs. Issues relating to politicisation in schools were pertinent because of advertising on fences and protesting during the Federal 8062 LEGISLATIVE COUNCIL 4 June 2008

election. It seemed as though the director general was powerless to stop teachers, who were wearing industrial related T-shirts with industrial messages on them. There were banners and posters on schools, and children were asked to participate in political debate.

The fourth and final hearing was on the health portfolio. We had only one day's hearing on this topic and, of course, one cannot cover such a huge portfolio in the time we had available. We looked at the North Sydney Central Coast Area Health Service, the Australian Medical Association report on hospitals in New South Wales, the resource distribution formula, dental waiting lists and the budget process for appliances for disabled people.

Another budget was delivered yesterday, another year since the last budget, and clearly, health is not doing well for this Government. Some of the questions we asked have not been resolved and it was disappointing to see that some of the issues raised have been ongoing problems, such as those experienced at Royal North Shore Hospital. In the interim, the Garling inquiry has been established to look into health. Need I go on? There have been health issues right across the board. We could have spent a much longer time examining the health budget but in the time we had we asked some good questions and got responses that certainly lead to a conclusion that this portfolio needs a great deal of attention. I cannot speak for all committee members but there was a clear understanding that greater resources need to go into the portfolio, and better management would not hurt.

On behalf of the committee I thank everyone who participated in the estimates process. I hope this year our estimates process timetable is such that are able to meet at a time when we are not encumbered with parliamentary sitting days, that we are not diverted by the time of day at which we are meeting, and that we have a full and frank opportunity to ask questions and have the budget examined in a way that we can get results for the people of New South Wales. I thank all Ministers who presented to the General Purpose Spending Committee No. 2 estimates inquiry and their departments. I thank all committee members, Hansard and parliamentary staff, and I ask honourable members to take note of the conclusions of the report.

Question—That the House take note of the report—put and resolved in the affirmative.

Motion agreed to.

GENERAL PURPOSE STANDING COMMITTEE NO. 4

Report: Budget Estimates 2007-2008

The Hon. JENNIFER GARDINER [3.20 p.m.]: I have pleasure in speaking in this take-note debate on the report of General Purpose Standing Committee No. 4 on the budget estimates for 2007-08. The committee held seven public hearings, decided that a number of issues needed further analysis and conducted supplementary hearings. I thank all members of the House who participated in the work of the committee in the estimates process for 2007-08. I thank the ever-reliable Hansard staff and Legislative Council committee staff for their assistance.

General Purpose Standing Committee No. 4 conducted a public hearing into the Planning, Redfern-Waterloo and Arts portfolio and for some time the committee has pursued certain themes. Indeed, the Planning portfolio continues to be fraught with many controversies and is the subject of legislation to be debated in this place shortly. The most time-demanding portfolio that General Purpose Standing Committee No. 4 deals with is the huge Transport portfolio. Again themes emerged from one budget to the next and there was considerable interest in a range of issues. Because it is such a large portfolio, sufficient time was not allocated to follow up on all of those matters.

However, the committee did examine the debacle of the Tcard electronic ticketing system, which is no longer in existence; Minister Watkins aborted the project. Minutes attached to the report show that a number of committee members were keen to pursue debate on Tcard and that remains a matter for future deliberation by the committee. Another Transport issue that the committee has followed for some time is corruption within RailCorp. Since the committee completed its hearings, corruption in RailCorp has re-emerged in another Independent Commission Against Corruption inquiry, with the former Director General, Mr Vince Graham, being a key witness and admitting that there is a serious cultural problem in that organisation which he was unable to successfully deal with. Obviously that matter will need to be further examined.

Vince Graham referred to the time it takes to turn around that culture in such a large organisation. Rooting out the capacity for corrupt activity must be addressed in a full-on way, and I have no doubt that my 4 June 2008 LEGISLATIVE COUNCIL 8063

colleagues on the committee will be interested to see how that portfolio responds to the report of the Independent Commission Against Corruption in due course. The committee has been very interested in the operations of Sydney Ferries, the Walker inquiry into Sydney Ferries and the fate of our ferry services in Sydney Harbour. We will endeavour to be fruitful in investigating and continuing to monitor this area in the period immediately ahead.

Community Services is also a large portfolio, which for the first time was allocated to General Purpose Standing Committee No. 4 in 2007-08. I thank my colleague the Hon. Catherine Cusack for assisting in the hearings and supplementary hearings with respect to Community Services, which, like Health, is the subject of a special commission of inquiry. Issues include the scarcity of services in the Far West and the further reaches of north-west New South Wales, which is a matter we will be keen to follow up to check on progress.

Because of the momentous nature of the issues surrounding the controversial Community Services portfolio a supplementary hearing was held. At that time we heard from the Director General, Dr Neil Shepherd, who was about to retire. I take this opportunity to wish him well in his retirement. He is a very distinguished public servant in New South Wales who has a very long record of heading up agencies in this State. He was very forthcoming at the supplementary hearing, and I was reminded of this the other day when I was reading an article about the life and times of the Hon. Carmel Tebbutt, a former Minister for Community Services. Ms Tebbutt said that her proudest achievement, she thought, was the greatly trumpeted allocation of additional resources when she took over as the Minister for Community Services. However, we were able to establish from Dr Shepherd that built into those forward estimates were no growth funds at all—none. In other words, it was just a block of money that sounded fantastic for the front page of the Sydney Morning Herald and the Daily Telegraph.

Ms Sylvia Hale: Smoke and mirrors.

The Hon. JENNIFER GARDINER: It was smoke and mirrors, and a tragedy really because at the time that the Hon. Carmel Tebbutt was the Minister it was obvious that the demand on Community Services was growing. That is why the department got into an extraordinary degree of crisis under the previous Minister and previous directors general. It is interesting to read contemporary stories by that Minister, who said it was her greatest claim to fame. In our supplementary hearing, courtesy of Dr Shepherd's forthright evidence, we were able to establish that there was nothing new or improved in the budget allocation to the Department of Community Services during her time as Minister. That is partly why the current Minister is in so much strife and a special commission of inquiry is being undertaken into the department.

Another interesting matter we were able to establish courtesy of Dr Shepherd was the question of overseas adoptions, which came under the purview of the Department of Community Services. Dr Shepherd was quite frustrated that a lot of time and effort are allocated to that complex issue, as it necessarily would be. He felt the issue should be handled elsewhere rather than taking the time and resources of an already stressed department.

General Purpose Standing Committee No. 4 also conducted budget estimates hearings in relation to the portfolio areas of small business, regulatory reform, and ports and waterways. The committee also had an interesting session with the new Minister for Women, and Minister for Science and Medical Research, which proved to be quite amusing. The committee looks forward to this year's budget estimates hearings. As other members have noted, it takes us quite a while to get around to debating the previous year's budget estimates. Some of us look forward to finding a way of speeding up the reporting process through the House, because it is the way we bring one particular estimates process to finality. The committee is about to commence a fresh round of hearings. We note that many of the issues that were extremely relevant and cogent 12 months ago or more are still on the boil today. Once again I thank all the contributors to the work of General Purpose Standing Committee No. 4 in its examination of the 2007-08 budget estimates. We look forward to the examination of the 2008-09 budget estimates, which were tabled in this House yesterday.

Question—That the House take note of the report—put and resolved in the affirmative.

Motion agreed to.

STANDING COMMITTEE ON LAW AND JUSTICE

Report: The Prohibition on the Publication of Names of Children Involved in Criminal Proceedings

Debate resumed from 6 May 2008.

The Hon. CHRISTINE ROBERTSON [3.30 p.m.]: I am pleased to commence debate on the thirty-fifth report of the Standing Committee on Law and Justice, titled "The prohibition on the publication of 8064 LEGISLATIVE COUNCIL 4 June 2008

names of children involved in criminal proceedings". The report was tabled out of session with the Clerk on 21 April this year. The New South Wales Attorney General, the Hon. John Hatzistergos, referred this inquiry to the law and justice committee on 16 October 2007. The committee was asked to inquire into and report on the validity of the policy objectives behind the prohibition and how effectively those objectives were being met. The committee was also asked to consider whether the prohibition should be extended.

Following consideration of all the evidence before it, the committee has reaffirmed the validity of the policy objectives behind the prohibition and has recommended that it be extended to cover children who are "reasonably likely" to become involved in criminal proceedings, so that children who may be the subject of police investigations are also protected. The committee has also recommended that a special unit within the New South Wales Police Force be identified to investigate alleged breaches of the prohibition.

The prohibition is contained in section 11 of the Children (Criminal Proceedings) Act 1987. Section 11 prohibits publication of the name or material that may lead to the identification of any child involved in criminal proceedings. A child is a person under 18 years of age and criminal proceedings are considered to have commenced with the laying of charges or the issuing by police of a court attendance notice. The prohibition covers children who are defendants, offenders, victims or witnesses, or who are otherwise mentioned during proceedings.

An exception can be made to this general prohibition in the case of a child convicted of a serious children's indictable offence. A child over the age of 16 can give permission for their name to be published and a child under the age of 16 can give consent along with the consent of the court. In addition, if a child victim is deceased, the senior available next of kin can give permission for their name to be published. The policy objectives of the prohibition are to protect child offenders, victims and witnesses from the stigma of association with a crime and to assist in their rehabilitation and recovery. The child siblings of deceased children are also protected from the publicity that may follow from the naming of the deceased. The power to decide whether or not the deceased child is publicly named is given to the family.

The committee heard evidence from a range of major stakeholders within the criminal justice system, including the Attorney General's Department, the Department of Juvenile Justice, the Director of Public Prosecutions, the Legal Aid Commission, the Public Defender's Office, the Chief Magistrate's Office and the New South Wales Police Force. The committee also heard from the Commission for Children and Young People, and various other youth legal and advocacy organisations.

Pursuant to standing orders business interrupted and set down as an order of the day for a future day.

EXOTIC DISEASES OF ANIMALS AMENDMENT BILL 2008

Bill introduced, and read a first time and ordered to be printed on motion by the Hon. Henry Tsang, on behalf of the Hon. Ian Macdonald.

Second Reading

The Hon. HENRY TSANG (Parliamentary Secretary) [3.35 p.m.]: I move:

That this bill be now read a second time.

The Exotic Diseases of Animals Amendment Bill 2008 amends the Exotic Diseases of Animals Act 1991. The amendments will improve the operation of the Act and provide for a more streamlined response to the outbreak of emergency animal diseases in this State. The need for many of the amendments was identified during the outbreak of equine influenza in 2007, which has been successfully eradicated by the New South Wales Government. I remind the House that horse industries across the country ground to a halt when equine influenza was detected. It is only because of the hard work of those involved in the control and eradication of the disease that these industries are up and running again.

The success of the Government's containment and vaccination strategy is remarkable. It is due to the massive effort of the Department of Primary Industries, rural lands protection boards, the police, the State Emergency Service, the Rural Fire Service, New South Wales Health, and other members of the community. The horse industry, both recreational and professional, must also be thanked for their valuable contribution to the successful eradication of equine influenza. Without their commitment, assistance and professionalism the disease would not have been eradicated so quickly and efficiently. 4 June 2008 LEGISLATIVE COUNCIL 8065

Equine influenza had a devastating effect on industries associated with horses, not just in New South Wales but also across eastern Australia. The proposed amendments will enable faster and more effective responses to emergency disease outbreaks, such as equine influenza, foot and mouth disease, and avian influenza. This will minimise the impact on industry and the community of any future disease outbreaks. Further, nationally agreed policy changes to the management of emergency diseases have also resulted in the need to amend the Act.

The Exotic Diseases of Animals Act 1991 is the main instrument for dealing with exotic disease outbreaks in animals in New South Wales. It provides for the detection, containment and eradication of certain serious diseases affecting livestock and other animals. Currently, the Act imposes a duty on stock owners and veterinary practitioners to notify the New South Wales Department of Primary Industries if they suspect an animal is infected with an exotic disease. The Act also provides for actions to be taken to contain and eradicate such a disease. As well, it sets up a fund to provide compensation to owners of animals or equipment that need to be destroyed because of disease.

The Exotic Diseases of Animals Amendment Bill 2008 will improve the way emergency animal disease outbreaks are managed in New South Wales. One way in which it will do this is by aligning the Act more closely with the national "Government and Livestock Industry Cost Sharing Deed in Respect of Emergency Animal Disease Responses", or the Cost Sharing Deed. The Cost Sharing Deed is a national agreement entered into in 2002 by the Commonwealth, State and Territory governments and peak livestock industry bodies such as the Cattle Council of Australia Incorporated, Australian Pork Limited, the Sheep Meat Council of Australia Incorporated, and the Australian Chicken Meat Federation Incorporated.

The deed outlines how costs and responsibilities will be shared between Government and the livestock industry in the management of emergency animal disease outbreaks. The deed covers endemic and exotic animal diseases that are likely to have a significant effect on livestock and the community. In some cases, such diseases may also have an impact on human health and the environment. However, the New South Wales Act only applies to exotic diseases. This is because it reflects an earlier national agreement.

Exotic diseases are introduced or foreign diseases, such as foot and mouth disease, rabies and equine influenza. Exotic diseases can either be deliberately or accidentally introduced to an uninfected area. The current provisions of the Act cannot be used to manage major outbreaks of endemic diseases that might fall within the definition of "emergency animal diseases" under the national Cost Sharing Deed. To overcome this unintended limitation, two amendments are proposed.

The first is to extend the emergency powers under the Act to outbreaks of all emergency animal diseases. This will allow the Act to cover emergency endemic as well as exotic diseases. It will also ensure that the Act is consistent with the national Cost Sharing Deed. The second change, which reflects the expanded focus of the Act, is its title. It will now be known as the Animal Diseases (Emergency Outbreaks) Act 1991.

Identification of a disease is a critical step in ensuring a response can be launched as quickly as possible. The bill extends the reporting requirements for veterinary practitioners. Veterinary practitioners will have a duty to report diseases that they suspect are new or emerging diseases, are not endemic to New South Wales, or do not usually occur in the species of animal or animal product that the practitioner is examining. Veterinary practitioners will be required to report the findings to a stock inspector by the quickest means of communication available.

About a decade ago, Hendra virus killed a trainer and a number of horses in Queensland. This disease was not endemic to New South Wales at the time. Under the new legislation veterinary practitioners would now have a duty to report such instances of unknown diseases. This change recognises that some of the key biosecurity threats to New South Wales are from new and emerging diseases that may not have been previously recorded.

The next significant proposed amendment will strengthen the provisions of the Act to control the spread of disease. The bill allows for the destruction of an animal in certain circumstances, even if the animal is not yet showing signs of the declared disease. Destruction of the animal is an option if it is at risk of contracting and spreading the disease so that an effective buffer can be established between an infected area and an area free of infection.

I stress to the House that this power will only be used as a last resort where other disease control mechanisms, such as vaccination, are not available or are not effective and moving the animal is not an option. 8066 LEGISLATIVE COUNCIL 4 June 2008

The power would be invoked with the agreement of industry and other governments in accordance with the national Cost Sharing Deed. Compensation would be payable to owners whose animals are destroyed using this power. There are already similar powers in the New South Wales Stock Diseases Act 1923 and the Victorian Livestock Disease Control Act 1994.

The bill also includes an amendment to require persons to disinfect themselves when leaving any premises, place or vehicle. Currently the Act only provides for disinfection orders for persons entering premises. The bill also introduces controls and restrictions to prevent the movement of soil where a disease can be transmitted through the movement of soil. Taken together, these changes will provide the most effective means of controlling the spread of unwanted and potentially devastating diseases that damage our livestock industries.

I now turn to the payment of compensation under the Exotic Diseases of Animals Act. Currently, the eligibility criteria under the Act differ from the more limited criteria in the national Cost Sharing Deed. This means that not all compensation paid under the Act can be cost shared between the New South Wales Government and other governments and industry. Currently, the Act provides compensation to the owner of animals that have died of an exotic disease and to the owner of animals destroyed in order to control a disease. However, the Cost Sharing Deed only pays compensation for animals that have died of an emergency disease if the animal would have been destroyed had they not died. The bill establishes two eligibility categories for the payment of compensation. The first category retains the existing eligibility criteria under the Act. The second category is consistent with the eligibility criteria in the national Cost Sharing Deed.

The bill outlines a number of minor amendments to streamline processes during an outbreak of an emergency animal disease. For example, the Minister will now have the power to make control orders. Currently, the Minister must direct an inspector to make a control order. This process is cumbersome and time consuming. This amendment will remove unnecessary delays during an emergency response. The amendments proposed to the Act will improve this State's framework for controlling emergency disease outbreaks in animals. In addition, they will strengthen the enforcement powers under the Act. This will be done in several ways.

Firstly, on-the-spot fines, known as penalty notices, will be introduced for minor offences. Secondly, the bill extends the current six-month period to commence proceedings for an offence under the Act to two years. The six-month time frame has proved to be inadequate for investigating and commencing proceedings. Department of Primary Industries staff and resources are focused on disease management and eradication during a disease outbreak. This means that resources may not be immediately available to investigate alleged breaches of the Act. Thirdly, it is proposed to make similar amendments to other New South Wales biosecurity legislation to ensure consistency. The Acts that will be amended are: the Apiaries Act 1985; the Exhibited Animals Protection Act 1986; the Non-indigenous Animals Act 1987; the Noxious Weeds Act 1993; the Plant Diseases Act 1924; and the Stock Diseases Act 1923.

The next major proposal I now outline relates to cost recovery. Currently the Act does not provide for the collection of fees or charges to cover the costs of issuing permits to allow movement of stock and equipment and other Government activities. The bill introduces a regulation making power to impose fees and charges. This will enable the New South Wales Government to recover its costs, which will in turn lead to improvements in service delivery. To ensure consistency, similar amendments will be made to the biosecurity legislation I mentioned earlier. By moving to a cost recovery model, some additional minor costs may be imposed on industry. Overall, however, costs to industry will be reduced as a result of improving the effectiveness of responses to disease outbreaks.

The bill provides for orders to be published on the New South Wales Department of Primary Industries' website. This process is cost effective, immediate, and accessible to most. Along with the existing means of notification such as newspaper and radio, the website will help to ensure that everybody knows about the orders. The bill introduces the concept of a "general permit" which can be applied to classes of people or, if the case requires, all people in New South Wales. General permits will be notified on the department's website. General permits will allow, for example, the movement of specified items that are unlikely to spread the disease.

I am pleased to inform the House that the New South Wales Farmers Association, the New South Wales Apiarists Association, the Deer Industry Association, the Australian Veterinary Association and the New South Wales Veterinary Practitioners Board have been consulted on the proposals in this bill. These organisations support the amendments. Further consultation will be carried out with industry groups as to the setting of fees and charges. The bill will amend the Exotic Diseases of Animals Act 1991 to improve its operation and provide for a more streamlined response to emergency animal disease outbreaks in this State, 4 June 2008 LEGISLATIVE COUNCIL 8067

thereby limiting the impact of animal diseases on the New South Wales agricultural industry. Farms may face greater restrictions on movement of stock and equipment during a disease response. However, this inconvenience is outweighed by the significant benefits to the industry of a quicker and more effective response during the early stages of disease outbreaks. I commend the bill to the House.

Debate adjourned on motion by the Hon. Don Harwin and set down as an order of the day for a future day.

WESTERN AND CROWN LANDS AMENDMENT (SPECIAL PURPOSE LEASES) BILL 2008

Bill introduced, read a first time and ordered to be printed on motion by the Hon. Tony Kelly.

Second Reading

The Hon. TONY KELLY (Minister for Lands, Minister for Rural Affairs, Minister for Regional Development, and Vice-President of the Executive Council) [3.51 p.m.]: I move:

That this bill be now read a second time.

It gives me great pleasure to introduce this innovative bill, which has been drafted in response to a proposed investment in renewable energy in the Western Division. A key function of responsible government is to constantly look at improving legislation in response to changing needs and demands. The Western and Crown Lands Amendment (Special Purpose Leases) Bill 2008 creates a simple and practical way to allow large-scale development in the Western Division on Crown land that is part of a lease used for a contrary purpose such as pastoralism or agriculture. The current legislation for the Western Lands Division is restrictive when it comes to the conditions and purposes required for leases of Crown land. For example, it is currently impossible for individuals or businesses to obtain a lease of Crown land under the more flexible leasing provisions of section 34 of the Crown Lands Act—a right that is enjoyed by people elsewhere in New South Wales. This point was raised recently in the five-yearly review of the Western Lands Act 1901, which is soon to be tabled in Parliament. The bill addresses the need for greater flexibility.

Besides mirroring similar provisions in the Crown Lands Act, the bill will allow the Minister, so long as any pre-existing lessees give their consent, to grant a second lease—called a "special purpose lease"—to a developer over a parcel of land that is within the boundaries of the existing lease. Once a special purpose lease expires, pre-existing lessees with longer-term tenure, such as a perpetual lease—called "general purpose lease" in the bill—will be able to exercise their rights over the whole land again. Under the current Western Lands Act 1901, if the required land is already held under, say, a perpetual lease, the Minister can grant another lease over the same land only by compulsorily acquiring or withdrawing the relevant parcel. However, compulsory withdrawal or acquisition is often undesirable for many leaseholders, regardless of compensation.

Many leaseholders dislike the idea of their tenure being diluted if part of the land is withdrawn. Leaseholders have sometimes invested considerable effort and money in improvements, and obviously bought it for that purpose. Others have held the same lease in their family for generations and have a strong emotional attachment to the land. Other groups fear that compulsory acquisition or withdrawal of land from one group of leases might undermine the security of tenure holders elsewhere in the Western Division by introducing an element of risk to potential investors and mortgagees. Even though compulsory acquisition or withdrawal is sometimes necessary, alternative mechanisms to facilitate a development without the need to compulsory acquire should be available to the State.

The bill provides flexibility and a suite of options. On the one hand, it recognises the importance of the State providing a direct and secure form of tenure for State-significant developments that have a large public benefit component. On the other hand, the bill recognises the importance of preserving perpetual lessees' property rights by providing an alternative to compulsory acquisition or withdrawal. The Government believes subleasing is inappropriate when it comes to massive investments like the wind farm proposed at Silverton and is legally questionable. For small-scale developments that are consistent with and do not overwhelm the ordinary activities allowed under a general purpose lease, that may be a viable option.

However, the Government considers that where large-scale and critical infrastructure of importance to the State and the community as a whole is involved, developments on Crown land should be facilitated by a direct lease from the State. A direct lease from the State gives the people of New South Wales greater control 8068 LEGISLATIVE COUNCIL 4 June 2008

over big projects at both the construction and operational phases of development. A direct lease from the ultimate landowner also gives developers greater security of tenure than if they had to acquire a mere sub-lease from the general purpose lessee. There are also advantages for a proponent if the relevant land is already leased out to different individuals under many different leases. A direct lease from the State saves the proponent from having to negotiate and administer numerous and complicated sub-leases with each and every general purpose lessee.

The bill has been drafted in light of a massive $2 billion, 500-turbine wind farm proposal at Silverton, near Broken Hill. The proposed wind farm will be the biggest in Australia, generating up to 1,000 megawatts of electricity and capable of supplying 4.5 per cent of the entire State's energy needs. It will save approximately three million tonnes of greenhouse gas emissions per year. The developers propose to build the wind farm on 32,000 hectares of Crown land which is currently leased under 17 separate perpetual leases for grazing. The bill will allow the Silverton wind farm proponents to obtain a single and secure form of tenure directly from the State in the form of a special purpose lease. The holders of the 17 perpetual leases will be able to negotiate fair compensation directly with the proponents and shared access and usage rights in return for their consent. The bill also will give the Government a degree of control over the project that will allow it, amongst other things, to charge a fair rent on behalf of the people of New South Wales. Any revenue generated can be used to fund new infrastructure and facilities across western New South Wales.

I will refer to some of the important provisions in the bill. Schedule 1 inserts part 9E into the Western Lands Act 1901. Part 9E gives the Minister power under proposed section 35XC (1) to grant a special purpose lease in accordance with sections 34 or 34A of the Crown Lands Act. Such a lease can be granted only in respect of Crown land within a "development district", declared by notification in the Government Gazette, for an "approved purpose". Under proposed section 35XB, an approved purpose that is not already in the bill must be proclaimed under section 44B (4) (b) of the Crown Lands Act 1989. Proposed section 44B (4) (b), which will be inserted by this bill into the Crown Lands Act 1989, says that a proclamation by the Governor has to be made on a recommendation by the Minister. Subsection (5) of section 44B requires the Minister to first consult with the Minister administering the Environmental Planning and Assessment Act 1979 before recommending to the Governor to proclaim an approved purpose. The scheme provides a safeguard of a number of approval steps before a special purpose lease can be granted. Even then it can be granted only for a specific purpose. The intention behind part 9E is to facilitate leasing for large-scale developments that do not fit easily within the traditional framework of the Western Lands Act 1901, in consultation with the Minister for Planning.

Another important provision within part 9E is proposed section 35XC (3), which limits the term of any special purpose lease, including any option, to 100 years. Subsection (4) of that provision allows a special purpose lease to be granted in respect of land that is already subject to a standard Western Lands Act lease or a general purpose lease. This novel provision will allow a special purpose lease to sit on top of or parallel to the underlying general purpose lease held by someone like a grazier or a farmer. Proposed section 35XC (4) requires general purpose lessees to give their consent before the Minister can grant a special purpose lease on top of their general purpose lease. Existing general purpose leaseholders will be able to negotiate fair compensation in return for giving their consent. Proposed section 35XC (5) makes a general purpose lessee's consent irrevocable and binding on his or her successors in title.

Another important provision to be introduced by the bill is proposed section 35XE (b), which inserts a number of compulsory conditions into a special purpose lease that has been granted on top of a general purpose lease, including strong protective measures in favour of the general purpose lessee. That section effectively prohibits a special purpose lessee from carrying out activities that directly interfere with the lessee's enjoyment of his or her improvements unless consent has been given. For example, proposed section 35XE (b) (i) prevents a special purpose lessee from doing anything on or within 200 metres of land upon which a dwelling house is situated.

The bill enables long-term security of tenure to be given to developers of critical infrastructure whilst preserving the tenure of existing leaseholders. General purpose leaseholders, like graziers and farmers, will be able to negotiate for adequate compensation in return for their consent, whilst retaining the right to repossess the land once the special purpose lease expires. This is a win-win situation for all stakeholders, developers, Western Lands Act lessees and the Government. I commend the bill to the House.

Debate adjourned on motion by the Hon. Don Harwin and set down as an order of the day for a future day. 4 June 2008 LEGISLATIVE COUNCIL 8069

APPROPRIATION (BUDGET VARIATIONS) BILL 2008

Second Reading

Debate resumed from an earlier hour.

The Hon. MATTHEW MASON-COX [4.02 p.m.]: It is my pleasure to speak in the debate on the Appropriation (Budget Variations) Bill 2008. I acknowledge the very extensive and weighty contribution of my colleague the Hon. Greg Pearce, the shadow Treasurer. There is really not much more that can be said. The way the Hon. Greg Pearce sliced and diced and served it up to the Treasurer was something to behold. It was unfortunate that the Treasurer was not present to hear it; it is certainly worthy of a response, particularly the member's criticism of the Government's lack of accountability in its budgetary processes.

I will make a few brief comments, however, about the purpose of the bill and how it demonstrates a pattern of behaviour by this Government, whose accountability is rather appalling. First, it is clear that the object of the bill is to appropriate additional amounts from the Consolidated Fund for recurrent services and capital works for 2007-08 for the purpose of giving effect to certain budget variations required by the exigencies of government, as it is referred to in the overview of the bill. The additional amounts appropriated for 2007-08 are $190,367,000 in adjustment of the Treasurer's Advance and $218,584,000 for additional recurrent services.

It is worth noting, as the Hon. Greg Pearce did at length, that Labor has consistently overrun its expenditure budget and generally relies on windfall revenues to rescue the budget result. Indeed, one is left continually disappointed about the dismal level of transparency and accountability of the budget process. It is the preserve of this House through the budget estimates procedure to bring some rigour into the process, and the Government's lapses in accountability become apparent when a bill such as this is brought forward to validate certain expenses that should have been part of the normal budgetary process.

I want to comment on the Treasurer's Advance, in particular how under the bill it is now approaching $505 million—an amount that the Treasurer has a discretion to dole out as he sees fit to cover overruns or other exigencies that he deems appropriate. I note in particular the exigency relating to the $25 million payment in compensation for the Government's fix on the Lane Cove Tunnel—an example of outrageous political opportunism on the part of the Government in an attempt to ameliorate likely problems caused by the opening of the Lane Cove tunnel before the election. The Government postponed the opening and paid $25 million for the privilege. The Treasurer's Advance was very handy in that regard.

Consider for a moment what the Treasurer would do if he were given additional resources to dole out for projects that the Government wishes to see proceed for whatever reason. I shudder to think what this Government would do if it were given access to what has been termed the intergenerational fund. The Community Infrastructure (Intergenerational Fund) Bill 2008, a wafer-thin bill tabled in the other place, sets out how the proceeds of any electricity privatisation would be dealt with, should that occur. The bill suggests that the capital amount that would flow from the proceeds would be invested in a so-called intergenerational fund, which would then, for all intents and purposes, become the Treasurer's plaything—something akin to the Treasurer's Advance. I note that clause 6 of that bill states that there will be payable from that fund "such amounts as the Treasurer may approve from time to time for the purpose of the funding of capital works or for any other public purpose".

The fund would be just another unaccountable advance that the Treasurer could use as he sees fit for the political purposes of the Government. It is worth noting that there are some precedents in relation to intergenerational funds. Members would be aware of the Future Fund that was established by the Federal Government. Commonwealth legislation establishing the Future Fund is a little thicker than this wafer-thin, three-page bill, which deals with how we should commit $15 billion worth of projected funds from the sale of electricity assets.

The Future Fund Bill comprises hundreds of pages and contains a whole range of built-in safeguards dealing with accountability and transparency. In particular, I note that there is a Board of Guardians to oversight the Future Fund. But, of course, there are no accountability mechanisms in the Community Infrastructure (Intergenerational Fund) Bill 2008. Indeed, with regard to the Future Fund there is a Future Fund Agency and investment targets, one of which is an investment target of 5 per cent above the consumer price index over time. "Target" is a dirty word to this Government. One need only refer to the Treasurer's recent Budget Speech and the many comments he has made over the past few years about the Fiscal Responsibility Act 2005 to know that. 8070 LEGISLATIVE COUNCIL 4 June 2008

Time and again my colleague the shadow Treasurer has brought to the attention of the Treasurer his failings in respect of the Fiscal Responsibility Act. One need only look at the medium-term fiscal target and the long-term fiscal target—I could go on and on. The Treasurer has apologised repeatedly because the Government has been unable to meet short-, medium- or long-term fiscal targets as legislated by this Parliament. That is the standard of fiscal responsibility and accountability this Government demonstrates. It is a shambolic situation. Unfortunately, the Appropriation (Budget Variations) Bill continues that pattern. Of course, members on this side of the House look forward to the day when that pattern is finally expunged and good government is returned to this State.

Dr JOHN KAYE [4.12 p.m.]: The Appropriation (Budget Variations) Bill 2008 appropriates additional amounts to cover exigencies unforeseen in the 2007-08 budget. The total amount appropriated by this bill is $408.9 million. The Greens recognise the importance of intra-budget cycle flexibility to cover unforeseeable changes in circumstances—that is, circumstances that simply could not be envisaged when the budget was drafted. When such circumstances arise governments need flexibility within the budget process to allocate money.

It is an unfortunate feature of this type of legislation that it must contain retrospective justification, but it is inevitable. It is intrinsic to the budget process that governments will not be able to foresee everything that will occur. The Greens believe that when governments introduce such legislation they should fess up and be honest about the fact that it is retrospective. It was alarming to hear the Minister say in his second reading speech that this was an opportunity for the Parliament to oversight the Government's activities in respect of unforeseeable expenditure. That is not true. The Government should not use that language. The very best we can say in that regard is that it is the Government's reporting to the Parliament about how funds have been spent—at least in respect of the majority of this legislation. That is a valid statement, but the Government should be honest in the way it presents the legislation rather than say it is seeking permission to spend the money.

The $408.9 million provided in this bill is about 0.9 per cent of the 2007-08 budget of $46 billion. The Greens do not agree with the Opposition that this is a huge amount. It is reasonable to expect unforeseen circumstances to arise that would need to be addressed, and 0.9 per cent of the total budget it is not an unusually large variation. Most of the expenditure referred to in this legislation deals with very worthwhile measures. The legislation contains allocations for increased pay for teachers, additional hospital beds and the Bathurst hospital hydrotherapy pool. That is all worthwhile expenditure. However, we are not debating whether it is worthwhile; we are debating its foreseeability. One of the Greens' key concerns is the total lack of transparency in identifying the reason for the expenditure or any public benefit. We have been presented with a list of projects on which the money has been spent, but we have not been told why that expenditure was unforeseeable or whether it will produce any public benefit.

The Government must provide an explanation for these budget variations. The onus of proof lies on the Government to explain why this expenditure was necessary. In some cases it is downright obvious. The $17.5 million allocation to the primary industry sector for drought assistance clearly explains itself—the drought went for longer than predicted and additional assistance was required. Likewise, one cannot object to the expenditure of $3.6 million on this State's contribution to the national equine influenza response plan. That was totally unforeseeable and it was sensible for the State to be involved in that plan.

However, the reason that other expenditure in this legislation was not foreseeable is far less obvious. For example, the $10-million allocation to the Department of the Arts, Sport and Recreation for an art storage facility at Lilyfield raises questions. The Greens are not saying that that was a bad idea—it may well be a good idea. In fact, I suspect there are probably extremely good reasons to provide a new art storage facility at that site. However, that is not evident from reading this legislation; we would not know why it was a good idea or why this arts storage emergency occurred requiring the sudden expenditure of $10 million.

The shadow Treasurer raised what is perhaps the most alarming unforeseen expenditure. I refer to the Crown finance entity in the Treasurer's portfolio and the additional rail grant of $140 million for debt repayment. That single item represents 35 per cent of the total budget variation. The Greens understand it is for the benighted Epping to Chatswood project—or rather half project, given that the Parramatta to Epping component has been abandoned. Be that as it may, the Government has offered no explanation for the sudden expenditure of an additional $140 million to repay debt. There may well be good reasons for that, but members and the public would not know that from reading this legislation or the Minister's second reading speech.

I raise two other specific items. The first is the $11.1 million expenditure by the Department of the Premier and Cabinet for the establishment of Events New South Wales Pty Limited to assist in attracting events 4 June 2008 LEGISLATIVE COUNCIL 8071

to New South Wales. There is simply no explanation of the benefits that will flow to New South Wales as a result of investing that money. What is the anticipated return to the State's coffers and economy from investing $11.1 million? There is no way that people reading this legislation can be sure that it is not simply a gift to event promoters, or a handover of public resources to enrich specific event promoters. It is also impossible to understand why that expenditure was not foreseen. Did the Government suddenly discover that it likes a big party in Sydney? Did it do this because suddenly it had an urgent need to distract voters from its other failings? Or did it suddenly discover it needed another venue for duchessing some of its mates?

Reference is made in the Deputy Premier, Transport and Finance portfolio budgets to $4.4 million to meet the planning costs of the Government's services for World Youth Day. Plans for World Youth Day were on the agenda prior to the formulation of the budget that this bill seeks to vary. It is hard to understand what has changed. There may be changes and there may be good reasons for them, although I cannot imagine what they would be. This is a highly controversial issue at the interface between public expenditure and private benefit. Suddenly the Government says that it must spend an additional $4.4 million at that interface that was not in the initial budget. Why was it not in the initial budget, and what exogenous circumstances changed that required that additional expenditure?

It seems to us that this is part of the veil of secrecy behind the World Youth Day Coordinating Authority, where a lot of the events have been hidden. The Greens do not oppose the process of budget variations and we certainly do not oppose them where they are reasonable, but we argue for greater transparency. That would involve, at least at a minimum, the Government providing explanations on each line item, why that line item is there, why it was unforeseeable, not just unforeseen, why the expenditure was sufficiently urgent to justify a budget variation and what public benefit is served by the expenditure.

We also ask for more honesty in the language used in these variation bills. It is not an authorisation. We cannot authorise something that will happen anyway. It is a post hoc scrutiny, an after the event scrutiny. We should accept that is what we are doing. The Government should be honest about what is happening and about the process, so we can understand the way the process operates. If we achieve those four things, the Government could begin to restore some level of confidence in the budgetary process.

Ms LEE RHIANNON [4.20 p.m.]: This bill is very sloppy. As my colleague Dr John Kaye has said on behalf of the Greens, it is understandable in any budgetary process that there will be variations, but the public has a right to know why those variations occur. In some cases we can learn by looking at them in detail, but better budgetary processes should have been undertaken in the first place and the additional costs should have been able to be accommodated. In other cases there are unforeseen events that clearly require additional money. This bill reveals how the Treasurer works. Time and again he specialises in abusing anyone who questions his budgetary arrangements, but this bill shows there is a real need to do this because of his failure to be open and transparent.

The particular issue I want to take up is World Youth Day. An additional $4.4 million has been allocated to World Youth Day. I urge the Minister, when it comes to his reply, to explain what this amount was spent on. What in the range of World Youth Day activities was unforeseen and required an additional $4.4 million? The Government has been highly secretive about the costs associated with this event and the financial benefits. It has given us a round figure that varies from about $120 million to $200 million that the Government argues is the flow-back to the New South Wales economy. However, we cannot see how that is determined, and now that we have this legislation, the public is justified in concluding that the organisation of this event has been sloppy.

With World Youth Day we have a known event that the Government has been planning for a long time. Remember also that $4.4 million is not insignificant. It represents about 6 per cent of the total amount allocated for World Youth Day—that was, before the additional money came in. Why the additional $4.4 million has been allocated, considering that the event had already been determined, I would argue is something the Minister needs to address in his response. The public deserves an explanation. This additional $4.4 million for additional World Youth Day costs is particularly curious because the numbers for World Youth Day are dropping. Again, we cannot get a clear picture on this because of the lack of openness that comes from the Government and the Catholic Church. There are only about 40 days to go—

The Hon. Greg Donnelly: They haven't arrived yet, Lee.

Ms LEE RHIANNON: I acknowledge that interjection. There seems to be anger in the voice, so we need to note that in Hansard. I have said time and again that the Greens welcome World Youth Day but I say to 8072 LEGISLATIVE COUNCIL 4 June 2008

the Hon. Greg Donnelly that because of the Government's failure to be open on this it is jeopardising the success of the event. It is not taking the public into the complexities—which I acknowledge—of organising such an event. But I go back to the point I was making when Mr Donnelly interjected. That is that the numbers are coming down. We know that the original projection was that about half a million people would come here. The Deputy Premier is being a bit vague but the last figure he announced was a quarter of a million, so why does the Government need more money when the numbers are coming down? So, let us have more public disclosure about this.

Again I urge the Minister in reply to please detail what the $4.4 million allocated for World Youth Day, and detailed in this bill, was spent on, and what is the estimated attendance at World Youth Day that the Government's funding determinations are based on. It is important to show some integrity with regard to this bill and to assist the whole process of organising World Youth Day.

The Hon. HENRY TSANG (Parliamentary Secretary) [4.25 p.m.], in reply: I thank honourable members for their contributions. I take this opportunity to address some baseless concerns of the shadow Treasurer. First, I recognise that the shadow Treasurer for once has quite rightly supported the Government's use of the Treasurer's advance to fund costs associated with equine influenza and to match funding from the Commonwealth for drought assistance. Budget variation bills are part of a process that successive governments have used to ensure an appropriate balance between accountability and flexibility in the management of public funds. This Government takes the process very seriously, unlike the current shadow Treasurer, who does not seem to understand basic budget processes.

The member suggested earlier today that expenditure in the last appropriations variations bill for upgrades to the Opera House was somehow questionable as it took place in the financial year 2005-06 and was reported on in 2006-07. The story of due process goes like this. The 2005-06 budget has a Treasurer's advance approved by Parliament as part of the budget bill. Part of this advance was used, quite rightly, to pay for unforeseen works to the Opera House. This advance was approved as part of the Government's 2005-06 budget process. In 2006, still within the 2005-06 financial year, the Treasurer approved Opera House funding.

The 2007-08 budget appropriation bill was prepared and delivered in the financial year 2006–07. It was the first appropriation bill after the Opera House expenditure. That is why the expenditure was reported in that document—it is not rocket science, it is just due process. It is clear that the shadow Treasurer needs to spend a few more hours studying the budget processes before coming to the House. If he did so, he may also understand that the bill is needed to respond to unforeseen expenses. These include things like $34.8 million to fund higher than expected expenditure on out-of-home care allowances to provide a service that is required to support vulnerable children in New South Wales.

This funding is required to support an increase in the number of young people in out-of-home care and is in addition to the $3.2 million in capital funding provided to support Department of Community Services caseworkers. These caseworkers perform a vital and sometimes thankless job. The Government's inclusion of almost $35 million towards out-of-home care places is a sign of our strong and ongoing focus on ensuring the Department of Community Services adequately supports children and young people in New South Wales. The bill also informs Parliament of unexpected expenditures this year that have been met from the Treasurer's advances.

This year unforeseen costs include those associated with equine influenza. As members may recall, New South Wales supports the national equine influenza response, which brought together industry, the Federal Government and State Government funds to bring about a rapid response to the equine influenza outbreak. These funds were successfully utilised to support the national response plan. This is an example of the significant benefits of having an accessible Treasurer's Advance from which to draw.

The shadow Treasurer in this debate has attempted to reprimand the Government for following sound processes that the Auditor-General and the Legislative Council's General Purpose Standing Committee have endorsed. Therefore, it is worthy to consider the performance of the Coalition Government when it was last in office. In the past five years the Howard Government introduced 12 appropriation bills for additional spending. These bills totalled more than $9 billion. The Opposition's Federal counterparts had very little accountability in bringing variations bills to the House. They labelled much of their expenditure as "equity injections".

The shadow Treasurer has attempted to tarnish the financial performance of the Iemma Government, so I shall outline its recent financial performance. In 2005-06, a $1.9 billion surplus; in 2006-07 a $187 million 4 June 2008 LEGISLATIVE COUNCIL 8073

surplus; and yesterday the Treasurer handed down the budget informing Parliament that the surplus for 2007-08 is expected to be $700 million. Before the recently introduced accounting changes, this would have been close to $1 billion. This great performance was partially thanks to unexpected revenue gains. The prediction for 2007-08 in revenue was $46.4 billion, some $1.8 billion above the budget estimate. When revenue exceeds what is budgeted, it makes sense to pay down debt.

That is why, in response to the shadow Treasurer's concerns and that of Dr Kaye, this bill seeks to pay down $140 million worth of rail debt. Paying down debt where we can makes sense, and I hope Dr Kaye appreciates that. It is an example of prudent financial management from an experienced, financially sound Government. As I have informed the House, a fact appreciated by Dr Kaye, top-up funding this year constitutes less than 1 per cent of the total New South Wales State budget. Bringing this bill to the Parliament is further evidence of the Government's commitment to transparent and full financial reporting. Dr Kaye might also be interested to know that column two of schedule 1 includes $218.5 million that is in no way retrospective. It is included for the Parliament's scrutiny and approval. I commend the bill to the House.

Question—That this bill be now read a second time—put and resolved in the affirmative.

Motion agreed to.

Bill read a second time.

Leave granted to proceed to the third reading of the bill forthwith.

Third Reading

Motion by the Hon. Henry Tsang agreed to:

That this bill be now read a third time.

Bill read a third time and returned to the Legislative Assembly.

ENVIRONMENTAL PLANNING AND ASSESSMENT AMENDMENT BILL 2008

BUILDING PROFESSIONALS AMENDMENT BILL 2008

STRATA MANAGEMENT LEGISLATION AMENDMENT BILL 2008

Second Reading

The Hon. PENNY SHARPE (Parliamentary Secretary) [4.34 p.m.], on behalf of the Hon. Michael Costa: I move:

That these bills be now read a second time.

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

Leave granted.

When the Environmental Planning and Assessment Act was introduced in 1979 it was a watershed moment for environmental assessment in New South Wales. The new Act led the nation. For the first time New South Wales had a comprehensive framework within which to reconcile competing interests such as the management and conservation of natural resources, the promotion and coordination of the orderly and economic use and development of land and the social and economic welfare of the community and a better environment. Over the years the Act has been extended, altered and interpreted by the courts to the point that I would argue it no longer fulfils its original intention. It is time for reform.

Furthermore there is a national mood for reform. We now have a Federal Government that is interested in planning-related issues. The new Federal budget reflects this change including the commitment to infrastructure spending in our major cities and affordable housing initiatives.

Investigations by the Independent Pricing and Regulatory Tribunal and the Productivity Commission into red tape resulted in a number of recommendations including some concerning development approvals and planning. In the meantime the New South Wales Government is also pursuing across-the-board reform. Priority P3 State Plan is about removing unnecessary red tape and improving the regulatory framework for investment in New South Wales. South Australia, Victoria, Queensland and Western Australia have responded to the national reform agenda and are reviewing their planning systems as we speak.

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The planning system is also facing significant challenges. There are increasing pressures on housing. Unsteady property markets, the prospect of more rate rises, faltering property values and the real threat of a recession in the United States is increasing uncertainty for businesses and households. The planning system as it is only adds to that uncertainty when it should avoid adding to unnecessary costs or delays. It is time to step back and ask who are the real users of the system.

The Local Development Performance Monitoring Report 2006-07 provides a detailed analysis of the development system in New South Wales, the first analysis of its kind. The results are compelling: in 2006-07 councils dealt with 112,000 development proposals comprising 86,000 development applications, 14,000 modifications and 11,000 complying development certificates.

This represents investments worth nearly $22 Billion. Ninety seven per cent have a capital value of less than $1 million. Surprisingly, 67 per cent have a capital value of less than $100,000. The average time for all projects was 76 days. The average time for projects between $500,000 and $1 million was 168 days across the State and 29 councils took greater than 100 days on average.

These facts tell us that the development and planning system influences a massive level of development. They tell us also that by far the main users of the system are families, mums and dads, not big developers.

When we started the reform process we engaged with communities and stakeholders. These Bills have been developed following almost a year of consultation. We have listened and the common theme is that we need changes to the planning system and we need them now. The reforms are being driven by what people are telling us about the system: it takes too long to get a simple development approved. The system is too complex for simple developments—only 11 per cent of development applications are dealt with as complying development in New South Wales compared with well over 50 per cent in Victoria.

It takes too long to zone land for new housing and new jobs, often over two years for a simple local environmental plan. Concern has been expressed about a possible perception that political donations may influence decisions. Concern has been expressed about the accountability of private certifiers and possible conflict of interest.

The review process is costly, legalistic, adversarial and not accessible to ordinary people. The planning process adds to the cost of delivering infrastructure and impacts on affordability. In this context the proposed reforms are a measured response. We want to ensure our planning system is transparent, rigorous, accountable and efficient. We need to bring our planning system into the twenty-first century and better equip it to deal with the challenges of population growth, increasing urbanisation and transport needs, complex natural resource and climate change issues, the realignment of employment markets and changing community expectations. These reforms are also intended to cut red tape and make the system simpler and more accessible, especially for mums and dads and small business. The major areas of reform relate to plan making, development assessment, certification, development contributions, arbitration and reviews.

I now turn to the parts of the Environmental Planning and Assessment Amendment Bill 2008 dealing with plan making. Land use planning provides the guiding framework for balancing economic development and investment and infrastructure to meet State, regional and local needs as well as protecting sensitive environmental areas. However, the plan-making process in NSW has become lengthy, complex and confused. Even small amendments take on average 196 days.

To simplify the system, one level of plans, regional environmental plans, will be deleted. However, the big reforms in relation to plan making are those applying to the local environmental plans. The key change is the introduction of the new Gateway process. As the name suggests, the Gateway will ensure there is sufficient justification early in the process to proceed with the planning proposal. This stops wasting time with planning proposals that are not credible. If it is agreed in principle, the planning proposal then can proceed to a full assessment. The Gateway determination settles what assessment is required to develop the details of the plan, including infrastructure needs, what community or agency consultation is required, and whether a public hearing is required. These provisions provide for flexibility and a strong emphasis on effective community consultation.

In response to community submissions on the Exposure Bill, the consultation provisions have been amended to clarify that a local environmental plan cannot be made unless the applicable community consultation requirements have been complied with and submissions have been considered. Consultation will be tailored to the specific proposal, meaning that proposals with potentially significant environmental policy or neighbourhood implications will have more extensive consultation requirements than a simpler, smaller-scale proposal. Under the current system there is a one-size-fits-all approach, irrespective of the significance of the proposal.

In addition, specific consultation procedures in section 34A of the Environmental Planning and Assessment Act concerning threatened species are to be amended so that consultation with the Department of Environment and Climate Change will be required where a proposed instrument will or may adversely affect critical habitat or threatened species, populations or ecological communities or their habitats.

The initiatives in the Bill concerning plan making will deliver substantial benefits to councils, state agencies, industry and the community.

I now refer to the parts of the Environmental Planning and Assessment Amendment Bill dealing with development assessment. The Bill introduces five main areas of reform in the development process:

• the introduction of new decision-making bodies • new assessment procedures • reducing unnecessary concurrence • enhanced review and appeal provisions and • extending exempt and complying development.

The Bill establishes two new decision-making bodies, the Planning Assessment Commission and the Joint Regional Planning Panels. These bodies are designed to strengthen confidence in decision making and increase accountability.

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The Planning Assessment Commission will have a chairperson and up to eight other part-time commissioners and the members must have expertise in planning or related fields.

The Bill also enables casual appointments to assist in assessment or advice in a field of importance for a particular project or planning matter. Appropriate provisions have been included regarding probity and accountability measures for commissioners. This includes members being subject to the Ombudsman Act and the Independent Commission Against Corruption Act.

The Bill will enable the Minister to delegate his decision-making powers for Part 3A projects to the Commission. This is currently not possible under the existing statutory provisions. Appropriately, delegation will not occur in relation to critical infrastructure projects, given the importance of such projects in delivering much-needed infrastructure. It is expected about 80 per cent of Part 3A projects will be delegated to the Commission.

Whilst the Commission will have determination powers the actual assessment of projects will continue to be done by the Department of Planning. Departmental officers will make recommendations to the Commission. The Minister may also request that the Commission provide advice on other development or planning matters where appropriate and they may hold a hearing or undertake other investigations as part of their consideration of a proposal.

I refer now to the provisions dealing with Joint Regional Planning Panels. The Regional Panel concept is modelled on the successful Central Sydney Planning Committee and aims to provide greater transparency and objectivity in the determination of developments of regional significance.

Regional panels will ensure that projects of regional significance are determined by independent experts, particularly developments where the council has an interest in the proposal.

The establishment of the regional panels will address a key concern expressed by the Independent Commission Against Corruption about the corruption risks associated with council decision making in the planning process. Regional panels will lead to improved transparency and increased consistency by taking local politics out of the decision-making process.

Regional panels will have five members: three State-appointed members and two members appointed by the relevant council. State members must have relevant expertise and experience as set out in the Bill and one of the two council nominees must also have expertise in these areas. Councils will continue to be responsible for undertaking the assessment of development applications as they currently do.

The Bill includes appropriate accountability provisions concerning the operation of panels, including requirements for the disclosure of pecuniary interests and panel members being subject to the Independent Commission Against Corruption Act and the Ombudsman Act.

Further details on regional panels are set out in the policy statement for the information of members put on the table in the other place by the Minister for Planning when the Bills were introduced. The relevant policy statement indicates that joint regional planning panels will be responsible for the following types of development: designated development; Crown development and private infrastructure greater than $5 million, for example, hospitals, educational facilities and waste facilities; commercial or retail development over $20 million; residential and mixed use development over $50 million; development where the council is the proponent or has a significant financial interest in the proposal; and certain subdivisions and other development in the coastal zone that are currently dealt with under part 3A of the Act.

The Bill also includes a number of amendments to improve development assessment. For example, currently, deemed refusal time frames are based on net days to undertake an assessment and exclude the time when the council or an agency stops the clock. As a result, the assessment times are often double what are reported. The regulations are to be amended to remove the ability for agencies or councils to stop the clock. To balance this we are extending deemed refusal time frames from the current 40 or 60 days to 50, 70 or 90 days depending on the class of development, which will provide realistic time frames for local councils to complete their assessment.

The Bill also deletes the Part 5A Crown development provisions of the Act. These provisions currently provide for agencies to refer Crown development applications to the Minister for Planning when there is a dispute between a council and a government agency. The Bill amends these provisions to provide a more streamlined and effective mechanism for dealing with such applications. Regional panels will be the consent authority for certain types of Crown development, which is appropriate given the regional significance of such development. Minor Crown development applications will remain with councils. In some cases where applications have not been determined within the required time or the relevant consent authority wishes to refuse the application or impose conditions of consent the application will be referred to the regional panel. In all cases the Minister's approval will be needed if there is a dispute between the consent authority and the State agency, which is exactly the same as now.

The Act currently provides that a consent lapses five years after the date the consent was issued unless development has physically commenced. The Courts have found that physical commencement includes such minor works as the placing of survey pegs.

The Bill allows a regulation to be made setting out what can reasonably be considered to constitute physical commencement. The Bill also provides that if development has not substantially commenced a higher threshold within a subsequent two years it will lapse. This will be supported by a regulation setting out what reasonably can be considered to constitute substantial commencement.

These amendments are to ensure that the consent holder must demonstrate a real intention to act on their consent. Under transitional arrangements these lapsing provisions will only apply to consents that are issued after the relevant provisions have commenced. Existing consents will not be affected.

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The Bill provides that certain conditions such as extended hours of operation or the number of occupants allowed in certain premises can be easily reviewed. This provision is a response to consents having been structured so that a development application was required each time an applicant wished to continue with extended hours of operation.

The new provisions based on a New Zealand model will allow for only the reviewable condition to be reviewed when considered necessary by the consent authority without the need for regular new applications. If an applicant is dissatisfied with the review undertaken by the consent authority it can appeal the decision to the Land and Environment Court.

I note the Minister for Planning moved an amendment to the Bill when it was being considered in detail in the other place. The amendment dealt with a new issue not addressed in the Bill namely modification of development consents.

This amendment was in response to a recent decision of the Land and Environment Court concerning modification of development consents being a decision handed down by the Court after the Bill was introduced.

The issue of modification of consents has long been a source of contention given that developers can make use of modification provisions to override development standards that ought otherwise apply to the development.

The amendment to the Bill moved and adopted in the other place will ensure that this loophole is no longer open.

Other key reforms to development assessment in the Bill include: clarifying that development applications must be accompanied by a statement of environmental effects, including a requirement that council must provide reasons justifying a determination when the determination is not in accordance with recommendations of the council's planners. This is consistent with ICAC recommendations and simplifying and standardising what must be contained in a development application.

Many of the reforms outlined so far focus on improving the performance of local councils, however, it is also recognised that there is room for improvement by State agencies. Currently provisions in environmental planning instruments and legislation require councils to seek advice or approvals from State agencies during the plan-making process or prior to determining a development application. To improve the efficiency of the planning system these reforms are removing the need for redundant or duplicated concurrences and referrals and, where required, greatly reduce the time taken to obtain concurrence.

In September 2004 the New South Wales Government removed 1,130 concurrence provisions. The current review identified an additional 1,240 remaining concurrence provisions. It is now proposed to remove approximately 1,100 of these by deleting clauses that duplicate other regulatory provisions, replacing referral and concurrence provisions with heads of consideration for the consent authority to consider and replacing the referral and concurrence provisions with reference to approved guidelines. A State environment planning policy will be used to remove or amend the concurrence provisions and will be exhibited for public comment in the near future.

In addition to the above the powers of a council to reject a grossly inadequate development application will be strengthened, concurrence time frames will be shortened from 40 to 21 days and where advice is not received from concurrence authorities within 21 days it will be deemed that the concurrence or approval is granted. I note a concurrence policy statement for the information of members was put on the table in the other place by the Minister for Planning when the bills were introduced.

I now turn to the expanded review and appeal provisions in the Bill. Opportunities for greater access to reviews and equity are being introduced in two key areas. Planning arbitrators will provide families and small business with the opportunity to have a council decision reviewed and their concerns considered without having to bear the costs of the court system. Arbitrators will provide a quick, non-legalistic review option making the system fairer.

Matters that can be arbitrated will include development under $1 million such as: single or dual occupancy residential dwellings not exceeding two storeys and a specified height; alterations and additions to such dwellings; commercial or retail premises under nine metres in height or with a gross floor area of less than 2,000 square metres but excluding bulky good and licensed premises; and a change of a permissible use in commercial or retail premises with a gross floor area of less than 2,000 square metres.

Planning arbitrators will be subject to oversight by the Independent Commission Against Corruption and the Ombudsman and be required to comply with a code of conduct. Further information on the role of planning arbitrators and the proposed process for appointing them is set out in a policy statement put on the table for the information of members in the other place by the Minister for Planning.

The exposure draft of the Bill proposed that applicants other than for planning arbitrator matters would be able to seek a review by the Planning Assessment Commission or Regional Panel or appeal to the Land and Environment Court with respect to a determination. During the exhibition period concerns were raised that this may undermine the role of the court and lead to forum shopping.

Having considered the submissions received, this provision will not proceed. In addition, in the interests of fairness and the speedy resolution of disputes the Bill reduces the time for making an appeal to the court from 12 months to three months. This will provide consistency in the times in which an appeal must be made.

I am pleased to announce that a new type of third-party objector review, neighbourhood reviews, will be introduced through the Bill. Currently the Act allows third party objector appeals to the Land and Environment Court only with respect to designated development. These provisions will not be changed.

However, a new type of third-party review will be available for people directly affected by certain types of development. The aim is to ensure that councils exercise proper discretion when granting consent to development that would result in standards being exceeded or otherwise not complied with.

The types of development to which these neighbourhood reviews will apply will be listed in the regulations and will include: development for residential purposes that exceeds two storeys or contains at least five separate dwellings on a site of more than 4 June 2008 LEGISLATIVE COUNCIL 8077

2,000 square metres where development standards for height or floor space ratio would be exceeded by more than 25 per cent; and, development for commercial, retail or mixed-use purposes that is greater than nine metres in height and has an area of more than 2,000 square metres where development standards for height or floor space ratio would be exceeded by more than 25 per cent.

Reviews will not be available where the development is a planning arbitrator matter, designated or integrated development, or Crown development.

A person will be able to seek a review by a Regional panel or the Planning Assessment Commission within 28 days of a determination only if they made a submission objecting to the proposed development and if they own or occupy land within a one-kilometre radius of the subject land. The Bill also includes provisions to ensure that commercial competitors are not able to take advantage of these reviews for the sole purpose of securing a direct financial advantage over a competitor.

The Bill also provides that in a Class 1 appeal before the Land and Environment Court where the Court allows an applicant to amend a development application, other than a minor amendment, the Court must order that applicant to pay the consent authority's costs thrown away as a consequence of the amendment. This will act as a disincentive to applicants seeking to amend their proposals before the court without community consultation or input from councils and other relevant authorities.

I now turn to the parts of the Bill dealing with complying development. Complying development provisions were introduced into the planning system in 1997. These provisions allow people to obtain a complying development certificate to show that the development complies with the predetermined criteria and meets the requirements of the Building Code of Australia.

Some councils embraced the concept, such as Port Macquarie, which deals with 60 per cent of developments using this efficient process freeing up council staff and reducing costs to applicants. However, on average only 11 per cent of developments across the State are dealt with as complying development. It is an approach that has been endorsed at the national level and is accepted practice in other States. We need to make it work better for New South Wales. A number of initiatives are required. I note a complying development policy statement for the information of members was put on table in the other place by the Minister for Planning when the bills were introduced.

A State environmental planning policy will give effect to the complying development codes. The State environmental planning policy will contain general limitations on what may be included as exempt and complying development, including appropriate environmental constraints. The State environmental planning policy will exclude exempt and complying development in certain environmentally sensitive areas or only permit certain types of exempt or complying development in those areas. For example, in many situations internal office fit-outs could be complying development in a heritage building. A swimming pool could be complying development in bushfire zones.

Regulations will be introduced to further clarify complying development procedures. For example, a courtesy notice to neighbours must be issued after the complying development certificate but before work commences. The time limit for determining a complying development certificate will be increased from the current seven days to 10 days.

In response to community submissions the proposal allowing minor non-compliance with complying development codes has been removed from the reform package. The Department has established a Complying Development Expert Panel to oversee the development of statewide codes.

The first of the draft codes has been prepared for the following types of development: single-storey dwelling houses on lots of land of 600 square metres and over; internal alterations for two-storey dwelling houses; and internal fit-outs and change of use for certain commercial and industrial uses.

A myth has been circulating claiming all development less than $1 million will be exempt from complying development. This is clearly not the case. Another myth doing the rounds claimed that the Bill would create a one-size-fits-all system. Again this is clearly wrong. Particular code provisions are being developed for different classes of development and will be able to be augmented in certain circumstances to take into consideration locational differences.

The first suite of draft codes will be on exhibition until 4 July 2008 and during this time there will be a series of workshops across the State to explain the codes and seek feedback. Eleven councils have also agreed to review the codes against their current development applications to see whether those matters could be dealt with as exempt or complying development under the codes. A target has been established of 30 per cent of development to be dealt with as complying development in two years and 50 per cent in four years.

The Government would like to acknowledge the councils that are already achieving the target of 50 per cent. They are: Cobar, Warrumbungle, Coolamon, Port Macquarie-Hastings, Conargo, Junee, Murrumbidgee, Coonamble and Narrabri. To achieve a similar result across New South Wales will significantly reduce the regulatory burden on small business and homeowners.

I now turn to the parts of the reforms dealing with developer contributions. Under existing legislation local developer contributions vary widely between councils for no clear reason. In metropolitan Sydney contributions vary from between $57,000 per lot to nothing at all. There is no clear definition of the kinds of infrastructure that contributions should fund, and as a result some councils are using contributions to fund things such as council administration buildings, cat and dog pounds and computer upgrades. Many councils are also retaining funds and not spending an increasing amount of levied money. Clearly something must be done.

The Bill establishes a new part in the Act for developer contributions—part 5B. The Bill places renewed emphasis on three principles: delivering infrastructure, maintaining affordability and restoring accountability.

The Bill supports local communities by recommitting local councils and State agencies to providing infrastructure to meet the real needs of new residents. For the first time this Bill sets out key considerations for determining, collecting and then spending 8078 LEGISLATIVE COUNCIL 4 June 2008

contributions. The considerations are: infrastructure should be delivered within reasonable times; the impact of the contribution on whether the development is affordable; is the contribution based on a reasonable apportionment of new demand and existing demand; has a reasonable estimate of the cost of infrastructure been used; and are the estimates of demand reasonable.

These key considerations will make contribution schemes accountable and stop these levies being an uncontrolled backdoor tax on the family home.

The Bill establishes a two-tier system for local council contributions. Councils can levy for key community infrastructure without approval as they do now. The list of key community infrastructure is set out in the Bill and includes land works and buildings. It includes drainage and water management works, local roads, bus stops, sporting, recreational, cultural and social facilities, parks and car parking. It also includes district facilities that have a direct connection with the development that is the subject of the contribution. The list is broad.

However, councils will have to obtain the approval of the Minister for Planning if they want to get a contribution for any other kind of community infrastructure. The Bill will make councils accountable in this. A council must demonstrate that a legitimate case exists for the extra contribution by doing a business plan and getting an independent assessment of the proposal. This business plan and independent assessment must address the key considerations that I have outlined above.

The same approval requirement will apply when councils use a voluntary planning agreement to get the extra contribution. In this case the approval of the Minister for Planning will be required not just for additional community infrastructure but also for the provision of any public infrastructure that could be obtained under a planning agreement beyond key community infrastructure.

The Bill retains key provisions of the existing legislation to ensure that councils continue to obtain the full range of community infrastructure—the former public amenities and public services subject to the new accountability requirements I have outlined. Similarly, although the Bill adopts new terms such as "public infrastructure" and "the provision of public infrastructure", it preserves the range of infrastructure and other public benefits that local councils and other planning authorities can legally obtain under a voluntary planning agreement.

Finally, the Bill also leaves untouched the range of infrastructure that the State can require a contribution for in a State contributions area. Councils will still be able to seek a direct contribution, the former section 94, or an indirect contribution, the former section 94A, flat rate 1 per cent levy but not both.

The Bill strengthens the anti double dipping provisions of the existing Act. The Bill will end unjustified double dipping between subdivision approval and the grant of development consent for a subsequent dwelling or other development.

Generally most councils will choose a direct contribution for their contributions plans in greenfield development areas. In brownfield areas I expect that councils will be more attracted to the indirect contribution. While an indirect levy will generally remain limited to 1 per cent of the development cost, the Bill provides that councils can seek a higher rate from the Minister for Planning in the same way as they can for additional community infrastructure. A council must demonstrate that a legitimate case exists for the increase in the maximum percentage of the levy by providing a business plan and an independent assessment of the proposed contribution that addresses the key considerations I have outlined above.

The Bill carries forward the existing direction powers of the Minister for Planning to councils so that, if necessary, the Minister can limit infrastructure contributions by kind, type or maximum amount by tailoring appropriate limits on a regional or subregional basis. The Bill enhances those powers to enable the Minister to approve an additional contribution over and above the otherwise maximum amount in specified circumstances.

The Bill will allow improved reporting of development contributions, their collection and spending. It brings a new rigour to the delivery of infrastructure, requiring time frames for delivery to be met for each infrastructure item. As a last resort, it also enables the Minister to direct councils to use those unspent contributions to provide infrastructure to new and existing communities within reasonable time frames.

Let me make this clear so there can be no misunderstanding: Councils will continue to hold and manage their community contributions. The Bill provides that there will be one exception. For Sydney's north-west and south-west growth centres the Bill will amend the Growth Centres (Development Corporations) Act to establish a Community Infrastructure Trust Fund to be managed by the Treasury. In these areas the Government has committed to providing $7.9 billion in infrastructure of which $2 billion will be funded by New South Wales taxpayers. The Growth Centre Commission has been given the job of coordinating the provision of infrastructure consistent with the release of the development areas.

The Community Infrastructure Trust Fund is to be established to enable the Government to manage the delivery of infrastructure. Without the Community Infrastructure Trust Fund any of the six councils in growth centres could use contributions from the growth centres to prioritise the delivery of community infrastructure in their own areas outside the growth centres by using the current pooling provisions.

This Bill provides for an orderly transition to the new regime for contributions. Councils will have until 31 March 2009 to identify those plans where they have entered into legally binding arrangements for the provision of infrastructure that would not be key community infrastructure under the new provisions. Councils will have to remake all their plans by 31 March 2010 to comply with the new requirements. In consultation with local government practitioners the Department of Planning will update the development contributions manual and practice notes before the new part commences.

I now turn to paper subdivisions. Throughout the State there are a number of old paper subdivisions where the landowners cannot develop their land for residential use because of a lack of essential services.

The Bill introduces a scheme to enable landowners in these areas to come together with the assistance of a council or a State government agency to agree on a plan to enable the orderly and economic development of their land. The scheme will require at 4 June 2008 LEGISLATIVE COUNCIL 8079

least 60 per cent of the owners of land in the area and the owners of at least 60 per cent of the land in the area to agree to the plan before the council or State agency can be given the necessary powers to facilitate the redevelopment.

The scheme will enable the landowners and agencies to work together to ensure that subdivision works such as roads, electricity, drainage and sewerage works are funded and provided. This will facilitate the rezoning of the subject land so that it can be developed. This new scheme will be especially useful to unlock old subdivisions in parts of Western Sydney.

I now turn to the reforms to the certification system in the Environmental Planning and Assessment Bill and the Building Professionals Amendment Bill. These reforms are aimed at further strengthening the accountability of the certification system and providing greater consistency in the regulation of building and complying development.

Schedule 4 to the Environmental Planning and Assessment Amendment Bill clarifies the roles of councils and certifiers, strengthens councils' enforcement powers and strengthens the certification system.

Councils will be given greater powers to enforce development consents, with new investigation powers and mechanisms to recover costs of enforcement action. There will be new stop-work orders so consent authorities can take action to immediately stop unauthorised work or work that affects the support of adjoining land. To assist councils in funding necessary enforcement action related to breaches of development consent that ensures developers are held accountable, a consent authority will be able to require payment of an enforcement bond as a condition of consent. There will be limits on the types of things the consent authority will be able to fund from the bond. Compliance cost notices will also allow consent authorities to recoup the costs of ensuring compliance with orders issued under the Act.

As the reforms are implemented new regulations will be made to enable councils to issue penalty infringement notices for new offences and higher fines to companies and for breaches involving complex development. I note a certification policy statement for the information of members was put on the table in the other place by the Minister for Planning when the Bills were introduced.

The Bill amends the regulations to tighten the test for the issue of a construction certificate and introduces a new requirement that the construction of a building must be consistent with the consent before a final occupation certificate can be issued. The current "fit for purpose" test remains for interim occupation certificates but the certifying authority will have to keep a record of any inconsistencies with the development consent.

In addition to these changes a new mechanism will allow certifying authorities to seek advice from a consent authority regarding consistency with development consent. This has been a main area of dispute between councils and certifiers.

Accredited certifiers will not be given new powers. However, certifying authorities will be required to issue a non-compliance notice where a condition of consent is not being complied with. If action is not taken to address the issue identified in the notice the certifying authority will send the notice to council and the council will then be able to deal with the non-compliance. This measure will promote communication and the sharing of responsibility between certifiers and councils.

The Bill also introduces a new type of certificate, a design certificate, that will promote confidence in building design. In particular, this will ensure that only qualified and experienced people are responsible for designing complex fire safety systems by providing that where the regulations require a complex fire safety system to be designed by a qualified designer a Part 4A certificate cannot be issued unless a design certificate has been issued.

These changes to the certification system in the Environmental Planning and Assessment Act are complemented by changes to the Building Professionals Act by the cognate Building Professionals Amendment Bill to which I now turn.

This Bill makes significant changes to introduce accreditation of companies, council officers and fire safety engineers to strengthen the powers of the Building Professionals Board and to strengthen the controls on accredited certifiers.

The Bill enables the Board to accredit corporate entities as accredited certifiers where they have an accredited certifier as a director and at least two other employees who are accredited certifiers. This change will promote professional development within the industry. Any certification work carried out by the company will have to be done by an employee who holds the right level of accreditation and accredited certifiers who are directors of accredited companies will have special responsibilities. The Board will also have power to impose tough penalties on these new corporate certifiers.

Council officers carrying out building certification work on behalf of councils will also have to be accredited by the Board. New categories of accreditation will be developed and introduced that will apply to council certifiers. The Board will be able to rely on a recommendation from the relevant council as to the person's competence and skills and the person will only be authorised to carry out work on behalf of the recommending council. Implementation of this reform will ensure that existing experienced council employees can be accredited.

To accommodate councils that do not have qualified staff the Board will be able to grant exemptions from these requirements in certain circumstances with the approval of the Minister.

These changes will increase accountability of council staff and community confidence in the qualifications of all practitioners responsible for administering the certification system.

For the first time the Board will accredit fire safety engineers. These accredited building professionals will be subject to the same disciplinary rules as accredited certifiers.

These reforms increase consistency and boost community confidence. Before the regulations supporting these significant changes to accreditation are introduced there will be further stakeholder consultation through the Certification Liaison Committee that has been working with the Department of Planning on these reforms. The changes to the accreditation scheme setting out the necessary skills and qualifications for accreditation of council officers and fire safety engineers will be released for further public consultation before it is introduced.

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The Government is also streamlining the Board's investigation process and increasing its disciplinary power. Where the Board makes a finding of professional misconduct it will be able to impose fines of up to $110,000 and cancel or suspend accreditation without having to go to the Administrative Decisions Tribunal.

The Board will also be able to suspend a person's certificate of accreditation where they have persistently breached the legislation while an investigation into their conduct is carried out. As outlined in the Policy Statement put on the table for the information of members in the other place the regulations will be amended to enable the Board to issue fines to certifiers in a broader range of circumstances.

To increase confidence in the system the Bill strengthens the rules to further address perceived conflicts of interest between accredited certifiers and developers. Limits are placed on the amount of income a certifier can earn in a year from certification work involving the same person and for employee accredited certifiers on the number of certificates they can issue in one year for development involving the same person. The Board will require certifiers to report annually on their income and on whom they are carrying out work for. The Board will also have a new oversight role in certain circumstances in relation to the appointment of accredited certifiers for complex buildings.

I now turn to the Strata Management Legislation Amendment Bill, which covers amendments to both the Strata Schemes Management Act 1996 and the Home Building Act 1989. The strata reforms were widely supported during the consultation process. I will take members through some of the key aspects and leave it to my honourable colleague the Minister for Fair Trading to speak to the detail. The existing provisions in the Strata Schemes Management Act that govern on-site caretakers are being amended to make it clear that the provisions apply to anyone undertaking the role of a caretaker. The amendment responds to concerns that people may use another title such as "building manager" in an attempt to avoid the provisions.

The amendment will clarify that the caretaker provisions apply to anyone performing that function, regardless of whether they are called a "building manager", a "resident manager" or some other title. The Act prevents a developer from making exclusive-use by-laws during the initial period of the scheme. However, there is currently an exemption in section 56 that allows the developer to make by-laws relating to the parking of vehicles on the common property. The initial period of a strata scheme begins when the scheme and its by-laws are registered with the Department of Lands and finishes when the developer has sold one-third of the unit entitlements. The end of the initial period generally signifies the point at which strata lot owners start playing a greater role in the management of the scheme.

This exemption has led to complaints from buyers who are not aware until after they have moved in that the right to permanently occupy visitor parking has been sold or kept for the developer's exclusive use. The amendment will remove this exception so that such by-laws can be made only after the expiry of the initial period when other owners besides the developer are able to vote on the proposal. Of great concern to many strata owners and the Government is the practice of including conditions in sale contracts requiring a potential buyer to give the developer unconditional proxy voting rights or power of attorney. An attempt by the owner to change their proxy or vote in person would be a breach of contract that could lead to financial or legal penalties. In some cases the contract goes even further and requires the owner to ensure that any future buyer of the unit also gives the developer unconditional proxy voting rights.

These types of contract conditions are, in effect, an attempt to override the proxy voting provisions in the Act and deprive owners of their right to participate in the decision-making process. This contractual voting power can be, and has been, used to prevent action being taken to address defective building work or to assign lucrative service contracts to firms connected with the developer. This is a highly questionable practice and the amendment Bill will introduce measures that will prevent the developer or a person connected with them from being given power of attorney and being appointed as a proxy or casting a proxy vote pursuant to the terms of a sale contract. I emphasise that this will not stop owners from appointing a proxy even if they want to appoint the developer but this can only be done voluntarily and unconditionally.

As honourable members may be aware, an owners' corporation of a strata building generally elects a smaller body called an executive committee to handle day-to-day administration and decision making. Unfortunately, many complaints are received from owners about executive committee decision making that goes against the interests of the majority of owners, particularly where the committee members are associated with the developer or caretaker.

Accordingly, to ensure greater transparency in the operation of executive committees, it will be required that persons standing for election to the executive committee must disclose any connection they have with the developer or caretaker.

Finally, there is an amendment to the Home Building Act to clarify that an owner in a strata or community scheme can notify the Office of Fair Trading of a building dispute in relation to common property or community association property. Currently only an owners corporation can give consent for a Fair Trading inspector to access common property or association property.

There have been a number of cases where a developer has used their influence over owners corporations to prevent owners from obtaining assistance from the Office of Fair Trading to address disputes about very serious and costly building defects such as faults in fire safety systems or widespread water penetration to a building. This amendment will ensure that a Fair Trading inspector cannot be prevented from carrying out an assessment of disputed building or specialist work if requested to do so by an owner. Caretakers and other persons who control access to areas of the common property will also be required to cooperate with officers from Fair Trading. In summary… these reforms to strata and home building legislation will be of significant benefit to owners on a day-to-day basis by ensuring they can participate fully in the management of their schemes…and will improve the process for the resolution of disputes.

I note that the Legislation Review Committee has provided a report on the bills currently before the House.

Whilst the work of the Legislation Review Committee is a valuable contribution to the legislative process, I note the report includes a number of misconceptions about the bills and fails to have regard to the overall benefits of the reforms to the planning system.

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For example, the report criticises the Crown Development provisions as being "oppressive official powers that appear to unduly trespass on individual rights to have their views heard and represented".

However, the Bill provisions are no different in effect from the current Act provisions which have been in place since 1997. The Bill provisions merely simplify the dispute resolution process. There is no change to the public participation requirements for Crown development applications.

The report also criticises the Bill provisions concerning third party reviews and the safeguards that have been included in the Bill to make sure these reviews entitlements are not abused by commercial competitors. The relevant provisions are modelled on similar provisions in the Victorian Planning and Environment Act 1987 which have been in place since 1993. The inclusion of these provisions are an important and necessary safeguard for these new review provisions.

The report also criticises the provisions of the Bill limiting people's ability to be legally represented in reviews being undertaken by the Planning Assessment Commission, Joint Regional Panels and planning arbitrators.

The Government is unapologetic about these provisions, which are aimed at increasing access and equity in the planning system, ensuring everyone has the ability to seek an independent review of decisions irrespective of their ability to pay lawyers. In addition, the regulations will in fact set out the circumstances in which people may be represented, for example, where they have limited language skills or are otherwise unable to effectively represent themselves.

The report also criticises the Bill provisions that restrict appeal rights where the Planning Assessment Commission has held a public hearing. This is the same as the existing Act provisions which restrict appeal rights where there has been a Commission of Inquiry.

This is just a few of the examples of the way in which the Legislation Review Committee report has misunderstood the Bill provisions and the purposes of the planning reforms.

Whilst the Legislation Review Committee plays an invaluable role in the legislative process, in my view the significant reforms to the planning system and public benefits introduced by these Bills outweigh the concerns expressed by the Legislation Review Committee.

These bills have been developed following nine months of consultation with stakeholders. On the back of a comprehensive discussion paper released last November there have been numerous forums, meetings and consultative processes working with a full range of stakeholders. We have listened.

The common theme is that we need changes to the planning system and we need them now. We are now proceeding with the next step.

Once the bills are passed, more work will be done with stakeholders to implement the reforms, regulations, planning instruments, guidelines and protocols. I believe the key reforms contained in this Bill are sound. Most of the concerns raised relate to the lack of knowledge of the detailed provisions to be contained in regulations, protocols and guidelines. Honourable members should note that there are already six regulations included in the Bill. These provisions give more detailed information about key community infrastructure, planning arbitrator matters, reviewable conditions, procedures for planning arbitrators and review bodies, public notice of planning agreements and certification.

Moreover, the five policy statements put on the table in the other place by the Minister for Planning for the information of members demonstrate the Government policy intent to be delivered in further regulations, planning instruments and guidelines in relation to the following matters: joint regional planning panels, arbitrators, complying development, State agency concurrences and certification.

The Minister for Planning has released the first set of exempt and complying development codes and more will follow and be subject to public consultation.

To facilitate these next steps there will be three implementation consultative bodies. The existing Complying Development Experts Panel will continue to develop the full suite of codes. This panel is made up of representatives of local council, certifiers, professional bodies and government agencies.

The existing Certifier Liaison Committee will continue to provide stakeholder input into implementation of the reform provisions. This committee is made up of representatives of local council, private certifiers and government agencies. The Minister for Planning will establish an Implementation Advisory Group with a broad representation of stakeholders to provide input on the broader implementation issues.

I believe the government has comprehensively addressed the calls for clarification of the intent of subordinate provisions. It is time to move forward and give the people of New South Wales a better planning system. These reforms contain a number of recurring themes. They include the de-politicisation of the planning process to provide greater objectivity, greater access and equity for the ordinary people whom the planning system does not adequately serve at the moment and greater accountability.

This Bill makes very significant gains in increasing the objectivity and consistency of decision making by regional panels depoliticising development decisions and ensuring they are consistent across council boundaries within the same region by using independent experts on the Planning Assessment Commission for a range of planning and development matters by replacing self-review under the current section 82A with planning arbitrators and providing independence in reviewing small local matters where neighbours are in dispute and by introducing uniform complying codes to provide mums and dads, architects, planners and neighbours with rules that will protect neighbour amenity by encouraging greater compliance with development codes.

The system will be fairer, less costly and more accessible for ordinary people through low-cost arbitrations on small matters avoiding expensive court processes, the expanded use of complying development codes giving more people a decision within 10 days rather than many months, new low-cost neighbourhood review rights and shifting a number of regionally significant development decisions back to the local region through the use of joint regional planning panels.

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The system will also strongly enhance accountability through new third party neighbourhood initiated reviews of decisions involving significant variation to planning rules, much stronger provisions governing certifiers and the certification process, the use of independent arbitrators to review decisions on small projects, greater discipline being required of councils in how they levy for and deliver vital community infrastructure and, finally, a simpler plan-making process that includes a gateway test, which will mean unsolicited proposals will be dealt with in a more accountable way earlier in the process.

These reforms are not for the benefit of any particular section of the community but for the whole community. I believe the biggest beneficiaries will be the ordinary mums and dads who at last will be able to navigate the maze of bureaucracy they face when all they want is to get on with their lives.

I commend the Bill to the House.

The Hon. DON HARWIN [4.34 p.m.]: The Asia Pacific is the fastest growing region in the world. Its gross domestic product will triple by 2030 and Sydney, as a major regional centre, is poised to benefit enormously from this growth. With 4.3 million people, Sydney is projected to grow dramatically in the next 25 years. Indeed, according to the eminent Monash University demographer Dr Bob Birrell, its population will grow by one million over the next 13 years. The city accommodates a network of globally competitive firms with specialisation in finance and insurance, property and business services, tourism-related industries, cultural, creative, multimedia and other information industries.

We have so much potential but the problem is we have a State that is being held back by a number of things: in particular, a regime of State taxes and charges the highest in Australia; anti-business policies such as the occupational health and safety arrangements and, coming to this legislation, a slow, cumbersome and overly bureaucratic planning system. The symptoms are all too obvious and the Minister has made the case for reform. The approval process is too long and too complex.

Simple and routine development applications are 60 per cent of all development but still take an average of 68 days to deal with. There are far too few complying developments, with only 11 per cent in 2005-06. Plan making is too slow. On average local environmental plans take five years and even minor corrections to them on average take as long as 196 days. Having correctly observed the symptoms and diagnosed some of the problems, the cure described by the Minister will only make the patient sicker. I thought my colleague the member for Pittwater put it eloquently in the other place last night when he said:

Proper management and orderly development depends on clear, transparent and consistent processes. In fact, planning itself is a process. Yet, the bill completes the effective gutting of good planning process that was commenced by the Labor Government with the disastrous planning reforms of 1998. Before Labor came to power, the planning system was reasonably straightforward, and provided for four clear categories of development: advertised development, designated development, Crown development and prohibited development. Yet, in a somewhat ironic effort to reduce red tape, Labor has since added the categories of exempt development, complying development, local development, integrated development, staged development, major projects and critical infrastructure.

Through the passage of the bill, Labor proposes to introduce the following new layers of bureaucracy into the planning system: a Planning Assessment Commission, joint regional planning panels, independent hearing assessment panels, a planning assessment panel, joint regional planning panel and planning arbitrator review panel. Those panels will add to the following levels of bureaucracy in the planning and heritage system introduced by Labor over the past decade: planning assessment panels, design advisory panels, ministerial review panels and building professionals board—10 years and 10 new layers of bureaucracy. It is time the planning system went to a panel beater.

Each of the new layers of planning bureaucracy merely duplicate existing processes of the Land and Environment Court, commissions of inquiry or local government.

Moreover, so much more detail we do not even know about remains to be put into regulations, codes and guidelines, which may further slow down the process. These new codes for complying development may well be extraordinarily long and complex. While we will have some capacity through this House to deal with the regulations, there will be no capacity for this House to have any role in reviewing the codes and guidelines. We are now facing this planning mess because the Minister just does not listen. My colleague the member for Wakehurst observed, "It is very obvious to me that the so-called consultation about this bill has been largely contrived and lacking in transparency". Having failed to listen to those who know the system—its strengths and weaknesses—we now have this flawed bill. The member for Wakehurst went on to outline the Opposition's approach:

Let us understand clearly that the Liberal-Nationals alternative Government believes it is necessary—indeed critical—that we get planning law right. We believe that the planning law as amended inappropriately by Labor in 1997 and again in 2005—the latter being the occasion when Minister Sartor determined he would be the consent authority for major projects—needs a complete overhaul. In government, the Liberal-Nationals will implement a major review of planning law with a view to striking the right balance, ensuring there is a planning framework that appropriately protects our natural and built environments while at the same time minimising unnecessary bureaucracy. We do not believe that the bill before the House will achieve those objectives. We 4 June 2008 LEGISLATIVE COUNCIL 8083

believe the bill runs the grave risk of increasing the delays in dealing with planning matters and, in an ostensible effort to reduce reliance on lawyers and legal proceedings, it will in fact do precisely the reverse. The question has to be asked why this Government accepts so readily the concept of diminishing the capacity of local communities to have a say on their local built and natural environments and then ensure there is limited opportunity, if any, to seek redress through the Land and Environment Court, which has been hailed as a model for planning review processes.

As Mr Hazzard says, the Opposition supports the concerns of those who are frustrated with the current planning system but it is not convinced that providing unqualified support for this bill would give important industry stakeholders an improved planning system in which to operate. Moreover, we are concerned about the propensity to centralise decision making in planning and disempower communities. It may be worthwhile to quote the member for Pittwater's summary of the position:

Ever since Labor came to power in 1995 it has sought to centralise power in environmental land use planning. First, prescriptive State environmental planning policies, such as [State environmental planning] policy 5 and [State environmental planning] policy 53, imposed development standards on local communities. Next, part 3A removed major projects with huge impacts on local communities from the purview of the democratically elected representatives of the community most directly affected. Now Labor seeks to remove from local government the major decision-making role on plan making and development assessment. The bill effectively completes the centralisation of planning power into the hands of the Minister for Planning.

The dangers of centralisation are clear and are compounded in this legislation by serious conflicts of interest and the impairment of proper process. The concerns are deeply held by some important stakeholders. For example, an urban planner of some stature, John Mant, retained by the Local Government and Shires Associations, has summarised the concerns as follows: widened opportunities for conflict of interest; the regulated selecting and paying the person who regulates them; one public body being accountable for the costs and actions of someone beholden to another public body; the exercise of a judicial function by people who are not provided with the normal judicial protections, such as the security of tenure and freedom from executive retribution; and banning the representation of people appearing before judicial-type bodies even when facing parties who can directly employ staff who are well-qualified, experienced advocates.

We will not alleviate concerns about the planning process in our State by introducing a bill that reduces transparency and raises probity concerns. The bill gives unprecedented discretionary powers to the Minister on matters such as the appointment of planning panellists, and their pay and conditions. Planning controls can be created without any public consultation. Planning arbitrators will be left open to undue pressure from developers who pay their fees. Planning panellists appointed on an ad hoc basis are open to undue pressure from the Minister who appoints them and determines their pay. Another problem is the increased costs incurred by local communities resulting from these new layers of bureaucracy. More development costs will be pushed onto local communities as a result of this bill. Local ratepayers will be forced to pay for planning panels, as well as the legal costs incurred by planning arbitrators. Proper consultation might have avoided some of these problems.

The elephant in the room in this debate is the relationship between money and politics: the role that the property industry plays funding Labor in the context of more centralized power focused upon the Minister. Let us be quite clear about the context of the debate. Property developers have made $4 million worth of donations to the New South Wales Labor Party in the period since the current part 3A was enacted. Ten of the biggest developers paid more than $1 million to the Labor Party during the period in which the Minister considered $1.5 billion worth of their proposals. The Minister currently has more than 300 major projects on his desk under part 3A, and Liberal Party research shows that 48 of the developers involved in those projects have donated to the New South Wales Labor Party. This demonstrates the appalling conflict of interest that the 2005 change to the legislation has brought about. New South Wales Labor has created a culture in which businesses believe they must make donations to Labor in order for their development proposals to reach the Minister's desk, or for them to eventually receive approval.

As the House knows, I was the mover to establish the Select Committee on Electoral and Political Party Funding, of which I am now the Deputy Chair. Recently I visited Britain to discuss possible changes to our election and party finance regime, and I outlined the problem we have with perceptions of undue influence and this culture of money and politics. The key point made by my eminent British interlocutors, such as Sir Hayden Phillips and Professor Ken Ewing, was: there was no point trying to deal with this problem just from the perspective of reform of party and election finance; you had to deal with the problem through planning legislation. Sadly, we have no such solution in this bill. It purports to depoliticise the planning system and, by implication, reduce the scope for donations to parties influencing the key decision maker, the Minister.

However, at its core I think there is a growing and well-founded scepticism about whether this bill will clean up planning. Many observers fear that bodies like the Planning Assessment Commission and joint regional 8084 LEGISLATIVE COUNCIL 4 June 2008

planning panels will not be far removed from the status quo. Instead of the Minister making the decision, it will be his or her appointee from an approved list. As my leader, Barry O'Farrell, is fond of saying, this State is already pretty much run like a family company by the Labor Party. Its cronies infest every level of bureaucracy, as well as its boards, commissions, committees, tribunals, panels and the like. It is easy to be sceptical about how much integrity these bodies will display when their members are subject to the whim of ministerial approval for their continued livelihood. They do not have the safeguards that are associated with, for example, judicial independence, as I outlined earlier when I referred to Mr Mant's remarks.

I now turn to some of the other initiatives in schedules 1, 2 and 3 and some other concerns the Opposition has. Among the consequential amendments outlined in schedule 1 is a change to the Heritage Act 1977. Schedule 1.4 repeals part 5 of the Act, thus removing the role of the Heritage Council in reviewing proposed environmental planning instruments that effectively lessen the heritage protection offered to heritage items. Furthermore, unelected planning arbitrators will have the opportunity to make merit decisions on items of local heritage, which will include making orders for the demolition of heritage items. Rather than secure heritage items, the bill will put them at risk.

Schedule 2, which deals with development assessments, contains amendments relating to independent hearing and assessment panels [IHAPs]. Independent hearing and assessment panels allow professional planners, architects and the like to hold hearings, let the public have their say, and then refer decisions back to council for final consideration. Under the bill these panels will be non-compulsory and advisory. Independent hearing and assessment panels may be of some benefit but they can actually be implemented now—and have been put in place by some councils. Therefore it is unclear why such a provision is needed in the bill. Given that independent hearing and assessment panels are already provided for elsewhere, there is little to be achieved.

For development applications up to $1 million arbitrators will determine whether or not a development fits within a new range of complying developments which will be detailed at some time in the future in regulations, codes or guidelines. The Local Government and Shires Associations and many community groups have made the point that there will be limited appeal rights if people are unhappy with the decision of the arbitrator. Only the applicant will be able to appeal to the Land and Environment Court or the joint regional planning panels. The latter option adds confusion and there are no guidelines as to how the appeal will be conducted if the applicant chooses to go to the Joint Regional Planning Panel.

Developments that the Minister considers "major developments" will be referred by the Minister to a new planning panel called the Planning Assessment Commission [PAC]. Again the Minister appoints the people to this commission and therefore has direct control, in addition to being in a position to determine what developments are considered "major developments". There are no current guidelines on how the Planning Assessment Commission will operate. Will there be procedural fairness and due process? What will amount to a "hearing"? The latter question is important because if the Planning Assessment Commission has a hearing there will be no appeal rights to the Land and Environment Court. Above the Planning Assessment Commission there will be an entitlement for the Minister to determine what is and what is not "critical infrastructure" and he will reserve the right, as he now has, to determine those issues.

Schedule 3 deals with changes to development contributions. Under the bill local infrastructure contributions will be replaced by community infrastructure contributions, and councils will be limited to community infrastructure contributions for key community infrastructure as defined by the regulations. Further, new part 5B provides for State infrastructure contributions, planning agreements, and development contributions for affordable housing. The current structures for raising contributions from developments are considered by important stakeholders to be inequitable and unreasonable. The bill will do nothing to address these apparent inequities because there are insufficient guidelines for the State infrastructure contributions.

Local government has expressed a great deal of concern about the collection of section 94 contributions, which goes to the cost transference between the State Government and local government. There is a complete non-existence of partnership and dialogue between the State Government and local government but we need both. The State Government should recognise that the 152 councils around the State are at the front line of delivering services to local communities. Those councils need support and recognition and a Government that will discuss issues with them. In October or November last year, when the Government was looking for a headline, it announced that it would reduce section 94 levies and the State infrastructure contribution levies by 10 per cent. It is now June and the Government has provided no clarity about how that will be achieved.

They are the Opposition's concerns on a number of quite important matters and, as the shadow Minister has made clear in another place, the volume of those concerns dictates that, despite our genuine wish for 4 June 2008 LEGISLATIVE COUNCIL 8085

root-and-branch reform of the New South Wales planning system, the point has been reached where this attempt at reform can no longer be supported. Respectfully, we disagree with professional and industry stakeholders who are supporters of reform. They are prepared to try something new despite the flaws in the bill. We see the volume of amendments already tabled, and the vast number of others that have been floated by stakeholders that have identified matters that need addressing in the bill—not just the draft—as indicative of the fact that there should be an upper House inquiry into the bill. The Opposition is instinctively wary about a Committee stage with a bill like this, where there is a substantial risk of adding to the level of complexity. The best course is an inquiry, which is an initiative with widespread support that members will be aware of from reading their emails. I formally move:

That the question be amended by omitting all words after "That" and inserting instead: "these bills be referred to General Purpose Standing Committee No. 4 for inquiry and report."

I hope the amendment will have the support of the House. The Opposition believes this is the best way forward in trying to maintain momentum towards effective and appropriate reform and the renewal of New South Wales planning laws.

In the event that we are unsuccessful, I wish to make it clear that the Opposition believes no amount of amendments will fix the bill and, regardless of the merits of individual amendments, we will not be in a position to support them. There is one caveat. While, respectfully, we have agreed to disagree with those advocates of reform who believe we should persist with this flawed bill, we are willing to cooperate on any worthwhile initiative to ensure that implementation is not impeded. In particular, we put the Government on notice that we would be prepared to move, or support another member moving, an amendment that would formalise the undertaking Minister Sartor gave to planners recently concerning the establishment of an implementation advisory group or committee, which would include professional advice from architects, planners, environmentalists and the like.

We accept that some key stakeholders want to give the bill a go and do what they can to make it work. Good luck to them, and they will have the Opposition's best wishes. But we remain sceptical. A committee inquiry has a better chance of rescuing reform. Failing that, we will oppose the bill and continue to work on our plans for a better planning system for New South Wales, legislated and implemented by a Government led by Mr Barry O'Farrell and Mr Andrew Stoner after the next general election.

Ms SYLVIA HALE [4.58 p.m.]: I lead on behalf of the Greens. The Greens do not support the bill but support the call for it to be referred to an inquiry. The need for an inquiry into the impact of the bill is made clear in the report of the Legislation Review Committee. That cross-party committee identified issues relating to the bill, including that it trespasses on "individual rights to have views heard and represented", "rights to procedural fairness and access to justice", and "personal rights and liberties" relating to compulsory acquisition of property. The committee expressed concern that the bill "may erode the rule of law with regard to the principle on the privity of contract", and that it grants the Minister "unfettered discretion" and "insufficiently defined administrative power". A further concern was that "individual rights and liberties appear to be unduly dependent on non-reviewable decisions".

It is extraordinary. This is the first time I have seen the Legislation Review Committee express doubt about a piece of legislation on so many significant grounds. The Legislation Review Committee report spells out clearly why an inquiry into this bill is necessary. Anyone who has read the report would need no further justification for supporting a move to send the bill to a committee. Even though the Minister may have given undertakings, should the bill be passed unamended people will be deprived of the right to have their views represented. They will be deprived of the right to procedural fairness and access to justice. Individual rights and liberties will be unduly dependent upon non-reviewable decisions. The bill will affect billions of dollars of developments. It will affect the rights and amenity of every citizen in this State. It would be an abrogation of the role of this House of review to allow such a complex and potentially damaging piece of legislation to pass without the highest level of scrutiny.

While the bill has some positive elements, to which I will refer later, the negative elements far outweigh the positive ones. Overall, the bill is not in the interests of the people of New South Wales. This bill reflects previous bills that were introduced by the Government that have undermined the objects of the Environmental Planning and Assessment Act. It continues the ongoing pattern of planning law changes in recent years. That pattern is that in the period leading up to an election the property development industry pours millions of dollars into the coffers of the New South Wales Labor Party, which uses those millions of dollars to buy saturation television advertising during the election campaign. That advertising makes no mention 8086 LEGISLATIVE COUNCIL 4 June 2008

of the Government's intentions in relation to the planning laws should it be re-elected. During the 12 months after the election, the newly elected abor Government presents a set of so-called reforms to the planning laws, which are based on the latest wish list from the property development industry.

That is what happened with the 2004 State election, and that is what is happening now. The property industry poured more than $5 million into the New South Wales Australian Labor Party coffers in the lead-up to the 2004 election. The pay-off for the property industry was the 2005 amendments to the Environmental Planning and Assessment Act, which introduced the notorious part 3A. The 2005 amendments, which were not mentioned during the 2004 election campaign, dramatically undermined environmental and heritage protections and allowed the Labor planning Minister to bulldoze community objections to any developments he chose to call in. They delivered enormous power into the hands of the planning Minister, while removing appeal rights and proper scrutiny of the use of those powers. Not surprisingly, developers queued up to throw more money at the Labor Party, as the planning Minister called in hundreds of developments and proceeded to approve developments that previously would have been refused.

Part 3A has been a bonanza for both the developers and the New South Wales Australian Labor Party. Following the 2005 amendments, under part 3A of the Environmental Planning and Assessment Act almost $3 billion worth of developments by 13 development corporations, which are political donors, have been approved. In that period, those same developers have given more than $2 million to the New South Wales Australian Labor Party. In fact, they got $3 billion worth of developments in return for $2 million worth of donations. I marvel at how cheaply this State is bought. In the period 2005-06, 28 projects were refused under part 3A. Not one of the companies that had its projects refused was a political donor. Is it any wonder that the development industry has come back looking for more or that the Labor Government has fallen over itself to give them what they want? We come to the 2007 election, and we see history repeating itself. It is like Groundhog Day for the planning system. Once again we see the pattern of huge donations from developers to the Australian Labor Party before the election. There is no mention of changes to the planning laws during the election campaign or the developer wish list becoming law after the election.

In the lead-up to the 2007 State election property developers donated well in excess of $6 million to the New South Wales branch of the Australian Labor Party—or should I say that the developers and the New South Wales Australian Labor Party disclosed that amount of payments. Given the evidence that has come to light that many developers and the New South Wales Australian Labor Party have failed repeatedly to disclose payments, who knows how much money developers actually paid to the New South Wales Australian Labor Party and Australian Labor Party candidates in seats around New South Wales. The Minister was strangely shy in acknowledging the enormous favours that those developers did for the Australian Labor Party. He did not seem so shy when he held his notorious fundraising dinner in February 2006, which the State's biggest developers attended and threw in huge amounts of money to make sure that their good mate Frank was returned to power. Developers and lobby groups such as the Property Council of New South Wales and the Urban Taskforce have been driving this bill from day one.

Which developers and backers of this bill were at Mr Sartor's re-election dinner and how much did they donate? We know they included in addition to the Property Council of New South Wales, Leighton Holdings, Stocklands Group, Endeavour Consulting, Medich Property Group, Mars Australian Developments, Transurban, Australand, Johnson Property Group, John Boyd Properties, Terrace Towers Group, Mirvac, Macquarie Bank, Multiplex, Grocon, FDC Building Services, Dasco Constructions, Hardie Holdings, Westfield, Primrose Hill Development, Rosecorp and Transfield. Let us not forget the Wideform company, which featured so prominently in the inquiry into corrupt conduct by Labor councillors, council staff and developers associated with Wollongong City Council. The New South Wales Australian Labor Party collected more than half a million dollars on that one night. The Minister for Planning is feted at his re-election dinner by the State's biggest property developers, who tip hundreds of thousands of dollars into his party's campaign funds. We are supposed to believe there is absolutely no link between this event and the developers' wish list that is now before us.

Is it any wonder that the New South Wales planning system is held in such disrepute? Is it any wonder that it is seen as little more than a State-run extortion racket designed to channel enormous amounts of developer money into the Australian Labor Party campaign slush fund in return for favourable development application outcomes and the most pro-developer legislation in the past 30 years? The bill before us must be assessed in the context of the millions of dollars of payments from property developers directly to the New South Wales Australian Labor Party. We must ask ourselves if this is the pay-off for those payments. We should also ask ourselves what this bill tells us about the modern Labor Party. 4 June 2008 LEGISLATIVE COUNCIL 8087

It is highly instructive that this bill was introduced on the same day that the Premier gave notice of his bill to privatise the State's electricity system. I am sure that 14 May 2008 will go down as the day the Labor Government turned its back on working people, the trade unions and the Australian Labor Party's own grassroots members and embraced instead the property developers. With this planning bill and the electricity privatisation bill the Labor Party is clearly demonstrating for all to see that it is no longer the party of working people and their unions, it is now the party of property developers and their political donations. And how do we know that this bill is a property developer's wish list? We know because the property developers have told us so.

Earlier this week the New South Wales Coalition for Planning Reform, led by the property industry's cashed-up lobby groups, distributed what it called a planning reform scorecard. In this scorecard the developers' lobbyists compared this bill with their own wish list, and what does it show? It shows that the Government has delivered 12 of the 14 items the developers asked for. The so-called consultation process surrounding this bill has been a sham from the beginning. It started with a forum organised by the developer lobby groups and has continued with the tightly controlled and bogus process illustrated by the Government—and reiterated by the Minister at the crossbench briefing earlier this week—in the decision to refuse leave to have a motion discussed that would result in the release of submissions received in response to the discussion paper and the exposure draft of the bill and the Government's desperate opposition to allowing the bill to be examined by an inquiry. The Government will not release the submissions because it knows that those submissions overwhelmingly oppose key aspects of the bill.

The Government's opposition to the bill being examined by an inquiry is telling. The Minister has been crowing for months that this is the most comprehensive set of changes to the planning laws for 30 years. These changes will impact on billions of dollars worth of developments and the environment and amenity of almost every citizen in this State, yet the Government insists the bill must be pushed through without scrutiny. There is no other area of law that should be more subject to scrutiny, because the New South Wales planning system is corrupt. There is evidence of corruption at all levels of the planning system and the public views it with enormous suspicion.

Participants in the planning system make huge payments to political parties. At the same time those parties, Ministers or councillors are determining their development applications. Given the billions of dollars that are at stake, the millions of dollars in payments to the New South Wales Australian Labor Party, the institutionalised conflicts of interest and the proven corruption in the current planning system, this bill deserves the fullest scrutiny, and that is the role of an inquiry.

I now turn to specific aspects of the bill. As members are aware, the Greens have 90-odd amendments to the bill, which we will move at the Committee stage, when we will deal in detail with the minutiae of the bill. The first aspect I refer to is community participation. In his agreement in principle speech on this bill the Minister made a reference to the introduction of the Environmental Planning and Assessment Act 1979. He praised the Act, saying it "led the nation". Then he commented:

[It] provided a comprehensive framework within which to reconcile competing interests such as the management and conservation of natural resources, the promotion and co-ordination of the orderly and economic use and development of land, and the social and economic welfare of the community and a better environment.

It takes an extraordinary level of shamelessness to offer such praise for an Act at the same time as you are introducing a bill to gut it. This 2008 bill, like the 2005 and 2006 bills before it, deliberately and blatantly undermines key objects of the 1979 Act. In introducing the 1979 Act the then Labor Government declared that the legislative framework for environmental planning in 1979 was unsatisfactory because of "its failure to give members of the public any meaningful opportunity to participate in planning decision making".

This was the essence of the bill. It was designed to provide members of the public with meaningful opportunities to participate in planning decision making. References to the desirability of including the public in the planning process recur throughout the 1979 second reading speech. The Government was explicit about its intent and summed it up in the following statement:

The bills will confer equal opportunity on all members of the community to participate in decision-making under the new legislation concerning the contents of environmental studies. The aims and objectives to be adopted by draft planning instruments; the contents of draft planning instruments; development applications requiring prior publicity before determination; development applications for designated developments; and environmental impact statements prepared and published in accordance with part V of the Environmental Planning and Assessment bill.

Additionally, objectors to applications for designated development can appeal to the Land and Environment Court against the grant of development consent. Members of the public are given legal standing to bring proceedings in that court to enforce compliance with the new planning laws and to remedy any breaches of those laws.

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That was the Government's intention in 1979, and it is that intention that this current Government is hell-bent on undermining. The Environmental Planning and Assessment Act 1979 emerged from overwhelming public concern and anger about the way developers were defacing the city, ignoring planning rules, ignoring the legitimate rights of the community and carrying on as though they owned the place. The community could see that the system was corrupt and demanded that it be fixed. The 1979 Act emerged from an extended community campaign of green bans, protests and sit-ins that succeeded in protecting some of the most precious of the city's heritage districts, even at the cost of the life of at least one of the leaders of the campaign, Juanita Neilsen.

This bill has the opposite objective to that groundbreaking 1979 bill. Labor is no longer committed to giving the public a say in developments; its objective now is exactly the opposite. This bill is all about removing the public from the planning process and once again handing development in this State over to the developers who so handsomely fund the party's re-election campaigns. The provisions of this bill relating to development approvals and exempt and complying developments are deliberately designed to exclude public participation— to deny community members the right to have a say about the suburbs in which they live and work. These provisions of the bill further undermine the environmental and heritage protections. They have alarmed the National Trust, which recognises the threat they pose to the State's heritage.

The Government's review of the Heritage Act has made it harder to get heritage listings and easier to remove heritage listings. This bill will mean that a developer can knock down an historic building that does not have a heritage listing without anyone knowing about it beforehand other than the private certifier the developer has employed to give the demolition the green light. The bill takes us back to the bad days of the 1970s when beautiful and historic buildings like the First and Last Hotel at Circular Quay and Rose's Emporium at Petersham were knocked down without notice by unscrupulous developers.

Is it any wonder that Jack Mundey, the former Secretary of the Builders Labourers Federation and instigator of the green bans, recently commented that on issues of planning, heritage and environment this Government is the worst since the corrupt Askin regime of the 1970s. The bill is also an attack on local government. Section 5 (b), "Objects", of the Environmental Planning and Assessment Act is "to promote the sharing of the responsibility for environmental planning between the different levels of government in the State". Yet this bill has the exact opposite effect.

It seeks to remove responsibility for environmental planning from local councils while imposing the costs of the replacement system on those councils. The State Government gets all the power with none of the cost; the councils get all the costs with none of the power. This bill is a blatant grab for power by a Minister who has abused the power he has previously seized for himself. It rips control over most developments away from elected local councils and centralises it in the hands of the Minister and his hand-picked panels. At the same time, it adds injury to insult by making local councils responsible for paying the costs of the Minister's new panels and planning arbitrators.

The bill also centralises control over development levies in the hands of the Minister and once again provides little or no scrutiny or opportunity for review of the way the Minister uses or abuses these new powers. Another concern about the bill relates to the way it further entrenches conflicts of interest and provides a climate conducive to further corruption. But that has, of course, been a hallmark of this Government's changes to the planning laws.

The introduction of private certification was a grave mistake that has seen many individuals and councils pay dearly for shoddy or corrupt work by unscrupulous certifiers. The Government's response is to extend the opportunities for such shoddy or corrupt activities to cause pain to individuals and great cost to the community by allowing private certifiers to determine whether proposed developments meet the promised new compliance codes. It is obvious to everyone that there is a fundamental conflict of interest in a certifier being paid by a developer to decide whether a development proposal complies with a code.

The Hon. Duncan Gay: Hear! Hear!

Ms SYLVIA HALE: I acknowledge that interjection.

The Hon. Duncan Gay: That is why I crossed the floor when the legislation was in this House on a previous occasion.

Ms SYLVIA HALE: I wish more members had joined the member. Given that compliance with a code exempts that development proposal from going through a formal development application process, the decision of the certifier affects the competing rights of a developer to proceed with a development and a neighbour's right 4 June 2008 LEGISLATIVE COUNCIL 8089

to be informed about a proposed development that could have an adverse impact on them. This is extremely poor public policy. It is an invitation to corruption and widespread disputes to have a certifier paid by the applicant determine the competing rights of the applicant as against those of another citizen who is not paying the certifier and to whom the certifier has absolutely no obligation. The conflict of interest is obvious and unavoidable.

Similar concerns arise with the Government now wanting to introduce private planning arbitrators. Should the House not support referring this bill to an inquiry, I will be moving a range of amendments to address in detail these and other concerns about the content of the bill.

As I mentioned earlier, the Greens believe that some aspects of the bill are positive. Unfortunately, their primary purpose is clearly to sweeten an otherwise unacceptable pill. We believe that the provisions relating to places of public entertainment are generally positive. Similarly, many of the provisions in the cognate bills are good. The Greens support the Strata Management Legislation Amendment Bill 2008 and the Building Professionals Amendment Bill 2008, which form part of this package of cognate bills, although we believe that they should also be referred to the inquiry so that all issues can be considered as part of that inquiry.

However, the Strata Management Legislation Amendment Bill 2008 does not go far enough. In what I am about to say, I acknowledge the contribution of Greens City of Sydney Councillor Chris Harris in informing the Greens' position on this particular bill. There is something of a parallel between the Strata Management Legislation Amendment Bill 2008 and other recent fair trading bills. Typically, we see a very lengthy period of review, followed by numerous reports and stacks of submissions, yet all of this activity generates only a slim piece of legislation.

The Strata Management Legislation Amendment Bill 2008 amends the Strata Schemes Management Act 1996 and the Home Building Act 1989. It improves the current legislation in the following ways. The existing provisions in the Strata Schemes Management Act that govern on-site caretakers are being amended to make it clear that the provisions apply to anyone undertaking the role of caretaker regardless of whether they use a title such as "building manager" in an attempt to avoid the provisions.

An amendment will remove the exception relating to the developer being able to make by-laws covering parking so that such by-laws can be made only after the expiry of an initial period, when other owners besides the developer are able to vote on the proposal. That will prevent the outrageous practice of developers removing the right of owners to exercise their vote by requiring them to assign their proxy to the developer or some other person. This is an important amendment because it will prevent a developer being appointed as a proxy or casting a proxy vote pursuant to the terms of a sale contract. Persons standing for election to the executive committee must disclose any connection they have with the developer or caretaker, such as if they are related to them, married to them or have a relationship with them, or are in their employ or in another financial arrangement with them.

Finally, an amendment to the Home Building Act clarifies that an owner in a strata or community scheme can notify the Office of Fair Trading of a building dispute in relation to common property or community association property and that the inspector can access the premises. The amendment makes clear that the inspector cannot be prevented from carrying out an assessment of disputed building or specialist work if requested to do so by an owner and that caretakers and other persons who control access to areas of the common property will also be required to facilitate the officer's visit and inspection.

While all of these provisions are positive, and the Greens support them, I will be moving amendments relating to length and transfer of contracts. I would have liked to move additional amendments to improve strata management, but I am constrained from doing so by the narrow focus of this bill. Other areas of strata management that need urgent attention are the mandating of independent assessors for defects, qualifications for caretakers or building managers and office bearers, and model by-laws to improve the sustainability of strata developments. The Greens support those sections of the Building Professionals Amendment Bill 2008 that increase regulation of private certifiers. We do not support those sections of the bill and the principal bill that seek to extend the role of certifiers to exempt and complying development.

I will conclude my comments by returning briefly to the principal bill. I was recently provided with comments about this bill by a very concerned senior planner. That planner makes the point that councils will have to pay for all the panels and arbitrators and indemnify them for decisions that are not within the council's control. The senior planner made the following comments:

It goes without saying that the private sector loves privatisation as they get quick and dirty approvals that often lack any rigour of compliance, saving money that developers pocket to build their next mansion on the foreshores of Sydney Harbour, (to much higher standards than the defective units they churn out for others).

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Nothing, in my opinion, will make these 2008 reforms work. These reforms fail to acknowledge why democratic Governments around the world developed laws providing Government control and regulation of development and building.

You don't have to look far into the history books to see why quality Government control and regulation of development and building is required. Indeed in the last weeks thousands of Chinese school children and others were crushed under tonnes of shoddy building debris.

Don't we learn from history!

This is why our Government has an ethical responsibility to pay for the service of qualified planners, building surveyors and environmental health officers. If it does not get done correctly in the first place, death and destruction are inevitable, as history has proven. Privatisation of regulatory functions has never been the solution to maintain good outcomes for society. If this Government thinks that the corruption of Wollongong is bad, and the outcomes poor, wait until we have 10 years of private development approvals, complying and exempt development, as proposed by these reforms.

Any amendments I could suggest would be nothing other than tinkering with fundamentally ill-conceived legislation that will deliver nothing but environmental harm to our communities.

Look at the Report Upon the Quality of Buildings of July 2002, being the outcome of the Parliamentary Joint Select Committee inquiry into the Quality of Buildings. If privatisation of building approvals and inspections in New South Wales failed as a result of the 1998 reforms (as that Report demonstrated) then removing local democratic and administrative oversight of development approvals (open to significantly greater corruption pressure) is even less likely to work.

As for larger development, make developers jump through proper processes and build quality buildings before they are entitled to take their profits. The principles of inter-generational equity and sustainable development demand that Governments set high standards and uphold high standards to protect broad public investment in, not only public infrastructure, but in private infrastructure.

The planner concludes:

The legislation, in my opinion is ill-conceived, unfunded and incapable of delivering proper control and regulation of development and building in New South Wales.

In conclusion, the Greens support the referral of the Environmental Planning and Assessment Amendment Bill 2008 and the cognate bills to an inquiry. We see no compelling reason why such a bill should be rushed through Parliament without proper scrutiny. We see no good reason why such a bill should not be subject to detailed scrutiny by way of an inquiry. We see many good reasons—in fact, millions of good reasons—why a bill that sets out to deliver the agenda of the financial backers of the Labor Party at the expense of the State's residents, heritage, environment, public safety and amenity should be subject to the utmost scrutiny.

The Hon. MARIE FICARRA [5.31 p.m.]: I speak today on this new, very unpopular planning bill, with its 153 pages and 39 amendments that will transform the way planning is conducted in New South Wales. The Environmental Planning and Assessment Amendment Bill 2008 will allow small to medium projects to proceed without the need for development applications to local councils, while larger projects will be assessed by newly created panels appointed by Minister Sartor. But wait, there's more! The panels will not be accountable to councils even though the councils will pay for their operation. Today all members of Parliament received correspondence from Graham Quint of the National Trust of Australia forwarding a unanimous motion on behalf of the National Trust and the Local Government and Shires Associations stating:

That as a result of real concerns expressed by the community, local government, and environmental and other groups, the NSW Upper House hold a Parliamentary Inquiry into the Government's proposed changes to planning laws and generally into planning reform.

That is exactly what this Coalition believes should occur if there is not a complete rejection of this ill-conceived legislation, which is being pushed through the Parliament in great haste. It was introduced at the same time as the announcement of the proposed privatisation of the electricity industry, and now it is being pushed through with undue haste and without consultation on the very day that the budget was delivered. The lower House was forced to sit until after 2 o'clock this morning to pass the bill. That is quite an extraordinary state of affairs. Today's Sydney Morning Herald reports that Minister Sartor attended the Shires Association Annual Conference this morning and accused its sister organisation, the Local Government Association, of being "slow and dumb". The President of the Shires Association, Councillor Bruce Miller, said that parts of this State Government are malicious and dishonest. This is incredible behaviour.

The Hon. Duncan Gay: And Bruce Miller, the Mayor of Cowra, is not a member of The Nationals. He is a Labor councillor.

The Hon. MARIE FICARRA: He is a Labor councillor, is he? I did not know that. That is very interesting. I thank the Deputy Leader of the Opposition for pointing that out. Remarkably, Minister Sartor went on to say:

… the leadership of the association [is] … The slowest to ship in the convoy. You'll never get to the other side of the ocean that way, I'm telling you. 4 June 2008 LEGISLATIVE COUNCIL 8091

The Minister went on to say:

There are hundreds of protections [for local government in the new bill] but the leadership [of the associations] is either too dumb to understand them or doesn't want to be honest about them.

This is quite outrageous and disrespectful behaviour by the Minister, who is probably the least popular Minister of this Government—perhaps even of any government. His name recognition is extraordinarily high for all the wrong reasons.

As a former local government councillor for more than 16 years and mayor of Hurstville city for some of that period, it is clear to me that our planning Act needs a major overhaul to restore power to local communities and to prevent power from being centralised with the Minister for Planning, Frank Sartor. Under these provisions, property owners will no longer have to apply for council permission to demolish or renovate historic houses or buildings if the premises are not listed as heritage items. Changes to the Heritage Act will make it more difficult to list buildings and make it easier to have them removed from the list. There will be less community consultation and fewer appeals rights, and a shift of power from councils, residents and the Land and Environment Court to the private sector. A huge burden will be placed on local councils.

The Minister's planning changes will give this Labor Government more control over every level of the planning approvals process in an environment already heavily weighted in favour of Labor's developer mates. Minister Sartor's fingerprints will be on all appointments: the Planning Assessment Commission [PAC]; joint regional planning panels; up until recently, arbitrators—we ow hear that the Department of Planning will be appointing them; and planning administrators. With the exception of the Planning Assessment Commission, Minister Sartor can fire any of the members he has appointed if he does not like the decisions they make. The Planning Assessment Commission allows no recourse to the Land and Environment Court if an application is refused. Whatever happened to natural justice in this State? It is inequitable and unjustifiable that appeal rights that apply for other levels of developments are being removed for developments costing in excess of $50 million. If corruption is to be avoided, development applications over $50 million should automatically go to the commission without ever reaching the Minister. Furthermore, the panels should be controlled by the director general of the department or a parliamentary committee, not by the Minister.

Labor Party donations have flourished as a consequence. The Sydney Morning Herald of 26 May reported that the Government is still selling access to senior Ministers for more than $100,000 at Labor "Business Dialogue" private boardroom lunches, despite pledges from the Premier that he would clean up this State's election funding system, which has become an albatross around the Government's neck. The Executive Director of the Public Interest Advocacy Centre, Robin Banks, had this to say on the matter:

Labor's high priced business packages disenfranchised citizens and the non-profit sector.

She dismissed suggestions from the Premier's office that he offered equal access to the public. She went on:

The kind of access you get at a community cabinet meeting—perhaps five minutes with a Minister—is nothing like what you get for a $110,000 around a restaurant table.

Of course, we know that. The glossy promotional brochure flaunts access to chief of staff briefings. Companies or individuals wanting access must pay premiums from $110,000 for a "Foundation Partner" package, through to an "Event Partner" package at $59,850, an "Associate Partner" package at $22,000, down to the humble "Executive Partner" package at $13,750. It is good to see that the Labor Party in this State is listening to community sentiments. I make the following prediction: It will not matter how much developer money is thrown at the Labor Party at the next election in March 2011 because this Government's days are numbered. Let us not forget that when Minister Sartor announced the review of the bill before us today, interested parties had to pay $250 a head for a consultation. The forum attracted 600 attendees. Sadly, not too many humble householders attended that consultation.

When the November 2007 discussion paper was issued, approximately 530 submissions were submitted but not one was ever made public. Not one of the submissions has ever been published on the department's website—just like the review of the Heritage Act last year, when over 200 submissions were received but not one was published. What a process! Where is the transparency and accountability that the community deserves? The Government intends to let Labor fundraising efforts proceed unimpeded in the lead-up to the 13 September 2008 local government elections. Proposals to channel political donations through party headquarters, union dues and memberships rather than individuals will obscure rather than prevent patterns of lobbying influence. Are we to believe that the property company executive who paid thousands of dollars at a Labor fundraiser to have lunch with Minister Sartor did not discuss his or her specific projects? 8092 LEGISLATIVE COUNCIL 4 June 2008

We have had the Wollongong sex and gifts for development scandal, documents withheld from Parliament over the Lower Hunter Regional Strategy, the Transport Worker Union's money-making roundabout, and members of Parliament failing to disclose donations of $50,000 from developers. No wonder the public have lost confidence in our democratic system. In the Government's current review of planning laws there has been very little public consultation. We have received thousands of emails, and they continue to be sent to us if we do not reject this legislation or have it referred to a parliamentary or upper House inquiry; we will continue to be inundated night and day. The level of awareness of this legislation is extremely high. I have never known anything like it. Communities are outraged at measures by Labor to take away their rights to comment upon and determine what they want for their local environment and residential amenity. The Minister's own department is critical of this legislation, and has suffered more than 20 resignations, including resignations from senior planners. The email boxes of members of both Houses are flooded daily with messages from hundreds, if not thousands, of concerned citizens opposing the legislation.

An inquiry by this House is required to allow the community, local councils, planners and surveyors to have a say, in order that, at the end of the process, legislation superior to that before us today is produced. Along with so many, the New South Wales division of the Planning Institute of Australia has been critical of the short time frame for review and consultation involved in the consideration of this far-reaching bill. I shall read from a letter sent by the institute to all members on 26 May 2008 in which it nominated 17 areas of concern that I want the Minister to address in his reply to this debate. The Local Government and Shires Associations commissioned a review by John Mant, a highly respected lawyer and town planner who designed South Australia's planning laws and rewrote the New South Wales Local Government Act. The review found the expanded role of planning panels and arbitrators could open the door to greater pressure from developers, interest groups and politicians, and could produce more avenues for political donations. The arbitrators would be a costly duplication of process for local councils. I congratulate the Local Government and Shires Associations on its letterbox, website and general media awareness campaign against the Government's planning reforms. The campaign is entitled:

Three Strikes for Local Communities—How the New South Wales Government wants to take control of local planning. Strike 1; Councils lose funds for community services (via local S94 contributions powers being stolen from them). Strike 2: Private companies approve local development applications. Strike 3; Neighbourhoods lose their character!

The Local Government and Shires Associations have called on this House to conduct an inquiry into this far-reaching legislation so that the views of their member councils and the communities they represent can be considered. Another major concern raised by communities is the Minister for Planning's power to call in an application under part 3A of the Environmental Planning and Assessment Act as a development of State significance. This provision removes the power of communities and councils to have a say in their future. Again the public make a link with political donations from the big end of town! For example, Willoughby Council was short-changed by $27 million for land forcibly acquired by this Government in 2004 in order to sell it off to developers as part of a public-private partnership, resulting in more apartments alongside Chatswood train station. The ratepayers of Willoughby have had equity taken away from them for an extremely poor return. The Government has badly treated each and every resident in that council area.

With development applications valued at up to $1 million, arbitrators will determine a new range of complying developments, but we know nothing of the detail. Will there be provisions for procedural fairness and due process? To keep costs in check and approval time frames shortened, the Coalition would like more resourcing of arbitrators and mediators in the Land and Environment Court. Indeed, there is much concern about the lack of detail regarding complying development categories, and many planners fear that the resulting regulations, codes and guidelines will be complex and costly. The unity of concern that the Minister has created in the community is most pleasing. The proposal to allow private certifiers to approve minor non-compliances has been deleted, and that is pleasing because the process was open to corruption.

Community members have seen the way in which political donations impact on a Minister's decision when calling in a development. They have noted that there appears to be no formal method of disclosure requiring the Minister to declare whether the applicant for a development has made a contribution to the political party to which the Minister belongs. Greater disclosure requirements should have been included in part 3A as recommended by the Independent Commission Against Corruption in September 2007. It stated:

The Commission believes that if the Minister is dealing with an application made by a political donor, higher levels of transparency and accountability are warranted

And further:

Persons submitting development applications or rezoning proposals to the Minister for Planning are to declare any political donations they have made to the Minister or to his or her political party … ICAC urged proposals lodged with the Minister by political donors should become designated development and thus … subject to a Commission of Inquiry, an expert report, or the possibility of a third party appeal. 4 June 2008 LEGISLATIVE COUNCIL 8093

The Premier and Minister Sartor continue to ignore the critical eight-month-old Independent Commission Against Corruption recommendation that proposed the automatic referral of development applications from political donors to an arms length approval process. Minister Sartor's draft legislation allows the Minister to decide whether or not to refer a project to the proposed new Planning Assessment Commission despite the Independent Commission Against Corruption recommending that development applications from political donors should be determined independently.

It is alarming to note the Government's proposal to expand the role of private certifiers to include a capacity to approve development applications as well as oversee building construction. This is a fundamental conflict of interest and definitely not in the best interests of the community. Local Government Association president, Councillor Genia McCaffery, Mayor of North Sydney, was reported in the Sydney Morning Herald on 11 April as saying:

Private certifiers can now approve DAs. When you add that to the fact that all the proposed planning panels will be appointed by one person, the planning Minister, how can you call that reform?

Minister Sartor was reported as saying when he was the Lord Mayor of Sydney:

Any fool should be able to see the enormous conflict of interest they [private certifiers] have got.

That is right, Frank—any fool! John Mant, a respected planning consultant, said:

Private Certifiers are the kiss of death along with the problems they have created, such as who fixes illegal building work approved by a certifier.

I ask the Government to address the matter when the Minister replies to this debate. The community has great concern about the efficacy and integrity of the private certification system. The introduction of the system has posed many flaws and ethical quandaries, particularly considering the link between the developers paying money directly to the private certifier. Concern has been expressed in relation to heritage items being dealt with by private certifiers when, with the stroke of a pen, the wrecking balls could arrive to demolish our remaining heritage buildings and homes. I ask the Minister, or his representative, to clarify in reply what protections have been provided for heritage-listed properties. In his speech to this House on 15 November 2005, the Hon Tony Kelly acknowledged the community's concern. I quote:

Since its inception, the private certification system has been criticised because of the underlying issue of certifiers regulating those who pay for their services.

In the past Paul Pearce, another Labor member, has also noted just how bad the private certification scheme is. I quote:

As Mayor of Waverley I have witnessed numerous examples of private certifiers failing in their responsibilities under the legislation. This has led to frustration for objectors, neighbours, and councils and, in some instances, the applicants themselves. Many honourable members have received complaints about the behaviour of private certifiers. A private certifier at Waverley certified that certain structural works were fine, but shortly afterward we lost a significant portion of roadway into a hole. All too frequently we receive certification that the conditions of development consent are being complied with accompanied by a section 96 application ratifying a breach of the consent.

Where a private certifier is independently appointed to any matter, a system is needed. Under no circumstances should the Government pursue its objective to give private certifiers the dual role of both approving a development application and then overseeing compliance issues on the same matter. This is an inherent conflict of interest with a high risk of corruption.

The risk of corruption needs to be identified and addressed even with the current Independent Hearings and Assessment Panel processes already operating in some metropolitan councils. Permanent panels with the same people are not appropriate. The panels need to be regularly turned over on a random rotational basis for each panel meeting and the composition changed to minimise the risk of a corruption. Full background check on pecuniary and conflicts of interests of the applicants for such panels should be completed before appointment. Strict pecuniary and conflict of interest disclosure provisions need to be put in place to ensure that panel members, their family or associates and companies, do not benefit from them being on such a panel.

All panels should be required to publish statements of decision and indicate how each panel member deliberated and voted. Independent Hearings and Assessment Panels comprising tertiary qualified, multiskilled town planners, engineers, lawyers and senior staff with councillors as observers, should decide more substantial development applications. 8094 LEGISLATIVE COUNCIL 4 June 2008

In New South Wales the Government has created a climate where there is a perception that donations buy influence: dollars for development. We need legislation that will increase transparency and full community participation. This legislation has far too many deficiencies and, if not rejected, it should be referred to an upper House inquiry for comprehensive public consultation, which should have occurred in the first place.

The bill before the House has received much criticism across the State. It is the biggest planning overhaul in 30 years and deserves more community input. It even received condemnation from the Labor Party's own local government arm at its recent State conference. Panels making decisions on local developments instead of elected—and accountable—councillors are not the way to go. Not notifying neighbours of developments next door to them is not the way to go. The legislation will reduce community involvement in development decisions and impose substantial costs on councils, while reducing their powers and increasing conflicts of interest in our planning and development processes. For every household that gets a speedy approval for a renovation or new home, several households will have their appeal rights removed and their property rights thrown out the window.

Minister Sartor and this Government are steamrolling local communities in the name of reform and economic progress. The Opposition opposes the bill and I encourage all members to either refer the bill to an upper House inquiry or reject it.

The Hon. RICK COLLESS [5.55 p.m.]: I oppose in the strongest possible terms this draconian piece of legislation. The object of the bill is to improve the New South Wales planning system. Improve it for whom? Improve it for the vast majority of people of New South Wales? Improve it for the local government authorities across New South Wales? Or to improve it for the minority of big development companies that regularly pump millions of dollars into the Australian Labor Party coffers? These are rhetorical questions, of course.

When I entered this place in 2000, I had nearly 10 years experience as a councillor on the Inverell Shire Council. Even in those days the Minister for Planning was viewed with suspicion. I remember one of the many councillors I interacted with in those days saying to me that Frank Sartor did not think there was anything outside of the City of Sydney Council area and, if there was, he thought it should also be part of the City of Sydney Council. Frank thought he had better expand his horizons and he became the member for Rockdale but I am sure instead of having the member for Rockdale and Minister for Planning on his door, he would prefer to have "Frank Sartor, Lord Mayor of New South Wales".

The Minister is so arrogant that he believes he has to control all aspects of planning approvals at every level in New South Wales, without including any other government group, environmental people, local business or industry group nor the residents themselves. The Minister believes he should have more power than the 320 country mayors, deputy mayors and councillors that today voted unanimously at the Shires Association Conference—down the road at the Sofitel Wentworth Hotel—to send the proposed legislation to this place for an inquiry after Frank's mob forced it through the other place at something like 2.30 this morning.

I, like most other members, have received an unknown number of emails from residents of New South Wales. I have counted the emails I have received today and I am up to something like 300 emails so I must have received over 1,000 emails in the past week. The writer of each email has expressed concerned at the heavy-handed, bureaucratic and complex approach, which will not ease the process of development application approval—

The Hon. Christine Robertson: Are they not almost all the same?

The Hon. RICK COLLESS: The honourable member asks if they are all the same. If she would like, I will go to my office, collect the 300 emails, and return and read each one of them in the House.

The DEPUTY-PRESIDENT (The Hon. Amanda Fazio): Order! I remind all members that interjections are disorderly. The member with the call should ignore interjections and confine his comments to the subject matter of the bill.

The Hon. RICK COLLESS: Of course, I always take your counsel. The writer of each email has expressed concerned at the heavy-handed, bureaucratic and complex approach, which will not ease the process of development application approval but rather make it more difficult. I am not opposed to development, unlike some in this Chamber, but there are currently many problems with the planning approval process in New South Wales. Many applicants going before councils are becoming frustrated with the plethora of hoops that they are being forced to jump through to get their development applications approved. 4 June 2008 LEGISLATIVE COUNCIL 8095

There is no doubt that there is a great need for planning reform and the vast majority of the business community also believe that planning is in need of a transfusion; but these amendments are simply not what is required. The Environmental Planning and Assessment Act needs to be completely rewritten. Adding a few pages to it, as proposed by the bill, would do nothing more than add to its complexity.

The bill provides for a plethora of other instruments, including regulations, codes and guidelines, which include very small print. The Government is good at saying that it will deal with various issues in the regulations. The regulations document becomes bigger than the Act and the damage is in the fine print. The Minister can amend the regulations without any parliamentary debate. If Frank is given that power, it is bad news for all of New South Wales. The bill allows for panels and commissions, which will add complexity to the process. It establishes independent hearing and assessment panels, which are non-compulsory and advisory in nature, to allow professional planners and others to meet and consult with community groups and refer back to councils for consideration. That process happens now. Why have those provisions been included if the panels are non-compulsory? Once again, it adds to the complexity of the process.

An arbitrator will assess development applications up to $1 million. Again, the detail and guidelines of that process will be produced down the track in some form of regulation and will not be open to further parliamentary scrutiny. Clearly, neighbours and the community generally will not have access to plans or will not be notified until after an approval is granted. The first thing they will know about a development is when the bulldozer and the swinging balls arrive. For residential developments between $1 million and $50 million the current arrangements will apply. Developments worth more than $50 million will be referred to the new joint regional planning panel. This panel will comprise members appointed by the Minister. The Minister will have control of that panel. That is good for him because he wants to be the lord mayor of New South Wales. Major developments, or what the Minister calls major developments, will be referred to the new planning assessment panel. The Minister also will appoint the members of that panel. He will again have direct control of that process.

There are no guidelines as to how the planning assessment panel will operate. If there is a hearing, there are no appeal rights to the Land and Environment Court. Above the planning assessment panel, the Minister will be entitled to determine whether a project is critical infrastructure. The Minister will reserve the right, as I believe he does now, to determine those issues. The bill does not improve the development application process. It will increase red tape and make the whole process more complex. The bill will tie up local councils, reduce transparency and increase costs. I strongly support the amendment moved by the Hon. Don Harwin to send the bill to a committee of inquiry. There needs to be far more consultation with community groups and local government bodies in relation to the best way to proceed in the planning process. The bill must be carefully considered. We must not give Frank Sartor any more power that might confirm him as the lord mayor of New South Wales.

Reverend the Hon. Dr GORDON MOYES [6.04 p.m.]: The Environmental Planning and Assessment Amendment Bill 2008 amends the Environmental Planning and Assessment Act 1979 and other Acts and instruments to improve the New South Wales planning system. The Building Professionals Amendment Bill 2008 and the Strata Management Legislation Amendment Bill 2008 are cognate with this bill. The expressed intent of the amendments is to simplify, speed up and make cheaper the processes of development applications and appeals, improve certifier accountability and impose greater accountability on councils in the collection and subsequent application of section 94 contribution money.

Last year the New South Wales Government made headlines with its announcement to reform residential developments across the State and the proposed overhaul of the New South Wales planning system since the introduction of the Environmental Planning and Assessment Act 1979. Making the announcement on 27 November 2007, Minister Frank Sartor released the long-awaited discussion paper on the planning reform agenda, which outlined 90 recommended changes to the New South Wales planning system. That announcement by the New South Wales Government followed announcements by Victoria and Queensland to modernise their planning systems. The paper was put on exhibition over the Christmas-New Year break, which limited the opportunity for responses. The period for public comment on the draft exposure bill was limited to three weeks. This was totally insufficient to allow detailed examination and discussion of the complicated bill and supporting documentation by the public and community organisations. Even though 538 submissions were received, the Department of Planning officers were given just a week to consider them before the draft legislation was finalised.

The New South Wales Government released a draft exposure bill on 3 April 2008 setting out the proposed legislation. It seems certain that these reforms will be implemented in an incredibly short time frame, 8096 LEGISLATIVE COUNCIL 4 June 2008

if passed by this House. Public consultation on the exposure bill closed on 24 April 2008, which was again a very short period. This is symptomatic of the whole process involved in this particular bill. The Government's view is that the current planning process is lengthy, complex and confusing for many users of the system, particularly at the local level. There seems to be broad acknowledgement by all stakeholders that the New South Wales planning system has become excessively complex. Lobby groups that have come to see me have explained their particular concerns in this regard. This is in large part the reason for the many delays, which the discussion paper addresses. The concerns about the system are also reflected in the poor results for New South Wales in relevant sections of the Planning Institute of Australia's 2007 planning report card, which is a survey of the planning profession's own views.

This one-size-fits-all approach fails to reflect the importance and level of complexity of different plan making and development assessment processes and often leads to long delays in local government development application processes. As such, although residential development applications accounted for almost 70 per cent of all reported development applications, the average processing time for most local government applications during 2006-07 was 75 days. Onerous delays increased holding costs through interest payments to financial institutions. The complexity of the system not only creates difficulties for practitioners in government, agencies and consultancies, but also increases the potential for errors, disputes and consequently adversarial relationships between parties and the basis for litigation. Importantly, the multitiered system now in place under the Environmental Planning and Assessment Act, including related Acts and regulations, planning instruments, circulars and local policies is such that active community participation in the planning system, including the mum and dad applicants often cited by the Minister Sartor, is one of the key objectives of this Act. That now has become inevitably constrained.

Access Economics reportedly estimated that the proposed reforms will save the State $580 million over five years. Recent findings conducted by Auspoll and the Property Council of Australia found that residents of New South Wales have a poor impression of planning approvals process in New South Wales. Almost half, or 45 per cent, regard the planning processes as poor or very poor and only 7 per cent consider them to be good. Another perceived shortfall in the current planning system is that it is not consistent across the State. As each council is required to develop individual planning controls, it has led to a variety of different approaches to development control and assessment.

Due to the lack of consistency, the current system lacks predictability and certainty. Historically, councils had the sole role of certification, which was seen as slow and inflexible. In 1998 the New South Wales Government introduced a private certification system, which improved time frames and flexibility and provided greater choice for persons seeking sign-off for buildings, subdivisions and minor works. However, these reforms left the system vulnerable to allegations of a lack of integrity and uncertainty over responsibilities.

The proposed reforms seek to change the development assessment system to become more responsive and better tailored to the complexity and significance of the development. According to the New South Wales Department of Planning, the discussion paper on the planning reform agenda outlined more than 90 recommendations to improve the planning system. They included such things as plans to increase the number of development approvals under compliance certificates; new targets to reduce the processing time for development applications and local plans, allowing more small-scale developments such as home renovations to be approved within 10 days if set standards are met; tailoring development application assessments and local plan-making systems to the size and complexity of proposals; increasing online planning information and support; improving oversight of the builders certification system; reducing the Minister's determination role for development proposals and increasing the use of assessment panels; and miscellaneous recommendations in areas such as strata management, paper subdivisions and dispute resolutions.

On all of these issues Minister Sartor has spent time with me, as well as other members, explaining how much more efficient and effective this system will be. While identifying a broad range of issues in the current planning system the main thrust of the reform is efficiency. I also commend Minister Sartor for the fact that he is willing to talk with us on these issues, and he has gone out of his way to make himself available for questioning on any of these points. The major reforms lie in proposals to cut red tape in lengthy council development approval processes by expanding the development, subject to certifier approval. The reforms include a set of measurable outcomes, which relate only to timing and processes rather than planning outcomes. The current reforms will lead to the process of risk management rather than effective planning.

The proposed reforms reduce council's role in decision making and assessing while increasing council's role in compliance. New bodies that do not really represent the community will decide more of the strategic and 4 June 2008 LEGISLATIVE COUNCIL 8097

larger-scale assessment work that have greater impacts on the local community. These bodies will duplicate existing systems and are likely to increase costs. These strategies will simply exacerbate existing problems rather than solve them and increasingly act to reduce the community's input into decision making. Although the proposed reforms have received wide coverage they are generally being described in most quarters as procedural reforms to speed up the planning approvals process and to customise those processes to suit the scale of development proposed.

I have outlined a number of critical consequences for these reforms. They go well beyond the matters of procedure and demand close scrutiny. I believe there are eight critical consequences of the planning reforms that need to be identified. First, councils are set to lose substantial power and control over bread-and-butter development applications. About 95 per cent of all development applications in New South Wales relate to single residential dwelling houses. It is important that in relation to this category of development—all single dwelling houses, regardless of their cost, and all other residential works up to a capital value of $1 million— applicants will be able to have council decisions reviewed by an outside consultant who will be known as a planning arbitrator. The State Government will choose that arbitrator, not the local council.

Applicants who are unhappy with a decision of a council will be able to have the decision reviewed by a planning arbitrator, and where a council has not made a decision within a short timeframe—probably 30 days—applicants can automatically transfer the application to a planning arbitrator. The costs will be nominal—a few hundred dollars. Applicants will be able to amend their development application plans when this matter then goes to the arbitrator. The arbitrator must then determine the application within a certain time frame—the discussion paper released in November indicated that would be about 14 days. That is an incredibly tight time frame given that the arbitrator will not be familiar with the matter nor probably with the local area and the development application plans may have been amended in any event. There is no requirement that neighbours or objectors may be involved in the arbitration or even notified of it.

Lawyers are not permitted to be involved. In short, it will be a very fast decision by an outside consultant. Importantly, only applicants may appeal against the decision of an arbitrator, an appeal that would then go to the Land and Environment Court. This is obviously very good news for some applicants as it means they can lodge a development application with the council, seek a review of the deemed refusal within a very short time frame—probably 30 days—at minimum cost, and it takes the whole matter out of the hands of the local council. The arbitrator then must make a decision within a very tight time frame, possibly with amended development application plans that have not been notified to any neighbour or objectors, and if the applicant is unhappy with the arbitrator's decision he or she can appeal to the Land and Environment Court, whereas the council cannot.

This sets up a situation where many decisions in a local government area will be taken out of the hands of the local council and the council will have no right of appeal against the decision of the arbitrator. Interestingly, however, councils must pay for the arbitrator and must indemnify him or her for any costs orders made if an applicant successfully appeals against the arbitrator's decision in the Land and Environment Court. The council may not even wish to defend the arbitrator's decision but the council will be liable for any costs orders made in the applicant's favour. In addition, it will be a criminal offence for a council not to assist an arbitrator by not producing relevant documents on request or not making council staff available on request. This really is a breathtaking loss of power and control to local councils in relation to a category of development that, as I mentioned, amounts to about 95 per cent of all development applications in New South Wales.

The second concern I have is the attempt to prevent legal challenges, which I believe is set to backfire. There is an expressed intention in the planning reforms to limit legal appeals and challenges. For example, applicant and developer appeal rights will be slashed from 12 months to three months. However, in circumstances where planning arbitrators must make a decision within such a short time frame—about 14 days—there are bound to be legal errors. Lawyers cannot attend to address the arbitrator on legal issues relating to the decision—for example, on the correct legal interpretation of a planning requirement under the Act or under the council's local environmental plan. In those circumstances the result is likely to be that decisions made by arbitrators when they approve a development application will be susceptible to legal challenges in the Land and Environment Court by dissatisfied neighbours, objectors, and even by councils themselves. Such action is available under section 124 of the Environmental Planning and Assessment Act 1979.

At present these types of challenges are made against councils. However, councils are generally far less prone to legal error as they might take time to consider applications carefully and to obtain legal advice when necessary. Lawyers can attend council meetings and advise councils as required. Planning arbitrators will not 8098 LEGISLATIVE COUNCIL 4 June 2008

have that luxury and their decisions may well be prone to legal challenge or legal error, opening the floodgates for potential section 124 actions. There is, however, a proposed provision excusing arbitrators from any personal liability in relation to their decisions. Therefore, where an invalid decision is made and the courts overturn the decision, applicants will have no ability to recover damages, such as delay costs and the like, against the arbitrator. It also seems likely that objectors will, for the first time, be given a right of appeal to the Land and Environment Court against the approval of certain residential developments. However, we are not told when these rights would arise. The detail is left to the regulations. But it appears that they will apply where significant breaches of numerical planning controls are proposed. A figure of 25 per cent breach has been mentioned.

My third concern relates to the lapsing of development consents. At present, a development consent cannot expire if it is physically commenced within a certain time frame specified in the consent—generally, three to five years. This requires only that some physical works relating to the consent must be carried out— I believe it may even be sufficient to put up a fence or to dig a drain—where that has been done before the lapse date. However, the planning reforms now propose that even where that has already occurred the development consent will expire if the work has not been substantially commenced within a further two years. This is a much more difficult threshold, requiring far more comprehensive works to be carried out.

Importantly, this has the potential to catch out a lot of developers and landowners who may have development consents where physical commencement has occurred but where the consent has otherwise been left in abeyance without substantial commencement of works. For these people even the additional two years that is proposed beyond the ordinary lapse date may have already expired or may be nearing expiration. In those cases, unless they are aware of this proposed planning reform, they may lose the ability to carry out the development.

For example, a developer or landowner has a consent requiring commencement within three years. It was issued five years ago. The developer carried out physical works prior to the three years and obtained legal advice and/or council sign off confirming that physical commencement had been achieved. The developer now has a more valuable site because it can be sold with consent for the future owner to build upon it. However, the new planning reforms will mean that substantial works have to be carried out within two years after the original three-year lapse date—that is, five years in total. That is now. Therefore, the consent lapses now because substantial works have not been carried out. Developer owners will simply lose their development consent. This amendment expressly applies to old development consents. There are no savings or transitional provisions to protect those consents. Approval via the new development application may no longer be permissible at all on the land, depending on the current zoning and planning controls.

My fourth concern relates to the cost of Land and Environment Court proceedings. Another stated intention of the legislation is to deter developers and applicants from lodging Land and Environment Court appeals. Applicants in appeals often amend their plans along the way to respond to and overcome concerns or issues raised by the council or objectors. This has generally been said to be an acceptable practice because it leads to a better planning outcome for the site. The two most recent Chief Judges of the Land and Environment Court—Justice Preston and Justice McClelland—have emphasised that planning appeals should not reflect an adversarial system of winners and losers. Rather, the goal should be to achieve an acceptable outcome for a site in terms of what building or use is approved. The process of amending plans to respond to concerns of councils or residents in a locality is an appropriate means of achieving that.

However, these planning reforms aim to deter applicants from amending plans by introducing a new rule that where an applicant elects to amend plans in any significant way the applicant must automatically pay the entire legal costs of the council. Although it is not clear, it seems that this means that costs must be paid on an indemnity basis, meaning that whatever costs the council has incurred—whether or not they are reasonable— they must automatically be paid by the applicant developer.

For example, if a council uses three senior barristers in court, their costs must all be paid. Indemnity costs are awarded very rarely in any court, and generally only where one party's conduct has been reprehensible. They are almost never awarded in the Land and Environment Court. Rather, costs are awarded from time to time, but only on a party-party basis. That means an assessment is made as to what costs are reasonably incurred and the unsuccessful party pays those reasonable costs only. Generally at present, where an applicant amends plans, the costs payable are only those thrown away—that is, wasted costs as a result of the council now having to look at new plans.

The proposal to award automatically all costs of the proceedings on an indemnity basis means that applicants will rarely agree to amend a proposal to achieve a better outcome unless they have very deep pockets 4 June 2008 LEGISLATIVE COUNCIL 8099

indeed. Complaints of councils and objectors will be ignored and argued in court and we will almost certainly see a significant shift back to the highly adversarial system where there is only a win and a loss but no compromise other than where an applicant has significant financial resources. Alternatively, applicants must be able to amend just prior to lodging an appeal. Those who must make a decision about this bill require advice on this matter.

Finally, I am concerned about the fact that the Minister is to protect certain decisions that he makes from any legal challenge. The planning reforms go to unusual lengths to prevent any legal challenge whatever against certain decisions where the Minister has not followed the legal procedures provided for in these very reforms. In those cases the reforms prevent any legal challenge, even expressly overriding challenges on the grounds of procedural fairness or natural justice. Challenges on these grounds are almost always available, reflecting the deeply entrenched principle that everyone is entitled procedural fairness and that decision makers are bound by the laws of natural justice. In this case the planning reforms seek expressly to set the Minister free from those entrenched obligations. This is a very unusual level of protection for an administrative decision maker.

This bill is seriously flawed in key areas. I have deep concern that public consultation on these major changes to planning legislation in New South Wales has been inadequate. There is tremendous concern among local councils and in their communities that these proposed laws are being rushed through without proper assessment of their impact. They represent the most substantial changes to the planning system in decades and there are fears that they will give undue power to developers at the expense of local residents.

I will now examine the implications and address the problems with this bill. I will deal first with those concerning land use and plan making. The proposed changes to plan-making procedures are a cause for serious concern. I support the proposal to tailor the local environmental plan process to a scale, risk and complexity of the land use change using a gateway screening system. However, the streaming pathways and screening and evaluation criteria should be developed with input from local and State government agencies.

The draft bill provides for public comment on proposed local environmental plans only at the gateway stage. This represents a serious diminution of public participation in the local environmental plan process. I strongly believe that public comment should be required at both local environmental plan gateway stage and on the final proposed local environmental plan instruments, which can have significant implications. I oppose the proposals to provide the Minister with the power to determine that no consultation is required at the gateway stage of the so-called minor plans. This would allow plans to be made in the absence of any public consultation. This discretion should be removed from the bill.

I also believe that mandatory time frames should apply to all State agencies, including the gateway stage, and should also apply to Parliamentary Counsel's advice. While the proposal to provide a legal drafting service has merit, councils should have an ability to review local environmental plans following legal drafting to ensure that the original intent is maintained. The proposal that the Department of Planning dictate the content of development control plans is not supported other than to ensure consistency with the local environmental plan or State instrument. Moreover, the status of the development control plans needs to be raised to give them greater authority to complement the statutory instrument.

Secondly, I raise the matter of development assessment and review. The establishment of the Planning Assessment Commission and joint planning regional panels creates another level of bureaucracy that may not have any knowledge of the critical issues for the council area. It is difficult to see how the implementation of independent hearing and assessment panels would simplify, streamline and speed up the development approval assessment process as it would be adding yet another costly and time and resource consuming layer to that process, which is only consultative in nature. The proposed use of planning arbitrators to simplify the appeals process is unlikely to achieve the objectives of reduced delays, cost and litigation if it will take 38 days for arbitrators to make a determination, and it will still be open to a court to allow appeals after considering the arbitrator's determination. The discussion paper makes no mention of how it is proposed to improve and streamline the annual processes for development applications exceeding $1 million.

I have strong reservations regarding the proposed changes to development assessment. The changes create the opportunity for these bodies to be effectively stacked in order to favour developer interest. The absence of any provision preventing such stacking and ensuring that these bodies include persons with expertise in planning is a significant flaw in the proposed legislation. I have raised this matter personally with Minister Sartor without being satisfied. However, the following proposals are supported: Simplifying the development application lodgement requirements and streamlining integrated referrals as well as the statutory deemed refusal periods based on the value or complexity of development proposals. 8100 LEGISLATIVE COUNCIL 4 June 2008

I am concerned about the fact that we need to have a break at this time. I am also concerned about appeals processes and the increased complexity of them, without going into details. I also make mention of my concerns for exempt and complying developments. I also raise my concerns, as I have already mentioned, about development contributions and the problems with them, and I also have a whole series of concerns about private certifiers. I am sure there will be an opportunity later in the Committee stage to look at this in more detail. I am also concerned with the loss of community consultation on many issues proposed by the bill and, finally, of the failure to advance environmental sustainability.

I conclude by saying that the laws will add more layers of red tape and cost ratepayers millions of dollars to implement. They will take decisions away from communities and will impact on councils' ability to provide crucial services. As a result, there are questions over the motivation for the Government's changes to the New South Wales planning system which are being rushed through and with disregard to the views of communities, councils and other stakeholders, including those many thousands of people who have emailed us over the past few weeks. They will have to live with the implications and the impact of these proposed changes.

The vast majority of New South Wales residents have no idea how their homes will be affected by sweeping changes to the State's planning laws. The Auspoll survey found that 71 per cent of people had not heard anything at all about proposed changes to planning laws that will shift power from local councils to property developers or, further up the line, to the State Government. Although genuine reform is required to improve certainty, transparency and timeliness, proper consideration must be given to the laws with a view to making them more workable and equitable for all stakeholders in the planning process. While some reforms may be desirable, they are relatively minor and the existing laws protect the community far better than the proposed bills.

I am deeply concerned about the impact of the new planning laws and how they will affect communities, as communities will lose their right to participate in local planning issues and essential funding will be taken away. Many other industry and community bodies share these views. In view of the serious problems with the bills that I have addressed in my speech so far and the lack of adequate public consultation, I believe a detailed scrutiny of the legislation and its full implications is required. This matter is far too important and the implications to our communities too great for changes to be rushed through, as we are being forced to do now. We cannot hasten towards enacting legislation that will have the most far-reaching changes to the State's planning system for the next 30 years. Therefore, I support the Opposition's decision to call for an upper House inquiry into the Government's planning reforms to properly review the implications of the proposed changes, to hear from all affected stakeholders and to consider the total reform package before any substantive changes to the legislation are approved by me.

Debate adjourned on motion by the Hon. Greg Donnelly and set down as an order of the day for a later hour.

SELECT COMMITTEE ESTABLISHMENT: NOTICE OF MOTION

The PRESIDENT: Order! Earlier today the Hon. Trevor Kahn gave a notice of a motion for the appointment of a select committee to inquire into and report on the effectiveness of current laws, practices and procedures in protecting government employees who make allegations against government officials or parliamentarians, with particular reference to the treatment of Ms Gillian Sneddon. As Ms Sneddon was an electorate officer employed by the Legislative Assembly, and the reference to the treatment of Ms Sneddon is presumably a reference to her treatment by the Legislative Assembly, this notice of motion raises particular concerns in relation to the operation and independence of the two Houses of the New South Wales Parliament.

It is both well established and recognised that the Legislative Council and Legislative Assembly are equal and sovereign Houses of Parliament. As such they have sole cognisance of their operations, including complete autonomy, subject to constitutional constraints, in regard to their procedures, consideration of business, questions of privilege and contempt. This principle is, by convention, extended to the delivery of services to members and the administration of finances and staffing matters. The principle is expounded in Hatsell's Precedents and Proceedings in the House of Commons of 1818, which states:

The leading principle, which appears to pervade all the proceedings between the two Houses of Parliament, is, That there shall subsist a perfect equality with respect to each other; and that they shall be, in every respect, totally independent of one of the other. – From hence it is, that neither House can claim, much less exercise, any authority over a Member of the other; but if, there is any grounds of complaint against an Act of the House itself, against any individual Member, or against any of the Officers of either House, this complaint ought to be made to that House of Parliament, where the offence is charged to be committed; and the nature and mode of redress, or punishment, if punishment is necessary, must be determined upon and inflicted by them. 4 June 2008 LEGISLATIVE COUNCIL 8101

I also note the following advice provided by the Clerk of the Senate in September 2003:

The various houses of parliaments generally follow the principle that one house cannot inquire into proceedings in another house.

The basis in law for this would be the immunity of parliamentary proceedings from impeachment or question in any other place, the Bill of Rights 1689, article 9 immunity which adheres to all of the Australian parliaments, and which is interpreted as applying to each individual house.

This does not affect political comment on events in other houses, but formal inquiries into other houses' proceedings are avoided. It would obviously be difficult properly to conduct bicameral relations within a jurisdiction, or federal relations between jurisdictions, in the absence of this rule, so it is a matter of comity apart from any question of law.

Unlike the other possible limitations considered here, this restriction applies regardless of whether witnesses and documents are summoned. Thus, a committee of one house does not hold an inquiry into events occurring during the course of proceedings in another house, and does not take evidence on such a matter from a member of the other house, even if the member appears and gives evidence voluntarily.

This principle of comity and mutual respect between the Houses is reflected in the Parliamentary Evidence Act 1901, which provides that members of one House should not be summonsed to appear to give evidence before the other House. A similar implicit limitation on the power to summons members of the other House is observed in the Federal Parliament and in the British Parliament.

The principle has also been previously applied by the Council in relation to the establishment of a select committee. In December 1965, when the House established a Parliament House Building Committee to inquire into and report upon proposals for the site and erection of a new Parliament House, the House specifically restricted the operations of the committee to considering the accommodation needs of members, officers and staff of the Legislative Council, together with the reporting staff and joint staff. The committee terms of reference did not allow the committee to consider the needs of members, officers or staff of the Legislative Assembly. Rather, the resolution appointing the committee provided that the House could confer upon subjects of mutual concernment with any committee appointed for similar purposes by the Assembly.

Based on the principle of sole cognisance of the Houses, the principle of comity and mutual respect between the Houses and the precedent set in 1965, I rule that the notice of motion given earlier today by the Hon. Trevor Kahn is out of order, insofar as it seeks the appointment of a select committee of this House to specifically investigate the treatment of Ms Gillian Sneddon by the Legislative Assembly. A committee of this House should not investigate the proceedings in the other House, even where members and officers of that House are willing to appear and give evidence voluntarily. Such matters are properly investigated by the Legislative Assembly as the sole arbiter of its own procedures and proceedings.

Accordingly, I recommend that the Hon. Trevor Khan consult with the Clerk to amend his notice of motion to comply with the principle of comity and mutual respect between this House and the Assembly. The amended notice of motion may then be published in the Notice Paper for tomorrow.

[The President left the chair at 6.40 p.m. The House resumed at 7.45 p.m.]

BUSINESS OF THE HOUSE

Postponement of Business

Government Business Order of the Day No. 2 postponed on motion by the Hon. Tony Kelly.

GROWTH CENTRES (DEVELOPMENT CORPORATIONS) AMENDMENT BILL 2008

Second Reading

The Hon. TONY KELLY (Minister for Lands, Minister for Rural Affairs, Minister for Regional Development, and Vice-President of the Executive Council) [7.46 p.m.], on behalf of the Hon. Michael Costa: I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard. 8102 LEGISLATIVE COUNCIL 4 June 2008

Leave granted.

The Government is pleased to introduce the Growth Centres (Development Corporations) Amendment Bill 2008. The bill is an important step in the Government's commitment to delivering the land supply targets identified in the State Plan and the Metropolitan Strategy.

The bill will ensure that the Growth Centres Commission is better able to respond to the challenges of delivering land supply targets in the North West and South West Growth Centres and improving housing affordability for families.

The Commission is now well into its implementation phase of delivering on these targets. In December last year the Minister for Planning announced the rezoning of the first two precincts in the Growth Centres: Gran Park and Turner Road.

This announcement represented the rezoning of almost 12,000 lots in the south west together with town centres and employment lands.

The package dealt with the precinct wide management of heritage streams, riparian corridors and threatened species.

It also included a development control plan which will make about 65 per cent of dwellings in the precincts capable of being dealt with as complying development.

All of this has been achieved in just 18 months and is consistent with the aims of the current planning reforms to expand exempt and complying development categories and make it easier for home owners and builders to navigate the planning system

The 12,000 lots in Gran Park and Turner Road are in addition to the precincts already rezoned in the Growth Centres including 1,000 lots at Colebee and 7,500 at Edmondson Park. That is 20,000 lots in total.

It is also expected that more precincts will go on public exhibition in the coming months resulting in a further 20,000 lots being rezoned in the North West and South West.

This includes planning packages for the Riverstone and Alex Avenue Precincts providing around 15,500 lots and draft plans for North Kellyville which will provide for a further 4,500 lots.

As a result of these rezonings there are currently development applications for over 570 housing lots in the Gran Park and Turner Road precincts under consideration.

Construction is underway for the first subdivision in the North West growth centre involving the creation of 150 lots in Colebee.

As can be seen the Government has facilitated the bringing of finished land to the market in about three years from the commencement of the planning process compared to the usual seven to 10 years that would normally apply.

The Growth Centres Commission has also worked in close co-operation with local councils and State agencies in the Growth Centres areas to ensure that the lots created by these rezonings are appropriately serviced and supported by State and local community infrastructure.

Consistent with the Government's approach of achieving this goal whilst balancing housing affordability issues. The Growth Centres Commission has:

- reviewed regional infrastructure arrangements in the Growth Centres resulting in a reduction of State contributions from $33,000 to just $23,000 for an average block. This has been achieved without reducing the extent of infrastructure to be provided.

- The Commission has also worked in close co-operation with the Councils to review local contributions arrangements. As a result of these discussions essential local infrastructure will be provided without imposing unreasonable local contributions. As an example, contributions in the Gran Park Precinct have been reduced from $48,000 per average lot to $30,000 per average lot.

It is important to note that the Growth Centres Commission would not have achieved its success to date without the close co-operation of the six Growth Centres councils: Baulkham Hills, Blacktown, Hawkesbury, Camden, Campbelltown and Liverpool councils.

As an example of the Commission's close relations with councils in its area, the Commission has long established Local Government Co-ordination Committees consisting of the Mayors and General Managers of the six councils. These committees

- enable local Government and community issues to be raised directly with the Commission

- enable the Commission to seek the views of councils to ensure informed decision making

- foster discussion about emerging issues in local communities and

- encourage a co-operative approach between State and local Government to achieve optimal outcomes in terms of economic social and environmental outcomes.

At the planning level the Commission works closely with its constituent Councils assisting them with resources to carry out the detailed local planning needed to deliver new sustainable communities.

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Under the proposed bill amendments the Local Government Co-ordination Committees will continue in operation and the Commission will continue its productive ongoing working relationship with the Councils.

I now turn to the detailed provisions of the bill.

The bill makes amendments to the Growth Centres (Development Corporations) Act 1974. The Act allows for the establishment of development corporations for growth centres. Under current provisions a development corporation is established with a governing body or board. The Chief Executive of a development corporation is, along with other appointees, a member of the board.

There are currently four development corporations constituted under the Act:

(i) Hunter Development Corporation

(ii) Festival Development Corporation

(iii) Cooks Cove Development Corporation, and

(iv) the Growth Centres Commission.

All of the current development corporations are constituted with a board. There is no proposed change to the constitutional arrangements for the Hunter Festival and Cooks Cove Development Corporations.

The key object of the bill is to amend the Act to allow a development corporation to be constituted by one of two methods:

(a) firstly, a development corporation governed by a board and

(b) secondly, a development corporation governed by a chief executive.

The availability of these two models will allow development corporations to be constituted in a manner which best reflects the mission and goals of the particular corporation.

Having established its systems procedures and protocols and being firmly in its implementation phase, the Growth Centres Commission no longer requires the added guidance of an independent board.

To ensure the Government continues to roll out adequate supplies of zoned and serviced land, the Commission will be managed by its CEO, who will continue his crucial intragovernment co-ordination role commenced on start-up and continuing through this implementation phase.

It is appropriate that I take this opportunity to thank the members of the Growth Centres Board for their contributions to the success of the Growth Centres Commission during the start up phase. Their contributions created the foundations for ongoing success.

Whilst the members of the GCC Board played an invaluable role in establishing this broad framework, it is now imperative that the GCC work in close co-operation with Government agencies to ensure land supply targets are delivered in a timely manner.

The GCC will report to the Minister for Planning through an advisory committee of senior public servants charged with responsibility for delivering the New South Wales Government's land supply targets identified in the State Plan and Metropolitan Strategy including the Directors-General of Planning and DECC the Secretary of the Treasury, the CEO of the RT A and the Co-ordinator General.

The changes proposed in the bill will not result in any reduction in the accountability requirements applying to the Chief Executive of the Growth Centres Commission.

Indeed he will be required to continue meeting accountability obligations under the Public Sector Employment and Management Act the Independent Commission Against Corruption Act and various other legislative requirements.

I now turn to the other key elements of the bill designed to simplify procedural requirements relating to the constitution and operation of development corporations which otherwise date from 1974. These are minor housekeeping amendments required because the existing Act provisions are outdated and administratively burdensome.

The Act provides for the establishment of a corporation by way of an order. Orders are also required to be made where a corporation is to be dissolved amalgamated or where the land to which a corporation applies is to be expanded or reduced. The current provisions can often require a multitude or orders and procedural steps to be undertaken.

The bill amends the Act to allow a single order to be made which

- constitutes or dissolves a development corporation

- changes it name

- alters the land to which it applies and or

- changes its constitutional arrangements from a board-governed to a chief executive-governed corporation.

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This will reduce red tape by minimising unnecessary administrative steps and streamlining procedures under the Growth Centres (Development Corporations) Act 1974. It will also ensure that all relevant information in respect of a corporation is identified in a single Schedule to the Act.

The bill also includes provisions of a savings and transitional nature necessary to give effect to the changes outlined and other related amendments.

In closing the amendments to the Growth Centres (Development Corporations) Act 1974 made by this bill will ensure that the Growth Centres Commission is better able to concentrate on the task of delivering crucial land supply in the North West and South West growth centres essential to meet the needs of Sydney's growing population.

I commend the bill to the House.

The Hon. DON HARWIN [7.47 p.m.]: The Opposition does not oppose the bill. We recognise the need to facilitate the expeditious and appropriate release of land onto the market. Recent statistics reveal the dire situation in New South Wales and the alarming degree to which our State is lagging behind the rest of the nation. The Australian Bureau of Statistics Dwelling Unit Commencements report for the December 2007 quarter revealed a decline in New South Wales commencements for the third quarter in a row. New house commencements in New South Wales are now half that of Victoria and Queensland. The latest Housing Industry Association New Home Sales report, released on 30 April, showed that new home sales have dropped by 19.7 per cent in New South Wales, 10 per cent in Queensland, and less than 1 per cent in Victoria. New home sales in New South Wales are now roughly half what they were four years ago.

A major hindrance to development in New South Wales is the enormous burden of taxes and charges imposed on land by the current Government. The current fee structure is punitive and prohibits growth. The New South Wales Property Council has been tireless in highlighting these taxes and charges. A house in south-west Sydney that costs $544,155 attracts State taxes of $44,993. A house in north-west Sydney costing $570,240 attracts State taxes of $80,031. This amounts to one-sixth of the total cost of bringing the property to market. In contrast, a Gold Coast property worth a typical amount of $390,000 attracts Queensland taxes of just $15,876.

There are also significant anomalies between the on-cost of capital works, such as water and sewerage in New South Wales, and those for comparative developments in Victoria and Queensland. I am advised that as things stand with levies and section 94 contributions, the on-cost for a block of land in north-west Sydney is approximately $160,000. This is more than three times the cost associated with a comparative block in Queensland.

The heavy burden of government charges and taxes is a critical issue that needs much attention and the bill does not address this. However, if it succeeds in its aspirations of facilitating expeditious release of land, it will contribute perhaps in a small way with costs. The bill seeks to amend the principal Act to allow the option of development corporations being constituted either as a corporation governed by a board, as is currently the case, or as a corporation governed by a chief executive. Currently there are four development corporations: Hunter Development Corporation, Festival Development Corporation, Cooks Cove Development Corporation and the Growth Centres Commission. Each of these is run by a board, to which the chief executive officer reports.

In the case of the Growth Centres Commission, which is responsible for both the north-west and south-west growth sectors, the Government intends to have the chief executive govern the corporation. The chief executive will report to the Minister for Planning through an advisory committee of senior public servants responsible for delivering the Government's land supply targets. According to the Government, the chief executive management structure for Sydney's growth centres will facilitate streamlined decision making before the implementation phase following the establishment of the broad framework of principal land supply targets.

I note that the New South Wales Property Council, the Housing Industry Association, the Urban Development Institute of Australia and the Urban Development Taskforce have advised the Opposition that they are all in favour of the objectives of the bill. The Opposition does not oppose the bill but encourages the Government comprehensively and appropriately to address the greatest factor hindering housing growth in New South Wales—the high level of associated government taxes and charges. I commend the bill to the House.

Ms SYLVIA HALE [7.53 p.m.]: The Greens oppose the Growth Centres (Development Corporations) Amendment Bill 2008 because it seeks to reduce the level of transparency and accountability about major development projects in growth centres at a time when the planning system is awash with political donations and the public has little confidence that planning decisions are based on the public good rather than on the 4 June 2008 LEGISLATIVE COUNCIL 8105

financial bottom lines of developer donors. Removing the boards of development corporations—which currently require at least four members appointed by the Governor—and replacing them with a single chief executive officer appointed by and under the direction and control of the Minister are a step away from transparency and accountability.

With billions of dollars of development currently underway or about to commence in these development areas, and some of the State's largest political donors undertaking or bidding for that work, the Government must ensure full transparency and accountability. This bill does the reverse. In introducing the bill the Government argued:

Having established its systems, procedures and protocols and being firmly in its implementation phase the commission no longer requires the added guidance of an independent board.

The Greens do not accept this argument, and we do not believe that the public accepts it. We say that the implementation phase is when the guidance of an independent board is most needed because that is when the big money is to be made and when the oversight needs to be most open and most conscientious. Reducing a board to a single chief executive officer at the time when oversight and scrutiny should be increasing rather than decreasing is poor public policy.

Section 34 of the Act deals with disclosures of interest, an extremely important provision, given the conflicts of interest that currently beset the planning system. I note, however, that the consequential amendments to section 34 have the effect of excluding the chief executive officer of a chief executive-governed development corporation from the disclosure of interest requirements. I understand that the Government's position is that chief executive officers are covered by public sector codes of conduct so they do not need to be covered by the disclosure of interest provisions of the bill. It does, however, illustrate the way the bill diminishes scrutiny and dilutes measures aimed at keeping the development process untainted by conflicts of interest. Under current arrangements all chief executive officers are covered by the disclosure of interest provisions; under this bill some are not.

The Government has described the bill as a "minor administrative tidy up". It is no such thing. It is a deliberate reduction in the transparency, accountability and independent oversight of some of the most lucrative development deals in the State's history. We have very good reason to insist that there be more oversight, not less, as these growth centre deals proceed. When one looks at some of the developers involved in growth centre or development corporation deals one sees that many of them are donors to one or both of the Labor or Liberal parties.

For example, Builddev Pty Ltd has been involved in a deal with the Hunter Development Corporation worth many tens of millions of dollars. In the last two years, while the company has been progressing one of its Hunter developments through the part 3A process, it has donated at least $200,000 to the New South Wales Australian Labor Party and the New South Wales Liberal Party. I ask members to consider the interests in the south-western growth area where prominent political supporter and donor Tony Perich is reported to have become a multimillionaire overnight when his landholdings in the area were rezoned for housing.

With many such current or potential developers having links to the Labor or Liberal parties, or both, it is imperative that the oversight of the development corporations be thorough. Removing the independent boards and replacing them with a chief executive officer answerable directly to the Minister reduces the existing level of oversight. The bill is the opposite of good public policy, and for that reason the Greens oppose it.

Reverend the Hon. FRED NILE [7.58 p.m.]: The Christian Democratic Party supports the Growth Centres (Development Corporations) Amendment Bill 2008, which makes changes to the Growth Centres (Development Corporations) Act 1974 to allow development corporations to be constituted as either corporations governed by a board or corporations governed by a chief executive. It is essential that the Growth Centres Commission is better able to respond to the challenges of delivering land supply targets in the north-west and south-west growth centres. We are all aware of the tremendous pressure on land in this State, particularly in the Sydney region. Indeed, the lack of land makes the land that is available far more expensive and out of the reach of young families seeking to establish themselves in their first home.

We also know that the Commonwealth Government has announced a dramatic increase in the immigration target from 130,000 people to 290,000 people per year, with a similar large increase in the quota for refugees. It is common knowledge that most of those people tend to finish up in New South Wales, with many in the Sydney region, which will put more pressure on land, housing, and accommodation in this State. It is therefore critical that procedures are put in place for the rapid rezoning of the various precincts in the greater Sydney region. 8106 LEGISLATIVE COUNCIL 4 June 2008

Last year the Minister for Planning announced the rezoning of the first two precincts in the growth centres, Oran Park and Turner Road, which resulted in the rezoning of almost 12,000 lots in the southwest, including town centres and employment lands. The package included the identification of the State infrastructure required and protocols for the precinct-wide management of heritage, rivers and threatened species. It also included a section 94 contributions plan and a development control plan, which included complying development for about 65 per cent of dwellings in the precincts. That expanded land program took only 18 months—which proves the value of the growth centres. There will be more precincts in the north-west growth centre in the future and, in accordance with normal practice, they will go on public exhibition to enable the community to be involved in the consultation process.

I commend the Government on its initiative. We often hear of criticism levelled at some individuals for appearing to receive financial benefit when new land is being released. I am sure the Government is well aware of those dangers and will do what it can to ensure that people do not receive an unjustified increase in profits as a result of land release. I call on the Government, in this case through the chief executive officer of the growth centres, to ensure that any exploitation is avoided.

The Chief Executive Officer of the Urban Taskforce, Australia, which purports to represent Australia's most prominent property developers and equity financiers, wrote me a letter dated 3 April 2008 in which he stated:

We support this change because the Growth Centres Commission functions as a New South Wales Government agency and its chief executive liaises directly with cabinet ministers and cabinet committees. It is not practical for a board to oversight the work of the chief executive as they are not party to the same whole-of-government discussions that the chief executive participates in. These discussions dictate the work program of the Commission, rather than any board decision.

The Government has to work in cooperation with existing property developers and equity financiers whilst avoiding, as I know it would, any appearance of giving financial benefit to property developers, especially if they are people who have given donations to the Labor Party or to any other political party. I believe the proposed system will be more efficient. I will detail my views on growth centres when I contribute to debate on environmental planning legislation that is also before the Parliament. I support the bill.

The Hon. TONY KELLY (Minister for Lands, Minister for Rural Affairs, Minister for Regional Development, and Vice-President of the Executive Council) [8.04 p.m.], in reply: I thank all honourable members for their contributions to the debate on the Growth Centres (Development Contributions) Amendment Bill 2008, which is an important step in the Government's commitment to delivering the land supply targets identified in the State Plan and Metropolitan Strategy.

The bill will ensure that the Growth Centres Commission is better able to respond to the challenges of delivering land supply targets in the north-west and south-west growth centres. The bill provides a new constitutional model for the Growth Centres Commission; one that better reflects the commission's current role in implementing the land supply program. The revised arrangements will not result in any reduction in the accountability requirements applying to the chief executive of the Growth Centres Commission.

The Grown Centres (Development Corporations) Act 1974 currently includes provisions dealing with disclosure of pecuniary interests. These provisions are found in section 34 of the Act and apply to members of a development corporation, as well as subcommittee members. As a member of the board, the chief executive is subject to these provisions. There is no proposed change to these pecuniary interest provisions for development corporations governed by a board. However, where a chief executive governs a development corporation it is not appropriate for these provisions to apply, as there would be no relevant meetings at which the chief executive could make such disclosures. This method of dealing with conflicts of interest is appropriate and relevant only when a board governs a corporation. That is not to say that the chief executive of such a corporation is not otherwise bound by obligations and duties concerning conflicts of interest and other accountability measures. Indeed, there are a variety of mechanisms by which the chief executive officer of the corporation is made accountable.

For example, the Growth Centres Act makes it clear that the chief executive officer is subject to the Public Sector Employment and Management Act 2002. Part 3 (1) of the Act deals with public sector executives, which includes chief executive officers of development corporations. That part includes provisions relating to the terms and conditions of appointment and the removal of public sector executives. I note that all public sector executives whose positions are governed by the Public Sector Employment and Management Act are required, as a condition of their contract of employment, to comply with the "Code of Conduct and Ethics for Public Sector Executives." 4 June 2008 LEGISLATIVE COUNCIL 8107

The code sets out extensive provisions governing the proper conduct of senior executives, including provisions relating to personal and professional behaviour, use of official information, use of public funds and other facilities equipment, provisions dealing with bribes, gifts, benefits and hospitality, reporting of corrupt conduct and so on. In particular, the code includes specific provisions relating to the disclosure of pecuniary and other interests. The code includes a variety of mechanisms for resolving conflicts of interest, including requiring the chief executive officer to make formal disclosures in respect of his or her interest to the Director General of the Department of Premier and Cabinet, requiring chief executive officers to divest themselves of those interests and/or requiring them to remove themselves from decision-making in matters where they may have a conflict of interest. The code notes:

Public employment involves a position of trust. Public officials are expected to act in the public interest and to demonstrate ethical behaviour in carrying out their official duties. This code has been developed because executives have special responsibilities by virtue of their positions of authority and their high levels of accountability to decision-making and leadership.

The code does not stand alone. A range of other legislative and accountability requirements apply to chief executives of statutory agencies, including obligations under the Public Sector Employment and Management Act 2002, the Independent Commission Against Corruption Act 1988, the Ombudsman Act 1974, annual reports legislation and the Public Finance and Audit Act 1983.

In addition to the above, the Growth Centres Commission has adopted its own internal corporate governance framework, which includes a code of conduct, conflicts of interest policy, and a gifts and benefits policy. The chief executive officer of the commission is subject to these policies, in addition to his or her other obligations. In summary, the obligations applying to chief executives of development corporations are identical to those applying to any chief executive of a statutory agency or director general of a government department. The amendments introduced by the bill will not reduce these extensive accountability measures in any way.

There will be no reduction in accountability to the local community. The Growth Centres Commission will continue its two local government coordination committees, the membership of which includes representatives from the six councils in the growth centre areas. These committees have provided, and will continue to provide, an opportunity for the views of councils and the local community to be included in future planning for the north-west and south-west growth centres. The bill also includes other minor housekeeping amendments to the Growth Centres (Development Corporations) Act that are designed to simplify procedural requirements and reduce red tape.

These sensible amendments update cumbersome provisions dating back to 1974. The amendments to the Growth Centres (Development Corporations) Act will ensure that the Growth Centres Commission is better able to concentrate on the task of delivering crucial land supply targets in the north-west and south-west growth centres, which are essential to meet the needs of Sydney's growing population. I commend the bill to the House.

Question—That this bill be now read a second time—put.

The House divided.

Ayes, 26

Mr Ajaka Mr Kelly Ms Sharpe Mr Brown Mr Khan Mr Smith Mr Catanzariti Mr Lynn Mr Veitch Mr Clarke Mr Mason-Cox Ms Voltz Mr Colless Reverend Dr Moyes Mr West Ms Fazio Reverend Nile Ms Westwood Ms Ficarra Ms Parker Tellers, Miss Gardiner Mrs Pavey Mr Donnelly Mr Gay Ms Robertson Mr Harwin

Noes, 4

Mr Cohen Ms Rhiannon Tellers, Ms Hale Dr Kaye 8108 LEGISLATIVE COUNCIL 4 June 2008

Question resolved in the affirmative.

Motion agreed to.

Bill read a second time.

Leave granted to proceed to the third reading of the bill forthwith.

Third Reading

Motion by the Hon. Tony Kelly agreed to:

That this bill be now read a third time.

Bill read a third time and returned to the Legislative Assembly without amendment.

FIRST STATE SUPERANNUATION AMENDMENT BILL 2008

Bill received from the Legislative Assembly, and read a first time and ordered to be printed on motion by the Hon. Penny Sharpe, on behalf of the Hon. John Della Bosca.

Motion by the Hon. Penny Sharpe agreed to:

That standing orders be suspended to allow the passing of the bill through all its remaining stages during the present or any one sitting of the House.

Second reading set down as order of the day for a later hour.

MEDICAL PRACTICE AMENDMENT BILL 2008

Second Reading

The Hon. PENNY SHARPE (Parliamentary Secretary) [8.19 p.m.], on behalf of the Hon. John Hatzistergos: I move:

That this bill be now read a second time.

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

Leave granted.

I am pleased to bring before the House the Medical Practice Amendment Bill. This important piece of legislation will improve the protection of the New South Wales community by improving the powers of the relevant authorities to quickly and effectively deal with complaints about medical practitioners, to improve the transparency and accountability of those processes, and to introduce mandatory reporting requirements on the medical profession itself to report medical practitioners whose conduct may be harming or abusing patients.

This legislation follows revelations about failures of the regulatory system to protect the public from dangerous or poorly performing medical practitioners. Most recently, we have seen the case of the obstetrician and gynaecologist Dr Graeme Reeves. Prior to that, in late 2006, revelations came to light about the Sydney general practitioner Dr Suman Sood.

There were some common themes in these cases. In both, there were a series of complaints and concerns raised about the medical practitioners. In both cases, the practitioner was able to continue practising for a considerable period of time before the matter came before the Medical Tribunal. Both practitioners were ultimately deregistered.

Following the Dr Sood matter coming to light in 2006, the former Minister for Health ordered a review by an independent team of experts. The review team comprised former Federal Court judge Deirdre O'Connor, Professor Peter Castaldi and Mr Vernon Dalton providing legal, clinical and community input respectively.

This review made recommended changes to the legislation that make up most of the changes proposed in the bill that I present to Parliament today.

Following revelations about Dr Reeves earlier this year, I asked Ms O'Connor to conduct a further review to identify any additional changes which could be made to the bill to further improve the system. A number of additional changes focusing on enhancing the transparency and the accountability of the disciplinary process were proposed by Ms O'Connor and have now been included in the bill.

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The overarching principle in all proposed amendments is the protection of the public. To this end, the bill proposes amending the object section of both the Medical Practice Act 1992 and the Health Care Complaints Act 1994 to state that the protection of the health and safety of the public is the "paramount consideration" in the exercise of all functions under the legislation.

The amendments proposed by the bill cover four main areas:

- the powers of the Medical Board to take urgent action to protect the public under section 66 of the Medical Practice Act

- the ability of relevant authorities in dealing with a complaint against a medical practitioner to have regard to the full picture of any previous complaints and previous adverse findings against that practitioner

- improving the accountability and transparency of disciplinary processes in respect of medical practitioners

- imposing mandatory reporting requirements on the medical profession requiring a medical practitioner to report to the Medical Board a fellow medical practitioner whom he or she believes has engaged in sexual misconduct, is intoxicated by drugs or alcohol at work, or has flagrantly departed from accepted standards of practice.

I will now deal with each of these areas of change in more detail.

The changes to the Medical Board's powers under section 66 of the Medical Practice Act will improve its capacity to take steps to protect the health and safety of the public.

In the Dr Sood case, the Board took action and exercised its section 66 powers to suspend Dr Sood. However, the New South Wales Supreme Court subsequently stayed the Board's decision on technical grounds. Dr Sood was allowed to continue practising until the Medical Tribunal eventually deregistered her some years later.

In the case of Dr Reeves, the Medical Board held a section 66 inquiry after becoming aware that Dr Reeves had been practising as an obstetrician in breach of his conditions of practice. The inquiry found that Dr Reeves could not adequately explain why he had breached his conditions, and expressed concerns about Dr Reeves' candour. Notwithstanding this, the inquiry felt that it was unable to suspend Dr Reeves by reason of the strict wording of section 66 that allows the Board only to take such action as is "necessary" to protect the life or health of a person.

This situation is obviously unacceptable! It is therefore proposed that the Board's powers under section 66, and the avenues of appeal or review in respect of these powers, be amended in five main ways to prevent a recurrence of this situation arising again.

First, item [8] in schedule 1 to the bill amends section 66 of the Medical Practice Act to clarify that the actions under this section must be guided by what is needed to protect the public interest.

The Board is not, therefore, required to limit itself to the least restrictive option as occurred in the inquiry into Dr Reeves. Rather, they should look to the outcome which best addresses the statutory purpose of the protection of the public or is otherwise in the public interest.

If this broader test had been applicable at the time of the section 66 inquiry in the Reeves matter, combined with the clarification that the paramount consideration is the protection of the public, there may well have been a different conclusion as to the appropriate action to take in order to protect the public.

Item [17] in schedule 1 to the bill amends the Act to provide the Board with a new statutory power to require any person to provide it with information, documents or evidence for the purpose of exercising these powers.

At present the Board has no powers to compel the production of documents or information for these purposes. It must rely on such information as it has available to it. Whilst it is the role of the Health Care Complaints Commission rather than the Board to carry out investigations into complaints, in the exercise of this very important power the Board must ensure the protection of the public.

I consider the Board should be given such powers as are necessary to ensure it has all relevant information or documents available. This may include, for example, documents in the possession of hospitals or other health service providers. The proposed provision includes a maximum penalty of 20 penalty units for failure to comply with a request by the Board without a reasonable excuse.

Item [8] in schedule 1 to the bill also amends the Act to require the Board to include at least one non-medical practitioner on section 66 inquiries. The Board advises that its usual practice at present is to use two medical practitioners to carry out such inquiries.

Public confidence in the system demands that section 66 inquiries are more representative of interests other than those of the medical profession. This is particularly relevant given the Board itself includes community, consumer and legal sector representatives.

The fourth proposed amendment to section 66 processes arises from proposed new provisions, contained in item [5] in schedule 1 to the bill, that will permit Professional Standards Committees and the Medical Tribunal to designate certain orders as "critical compliance" orders or conditions—which, if breached, will lead to automatic suspension and deregistration.

In the Dr Reeves case it is clear the conditions imposed by the Professional Standards Committee in 1997 that he not practise obstetrics arose because of serious concerns held about deficiencies and failings in his practice as an obstetrician. The bill proposes permitting a PSC or the tribunal in such circumstances to determine that, having regard to the case before it, compliance with the order or condition is critical to public protection and that breach of the condition or order by the medical practitioner will therefore result in automatic deregistration of the practitioner.

8110 LEGISLATIVE COUNCIL 4 June 2008

Under Item [8] in schedule 1 to the bill, breaches of these types of orders will go to a section 66 hearing. The Board will, if it is satisfied the facts show the practitioner breached the order or condition, be required to immediately suspend the practitioner from practice and refer the matter to the Medical Tribunal. If the tribunal subsequently is satisfied that the practitioner has breached the critical compliance order or condition, then the tribunal is to deregister the practitioner.

Item [20] in schedule 1 to the bill amends the process for appeal or review from section 66 decisions in the Medical Practice Act. Currently medical practitioners who have been the subject of a section 66 inquiry may seek judicial review of the Board's action in the Supreme Court. It is via this review mechanism that Dr Sood was able to continue practising, notwithstanding the Board's serious concerns about her. The bill creates a new avenue of appeal on points of law to the Chairperson or a Deputy Chairperson of the Medical Tribunal.

The Chairperson and Deputy Chairpersons of the Medical Tribunal are judges of the District Court, and their expertise and experience in sitting on the Medical Tribunal will be of assistance in exercising this power appropriately. Medical practitioners must exhaust this avenue of appeal before they can seek judicial review by the Supreme Court.

Finally, the bill proposes introducing a number of other more minor changes to section 66 powers and processes, including:

• permitting the Board following a section 66 inquiry to order a practitioner to take part in performance assessment under Part 5A of the Act, but only if the Health Care Complaints Commission concurs with this proposed action

• requiring the Board to make an audio recording of section 66 inquiries

• allowing the Board to provide the Health Care Complaints Commission with any information or documents obtained by the Board for the purpose of a section 66 inquiry, including the audio recording of the inquiry

• providing the Board with the power to provide notice of action taken under section 66 to any agency or person whom the Board considers appropriate

• requiring complaints arising from action taken by the Board under section 66 of the Act to be listed for final hearing by the Medical Tribunal or a Professional Standards Committee as soon as practicable; and

• clarifying when the Chairperson or a Deputy Chairperson of the Medical Tribunal can extend a period of suspension of a medical practitioner following a section 66 inquiry.

The second area of amendments introduced by the bill relates to the way in which the system deals with medical practitioners who have multiple complaints or previous adverse findings made against them. In the case of Drs Reeves and Sood there had not only been multiple complaints received by the Medical Board, but in both cases a Professional Standards Committee had made findings of unsatisfactory professional conduct and had imposed conditions on them.

As this bill makes clear, the overriding object of both the Medical Practice Act and the Health Care Complaints Act is the "protection of the public". In this context, an approach that focuses exclusively on individual complaints or incidents may miss patterns of conduct or poor performance by practitioners. The proposed amendments contained in the bill will allow such patterns of conduct or the existence of multiple complaints against a practitioner to be taken into account a number of new ways.

The proposed section 140A requires that when the Board is dealing with a complaint or exercising its public protection functions, it must, to the extent they are relevant, have regard to the following matters about a practitioner:

• any other complaint against the practitioner;

• any previous finding or determination of a professional standards committee or tribunal constituted under a health registration Act; and

• the outcome of any performance assessment in relation to the practitioner.

Item [19] in schedule 1 to the bill amends the Medical Practice Act to ensure that where, as in the case of Dr Reeves, complaints are received after a medical practitioner has been struck off the register that such complaints must be considered if and when the practitioner applies to be reregistered in New South Wales.

The bill also makes two important changes to the powers of the Medical Tribunal and Professional Standards Committees, which ensures they will be able to take into account a practitioner's past conduct.

First, item [26] in schedule 1 to the bill amends schedule 2, clause 5 of the Act to clarify that where multiple complaints in relation to the same practitioner are prosecuted concurrently before the Medical Tribunal or a PSC, that body may have regard to the cumulative effect of all the material relating to all complaints when it makes factual findings and determines whether the conduct should be characterised as unsatisfactory professional conduct or professional misconduct.

Second, at present these disciplinary bodies are not permitted to have regard to evidence of a previous finding or decision by another disciplinary body in relation to a complaint that is not being concurrently prosecuted. This means the disciplinary body cannot be assisted by the previous proceedings in drawing its conclusions.

This inconsistency means that a previous finding or decision against a practitioner cannot be taken into account, even where commonsense suggests that it indicates there may be a pattern or course of professional misconduct by a practitioner. This restriction on the powers of the Medical Tribunal and PSCs is inconsistent with the requirement that in the exercise of all functions under the Act, the protection of the health and safety of the public is the paramount consideration.

4 June 2008 LEGISLATIVE COUNCIL 8111

Accordingly, item [25] in schedule 1 of the bill amends schedule 2, clause 4 of the Act to permit the Medical Tribunal and PSCs to take into account previous decisions and findings by a disciplinary body in relation to the same practitioner. Where the tribunal or PSC is of the opinion that the judgement or finding is capable of establishing that a practitioner has engaged in conduct that is sufficiently similar to the conduct alleged against the practitioner in the proceedings, it may rely on the judgement or finding in two ways:

• in making a finding that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct; and

• in exercising any of its powers of sanction under the Act.

Finally, item [3] in schedule 1 to the bill amends the definition of professional misconduct in section 37 of the Medical Practice Act to clarify that a practitioner can be found to have engaged in professional misconduct based on a series or pattern of apparently less serious instances of conduct. Considering each instance or episode of conduct individually may not give rise to serious concerns about a practitioner. But when the totality of the practitioner's conduct is considered, it may be clear that there are more fundamental issues of misconduct or poor performance involved.

The bill also contains proposed amendments to the Health Care Complaints Act mirroring those proposed to be made to the Medical Practice Act to ensure the Health Care Complaints Commission also has adequate powers to take into account multiple complaints against the same practitioner. Again, the common overriding principle is public protection.

Currently the Health Care Complaints Act does not require the Health Care Complaints Commission to consider previous or further complaints made about a practitioner when exercising its investigative and prosecutorial functions although I am advised the Commission often does so as a matter of good practice. Item [5] in schedule 2 of the bill amends the Health Care Complaints Act to clarify the Commission must have regard to previous complaints including discontinued or terminated complaints or further complaints against a practitioner.

Item [8] in schedule 2 to the bill amends the Health Care Complaints Act to require the Director of Proceedings of the Health Care Complaints Commission to consider prosecuting multiple complaints against the same practitioner at the same time.

It is critical that there is public confidence in the operation of the regulatory system. This has clearly been undermined by information which has come to light in the Dr Reeves matter, which has led to a public perception that the standards applied to medical practitioners by other practitioners give inordinate weight to professional interests, as opposed to the public interest. This perception has been exacerbated by the closed culture of Professional Standards Committee processes.

The Medical Practice Act provides for a two-tier tribunal system for the hearing of disciplinary action against medical practitioners. All matters where the complaint, if substantiated, may provide grounds for the practitioner to be deregistered or suspended are required to be heard before the Medical Tribunal. All other matters are heard before Professional Standards Committees. However, as both the Dr Reeves and Dr Sood matters indicate, PSCs may deal with serious allegations of inappropriate conduct or clinical practice.

At present under the Act, PSC hearings are required to be held in private, unless the Committee directs otherwise. Further, there is generally restricted access to PSC decisions. The unique power of the medical profession to cause harm or even death to the members of the public means that any allegation that a medical practitioner has engaged in unsatisfactory professional conduct is a matter of public interest. Further, greater openness and transparency of the process will also help build public confidence in the disciplinary system, and enhance the accountability of that system.

Accordingly, item [28] in schedule 1 to the bill amends the Medical Practice Act to make PSC proceedings open to the public, unless the PSC directs otherwise. This will mean, for example, that where a complainant objects to such proceedings from being open to the public in part or whole the Committee can make an appropriate direction to protect the interests of the complainant, in a manner similar to the operation of the tribunal at present.

At present, the Act limits the persons to whom a PSC is required to disclose its decision, although the PSC has a discretion to make its decision more widely available. In practice, PSCs almost invariably do not make their decisions publicly available. Further, where there are multiple complainants each complainant will usually only receive that part of the PSC decision that affects him or her. This means that those involved will not be aware of the totality of the PSC's findings. Item [29] in schedule 1 of the bill amends the Medical Practice Act to require that PSC decisions must be publicly available, unless the PSC directs otherwise, in a manner identical to the Medical Tribunal.

The final proposed amendment aimed at improving the accountability of PSC processes relates to the composition of PSCs. At present PSCs are comprised of two medical practitioners and one lay person. Because the decisions of PSCs require a minimum of two votes, the medical members can effectively overrule the lay member. Consistently with the other changes to PSC processes, item [26] in schedule 1 of the bill proposes adding a fourth member to PSCs who is not a medical practitioner and who is to be legally qualified. This member must also act as the chair of the PSC.

This proposal mirrors the composition of the Medical Tribunal. It will ensure greater representation of non-medical practitioners on PSCs, as well assist in the proper and fair conduct of PSC proceedings. This is particularly important given the proposal to make PSC hearings open to the public.

Since 2005, medical practitioners in New South Wales have had an ethical obligation under their Professional Code of Conduct to report adverse performance and conduct of their colleagues. However, the Medical Board advises that the level of reporting by practitioners since that time has not greatly changed. This reinforces the public's perception of a "closed shop" culture in the medical profession. This Government has therefore decided it is an appropriate time to impose legal mandatory reporting on the medical profession.

8112 LEGISLATIVE COUNCIL 4 June 2008

Item [18] in schedule 1 to the bill inserts a new section 71A of the Medical Practice Act which requires medical practitioners to make a report to the Medical Board where the medical practitioner believes, or ought reasonably to believe, that another medical practitioner:

has committed sexual misconduct in connection with the practice of medicine

is intoxicated by drugs or alcohol while practicing medicine, or

has flagrantly departed from accepted standards of professional practice or competence and that risks harm to a patient.

A demonstrated failure of a medical practitioner to report a colleague in these circumstances will be unsatisfactory professional conduct, which in serious cases may even result in that medical practitioner being deregistered.

The legislation provides protections for medical practitioners who make a report in good faith against another practitioner from legal action or other reprisals because they made a report.

The scheme focuses on serious issues of misconduct. Sexual misconduct and being intoxicated on the job are clearly matters that should be reported. The requirement to report flagrant departures from accepted standards of practice is intended to result in the reporting of only the most serious and obvious failures to comply with proper medical practice and where there is a clear potential for harm to patients.

Further miscellaneous amendments to the Medical Practice Act proposed by the bill include:

• enabling the Board to require medical practitioners to provide information about where they work, so the Board can notify their employer about any orders or conditions imposed on the practitioner; and

• requiring medical practitioners to provide the Board with evidence on an annual basis of current professional indemnity insurance coverage.

In undertaking its review, the independent review headed by Ms O'Connor consulted with a number of stakeholders, including:

• the New South Wales Medical Board;

• the Health Care Complaints Commission;

• the Australian Medical Association;

• the Chairperson of the New South Wales Medical Tribunal;

• consumer representatives;

• representatives of medical indemnity insurers; and

• the Medical Services Committee of New South Wales.

For the purpose of Ms O'Connor's further review arising out of the Dr Reeves matter, she also consulted with representatives of the Medical Error Action Group. I thank all of these stakeholders for their invaluable contributions to the legislation before the House today.

This bill will better protect the public by improving the transparency and accountability of the disciplinary system for medical practitioners in New South Wales. It will give the relevant authorities greater powers to deal with practitioners who are practising in a manner that places members of the public at risk. The provisions are measured, and carefully seek to reset the balance between the need to protect the public and the rights of practitioners to procedural fairness and the protection of their reputation and livelihood. Finally, the bill places a greater obligation on the medical profession itself to be proactive in reporting medical practitioners who are acting in a way that abuses or harms patients.

I commend the bill to the House.

The Hon. JENNIFER GARDINER [8.19 p.m.]: The Medical Practice Amendment Bill 2008 has been introduced to deal with one strand of serious systemic failure, among many others, in the New South Wales health system. It is a disgrace that the Minister for Health fails time and again to accept any responsibility for those failures. The object of the bill firstly is to amend the Medical Practice Act and the Health Care Complaints Act to provide that the protection of the health and safety of the public is the paramount consideration in the administration of those Acts. The bill is to make provision with respect to contraventions of the Medical Practice Act 1992 or the regulations under that Act that constitute unsatisfactory professional conduct. It will make provision with respect to the circumstances in which the New South Wales Medical Board may exercise its powers under the Medical Practice Act and the action that may be taken in the exercise of those powers and the subsequent termination or variation of the effects of such action. The bill will also require medical practitioners to furnish reports to the board in relation to misconduct by other registered medical practitioners. 4 June 2008 LEGISLATIVE COUNCIL 8113

Further objects of the bill are to confer certain immunities on complainants and on other persons who have provided complainants with information or otherwise been concerned in the making of complaints; to enable a professional standards committee or the Medical Tribunal when imposing an order or condition of registration on a medical practitioner to provide that a contravention of the order or condition is to result in deregistration of the practitioner; to require that a review of the suspension, deregistration or placing of conditions on registration of a medical practitioner must consider any complaints made about the person, whether they were made before or after the order being reviewed was made; and it has certain provisions relating to meetings of the board.

The bill will authorise the board to require any person to provide it with information, records or evidence—so it has very substantial powers. It will require a registered medical practitioner to provide details of the practitioner's employment; and the board will be authorised to provide information obtained in connection with its functions to the Health Care Complaints Commission and to notify any person or body the board considers it appropriate to notify of certain disciplinary action taken by the board. The bill will also provide a registered medical practitioner affected by certain discipline and the action taken by the board with a right to have the decision to take the action reconsidered and to appeal to the tribunal on a point of law. It will enable the board to have regard to other relevant complaints against a practitioner in the exercise of its disciplinary and complaint-related functions—so it is a more integrated approach to dealing with complaints. It will enable a committee or the tribunal to take into account the judgement or findings of a professional standards committee or a tribunal constituted under a health registration Act when making certain findings relating to the conduct of a registered medical practitioner and to have regard to the totality of the evidence before it when dealing simultaneously with more than one complaint about a practitioner.

The bill will enable the Health Care Complaints Commission to take into account associated complaints about a health practitioner or health organisation when assessing a complaint. It will provide that consultation between the commission and any of the registration authorities or the registrar on dealing with a complaint is to include consultation on any relevant associated complaint and will allow a discontinued or terminated associated complaint to be reopened as a result of the consultation. Again, that is a more holistic approach to examining allegations of misconduct by a medical practitioner by going back into the history of a case.

The bill makes provision with respect to the concurrent investigation and prosecution of associated complaints. It will require a committee or the tribunal to list as soon as practicable an inquiry or appeal relating to the action taken by the board and it will require that the commission must deal as quickly as practicable with matters referred to it following such action or action taken by another health registration board. It will require that the proceedings of a committee are to be open to the public unless the committee decides that that is not in the public interest and it will provide for the board to make a decision of the committee publicly available unless the committee orders otherwise. It will provide also for the appointment of an additional member of the committee who is to be legally qualified and will be appointed as chairperson of the committee.

Therefore, this very important bill comes into the House in the shadow of the horrendous revelations relating to the case of the former Dr Graeme Reeves. As I said at the outset, the bill provides that the protection of the health and safety of the public is to be the paramount consideration in the administration of the two Acts. One would have thought that that is implicit in the legislation, but we have seen that there needs to be a more explicit objective to the bill. The almost unbelievable tragedies that have befallen the patients of Dr Reeves have exposed flaws in the laws and the procedures relating to the appointment of suitably qualified medical practitioners in this State. This case goes back at least 12 years when the Hills Private Hospital warned the New South Wales Medical Board of a marked deterioration in the performance of Dr Reeves back in 1996. At that stage the chairman of the Medical Advisory Board at the Hills Private Hospital in Sydney, Dr Lewis, said he was considerably concerned about Mr Reeves' unprovoked verbal attacks on nurses, often within earshot of patients.

Dr Lewis had written to the New South Wales Medical Board in July of 1996 after a patient under the care of Dr Reeves in May 1996 died of septicaemia after giving birth because he refused to give her antibiotics. It was another year before Mr Reeves was banned from obstetrics in July 1997, but he was allowed to continue practising if he received psychiatric help. In July 1997 Dr Reeves was ordered to cease the clinical practice of obstetrics after a professional standards committee of the New South Wales Medical Board found him guilty of unsatisfactory professional conduct. In April 2002, as we know, Dr Reeves was employed by the Southern Area Health Service to practise gynaecology and obstetrics. After a call for papers in this House documents were produced that showed that a senior executive of the Southern Area Health Service and a referee had revealed in communications that Dr Reeves was "not supposed to do obstetrics". 8114 LEGISLATIVE COUNCIL 4 June 2008

The problem was that Dr Reeves was appointed anyway, and so he gained ignominy as the Butcher of Bega. On 29 May this year the NSW Health Director General, Debra Piccone, said that Dr Reeves abused and bullied patients and nurses for 20 years but the public should be comforted to know that it will not happen again. The Opposition does not believe that people should be comforted at that revelation at all. Dr Reeves worked at several Sydney hospitals and on the South Coast, but his shocking history of sexually assaulting and mutilating women who were unfortunate enough to be his innocent patients came to light only after he was struck off in 2004.

In her report to ascertain why Dr Reeves was employed despite a litany of complaints spanning such a long period of time, the former Federal Court judge Justice Deirdre O'Connor found that the Hornsby hospital, for example, continued to employ Dr Reeves from 1986 to 2000 despite there being 35 complaints about his behaviour. The first complaint received by the hospital was back in June 1986, not long after Dr Reeves was first employed there, and that involved parents whose baby died during birth. Former Judge Deidre O'Connor found that it was widely known that Dr Reeves commonly treated patients without anaesthetic or pain relief, and bullied and abused nurses and patients. She stated:

It is clear that there was limited sharing of this information by various bodies so that different organisations were operating to some considerable extent as silos. The full picture was not known by any one person or agency.

Now the Iemma Government is saying that it will be mandatory to check doctors' credentials. The traumatised patients of the former doctor have very bravely spoken about the horrors they endured at the hands of this medical practitioner. Their appalling and sick treatment is truly the stuff of nightmares. I am sure all members will join with me in extending sympathy to them and their loved ones. I simply cannot imagine the ordeals they have been through. Their sufferings include rape, molestation and mutilation.

Of course, this bill affects the operations of the Health Care Complaints Commission, which have been the subject of much scrutiny and criticism in recent years. Here we go again! The Health Care Complaints Commission's response to the complainants was to say that because Dr Reeves was deregistered their complaints would not be investigated. It must have been devastating to get that response from the so-called Health Care Complaints Commission. They had been through that terrible trauma, but they thought a government agency would deal with their complaints. They lodged their complaints but the response was that because the practitioner had been deregistered he would not be investigated.

The New South Wales shadow Minister for Health, Ms Gillian Skinner, was successful in having these matters referred to the special commission of inquiry being conducted by Mr Peter Garling and the Health Care Complaints Commission to find out how the Southern Area Health Service employed Dr Reeves and why none of the patients' complaints had been investigated by the Health Care Complaints Commission. The commission has said that it will work with the police in investigating the matter. Opposition members certainly look forward to seeing the outcome of those investigations.

It was revealed recently that the Committee on the Health Care Complaints Commission wrote to the commission wanting to know why it took 14 years to act on a string of complaints about Dr Reeves. The committee pointed out that it was particularly concerned that the commission had repeatedly failed to take into account the pattern of Dr Reeves's serious clinical failures over many years. As I said, the events involving Dr Reeves tend to suggest a systemic failure to protect the health and safety of people in hospitals in this State. The committee's chair, the Hon. Helen Westwood, has said that she agrees that there were serious concerns about the Health Care Complaints Commission and its role in investigating Dr Reeves and that the commission has work to do in some areas of its operations. That is an understatement.

As recently as yesterday, the Iemma Government claimed that the Health Care Complaints Commission contributes to the protection of the health and safety of the public by working to ensure that the community has confidence that health care complaints are properly investigated and effectively prosecuted. I do not think that piece of propaganda would wash with the people who were affected so terribly by Dr Reeves's abuse. It is simply sickening spin. There is no sign of any remorse or regret on the part of the Iemma Government, even after all these terrible revelations of inadequate or nonexistent complaints handling.

The Government claims that its paramount consideration in introducing this legislation is the protection of the public. However, it has failed to amend other legislation to require that employers check that there are no impediments to a doctor being employed as far as the Medical Board is concerned and that no matters are likely to limit the protection of the public. The Opposition believes that is an oversight. The Southern Area Health Service had a referee report on Dr Reeves stating that he was "not supposed to act as an obstetrician", but it still went ahead and signed a contract with him. That decision had both tragic and traumatic implications for many of his patients. 4 June 2008 LEGISLATIVE COUNCIL 8115

Interested parties have raised a number of concerns about this bill. The chief executive officer of the Southern General Practice Network, which covers doctors working in the South-East of the State—including Bega and Pambula, where Dr Reeves had his practice—stated that changes to the legislation to make the New South Wales Medical Board's operations more rigorous and transparent than they have been are not a bad thing. Simply addressing these issues—as the Minister stated in her preliminary remarks—will not deal with the situation that arose in Bega. The unit believes that the Government should still be held accountable for the failure of its public servants to undertake the appropriate pre-employment checks required under public sector employment processes.

The general practitioners of the far South Coast trusted that an area health service appointed specialist had been through those pre-employment checks and they referred their patients to Dr Reeves in good faith—as of course they would. Those doctors would also be shattered to learn of the fate of their patients, many of whom they would know very well because they live in a country community where it is normal for people to go to the same doctor from birth to adulthood and to send their children to that doctor. One can imagine the impact that this situation has had on the medical fraternity on the South Coast and in other areas where these things have occurred.

The Minister for Health has said that it is area health service policy to undertake proper checks. Of course, that expectation on the part of local doctors, patients and their advocates has been shattered. As some of the advocates have pointed out, those wanting to become preschool teachers must go through a full background check, but that does not appear to be true for medical practitioners.

This bill provides that reporting is required only where there has been a "flagrant departure from accepted standards". Concern has been raised about the word "flagrant". A number of people have told the Opposition that a doctor should be reported for any departure from accepted standards—that is, malpractice or misconduct—and there should be no exceptions with regard to reporting such an event regardless of whether it is a minor or flagrant departure.

The Australian Medical Association has expressed some concern that currently doctors are not allowed to have legal representation at the Professional Standards Committee, and it believes the bill involves sufficiently complex matters to warrant legal representation to ensure a fair trial. We believe that is fair. The association has also pointed out that the Minister indicated that the changes to the operation of the Professional Standards Committee would bring it closer in line with the Medical Tribunal. As doctors are allowed legal representation before that tribunal, so the Australian Medical Association believes that it is reasonable that doctors be allowed to have legal representation before the Professional Standards Committee.

The tragic Reeves saga goes back quite a way. I remind the House that the former Minister for Health, the Hon. John Hatzistergos, was operating at that time in the shadow of the truly awful revelations arising out of the Bundaberg Hospital controversies involving a considerable number of deaths. That involved Dr Jayant Patel, against whom extradition proceedings from the United States to Queensland are on foot and proceeding as we speak. The Hon. John Hatzistergos was fond of saying "dodgy doctors" were in the Government's sights. On 25 August 2006, the former Minister for Health issued a media release stating:

Minister announces shake-up of powers to suspend doctors.

He announced an urgent review to strengthen the powers of the New South Wales Medical Board to suspend medical practitioners to protect the public. He said:

I have directed NSW Health to immediately begin a review of s66 of the Medical Practice Act 1992…

I have been concerned about reports of cases where the Medical Board appears to have been fettered in its ability to suspend medical practitioners quickly.

The vast majority of medical practitioners working in NSW provide excellent care for their patients—

We in the Opposition agree with that part of his statement—

But where there is evidence of dangerous mistakes, or a pattern of behaviour, the NSW Medical Board needs to have the power to take immediate action to suspend the doctor.

I want to ensure that the Medical Board has the power to protect the community from dodgy doctors—

One of his favourite expressions—

without the suspensions being over-turned in the courts.

Protecting the community must be our highest priority.

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Perhaps that is where the Government got the first object of the bill, because it had not acted before. The Hon. John Hatzistergos then announced a review. On 10 January 2007, he announced there would be some changes to the legislation that would speed up hearings of the Medical Tribunal and the Professional Standards Committee and would give higher priority to serious matters. The changes to the legislation would strengthen the powers of the Medical Board and the Health Care Complaints Commission to take account of the entire complaints history, including previous complaints, assessments and findings, when investigating medical practitioners. Those provisions are in this current bill so obviously he did not get enough success from previous decisions. The changes to the legislation would also ensure that suspended medical practitioners could not go directly to the court to exploit legal technicalities to overturn their suspension while under investigation. He said:

Under these proposed changes to the law, health authorities will have better procedural efficiency to give the community added protection from dodgy doctors—

That expression yet again—

We won't tolerate the handful of shonks who bring disrepute to the medical profession.

That was in January 2007 and here we are in mid 2008 having to deal with the aftermath of the terrible Reeves case. The call for papers by the Opposition in his House established that a criminal check and a referee check on Graeme Reeves were done by the then Deputy Director of Clinical Services of the then Southern Area Health Service, Dr Jon Mortimer. Dr Mortimer is now the Deputy Director of Clinical Services for what is now the Greater Southern Area Health Service and is on full pay and currently under suspension.

The beleaguered Minister for Health claims that no background checks were performed. As the Opposition in the other place maintains, the Minister has misled Parliament. We contend that she should resign and if she does not resign, she should be sacked. The referee check by Dr Jon Mortimer involved a phone call and then a written note, and it includes those amazing words that the doctor is "okay when normal" and, of course, those infamous words, "is not meant to practise obstetrics." These notes were recorded two days before Dr Reeves's contract was signed, and the rest is history. We in the Opposition look forward to Mr Garling's report on these astonishingly ghastly matters.

I will be interested to see whether the Hon. Michael Veitch speaks on this bill. I know he has not made any comments in the House on this matter to date. His name, Veitch, is in the minutes of the Medical and Dental Appointments Advisory Committee of the area health service down south back in April 2002. The then area health service board noted the following recommendation:

Bega and Pambula Hospitals:

That Dr Graeme Reeves be offered the position of specialist obstetrician and gynaecologist.

Moved Kemp/Veitch

I guess Mr Veitch carries that burden heavily. A number of professional bodies have commented upon the bill before the House. The president of the New South Wales branch of the Australian Medical Association at the time supported the greater scrutiny of his profession that is embedded in this bill, saying that it has become apparent that checks on those practising medicine in New South Wales were not up to scratch in the past few years. The community must be able to rely on the processes that are supposed to bring inappropriate practices to the attention of the authorities and ensure they are acted on and, better still, prevented.

Dr Andrew Dix said that the New South Wales Medical Board supports the bill. Commenting on the existing situation, he said that it is more than a code of ethics in New South Wales; it is a professional, legal obligation on doctors. These provisions will give encouragement to those doctors who might be wavering, who are not quite sure, and we therefore support the bill. The President of the Australian Medical Association, Dr Rosanna Capolingua, spoke of Dr Reeves' case and highlighted the need for protective legislation. The idea that people need to be protected from doctors is counterintuitive to me. We must face the reality that these terrible things have happened and we are now debating this bill. Dr Capolingua said:

I think that the cases we have been talking about contribute towards the need for this sort of protective legislation to evolve so that doctors can make clear complaints about their colleagues if they are concerned, without feeling they are jeopardising themselves in the process.

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That could be replicated across Australia. It is important that the provisions give people in the profession and in the health system a sense of security so that they do the right thing by patients who may be damaged. I cannot imagine a similar case to that of Reeves ever coming to light—and I certainly pray that it does not—but people who know about that sort of behaviour and mistreatment should be able to work in a community and professional context that allows them to speak out, without fearing repercussions to their careers and wellbeing. The Opposition supports the legislation.

Again, I highlight the terrible systemic failures in the health system under the Carr-Iemma governments. I note that Mr Iemma is a former Minister for Health in New South Wales. We believe it would be in the best interests of New South Wales if the Hon. Reba Meagher were sacked. She does not seem to want to face up to her responsibilities, do the decent thing and resign. That would be a tiny comfort to the people who have suffered so terribly in the circumstances that have provoked the need for this legislation. I sincerely hope that the exposure of the Reeves case and the passage of this bill is some small consolation to those people, particularly all those women who have suffered such great pain, both physical and psychological, and that it may serve to protect any other patients in the future from suffering so terribly and bizarrely at the hands of that micro number of rogue doctors who exist from time to time and whom I hope we have dealt with as they deserve, with the full force of the law.

The Hon. MARIE FICARRA [8.52 p.m.]: The purpose of the Medical Practice Amendment Bill 2008 is to increase the powers of relevant authorities, particularly the New South Wales Medical Board and the Health Care Complaints Commission to deal with complaints about medical practitioners and to increase transparency in this improved process. It will introduce mandatory reporting requirements on medical professionals to report any fellow medical practitioner who is suspected of harming or abusing patients specifically in three areas—sexual abuse, being intoxicated by drugs or alcohol whilst practising, and engaging in conduct which could harm others. The bill addresses the need to act quickly when situations are serious, such as automatic suspension for doctors found in breach of their registration.

We are fortunate that most doctors are hardworking and dedicated individuals who are committed to caring for the health of their patients. They usually work long hours in high-stress situations. They are underpaid and overworked, especially in our public health system. The recent publicity of the infamous Dr Graeme Reeves case has brought this issue to a head. We have seen previous instances of malpractice reported in the media in the past, and the court battles and tribunal hearings that have followed have shown that the system needed to be greatly improved to enable justice to be properly administered. This bill will increase the level of transparency of the proceedings of the Professional Standards Committee and the performance review panels associated with the New South Wales Medical Board operations.

In 1997 the New South Wales Medical Board's Professional Standards Committee ordered Dr Reeves, obstetrician and gynaecologist, to cease practising and undergo psychiatric treatment. It should be noted that there was the issue of two patient deaths at the time. In 2002 the Southern Area Health Service employed Dr Reeves as a visiting medical officer. He subsequently was alleged to have mutilated and sexually assaulted many of the patients during his employment. Dr Reeves was deregistered in 2004 but the Health Care Complaints Commission failed to properly investigate complaints lodged by many of Dr Reeves' victims. The New South Wales Police Force is still investigating a link to the deaths of 15 mothers and babies.

We have had media revelations almost on a daily basis as to exactly what was known by our health bureaucracy between 1996 and 1998. The New South Wales Medical Board received at least two psychiatric reports of concerns about Dr Reeves' mental state of mind, including paranoia, insomnia, uncontrolled anger and aggression, inability to handle criticism and associated eating disorders. The board had knowledge of the doctor's intolerance of midwives and that he accused pregnant patients of emotional blackmail, clearly all deeply worrying signs that Dr Reeves should not be allowed to practise. We have learnt that The Hills Private Hospital warned the New South Wales Medical Board of a marked deterioration in Dr Reeves' performance as early as mid-1996. The Sydney Morning Herald reported on 10 March this year that:

The chairman of the Medical Advisory Board at the Hills hospital, Alfred Lewis, said he was considerably concerned about Mr Reeves's "unprovoked verbal attacks" on nurses, often within earshot of patients.

Dr Lewis had written to the Medical Board on July 31, 1996, after a patient under Mr Reeves's care in May 1996 died of septicaemia after giving birth because he refused to give her antibiotics.

It was another year before Mr Reeves was banned from obstetrics, in July 1997, but allowed to continue practising if he received psychiatric help.

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We now discover that this doctor is responsible for sexually assaulting and botching gynaecological and obstetric procedures on hundreds of women, yet the system was so slow to respond. I congratulate these female victims on their tenacity. They ploughed on through the mire of uninterested and non-responsive, defensive bureaucrats. The system, as it existed, allowed this doctor and perhaps others to escape true detection for almost 20 years. The Minister for Health has the temerity to stand up in that other place and reassure the public that no reference checks were conducted on Dr Reeves. Her staff's inability to find out the truth is no excuse. The Minister clearly misled this Parliament and has lost the faith of the public that we serve.

I congratulate the local member for Bega, Andrew Constance, on his support and tireless representation from early 2007 on behalf of these women, and the Opposition shadow Minister for Health, Jillian Skinner. They have ensured that these women, their partners and families have a voice. If it were not for these courageous patients—traumatised women—we would not have had the Garling special parliamentary commission of inquiry into our health system, the O'Connor report or this bill.

Justice O'Connor's report confirmed that executives of the Greater Southern Area Health Service knew that Dr Reeves had been illegally practising obstetrics at Bega and Pambula hospitals as early as November 2002 and again twice in January 2003, but allowed him to continue in gynaecology until July 2003. The report shows the full extent of complaints made by medical staff and patients dating back to 1986 at Hornsby hospital and demonstrates a spectacular failure by New South Wales Health to communicate professionally and effectively within its own network. I quote from Justice O'Connor's report:

The failure to make direct enquires of the Medical Board is the main oversight in the Southern Area Health Service procedures.

We hear from the Government that background checks are meant to be policy, and that this has been the case for many years. But clearly the system failed so that we as legislators, confronted with the consequences of our own system, need to improve it as the Opposition is requesting. We need to mandate the checks in legislation with penalties for breaches by employers, our public servants. If it is good enough to fine doctors for not reporting then it is good enough to dismiss bureaucrats for not checking and acting upon those checks.

This is the same Minister who told the Parliament that background checks had not been made into Dr Reeves, when a document revealed that the Deputy Director of Clinical Services in the Southern Area Health Service undertook a background check in April 2002. And, while the bureaucrat has been stood down, the Health Minister continues to frustrate and disillusion the victims. Let me state at the outset that the Coalition is most supportive of this bill, but we wish to highlight that the Government and the health Minister missed the opportunity to amend the Health Services Act to make it mandatory for a hospital or employer of a medical practitioner to undertake compulsory background checks of doctors they employ and to act on any concern expressed.

We hear the Government say that there is a policy directive that these background checks be carried out, but there is no legislative obligation as there is with employees working with children, such as preschool workers and childcare centre workers. I see this as a similar responsibility of care to all patients. Honest doctors would have nothing to fear—and my husband is a public health physician—bureaucrats would be forced under law to do their job, and the public would be protected. So what is the problem?

Of great concern is the fact that we hear that a senior health department executive involved in the hiring of Dr Reeves warned during a telephone reference check on 11 April 2002 provided by a medical colleague of Dr Reeves that the doctor "was not meant to do obstetrics". Indeed, a diary note was made. Why was this not properly investigated? It was a direct warning that there was more to Dr Reeves than met the eye. Any intelligent bureaucrat would have followed up on that. I quote from Justice O'Connor's report:

Enquires should also have been prompted by the fact that during referee checks carried out on Dr Reeves, a clinician raised the issue about Dr Reeves' practice rights in obstetrics.

This is the reason the Coalition is urging the Government to make these background checks mandatory, not just recommended, and to ensure that these checks are treated seriously and that any irregularity is investigated. Dr Reeves was appointed one week after this instance without a check being made of his qualifications with the New South Wales Medical Board. How did we find out about this negative verbal reference? Not from the Government investigating but from the Opposition calling for the release of all papers and documents relevant to the case. In total, 23 documents could be scrutinised. This is another example of the Government failing to do its job properly. 4 June 2008 LEGISLATIVE COUNCIL 8119

Indeed, the New South Wales Medical Board had warned the Southern Area Heath Service that Dr Reeves was working illegally but he was permitted to continue to practise on the South Coast. We know that specialists are hard to find in certain regions of the State. But to accept doctors with this sort of history and allow them to practise gynaecology and obstetrics on women is unconscionable. Supposed keyhole surgery for ovarian cysts resulted in one poor woman having her external genitalia removed. She was bedridden for several weeks due to this mutilation. The system failed her greatly. Are we reading about a Third World nation? Given this bill in such a circumstance, medical colleagues would be compelled to report this gross malpractice rather than adopt the attitude, "I do not want to get involved" or "I do not want to dob in my colleague." It will now be an offence to fail to report.

I wish to highlight certain sections of the bill. The bill amends the Medical Practice Act 1992 and the Health Care Complaints Act 1993. It gives the board and the Health Care Complaints Commission the ability to take into account previous complaints and adverse findings when dealing with a complaint against a medical practitioner. It provides for the appointment of at least one non-medical practitioner on section 66 inquiries. At present Professional Standards Committee hearings are held in private, unless the committee directs otherwise, and access to Professional Standards Committee decisions is restricted.

The bill makes the disciplinary process more transparent by making the proceedings of the Professional Standards Committee open to the public, unless the committee directs otherwise. It imposes mandatory reporting requirements on the medical profession, requiring a medical practitioner to report to the Medical Board a fellow medical practitioner whom he or she believes has engaged in sexual misconduct, is intoxicated by drugs or alcohol at work, or has flagrantly departed from accepted standards of practice. Under the amendment the board has the power to require any person to provide it with information, documents or evidence to this effect. This may apply to hospitals, area health services, or other health service providers.

The bill amends the Health Care Complaints Act to reflect changes to the Medical Practice Act, giving it powers to take into account multiple complaints against the same practitioner, and it allows a discontinued or terminated complaint to be reopened. If there is a prohibition against a doctor acting in a particular specialty that prohibition should apply when they are employed. If there is a deregistration order in respect of a doctor that order should be enforced, putting an end to that doctor practising again. Let us have on the record that on 6 May 2008 the Minister told the other place:

This Government has changed the way doctors are employed in area health services and from 2005 it has required the mandatory checking of doctors' credentials.

The Minister then said on 8 May:

On more than two occasions I have told this House and I have been quoted at press conferences as saying that as a direct result of Camden and Campbelltown hospitals in 2004-05 changes were made to the New South Wales Health that would mandate employers checking the background of their employees.

The Health Minister is wrong. There is no legislation that requires the mandatory checking of a doctor's credentials. Whilst New South Wales Health has a policy covering this issue, it is obvious that the Government's policies have been ignored. A policy or a guideline is just that. Employers are not obligated to follow guidelines. This unsatisfactory response by the Government, and the Minister's obstinate refusal to address this deficiency, has meant that the Coalition shadow Minister for Health, Jillian Skinner, the member for North Shore, has had to give notice to introduce a private member's bill that will cover this issue: the Health Services Amendment (Mandatory Background Checks of Medical Practitioners) Bill.

A number of people have raised concerns about the Medical Practice Amendment Bill. The Chief Executive Officer of the Southern General Practice Network unit, which is located in the southern part of New South Wales and covers the Bega and Pambula areas, wrote to the member for North Shore, Jillian Skinner, as follows:

Changing the legislation to make the New South Wales Board more rigorous and more transparent than it has been is not a bad thing. However, simply addressing these issues does not, as the Minister makes out in her preliminary remarks, address the issues seen in Bega.

The Government should still be held accountable for the failure of its public servants to undertake the appropriate pre-employment checks as are required under public sector employment processes.

The general practitioners of the Far South Coast trusted that an Area Health Service appointed specialist had undergone these pre-employment checks and referred to Dr Reeves in good faith. 8120 LEGISLATIVE COUNCIL 4 June 2008

It is tragic that general practitioners referred their patients, many of whom had been their patients for many years, to Dr Reeves for specialised treatment because they trusted that the area health service had made reference checks and was satisfied with his qualifications. They have heard the Minister for Health say that it is a policy for area health services to undertake such checks. This is clearly untrue, and the patients scarred physically and emotionally for life know it to be untrue.

The Australian Medical Association points out that currently doctors are not allowed to have legal representation at the Professional Standards Committee. It points out that the bill is sufficiently complex to warrant legal representation to ensure a fair trial. The association noted that the Minister in her agreement in principle speech indicated that the changes to the operation of the Professional Standards Committee would bring it closer in line with the Medical Tribunal. The association states that, given that doctors are allowed legal representation before the Medical Tribunal, it seems entirely reasonable that doctors should be allowed representation before the Professional Standards Committee. I ask the Minister, or the Parliamentary Secretary, to address this issue in reply. Assurances have also been sought that the legislation will result in not only greater transparency of the Professional Standards Committee but also greater transparency in proceedings of the performance review panels. I would ask the Minister, or the Parliamentary Secretary, to also address this issue in reply.

The bill is vital if we are to restore some degree of confidence to the New South Wales health system. Doctors, nurses and paramedical staff, along with the public, have voiced their concerns during the recent incidents at Royal North Shore Hospital and Bathurst Base Hospital and at the many public hearings of the Special Commission of Inquiry that have been held around the State. Issues such as overcrowded and underresourced emergency departments, growing waiting lists, unhappy ambulance officers and overworked public hospital staff have caused 60 per cent of our nurses and doctors to seriously consider leaving our health system in the last 12 months. That is a sad state of affairs, as many thousands of hardworking medical professionals do their job so well under trying circumstances.

The bill may restored some of the public's faith that there will be genuine checks and balances to ensure the standard of medical care received in New South Wales is acceptable. It will also give those dedicated medical and nursing staff some protection in coming forward and disclosing information that is vital to the safety and health of their patients. It is to be hoped that we will never see another "Butcher of Bega" nightmare in this State again.

On behalf of the Coalition I again express disappointment that the Government has missed an opportunity by not including a mandatory requirement for a background check of the qualifications and registration of medical practitioners, and a mandatory requirement that future employers act upon the advice they receive from such reference checks. If a check had been made before the employment of Dr Reeves the women in Bega, Pambula and other areas of the State, such as The Hills and Hornsby, and in private and public hospitals where Dr Reeves worked over the years, would have been spared the horrific mutilations, crude and rough deliveries of their babies and the gross sexual assaults perpetrated on these innocent women in a health care setting. Until legislation is passed to make background checks on medical personnel mandatory there remains the potential for another disaster where no-one will be held accountable. The Coalition supports the legislation but expresses great disappointment that it does not go far enough.

Reverend the Hon. Dr GORDON MOYES [9.12 p.m.]: I rise as a member of the Christian Democratic Party to speak about the Medical Practice Amendment Bill 2008. The objectives of the bill are to amend the Medical Practice Act of 1992 and the Health Care Complaints Act of 1993. The purpose of the bill is to improve public protection within the health system by providing the Health Care Complaints Commission and the New South Wales Medical Board with improved powers to deal quickly and effectively with complaints about medical practitioners. The bill also is intended to improve the transparency and accountability of investigative and disciplinary processes, and places mandatory reporting requirements on the medical profession to report medical practitioners and colleagues whose conduct may be harming or abusing patients.

The main provisions of the bill arise out of an independent review in 2006, chaired by the former Federal Court Judge Deirdre O'Connor, after the criminal conviction of general practitioner Ms Suman Sood for unlawfully administering a drug to a woman with intent to procure miscarriage, and unlawfully causing a woman to take a drug with intent to procure miscarriage. I have spoken about Dr Sood previously in this House and I will not do so again. Likewise, the bill has been strengthened following the revelations about the so-called Butcher of Bega, Dr Graeme Reeves. Others have gone into great detail as to the allegations concerning Dr Reeves, which I do not intend to comment on except to say that the shockwaves of the case have severely 4 June 2008 LEGISLATIVE COUNCIL 8121

undermined public confidence in the State's medical system, and that confidence will not be easily restored. Both practitioners were able to keep practising for a considerable period of time before their matters came before the medical tribunal, despite a series of complaints and concerns raised against them.

The additions to the Medical Practice Amendment Bill 2008 recommended by the O'Connor review include proposals to introduce a guillotine provision that allows the identification of serious conditions which, if breached, would warrant immediate suspension or deregistration; require the urgent section 66 reviews, those that consider the suspension of a medical practitioner, to include non-medical representatives; require Professional Standards Committees, those that judge if standards have been compromised, to include a legal representative to chair proceedings; overturn and reverse the current presumption that Professional Standards Committee hearings are confidential and their findings should not be published; and require the registration authorities to consider complaints in registration application and proceedings, including those complaints received after deregistration has occurred. The community wants more reassurance that if a doctor breaches a serious condition that is attached to their registration then they face being immediately suspended or deregistered. Improving the transparency of decision making means greater public knowledge of outcomes and a better understanding of how those outcomes are reached.

I now turn to the changes to the Medical Practice Act, which focuses on five key areas. The first key change in the bill involves increasing public protection. The New South Wales Medical Board's powers, by virtue of section 66 of the Medical Practice Act, are to be amended in five ways. Firstly, item 8 of schedule 1 to the bill clarifies that action taken under section 66 must be guided by protection of the public interest. The board is no longer required to limit itself to the least restrictive option but instead should look to the outcome that best addresses the statutory purpose of the protection of the public or is in the public interest.

Under section 66 of the Medical Practice Act 1992 the board must, if at any time it is satisfied that such action is necessary for the purpose of protecting the life or physical or mental health of any person, either suspend a medical practitioner or impose conditions upon the medical practitioner's registration. In such circumstances the board is to convene an inquiry as soon as is practicable. These inquiries are akin to injunctive action, where the board acts rapidly and with minimum formality to suspend or place conditions on a practitioner whom it considers poses a threat to the health or safety of any person. This is done in anticipation of an early investigation and finalisation of the matter in a more structured setting. The bill includes the insertion of a provision expressly requiring the medical board to consider any previous complaints in reregistration proceedings, even those that were received after deregistration.

Procedural provisions dealing with emergency suspension processes under section 66 of the Act are to be strengthened in a range of ways, including providing the board with powers to require production of documents or other information for the purpose of a section 66 inquiry, and enabling the board to provide any information obtained under these powers to the Health Care Complaints Commission; providing the board with a power to remove or alter conditions, or to terminate an order of suspension; providing the board with power to notify any person the board considers appropriate of action taken under a section 66 inquiry; restricting the right of practitioners to apply to the Supreme Court for review of a section 66 decision until after the practitioner has exhausted a new right of appeal to the chairperson or deputy chairperson of the medical tribunal; and requiring medical practitioners to provide the medical board, where requested, with information about where the medical practitioner works, so the board can notify those facilities about any orders or conditions imposed on the practitioner.

The second key change in the bill is mandatory reporting. For the first time in Australia the bill requires mandatory obligations on doctors, although it has been the practice in other professions, to report serious misconduct by fellow doctors. It has been the failure to have mandatory reporting that has given rise to the concept of a closed shop attitude—an old boys club, if you like. The key features of the system include that practitioners will be required to report colleagues to the New South Wales Medical Board where they have a reasonable belief that serious misconduct has occurred. Mandatory reporting will apply to three key areas of serious misconduct: sexual abuse in the practice of medicine; where the doctor concerned is intoxicated by drugs or alcohol at work while practising medicine; or has flagrantly departed from accepted standards of professional practice or competence, and therefore, risking harm to another person.

A few years ago a well-known, high-profile, Macquarie Street doctor asked me to give him a character reference before the Medical Tribunal, as he had been reported for allegations of sexual abuse in the practice of medicine. He said he had departed from the accepted standard of professional practice but his excuse was that he was fairly drunk at the time. When I told him that I would recommend to the tribunal that he should be 8122 LEGISLATIVE COUNCIL 4 June 2008

suspended immediately and deregistered he decided to ask someone else to give him a character reference. The State's medical profession has welcomed the changes. Dr Andrew Keegan, president of the New South Wales branch of the Australian Medical Association, supported the move to greater scrutiny in the April edition of Australian Doctor magazine. Dr Keegan said:

It has become apparent that checks on those practising medicine in NSW were not up to scratch in the past few years. The community must be able to rely on the processes that are supposed to bring inappropriate practice to the attention of the authorities, and ensure it is acted on and better still prevented.

The Federal President of the Australian Medical Association, Dr Rosanna Capolingua, told the SBS Insight program on 15 April 2008 that the case of Dr Reeves and others had highlighted the need for protective legislation. Dr Capolingua said:

I think that the cases we have been talking about contribute towards the need for this sort of protective legislation to evolve so that doctors can make clear complaints about their colleagues if they are concerned without feeling they are jeopardising themselves in the process, and I think that's something that probably would be replicated across Australia.

Reporting will be restricted to actions while practising medicine. Therefore, doctors will not be expected to report on the private actions of colleagues outside their medical practice. Failure to report will be a contravention of the Act and, in turn, may constitute unsatisfactory professional misconduct. In serious cases, not reporting a colleague may be considered professional misconduct and the practitioner who does not report may be liable to be struck off the register. For many years I worked on an ethics committee for clergy. It was a most important part of the conduct and ethical standards for clergy. People were required to report misconduct. Those who reported were not to be jeopardised in their own career, and those who were reported were dealt with swiftly and sternly because they had let down the whole profession by their misconduct.

The third aspect of the bill relates to increased transparency and accountability of the disciplinary process. The Reeves case has led to an ongoing public perception that the medical profession places the protection of its own regulations ahead of the welfare of patients. A code of conduct that sets a professional and ethical obligation on medical professionals to report was introduced in 2005, but the public perception of a closed shop culture and a profession that protects its own is still in place. To overcome this perception the Government has proposed to require urgent section 66 reviews to include non-medical representatives; to require professional standards committees to include a legal representative to chair proceedings; and to overturn the present presumption that professional standards committee hearings are confidential and that their findings will not be published.

The fourth aspect of the bill relates to managing multiple complaints. Significant changes have been made to the powers of disciplinary bodies to have regard to multiple complaints and previous findings or judgements about practitioners. These changes include requiring the Medical Board to have regard to other matters involving practitioners, including any other complaint or a previous finding or judgement by a disciplinary tribunal, in the exercise of the board's complaint and public protection functions. The bill provides that where complaints are prosecuted concurrently before the Medical Tribunal or a professional standards committee, the tribunal or committee may have regard to all the evidence before it in making factual findings that a practitioner is guilty of unsatisfactory professional conduct or professional misconduct. The bill enables the Medical Tribunal or a professional standards committee to rely on previous judgements or findings of a professional standards committee or tribunal for the purpose of making a finding that a practitioner is guilty of unsatisfactory professional conduct or professional misconduct, where the previous conduct is sufficiently similar to the conduct alleged against the practitioner in the proceedings.

A number of amendments have been proposed to the Health Care Complaints Act 1993. The changes include amending the objects section to provide that the protection of the health and safety of the public is the paramount consideration in respect of all functions under the Act. The legislation also requires through assessment, investigation or prosecution the Health Care Complaints Commission to action as soon as practicable matters that have been subject to emergency procedures. It requires the commission to have regard to other complaints against a practitioner or to any previous finding or judgement by a disciplinary tribunal or committee when making an assessment and to consider undertaking concurrent investigations of all relevant complaints about the same practitioner. This is a most logical and sensible step. Finally, the bill requires the Health Care Complaints Commission's Director of Proceedings to consider concurrent prosecution of multiple complaints against the same practitioner.

However, the bill does not go far enough in implementing policy designed to ensure that no-one in the State's health system has to experience the trauma and shame that victims encountered from the practices of 4 June 2008 LEGISLATIVE COUNCIL 8123

Dr Sood and Dr Reeves. These victims demand justice and deserve answers and a clear explanation from the Minister for Health as to how those doctors remained in the system without scrutiny. The bill must go an extra step by containing provisions that make it mandatory for employers to undertake background checks of medical practitioners before they are appointed.

In a previous occupation I was responsible for employing a large number of doctors, particularly psychiatrists, in private hospitals and as chair of the board of a significant public hospital. It is interesting to reflect upon this issue because when employing doctors in private hospitals I initiated major checks on them and personally rang their previous place of employment to gain detailed information about their private practice. As to my responsibilities in the public hospital system, New South Wales Health had advisory recommendations only and discouraged me from making background checks on doctors who were already employed by New South Wales Health. The Government should ensure that referee checks are conducted on doctors by senior health executives before a credentials committee, medical appointments advisory committee or other appointments function of a health service approves their appointment.

The bill addresses two key issues: patient protection and the accountability of the statutory disciplinary system. It is hoped that the patient protection role of our regulatory system will be reinforced and enhanced by a system of mandatory reporting that focuses on serious misconduct and provides protection for those who make such reports. Strengthening the emergency powers of the Medical Board to allow consideration of multiple and similar complaints will give the regulatory authorities a greater range of options when faced with poor practice or continued poor or substandard practice by doctors. The changes ensure a far greater level of accountability and transparency by opening up the professional standards committee to external scrutiny and by ensuring a greater role for non-medical practitioners.

I encourage the Minister to include mandatory background checks prior to any future appointments in order to protect the public, to act on pre-employment checks in order to ensure that rogue doctors do not fly under the radar, and to ensure that the medical profession will no longer operate under a shroud of secrecy protected by self-regulation and confidentiality clauses. The protection of the public is the paramount consideration when it comes to medical regulatory and disciplinary functions. I welcome the Medical Practice Amendment Bill and I commend it to the House.

Ms LEE RHIANNON [9.28 p.m.]: The Greens do not oppose the Medical Practices Amendment Bill 2008. However, we are concerned about some aspects of it. The bill is a direct response to the tragic debacle surrounding Graeme Reeves and various appointments of Dr Suman Sood. The failure of multiple levels of the public service and the medical establishment to protect the safety of patients in these cases suggests that an in-depth review and reassessment of the legislation and practice is necessary.

Our concerns, and that of some of the practitioners we have consulted with, relate to the mandatory reporting aspect of the bill. It is important to note that although the recommendations of the review of Medical Practice Amendment Bill 2008 by former Federal Court judge Deirdre O'Connor, Professor Peter Castaldi and Mr Vernon Dalton is responsible for many of the changes proposed in the bill, the review does not recommend mandatory reporting. In the Reeves case it appears that other medical practitioners, nursing and midwifery staff at the hospitals in which Dr Reeves worked made multiple complaints. It was not a case of the medical staff closing ranks, but rather a case of systematic bureaucratic failings and human error that prevented complaints being acted upon in a definitive and timely matter.

It should be remembered that after being reappointed by Hornsby hospital—despite being under investigation by health authorities, being banned from practicing obstetrics, and having dozens of reports against him—it was not until midwives at Hornsby hospital refused to work with him in December 2000 that Dr Reeves was finally sacked. The bill defines reportable misconduct as practising medicine while intoxicated, flagrantly departing from accepted standards of professional practice and competence, and engaging in sexual misconduct in connection with the practice of medicine.

We have to get the balance right. We do not want doctors operating in a climate of fear and suspicion that would impede them in carrying out their jobs. But we need changes to reassure the public, to ensure their safety and to compel medical practitioners to be more vigilant in reporting flagrant malpractice and misconduct. Some medical professionals are prone to be reluctant to speak out about problems they witness, whether through fear, collegiality, and a misguided sense of loyalty or indifference. One doctor I spoke with discussed the tendency of doctors to stick together. He felt this tendency was inculcated in the profession at medical school. He said that on witnessing errors there is sometimes a feeling of "There but for the grace of God go I", and that 8124 LEGISLATIVE COUNCIL 4 June 2008

at other times a fear of being attributed with ulterior motives prevents whistleblowing. This doctor told me he once failed to report a clearly ill general practitioner because he worked in the same area as the doctor concerned and was worried that any complaint by him would appear to be the result of professional rivalry.

We need a rigorous process with proper investigative mechanisms to avoid abuse of the system. Doctors will obviously need very explicit guidelines relating to what type of conduct is reportable and what is not. We want to ensure that these provisions are closely monitored, with regular reviews, and to this end we propose to amend the bill to insert a review clause to establish a review group comprising medical practitioners, union representatives, consumer health advocates and community members. The review would examine the practical implementation and actual effect of the changes, specifically the mandatory reporting requirements, within 18 months of the bill taking effect.

In what circumstances will non-reporting be seen as a breach? Would a third-hand conversation overheard in the tearoom constitute reportable misconduct? If a medical practitioner is found to have engaged in reportable misconduct, will all his or her colleagues be retrospectively charged with a breach? There will also be a requirement for a substantial effort to ensure that the system of reporting is uniform and standardised in all hospitals across the State. This is a very delicate area and it will need careful monitoring. We are pleased that subsequent provisions in this bill provide protection and information to complainants. Increased education, cultural change and the provision of discreet avenues to report problems are also necessary to ensure that staff feel as secure as possible when making complaints.

Ms O'Connor reported that many of the serious systemic deficiencies that occurred in the Reeves case have been addressed in legislative and administrative changes. She highlights the requirement introduced in August 2005 that the chief executive of public health organisations must report to the New South Wales Medical Board any conduct suspected to constitute professional misconduct or unsatisfactory professional conduct. However, Ms O'Connor notes there is no equivalent obligation on private hospitals. She recommends extending this requirement to the administrators of private hospitals, and we strongly support this recommendation.

Another area of concern relates to background employment checks. The Opposition has drafted a bill— the Health Services Amendment (Mandatory Background Checks of Medical Practitioners) Bill 2008—that would require compulsory background employment checks. It seems astonishing that this does not already happen as a matter of course, and should clearly be a requirement of the employment process. In the Reeves case, it could have prevented countless tragic incidents. However, obfuscation and inaccuracies by the Minister make it very difficult to ascertain whether checks were carried out. Minister Meagher has said on two occasions in the lower House that no background checks were carried out, but Ms O'Connor's report clearly states that some checks were performed and that the Department of Health knew of an issue with Reeves's obstetric practice when it hired him.

The O'Connor report states that changes to policies in 2005 clarified that health services must contact the New South Wales Medical Board directly to make registration checks on medical practitioners. NSW Health has also said it will introduce a service check register. We welcome these changes but again note that the checks carried out by the Department of Health in the Reeves case appear to have had no effect on his subsequent employment, despite the disturbing findings. It is also obvious that some of the sharpest failings came about through a failure to communicate and share information. Ms O'Connor reported that health department organisations acted as silos, completely neglecting to share important information such as patient and staff complaints.

The Parliament's Legislation Review Committee identified issues around potential breaches of civil liberties regarding the presumption of innocence and the right to a fair trial in relation to sections of this bill. Proposed section 140A allows the New South Wales Medical Board where relevant to have regard to other complaints about the practitioner, any previous findings or determinations of a professional standards committee or tribunal constituted under a health registration Act, and the outcome of performance assessments. Item [26] of schedule 1 also clarifies the ability of the Medical Tribunal of New South Wales to have regard to the cumulative effect of a practitioner facing multiple complaints prosecuted concurrently. We agree that this is dangerous territory and we have serious concerns about a quasi-judicial body having the ability to override such fundamental principles of justice. We would not object to such information being disclosed after a complaint has been assessed and at the time sanctions are being imposed.

We acknowledge that identifying patterns and examining the totality of a situation is crucial in many cases of ongoing medical malpractice or negligence, and we contend that such patterns should correlate to the 4 June 2008 LEGISLATIVE COUNCIL 8125

severity of any sanctions. The Legislation Review Committee referred this issue to Parliament for attention and we look forward to the Government's response to the committee's request that this contentious provision receive attention. The O'Connor review consistently recommends more transparency and accountability at all levels. The Greens agree that increasing public and practitioner knowledge and education and increasing accountability will further the shared objective of a safe and functional health system.

I join with other members who have given great credit to the many patients and staff who have come forward to help us move forward to give greater protection to people who interact with the health system.

Reverend the Hon. FRED NILE [9.40 p.m.]: I support the Medical Practice Amendment Bill 2008. I also support the detailed presentation on this important legislation of my colleague Reverend the Hon. Dr Gordon Moyes. I congratulate Andrew Constance, the member for Bega, for his persistent efforts in publicising the activities of Dr Graeme Reeves, who, as we have heard, has been nicknamed the "Butcher of Bega" for his abuse of hundreds of patients and even the death of some patients. He abused and mutilated patients while pretending to carry out medical procedures that were of no benefit whatsoever.

It is a pity that Mr Constance had to go to such lengths to get results. He even paraded patients before the media to get more direct action and a response from the Government. The Government was slow to respond to that very serious situation. Former Federal Court Judge Deirdre O'Connor conducted an inquiry and produced a very damning report that I believe has prompted the Government to introduce this legislation to rectify a number of very serious omissions or blockages in the system, which is supposed to provide high-quality health services for patients and protection for the public. In this case it failed dismally.

I am pleased that the Government has introduced this legislation, which will increase public protection, provide for mandatory reporting and increase transparency and accountability of the disciplinary process. It also provides a simplified process for managing multiple complaints and amends the Health Care Complaints Act. I hope that when these measures are enacted we will not have another case like that involving Dr Reeves in New South Wales. I support the bill.

The Hon. HENRY TSANG (Parliamentary Secretary) [9.41 p.m.], in reply. I thank members for their thoughtful contributions to the debate. The key changes in the bill seek to ensure that rogue doctors can never again fly under the radar and that the medical profession will no longer operate under a shroud of secrecy and be protected by self-regulation and confidentiality. Doctors will now be scrutinised like any other professionals.

If passed, this bill will provide the most robust system of public protection from potentially dangerous doctors in the country. It has been well received by our colleagues in other States and Territories, who may well follow our lead. The legislation has been endorsed by the key representatives of the medical profession and has been welcomed by the Federal and New South Wales divisions of the Australian Medical Association and the New South Wales Medical Board.

The two key aims of the proposed changes are better patient protection and improved transparency and accountability of the statutory disciplinary system. The bill contains a new system of mandatory reporting by doctors of their colleagues in respect of serious cases of sexual misconduct, inebriation in the course of medical practice, and flagrant departure from accepted standards. These reporting requirements—the strongest of their kind in the country—will significantly re-enforce and enhance the patient protection role of our regulatory system. The legislation will strengthen the power of the Medical Board to allow consideration of multiple and similar complaints and boost the board's emergency powers to take rapid action to protect the public. These critical changes will ensure that failures that result in doctors such as Sood and Reeves being allowed to continue to practise cannot be repeated.

These changes strike a more appropriate balance between recognising the legitimate interests of the doctors and the overriding consideration of the protection of public health and safety. They will also ensure a far greater level of accountability and transparency by opening up professional standards committees to external scrutiny and ensuring a greater role for non-medical practitioners in the disciplinary process. Taken together, this package of reforms will make New South Wales legislation among the strongest and most accountable in Australia. I commend the bill to the House.

Question—That the bill be now read a second time—put and resolved in the affirmative.

Motion agreed to. 8126 LEGISLATIVE COUNCIL 4 June 2008

Bill read a second time.

In Committee

Clauses 1 to 5 agreed to.

Ms LEE RHIANNON [9.47 p.m.]: I move:

No. 1 Page 18, schedule 1 [41]. Insert after line 33:

50 Review of section 71A

(1) The Minister is to establish a committee to review section 71A to determine whether the policy objectives of the section remain valid and whether the terms of the section remain appropriate for securing those objectives.

(2) The members of the committee are to be appointed by the Minister to represent health care unions, medical practitioners, consumers of health care services and the community.

(3) The review is to be undertaken as soon as possible after the period of 18 months from the commencement of that section.

(4) A report on the outcome of the review is to be tabled in each House of Parliament within 6 months after the end of the period of 18 months.

This amendment relates to proposed section 71A, which deals with reportable misconduct. Anyone engaged with this issue would have come across people in the industry who have concerns about this part of the bill, and controversy has surrounded the issue of reportable misconduct. I have not met anyone who thinks that this legislation is unnecessary, but they are concerned about whether we are getting it right.

I remind members that this amendment does not change the legislation; it simply ensures that it is reviewed. Such reviews were once standard practice, but that is no longer the case. In fact, they happen intermittently these days. We want a safe, reliable system in which the public can have confidence. Obviously, we also want everyone working in the system to have confidence in it. Doctors and other health professionals should feel confident and should not feel that someone is looking over their shoulder every minute of the day.

The amendment contains four sections. It provides that the Minister must establish a committee to review the legislation, that the members of the committee should be appointed by the Minister, that the review should be conducted 18 months after the legislation is enacted, and that a report should be presented to the Parliament. This amendment is minimalist; it is not radical. It will encourage greater confidence in this complex area and ensure top-class conduct. Provisions dealing with reportable misconduct are obviously designed to achieve the very highest standards. The review would involve representatives of health care unions, medical practitioners, consumers of health care services and the general public. I again emphasise that the Minister would appoint members of the review panel.

The Government has indicated it will not support this amendment, which I find extremely disappointing. This again reflects poorly on the Minister, who seems to have difficulty thinking outside the square. The bill was introduced as a result of the tremendous damage occasioned to many people. I recommend the amendment to members.

The Hon. JENNIFER GARDINER [9.49 p.m.]: The Greens amendment relates to proposed division 7, part 4, schedule 1 to include new section 71A dealing with reportable misconduct. The particulars of the proposed section are:

(1) A registered medical practitioner commits reportable misconduct in the following circumstances:

(a) if he or she practises medicine while intoxicated by drugs (whether lawfully or unlawfully administered) or alcohol,

(b) if he or she practises medicine in a manner that constitutes a flagrant departure from accepted standards of professional practice or competence and risks harm to some other person,

(c) if he or she engages in sexual misconduct in connection with the practice of medicine.

(2) A registered medical practitioner who believes, or ought reasonably to believe, that some other registered medical practitioner has committed reportable misconduct must, as soon as practicable, report the conduct to the Board.

4 June 2008 LEGISLATIVE COUNCIL 8127

(3) A report under this section:

(a) is to be made and dealt with in the same way as a complaint

The division provides that a report under section 71A is to be made and dealt with in the same way as a complaint and that a report is taken to be a complaint for the purposes of the relevant new part and the relevant sections of the Health Care Complaints Act 1993.

The terminology used in the bill was referred to during the second reading debate. The amendment ensures that the review process is built into the legislation to commence after a reasonable period of time from the commencement of the new section. The amendment provides also for the establishment of a committee to review section 71A to determine whether the policy objectives remain valid and appropriate to securing those objectives. Members of the committee will be appointed by the Minister to represent health care unions, medical practitioners, consumers of health services and the community. The review would be undertaken as soon as possible after the 18-month period from the commencement of section 71A. The report on the review must be tabled in both Houses of Parliament within six months of the end of the 18-month period. I am happy to say that the Liberals and The Nationals believe this is a reasonable amendment and we are happy to support it.

The Hon. PENNY SHARPE (Parliamentary Secretary) [9.52 p.m.]: The Government does not support the amendment. It appears to be an attempt to water down the provisions of the bill. It establishes a bureaucratic structure for review, which does not provide any role for the regulators and disciplining investigators of the Medical Board and the Home Care Complaints Commission. The Government believes the amendment sends mixed messages to the public and the medical profession, suggesting to those who do not wish to comply with this important professional obligation that within a very short time frame it may be subject to question or review. The State and Federal branches of the Australian Medical Association, the Medical Board and the Home Care Complaints Commission support the mandatory reporting provisions. The policy underlying the provisions is not novel and attracts no opposition. Doctors already have an ethical obligation to report under their code of conduct. The bill simply reinforces and strengthens those obligations. The obligation to report is confined to the most serious forms of misconduct. The Government, of course, will continue to monitor this provision and consult on the importance of its operation to ensure it effectively meets our primary objective of public protection.

Reverend the Hon. FRED NILE [9.54 p.m.]: The Christian Democratic Party believes the amendment raises questions about the operation of section 71A. The Greens indicate its concern about the section; I take it the Greens do not support it. The amendment will give doctors and the health department cause to hesitate in applying the provisions of section 71A. The Parliament should send a clear signal: We do not want a repeat of these happenings. Therefore, we have no option but to support the legal mandatory reporting provision, which will operate without any question or suggestion of its being a temporary provision that may be removed after 18 months. Doctors may want to wait to see what happens, but we do not want that. The clear message from the Parliament should be that we fully support mandatory reporting to improve public health in this State.

Ms LEE RHIANNON [9.55 p.m.]: It is extremely disappointing that Reverend the Hon. Fred Nile totally distorts what I said. I was not undermining the whole notion of reportable misconduct. If anything, by having a review we are consolidating how it will work.

Reverend the Hon. Fred Nile: I referred to your second reading speech.

Ms LEE RHIANNON: Yes, and I am explaining how you have distorted what I said.

Reverend the Hon. Fred Nile: In your second reading speech you had reservations about section 71.

Ms LEE RHIANNON: Yes. Clearly, I emphasised time and again the need for us to be able to manage this, but the complexity is in determining how it will work effectively. That is the reason we argue for the review. I stated that case clearly and now I repeat it. It is very disappointing at any hour, particularly at this late hour, to have Reverend the Hon. Fred Nile misrepresent the position. We certainly recognise the need for a range of measures to be introduced. Considering the variety of views about reportable misconduct and how it will work in the industry, we have suggested this review.

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

The Committee divided. 8128 LEGISLATIVE COUNCIL 4 June 2008

Ayes, 19

Mr Ajaka Ms Hale Mrs Pavey Mr Clarke Dr Kaye Mr Pearce Mr Cohen Mr Khan Ms Rhiannon Ms Cusack Mr Lynn Ms Ficarra Mr Mason-Cox Tellers, Miss Gardiner Reverend Dr Moyes Mr Colless Mr Gay Ms Parker Mr Harwin

Noes, 20

Mr Brown Reverend Nile Mr Tsang Mr Catanzariti Mr Obeid Ms Voltz Mr Costa Mr Primrose Mr West Mr Della Bosca Ms Robertson Ms Westwood Mr Hatzistergos Mr Roozendaal Tellers, Mr Kelly Ms Sharpe Mr Donnelly Mr Macdonald Mr Smith Mr Veitch

Pair

Mr Gallacher Ms Griffin

Question resolved in the negative.

Greens amendment No. 1 negatived.

Schedule 1 agreed to.

Schedule 2 agreed to.

Title agreed to.

Bill reported from Committee without amendment.

Adoption of Report

Motion by the Hon. Penny Sharpe agreed to:

That the report be adopted.

Report adopted.

Third Reading

Motion by the Hon. Penny Sharpe agreed to:

That this bill be now read a third time.

Bill read a third time and returned to the Legislative Assembly without amendment.

MISCELLANEOUS ACTS AMENDMENT (SAME SEX RELATIONSHIPS) BILL 2008

Message received from the Legislative Assembly returning the bill without amendment.

SUPERANNUATION ADMINISTRATION AMENDMENT BILL 2008

Second Reading

The Hon. PENNY SHARPE (Parliamentary Secretary) [10.07 p.m.], on behalf of the Hon. Michael Costa: I move:

That this bill be now read a second time.

4 June 2008 LEGISLATIVE COUNCIL 8129

The bill seeks to amend the Superannuation Administration Act 1996 to enable the Superannuation Trustee Corporation [STC] to return non-State sector surplus employer reserves to funding providers, with the approval of the Treasurer; to enable the STC, with the approval of the Treasurer, to transfer surpluses between State sector employers' reserve accounts within the pooled fund so that the State sector can record additional financial assets that are excess to individual State sector employer superannuation funding requirements on the State sector balance sheet; and to insert a time limit of two years within which a person aggrieved by a decision made by the STC can lodge a dispute against that decision with the STC disputes committee.

The bill also makes miscellaneous minor amendments to the Superannuation Administration Act 1996 that will correct references to other Acts that have become outdated or are no longer appropriate. Some local government council employers had surplus reserves as at 30 June 2007 that might be better used by those councils to provide local community services, rather than to sit indefinitely in STC employer reserve accounts.

At 30 June 2007 STC held $699 million in financial assets for and on behalf of State sector employers that could not be recorded as assets on the State sector balance sheet, despite the State sector having contributed the funds to the pooled fund. The legislation will allow those funds to be transferred within the State sector, which will have the effect of allowing these financial assets to be recorded on the State sector balance sheet with the result that net financial liabilities recorded on the State sector balance sheet will be lower.

A "surplus in excess of recovery available from schemes" exists in an employer's superannuation reserve when the value of assets exceeds the combined value of current and future superannuation liabilities. The extent of the surplus currently unavailable to the State sector is actuarially determined in accordance with accounting standards. Under accounting standard AASB119, "Employee Benefits", that part of a surplus that cannot be returned to an employer, is no longer recorded as an asset in the employer's financial statements. Employers are informed of the extent of the surplus on their superannuation position statements. These statements are prepared on an AASB 119 basis by an actuary for STC and are prepared at the end of every financial year.

The Superannuation Administration Act 1996 already enables transfers of funds from one Crown funded employer's reserve to another Crown funded reserve of the same employer. Without the bill the permanent surplus funds held in some State sector employer reserves would be held indefinitely in the pooled fund, even after all liabilities have been paid out. Permanent surpluses cannot currently be applied to funding superannuation liabilities over and above the current and future superannuation liabilities for that employer.

Before I conclude my remarks on the transfers between State sector accounts I will use this opportunity to reinforce an assurance given by the Parliamentary Secretary in the other place in response to the contribution of the member for Manly. In particular, I understand that the member for Manly, who has an active interest in the issue, has suggested that the Auditor-General have a role in reviewing transfers. I am told the Treasurer does not have an objection to the Auditor-General auditing transfers between the accounts of Crown employers. I am advised that the Treasurer and the Opposition, through its spokesperson the member for Manly, have agreed on a course of action that will provide transparency and accountability for these transfer transactions. It is with this co-operation that I can confirm that the Treasurer will write to the Auditor General to:

Request that the Auditor General provide a letter to the Treasurer, to be included in the New South Wales Treasury Crown Entity Annual report each year, advising that the Audit Office has reviewed the transfer transactions and provides written confirmation that the transactions were in the broad public interest and calculations are consistent with the relevant accounting standard, in this case AASB 119.

With regard to another aspect of the bill—the proposed two-year dispute limitation period—it should be noted that there is currently no time limit within which to lodge a dispute against an STC decision with the STC disputes committee. Amending the Superannuation Administration Act 1996 to insert a two-year time limit within which an aggrieved person can lodge a dispute against an STC decision will enable a fairer review of the original decision than a review that takes place many years thereafter.

The Commonwealth regime has a limit of two years in which an aggrieved person can make a complaint about the trustee's decision to the Superannuation Complaints Tribunal, and the State pooled fund scheme should have a two-year dispute lodgement period also. Allowing for a two-year period within which to lodge a dispute is consistent with Commonwealth superannuation law. Under current provisions there is a clear inconsistency between the provisions for STC and Commonwealth-regulated superannuation funds.

The bill also provides for miscellaneous amendments to the Superannuation Administration Act 1996. The Act contains some references to FTC, which, after the passage of the First State Legislation Amendment 8130 LEGISLATIVE COUNCIL 4 June 2008

(Conversion) Act 2005, are no longer appropriate. The Superannuation Administration Act 1996 also contains references to the Public Sector Management Act 1998 that require updating to the Public Sector Employment and Management Act 2002.

The Hon. MATTHEW MASON-COX [10.13 p.m.]: I lead for the Opposition in debate on the Superannuation Administration Amendment Bill 2008. The purpose of the bill is to amend the Superannuation Administration Act 1996 to enable the STC Trustee Corporation to transfer State sector surplus employer reserves to reserve accounts and to return non-State sector surplus employer reserves to those employers—local councils. The bill also includes a two-year limit within which people may dispute an STC Trustee Corporation decision and makes a number of other miscellaneous amendments.

While the Opposition is generally supportive of the broad thrust of the bill, we have some concerns in respect of the accountability of the Government, and in particular the Treasurer, under the current provisions of the bill. Our concerns have been well articulated in the other place by the shadow Minister for Finance and member for Manly, Mike Baird. I will draw on some of those comments to bring this matter to the attention of the House. The primary concern is the power that this bill bestows on the Treasurer to access the superannuation reserves of public sector employers and to transfer these reserves to other accounts. The trouble is that we do not know exactly what accounts the Government plans to debit or credit, nor do we have the details in respect of the formal process to be undertaken to determine any surplus reserves in superannuation accounts.

Given the Treasurer's form on minimising the Government's liability for unfunded superannuation by adopting a higher discount rate than the Commonwealth and other States, thereby accessing additional funds that are diverted to fund spending on other items in the budget, the Opposition is naturally concerned to ensure that superannuation members' interests are protected at all times. Indeed, when one considers the gyrations that have occurred in world financial markets over the past few months it is apparent how quickly the value of superannuation assets can dissipate in difficult economic times. This is borne out by the fact that surplus superannuation assets were determined to be $699 million as at 30 June 2007, yet only last month Treasury revealed in its briefing that the surplus had decreased to $350 million, a 50 per cent fall in just 12 months.

In the light of these factors it is the Opposition's view that the Government must provide more protection to superannuation fund members through the bill. We believe that that can be achieved by an amendment that will require the Auditor-General to carry out a performance audit pursuant to section 38B of the Public Finance and Audit Act 1983 in those years in which a transfer of surplus funds has occurred. However, the shadow Minister for Finance, Mike Baird, put these concerns to the Government, which conceded that the concerns were valid and could be met by a method stipulated by the Parliamentary Secretary as:

[A] Request that the Auditor General provide a letter to the Treasurer, to be included in the New South Wales Treasury Crown Entity Annual report each year, advising that the Audit Office has reviewed the transfer transactions and provides written confirmation that the transactions were in the broad public interest and calculations are consistent with the relevant accounting standard, in this case AASB 119.

I note that the undertaking by the Government was given in the Parliamentary Secretary's contribution to the debate. The undertaking is very welcome and has been received by the Opposition. We believe that this bill represents a measure being adopted in the public interest and in the interests of producing greater transparency and accountability. I note that the Opposition put a similar proposition to the Government in respect of privatisation of the State's electricity assets. In that case we have also called for the involvement of the Auditor-General to ensure that decisions made by the Government are made in the public interest.

The rationale for the Opposition's approach is the sad fact that the Government cannot be trusted to deliver on the promise it made before the last State election not to sell the State's electricity assets; nor can it be trusted with service delivery across the State. The crumbling infrastructure of the State is more than sufficient testament to the Government's mismanagement. The budget that we heard this week will not change the fundamentals of that position, despite the fact that the Government continues to throw money at problems that will not go away. However, on this occasion the Government has seen the sense of the Opposition's views and has acted to involve the Auditor-General. That action has been taken strongly in the public interest. Accordingly, the Opposition will not oppose the bill.

Dr JOHN KAYE [10.17 p.m.]: The Superannuation Administration Amendment Bill 2008 amends the Superannuation Registration Act 1996 to allow the STC Trustee Corporation to transfer certain State sector surpluses in various employer accounts to other accounts, and, in the case of a non-State sector employer, which would be a local government employer, to allow certain services to be transferred to the employer. The Greens 4 June 2008 LEGISLATIVE COUNCIL 8131

have a number of concerns in respect to this bill, particularly in relation to transparency. This bill is being considered in the context of superannuation, which is a social contract between public sector workers and the State. It is an important contribution to the dignity of workers who have toiled for the State and for the common good over many years because it provides them with dignity in their old age.

Unfunded liabilities within defined benefit superannuation schemes have massive ramifications across the State's entire economy. The bill has three key components. The first component is the creation of a two-year time limit on lodging disputes against the State authority, the Superannuation Trustee Corporation [STC], against decisions made by the STC.

We raise no objection to this, given the supportive statements made by the Police Association of New South Wales. The second aspect of the bill centres largely on proposed section 81A (2), which refers to local government authorities with assets in their accounts and no liabilities. The suggestion is that the bill will allow transfer of those assets to the employer and that all or part of the surplus funds can be transferred from employer reserves to pay the employer. My concern is that cash-strapped councils may dip into their superannuation reserves.

A number of councils operate at the edge of financial viability and enormous pressure is placed on the accounts of local government. The only check and balance in this measure is that the Treasurer must ensure that it is in the long-term interest of the employer, the council and the State. That may be inadequate, particularly as we move into a time of increasing stress on the State's budget and on the budgets of local government. Councils may be forced into the invidious positions of conducting raids on the superannuation accounts of their employees.

Another concern relates to proposed section 81A relating to State sector employers. The provision states that surplus funds that are maintained within the reserves of different Superannuation Trustee Corporation [STC] schemes for that employer can be transferred to another State sector employer for the same or another STC-administered scheme, at the request of an employer who is not a State sector employer and "with the approval of the Treasurer". I am concerned not merely with the current incumbent but Treasurers in general. This creates a perverse incentive for Treasurers. On the one hand, Treasurers operate in an environment in which they are under pressure to make the State's budget look as healthy as possible. Pressure is on Treasurers to make the deficit looks small, the surplus look large and the accounts look healthy. On the other hand, we are creating another role for Treasurers, that is, being able to transfer funds between STC-administered schemes and accounts. Will the decisions of transferring funds be made in the best interests of the superannuants and of the scheme itself or will those decisions be made in the best interests of the public relations requirements of the State's accounts? Will those changes be made in ways that respect the viability of the scheme or will they be made in ways that put the best possible gloss on the State's bottom line?

There are certain opportunities to hide and distort reality and allow funds to be moved in the interests of public relations. Small changes to the discount rate, the assumed investment rate of return and assumption about how long superannuation recipients will live will result in very large changes to fund outcomes, with large effects on the surplus and money available for transfer. We have already seen massive volatility in the total size of the surplus. It is not a good time to move money between accounts without independent oversight and public accountability when there is huge pressure on capital markets around the world.

I understood an amendment was to be moved giving the Auditor-General an oversight role with respect to the transfers. I am disappointed the amendment will not be moved but I understand an arrangement has been reached between the Opposition and Government that the Auditor-General will overview the accounts and transfers on an annual basis and will then provide a letter, which will be tabled in Parliament. Perhaps the Parliamentary Secretary can elucidate the matter in reply. An amendment would have been preferable, but we will have to live with the alternative.

Another issue with respect to State sector defined benefit superannuation is the desirability of instituting twice yearly consumer price indexation for those pensions. The Senate Select Committee on Superannuation and Financial Services recommended twice yearly indexation. New South Wales is the only State that has failed to act on that recommendation. Every other State in the Commonwealth has instituted twice yearly consumer price indexation. Consequently, there is no amelioration of the current indexation in New South Wales, resulting in continual financial disadvantage to this State's public sector retirees in receipt of defined benefit pensions compared to equivalent public sector employees in other States in the Commonwealth. One appropriate use for any surplus would be to fund twice yearly indexation, particularly as we move into a period of higher inflation. 8132 LEGISLATIVE COUNCIL 4 June 2008

The Greens will not oppose the bill. However, we place on record our concern that we have created for the Treasurer, and all subsequent Treasurers, an opportunity to effectively fiddle the books by moving money between State superannuation accounts in a way that does not necessarily serve the best interests of those accounts or the management of a long-term deficit. Instead, it will serve the interests of the public relations spin that Treasurers inevitably try to put on to their budget positions.

Reverend the Hon. FRED NILE [10.26 p.m.]: The Christian Democratic Party supports the Superannuation Administration Amendment Bill 2008. This is a simple bill that creates a power for the Treasurer to direct the State Authorities Superannuation Trustee Corporation [STC] to return surplus reserves back to non-State sector employers. Contrary to the comments of Dr John Kaye, the bill only deals with surplus reserves. It does not really manipulate the total funds held by the various trustees. The Superannuation Trustee Corporation is a trustee of a number of closed defined benefit superannuation schemes. The bill will allow the transfer of surplus funds between the reserves of State sector employers and the payment of surplus funds in the reserves of non-State sector employers to those employers.

Surplus funds are funds that exceed the amount required to meet the current and future liabilities under the scheme to which they relate as determined in accordance with accounting standard AASB119, employee benefits or another standard prescribed by the regulations. The bill also has a provision for a two-year time limit within which a person aggrieved about a decision made by the Superannuation Trustee Corporation can lodge a dispute with the STC disputes committee. The dispute resolution processes are in line with Commonwealth processes. I support the bill.

The Hon. PENNY SHARPE (Parliamentary Secretary) [10.28 p.m.], in reply: I thank all members for their contributions. On 30 June 2007 the State Authorities Superannuation Trustee Corporation held $699 million in financial assets for and on behalf of State sector employers that could not be recorded as assets on the State sector balance sheet. That is the reason for the introduction of this bill. Given the late hour, I will not give chapter and verse in reply. However, I confirm to Dr John Kaye that a letter will be provided to the Treasurer annually and that letter will be tabled in Parliament. I commend the bill to the House.

Question—That this bill be now read a second time—put and resolved in the affirmative.

Motion agreed to.

Bill read a second time.

Leave granted to proceed to the third reading of the bill forthwith.

Third Reading

Motion by the Hon. Penny Sharpe agreed to:

That this bill be now read a third time.

Bill read a third time and returned to the Legislative Assembly without amendment.

BUSINESS OF THE HOUSE

Postponement of Business

Government Business Orders of the Day Nos 5 and 6 postponed on motion by the Hon. Penny Sharpe.

JURY AMENDMENT BILL 2008

Second Reading

Debate resumed from 15 May 2008.

The Hon. JOHN AJAKA [10.31 p.m.]: The Jury Amendment Bill 2008 seeks, first, to amend the Jury Act 1977 to implement, with some modifications, certain recommendations of the New South Wales Law Reform Commission in chapter 11 of its report No. 117, "Jury Selection"; and, second, to amend the Criminal 4 June 2008 LEGISLATIVE COUNCIL 8133

Appeal Act 1912 to enable appeals to be made, with the leave of the Court of Criminal Appeal, about decisions concerning the discharge of a jury. The Opposition does not oppose the bill. The bill's rationale is essentially threefold: first, to make explicit the intention of Parliament with respect to the conditions allowing for the invalidation of a jury verdict in response to issues of statutory interpretation raised in the cases of Regina v Brown & Tran and Petroulias v The Queen; second, to effect amendments in relation to the discharge of jurors with a view to reducing the need to hold retrials whilst making provision for appeals with leave against the decision to discharge the jury; and, third, to allow for the reporting of the misconduct of jurors. In effecting these amendments the bill will implement certain recommendations of chapter 11 of the New South Wales Law Reform Commission report No. 117.

I now turn to the provisions of the bill in detail. Schedule 1 [7], concerning the insertion of proposed new sections 53A to 53C in the Jury Act, clarifies the circumstances in which a court or coroner is to discharge a juror. Proposed new section 53A requires a court or coroner to discharge a juror if in the course of a trial or coronial inquest it is found that the juror was mistakenly or irregularly empanelled—whether because the juror was disqualified or ineligible to serve as a juror or was otherwise not returned and selected in accordance with the principal Act; or if the juror becomes disqualified from serving, becomes ineligible to serve or has engaged in misconduct in relation to the trial or coronial inquest. At present the Jury Act does not expressly grant to a court or coroner the power to discharge a jury. Rather, this power is implied by reason of the existence of the statutory power to order that the trial continue with a reduced number of jurors when a juror has been discharged.

The Law Reform Commission recommended, with a view to securing greater certainty and bringing New South Wales into line with other Australian jurisdictions, that an express provision should deal with the discharge of a juror. Proposed new section 53B leaves it to the discretion of the court or coroner to discharge an individual juror in the course of a trial or coronial inquest when the juror, though not ineligible to serve, becomes so ill or infirm prior to the delivery of the verdict as to be likely to become ineligible to serve or so ill as to pose a health risk to other persons present prior to the delivery of the verdict; the juror appears to be unable to give impartial consideration to the case; or the juror refuses to take part in the jury's deliberations.

Under proposed new section 53C, if a juror dies or the court or coroner discharges a juror during a trial or inquest the court or coroner must, first, discharge the jury if he or she is of the opinion that to continue the trial or inquest with the remaining jurors would give rise to the risk of a substantial miscarriage of justice; or, second, order that the trial or inquest continue with a reduced number of jurors if he or she is of the opinion that there is no such risk subject to section 22 of the Jury Act. The Legislation Review Committee in "Legislation Review Digest No. 7 of 2008" expressed concern about the wording of the proposed new sections, and said:

… the provisions appear to produce the anomalous situation that under section 53A the court or coroner must discharge a juror where he or she has been irregularly empanelled but cannot do so where the juror has engaged in conduct that, in the opinion of the court or coroner, gives rise to the risk of a miscarriage of justice though not one amounting to a "substantial miscarriage of justice" …

I note that proposed sections 53A and 53C both refer to the risk of a "substantial miscarriage of justice". In that respect there does not appear to be a problem with the internal consistency of the wording. However, an anomaly may arise if the irregular empanelment of the jury was held to amount to a miscarriage of justice that falls below the threshold of "substantial". The issue then arises as to whether the word "substantial" adds anything to the phrase "miscarriage of justice"—that is, whether it is possible to have a miscarriage of justice that is not in and of itself substantial. In any event, with respect to the substance of these amendments, the express power to discharge a juror appears to be a sensible solution to the problem of wasted resources arising from the discharge of the entire panel following the discharge of a single juror.

Items [1] to [4] of schedule 1 to the bill amend the Jury Act to clarify that a jury will be treated as consisting of persons selected and returned in accordance with the Act if the court or coroner orders that a trial or coronial inquest continue with a reduced number of jurors following the death or discharge of a juror under proposed new part 7A, subject to section 22 of the Jury Act. The courts have long acknowledged the importance of seeking to reduce the need for costly retrials insofar as this is possible without unduly curtailing access to legitimate avenues of appeal. Indeed, in the New South Wales Supreme Court in the case of Tuckerman v Tuckerman and Hogg on page 242 of the judgement it is said:

The Courts have always set themselves against the granting of new trials for what may be termed irregularities in composition of the jury.

Items [8] and [10] of schedule 1 to the bill amend section 73 of the Jury Act to ensure that the verdict of the jury is not invalidated if a juror who was summonsed for jury service is empanelled irregularly or by mistake or 8134 LEGISLATIVE COUNCIL 4 June 2008

becomes disqualified from serving or ineligible to serve as a juror during a trial or coronial inquest. The amendments concerning the power to overcome procedural irregularity are made in response to the decisions in Regina v Brown & Tran and Petroulias v The Queen. In the case of Regina v Brown & Tran, one of the people who had been empanelled to serve as a juror had mistakenly attended court a month earlier than required. Upon being notified of this fact the learned trial judge, with the consent of the parties, continued the trial to verdict. The Court of Criminal Appeal in its judgement considered the earlier High Court case of Katsuno, which is authority for the proposition that:

… there will have been a ['fundamental failure to observe the requirements of the criminal process'] … if there was a failure to comply with a mandatory provision relating to "the constitution and authority of the jury". However not every legislative provision is a mandatory one.

In Regina v Brown & Tran, His Honour Justice Sperling stated, in relation to the provisions of the Jury Act particularising the conditions under which a jury verdict will be invalidated:

… the Legislature of this State chose to use imprecise language, leaving it to context to define the ambit of the provision … section 73(b) does not, in my view, avoid what is otherwise the consequence of non-compliance with the legislation in this case.

The New South Wales Court of Criminal Appeal held that the trial had not been conducted with a jury selected in accordance with section 19 of the Jury Act, and was consequently a nullity. The proposed amendments would operate to prevent the verdict of a jury from being declared invalid in such cases. In the case of Regina v Petroulias, it was discovered mid trial that one juror who had been empanelled was disqualified from serving because he was the subject of an order disqualifying him from driving a motor vehicle. The learned trial judge made an order under section 22 (a) of the Jury Act, discharging the juror in question and a further order that the remaining jurors be considered as remaining, for all purposes of the trial, to be properly constituted as the jury. An appeal upheld that the trial process was flawed from the outset, as the jury did not comply with the explicit statutory requirement that it consist of 12 persons returned and selected in accordance with the Act.

In terms of the operation of section 22 of the Jury Act, I note that His Honour Justice Hoeben, of the majority, stated that he saw no reason why section 22 could not save a trial where a person was empanelled as a member of a jury and after commencement of the trial but before verdict became disqualified. His Honour Chief Judge McClellan, in dissent, stated:

… in Wu the High Court accepted that s 22 could operate to vary the otherwise mandatory requirements of s 19. Furthermore, the High Court in Brownlee concluded that s 22 was not incompatible with s 80 of the Constitution. If available to authorise a jury verdict returned by less than twelve jurors I can see no reason why s 22 should not be available in the present case.

However, Her Honour Justice Simpson allowed the appeal, stating, inter alia:

… the explicit requirement of s 19 has not been met: that is, that the jury be returned and selected in accordance with the provisions of the Jury Act. That is, in my opinion, a mandatory requirement. Section 72(a) cannot, in my opinion, be broadened to incorporate a concept that simply is not present.

In enacting s 73(a) (and, indeed, the other sub-paras of s 73) the legislature turned its mind to the consequences of a disqualified or ineligible person finding his or her way onto a jury. It cannot have been blind to the possibility that the defect or disqualification would have been discovered prior to verdict. Yet it opted to make no equivalent provision to cover that circumstance.

In my opinion, to excuse non-compliance with a mandatory or fundamental requirement concerning the composition of the juror would require express statutory provision. There is no such provision.

The proposed amendments to section 73 make explicit that it is the intention of Parliament that the verdict of a jury is not to be invalidated if a juror who was summonsed for jury service becomes disqualified from serving, or ineligible to serve, as a juror during a trial or coronial inquest. Schedule 1 [12] to the bill inserts a provision into the Jury Act to expressly enable jurors and former jurors to report misconduct and other irregularities in the conduct of other jurors and former jurors, respectively, to the court, Coroner or sheriff. Schedule 2 amends the Criminal Appeal Act 1912 to enable appeals to be made, with the leave of the Court of Criminal Appeal, about decisions concerning the discharge of a jury. For the reasons already expressed, and having consulted the Director of Public Prosecutions, Legal Aid, the New South Wales Law Society and the Bar Association, the Opposition does not oppose the bill.

Reverend the Hon. Dr GORDON MOYES [10.43 p.m.]: The Christian Democratic Party supports the Jury Amendment Bill for these reasons. The bill has two objectives, the first of which amends the Jury Act 1977, to put into effect a number of recommendations from the New South Wales Law Reform Commission's January 2008 report regarding jury selection. The other is to amend the Criminal Appeal Act 1912 to enable 4 June 2008 LEGISLATIVE COUNCIL 8135

appeals to be made regarding decisions made in the discharge of a jury. In its report 117, entitled "Jury Selection", the New South Wales Law Reform Commission reported finding a number of areas of broad concern, including: that juries have become unrepresentative of the community because of the number of people who were disqualified, ineligible to serve, or who exercised their entitlement to be excused, or applied to be excused for good reason.

The conditions of service and financial hardship are impediments to many people being willing to serve as jurors. The burden of jury service is not shared equitably, or is undertaken in circumstances that are not of best economic advantage. The current categories for disqualification, ineligibility and exemption were so broad they were unlikely to achieve the objectives of the jury system. These amendments, in providing judges and coroners with the power to discharge jurors for cause, or due to trial irregularities, help to clarify the role of the judge and coroner. Further providing these judges and coroners with the power to decide whether to continue with the trial, or coronial inquest, with the jurors who remain, or to discharge the remaining jurors at their own discretion, is also more practical and will lead to fewer retrials, which are costly and disruptive to the justice system.

To allow the judge or coroner the power to order that a trial or coronial inquest continue, despite the death of a juror, is also extremely sensible. Previously, if a juror died or was unable to continue due to illness, the whole jury had to be discharged and a new jury sworn, which wasted time of the court and the jurors and the resources of the justice system. This is an excellent bill, and I congratulate the Government and Minister on introducing it.

Ms LEE RHIANNON [10.45 p.m.]: The Greens support the Jury Amendment Bill, which has been introduced in the public interest. People who engage in the judicial process will gain benefits because it enhances the working of the system. The Greens note and see merit in the bill because it confers powers on judges to discharge jurors when there have been irregularities. Overall I concede that this bill will reduce the need to hold re-trials and will maximise the court resources. We welcome this bill and I understand that all members support it. It is a good way to end the evening.

The Hon. PENNY SHARPE (Parliamentary Secretary) [10.47 p.m.], in reply: I thank members for their contributions, and commend the bill to the House.

Question—That this bill be now read a second time—put and resolved in the affirmative.

Motion agreed to.

Bill read a second time.

Leave granted to proceed to the third reading of the bill forthwith.

Third Reading

Motion by The Hon. Penny Sharpe agreed to:

That this bill be now read a third time.

Bill read a third time and transmitted to the Legislative Assembly with a message seeking its concurrence in the bill.

ADJOURNMENT

The Hon. TONY KELLY (Minister for Lands, Minister for Rural Affairs, Minister for Regional Development, and Vice-President of the Executive Council) [10.47 p.m.]: I move:

That this House do now adjourn.

NATIONAL PRAYER BREAKFAST, SEOUL, KOREA

Reverend the Hon. FRED NILE [10.47 p.m.]: On Thursday 15 May I visited Korea in response to an invitation to represent Australia at the fortieth presidential National Prayer Breakfast held in the huge convention hall in Seoul. More than 4,000 delegates attended, the majority of whom were South Korean, but 8136 LEGISLATIVE COUNCIL 4 June 2008

also delegates from other nations such as Russia, Japan, Tanzania, Switzerland, the United States of America and the Philippines. Originally Korea was a Buddhist nation and now it is estimated that 11 million people— more than 20 per cent of Korea's population—have become committed Christians. It has changed Korea, which has many large churches with 20,000 members and others even larger. The sermon at the prayer breakfast was delivered by the outstanding Christian leader, Reverend David Yonggi Cho of the Seoul Full Gospel Church, which has one million members.

A special highlight was the testimony by the newly elected President of Korea, President Lee Myung-bak, a keen Presbyterian elder in his local church and a highly respected Christian leader. I was interested in the other participants who included church leaders, a judge from their High Court, professors, members of Parliament and a South Korean air force general, who lead in the prayers. At the breakfast I enjoyed fellowship with Christian leaders from many nations, including a famous Korean Hero, Dr Kim, the founding leader who still serves as the honorary president of the Korean Campus Crusade Movement—a major factor of the Christian revival of Korea.

Dr Kim experienced persecution during the Japanese occupation, again under the North Korean communists and later under the Chinese communists. At one stage 24 members of his family, including close family members, were brutally murdered. Dr Kim was left for dead but survived. Upon the defeat of the communists the people who murdered his family were arrested and were to be executed in retribution for what they had done to their non-communist neighbours. Dr Kim interceded and saved their lives when he had suffered so much at their hands. What a great example of Christian forgiveness.

At the end of the breakfast I was invited to speak on the challenges of Christian political ministry. The other speaker was a Japanese Christian pastor and member of the Japanese Parliament. This was my fifth visit to Korea. On 16 May 2008 my wife and I were also guests at the international prayer breakfast at Korean Parliament House. After the breakfast my wife and I were pleased to take part in a unique event and visited North Korea. The North Korean Government had sought our passports and so on weeks before the event and had given approval for our visit. My only request was that if we did visit we would be allowed to leave.

Along with 200 Korean businessmen we were taken to inspect the new economic zone in North Korea, where over 180 South Korean companies are building factories to employ North Koreans in an effort to help the economy. This was an encouraging development because many Koreans hope and pray there will be a reunification in due course. We also attended a Christian church service in North Korea, which was very emotional. Later we flew to the city of Masan, where I addressed Christian students at the University and at high schools. It was a unique experience for my wife and I to enjoy the fellowship of the Christians in Korea and to be inspired by their zeal and faith in Jesus Christ.

DRAGONS ABREAST AUSTRALIA

The Hon. HELEN WESTWOOD [10.52 p.m.]: Earlier this year I had the privilege of acting as MC for a gathering that was a real celebration of life and survival. The occasion was a banquet held on the weekend of the dragon boat races that are part of the Sydney Chinese New Year Festival. The traditional Chinese sport of dragon boating has grown rapidly in popularity and is the fastest growing water sport in Australia. Whilst it is particularly popular amongst fit young women and men, there is another group who have taken to dragon boating like the proverbial duck to water. They are usually not so young, nor so fit, when they begin but they certainly get fitter. These dragon boaters are breast cancer survivors.

Dragons Abreast Australia is a national organisation comprised of breast cancer survivors of various ages from a variety of backgrounds, athletic abilities and interests. It is founded on the principles of participation and inclusiveness. Dragons Abreast spreads the message of breast cancer awareness through participation in the wonderful and strenuous sport of dragon boat racing. It seems unbelievable now, but as recently as 1996 the prevailing medical wisdom worldwide was that women who had had breast surgery should not participate in upper body exercise. It was assumed this would cause and/or aggravate complications such as lymphoedema. A Canadian physician, Professor Don McKenzie, challenged this belief and started training a small team of breast cancer survivors to paddle dragon boats. Professor McKenzie's work established that dragon boating post breast cancer surgery does not impact on the incidence or severity of lymphoedema. Instead, it improves the general strength, health and wellbeing of breast cancer survivors and so is highly appropriate in a patient's ongoing management.

There are now over 50 breast cancer survivor teams worldwide and the movement is expanding rapidly. Here in Australia there are over 1,200 women paddling with Dragons Abreast Australia teams in 31 clubs. 4 June 2008 LEGISLATIVE COUNCIL 8137

Sydney was the last capital city in Australia to start a Dragons Abreast Australia team—they only took to the water in early 2003. Since that time Dragons Abreast Sydney has grown with over 90 paddlers in the club today. The club is made up of breast cancer survivors and their supporters, usually partners, family and friends of the survivors. I joined the team as a supporter some three years ago, although since coming to this place I have not found the time to dip my paddle in the waters of Blackwattle Bay.

Dragons Abreast members paddle to demonstrate there is quality of life despite a breast cancer diagnosis. By being part of the team they help each other regain that sense of wellness, self-confidence and control in their lives. Although physically demanding, it is exhilarating and lots of fun. It promotes teamwork and at the same time helps overcome the isolation that a diagnosis of breast cancer can often bring. Whilst not intended as a support group, friendships made in Dragons Abreast Australia provide a unique support network at a grass roots level for people with breast cancer.

Dragons Abreast members compete in dragon boat regattas, but they say their real race is against breast cancer. They are proud that their presence, wherever they go, gives a "face" to the breast cancer statistics and in so doing they actively promote breast cancer awareness in the wider community. They are so easily recognisable in their bright pink rashies, gloves and hats. This year's Chinese New Year Banquet was attended by clubs form all over Australia: Brisbane, the Gold Coast, Mackay, Melbourne, Newcastle, the Northern Territory, far New South Wales North Coast, Redcliffe, the Sunshine Coast, Townsville, Wagga Wagga, the Australian Capital Territory, Ballarat, Coffs Harbour and the host club Sydney.

Dragons Abreast Sydney has not only grown in numbers, its competitiveness is now well regarded amongst Dragon Boat clubs across the sport. A number of their paddlers have been selected to represent Australia at national and international championships. Last year's world championships, held in Sydney at Penrith Regatta Centre, saw a number of Dragons Abreast Sydney paddlers win medals as part of Australian teams. More medals were won at the national championships in Perth in April this year. Thirty-eight of their paddlers will head off to Penang in August this year to compete in the world crew championships. These remarkable women exemplify that there is life after a breast cancer diagnosis. I am sure honourable members appreciate the great value of Dragons Abreast for women who have been diagnosed with breast cancer. Clearly, participating in a fun team sport on one of the many beautiful waterways across our great State can only help to restore the confidence, the spark and the sense of adventure needed to permit a full and active life despite breast cancer.

ITALIAN NATIONAL DAY CELEBRATIONS

The Hon. MARIE FICARRA [10.57 p.m.]: I am immensely proud to report on the success of the Italian National Day celebrations held over the course of a complete month and known to all Italo-Australians as La Festa delia Republica, which was held last Sunday at Doltone House, Pyrmont. I was delighted to again attend this important occasion with my Liberal colleagues, Barry O'Farrell, the Leader of the Opposition, Senator Concetta Fierravanti-Wells, the Hon. David Clarke and Mr Chris Hartcher, the member for Terrigal. As usual the New South Wales Italian National Day Committee, led by President, John Caputo, OAM, and consisting of Tony Mustaca, Luigi Stivala, Joe Santarosa, Vince Santarosa, Mario Beddoni, Mina Calabria, Antonio Caputo, Salvatore D'Angelo, Lucho De Nicola, Giuseppe Fin, Kerim Elgabaili, Pino Srezza, Riccardo Montrone, Giovanni Romeo, Alfredo Vari, John Calabrese and Federica Polagri did an exemplary job in ensuring the success of this brilliant annual event.

The Festa delia Repubblica commemorates the institutional referendum of 1946 when the Italian population was called to decide what form of government to give to the country after the Second World War and the fall of fascism. After 85 years of monarchy, with 12,717,923 votes for and 10,719,284 votes against, Italy became a republic, and the monarchs of the House of Savoy were deposed and exiled. In June 1948 the first military parade was conducted in via dei Fori Imperiali in Rome.

Festa delia Repubblica is now celebrated all over the world. On Sunday over 5,000 people came to Doltone House to celebrate the sixty-second anniversary. The celebration is open to all people and its aim is to celebrate and acknowledge Italian culture and heritage, bringing together second and third generation Italians, as well as the general public, providing an opportunity for all to enjoy Italian traditions. The celebrations on Sunday were also an opportunity to recognise the outstanding work in the community of some very special people who have had a great impact on society. Awards were presented by the Premier, Morris Iemma, to Vincent Santarosa, Joseph Santarosa and Gianluca Buttarello, Stan Gilbert and Armando Tornari from the newspaper La Fiamma. 8138 LEGISLATIVE COUNCIL 4 June 2008

It was great to see so many younger people of Italian origin celebrating their heritage and becoming leaders in their fields. This year we heard 14-year-old Mark Vincent, a magnificent tenor, sing the Italian national anthem. Mark is already recognised as a future international opera singer—he is truly extraordinary and he comes from the Sutherland shire. Mark is the grandson of the late and great Italian community leader Bruno Riccio, OAM—I know how proud he would have been to see Mark perform so well on Sunday.

Accompanying me this year were community leader and inspirational volunteer community worker, Vincent De Luca, OAM, and Melissa Femia from Nova FM, who is the co-host of the Jabba and Mel show. Melissa, who is from Calabrian heritage, is now one of the most popular women on Sydney radio. Alfio, a wonderful classic artist, also entertained the crowd. Alfio's recently released enchanting album, Tranquillita, showcases his truly beautiful song-writing prowess. Other great entertainers included award winning instrumental entertainer Joe Fimmano, Antonella, Dolce RB, Rachel and Brigitte, Zach La Cava and Gruppo Folcoristico. Legendary performer Ross Maio also gave a great performance and all the artists were supported by the Nick Bavarelli Band. Robert Scarselletta did a tremendous job throughout the afternoon as master of ceremonies.

I thank particularly the sponsors of the event. Without their generosity Italian National Day celebrations could not have been so successful. The major sponsors included the Italian Government via the Italian Consulate, the Italian Chamber of Commerce and Industry, Doltone House, HSBC, Co.As.It, Nick Cerrone, the City of Sydney Council, Le Montage, Nick Scali, Qantas Airways, La Fiamma and Omega Travel. Indeed, I pay special tribute to the Signorelli family for hosting the day's celebrations at their Doltone House, Pyrmont, venue. The family continues to give generously to our Italo-Australian community and I salute them.

LOWER HUNTER WATER SUPPLY

Dr JOHN KAYE [11.02 p.m.]: In the lead-up to the 2007 State election Premier Morris Iemma interfered in the planning of the lower Hunter's water supply by announcing that a dam would be built at Tillegra. The proposed impoundment of the Williams River north of Dungog would create a storage larger than Sydney Harbour, with potentially disastrous consequences not only for farmers and the local community, but also for budgets of households in the lower Hunter. By Hunter Water's own admission, Tillegra Dam is not necessary. The parallels with Sydney's desalination plant are inescapable. The Hunter Water Corporation is repeating the same mistake of promoting an expensive, environmentally damaging and unnecessary water supply option, after the Premier showed he has no understanding of infrastructure planning, and even less ability to make sensible decisions under advice from experts. Prior to November 2006 the Hunter Water Corporation consistently rejected the Tillegra project. Not only did it have cheaper options, but its 2004 integrated water resource plan stated:

… with proposed staged upgrading works at Grahamstown Dam, a new water source would not be required within the next 30 years …

Building a new dam at Tillegra would be far less cost effective than many demand management and water conservation initiatives.

Tillegra remained off the Hunter Water Corporation's agenda in its August 2006 integrated resource plan and was not mentioned in its October 2006 submission to the Independent Pricing and Regulatory Tribunal. The Premier panicked in the lead-up to the 2007 election. Looking for a distraction from the charging of Milton Orkopolous and wanting to appear decisive in the face of the drought, Morris Iemma announced his Government's intention to build the dam, supposedly to secure water supplies for the lower Hunter and the Central Coast.

Hunter Water sought to justify that irrational choice of supply options. In its August 2007 document entitled "Why Tillegra Dam", the corporation argued that the threat of climate change would reduce inflows to existing dams, that the region was facing unexpectedly high population growth and that more water would be needed for drought-ravaged Gosford and Wyong. Each of these excuses simply does not work. Inflows have not decreased over the past century; indeed, many climate change predictions have them increasing. Unlike most of the rest of the State, water restrictions were not required in the lower Hunter during the recent drought period. Water storages remained relatively full.

The corporation's own modelling for the next 100 years shows that without the Tillegra Dam, the region's storages would stay above 45 per cent, even with an additional 160,000 lower Hunter residents. The Hunter Water Corporation's water savings targets are much lower than those of Sydney Water, where water 4 June 2008 LEGISLATIVE COUNCIL 8139

usage decreased by 20 per cent in 20 years. Using Sydney Water's efficiency targets, the need for a new water supply option could be delayed indefinitely. With Federal funding now provided to build the missing link pipeline linking the Mardi Dam and the Mangrove Creek Dam, the need to secure water supply for the Central Coast can no longer be used as a justification for a dam at Tillegra.

Construction of that dam will dislocate 90 farming families and destroy an important food producing area. The massive eco-tourism potential of the Williams River valley will be drowned. A thriving platypus population will be sacrificed—and all for a dam that is not needed. The Hunter Water Corporation claims that Tillegra Dam will cost about $300 million to construct. However, the area is geologically unstable and riddled with fault lines. Inundation will increase pressure on the faults with the real risk of massive subsidence. Geotechnical expert Mr Graham Holt advised that strengthening the dam and other works to reduce the risk of catastrophic failures from earth movements could cost between $300 million and $700 million.

Total costs could blow out from the currently projected $300 million to $600 million or $1 billion, which would pass through to households in the lower Hunter as increases of up to $416 a year in water bills. Even without additional costs to secure the structural integrity of the dam against the slippage of faults, households face an additional $125 each year, which corresponds to a 26 per cent increase. As construction gets underway and costs blow out as we expect them to, Hunter households could be facing a massive 88 per cent increase resulting from a single water supply option. That is significantly more expensive that Sydney's desalination plant, which will cost the average household in Sydney, the Blue Mountains and the Illawarra $92 each year. This is a terrible price to pay for a dam that is not needed. It is not to late to stop construction of the Tillegra Dam. It is not too late to save the Williams River and its vibrant farming community, its platypus population and its ability to produce food. And it is not too late to abandon the proposed Tillegra Dam and protect lower Hunter households from massive increases in their water bills.

NURSES SALARIES AND HOSPITAL WAITING LISTS

HERONS CREEK POWER PLANT

The Hon. MELINDA PAVEY [11.07 p.m.]: Tonight I will speak on issues of concern in my duty electorates of Port Macquarie and Monaro. The first issue concerns nurses in the Monaro electorate. I admit that the details I can provide are rather sketchy, and that is due to the fear felt by nurses who are employed by the Greater Southern Area Health Service. I have encouraged nurses to come forward, but they are too scared to do so for fear of losing their job, for fear of their reputation—

The Hon. Rick Colless: That is what happens in Bathurst.

The Hon. Duncan Gay: And in Dubbo.

The Hon. MELINDA PAVEY: I acknowledge the interjections of my colleagues whose duty electorates are Bathurst and Dubbo. They hear the same stories, the same problems. I refer to a case involving three nurses in the Greater Southern Area Health Service who are employed at Cooma. They were due to be paid last Thursday, but they did not receive their pay. They come from working families. Through the maladministration of the Greater Southern Area Health Service the nurses are not being paid. I cannot inform the House which departments or parts of the Cooma hospital the nurses work in, for fear of their jobs, and for fear of intimidation within the area health service if they speak out.

It is not only about missing pay; it is also about underpayment and overpayment. Workers in Monaro have told me that the Greater Southern Area Health Service deducted money from their salaries for uniforms, but they did not receive any uniforms. The money deducted went elsewhere in the service. Later, the Greater Southern Area Health Service made further deductions from their salaries for uniforms. There are serious problems in the management of the Greater Southern Area Health Service. That fact is confirmed by the appointment of Dr Graeme Reeves. The Minister for Health misled the lower House about Dr Graeme Reeves. This matter has caused pain and hurt in communities in southern New South Wales, particularly in the electorates of Bega and Monaro. As soon as I have more detailed information, I will raise this matter in the House in a more formal way. The Greater Southern Area Health Service has serious problems. I hope the Minister for Health notes my speech and asks questions about the payment of staff within the Greater Southern Area Health Service.

I want to refer to the blow out in the waiting lists at Cooma and Queanbeyan. In 1995 when Labor was elected on the back of a promise to halve hospital waiting lists, 27 patients were waiting for surgery at Cooma 8140 LEGISLATIVE COUNCIL 4 June 2008

Hospital and 32 people were on the waiting list at Queanbeyan Hospital. After 13 years those waiting lists have increased nearly 400 per cent, to 104 patients at Cooma and 112 at Queanbeyan. The great people who work in the local health services are disillusioned with the way they are treated by the Greater Southern Area Health Service. I raise this serious issue of concern in the hope that it will receive attention.

I also want to refer to the diesel peak power generation plant that is planned for the pristine Camden Haven area. This is an issue of great concern in that local community. Last Thursday I addressed a public meeting in that area that was attended by 500 people.

The Hon. Rick Colless: Was the local member there?

The Hon. MELINDA PAVEY: The local was not there. Unfortunately, he was in Adelaide. I told the local people at the meeting that the member for Port Macquarie, Robert Oakeshott, had told the New South Wales Parliament that the Herons Creek proposal was important and probably necessary for the mid North Coast and that he had encouraged the Government through various Ministers to endorse the project. He now is moving away from that position, quite rightly, because of its impact on the local community. I have encouraged people to sign petitions and write submissions to the Minister to ensure that the peak power station proposal does not go ahead. I implore the administrator appointed by the Labor Government, the Labor-affiliated Dick Persson, to quell the fear of members of that community by telling them that the land earmarked as the proposed site for the power plant is no longer on the market for sale. [Time expired.]

MICROFINANCE

The Hon. MICHAEL VEITCH [11.12 p.m.]: I want to address the House on the positive impact of microfinance on poverty in developing countries. Capitalism and globalisation are often blamed for leaving behind and exploiting the poorest of the poor. However, stable periods of economic growth in many of the world's developing economies, such as China and India, have resulted in major decreases in poverty. Broad-based and consistent economic growth, rather than rapid economic growth, is the greatest alleviator of poverty. Governments have a major role to play in determining the economic success of a country. This includes creating a stable political system, reducing conflict, providing key infrastructure and attracting local and foreign investment. For real alleviation and a reduction in the number of those living in poverty, governments must provide access to basic services such as clean drinking water and sewerage, access to health care and education and key social infrastructure.

Once the key infrastructure is in place, microfinance should come into play. Microfinance gives the poorest people access to financial services. Microfinance refers generally to saving, insurance and loans, all on the micro-scale. It is important to understand that it is very difficult for people living in poverty to guard against sickness or injury without any form of insurance. It is very difficult for them to have any savings without a safe place to store such savings, and it is very difficult for them to make an investment without any savings. The most important, successful and exciting part of microfinance is microcredit. Microcredit is the provision of very small loans. I am talking about a loan of under $200, sometimes even under $100. They are significantly different to the loans offered in Australia. For instance, the microcredit loan is usually offered with no collateral, but with the faith that the purchased asset will derive enough income to pay back the loan.

The interest rate on these microcredit loans is much higher than the interest rates we are used to. Some loans attract in excess of 20 per cent interest rates. The reason for such high interest rates is that the costs associated with offering thousands of tiny loans are much higher than for one big loan. Microcredit loans offer those living in poverty a chance to step up. The loans mean a family can purchase an asset, use the asset in a small business, derive income and pay the loan back—what I call, in effect, forced savings. With the loan paid back, often the business can expand and others can be employed, thereby driving locally based economic activity. Often the loans include business and other training in order to ensure the success of the business. This guarantees the repayments, and there are a very small number of defaults on such loans.

The microfinance industry is financed by informal service providers, such as a local money lender, and member-owned organisations such as a credit union. However, non-government organisations make up the majority. With innovative and pioneering banking techniques, these non-government organisations often rely heavily on external donors. Australia funds microfinance through AusAID. Australia supports the Consultative Group to Assist the Poor, which aims at building a stronger worldwide microfinance industry. It is a consortium of public and private development agencies that work out of the World Bank to expand access to financial 4 June 2008 LEGISLATIVE COUNCIL 8141

services for the poor in developing countries. On reading about microfinance and, in particular, microcredit, I have learnt about some special and inspiring stories of the poverty stricken lifting themselves out of poverty and driving economic activity in their community, thereby lifting the living standards of that community.

Of further interest, it is often women who apply for these microcredit loans, turning a skill or hobby into a small home-based business. For example, a woman who is good at sewing may get a microcredit loan of $100 to buy a sewing machine. She sews clothing or other garments to sell at market and pay back her loan. She is using financial services as well as learning to save. This small business has lifted this woman and, most likely, her family out of immense poverty. If her business is successful, she may go on to employ others in the community and lift them and their families out of immense poverty. The concept is very basic and very simple, but it works. Microfinance and specifically microcredit offer people living in poverty a chance to make their skills into a business that derives income for their family and stimulates the community's local economy. However, microfinance plays only a very limited role in poverty alleviation. The best way to alleviate poverty is through governments investing in basic social and economic infrastructure.

Question—That this House do now adjourn—put and resolved in the affirmative.

Motion agreed to.

The House adjourned at 11.17 p.m. until Thursday 5 June at 11.00 a.m.