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LEGISLATIVE COUNCIL

Wednesday 12 June 2002 ______

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

The President offered the Prayers.

PETITIONS

Branch Line Above Rail Community Service Obligation

Petition asking that above rail community service obligations on branch lines be reinstated until branch line infrastructure is upgraded to a standard to ensure competitiveness with main lines, received from the Hon. Rick Colless.

POLICE POWERS (DRUG DETECTION DOGS) ACT: DISALLOWANCE OF POLICE POWERS (DRUG DETECTION DOGS) REGULATION 2002

The PRESIDENT: Pursuant to sessional orders the question is: That the motion proceed forthwith.

Precedence agreed to.

Ms LEE RHIANNON [11.08 a.m.]: I move:

That under section 41 (1) of the Interpretation Act 1987, this House disallows part 2 of the Police Powers (Drug Detection Dogs) Regulation 2002, published in Government Gazette No. 85, dated 10 May 2002, page 2745, and tabled in this House on 4 June 2002.

It is clear that the motion is to disallow part 2 of the Police Powers (Drug Detection Dogs) Regulation 2002. The Greens have moved this motion to again take a stand for justice in this State. The use of police sniffer dogs on trains is allowed under one of the regulations that was implemented as a result of the passing of the Police Powers (Drug Detection Dogs) Act 2001. This Act and the regulation that we are debating will go down in history as one of the best pieces of spin in the reign of the Labor Right in New South Wales.

The Hon. Michael Costa: Thank you for that.

Ms LEE RHIANNON: The Minister for Police said, "Thank you for that." I wonder how history will view that comment. Talking about spin, the Minister for Police is into propaganda to distort the actions of his police department. Police sniffer dogs will not reduce drug consumption, they will not reduce the sale of drugs, and they will not make our streets or our transport routes safer. Police sniffer dogs have one purpose and one purpose only. I note that some members of the Opposition are laughing.

The PRESIDENT: Order!

Ms LEE RHIANNON: The tragedy is that Opposition members will continually be outgunned on the law and order issue. We cannot beat the crew on the Government benches on the law and order issue. Opposition members might attempt to outgun Government members in relation to mandatory sentencing, but they will not win on that issue either. It would make more sense if Opposition members tried to expose the Government on its actions in relation to sniffer dogs. It is a giant advertisement for the Government to have police officers walking around the streets with sniffer dogs.

The Hon. Rick Colless: What about the sniffer dogs at the airport? Are they bad too?

Ms LEE RHIANNON: I am not talking about the airport; I am talking about what happens to the general public on our streets.

The Hon. Rick Colless: It's the same issue. 12 June 2002 LEGISLATIVE COUNCIL 2971

Ms LEE RHIANNON: It is not, and if the Hon. Rick Colless listens he will understand that. This regulation is about helping to deliver Labor back into power come 22 March 2003. The Opposition should recognise that having these dogs on our streets is a giant advertisement for the Labor Government. As Carr and Costa lead their troops into election battle, trampling over people's rights is viewed as part of the road-kill necessary to their retaining the glory of Governor Macquarie Tower. Power at any price means dabbling in a police state; people's rights are fair game for Ministers in this Labor Government. It puts to shame the title "social democrat". It resembles a police state when the Government introduces a law with regulations that allow police officers to let police dogs sniff people who are out for the night at their favourite club, travelling home after a hard day's work, or on their way to school. I do not say that lightly. Even the Premier knows this is a high-risk strategy. On 1 November last year he said:

I don't want to see New South Wales become a police state but I don't see how you can take this very useful tool away from the police.

The Premier's comments articulate many people's concerns. The Carr-Costa play copper scenario has the hallmarks of a police state. The Premier's only justification for using police dogs is that they are a "very useful tool". Who says so? Where is the evidence? Can the Minister for Police tell us how these sniffer dogs are useful? He is quick with the photo opportunities, but what about some hard data about how our streets and transport routes have been made safer? It would be good to hear a few facts and figures about the quantities of drugs that have been taken from dealers. What about a cost analysis that will enable us to assess the effectiveness of the use of sniffer dogs? The Greens would like to see some economic rationalism applied to a Government operation for once.

What about the experience overseas? If the Minister chooses to hide behind the argument that it is early days and not enough dog searches have been conducted in this State to provide hard evidence, why does he not relate some success stories from overseas? We have trawled the web and it is hard to find any good news stories on this topic. Yes, dog squads are used in some places but the tactics employed appear to be similar to those of the New South Wales Government: put on a bit of a show, set up photo opportunities, and some people will be conned. However, if we sidestep the spin doctors we find that people's civil liberties are eroded every time these sniffer dog operations are mounted.

Returning to overseas experiences, I could not find any examples of sniffer dogs being used on trains, but I did identify some cases that are relevant to this debate. In 2001 California decided to eliminate the use of anti-narcotic dogs—that is what they are called in parts of the United States of America—after the State Office of the Attorney General said that making students leave their backpacks for dogs to search was unconstitutional. It is good to hear that some Attorneys General know their job description. In September 1999 a court in California ruled that the use of drug-sniffing dogs to search students was a violation of the fourth amendment of the United States Constitution. Like our common law, this amendment protects against unreasonable searches and seizures. The court found that the use of sniffer dogs was an unreasonable search in the absence of suspicion of individual wrongdoing. In England in February this year police Commander Brian Paddick banned sniffer dogs from Brixton. The dogs are used in much of Britain, including on some trains, but Commander Paddick's actions show that some police officers have their doubts. Many jurisdictions in America consider that police dogs sniffing people is a search. Lower court case law in that country indicates that a police dog sniffing a person is generally considered to be a search. This is where people's rights are being eroded. The Hon. Charlie Lynn: Criminals' rights. Ms LEE RHIANNON: No. We are talking not about criminals' rights but about the rights of everyday people on the street. I presume that the Hon. Charlie Lynn's drug of choice is alcohol, which is legal. He should think how these operations would have worked during prohibition: a young bloke like the Hon. Charlie Lynn who wanted to enjoy his drug of choice could be accosted by a police dog who was trained to sniff out alcohol. The Hon. Charlie Lynn would not like that; he would have considered it to be an invasion of his privacy. In that sense, his attitude is deeply hypocritical. The Greens have moved this disallowance motion because we are deeply concerned about what is happening to civil liberties in this State. I remind members who are attracted to the use of sniffer dogs— especially the Opposition members who are getting agitated about this issue—that the disallowance of this regulation will not stop the use of sniffer dogs on trains. This motion provides that police officers must obtain a warrant before conducting a search. There are many cases that illustrate graphically and tragically the damage that can be done by using stiffer dogs in public places. 2972 LEGISLATIVE COUNCIL 12 June 2002

Consider the case of the man at the Blue Mountains Magic Festival. All those who are guffawing about criminals and people having nothing to fear should listen to these cases involving people who have been harassed by police sniffer dogs and distressed by the actions of their police handlers. In a very unpleasant case, a man was at the Blue Mountains Magic Festival last year. While carrying his daughter on his shoulders, he was approached by an unmarked dog—

[Interruption]

Members may remember the Greens amendment that called for sniffer dogs to be identified. That would have solved these problems. But, no, these operations must be conducted in secrecy. The dog approached the man, who pushed it away with his foot. What do you think he was charged with? He was charged with cruelty to an animal. Do members think that is funny? The police are behaving pathetically. Let us see whether members laugh at this case. An 11-year-old girl standing on the steps of Sydney Town Hall was suddenly nuzzled in the crotch by a strange dog. An aggressive police officer then accused her of being a drug dealer and demanded that she remove certain items of clothing in public.

The Hon. Michael Costa: Lies.

Ms LEE RHIANNON: I acknowledge that interjection. I take the word of this young woman and the people who were with her. There was no reason for her to lie about the actions of the police. The humiliation of this young girl in public and in front of her friends is unlikely to engender strong respect for the law. The following account taken from the snifferdogs.info web site illustrates the dangers of targeting innocent people. Jenny G. writes of her experience:

I was humiliated and embarrassed after being sniffed by police and a dog last night.

I was walking home in Kings X with my shopping, which included some meat when the dog accompanied by a police officer approached my shopping bags. In front of everyone at a set of traffic lights the police officer accused me of being a drug dealer and asked me to turn out my pockets. I tried to explain that the dog was sniffing my shopping contents but she (the police officer) didn't listen and tried to make out as if I was refusing to obey her orders …

I used to have respect for the police but now I think they are more of a menace than a help.

How dare the police accuse me of being a drug dealer …

I didn't even get an apology from the police when they had finished and they were wrong. THE DOGS HAVE TO GO.

People have an extremely high expectation of personal privacy regarding their own bodies. That is why we say most emphatically that the use of sniffer dogs breaches people's civil liberties. The use of sniffer dogs is an intrusion upon people's privacy and an affront to their dignity. I will be interested to hear the line of argument the Minister develops in this debate. A quick scan of responses on sniffer dog issues from the office of the police Minister, the police media unit and the Premier's Office shows a clear lack of consistency.

Honourable members should take their pick from these answers. In May last year I asked the Minister about the number of sniffer dogs in New South Wales, and he said there were four. A month later, in its material on the first 12 months since the New South Wales Drug Summit, the Premier's Office released information claiming that there were 20 sniffer dogs. Early this year the police media unit boasted that there were 37 dogs in New South Wales. If one asks what drugs the dogs can detect, one is given a pick-a-box line-up of answers. It is not a satisfactory situation; it is clearly spin. The Opposition has been sucked in again. It is simply showing how weak it is in adopting any real approach to ensuring the safety of our communities, because this regulation certainly will not deliver that.

The examples I have given illustrate that sniffer dogs are not being used to target the big drug couriers and dealers—and I note that the Premier has also said that. The examples also illustrate that the indiscriminate use of sniffer dogs is destroying relations between the general public and the police and damaging people's respect for the law, and that people will not tolerate their personal liberty being taken away. I commend the Greens motion to the House.

The Hon. MICHAEL COSTA (Minister for Police) [11.22 a.m.]: I speak against the disallowance motion. I will not waste the House's time on this matter, as it was debated extensively about six months ago and has the overwhelming support of the community of New South Wales. In fact, contrary to what Ms Lee Rhiannon says, when I go out and talk to people they actually ask me when the dogs are coming to their locality. 12 June 2002 LEGISLATIVE COUNCIL 2973

In relation to the nonsense comment about unmarked dogs, I suggest it would be helpful for all of us if the Greens also had a policy of marking themselves. Quite often I have to deal with people who purport to represent a particular view, but underneath it all they are actually Greens who have an ideological view. What is more disturbing to the community is unmarked Greens, and I would suggest we look at marking the Greens so we all know who they are.

The Government's drug detection dogs legislation passed last year tightens the controls in place for the use of drug detection dogs in New South Wales. The new laws introduce restrictions, accountability and oversight that were not previously a specific requirement of their use. The New South Wales Ombudsman will review the use of drug detection dogs after two years, in order to ensure that police are not unfairly infringing on people's civil liberties. The Government has carefully weighed the competing balance of personal freedom on one hand and the need to protect society from prohibited drugs on the other hand. Public places where drug detection dogs can be used without warrant include licensed premises, such as clubs and hotels; entertainment areas and venues, including dance parties and sporting and special events; and specific train lines, determined by police intelligence and clearly set out in the regulations. The legislation excludes areas such as cafes, restaurants and other public areas, unless police can justify to an authority that the use of the dogs is necessary and reasonable. Prior to the legislation, police had legal authority to use drug detection dogs in all public places and on all public transport routes without an effective regulatory system and without the requirement for warrants. The legislation has been debated extensively and is supported by the overwhelming majority of the community and of members of this Parliament. If there is any stance being perpetrated here, it is by the Greens and the minority group that supports them. This disallowance motion is a pathetic attempt by the Greens to cobble together a quota for the next election. We know how they got into this place: by cobbling together every single interest group that really did not reflect the broader interests of the community. The Greens want to get the votes of those who may well have something to fear from drug detection dogs. All I can say to the Greens is good luck, but it will not change the Government's position or the community's position in relation to drug detection dogs. I wish to address the notion that somehow drug detection dogs should only be used to target drug pushers. Drug detection dogs certainly will be used against drug pushers, based on police intelligence. But we must get the facts on this very clear. The community treats the drug problem very seriously, and let me tell the House why. Last year in New South Wales there were more than 13,000 robberies, 130,000 break-and-enter offences and 16,000 stealing offences from a person. What the crime experts tell us—people like Don Weatherburn from the Bureau of Crime Statistics and Research—is that the overwhelming driver of this crime problem is drug addiction. The notion that drug addicts do not commit crimes is an absolute nonsense. The Drug Use Monitoring in Australia Scheme identified that 60 per cent of adult males arrested for property offences tested positive to illicit drugs. So let us not kid ourselves: Drug addicts commit crimes and therefore they ought to be targeted. Certainly the most effective use of the scarce resource, drug detection dogs, is to target drug pushers, but drug addicts commit crimes and therefore they will also be targeted by police. Police estimate that repeat offenders who fund their drug habits through the sorts of property crimes we are talking about are responsible for 80 per cent of crime in this State. We have plenty of programs for those who are caught in possession of small quantities of drugs and who have no history to suggest that they are dealing or trafficking in drugs. The Cannabis Cautioning System, the Magistrates Early Referral Into Treatment Program, the Drug Court, pre-court diversion and bail conditions are all being used to give users a second chance. This is a government and a society that views these problems with the appropriate degree of compassion, but we will not tolerate drug-affected criminals who are causing inconvenience, fear and a reduction in safety for our community. Members of this place who want police to turn a blind eye to drug possession offences ignore the facts, and the facts are pretty clear. How do those members explain to the victims of drug crimes that they have fewer civil liberties than the perpetrators of the crimes? This is a stunt by the Greens to cobble together a quota to put another loon into this Parliament, unfortunately. Let us not kid ourselves. There is nothing serious about this disallowance motion. It is a complete stunt, and I urge the House to reject it. The Hon. MICHAEL GALLACHER (Leader of the Opposition) [11.28 a.m.]: The Opposition will not support the disallowance motion moved by Ms Lee Rhiannon. As the Minister said, the matter was the 2974 LEGISLATIVE COUNCIL 12 June 2002 subject of extensive discussion during the second reading debate on the drug detection dogs bill early in the life of this Parliament, and there is therefore very little need to revisit it. However, I wish to address a couple of issues raised by Ms Lee Rhiannon.

Ms Lee Rhiannon referred—though she was pulled up on it very quickly—to the need for the police to obtain a warrant to conduct a search. That is an unrealistic proposition and simply would not work. As has been put to this House on many occasions over the years, the requirement for a search warrant has proved to be more of a hindrance to the majority of our community who want stronger drug law enforcement in this State. Ms Rhiannon's proposition that police travelling on a bus or a train should obtain a search warrant upon finding someone who they believe is carrying drugs is unrealistic.

Ms Rhiannon spoke about an 11-year-old girl being approached by a dog on the steps of the town hall and being shocked by that experience. Most 11-year-old children that I know, upon seeing a labrador dog, would approach the dog. I have seen the dogs. They are not German shepherds or rottweilers; they are labradors, and they sit quietly and look friendly. I think Ms Rhiannon should probably research that allegation further and get to the bottom of it. I find her account of it quite unrealistic.

I am reminded of complaints we used to hear years ago—not from Ms Lee Rhiannon, because she was not a member of this Chamber—that police, following extensive evidence and intelligence about widespread drug dealing at licensed premises, would turn up with a search warrant for those premises and physically strip search many people there. We used to hear all those bleeding hearts saying how terrible an infringement of civil rights that was and pleading that surely there must be a better way. A far better way has been found: a scientific method that uses the sensitivity of dogs to pick up and identify on a person the smell that emanates from various forms of illicit drugs. One major benefit of that search method is that people will not be indiscriminately approached.

For example, of a group of six people, five will be quickly assessed by a dog as it zooms in on the person from whom the drug smell is coming. Those five people, who previously would have felt that their rights were being infringed, will go away saying that at least they were not picked on. I suggest that most often the other five would not have been aware that their colleague was carrying drugs and putting the whole group at risk.

With this far better method we can strip away—pardon the expression—people who are not involved in drugs in large licensed premises. Dogs will be used to identify the principal targets and separate them from other people. I do not believe for one moment that this search method will infringe on civil rights. The use of dogs does not infringe on our civil rights, but drug dealers and people carrying drugs do infringe on them. What about our rights? What about the rights of our children? What about the families that we represent in this community? Nobody talks about the rights of families, only about the rights of the small drug-abusing minority. If the Greens want to increase their vote in this State, it is about time they went out and represented the other 99 percent of the electorate and started talking about kids' rights and community rights rather than the rights of the small eclectic group they represent. The Minister will not be able to address this anomaly immediately, but according to the bus routes prescribed in the regulation the search powers stop at Kempsey and Grafton. There is no mention of that provision being applied further north. I do not see mention in the regulation of the Pacific Highway passing through Byron Bay or the Mullumbimby area. That is either an oversight, or is indicative of concern about the dogs suffering repetitive strain injuries and having to make workers compensation claims. I draw that to the Minister's attention. The Hon. Dr ARTHUR CHESTERFIELD-EVANS [11.34 a.m.]: I support the motion. It seems absolutely necessary. This Government does not acknowledge that prohibition has not worked. Prohibition did not work with alcohol in the 1930s and it is not working with other drugs now. I was very impressed when Bob Carr ran the Drug Summit. I thought to myself: "He is at the beginning of his term; he is going to try and change the paradigm. He is going to get the experts to talk and they will win the debate. They will put the facts on the table as part of the process of changing society." But what has happened? Bob Carr has wimped out. He has adopted a right-wing, intolerant approach. His gaols are filling up and he is pumping money into the system. He has done nothing much about drug treatment and is basically choosing populism, the lowest common denominator, rather than trying to change the paradigm in a sensible fashion. The Opposition, like a dog itself, trots along behind. It does not have much space out on the right because Bob Carr has gone so far to the right. It has no idea what to do, other than trying to outdo him by going 12 June 2002 LEGISLATIVE COUNCIL 2975

even more insanely to the right. There is not much room out there, nor are there many votes, and the Opposition is not very popular. Sadly enough, there are no ideas or innovations coming from the Opposition. Any new ideas in this Parliament come from the crossbench. The Government sits with its tired old ideas but the Opposition has no ideas at all. The Greens have put forward a finite position and I congratulate them on it.

I have spoken about sniffer dogs twice before—on 7 June last year and on 13 December last year—and about the dangers of that search method. One question time the Government promised me that a protocol would be applied to the use of sniffer dogs. I questioned the Government's view following the humiliation suffered by a friend of mine when approached by a sniffer dog on Central station. I might tell that story again because the riffraff are still making a racket opposite. This woman is in a very responsible position in the public service.

The Hon. Dr Brian Pezzutti: Point of order: I take personal offence at being named as riffraff by the Hon. Dr Arthur Chesterfield-Evans. I ask that he apologise and withdraw the remark.

The PRESIDENT: Order! If the member referred to another member of the Chamber as riffraff, I would ask him to withdraw the implication.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS: I did refer to Opposition members collectively as riffraff because of the noise they were making. I would have thought that that was a reasonable description of the way they were behaving.

The Hon. Duncan Gay: To the point of order: The genesis of the honourable member's comment that we were riffraff was that he seemed to say he had been talking to sniffer dogs. The thought behind that remark must be considered bizarre.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS: To the point of order: I am certain that Hansard will show that I was talking about sniffer dogs, but if that minor slip happened I still do not think it makes any difference. I still think the rowdiness of Opposition members warranted them being called riffraff and as such it was a description of fact.

The Hon. John Jobling: To the point of order: The honourable member clearly referred to the Opposition both in general and in particular as riffraff. One of my colleagues has been offended by that remark and as such has exercised his right under the standing orders to ask the honourable member to withdraw the remark as he was so offended by it. I would contend that the standing orders are clear, and that if offence has been caused the offending words should be withdrawn.

The PRESIDENT: Order! If the Hon. Dr Arthur Chesterfield-Evans had referred to the Opposition as behaving like riffraff, that would be an acceptable parliamentary term. However, if the member referred to the Opposition as riffraff, I would regard such an implication as unparliamentary and would ask him to withdraw it.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS: I withdraw the remark that members were riffraff and say they were merely behaving like riffraff if this indeed is helpful to the parliamentary process! As I was saying, I am disappointed that the Minister did not have a protocol for the carrying out of the searches. My friend, as I said, was a very responsible person in a senior position in the public service. She had used marijuana weeks and weeks before and had an empty plastic bag in her handbag. As she was walking through the turnstiles at Central station she was taken away from her friend whom she normally travels in the train with each day and searched as if she was a criminal—with all the body language—in a very public position in the middle of Central station. This woman had previously been the subject of an attempted rape and because of that was very fearful of approaches to her. She was very traumatised by the experience. This person in a highly responsible job, doing a very good job for society, was intimidated by this infringement of her civil liberties. For the Leader of the Opposition to say "It is no infringement of my civil rights so it does not really matter" is a nonsense and shows how little insight the major parties have into this problem. This erosion of our civil liberties arises from the lack of a sensible drug policy, and it is very much time that was changed.

I also pick up the aspersion by the police Minister against the Greens—that they are a tiny little rump group that hardly deserves to be in this Parliament. The Government keeps forgetting that it has 37 per cent of the primary vote in this House, the crossbench has 35 per cent and the Opposition has 28 per cent. Government members strut around here as if they should have 100 per cent of the power, and regard other members as somehow disturbing the natural order of the Government having 100 per cent of the power. They have far more power than they deserve from the voters and they should remember that. 2976 LEGISLATIVE COUNCIL 12 June 2002

The Hon. Ian Cohen: Arthur, have you used cannabis?

The Hon. Dr ARTHUR CHESTERFIELD-EVANS: Yes.

The Hon. Michael Costa: When? Not before this speech, I hope.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS: About 20 years ago. I believe my credentials against drugs are better than those of anybody else in this House, and I stand on my record. This is a very conservative, Tory, prohibitionist regulation. It is quite damaging to our civil liberties. It marks yet another step along a road that we will eventually have to travel back on. Our civil liberties are being reduced, police numbers are going up, the gaols are becoming full and we are not solving the drug problem at all. This is simply another step along a foolish road and we have to go back. I note that nearly all the train routes in Sydney are covered in the regulation but only some bus routes. This seems quite arbitrary and odd, particularly the lack of a protocol which I believe the Minister had promised in question time.

The Hon. Michael Costa: No, there is a protocol.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS: The protocol does not relate to the civil liberties of those who are being searched as a consequence of the dogs' actions in terms of their privacy in public places. The media, which is said to be totally on side, criticised the Government's actions in two significant articles. An article in the Sydney Morning Herald of 7 November 2000 referred to some very unfortunate incidents similar to the one my friend suffered at Central station. Lucy Clark wrote an article in the Daily Telegraph of 24 May this year that also referred to the civil liberties aspects very articulately. I do not believe that the policy is popular and as more and more people are harassed I think it will become less popular. The absurd policies of the Government and its quiet little lap dog, the Opposition, need to be changed. The motion should be supported.

The Hon. IAN COHEN [11.44 a.m.]: I support the disallowance motion moved by Ms Lee Rhiannon. It really does show the hypocrisy of this House.

[Interruption]

I wish Reverend the Hon. Fred Nile would get a bit of consistency and look at the issue for a change. We are talking about a human rights issue but all the Minister thinks about is whether it will gain votes for the Government.

The Hon. Michael Costa: When have I said that?

The Hon. IAN COHEN: You said it before in your interjection. When someone raises an issue in this House you can only think about it in terms of votes and popularity. So what if it loses votes! Young people are being harassed. You would be the ultimate hypocrite. You have smoked dope, haven't you? You have smoked marijuana in the past, haven't you? Deny it to the House and be a Minister who lies to the House. You have smoked dope in the past and you should just get up and admit that you are in the same situation as many young people these days.

The DEPUTY-PRESIDENT (The Hon. Janelle Saffin): Order! The Hon. Ian Cohen will direct his remarks through the Chair.

The Hon. IAN COHEN: I ask the Minister to deny ever smoking marijuana in the past. I am confident that if he has any go in him he will say yes, because we all know that he has. Madam Deputy-President, I ask that you give the Minister the opportunity to put that on the record because it is something he should come clean on, just as he is expecting everyone else in the community to do. Young people on public transport will be encouraged to carry harder drugs that are less easily detectable than marijuana if they are harassed by sniffer dogs on public transport.

The Hon. Michael Costa: They are all detectable.

The Hon. IAN COHEN: You probably smoked and you cannot remember. The problem with you is that you cannot remember the fact that marijuana has a far more pungent odour than virtually all the hard drugs such as heroin and cocaine. They are not as easily found by sniffer dogs, which can smell marijuana from the 12 June 2002 LEGISLATIVE COUNCIL 2977 other side of the street. The fact is that the Minister is a hypocrite. He is driving a law and order agenda when he has smoked dope before, and so have virtually all of his friends and members in the union movement. They have all had a little puff of marijuana. It is part of our community. Big deal! I will be interested to hear what the Minister says. It is ultimate, absolute hypocrisy.

The Hon. Michael Costa: What about the crimes?

The Hon. IAN COHEN: The crimes involve the dealers, the Mr Bigs—not harassing young kids because they have a joint in their pocket.

The Hon. Michael Costa: What about break and enters and assaults?

The Hon. IAN COHEN: Do you reckon the dealers are going to be on public transport? They are going to be driving around in their Mercedes, Saabs and Volvos. The people who are actually making the money are not out in the western suburbs catching trains.

The Hon. Michael Costa: What about the crimes? The Hon. IAN COHEN: What crimes? To be strip searched for one joint, harassed by the police for one joint! I cannot believe it. You are the ultimate hypocrite in this House. You call us Greens loonies and you are out there saying one thing and you come into this House and you pretend to be the master of law and order. And you cannot even get it right. I will quote your tome, the Daily Telegraph. The Hon. Michael Egan says that he reads the Daily Telegraph. You bounce your policies off the Telegraph on a daily basis. In an article entitled "Sniffing out invasion of our civil liberties" in the Daily Telegraph on 24 May— The Hon. Michael Costa: Say who it is written by. The Hon. IAN COHEN: Lucy Clark. The Hon. Michael Costa: From where? The Hon. IAN COHEN: It is an article in the Daily Telegraph of 24 May 2002. The Hon. Michael Costa: From where? The Hon. IAN COHEN: I have just realised why the Minister has such an affinity with sniffer dogs: he barks like one. Why does he not come up with some interjections that have some sense? He thinks he can just bark people down. The Hon. Michael Costa: Tell us who wrote the article. The Hon. IAN COHEN: I said—Lucy Clark. The Hon. Michael Costa: And where is she from? The Hon. IAN COHEN: I do not know. It is an article from the New South Wales Parliamentary Library. It is where I get my resources. The article reads:

Fear and confusion flicker across the faces of some travellers. Some sink in their seats, some are oblivious, perhaps one or two will nervously look for an escape. The dog is set lose, and the search begins.

This is not a generic movie scene set in the middle of last century, involving European accents and long leather trench coats. Nein, this is New South Wales, mein freund, in the year 2002.

And this is progress: innocent teenage schoolgirls accused of being drug dealers, hapless businessmen asked to turn out their pockets and briefcases in crowded train stations or in pubs in front of colleagues, students patted down like criminals outside nightclubs.

We now live in a society where it is possible to be going about your daily business, going to and from work by train or bus, to be stopped by police and searched—without a warrant—because a labrador thinks you might be carrying an illegal substance... if that labrador singles you out, you can be humiliated in front of a crowd of commuters, asked to empty your bags, and treated as though you are guilty until you can prove you are innocent.

The hoary old chestnut of an argument, "if you have nothing to hide you have nothing to fear", does not account for the fact that the continuing erosion of our civil liberties, in tandem with increasing police power, is a very great fear; nor does it take into account the 1100-plus complaints to the NSW Council for Civil Liberties from innocent members of the public invariably describing experiences with sniffer dogs and police as humiliating, embarrassing, intimidating, offensive and insulting. 2978 LEGISLATIVE COUNCIL 12 June 2002

Then there's the "If we don't object to random breath testing why should we object to random sniffer dog searches for drugs?" argument.

For a start, being random breath-tested in the comfort of your own car is different from being sniffed by a dog, stopped by police, physically searched and asked to empty pockets and bags in public.

Also, if you are drunk and behind the wheel of car, you may very well kill someone. If you're carrying a small amount of marijuana on a train or in a pub, the only person you're likely to hurt is yourself.

Is this intelligent policing? Is using a hopelessly pressured police service and expensive sniffer dogs on our public transport in order to fix the drug problem a wise use of resources? Does Police Minister Michael Costa think that Mr Big is catching the train?

According to civil libertarian Terry O'Gorman, the use of sniffer dogs on public transport targets young and marginalised people who simply use drugs rather than deal in drugs …

The angry father of a 15 year-old schoolgirl who was "shocked and embarrassed" after being searched at a train station writes this on the NSW Council for Civil Liberties website: "I believe that any measure of public benefit is far outweighed by the oppressive police-state atmosphere created by a warrantless searches."

Meanwhile, two days ago, a website designed to alert Sydneysiders to the whereabouts of sniffer dogs was besieged by visitors.

There was a lot of public interest in that. Some people have said that the Greens are loons, but regardless of whether a matter is politically popular or not, I have always defended people's rights. During debate in this House it has been said that sometimes the worst criminals create the most effective examples at law. We are talking about young people who are being harassed and alienated and it is important to recognise that probably about one-third of the members of this House have smoked marijuana at some time.

The Hon. Michael Costa: But they have not committed a crime.

The Hon. IAN COHEN: No-one is committing a crime, other than possessing a small amount of marijuana. The Minister is off his rocker, he has absolutely lost the plot. He has not got the connection, he does not understand, there is a synapse missing. Some kid with a joint in his or her pocket is not the same person that is undergoing searches without a warrant.

The Hon. Duncan Gay: Point of order: The honourable member has indicated that about one-third of the members of this House have smoked marijuana.

The Hon. Jan Burnswoods: That would be an underestimate.

The Hon. Duncan Gay: And it has been reinforced by the Labor member who said that that would be an underestimate. I ask the member to either withdraw that allegation or produce evidence to back it up. And I ask the Labor member to do the same.

The Hon. IAN COHEN: To the point of order: I take the point made by the Deputy Leader of the Opposition that I do not know the figures. Therefore I withdraw the comment that I made, perhaps a little recklessly. However, I say that some members of this House, other than the so-called loony Greens and fellow travellers—

The Hon. Dr Brian Pezzutti: What about you?

The Hon. IAN COHEN: Yes, I have smoked marijuana in the past. I have said that plenty of times. For the past three years, however, I would put myself beyond even Reverend the Hon. Fred Nile as a member of this House who has taken the least drugs, including caffeine, tea, coffee, tobacco, hard drugs or analgesics. I do not take them!

The Hon. Dr Brian Pezzutti: What about marijuana?

The Hon. IAN COHEN: I have not taken marijuana in recent times. I have a very strong commitment to a healthy lifestyle. I get my highs through endorphins. I engage in sport in natural environments and I like to encourage young people to take that direction in life. I am very serious about that. However, the Government, goaded by the Opposition, supports drug law and order policies— [Time expired.] Reverend the Hon. FRED NILE [11.54 a.m.]: The Christian Democratic Party opposes the disallowance motion. I find it offensive to sit in this House and hear abuse directed at a Minister of the Crown in 12 June 2002 LEGISLATIVE COUNCIL 2979

such a way as we just heard in the speech of the Hon. Ian Cohen. It has never occurred in this House in the 21 years that I have been here. The member may not agree with the Minister or with Government policy but he should not resort to personal abuse, especially of a Minister of the Crown, which I found to be very offensive. Obviously this issue has touched a very raw nerve with the Greens. Why did Ms Lee Rhiannon move a motion that she knew would be defeated? The Minister spoke about election campaigns and that touched a very raw nerve with the Hon. Ian Cohen. Maybe the Minister is not aware that there is a preselection conference coming up.

The Hon. Michael Costa: No, I am not aware of that.

Reverend the Hon. FRED NILE: Yes, there is, so he may have been closer to the mark than he realised. There is some play-acting going on here.

The Hon. Ian Cohen: Point of order: Reverend the Hon. Fred Nile is inferring that I made that statement because of some preselection process. The reality is that the votes are already in the box, there is nothing to be gained at this point. I ask the honourable member to withdraw the accusation.

Reverend the Hon. FRED NILE: To the point of order: I did not refer to an individual. I am happy to withdraw that statement if the preselection ballot has been held. However, I still believe that that was part of the election campaign, as the Minister stated.

The Hon. IAN COHEN: Further to the point of order: I ask the member to withdraw that statement. What I said has nothing to do with the preselection because it has been completed and I do not know whether I will be involved in the election campaign, personally or not, given that I do not know the result of it as yet.

Reverend the Hon. FRED NILE: Further to the point of order: I have withdrawn my remarks referring to the preselection.

The DEPUTY-PRESIDENT (The Hon. Janelle Saffin): Order! I note that Reverend the Hon. Fred Nile has withdrawn his comments.

Reverend the Hon. FRED NILE: The Hon. Ian Cohen was grasping for words to describe the Greens party. Some people call it the watermelon party; he may like to think about that. The disallowance motion is designed to sabotage the war against drugs and the use of sniffer dogs. It is not as though sniffer dogs are roaming all over the place; they are always with highly qualified and trained police officers. Obviously sniffer dog assist in the identification of people who are carrying drugs. Another matter that is very important in identifying people carrying or using drugs on public transport is the recent public statement by Mr Scully.

The Government was very discouraged by the large decrease in the number of people using public transport. It was stated that there had been a reduction of 20 per cent in the number of passengers on suburban trains. One reason may be that the public is concerned about safety on trains, about gangs, about people carrying and using drugs, about dealers carrying drugs on trains. The use of trained police officers and sniffer dogs will provide a greater degree of protection and safety on the trains. It will also discourage criminals from using the public transport system if they are carrying drugs because they may be identified. There is a problem with drug dealers using a Mercedes Benz, a BMW or whatever vehicle the Greens referred to. That is why I support increased police powers to conduct random drug tests and random drug searches of cars without all the necessary legislative requirements. Once again, people involved with drugs will be afraid not only to use the trains but also to use their cars on public roads, because they may be stopped by a random drug testing unit. Pursuant to sessional orders business interrupted. QUESTIONS WITHOUT NOTICE ______

CENTRAL COAST RAIL PROJECT The Hon. MICHAEL GALLACHER: My question without notice is addressed to the Minister Assisting the Premier for the Central Coast. Does the Minister recall the Premier launching the $800 million Central Coast high-speed rail link project at Woy Woy railway station on 24 November 1998? Why has the 2980 LEGISLATIVE COUNCIL 12 June 2002

Minister fundamentally failed the people of the Central Coast by allowing his Government to renege on that promise of a high-speed rail link, which would have provided an extra 5,000 seats for commuters during the peak hour? The Hon. JOHN DELLA BOSCA: The Leader of the Opposition promised me that he would ask me a good question. I hope that was not it. I would not describe that as a good question if I were the Leader of the Opposition, which I do not intend ever to be. The Hon. Michael Gallacher: Why? Are you leaving next year? The Hon. Michael Egan: I have been Leader of the Opposition and I can tell you that it is a miserable job. The Hon. JOHN DELLA BOSCA: That is the voice of experience. It is a question for the Minister for Transport, and I will provide the Leader of the Opposition with an answer as soon as practicable. WORKPLACE SAFETY SUMMIT The Hon. RON DYER: I ask the Special Minister of State, and Minister for Industrial Relations a question without notice. Will the Minister inform the House what the Government is doing to reduce the number of workplace fatalities and to protect the long-term health and safety of the workers of New South Wales? The Hon. JOHN DELLA BOSCA: Honourable members will be aware that since coming to power in 1995 the Government has devoted a great deal of its resources to improving the health and safety of workplaces in this State. Therefore, it would come as no surprise that statistics show that workplace injuries in New South Wales have fallen for five successive years. Preliminary data indicates that workplace fatalities fell significantly in the year to June 2001, from 181 the previous year to 139. While this fall should be applauded, the fact that 139 families in New South Wales were affected by workplace accidents is not acceptable to the Government. We will continue to promote and police occupational health and safety through WorkCover New South Wales and strive to lower this figure as far as possible. With this in mind, and to mark the International Day of Mourning for people killed or seriously injured at work, in April this year I took the opportunity to announce that an historic Workplace Safety Summit would be held in Bathurst in July. The summit, to be held over three days, is a clear demonstration of the Government's commitment to reducing the unacceptable toll of injury and illness in our workplaces and communities. The summit is an initiative in association with the New South Wales Labor Council and employers, and entails a joint government and industry approach to ensure that current gains in occupational health and safety performance in New South Wales continue well into the future. The Workplace Safety Summit will feature internationally acclaimed speakers, as well as interactive plenary sessions and industry specific workshops, where participants will have the opportunity to take part in and contribute to the future directions of industry and government. In hosting this important event, I hope that the summit will provide a timely forum for the corporate sector, government, small business and local communities to contribute, debate and discuss new ideas in an attempt to find better solutions to the issues of concern. In launching the Workplace Safety Summit, I announced this State's commitment to a reduction of at least 40 per cent in workplace injuries and illnesses by 2012. The summit is an important step in this process, and New South Wales is proud to be the first State in Australia to embark on a collaborative strategy in support of the national occupational health and safety targets. In our commitment to reaching these targets, the Workplace Safety Summit follows closely on the new groundbreaking occupational health and safety legislation introduced in New South Wales in September 2001. With its emphasis on risk management and employer-employee consultation, this new occupational health and safety regime, combined with reforms to workers compensation and injury management principles, marks a watershed in legislation protecting workers in this country. New South Wales is leading the way in innovation. I invite all participants in the Workplace Safety Summit, both international and local, to work together to ensure that the good work done to date is consolidated and extended for the benefit of workers and their families throughout New South Wales. MACQUARIE GENERATION GAS-FIRED POWER STATION The Hon. DUNCAN GAY: My question is addressed to the Treasurer. Is the Treasurer aware that Macquarie Generation has lodged development applications for a new gas-fired power station in the Hunter Valley? Will the Treasurer explain how that development fits with his assertions and the assertions of his Treasury Secretary, John Pierce, that the State Government is not in the business of building power stations? 12 June 2002 LEGISLATIVE COUNCIL 2981

The Hon. MICHAEL EGAN: I am not aware of the reference that the Deputy Leader of the Opposition has just made. The fact is that New South Wales will not need a base load generating plant for quite some years. However, at a much earlier date we will need some new peaking capacity, and that is likely to be in the form of a gas-fired power station. Of course, the private sector or the public sector may provide that gas- fired power station. I expect that all our generators would be looking at those prospects. I expect also that privately owned generators in Australia would be looking at those prospects. No decisions have been made by anyone, but I expect all players in the industry to be looking at the need for future peaking capacity in New South Wales.

The Hon. DUNCAN GAY: I ask a supplementary question. Given that the Government's rationale for selling Pacific Power International was a claim that there was no work for it to do, will the Treasurer detail who will design and commission the new Macquarie Generation peaking plant?

The Hon. MICHAEL EGAN: As honourable members will be aware, prior to 1993 Pacific Power International had a great deal of experience in designing and building coal-fired power stations. Of course, a gas-fired power station is not a coal-fired power station.

POLICE CAR MARKINGS

Reverend the Hon. FRED NILE: I ask the Minister for Police a question without notice. Is it a fact that a new policy has been announced that the majority of police cars will be publicly identified as police cars? Is it a fact that this policy will provide only one unmarked police car in each command, which would severely restrict the ability of police to conduct surveillance and question or investigate witnesses without alerting the community? Will the Minister introduce removable, adhesive police logos, which can be removed when unmarked police cars are required for urgent covert investigations?

The Hon. MICHAEL COSTA: I thank Reverend the Hon. Fred Nile for his good question. There were media reports over the weekend that the police force had changed its policy relating to the marking of vehicles and, to an extent, that is true. The policy now is that markings of the police fleet will be lifted from about 40 per cent to 80 per cent. Not only that, but also the national standard markings will now apply to police vehicles. However, the media reports are inaccurate. The Deputy Commissioner Operations, David Madden, released a statement that vehicles for covert operations would not be fitted with those markings and that operational police according to need would determine those vehicles. So it is incorrect to say that an instruction has been issued by the Deputy Commissioner Operations, Dave Madden, who is the person responsible for doing with the fleet what was reported in the press over the weekend.

The Hon. Duncan Gay: What was his name?

The Hon. MICHAEL COSTA: Dave Madden.

INDUSTRIAL RELATIONS

The Hon. PETER PRIMROSE: My question is to the Minister for Industrial Relations. Can the Minister provide examples of how different industrial relations systems attempt to settle disputes?

The Hon. JOHN DELLA BOSCA: There are some interesting examples from which to choose. I note that the Federal Minister, Tony Abbott, yesterday called on steel unions to end their three-week picket at Western Port in Victoria. Essentially, it was an admission of failure of the Federal Workplace Relations Act. Early this morning, Victorian police wearing riot gear, broke through the picket line and forced picketers away from the steelworks entrance in an attempt to get trucks into the port. It has got a feeling of Peter Reith about it, has it not? It is the latest example of why the current Federal industrial relations system is failing to deliver. Tony Abbott's legislation promotes a culture of warring parties in the workplace fighting to the bitter end. Protracted strikes, pickets and lockouts occur all too frequently under this divisive system, with the Australian Industrial Relations Commission reduced to being a mere spectator on the side lines.

The results of this dispute to date are: employees on strike for three weeks; a threat to car manufacturing and its thousands of jobs across the nation; the company threatening to take contempt proceedings against its own employees; and, this morning, a man taken to hospital with injuries sustained in the picket line. Students of industrial relations, like the Leader of the Opposition, should compare and contrast the recent dispute at the Port Kembla steelworks of BHP Billiton that occurred within the New South Wales 2982 LEGISLATIVE COUNCIL 12 June 2002 framework. That dispute related to negotiations for a new enterprise agreement, technological change and job security. Despite periods of industrial action in late 2001, both the steel unions and BHP were choosing not to invoke dispute handling powers of the New South Wales Industrial Relations Commission.

Mindful of the consequences of such a bitter and costly dispute for the region and the industry, I initiated, on behalf of the Government, dispute proceedings before the Industrial Relations Commission for conciliation as a matter of urgency. The conciliation process prevented a general stoppage at the plant and provided for orderly negotiations under the direction of Vice-President Justice Walton. BHP and the steel unions agreed that the outcome would be binding, and unions agreed not to undertake any industrial action during the conciliation process. So instead of a lockout, a strike, a loss of production and trucks charging through picket lines, we had a dispute that was worked out peacefully, and production continued. The recommendations provided wage increases and job security for steelworkers and delivered BHP an all-important continuity of supply.

BHP Flat Products President, Mr Lance Hockridge, has described the outcome as a watershed and a good outcome for everybody that allows the company to respond to the rapidly changing global business. Under the Federal approach, we would have had the stand-off of lockouts and chaos. The Federal approach could well have shut down the Port Kembla steel industry, perhaps, for good. The margins in the steel industry globally simply do not allow for shut downs of weeks and months. In New South Wales we have a co-operative industrial approach, with a strong independent umpire, respected by all sides. It is a system that delivers for workers and employers and for the New South Wales economy competing, as it has to compete, within the global framework. It is a system this Government will always defend.

The Hon. PETER PRIMROSE: I ask a supplementary question. I note the Minister's disturbing example of what is happening in Victoria. Can the Minister elucidate his answer by providing details of any involvement by the Federal Government in the so-called settling of that dispute?

The Hon. JOHN DELLA BOSCA: The only information I have at my disposal is that published in the Age newspaper today which confirms that the Federal Minister, Mr Abbott, has been in contact with the companies involved apparently "just to keep track of events". Minister Abbott denies he is taking a proactive role. Of course, our proactive role in the BHP Billiton dispute in New South Wales helped settle the dispute. Not only does the Federal Minister deny a proactive role, but also his spokesman told the Age newspaper, "Why would some of the biggest multinational car companies in the world act because of any advice we might give them?" Why, indeed? That is a very good point.

CESSNOCK CORRECTIONAL CENTRE

The Hon. DAVID OLDFIELD: My question is to the Minister representing the Minister for Corrective Services. Is the Government concerned by reports that serious violence is a common problem within Cessnock Correctional Centre? Given the most recent reports of violence, will the Government acknowledge that the keeping of those facing murder charges, such as Adam Craft, with schizophrenics, such as Robert Manning, places people in an unfair and unnecessary state of danger? Is the reportedly unprovoked attack on Manning by Craft in the Crisis Management Unit, resulting in Manning being in a coma, related to that unit now being closed? If not, why has the unit been closed? Has the Government learned anything from incidents such as the near fatal bashing of Jamie Partlic? Will the Government learn anything from this near fatal bashing of Robert Manning?

The Hon. JOHN DELLA BOSCA: I will ask the Minister for Corrective Services to provide a detailed answer as soon as possible.

DEPARTMENT OF COMMUNITY SERVICES STAFFING

The Hon. PATRICIA FORSYTHE: My question without notice is to the Treasurer, representing the Premier. What action will the Government take to address complaints by the Public Service Association about the reassignment of staff from the Department of Community Services to areas of crisis, which they describe as "simply moving the deck chairs around the Titanic"?

The Hon. MICHAEL EGAN: That is a very silly suggestion, if the Hon. Patricia Forsythe is asserting it on her own behalf. Quite obviously, in any area of government service provision it is important that employees are deployed where they can do the most good. 12 June 2002 LEGISLATIVE COUNCIL 2983

The Hon. Duncan Gay: This is what the Public Service Association says. The Hon. MICHAEL EGAN: I thought the Hon. Patricia Forsythe was quoting it with some sort of approval. Let me assure honourable members that the Government will do what it can to make sure that staff in every area of public employment are used to their best advantage. The Hon. Duncan Gay: Where they are needed. The Hon. MICHAEL EGAN: Where they are needed. DEPARTMENT OF JUVENILE JUSTICE DUBBO SCHOOL HOLIDAYS ACTIVITIES PROGRAM The Hon. TONY KELLY: My question is to the Minister for Juvenile Justice. What action has the Department of Juvenile Justice taken recently in Dubbo to provide activities for vulnerable youths, thereby reducing the risk of offending? The Hon. CARMEL TEBBUTT: I know that the Hon. Tony Kelly takes an interest in matters taking place in Dubbo, and he will find this answer most interesting. In Dubbo, as in many towns and cities, school holidays have long been periods of high risk for offending by vulnerable young people. These young people are often subject to peer pressure, have little adult supervision and can slip too easily into antisocial behaviour. Generally, this is of a minor or nuisance type, but it can sometimes extend to theft, burglary and car stealing. I am pleased, therefore, to report to the House a positive development which is a school holiday activities program initiated by the Department of Juvenile Justice and local police in Dubbo. Those agencies were concerned about the shortage of safe, affordable, educational holiday entertainment for young people, recognising that young people who have little to do are young people at risk of getting involved in offending. With the help of a range of government and community agencies, a month-long program was designed, to be accessible to all people under 18. The aim was to give them interesting things to do. At the same time the program would show them how life in Dubbo could be far more constructive and enjoyable than perhaps had been their experience. They would be exposed to good role models, learn new skills and make new friends. Resources were drawn, at no cost or at discounted rates, from local enterprises and agencies, including the Old Dubbo Gaol tourist centre, McDonald's Family Restaurant, the Aboriginal and Torres Strait Islander Commission, Dubbo City Council, Elders Ltd and Macquarie Area Health Services. In fact, the staff of the Department of Juvenile and Justice showed considerable enterprising skills in getting support from that range of agencies. The result was school holidays this year packed with activities for the young people of Dubbo. In the January and April school vacations, the highest participation level for one day was 82. It was only the limitation of bus seats that kept the average participation number down to 38 a day. Activities included visits to the Western Plains Zoo, the Military Museum, the Sports World complex, the local municipal pool and water slides, Old Dubbo Gaol and the Police Service education unit. As well, they went yabbying, had bush tucker lunches, went fishing, did fruit and vegetable tasting, made pottery, learned about occupational therapy, played safety education games and went to ear and eye testing. It provided young people in Dubbo with an opportunity, which they otherwise may never have had, to participate in a range of local activities. Each day participants were collected by bus from advertised pickup points, and a cooked lunch was provided. Officers of the Department of Juvenile Justice described the program as a great success. I am pleased to report that the police acknowledge that, for the most part, January and April this year were noticeably quieter than previously on the juvenile crime front. I am advised that the Department of Juvenile Justice and the police will consider running the program in future holiday periods. In relation to graffiti in Dubbo, I can advise the House that I was pleasantly surprised on a recent visit to discover that the Government's graffiti clean-up partnership with the local council and the Police and Community Youth Club is having the desired result of reducing unsightly graffiti. Since the program began in Dubbo two years ago, 26 juveniles on community service orders have clocked up 1,164 hours of graffiti removal—to the great satisfaction of the local community. As the scheme progressed, it became increasingly evident that we were winning the fight against graffiti in Dubbo. Indeed, earlier this year the program had to cease on two occasions because there was simply not enough graffiti to keep a team of young people continuously busy. The result is that juvenile offenders are now embarking on programs to prevent graffiti. The Hon. Duncan Gay: There are a number of sites to go to and see a heap of graffiti still around. The Hon. CARMEL TEBBUTT: This is in Dubbo. I challenge the Deputy Leader of the Opposition to find sites in Dubbo. On the day I visited Dubbo a team of juveniles was busy tidying up tennis courts identified by the Police and Community Youth Club as vulnerable to graffiti, and I am pleased to report that a month later that site has not been spoiled. 2984 LEGISLATIVE COUNCIL 12 June 2002

CONTAMINATED INDUSTRIAL WASTE FERTILISER USE

Ms LEE RHIANNON: I direct my question to the Special Minister of State, representing the Minister for Agriculture. In respect of the Minister's answer on behalf of the Minister for Agriculture given yesterday, does the Government approve of the fact that about 100,000 tonnes of commercial waste is injected into New South Wales soils every year, largely unmonitored? Is the Minister aware that Simon Leake, a consultant to Olympics 2000, and his company Applied Soil Technology Pty Ltd are involved in this practice? Is the Minister aware that Mr Leake, fellow directors and the company were named by ICAC to be corrupt in relation to the bribery of an Environment Protection Authority officer? Is the Minister aware that the liquid wastes being currently injected into New South Wales farm soils include by-products from pharmaceutical, detergent, ammonia and other manufacturing processes?

The Hon. JOHN DELLA BOSCA: I thank Ms Lee Rhiannon for her question. It is a very detailed and technical question and relates to specific activities by individuals, so I will refer it to the Minister for Agriculture for his considered response.

DEPARTMENT OF COMMUNITY SERVICES CENTRAL COAST SERVICES

The Hon. JAMES SAMIOS: My question without notice is to the Treasurer. Has the Treasurer sought or received advice from Treasury representatives who worked on the Kibble inquiry into the Department of Community Services regarding the urgent need for additional DOCS staff in areas such as the Central Coast, which has the highest rate of child abuse notifications in the State? Can the Treasurer tell the House what action he is taking to make sure that children at risk are protected?

The Hon. MICHAEL EGAN: I do not want to go into matters contained in the budget, but I can proudly tell the House that in the course of the past seven years this Government has doubled expenditure on community welfare. Child protection in particular has received significantly increased funding. In the past year or two there have been substantial increases in DOCS staff, and the Government is currently negotiating with the Public Service Association for additional staff. Those additional staff will be engaged if they can be deployed efficiently. That is the reason for the negotiations between the Government and the Public Service Association.

LOWER MURRAY RIVER RECREATIONAL FISHING

The Hon. HENRY TSANG: My question is to the Minister for Fisheries. What has the Government done to consult the lower Murray River community about recreational fishing rules? The Hon. EDDIE OBEID: I thank my colleague the Hon. Henry Tsang for his question. This Government is working with the community to protect our environment and aquatic biodiversity. This includes our inland waterways and native species within them. NSW Fisheries has held a series of meetings asking local communities to have their say about ways to protect the lower Murray River. They are also being asked about how recreational fishing should be managed. The meetings were held last week in Wagga Wagga, Leeton, Albury, Delinquin and Buronga. The Hon. Michael Gallacher: Delinquin? The Hon. Duncan Gay: Deniliquin.

The Hon. EDDIE OBEID: Deniliquin—my apologies. They followed last December's decision by the independent Fisheries Scientific Committee to recommend that the lower Murray aquatic ecology should be listed as endangered. Their decision was based solely on scientific evidence. Major sections of the Murray and Murrumbidgee rivers in New South Wales are included in this decision. More than 23 native fish and 400 aquatic invertebrate species, like shrimps and yabbies, are found in these waters. In May this year NSW Fisheries released a species impact statement revealing the impact of fishing on the lower Murray River. The species impact statement recommended some changes to recreational fishing rules. But it acknowledges this activity overall has minimal impact on aquatic communities. Recreational fishing in these waterways is an important activity for regional communities and tourism. The community has six weeks, until 28 June this year, to comment on the species impact statement. I urge everyone with an interest in conservation of the lower Murray to contribute to this important plan by taking the time to make a submission. It is worth noting that the Deputy Leader of the Opposition was making comments and not listening to what I was saying. In a few weeks time the Hon. Jennifer Gardiner will probably ask a specific question about what the Government is doing— 12 June 2002 LEGISLATIVE COUNCIL 2985

The Hon. Jennifer Gardiner: About Delinquin.

The Hon. EDDIE OBEID: I acknowledge that the Hon. Jennifer Gardiner knows many country towns, and maybe now and then my pronunciation is not 100 per cent, but she knows little about her portfolio duties. She has not bothered to ask a question that is relevant to the Fisheries portfolio. All she does is talk to a couple of people from ProFish—this small lobby group which has one focus, and that is to get rid of the fisheries department, and hand the fisheries legislation process over to the private sector. She never asks a question that is meaningful and relevant to the Fisheries portfolio. I urge the honourable member to start to show some interest in this very interesting portfolio. There is a lot being done in which I am sure she would have an interest.

WOMEN'S CONSTITUTIONAL CONVENTION

The Hon. HELEN SHAM-HO: My question without notice is to the Minister for Juvenile Justice, representing the Minister for Women. I refer the Minister to the second ever Trust the Women: Women's Constitutional Convention, currently being held between 11 and 13 June, celebrating 100 years of women's suffrage. Can the Minister inform the House what involvement the New South Wales Department for Women has had in this convention? Can the Minister further inform the House what is the Government's strategy to increase the number of women in decision-making and leadership roles in New South Wales?

The Hon. CARMEL TEBBUTT: I thank the Hon. Helen Sham-Ho for her important question in this the year of the centenary of women's suffrage. It is important to reflect on what has been achieved in the past 100 years. It is also important to reflect on how far we need to go to improve the participation of women in all aspects of decision making, whether that be in the political process, the corporate and business sector or other areas of general life. This Government has taken many initiatives to improve the position of women. The Government has increased the representation of women on government boards and committees. It has supported the pay equity principle, which is very important to address the gender gap in salaries, and of course the Premier's Council for Women is involved in a whole range of different activities to advance the interests of women in New South Wales. As the honourable member has asked for specific details, including the involvement of the Department for Women, I will refer the question to the Minister in the other place.

GREY NURSE SHARK PROTECTION

The Hon. JENNIFER GARDINER: Does the Minister for Fisheries recall presenting certificates of appreciation last year to a number of dive centre and dive club volunteers for the $3.5 million worth of volunteer work that he estimated they had completed over four years in collecting details on the grey nurse shark population? Are those awardees now handing back their awards, labelling the certificate or plaque presentations as a cynical media exercise? Are the awardees correct in their assessment, especially considering their claims that the Minister ignored the unanimous recommendations of the Grey Nurse Shark Draft Recovery Team?

The Hon. EDDIE OBEID: I thank the Hon. Jennifer Gardiner for a relevant question. I am more than happy to share with this House information on this particular issue. The Carr Labor Government can stand tall in what it is doing not only for grey nurse sharks but also for threatened species and marine habitats around the State. I do recall handing out those certificates and I acknowledge the great work of the diving community in accumulating information and data on the grey nurse shark. We do not take one step backwards in saying that we are very much aware of the necessity to protect grey nurse sharks.

I remind the House that it was the Wran Labor Government that protected grey nurse sharks. I believe that in 1984 they were the first species of sharks anywhere in the world to be protected. In 2000, on behalf of the Carr Labor Government, I announced that under the threatened species provisions of the Fisheries Management Act grey nurse sharks were an endangered species. It is appropriate to remember that the Solitary Islands, one of the main habitats of grey nurse sharks, will have more than 8,700 hectares of sanctuary zones and about 39,000 hectares of habitat protection zones.

We are very proud of our record of protecting grey nurse sharks. It is typical of the Hon. Jennifer Gardiner and her colleagues that they do not want to consult the community; they do not want to consult any other sector of the community. A draft recovery plan was released on 10 May. That means we sent out a draft recovery plan that was formulated by scientists, about which the rest of the community could have its say. The draft recovery plan is due to be finalised at the end of June. We will consider submissions from every sector involved in marine life and protecting the habitat, including divers. I would be very keen to have divers participate in telling us how best to protect this very important species. 2986 LEGISLATIVE COUNCIL 12 June 2002

The issue is to determine what forms of fishing harm grey nurse shark populations. The form of fishing that is not harmful to grey nurse sharks will continue. If people have evidence of forms of fishing that harm grey nurse sharks, they are more than welcome to include that evidence in their submissions. There is some concept that shark meshing should be stopped. I urge anyone to look at the record: Since 1937 Sydney and Central Coast beaches have been meshed and only one death has resulted from a shark attack. That is an excellent record. The people of Sydney and the Central Coast whose beaches are meshed would like to see meshing continue. We are conducting an environmental impact assessment of shark meshing, which will be in line with the impact assessments carried out on commercial, recreational and fish stocking. I look forward to the Hon. Jennifer Gardiner's submission and the divers' submission, and I thank them also for their contribution. [Time expired.]

INFORMATION AND COMMUNICATIONS TECHNOLOGY ROBOCUP COMPETITION

The Hon. IAN WEST: Can the Treasurer, and Minister for State Development update the House on the quality of information and communications technology [ICT] graduates from New South Wales universities and how this enhances New South Wales' position as a leading ICT centre in the Asia-Pacific?

The Hon. MICHAEL EGAN: As the House is aware, New South Wales has top quality higher education and vocational training institutions which produce a highly skilled ICT work force. In fact, this has contributed to some 70 per cent of Australia's top 250 ICT companies locating their headquarters in New South Wales. An excellent example of how New South Wales ICT graduates compare with the best in the world is the achievement of student teams from the University of New South Wales in RoboCup. RoboCup is an international robot soccer competition, which aims to encourage advanced research in mobile robots. The annual contest involves researchers from leading universities and research laboratories. Each year, after the RoboCup competition, the teams share the research findings.

In the Sony legged robot league of the RoboCup competition all teams compete with the same hardware, supplied by Sony, but they have to write the software to get the robots to play soccer. Someone has written the following, thinking that I know nothing about soccer: "A game consists of three robots a side with the aim of trying to put the ball into the opposing goal." I knew that! The School of Computer Science and Engineering at the University of New South Wales has entered teams in the 1999 competition in Stockholm, the 2000 competition in Melbourne and the 2001 competition in Seattle. In 1999 the University of New South Wales team developed a new way of training the robots to recognise the colours on the field, which is necessary to identify the different objects. That team finished runners-up in that competition.

In 2000 the University of New South Wales team improved the vision and localisation of the robots, developed completely new routines for locomotion and worked on game-playing strategies. In that year the University of New South Wales team actually won the RoboCup competition. In the 2001 RoboCup competition in Seattle the University of New South Wales defeated Carnegie Mellon University, which I am told is one of the world's leading computing and robotics centres, to again win the title. This year's competition will be held in June in Fukuoka, Japan, and the University of New South Wales again will field a team of outstanding undergraduate ICT students.

The University of New South Wales team's success exemplifies how New South Wales universities contribute a high proportion of skilled and creative employees in the ICT area in this State. Our ICT graduates are professionals renowned for being creative thinkers, skilled at analysing situations and creating innovative solutions. I am confident that the high quality of localised ICT professionals will attract a growing number of information technology companies to establish their operations in New South Wales.

REGIONAL AIR SERVICES

The Hon. JOHN TINGLE: My question without notice is addressed to the Treasurer, and Minister for State Development. Is the Minister concerned that the ongoing deterioration of air services to many regional centres is affecting the viability and development of many of those centres and having an adverse effect on the development of the State in general? Is the Minister aware that the important regional airline Hazelton is still struggling and reportedly losing money because of uncertainty about its future and a perception that it might still fail, which is making some people reluctant to book flights on that airline at ports where any other airline is available? If the success of this airline and its network under new owners is considered important, will the Minister try to quell passenger doubts about the future of the airline by expressing the State Government's support for its efforts and confidence as to its future, or take whatever steps he can to help it? 12 June 2002 LEGISLATIVE COUNCIL 2987

The Hon. MICHAEL EGAN: As honourable members of the House will be aware, when Ansett went into administration the Government provided a loan to the administrators of Hazelton Airlines to enable Hazelton to keep flying and for the administrators to find a new buyer. For a time it looked as though there might not be a suitable buyer in the wings. But as it turns out, there is good news. I think the Australia Wide consortium is about to purchase both Hazelton Airlines and Kendell Airlines. The plans that I am aware of are certainly good news for New South Wales, and good news for Wagga Wagga in particular.

The consortium has been negotiating with the Commonwealth Government and the New South Wales Government. I have made it clear that we will provide some payroll tax relief, as we would for any start-up operation in New South Wales that meets our criteria, and we will assist with some relocation expenses. The Commonwealth Government will also provide some financial assistance. I am not an authority on what assistance that is, but certainly the news at the moment looks very good. We hope that the new owners of Hazelton and Kendell will create a regional airline that will service not only New South Wales country and regional areas but country and regional areas in other States, and will be a strong competitor of Qantas and other smaller regional airlines in Australia.

The Hon. Duncan Gay: They are, and I am flying with them on Friday.

The Hon. MICHAEL EGAN: That is good, and I hope to fly with them very soon.

CABRAMATTA POLICING

The Hon. GREG PEARCE: My question is to the Minister for Police. Is it a fact that Assistant Commissioner Clive Small has claimed that the release of the so-called "James" report is the only way to reveal the truth of his allegations and the only way to allow the Cabramatta community to move forward? In light of the calls for the release of the report from both Clive Small and the honourable member for Cabramatta—the Parliamentary Secretary Assisting the Minister for Police— will the Minister now direct that the report be released in a form that will not breach any privacy or operation provisions? If not, why not?

The Hon. John Hatzistergos: Point of order: This matter is the subject of an inquiry before General Purpose Standing Committee No. 3, and the question should therefore be ruled out of order.

The Hon. Greg Pearce: To the point of order: This matter has appeared in the media and in the Fairfield City Champion. There is no inquiry into the James report.

The Hon. Helen Sham-Ho: To the point of order: I think that the subject matter of the honourable member's question is part of the committee process of General Purpose Standing Committee No. 3.

The Hon. Peter Primrose: To the point of order: My colleague the Hon. John Hatzistergos is correct in that even though they are not part of the terms of reference, they do make up proceedings in committee not yet reported to the House, and as provided by the sessional orders should be ruled out of order. The Hon. John Jobling: To the point of order: The matters referred to have been canvassed openly and freely in all the media—the Sydney press, television and radio. The matter has been clearly stated, and where the statement of Assistant Commissioner Small relates to the James report, the James report has been discussed by many people, many sources and the media. It is not a document that is not in the public domain and a request seeking that this document be placed in the public domain is totally in order. The Hon. John Ryan: To the point of order: The question relates to whether a report ought to be released. The fact that the report was discussed before a committee is not relevant, because it is highly unlikely that the committee will report, having declined to hear the report sought. It is impossible for the committee to make any recommendations with regard to the release or otherwise of the report. The Hon. Jan Burnswoods: But it is subject to the proceedings of the committee, which is what the sessional orders say—and you wrote them. The Hon. John Ryan: The Hon. Jan Burnswoods continues to be rude. She cannot be taken out in public. The point I was making was that it is only a matter before the committee if the committee makes some specific recommendation with regard to its release or otherwise. This report has been canvassed in plenty of other places and in the media, and it is entirely appropriate to ask the Minister whether he intends to have it released. 2988 LEGISLATIVE COUNCIL 12 June 2002

The Hon. Dr Brian Pezzutti: To the point of order: Madam President, if you rule in favour of the point of order of the Hon. John Hatzistergos, you will preclude the Opposition from asking any questions about any issues that are subject to any form of report by this House.

The PRESIDENT: Order! The new sessional order relating to questions without notice states clearly that questions must not refer to proceedings in committee not yet reported to the House. I have frequently reminded members of the importance of the sessional order and its requirement. The member may like to rephrase the question and ask it when he is next given the call.

MOURQUONG BASIN SALT INTERCEPTION SCHEME

The Hon. JOHN HATZISTERGOS: My question is to the Minister for Mineral Resources. What has the Government done to encourage minerals extraction at salt interception schemes in the State's south-west?

The Hon. EDDIE OBEID: Just last month I visited the State's south-west to officially open the Inland Saline Aquaculture Research Centre at Wakool. This world-class project is a great initiative that shows what is being achieved by the New South Wales Government's strong support of regional businesses. Today I am pleased to advise the House that another salt interception scheme is helping create jobs in country New South Wales. The Government has approved a new mining lease for Larmon Pty Ltd to harvest salt from the Mourquong Basin. The site is just 13 kilometres from Mildura. As I saw first-hand during my visit, rising salinity levels are a major issue for the Murray River community.

This new project helps the environment, creates local jobs and supports local businesses. In full production the company, which trades as SunSalt, plans to harvest up to 50,000 tonnes of salt a year from the basin. SunSalt's operation means 12 full-time jobs as well as casual harvesting work and jobs for local transport contractors. That is good news for local families. Each year the basin collects 80,000 tonnes of salt and SunSalt plans to market this for stock and industrial uses, as well as developing sales in gourmet foods. The company's operations are part of the Government's salt interception schemes. Bores along the Murray River intercept saline ground water before it enters the river. This water is pumped into the Mourquong Basin, where it evaporates, leaving behind salt. Salt harvesting complements the Government's salt interception scheme and extends the life of the basin.

The New South Wales Government continues to actively address this serious environmental issue. We have established a salinity strategy, a major part of which is to create business opportunities from salt-affected land. I am delighted that this project will do just that. The Government provided $40,000 to help SunSalt develop this project. That investment is now paying off for SunSalt, the environment and the local community. In addition to that, another great initiative of the Carr Labor Government is establishment of a saline aquaculture research centre at Wakool. The centre will undertake research on a number of aquaculture products, particularly species that are normally found in salt water. I am happy to say that the greater the use of interception salt water plants, the more the revenue that will be obtained from a variety of uses of those products. In turn, the creation of greater investment potential for government and private sector groups in more desalination projects will result in farmland being put to better agricultural use—a development that is tremendous for the regions and for the wider community.

M5 EAST TUNNEL VENTILATION

The Hon. Dr PETER WONG: My question is to the Treasurer, representing the Minister for Roads. Is the Minister aware that the fumes inside the M5 East motorway tunnel are so bad that, for health reasons, many taxidrivers and truck drivers are now refusing to use the tunnel? Is the Minister also aware that the Drammen road tunnel in Norway is successfully using precipitators to clean the air in that tunnel? Will the Minister inform the House why the Roads and Traffic Authority's delegation to Norway last September did not report on its meeting with Sigurd Wiljurgrein, a consultant on the Drammen tunnel project? The Hon. MICHAEL EGAN: I thank the Hon. Dr Peter Wong for his question, which I will refer to my colleague the Minister for Transport, and Minister for Roads. POLICE OFFICERS MENTAL HEALTH SERVICES

The Hon. Dr BRIAN PEZZUTTI: My question is directed to the Minister for Police. What processes are in place to ensure that serving police officers who have a mental illness or mental disorder are provided with appropriate care and rehabilitation? 12 June 2002 LEGISLATIVE COUNCIL 2989

The Hon. MICHAEL COSTA: That is a very good question. As the Hon. Dr Brian Pezzutti would be aware, the New South Wales Police Service has issues with stress, suicide that is related to stress, and mental illness. As everybody would be well aware, policing is a very difficult job—clearly one of the most stressful jobs that one could perform. Over the years, unfortunately, a number of officers have taken their lives. Although it would be simplistic to immediately attribute these tragedies to policing careers, it is certainly clear that they may well be related.

The police force has a number of programs and strategies to deal with stress and death. Since 1 May 2001 Occupational Services Australia has provided employee assistance programs to all members of the force and their immediate families. Police officers often experience considerable distress in dealing with deaths, particularly of children, motor vehicle accidents and other critical incidents. Occupational Services Australia provides professional counselling to officers who are involved in critical incidents. The police psychology section manages a critical incident response team to respond to all police operations when a person is killed or seriously injured. New South Wales Police also has five senior chaplains and over 80 part-time chaplains located throughout New South Wales who provide spiritual and emotional support for officers in need. There are 800 trained peer support officers under the force's peer support program who provide front-line support for officers who experience distress.

The force is introducing stress management training in all mainstream Police College courses. The centralised New South Wales Police Rehabilitation Unit has been replaced with rehabilitation officers in each regional command and three rehabilitation officers in the specialist operations. This brings rehabilitation officers closer to officers who require rehabilitation, maximising the likelihood of their returning to work. On 3 June 2002 I established a ministerial inquiry into the long-term sick issue. Among other things, that inquiry will examine officers' stress and issues related to long-term sick patterns. The inquiry, chaired by the Director- General of the Police Ministry, will report to me by 1 September.

INDUSTRIAL RELATIONS

The Hon. DON HARWIN: Did the Minister for Industrial Relations inform the House yesterday that his government-union partnership resulted in "minimal industrial disputes"? Will he now retract that statement, given that the latest Australian Bureau of Statistics [ABS] figures, released today, clearly indicate that in the 12 months ending in March 2002 New South Wales accounted for the highest proportion of working days lost to disputes—some 170,900—representing a massive 43 per cent of the national total during that period?

The Hon. JOHN DELLA BOSCA: No, I will not retract any of the remarks I made yesterday, nor any of the other remarks I made in respect of industrial relations practice in New South Wales. The point I have made consistently and the point I will make again in response to the honourable member's question is that New South Wales industrial relations practice is giving New South Wales an important competitive advantage as opposed to the practice in other States. The honourable member ought to know, and is obviously aware, that statistics relating to industrial relations disruption are available and open to all sorts of interpretations.

The Hon. Michael Gallacher: But why are the numbers so bad?

The Hon. JOHN DELLA BOSCA: As I am trying to explain to the honourable member, the figures—

The Hon. Don Harwin: Are you saying that the ABS is fiddling the figures?

The Hon. JOHN DELLA BOSCA: No. I would never say that the ABS is fiddling the figures, but I would assert that members on the other side of the Chamber are fiddling the interpretation of those figures. I will provide the House with a more appropriate interpretation on an early and convenient occasion.

SOUTH COAST CHARCOAL PLANT

The Hon. Dr ARTHUR CHESTERFIELD-EVANS: My question is directed to the Special Minister of State, representing the Minister for Urban Affairs and Planning. Is the Minister aware that there are two primary schools, one long day care centre, one high school and one proposed high school within a five- kilometre radius of the proposed charcoal smelter at Mogo? Will the Minister consider suggesting to Australian Silicon Pty Ltd that it relocate the proposed smelter north of Batemans Bay in one of the State forests that is already being logged, and away from any schools? 2990 LEGISLATIVE COUNCIL 12 June 2002

The Hon. JOHN DELLA BOSCA: I will refer the question to the Minister for Urban Affairs and Planning for his reply. BUSINESS FRAUD TASK FORCE The Hon. JAN BURNSWOODS: My question is directed to the Minister for Police. Will he advise the House of the action that is being taken to tackle business fraud? The Hon. MICHAEL COSTA: Fraud is becoming an increasing concern to police and the business community in New South Wales. It costs businesses and the community hundreds of millions of dollars a year. The latest report from the Bureau of Crime Statistics and Research shows that fraud is one of the few categories to have increased. The bureau reported that fraud increased by 16 per cent to 24,211 incidents in 2001. The police and the private sector are able to work more closely in the investigation of fraud. There is a lot of expertise in New South Wales Police and in the private sector in the area of criminal investigation. That is why I formed a ministerial task force headed by the chief executive officer of the State Chamber of Commerce, Margy Osmond, to bolster antifraud measures. The task force will comprise the Police Ministry, senior police and representatives from the private sector, including the insurance and financial sectors. Membership is being finalised and the first meeting has been scheduled for 21 June. The task force will report to the Police Minister's Advisory Council [PMAC]. Police and business leaders have told me that criminal methods are becoming increasingly sophisticated. We must identify the problem areas now and develop a model for improving fraud investigation. The terms of reference of the task force are to identify the current problems in the investigation of fraud; prioritise fraud types on the basis of impact and difficulty for police to investigate; identify and consider current public-private partnership [PPP] models for the investigation of fraud, including workable information exchange protocols; give consideration to the relevant legal issues regarding the exchange of information; determine the desired outcomes of the PPPs; develop proposals for PPPs in fraud investigation and information exchange to be considered by the PMAC; and develop an evaluation plan. The task force will report to me with appropriate recommendations of options for antifraud PPPs by 1 September 2002. COMMISSIONER OF POLICE PERFORMANCE AGREEMENT The Hon. RICK COLLESS: My question without notice is directed to the Minister for Police. Have the Minister and Commissioner Moroney finalised the terms of the commissioner's performance agreement, given that he was sworn in two weeks ago? If so, will the Minister give an undertaking to make the details available to the public? The Hon. MICHAEL COSTA: I have already indicated publicly that I will make the details of the performance agreement public as soon as they are finalised. Negotiations are currently being undertaken between the Police Ministry and the commissioner. As soon as they are finalised I will make them public. The Hon. MICHAEL EGAN: If honourable members have further questions, I ask them to place them on notice. PARRAMATTA TO STRATHFIELD BUS TRANSITWAY The Hon. MICHAEL EGAN: On 8 May the Hon. Don Harwin asked me a question without notice regarding the Parramatta to Strathfield rapid bus transitway. The Minister for Transport, and Minister for Roads has provided the following response:

Funding of the Parramatta to Strathfield transitway is included in the overall Transitway program of $800 million (1998 dollars). Consultation in defining the route of the Parramatta to Strathfield transitway is being undertaken taking into account the major developments occurring along the route, particularly Newington, Sydney Olympic Park and the Ermington Navy site. I am advised that a service is expected to commence on this route before the end of 2002. MEDICAL INDEMNITY INSURANCE The Hon. MICHAEL EGAN: On 8 May the Hon. Dr Brian Pezzutti asked me a question without notice regarding medical indemnity insurance. The Minister for Health has provided the following answer:

1. The Treasury Managed Fund has received 208 incident reports relating to the provision of health care by visiting medical officers to public patients in public hospitals.

2. The Treasury Managed Fund has allocated sufficient reserves.

3. The Treasury Managed Fund has received six incident reports relating to the provision of health care by visiting medical officers to public patients in private hospitals. 12 June 2002 LEGISLATIVE COUNCIL 2991

TREASURY MANAGED FUND

The Hon. MICHAEL EGAN: On 8 May the Hon. Jennifer Gardiner asked me a question without notice regarding the Treasury Managed Fund. I am pleased to provide the following response:

1. The Treasury Managed Fund is not required to comply with the prudential requirements set out by the Australian Prudential Regulation Authority.

2. The financial position of the Treasury Managed Fund, following the increased cover for medical indemnity insurance, will be disclosed in the Budget.

REFUGEE INTAKE

The Hon. MICHAEL EGAN: On 9 May the Hon. Dr Peter Wong asked me a question without notice regarding refugee intake. The Premier has provided me with the following response:

The number of places for refugees in Australia is determined by the Commonwealth Government's Migration Program (Humanitarian).

Under the 2001-2002 Program, a total of 13,645 places were allocated to refugees. The Commonwealth has announced that a further 12,000 places will be made available under the 2002-2003 Humanitarian program.

The NSW Government's position on Humanitarian Migration was set out in the Ethnic Affairs Commission of NSW Annual Report 1996-1997.

This report states that "Humanitarian migration is an important responsibility flowing from Australia's membership of the world community."

The Community Relations Commission for a Multicultural NSW has recently released a green paper entitled Cultural Harmony The Next Decade 2002-2012.

The green paper canvasses a range of issues, including the NSW position on Australia's immigration intake, management of refugees and asylum seekers, access to settlement services, employment and skill recognition.

All people of NSW are encouraged to comment on the green paper Cultural Harmony The next decade 2002-2012, so as to assist the Government to set the direction for NSW on these key issues for the next decade.

RYDE NEEDLE EXCHANGE PROGRAM

The Hon. MICHAEL EGAN: On 8 May the Hon. Ian Cohen asked me a question without notice concerning the Ryde Needle Exchange Program. The Minister for Health has provided the following response:

The Ryde Needle and Syringe Program was closed in response to community and safety concerns about the proximity of the program to the neighbouring school, and the maintenance of the facility's boundary fence.

Northern Sydney Area Health Service continues to provide appropriate services for injecting drug users in the Ryde area.

The Minister did not receive a call from Allan Jones regarding the operation of the service.

WYRALLAH ROAD PUBLIC SCHOOL STUDENT MULTIPLE CHEMICAL SENSITIVITY

The Hon. JOHN DELLA BOSCA: On 8 May the Hon. Alan Corbett asked me a question without notice about the chemical sensitivity of a school student at Wyrallah Road Public School. The Minister for Education and Training has provided the following answer:

Mediation has been offered to the parents regarding this matter, but this offer has not been taken up by them to date. The offer of a meeting with a Department of Education and Training mediator and the principal still stands and the option of an independent mediator would be available.

KU-RING-GAI ELECTORATE BUILDING DEVELOPMENTS

The Hon. JOHN DELLA BOSCA: On 9 May the Hon. Helen Sham-Ho asked me a question without notice concerning building developments in the Ku-ring-gai electorate. The Minister for Planning has provided the following answer:

No, it is not fact that a meeting has still to be scheduled between Planning NSW staff and staff from Ku-ring-gai Council to discuss the issue of State Environmental Planning Policy No. 5 (SEPP 5) developments in the bushfire hazard areas in Ku-ring- gai. This issue was discussed at a meeting between Planning NSW and Ku-ring-gai Council officers on 16 April 2002. 2992 LEGISLATIVE COUNCIL 12 June 2002

Planning NSW subsequently confirmed in writing, the advice it had given Council at the meeting, and proposed a further meeting to discuss the matter.

The Government has measures in place to ensure that SEPP 5 development in bushfire hazard areas will not put at risk the safety of the aged and disabled. The SEPP specifies that developments for older people or people with a disability can be excluded from lands identified in environmental planning instruments as having a high bushfire hazard area. WORKCOVER WORKERS COMPENSATION SEMINAR The Hon. JOHN DELLA BOSCA: On 9 May the Hon. Rick Colless asked me a question without notice about the WorkCover workers compensation seminar. I am now able to provide him with the following answer:

WorkCover wrote to all Divisions of General Practice requesting that information on recent workers compensation reforms be included in the Continuing Education Program for each of the Divisions.

WorkCover has received a number of positive responses, and arrangements are finalised with eleven Divisions. The Divisions organise the venues and sponsorship for the evening. On a few occasions, the Division itself has borne the cost of the session.

WorkCover experienced difficulties in organising the session with the Murrumbidgee Division. As a result, WorkCover advised the Murrumbidgee Division to postpone the session until the difficulties could be resolved. The Division was also advised that a session has been organised in Wagga on 22 August 2002 and that members could attend that session.

I have asked WorkCover to make further contact with the Murrumbidgee Division to try to overcome these problems. DEFERRED ANSWERS The following answers to questions without notice were received by the Clerk during the adjournment of the House: ORBOST LOGGING PROTEST POLICE RAID

On 7 May the Hon. Malcolm Jones asked the Minister for Police a question without notice relating to the Orbost logging protest. The Minister for Police provided the following answer:

Following inquiries with the Victorian Police, I am advised approximately 20 syringes were seized at the Orbost protest and not the 2000 mentioned in the Honourable Member's question.

NSW police have comprehensive guidelines for the medical management of needle stick injuries and dealing with drug affected or intoxicated persons in custody. These guidelines are available to all police on the Corporate Intranet site. NSW police are also recommended to be vaccinated against Hepatitis B.

VILLAWOOD DETENTION CENTRE ASSAULT

On 7 May the Hon. Dr Arthur Chesterfield-Evans asked the Minister for Police a question without notice concerning an assault at Villawood Detention Centre. The Minister for Police provided the following response:

I am advised Bankstown police were advised of the assault at Villawood Detention Centre involving Mr Li and police spoke with the involved parties. Neither party was prepared to supply particulars of the incident or make a complaint against any other party.

Representatives from NSW Police Strategic Operations Unit and Bankstown LAC are currently working with the AFP and the Department of Immigration and Multicultural Affairs to develop a Memorandum of Understanding and Protocols for policing of the Villawood Detention Centre.

Villawood Detention Centre is a defined Commonwealth Place and as such the legal premise for NSW Police operations within the Detention Centre is Section 6(2) of the Commonwealth Places (Application of Laws) Act 1970.

PROTESTER ANONYMITY

On 9 May Reverend the Hon. Fred Nile asked the Minister for Police a question without notice relating to protester anonymity. The Minister for Police provided the following response:

NSW Police advise a small number of people involved in these protests did wear facemasks similar to gas masks and part balaclavas. There is no evidence to substantiate the general premise that the more violent protesters wore them.

Present Legislation focuses on persons who disguise themselves with the intent to commit an indictable offence in terms of the Crimes Act section 114 (1) (c).

In regard to the number of arrests made during the M1 protest, I am advised police exercised their discretion to arrest and remove people for "Breach of Peace" rather than charging them as this was considered the most appropriate tactical option in the prevailing circumstances. Questions without notice concluded. [The President left the chair at 1.02 p.m. The House resumed at 2.30 p.m.] 12 June 2002 LEGISLATIVE COUNCIL 2993

STANDING COMMITTEE ON SOCIAL ISSUES

Report: Safety Net? Inquiry into the Classification (Publications, Films and Computer Games) Enforcement Amendment Bill 2001—Final Report: On-line Matters

Debate resumed from 6 June. The Hon. JAN BURNSWOODS [2.30 p.m.]: I have great pleasure in speaking to the motion that the House take note of the report of the Standing Committee on Social Issues on the Classification (Publications, Films and Computer Games) Enforcement Amendment Bill. This report was tabled in the House last Thursday—a day sooner than prescribed by our very short reporting deadline—and we tabled an earlier interim report to which I shall refer in a moment. Honourable members may recall that the House passed this bill in early December last year. The title of the committee's report refers to the then bill, which has since been assented to and become an Act. However, the parts of the bill upon which I shall concentrate in my speech have not been proclaimed. It is confusing when we talk sometimes about the bill and sometimes about the Act. The bill contains enforcement provisions agreed to by the Standing Committee of Attorneys-General in 1999 for the classification of publications, films and computer games. This scheme operates on a co-operative basis between the Commonwealth and all States and Territories, but is largely administered by the Commonwealth. The scheme contained the model provisions that are reflected in the bill, but these provisions have not been implemented in any State or Territory. I shall return to that issue later. Honourable members may recall that, following the debate in this place, the matter was referred to the Standing Committee on Social Issues by the Attorney General, Bob Debus, on 5 December in response to concerns that were raised with him about the bill's possible effects. Those concerns about several different aspects of the legislation were expressed by a number of people in the media and the arts community. The Hon. Dr Arthur Chesterfield-Evans raised particular concerns that he, as a member of the Standing Committee on Social Issues, was able to highlight as the inquiry proceeded. The terms of reference instructed the committee to inquire into and report on the bill, with particular reference to:

(a) whether the provisions of the Bill meet its stated policy objectives,

(b) whether the provisions contained in Schedule 2 of the Bill provide an effective and enforceable regime for the regulation of on-line material,

(c) the social and legal impact of the on-line regulation of offensive material, and its implications for fair reporting of news and current affairs and legitimate Internet use … When those terms of reference were outlined to the committee the Attorney General agreed to delay proclamation of the Act until the inquiry was completed. The committee undertook its normal, very broad consultation process by placing advertisements and so on. We received 37 written submissions and took evidence from 17 witnesses over 2½ days of hearings. We tabled our interim report on 14 March and, as I said, the final report was tabled in the House last Thursday. I apologise to those honourable members who are interested in reading the report but Printing Services has not been able to provide copies, which we thought would be available last Thursday or Friday. Today we circulated copies of the report—without the proper covers—in time for this debate. It seemed sensible to consider the report as close as possible to its tabling date. The interim report dealt with schedule 1 to the bill, which contained a range of machinery provisions, small amendments and so on that identified loopholes and assisted enforcement of the national co-operative classification scheme. These provisions were uncontroversial, and there was considerable concern in the industry that the committee should complete its report to enable the schedule to be proclaimed by 22 March— the date agreed in all jurisdictions. We therefore produced the interim report, and I am pleased that the Government was able to act quickly on our recommendation, which it has already implemented. The bill was proclaimed in New South Wales in time for the schedule to commence on 22 March. Schedule 2 is rather more complicated. It deals with the proposed model for regulating Internet content and is the subject of the final report. There has been considerable controversy in sections of the media, the information technology industry, the arts community and among those concerned about civil liberties about the model reflected in schedule 2 to the bill. In summary, schedule 2 would have made it an offence either to make available on the Internet material that was, or would be, classified X or refused classification , or to make available on the Internet material that was, or would be, classified R, without an approved age verification system in place. The objectives of schedule 2 include a desire to deter people from making objectionable material available online, and to protect children from accessing via the Internet material unsuitable for minors. The 2994 LEGISLATIVE COUNCIL 12 June 2002 second reading speech noted specific concerns about the activities of predatory paedophiles in the online environment. It is worth noting the fundamental principles that underlie the national classification code for films, publications, computer games and, since 1995, the Internet. Those principles, which very much guided the committee in its inquiry, are that adults should be able to read, hear and see what they want; minors should be protected from material likely to harm or disturb them; everyone should be protected from exposure to unsolicited material that they find offensive; and the need to take account of community concerns about certain matters, particularly violence and the portrayal of persons in a demeaning manner.

Within these principles there is a tension, which we would all recognise, between the right of adults to see and hear what they want—a right that underpins democratic and cultural expression in Australian society— and the need to ensure that vulnerable people, particularly children, are protected from exposure to dangerous, exploitative and highly demeaning and offensive material. While this tension has been apparent since we first had classification law or any form of censorship, it poses new problems in the rapidly developing medium of the Internet. As the Internet is a worldwide medium, most material on it does not originate in Australia. Therefore, there are problems with Australian and specifically New South Wales law dealing with the material on the Internet, even if it is hosted in countries with which Australia has specific agreements. When the material is hosted in countries that are deliberately used as havens for offensive material, the problems of implementation and enforcement can become even greater.

The overwhelming bulk of the submissions and evidence before the committee—from industry, the media, representatives of the literary and arts community and others—indicated that the balance between these competing principles had not been properly struck by the model proposed by the bill. The committee heard that the negative impacts of the legislation were likely to be much greater than any benefits that would be realised. Many of these concerns related to the potential of the proposed scheme to limit public debate on important but controversial issues, such as drug treatment, adult sexuality and some aspects of health care. A witness from Fairfax even suggested that the bill could have adversely impacted on Fairfax's online coverage of the allegations surrounding the Governor-General, Archbishop Hollingworth. This raises the concept of implementing totally different rules for print coverage and online coverage for one organisation. Concern was also expressed that the legislation would inappropriately constrain the enormous potential of the Internet as an increasingly valuable tool for communication, research, artistic expression and business. That concern becomes even greater when one remembers that the Internet has been in existence for only about 10 years and is still developing. Many people expressed concern that the proposed scheme would simply not be effective or enforceable in meeting its stated objectives, and that it was much more likely to deter use of the Internet by law-abiding content providers than by those with criminal intent. The Act, although introduced in New South Wales in 1999 in accordance with the agreement of the Standing Committee of Attorneys-General, will not contribute to the original objective of establishing uniform legislation throughout Australia. Differing standards now apply to the regulation of Internet content in other States and Territories, and there appears to be no sign that other jurisdictions will take up the proposed model. A similar bill was introduced in South Australia last year but it was referred to a select committee, which suggested some amendments. However, the South Australian Parliament prorogued prior to the election and the bill has not been reintroduced. At this stage no other State or Territory has this legislation. The national co-operative scheme for regulation of Internet content is due to be reviewed by early 2003. It has been suggested that it would be unwise for New South Wales to commence the legislation given that it is now only six months before the national review is to be completed. With regard to the potential negative consequences of the legislation, the committee was informed that there is little data to support this type of regulation. The Australian Broadcasting Authority [ABA], which has carriage of the national complaints system, informed the committee that very few complaints relate to material that is hosted in Australia. For example, in the first six months of last year only 16 complaints investigated by the ABA related to content hosted in Australia and only half of those were found to be prohibited. Those that were found to be prohibited were dealt with by the ABA using existing enforcement mechanisms.

Given all this evidence, the committee had little hesitation in concluding that schedule 2 should be repealed. That is the fundamental recommendation of the committee's report. This is not to be taken as any indication that the committee does not take very seriously the need to protect children, in particular, and also to protect adults from exposure to unsolicited, extremely offensive material. The committee concluded that there are more effective ways to achieve the objectives of the bill, including public education, parental supervision, the use of filtering software where appropriate, and encouraging compliance with industry codes of practice. The committee made a number of findings and recommendations along those lines. 12 June 2002 LEGISLATIVE COUNCIL 2995

It is essential that laws that control Internet content are supported by appropriate education and supervision of children's Internet use. The committee agreed with the witnesses who said that relying solely on the law may impart a false sense of security. The committee called for further Commonwealth funding for the establishment of a community-based educational organisation known as NetAlert. We believe that that organisation, together with the complaints system operated by the Australian Broadcasting Authority, would be much more effective in controlling extremely offensive Internet content.

We particularly note that at present the Crimes Act has a number of provisions that prohibit the publication of material that is highly dangerous, such as child pornography or material that promotes the activities of predatory paedophiles. That legislation was amended a few years ago to make sure the word "publication" encompasses computer and Internet forms of publication. Other States, Victoria for example, also have in their equivalent to our Crimes Act a range of more specific offences relating to offensive material, and we have recommended that the New South Wales Crimes Act be reviewed to ensure both that it provides an adequate basis for investigation and prosecution and that its provisions are used when particularly dangerous pornography or the activities of paedophiles are discovered.

We believe there should be laws to control certain aspects of Internet content, but we also believe that this legislation does not properly balance freedom of communication and protection of users. Indeed, in many respects the legislation fails because its provisions simply do not meet its stated objectives, which I think will probably be supported by almost all members of this Parliament.

I should like to finish by thanking the committee members, staff, witnesses and people who made submissions. We were lucky to have Vicky Buchbach, who, unfortunately in some ways, is now working for the Legislative Assembly. We are very grateful to Vicky for her tireless efforts in the hearings, in talking to witnesses and in drafting our report. Given that we had four other inquiries going on, we certainly could not have done without Vicky or the other hard-working staff of the social issues committee secretariat. I thank them deeply. We also had a great deal of assistance in a very difficult, technical and complex area from our witnesses and the people who made submissions—those from the Broadcasting Authority and others who were able to explain to us the various systems is use in New South Wales and throughout Australia. I thank all of them.

Finally, I thank the committee members for their contribution. As I said, the Hon. Dr Arthur Chesterfield-Evans had a great deal to do with the instigation of this inquiry and I hope that when he speaks he will say he is pleased with the outcome. We had a great deal of assistance from the two Government members, the Hon. Amanda Fazio and the Hon. Ian West, and I thank them. I particularly thank the Hon. Doug Moppett, who unfortunately was unable to attend the final deliberative meeting. When I was talking to him yesterday, I said I was aware he would probably not have endorsed all of our recommendations in the language in which they are expressed. Therefore, although we have produced yet another unanimous report, I am conscious—given the perceptive and challenging questions he asked during our hearings—that we must not pretend that that would necessarily have been the case if the Hon. Doug Moppett had been able to attend our final deliberative meeting. I have no doubt that he would have made a great contribution at that deliberative meeting, or that he would have had some philosophical difficulties with the wording of some of the recommendations.

The Hon. Doug Moppett is a very valuable deputy-chair of our committee because he is the kind of person who might disagree, but use that disagreement to advance the debate and to actually produce a better report and better recommendations than the committee would otherwise have produced. Although I think this is a good report, and I certainly urge the House to support it and the Government to implement it, I am conscious that it would have been a much better report if we had had the benefit of Doug's wisdom at our final meeting.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [2.50 p.m.]: It gives me great pleasure to support this report on the Classification (Publications, Films and Computer Games) Enforcement Amendment Bill 2000, called "Safety Net". The Standing Committee on Social Issues did a first-rate job on this report in a very short time, and for that I congratulate the Hon. Jan Burnswoods, Vicky Buchbach, who wrote it, Tony Davies, who proofread it, and the other members of the committee, who I believe were very conscientious in quite a difficult area. We were on a quite steep learning curve.

My interest in regulating the content of electronic material dates from tobacco advertising. I believe the main difficulty was the lack of will to enforce it. I am still inclined to think that when you know exactly where something is coming from and exactly what it is doing, you can enforce it, although advertising has of course become much more subtle now with product placements and so on. Legislation against behaviour or aesthetic qualities is far less easy to enforce, and I believe that, unless you can control the content sources, we have gone 2996 LEGISLATIVE COUNCIL 12 June 2002 past the point where it is possible to regulate the Internet. I suppose it is now a moot point as to whether that is true for tobacco. Perhaps tobacco is one example of a product you can legislate against, but in general terms, given the diverse nature of the material on the Internet, I think legislation is probably not the way to go—and I think that was the overwhelming conclusion of this report.

The background to all of this was that there had been some cross-trading at a Federal level between the Independent Senator Brian Harradine and the Federal Coalition Government to secure the passage of legislation before the 1999 Federal election. Adult material was regulated according to a model criminal code, which I believe was very much on the conservative side. The classification of films, publications and computer games is a complex process, and we had to look at legislation that had gone through very quickly. It had been put in a holding pattern, if you like, for the States to implement because, although the Model Criminal Code was determined at a national level, it was very much influenced by what the Federal Government had agreed to, and the States were involved in its enforcement. The fact that it was a model criminal code meant that it had come to this Parliament rather more quickly and rather less closely examined than might otherwise have been the case.

In December last year the bill was debated in this House. My office was involved in negotiations with the Attorney General's office about referring schedule 2 to the bill to the Standing Committee on Law and Justice. Members of the House had received quite a lot of correspondence from people concerned about the effects of the legislation, and the Government conceded that although the legislation complied with the Federal model, it was seriously flawed. The bill was listed for debate immediately after dinner one night, and Reverend the Hon. Fred Nile was in the chair. The Government speaker incorporated his second reading speech into Hansard, and as he did I left my office upstairs to come down here to deliver my speech on the bill and to move an amendment to refer the bill to the standing committee.

By the time I had arrived in the Chamber the speaker for the Opposition had finished his very short speech and, as there were no other speakers, the bill was passed. I was very distressed by this development, but the Attorney General's office agreed not to proclaim the bill, but to refer it to the social issues committee. I thank Alister McConerhie from the Attorney General's office for giving the social issues committee the opportunity to inquire into the bill and to make sensible and progressive recommendations on it.

The Australian Democrats were concerned that, in its original form, the classification bill was quite ineffective, and the committee came to the same conclusion in its report. Schedule 2 sought to prohibit material classified X or RC—which is "refused classification" under the Commonwealth Classification Code—from being published by content providers on the Internet. Material classified as R would not be permitted unless the service provider supplied the content with an approved restricted access system under the meaning of the Commonwealth Broadcasting Service Act or any system approved by the Minister by order published in the Government Gazette.

The bill also enabled prosecution to commence against a defendant charged with an offence under the proposed bill before the material at issue had been classified. This, of course, reversed the onus of proof. It meant that somebody either had to wait and pay a large amount of money to have the material classified if that person lived in New South Wales, or could put it on the Net and hope that they were not prosecuted at some later date. This reversed the onus of proof and put Internet content providers at very high risk.

The point was made that only 2 per cent of the material on the Web originates from New South Wales. I am not sure whether that is 2 per cent of all material or 2 per cent of pornographic material. The Hon. Doug Moppett took a very sensible approach. He said, "It's like closing the window after the wall has blown down." Anybody who understands the nature of posting things on the Web would realise that an Internet service provider who hosts the electronic form of the material in New South Wales cannot prevent someone, by a few clicks of a button, sending the material to a provider or electronic site outside New South Wales. It is absolutely King Canute thinking to expect that we could stop this material being made available.

The bill would have a detrimental effect on legitimate small businesses that conform to current classifications. It would have virtually no effect on access to material that might cause offence and should be kept away from children. A person inclined to find that sort of material could type in the keyword and the material could be found from overseas.

A report by the CSIRO entitled "Blocking Content on the Internet: A Technical Perspective" concluded that "content blocking implemented purely by technological means will be ineffective" but that, where there is market demand, Internet service providers should "be encouraged to offer differential service to clients, and, in 12 June 2002 LEGISLATIVE COUNCIL 2997 particular, that services for minors should be created, based on access to the Internet, through a proxy server". People are concerned about the activities of predatory paedophiles but this type of censorship regime is just not a successful way of dealing with it. The Internet Safety Group referred to a report titled "Girls on the Net: the Survey of Adolescent Girls' Use of the Internet in New Zealand", from February 2001. I quote from the report:

... recent research in New Zealand indicates that a significant minority of girls between 11 and 19 years using the Internet who participated in a survey have physically met people only known to them from on-line discussions. Sixty per cent of those surveyed had undertaken potentially unsafe behaviour such as providing personal information or photographs of themselves to strangers.

In other words there is much more danger from email, where there is a personal targeting and a rapport developed from the mail communication, than simply from searching for things on the Net. On the problem of trying to censor material on the Internet, the committee received evidence that the material should not be made available in New South Wales in case children get to see it. Effectively, that means people of all ages cannot see it because a child might see it. But, of course, it seems that it is not technically possible to do it anyway. The danger to New South Wales businesses was referred to by Watch on Censorship, which referred to the role of self-censorship. The comment was:

To me, that has the potential to create a culture within New South Wales of extreme self-censorship. The more you publicise this legislation [the old legislation] and the more sensitive individuals get to what they might be criminally liable for, I think that tends to self-censorship, so people will be frightened or deterred from communicating that sort of stuff on the Internet. I think that is the message you send people.

Dr Peter Chen from Melbourne University said that the Internet:

... was originally, and remains heavily, a medium used by academics, researchers, and commentators for the collaboration and sharing of intellectual capital and criticism. While many of these areas have little to do with information that may be classified X or R under the [Office of Film and Literature Guidelines], some important areas in health sciences, psychology, the humanities, and cultural studies do touch on matters of criminal activity, anti-social behaviour, "deviant" sexuality and erotica. These are legitimate areas of inquiry and the Parliament should be highly cautious about any activity that impinges on these basic level intellectual activities.

The point was made that the Google search engine currently catalogues 1.6 billion pages and this type of material cannot be stopped by passing legislation in this Parliament. That simple fact has to be faced. The point was made that people using the Internet do not receive information unsolicited. You do not get pornography on the Internet unless you physically search for it. It is not difficult to search for it but, nonetheless, you have to physically search for it, just as in a library you have to physically find the particular section and then the particular shelf on which pornographic or adult material is kept. The material does not come to you unsolicited; it just does not pop out of the computer screen. When you turn on the television you have no choice of what will appear on the channel to which the television is tuned at that time, but with the Internet you have to go through the process of selecting what you want to see. We also heard evidence that in regard to acts of sexual or other violence there has been increased co- operation between police services and Interpol, so that if illegal, sadistic or brutal crimes are committed and then depictions of them are sold as exciting or titillating material, Interpol will follow that up under the Crimes Act. That is how the matter should be regulated. Children need to be made much more savvy about the danger of predatory people attempting to develop relationships that may seem safe when they merely involve a bunch of words or pictures on the screen. They should not give their addresses or other contact information or agree to meet people. That is the much more dangerous aspect of the Internet: it can get through the barriers that protect younger people. But the R-rated content and so on is not intrinsically dangerous because it has to be physically accessed, and accessing it does not personally threaten people. Education was regarded as the best way of dealing with the problem. I totally endorse that. Irene Graham of Electronic Frontiers Australia put that point very strongly. Since the Internet is now such a powerful force for education and such an important part of the technological environment and entertainment environment in which we live, young people must be able to use it intelligently and for the good. It should not be censored so that material of educative value is screened out. The community should have a much greater awareness of the Internet and education about the Internet, but I do not think that extends to Internet censorship. The comment of the Hon. Doug Moppett that there is no point in shutting the window once the walls have blown down captured the essence of the evidence to the committee. I did not agree with the Hon. Jan Burnswoods when she said that the Hon. Doug Moppett would not have agreed with the final report. He may have been able to polish it, but I think that overall he would very much have agreed with the report. I think it is a very good report, I congratulate all those involved with it, and I commend it to the House. 2998 LEGISLATIVE COUNCIL 12 June 2002

The Hon. AMANDA FAZIO [3.10 p.m.]: I support the report. Looking into Internet matters was quite difficult for me at first. I needed the parliamentary information technology staff to take the filters off my computer so I could do more research, because, as with all filters on the Internet, when certain keywords are entered there is no response. Later I will talk about Internet filters and the way they can be of assistance. I will first refer to the submissions the committee received from interested organisations, and to some of the comments in those submissions.

The Australian Computer Society told the committee it opposed so much of the bill as would make it a criminal offence to make material available on the Internet based on a hypothetical and subjective classification of that material by a body that has not classified the material and whose view of the material cannot fairly be predicted. That meant that a person had to be a mind-reader and had to know how material that was to be posted on the Internet would be classified if it had been put before the Australian Broadcasting Authority for classification. Many people set up web pages on their home computer and some people add information through chat rooms. If you have a modem and a computer you can set up a home page on the Internet.

I think this bill was based on the assumption that people have a high level of sophistication and knowledge of censorship regulation. One problem with the bill is that people have to know the way in which material submitted for classification is classified, and that was difficult for people to understand. One matter raised with the committee time and time again, both in evidence and in submissions, was the likelihood of self- censoring of material that people wanted to put on the Internet. That would have created greater restrictions in accessing information that would otherwise have been available on the web. The most compelling submission received by the committee was from Electronic Frontiers Australia, which represents a large number of Internet organisations. It looks at Internet classification and the way in which people use the Internet for research. The organisation said that the bill, as proposed, would burden freedom of online communications far more than offline communications. The organisation also said that the bill treats many ordinary people who use the Internet to communicate, as well as commercial online publishers, far less justly and fairly under the criminal law that is applicable to speech and distribution of information offline. Electronic Frontiers said that the bill demonstrates a clear objective to apply more effective censorship law to material online than applies offline, notwithstanding that the Minister claimed in the second reading speech that the bill is based on the principle that any matter that is illegal or controlled offline should also be illegal or controlled online. That was clearly shown not to be the case. The submission also noted that the bill will not protect children, but will destroy their future—perhaps that is going too far. The submission also said that the bill fails to recognise that children become adults and it aims at restricting information—made available by Australian adults for Australian adults—to that which is fit only for children. The submission stated that the bill disadvantages Australian participation in the global economy. The submission questioned, as did a number of other submissions, the lack of constitutional validity of the bill. Electronic Frontiers claimed that the co-operative classification scheme is arguably constitutionally invalid and that the bill confers additional functions on a Commonwealth agency in a manner that may not survive scrutiny. Electronic Frontiers said it was doubtful that the bill is capable of operating concurrently and consistently with the Commonwealth Broadcasting Services Act. The committee agreed with that view. Electronic Frontiers raised the vexing issue—one that no-one came up with a clear answer to—of how to control the location or content of the Internet. The bill, on its own, sought to prescribe certain Internet activities within New South Wales, but that would not have had any impact on material posted on the Internet in any other State or country. The Internet is an international entity that is controlled by legislation in very few countries. The Internet controls in other countries are far more draconian. The Chinese authorities like to be able to track down who has looked at what web page and when. The committee was trying to solve a perceived problem in New South Wales that was, in fact, an international problem. No international treaties or conventions cover this problem, and when the committee looked for any international solutions that had been imposed, none were available. Apart from an unsuccessful attempt in the United States of America, no country has attempted to legislate for the censorship of Internet material. American attempts to regulate Internet content at a Federal level, by limiting the supply of unsuitable material to minors, were challenged for breaching the First Amendment to the Constitution, which guarantees freedom of speech. Australia does not have that measure in its Constitution, but the Communications Decency Act was found to be unconstitutional on those grounds, and subsequent legislation, the Children's Online Privacy 12 June 2002 LEGISLATIVE COUNCIL 2999

Protection Act, was recently partially dismissed. A further Act introduced in America, the Children's Internet Protection Act, which makes the provision of Federal funds to libraries conditional on the use of filters, is currently being challenged by librarians on constitutional grounds. Through research the committee became aware that the American Association of Librarians is totally opposed to any Internet censorship. Evidence received from the Australian Libraries Association confirmed that it is also opposed to censorship of Internet material.

An issue that could not be defined was how to deal with material that may have been posted on the Internet in New South Wales that was subsequently altered without authorisation—information on a web site that hackers have changed. There is no provision in any legislation to deal with that, and no solution was offered as to who might be liable for it. This is worse than a jigsaw whose pieces do not fit; if someone writes an article in Victoria, emails it to someone in New South Wales who then emails it to a web site in Queensland, and it is then posted on the Internet, who is responsible? Is the person from New South Wales who forwards the article responsible?

The committee received conflicting advice and, ultimately, was informed that emails are excluded from the bill. No-one has any real objections to the original intentions of the bill, which were to stop children accessing information on the Internet that was unsuitable for them, and to stop the Internet from being used by predators to access vulnerable children. Following the defeat of the American Communications Decency Act, former President Clinton resolved that it is the role of police to track down paedophiles and terrorists and that it is up to parents to supervise their children's use of the Internet.

When the committee sought solutions from witnesses, they could only suggest that filters, white lists and black lists be used so that children are prohibited from accessing certain areas. Witnesses spoke of the need for Internet service providers to give parents the option of installing filters when they sign up for an Internet service. We were told that only through those measures could parents exercise the responsibility that they exercise in other areas of their children's lives. That is an important matter that should be looked at further.

Submission No. 33, from Reverend the Hon. Fred Nile on behalf of the Christian Democratic Party, supported the bill and expressed the view that access to Internet pornography, both legal and illegal, threatens families, especially children. No-one on the committee and no-one who appeared before the committee supported children having access to that sort of material. However, the way we balance the need to protect children from information they might find on the Internet with the right of adults to choose what they want to see on the Internet became the difficult question. Given the jurisdictional issues relating to the posting of information on the Internet, the committee felt that a better way of pursuing this would be not to follow through with this legislation but to recommend that more money be made available to organisations in Australia such as NetAlert, which provides an education service for parents and promotes the idea that parents supervise their children more accurately.

NetAlert runs a hotline service if someone accidentally comes across pornography on the Internet. People do not simply get pornography on the Internet flashing in front of them. They must key in specific words and search for it. People must pay to gain access to many commercial adult pornographic sites on the Internet, and those sites would be beyond the scope of most children. We must balance the two competing demands: the demand for parents to adequately supervise their children to stop them from looking at this material and the right of adults, if they so choose, to access this sort of information. One of the most compelling aspects of this inquiry is that the legislation would not provide that balance. The United Kingdom has not gone down the path of having legislation. It has a voluntary organisation that keeps an eye on what information is being posted on the Internet; it recommends that information be taken down and it has the means to proceed. The most important thing of all is not to look at whether the committee's recommendations support the sex industry, pornographers or anything like that, but to look at the committee's recommendations. Finding 3, on which a number of the recommendations are based, on page 44 of the report states:

The Committee finds that:

• a far better way of achieving the policy objectives of the Act would be to use a combination of

(a) the current provisions in the Crimes Act 1900 for prosecuting suppliers of seriously offensive content,

(b) the complaints/take-down notices system established by the Commonwealth Broadcastings Services Act 1992 for removing less offensive content, 3000 LEGISLATIVE COUNCIL 12 June 2002

(c) the voluntary use of appropriate filters, and

(d) increased efforts to provide education and advice to the community and parents about the safe use of the Internet both for minors and adults.

As a parent I found the inquiry valuable because it stressed the need for parents not to see the Internet as a form of babysitting tool. Parents should not let their children have access to a computer without having some restrictions on that access, in the same way as parents would not let their young children sit up until 10.30 p.m. watching television shows that are inappropriate for them. If parents do not let their children do that, they should not be letting their children have unfettered access to the Internet. The idea that the home computer should be in a corner where no-one can see what is going on is not right. Parents should be encouraging their children to use the Internet as a research tool, for that activity not to be a child-only activity, and for it to be a supervised and co-operative activity between parents and children to help to ensure that the bond of learning and knowledge is expanded. I urge members of the Legislative Council to support this report, and to support the calls for the Federal Government to provide increased funding to NetAlert to ensure that parents can fulfil their parental responsibilities in terms of supervising their children's Internet access. I commend the report to the House.

The Hon. IAN WEST [3.22 p.m.]: I am pleased to follow other members of the committee and colleagues in speaking to the Standing Committee on Social Issues report entitled "Safety Net? Inquiry into the Classification (Publications, Films and Computer Games) Enforcement Amendment Act 2001—Final Report: On-line Matters". The report deals with some complex and sensitive issues, primarily finding a balance between the right of vulnerable people, for instance children, not to be exposed to dangerous, offensive or exploitative material and the right of adults to democratic and cultural expression, in this instance the right to see and hear what they want on the Internet. The rapid expansion and application of the Internet offers a further challenge to classification laws.

The committee found that the previously proposed Internet content regulation model would have caused more problems than it would have solved, and accordingly recommended that the part of the Act regulating the Internet should be repealed. This is because the proposed model would most likely restrict law- abiding Internet users, yet at the same time do little to restrict others with less than savoury motivations and operations. It appears that the Australian Broadcasting Authority already provides a strong regulatory presence in Internet issues. The committee heard that the Australian Broadcasting Authority complaints process, take- down notices to remove offensive material, and sponsorship of industry codes of conduct are working satisfactory. In addition, recommendations have been made relating to the provision of sound information and tools to ensure responsible and safe Internet usage, particularly by parents. Schedule 2 of the Act is supposed to respond to community concerns about the availability of offensive and dangerous material online. The schedule makes it an offence to make material available on the Internet that would be classified X refused classification, or to make material that would be classified R available without an approved age verification system in place. The longstanding principle underpinning the national classification scheme is that of protecting the fundamental democratic right of adults to see, hear and read what they want—to communicate, research, express ideas, do business and so forth. I note that all parts of the Act commenced on 22 March this year except for schedule 2. This is the proper thing to do, given that the proposed regulatory scheme does not help achieve uniformity across State and Federal legislation, properly contemplate the release of a review of a national co-operative scheme for regulation of Internet content, strike the right balance between protecting children and democratic rights to have access to material of one's choice, and address rapid changes in this new area of technology. The committee has recommended that at this stage there are better ways to address these important issues. Public education, including the matter of parental supervision, use of filtering software when appropriate, and encouragement of compliance with industry codes of practice are all ways of achieving the right balance on this issue, which is prone to being taken over by extremists on both sides of the debate. Further expansion of the complaints systems of the Australian Broadcasting Association, and the establishment of the NetAlert organisation, are all possible initiatives worthy of more consideration. Criminal law provisions to include heavy penalties would also go some way to deter antisocial activities carried out on the Internet. Inappropriate, offensive and dangerous material such as child pornography, or material encouraging or promoting predatory paedophilia, should not be available. The committee therefore recommends that the Crimes Act 1900, which prohibits such material, should be reviewed to ensure that there is adequate basis for investigation and prosecution of people who make such information available on line. To conclude, I stress recommendation 5 on page 46, which states: 12 June 2002 LEGISLATIVE COUNCIL 3001

The Committee recommends that:

• the Attorney-General, through the Standing Committee of Attorneys-General, investigate the constitutionality of the national classification scheme and take any remedial action required,

• the Attorney-General consider either establishing a licensing scheme, similar to that which operates in the ACT to allow controlled premises to sell X-rated material in NSW or taking more enforcement action against breaches of the legislation, and

• the Attorney-General write to the Minister for Communications, Information Technology and the Arts suggesting that the review of the operation of the on-line regulatory scheme consider:

(a) including a weighted list of objectives of the scheme, and

(b) developing effective and enforceable nationally uniform enforcement provisions for implementation by States and Territories.

The DEPUTY-PRESIDENT (The Hon. Dr Brian Pezzutti): Order! The time for consideration of the committee report has expired.

The Hon. Jan Burnswoods: There are four minutes left!

The DEPUTY-PRESIDENT (The Hon. Dr. Brian Pezzutti): Order! The Chamber clock is inaccurate. The time for consideration of the report of the Standing Committee on State Development has expired.

The Hon. Jan Burnswoods: You can't do that. That is the clock that determines what happens here.

The Hon. Peter Primrose: Point of order: May I clarify your ruling, that the Chair has ruled that in subsequent debates in this place we do not abide by the clock?

The DEPUTY-PRESIDENT (The Hon. Dr. Brian Pezzutti): Order! I took the chair at 2.30 p.m. and it is now well after 3.30 p.m. Therefore I assumed that the electronic timer was inaccurate. However, as the Clerk has advised that we have regard to the timer when determining time limits on debate, I retract my earlier ruling and will allow the Hon. Ian West to continue.

The Hon. IAN WEST: To conclude, the committee believes that section 2 of the Classification (Publications, Films and Computer Games) Enforcement Amendment Act 2001 should be repealed and that the Crimes Act 1900 should be amended to deal with those who make dangerous or offensive content available on line. I thank the members of the committee secretariat for their hard work and assistance during the inquiry, in particular Vicki Buchbach, who was seconded to the committee to assist. I commend the report to the House.

Reverend the Hon. FRED NILE [3.28 p.m.]: In the limited time available I want to put on the record that the Christian Democratic Party opposes some of the recommendations of the committee. We understand the value of recommendation 4, but were shocked that the committee had moved into the X-rated area in recommendation 5, which was not, in my opinion, in the terms of reference or part of the bill under consideration. Recommendation 5 could open up the possibility of X-rated material being sold in New South Wales, as occurs in the Australian Capital Territory. The Australian Capital Territory is out of step by selling X- rated material. It was always the intention to have a national policy on X-rated material. R-rated material takes your breath away, but X-rated material is beyond the pale.

I remember when Premier Wran, the great civil libertarian leader, introduced the law to ban X-rated material in this State, and I strongly supported him. I am surprised and shocked that the committee has dealt with X-rated material. The committee's general words may disguise the impact but if it were followed through logically then New South Wales would have similar laws to the Australian Capital Territory and could sell X- rated material. As a result, New South Wales would be out of step with all the other States in Australia. There is uniform legislation in all the States but there was a loophole that was exploited by the Australian Capital Territory Legislative Assembly which under self-rule could pass its own laws and reject the national uniform legislation. I believe that the committee in its recommendations has underestimated the skill of children as young as six or seven years to access the Internet. [Time for debate expired.] Pursuant to sessional orders business interrupted. 3002 LEGISLATIVE COUNCIL 12 June 2002

POLICE POWERS (DRUG DETECTION DOGS) ACT: DISALLOWANCE OF POLICE POWERS (DRUG DETECTION DOGS) REGULATION 2002

Debate resumed from an earlier hour.

Reverend the Hon. FRED NILE [3.32 p.m.]: My earlier remarks attracted the attention of the Greens, who strongly oppose the use of sniffer dogs in this State. The regulation should not be disallowed. Police with trained sniffer dogs should be allowed to continue to conduct random gun searches—normally for hand guns— and drug searches. This regulation should be retained so that random drug and gun searches can take place on trains, light rail or buses, selected public transport routes, stations, platforms or any other stopping places. The regulation also covers bus terminals and interchanges at Grafton, Kempsey, Albury and Goulburn. I note that some honourable members were upset that some places, including Byron Place, have not been included. I would welcome a future amendment to include Byron Bay, but the problem is that the train does not run there!

When sniffer dogs were first used under the legislation on the weekend of 18 and 19 May, police identified and arrested 17 people for drug-related offences, seized 42 grams of cannabis, seven grams of methylamphetamine, 1.9 grams of cocaine, 0.35 grams of amphetamines, and two knives. Nine people were issued with a caution for carrying small amounts of cannabis.

Those figures show that these provisions are used with tolerance, not in the manner described in stories that have been told in this House. That presents a difficulty. I am not saying that the person who told the story is lying, but members have no way of knowing whether the story is true and that the police did act in that way, unless the event was videotaped by other witnesses to show that the police did go beyond their authority. Ten charges were laid for offences including supply and possession of a prohibited drug. That is dealing. Those who simply had the drug on them received a caution. Cautions should not be applied in a way that undermines the law, but these powers are not being used in an aggressive, authoritarian way. When charges were laid, they were for supply and possession. The Hon. Ian Cohen and others have said that they want the law to crack down on dealers. That is what happened. The dealers were charged. Those found only in possession were cautioned. So these powers were used with compassion and commonsense. We oppose the motion for disallowance.

The Hon. RICHARD JONES [3.37 p.m.]: I support the disallowance motion of Ms Lee Rhiannon. I have done a count of the number of people in this House who have smoked marijuana.

The Hon. Michael Costa: Is it accurate?

The Hon. RICHARD JONES: It is accurate, because I have asked them. Exactly one-third of members have admitted to it. One denies it, and we know he did. He is not part of that third. Twenty have said they have not smoked marijuana—and I believe them because they include some senior members of the Opposition who definitely have not—and about seven are doubtfuls. If all seven of those we have not yet asked have not used marijuana, it means we are roughly on a par with the rest of the community. One-third of the members of this House have smoked marijuana, and I understand at least three of those still do.

The Hon. Dr Brian Pezzutti: Who said that? Where is the evidence?

The Hon. RICHARD JONES: I have evidence, because I have asked individual members.

The Hon. Dr Brian Pezzutti: Name them!

The Hon. RICHARD JONES: There is no way I am going to name them. The Hon. Dr Brian Pezzutti wants me to name the smokers in this House. He is the biggest smoker, but not of marijuana. He smokes the more dangerous one, the one that should be banned. The Daily Telegraph, which is not renowned as the most liberal of daily newspapers, conducted a poll on this issue. Normally people who respond to those polls are pretty radical and would probably support the death penalty, but 70 per cent of those who responded thought that the use of sniffer dogs was a breach of civil liberties. We hear all the time, and it is happening in Sydney and up north, that young people are losing respect for the police. This is a serious matter that the Minister for Police does not seem to worry about. Young people are losing respect for the Police Service—and it is not a force, it is a service, even though the Minister keeps calling it a force. That is not surprising when at least 40 per cent of teenagers—and I am not saying they should—experiment with marijuana. Most of them give up later, as most members of the House have given up. If from time to time many people indulge in marijuana and are harassed by police— 12 June 2002 LEGISLATIVE COUNCIL 3003

The Hon. Dr Brian Pezzutti: What has this to do with dogs?

The Hon. RICHARD JONES: Because the police are all over the streets and trains with their sniffer dogs, and the young people are the ones being stopped and cautioned.

The Hon. Dr Brian Pezzutti: They get cautioned!

The Hon. RICHARD JONES: They are cautioned once. The second time they are charged. People are changing what they are doing on the streets. They are not carrying any more. They are indulging before they go out. People in cars do not get stopped by sniffer dogs.

The Hon. Malcolm Jones: How do you know they indulge before they go out?

The Hon. RICHARD JONES: That is what I have heard from various people. They drop all of their drugs before they go out. It is a very great risk for them to indulge and take all their drugs before they go out, rather than carry little bits and take a bit at a time later. It is changing people's habits. They are not going to be caught, and the sniffer dogs will be useless in another two or three years. There is a web site, www.snifferdogs.info, that anybody can go to and find people who are organising against the sniffer dogs. Basically, every time the dogs go to a certain place an alert goes out on the mobile phones, which the Minister is not able to stop, and these people spray the place with bong water, as they did in the United Kingdom, and it worked very well there. The sniffer dogs were very confused.

The Hon. Michael Costa: Not one alert has gone out.

The Hon. RICHARD JONES: Has the Minister been checking the web site? Apparently the Minister is on the web site himself and is getting the alerts, but he has not got one yet. The other day 10,000 people at the Nimbin Mardi Gras were smoking—

The Hon. Dr Brian Pezzutti: Did you go?

The Hon. RICHARD JONES: No, I was not invited this year. I went last year and had great fun. This year at least 10,000 people were there from all over the country. It is like a normal thing now for those people. This reminds me of the 1970s, when the gay community was being attacked and abused, and being arrested in great numbers by the police. They held their first mardi gras, and finally, seven years later, the law changed for them. The law will change again very shortly when the age of consent is equalised. Exactly the same is happening with marijuana: 40 per cent of people have used it; at least 33 per cent of members of this Chamber have used it—and that is confirmed in their words to me. That will remain confidential. No way will anybody get that out of me, even with a sniffer dog.

The Minister should realise that the people object strongly to the sniffer dogs. It is a breach of civil liberties. It is quite atrocious that people are stopped all over the place. That is an attack on young people, who are losing respect for the police and for the Government, which seems unaware that young people have the right not to be stopped by sniffer dogs in the street. In a few months time the Government will realise it has lost the support of those who intend to vote for the minor parties. They may have voted for Labor, but they will not be voting for Labor from now on. We are going down the wrong track. We are moving towards a police state, a totalitarian regime. We are losing our civil liberties in the endeavour to try to catch marijuana users. The Premier said he wanted the dogs to go only for the dealers. The Minister for Police said—and he corrected the Premier on this—they will not go just for the dealers, they will go for everybody. Eventually, 40 per cent of the population will be cautioned. What happens when they are cautioned a second time? The gaols will be full of these marijuana users. This offence still carries a gaol sentence, after all. It is shameful that the Minister is doing this. The Minister for Police, of all Ministers, is the greatest hypocrite. He is conducting this war on young people and on marijuana users, who are about 40 per cent of the population. I support the motion. I hope it gets up but I do not believe it will, because there are too many conservatives in this place. If every marijuana user in this Chamber were to vote for the motion, at least we would get one-third of the Chamber on our side. The Hon. Dr BRIAN PEZZUTTI [3.46 p.m.]: The Hon. Richard Jones said that the gaols are full of people who smoke marijuana. That is absolutely right. The Hon. Amanda Fazio: You are anticipating debate on the mental health inquiry. 3004 LEGISLATIVE COUNCIL 12 June 2002

The Hon. Dr BRIAN PEZZUTTI: No, I am not. The "Crime and Justice Bulletin" of the New South Wales Bureau of Crime Statistics and Research, under the heading "Multiple drug use amongst police detainees", reports on a survey done by the Drug Use Monitoring in Australia project. This was partly funded through the United Nations funding agency, which was set up in the United States for research purposes. The urine of some 1,161 detainees was examined. It was found that some 45.5 per cent of those detainees had cannabis in their urine—or about 500 of the 1,161. They could have smoked the marijuana that day, the day before or some days prior, because marijuana is highly fat soluble and leaches from the system very slowly.

The Hon. Ian Cohen: Up to 15 days.

The Hon. Dr BRIAN PEZZUTTI: It is very easily detected. About 38.2 per cent of those tested had opiates in their urine, 22.1 per cent had benzodiazepines, 14.6 per cent had methadone, 14.1 per cent had amphetamines and 6 per cent had cocaine. Only 31 per cent tested negative to those drugs. So more than two- thirds of the people tested had a drug in their urine. One would assume methadone to be legal.

The Hon. Richard Jones: Who was picked up?

The Hon. Dr BRIAN PEZZUTTI: These were people detained by the police for various reasons. I am not saying sniffer dogs picked them. I am just saying these people did something that attracted the attention of the police and were detained. Whether they were eventually charged or not is a different matter.

The Hon. Michael Costa: Forty per cent.

The Hon. Dr BRIAN PEZZUTTI: No, Minister. The figure for those who tested positive is nearly 70 per cent. More than half of those 70 per cent had two drugs in their system. That is remarkable. As I said when the Minister introduced the bill, he is using new technology—old dogs, new tricks. As everyone in this House would know, sniffer dogs have been used for many years in bomb disposal procedures and, most importantly, by Commonwealth immigration authorities. We have all seen the immigration beagles that have been used for years and years.

The Hon. Richard Jones: For quarantine first.

The Hon. Dr BRIAN PEZZUTTI: For quarantine first, but now for drugs. I recall seeing a picture of Amanda Vanstone with a whole bevy of very intelligent little beagles hopping around checking things and identifying drugs. As an aside, I must say that we are getting a lot smarter in Australia. Normally, the Hon. Bob Carr tries to hide the inadequacies of his policing of drugs, but I note he congratulated the Commonwealth on installing major new X-ray facilities at our receiving centres.

The Hon. Michael Costa: A limited number.

The Hon. Dr BRIAN PEZZUTTI: It might be a limited number, but a cost-benefit analysis shows that not every single container that comes in can be checked because of the cost. I think there has been some $80 million worth of development.

The Hon. Michael Costa: Three out of a thousand.

The Hon. Dr BRIAN PEZZUTTI: That was what could be done in the past with dogs, but with this new investment—

The Hon. Michael Costa: That is the number of containers checked. The Hon. Dr BRIAN PEZZUTTI: But with the new X-ray facilities they will be able to check a lot more. I heard the Premier on television saying what a wonderful step forward that was. So, while we have had an opiate drought in the past, we can expect a number of major opiate droughts in the future. If 70 per cent of people detained by police have a drug in their system, why would not the Minister be trying to prevent people from using drugs? I think people who have a small quantity of drugs on board will get a ticking off or a ticket these days, because this Government is a bit soft— The Hon. Richard Jones: Your lot wants a one-year mandatory sentence. The Hon. Dr BRIAN PEZZUTTI: We will see. 12 June 2002 LEGISLATIVE COUNCIL 3005

The Hon. Richard Jones: A mandatory one-year sentence for just one joint.

The Hon. Dr BRIAN PEZZUTTI: I think the Hon. Richard Jones is ahead of any announcements.

The Hon. Richard Jones: That is your policy.

The Hon. Dr BRIAN PEZZUTTI: There has been no such announcement as far as I am aware.

The Hon. Richard Jones: That is your policy.

The Hon. Dr BRIAN PEZZUTTI: That is not true.

The Hon. Ian Cohen: You are sure?

The Hon. Dr BRIAN PEZZUTTI: That is not true. I am aware of announcements by the Leader of the Opposition, and I am kept up to date because we have a very good communications system within our party.

The Hon. Ian Cohen: Do you support a one-year mandatory sentence for possession?

The Hon. Dr BRIAN PEZZUTTI: I did not say I did.

The Hon. Ian Cohen: You either do or you don't.

The Hon. Dr BRIAN PEZZUTTI: It is not a proposal that is on the table, as far as I know. But let us not be diverted. The Hon. Ian Cohen made a passionate speech in which he used his position a little bit too late, I thought, with Ms Lee Rhiannon sitting behind him jabbing away, cutting, slashing, a whisper here and a whisper there.

Ms Lee Rhiannon: Point of order—

The Hon. Charlie Lynn: It must be true!

The Hon. Ian Cohen: Point of order: The Hon. Dr Brian Pezzutti has departed radically from the subject being discussed. His comments have absolutely nothing to do with this debate. I would give proof that there are no marks on my back.

The Hon. Dr BRIAN PEZZUTTI: To the point of order: I was simply addressing an issue that has been mentioned in this debate. The motivation for moving a disallowance motion and debating it at length, without any possibility of it being carried, can only be politically based.

The DEPUTY-PRESIDENT (Reverend the Hon. Fred Nile): Order! There is no point of order. However, I ask the honourable member to address the disallowance motion.

The Hon. Dr BRIAN PEZZUTTI: Sniffer dogs have been used widely, both in Australia and internationally. The best experience I can relate to the House is about a Byron Bay person who was searched. The Hon. Ian Cohen and the Hon. Richard Jones jumped on the outrage bandwagon about some people searched at Byron Bay. The Minister was not in the Chamber at the time, but there was much brouhaha about that. The Hon. Ian Cohen called public meetings about that matter.

The Hon. Richard Jones: A thousand people were there.

The Hon. Dr BRIAN PEZZUTTI: I think 170 turned up.

The Hon. Ian Cohen: A thousand.

The Hon. Dr BRIAN PEZZUTTI: The estimate in the Northern Star was 170. The complaint was:

I was sitting in the park on the main street of Byron Bay minding my own business and this dog walked up. I gave it a pat, and it sat down beside me. I thought, "Isn't that nice." Then I was approached by two people dressed in leather gear and wearing dark glasses who asked me to accompany them to Byron Bay police station, where I was searched. They only found a small quantity of drugs on me. 3006 LEGISLATIVE COUNCIL 12 June 2002

That is how discreet the process was. That person was identified by a well-trained dog and was asked by the officers to accompany them to the police station—no fuss or bother. They walked off to the police station, where the person was searched for drugs, and drugs were found. The dogs are not infallible. Many people who are searched do not have drugs on them. This person was complaining that his rights had been infringed because he had been searched by the dog. That was the basis of the court case, and why the legislation had to be changed. Ms Lee Rhiannon should pick her targets a bit better. If she wants to encourage the use of drugs and the trade in drugs, she is going the right way about it. We have a new, proven weapon—

The Hon. Ian Cohen: Point of order: It is utterly infantile to say that Ms Lee Rhiannon or any member of this House wants to encourage the use of drugs.

The Hon. Dr BRIAN PEZZUTTI: I said "if".

The Hon. Ian Cohen: We are debating a social justice and human rights issue. The Hon. Dr Brian Pezzutti consistently says, quite inappropriately, that those who have an attitude that differs from his attitude of prohibition are encouraging the use of drugs.

The Hon. Dr BRIAN PEZZUTTI: To the point of order: I used the word "if". I remind the House that Ms Lee Rhiannon's comments were much more pointed. She said drug dogs do not stop crime, and she put on the record all sorts of positive statements for which she has no evidence.

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

The Hon. Dr BRIAN PEZZUTTI: I am amazed that the Hon. Ian Cohen would protect Ms Lee Rhiannon after what she has done to him.

The Hon. MALCOLM JONES [3.56 p.m.]: First let me say I am pleased that the Minister for Police has modified his position. I met the Minister before he was a parliamentarian when we both attended the workshops during the Drug Summit, along with Stephen O'Doherty and others. I am delighted to see that the responsibility of office has modified his views!

The Hon. Michael Costa: That's not right.

The Hon. MALCOLM JONES: It is. The plague of drugs is an absolute scourge on our society. The use of sniffer dogs is a detection strategy and deterrence. If people's sensitivities are infringed upon, so be it; the benefits are worth the occasional perceived embarrassment. What about the sensitivities of the degraded, vulnerable, sick, wretched junkies? The member's energies should be focused on the prevention, not on preventing the prevention. Once again the Greens have demonstrated their support for people who are likely to carry drugs. The Greens claim not to be pro-drugs. But every time the issue is raised they take a similar position. Using sniffer dogs is a hot topic in the community. The vast majority of people strongly oppose the taking of drugs and strongly favour the use of the dogs.

The Hon. Richard Jones: They're not. The Hon. MALCOLM JONES: They are—the people I speak to are. I do not speak to a lot of people who take drugs. The vast majority of people are in favour of the dogs. That view will be reflected in the vote on the motion. The community is represented in this House, the vote will be taken, and this disallowance motion will go down the drain where it belongs, which will reflect society's opinion. I strongly oppose the motion of Ms Lee Rhiannon. I have had much to do with addicts in recovery. This disallowance motion will do nothing for those who suffer; it will give them no favours whatsoever. I oppose the motion. The Hon. JOHN TINGLE [4.00 p.m.]: What an amazing debate! What an incredible waste of a good parliamentary day. What an incredible way to waste time over something that is a foregone conclusion: a motion of this House that will be defeated. Worse than that, what a dreadful slight on the youth of this city, this State and this country. All we have heard today from various speakers is what a terrible thing this is for young people and how young people are going to be penalised because the sniffer dogs will be working detecting people who might have some residue of drug on them. To suggest that the drug problem resides only in young people is a terrible slight to our youth. From the figures quoted by the Hon. Richard Jones, if a third of the members of this community have all tried drugs, much more than just the youth are involved. I find that an absolutely extraordinary statement. 12 June 2002 LEGISLATIVE COUNCIL 3007

This debate has been diverted from its real purpose. We have heard debate about who is a user, how many people use drugs, how much they use, and whether having one joint is not as serious as having a commercial quantity of the drug. That is not what we are supposed to be talking about. We are supposed to be debating whether the use of sniffer dogs is appropriate to detect people who may have a quantity of drugs on them.

I particularly find astonishing the objections voiced by the Hon. Richard Jones. I understood he was in this Parliament to represent animals. What has he got against labradors? They are lovable dogs! We hear a lot in the community about the war against drugs. We have not had a war on drugs in this community for years. We have been in full-scale retreat. We have given up one line after another: We have legalised this, changed the quantities of that, and we have given up any pretence that we really are fighting the drug problem, which is capable of wrecking our entire community.

What the Hon. Lee Rhiannon objects to is the first useful weapon, the first suggestion of a counteroffensive, the first fight back, if you like, which will give us a war against drugs. Maybe at some stage it will reduce the scourge. It seems to me that there has been much talk today about how prohibition never works. Those who have been talking about how prohibition is a waste of time are the very people who want to prohibit the ownership of firearms in this community. If it will not work on drugs, how will it work on guns? You cannot have it both ways. As far as I am concerned, this is a sensible, useful, non-offensive, non-intrusive, non-invasive use of a very sensible weapon in the war against drugs. Give the dogs a go. It is nothing to sniff at!

The Hon. CHARLIE LYNN [4.04 p.m.]: I oppose the motion to disallow the regulation. The regulation should stand. I also support the view of the Hon. Dr Brian Pezzutti that this is a stunt by Ms Lee Rhiannon. The so-called breach of civil rights is not a valid argument. The Hon. Dr Brian Pezzutti spoke about the methodology used with sniffer dogs. Listening to comments earlier in the debate one would have envisaged huge alsatian dogs on a leash coming up to tear you apart. All the dogs do is detect something. As the Hon. Dr Brian Pezzutti said, they sit beside you if they detect something. The police officers accompanying the dog then come up and ask a few questions. If drugs are detected, you will be taken away and the matter is processed. That is what the community demands.

I support the arguments outlined by the Minister. This topic has generated heated agreement from the two major parties of the Parliament. Those parties represent the views of the people in the electorates and that representation is renewed every four years. The parties are entrusted to represent community opinion, something that members of the Legislative Council really do not have to do. A couple of months ago I experienced sniffer dogs at work at the airport. A dog came up and sat beside my wife's basket and found a couple of biscuits in it. We found that quite humorous, but we felt there was a good sense of security at the airport. It was achieved quietly with nobody knowing what was going on. The officers accompanying the dog came up to us and asked a few questions. My wife pulled out the offending biscuits and all was well. The Minister provided the statistics of crime related to drugs. We have a responsibility to provide the police with the resources they need to combat community fear about this crime. Many of us have been touched by crime related to drugs and guns. The police must be given the discretion to do their job; they have the intelligence to know where the hot spots are and they need resources to do that. The system has good checks and balances for police who are likely to abuse their power. Drugs are illegal. The Hon. Richard Jones: Tobacco is not illegal. The Hon. CHARLIE LYNN: They are not searching for tobacco. If you think marijuana should be legalised, it should be put to a referendum. The Hon. Richard Jones: What about tobacco? The Hon. CHARLIE LYNN: Tobacco as well, but it is a legal substance. The Hon. Michael Costa: It is illegal to sell tobacco to minors. The Hon. CHARLIE LYNN: The Minister makes a good point: it is illegal to sell tobacco to minors. With good education systems, role models and so forth, young people are much more aware of the long-term dangers of smoking tobacco. This motion is a stunt. We have to make sure that we provide the police with the resources they need. Sniffer dogs is one such resource that allows the police to go about their business and thereby provide a safe community and safe public transport, and help protect the broader community against the illegal use of drugs and guns. I support the Government in speaking against the disallowance and I will vote against it. 3008 LEGISLATIVE COUNCIL 12 June 2002

The Hon. PETER BREEN [4.10 p.m.]: I speak in support of the disallowance motion. I do not believe it is a stunt. The Greens represent 37 per cent of people under the age of 25 years, according to the last election, and they are the constituency that this disallowance represents. I believe the regulation should be disallowed because drug dealers do not use trains and if the police have suspicions in relation to a particular person or a group of people, they should obtain a warrant, which is what they do in every other comparable police investigation. These regulations set in concrete lazy policing. Police are discouraged from undertaking their normal inquiries about drug dealing because it is just too easy to call in the sniffer dogs. The dogs will detect the minnows who carry small quantities of drugs but the big fish, the people the police should be hunting down, will be completely unaffected by the regulation.

In fact, the regulation will be counterproductive in the war on drugs because valuable resources are being diverted from catching the dealers. I agree with the Hon. Ian Cohen when he says that this regulation targets young people. The middle class, the middle aged and the Dr Brian Pezzuttis of this world might think sniffer dogs are going to protect them from crime. But all they are doing is alienating young people, using them as scapegoats, harassing them, and denying them the freedoms that these members of the older generation, such as the Hon. Dr Brian Pezzutti and all his cohorts, have enjoyed for more than half a century.

I was interested to hear the Minister for Police in response to a question today from Reverend the Hon. Fred Nile, who asked about proposals to identify unmarked police cars. I understood the Minister to say that at present some 40 per cent of police cars are identifiable but after his proposals are implemented 80 per cent of police cars will have markings on them. Clearly, the Minister is hoping to frighten the crooks and to reassure the constituency he represents. I believe this is window-dressing. Marking unmarked police cars is window-dressing and may be counterproductive in the long run.

Serious criminals, including drug dealers and couriers, will be apprehended by covert operations, not running up and down a railway carriage or camping out on train platforms. As with the decision to put badges on unmarked police cars, the decision by the Minister to put sniffer dogs on public transport is an attempt to deal with the perceptions of crime, not its substance. The regulation is superficial and trivial. It will have no impact on crime rates, even though it may serve to terrorise a few young people caught with small amounts of drugs. I urge honourable members to support the motion for disallowance. I would like to say something further about the disallowance and give the history with respect to enactment of the legislation. Section 11, the regulation- making section, states:

In particular, the regulations may make provision for or with respect to the keeping of records relating to the exercise of powers conferred on police officers by this Act.

The Minister said in his second reading speech:

The bill is aimed primarily at detecting and prosecuting persons committing offences relating to the supply of prohibited drugs.

He further stated:

It is clear that the activity envisaged is drug dealing.

The legislation was aimed at drug dealers. On the question of record keeping, the Minister's second reading speech is again instructive. He said:

There are safeguards that recognise freedom of movement by our law-abiding citizens. Police will assist in the review by providing statistical data on the use of the drugs.

Honourable members may recall that a number of amendments were moved in Committee, and the Minister rejected them all out of hand. My own modest amendments related to the keeping of records so that an accurate assessment of the new law could be made. What purpose would the bill serve if it failed to intercept drug suppliers and couriers, the people specifically targeted by the Minister in his second reading speech? I wrote to the Minister on 12 December and urged him to consider the amendment relating to record keeping. I said:

Keeping written records of particular incidents is imperative to a proper analysis of the legislation.

Needless to say, the Minister would not support my amendment, although I was surprised that he did not respond to my letter. The bill, unamended, became law and the only reference to record keeping is to be found in section 11, relating to the regulations, to which I have already referred. I again wrote to the Minister, this time about police protocols and guidelines relating to records to be kept for sniffer dog searches. Honourable 12 June 2002 LEGISLATIVE COUNCIL 3009

members may recall that on 13 December 2001 the Minister waved the guidelines around in the House in answer to questions about record keeping. In his usual co-operative style he offered copies of the guidelines to any members who were interested in the records.

I was clearly interested, but it took me five months of writing letters and asking questions, and finally the threat of an order for production under Standing Order 18, before the Minister produced the guidelines. I received them only recently, and I have them here. They are described as "New South Wales Police Drug Detection Dogs Management Operational Guidelines" and what do they say about record keeping? Just one sentence on page 11:

The dog handler should record the details of the operation in their duty book or notebook.

That is a broad brush statement, and a very short sentence, if ever I saw one. It does not state what details are supposed to be kept. For example, we do not know what responses the dogs have to certain foods, legal drugs and so on. The Minister has already indicated that prescription drugs are likely to trigger a positive response from a sniffer dog. How many people have cultural or religious objections to being approached, and sometimes touched, by dogs? Will these objections be recorded? Clearly not, from the way the Minister is sighing. How many people suffering from mental illness are likely to have adverse reactions to the dogs?

The Hon. Dr Brian Pezzutti: Not very many.

The Hon. PETER BREEN: The Hon. Dr Brian Pezzutti does not know, because his committee has not yet concluded its report. I am quite sure that none of these details will be recorded, according to the management operational guidelines. I received correspondence from the Parliamentary Secretary Assisting the Minister for Police, Reba Meagher, dated 14 May relating to record keeping for sniffer dog searches. She stated:

In relation to the records maintained by the NSW Police Dog Unit in connection with sniffer dog searches, the Deputy Commissioner (Operations) advises me the following documents are retained:

• Drug Dog Unit results

• Dog Unit Excel spreadsheets setting out the Unit's activities, and

• Hard copies of search warrants, affidavits in support of applications for warrants, pre-planned job request forms, request assessment forms, request denial forms, searched persons premises result forms, and intelligence documentation.

[Time expired.]

Ms LEE RHIANNON [4.20 p.m.], in reply: I thank the enlightened members of this House for their reasoned and sensible contributions to this important debate, which touches on civil liberties, community health, safety and social justice. Some members have even questioned the right to have this debate. They have been derogatory in many of their comments. When human rights are eroded the Greens believe that members of Parliament have a responsibility to take up the issue in the Parliament.

Drugs, crime and who gets to make the laws and with what justification are crucial issues that members of Parliament have to consider. That is what we have been doing today and that is what the Greens will always do. Whether or not members of Parliament are hypocrites in the drug debate for passing laws against substances they have enjoyed is not ultimately the central point. The central point is that politicians are prepared to peddle half-truths in order to prop up convenient myths about drugs and crime. The Minister's speech was informative for what he failed to say, and he failed to say many things.

The Hon. Dr Brian Pezzutti: Point of order: The Hon. Lee Rhiannon has said that politicians—and I assume he means me and others—are prepared to peddle half-truths to prop up deception. I take serious exception to that statement and I ask for it to be withdrawn.

Ms LEE RHIANNON: I was illustrating some of the problems we have confronted in the debate. I think it was a justified expression. It is not a reflection on the character of members.

The Hon. Dr Brian Pezzutti: Further to the point of order: If the Hon. Lee Rhiannon wants to tell outright lies and accuse other members of peddling half-truths, I suppose that peddling half-truths is better than peddling lies. I do not accept that I have ever peddled half-truths. I want her to withdraw that statement. The DEPUTY-PRESIDENT (The Hon. Helen Sham-Ho): Order! There is no point of order supported by the standing orders. However, I ask the member to refrain from labelling members of Parliament. 3010 LEGISLATIVE COUNCIL 12 June 2002

Ms LEE RHIANNON: I was referring to the Minister's speech. I was speaking about the Minister's comments and the fact that, in this debate, he had the opportunity to inform the House and the people of New South Wales of the achievements of the sniffer dog operations. After more than a year of sniffer dog operations—indeed it will be two years in August this year—surely the Minister could have given us some results from these searches. But all the Minister gave us was the usual rhetoric. There was no detail about how many searches were conducted, how many people were arrested, how many dealers—both big-time and small- time dealers—were arrested, what drugs were picked up in searches, or what quantities of drugs were picked up. There has been no clear information at all. There was just the Minister's silence, and that in itself speaks volumes. The Minister had nothing to say.

The Hon. Amanda Fazio: Point of order: I believe that Ms Lee Rhiannon may be misleading the House in the case she is making in regard to the Minister's response. When the Minister responded to the disallowance motion he spoke at length and provided numerous statistics on the use and operation of police sniffer dogs. For Ms Lee Rhiannon to say that the Minister was silent on these matters is to directly mislead the House.

The DEPUTY-PRESIDENT: Order! There is no point of order. The standing orders are silent on the issue.

Ms LEE RHIANNON: The Minister had nothing to say on these particular issues because the results are light on when it comes to sniffer dogs and handlers. Police resources are being used to advertise the law and order credentials of the Carr Labor Government. These are all show pony tactics. There are no results that would demonstrate what the Minister is trying to say. The Minister was struggling to refute my comments about sniffer dogs when he said that the Police Powers (Drug Detection Dogs) Act 2001 imposed further restrictions on the use of sniffer dogs. This is just not true. The reality is that without this legislation there would be no sniffer dogs in New South Wales. The Minister must be aware that Magistrate Mary Jerman found in the Glenn Darby case that the use of sniffer dogs violated the Covenant on Civil and Political Rights, to which Australia is a signatory.

Before the bill was passed the use of sniffer dogs was illegal, and it should have remained so. Without this regulation, sniffer dogs could be used on trains and buses in New South Wales only after the issue of a search warrant. During the debate Reverend Nile, the member Mr Lynn and Dr Pezzutti gave us the usual get tough on drugs line. I was particularly interested in the comments made by the Reverend Nile, who spoke warmly of the war on drugs. He actually said that I was trying to sabotage the war on drugs. One would have to say that once again he has been completely conned by the Government. If he was into the war on drugs, would he not like to see the casualties, or some results? The Government tells him that the war on drugs is a success, the sniffer dogs are delivering, and he stands up in this Chamber and sprouts wonderful support for the Government.

Members of this House have no proof of what the sniffer dogs are achieving. The debate was not pleasant in the way it unfolded. The Leader of the Opposition delivered one of his rather sad performances while attempting to pursue the Government about its law and order agenda. As members have seen time and again, the Leader of the Opposition cannot win on this issue. The Government is out in front on its law and order agenda and the Opposition will come in a poor second. It is the Government that has police resources at its beck and call, and clearly it is using the police to assist its electoral performance. The Opposition is just rolling over because of its lack of vision and lack of innovation when it comes to what is needed in New South Wales. Unfortunately, at times there was hilarity and anger during the debate, which were really not appropriate. While I think it is good to have light moments in a debate, at times the conduct of this debate was quite derogatory. I would say that the hilarity and anger were a sign of the embarrassment of the major parties who are being caught red-handed in the drug debate.

The Hon. Dr Brian Pezzutti: Who let the dogs out on Ian Cohen?

Ms LEE RHIANNON: Dr Pezzutti is not delivering changes. He is just trying to deliver the Opposition onto the government benches, but he will fail. The major parties are the addicts. Bob Carr and John Brogden are addicted to appearing tough; they are addicted to simple solutions to complex problems; they are addicted to a war on drugs that is costly, counterproductive and hostile to ancient and respected legal traditions of civil liberties. I place on the record that the Greens will continue to raise objections to the absolutely outrageous ways that drug law reform is being misused in this State. 12 June 2002 LEGISLATIVE COUNCIL 3011

The DEPUTY-PRESIDENT (The Hon. Helen Sham-Ho): Order! The question is the motion of the member. Those of that opinion say "Aye". Against? I think the noes have it. The noes have it.

The Hon. Peter Breen: Point of order: The Hon. Richard Jones said "Aye" and I said "Aye".

The DEPUTY-PRESIDENT: Order! As I recall, there was not even one "Aye" called when I put the question.

Motion negatived.

INDUSTRIAL RELATIONS AMENDMENT (UNFAIR CONTRACTS) BILL

Second Reading

Debate resumed from 11 April.

The Hon. MICHAEL GALLACHER [4.30 p.m.]: In leading for the Coalition in debate on the Industrial Relations Amendment (Unfair Contracts) Bill I note the comments made in this House on 11 April by the Minister for Mineral Resources, and Minister for Fisheries, on behalf of the Special Minister of State, the Hon. John Della Bosca. The Coalition does not oppose this legislation. I was recently advised that the Government will move amendments in Committee following further consultation with stakeholders since the bill was introduced. I have no reason to believe that those amendments are not consistent with amendments that the Opposition has seen in the last 24 hours, so the Opposition will support those amendments.

The Industrial Relations Act 1996 confers on the New South Wales Industrial Relations Commission wide-ranging powers to overturn and vary contracts and make orders for monetary payments. Originally the intent of unfair contract provisions, which were first introduced in 1959, was to protect award terms and conditions from being undermined through a contractual arrangement. However, concern has been expressed recently about the tendency for the unfair contract provisions of the Act to be used as a means to secure high- value compensation payments for highly paid executives when their employment relationship comes to an end. In effect, the unfair contract provisions have been used by highly paid individuals as a de facto unfair dismissal provision.

Persons making such claims are ineligible to make unfair dismissal claims under the provisions of section 84 of the Industrial Relations Act as they are earning amounts greater than the limit for this jurisdiction, which I believe is currently set at $75,200. Despite the original aim of the unfair contract provisions at the time they were introduced, it has been noted for some time that their usage by the Industrial Relations Commission has the potential to go well beyond the 1959 intention. In 1977, in the case of Stevenson v Barham, which eventually found its way to the High Court, Justice Barwick determined:

The legislature has apparently left it to the good sense of the Industrial Commission not to use its extensive discretion to interfere with bargains freely made by a person who was under no constraint or inequality, or whose labour was not being oppressively exploited.

More recently, in the well-known case of Canizales v Microsoft Corporation, Justice Peterson made the following observation:

It seems to follow that a contract may be exceedingly generous in an objective sense... yet the contract may be unfair in the statutory sense because of the manner of its termination.

On 11 April the Minister stated in his second reading speech:

... unfair contracts provisions are being regularly invoked by persons who are neither being exploited nor treated ungenerously.

This bill is an attempt to address inappropriate and speculative usage of unfair contract orders by highly paid executives who are not being exploited or treated unfairly. It must be noted that unfair contracts jurisdictions in other States have a far narrower application than the current New South Wales provision. In addition, our overseas competitors have no comparable provisions. This bill makes a number of amendments to the Industrial Relations Act. New section 106 (6) will require the commission to take into account whether applicants took any action to mitigate their loss in assessing the amount of money payable in connection with a contract that is set aside or varied by an unfair contracts order. New section 108A excludes contracts of employment when: 3012 LEGISLATIVE COUNCIL 12 June 2002

… a remuneration package is paid or received (or is payable or receivable) during a period of less than 12 months immediately before the application is made that would, if the remuneration package had been paid or received (or been payable or receivable) for a period of 12 months, have exceeded the remuneration cap.

The remuneration cap is $200,000, or a greater indexed amount. I understand that the Government will move amendments in Committee to clarify that new section. That section also prevents an application being made to set aside or vary a contract between partners in a partnership by the making of an unfair contract order. New section 108B requires that an application for an unfair contract order in relation to a terminated contract be made within a period of 12 months after termination. It should also be noted at this point that, if this bill is passed, highly paid employees excluded from making an application for an unfair contract order would still be able to pursue any contractual claim that they have against an employer through common law and, therefore, through the court system.

The Coalition has consulted with a number of key stakeholder groups about this bill. While some have expressed views that certain provisions could have been tightened up further than the legislation provides, in general the majority have indicated that they do not oppose this bill. Some stakeholders, in particular, the International Banks and Securities Association, have proposed sensible amendments to ensure that the intended meaning of the legislation is not obscured. I believe that those suitable amendments are the basis for the Government's additional amendments to this legislation. I thank all those stakeholders who took the time to inform the Coalition of their views in relation to this bill. In conclusion, the Opposition is not opposed to the changes to the industrial relations legislation.

Reverend the Hon. FRED NILE [4.36 p.m.]: The Christian Democratic Party supports the Industrial Relations Amendment (Unfair Contracts) Bill and the Government's proposed amendments, which will help to clarify some of the matters in the bill. Such an amending bill is necessary because almost twice as many unfair contract applications were lodged in 2001 as were lodged in 2000: 956 claims were lodged in 2001, compared to 552 in 2000, and there was a 76 per cent increase from 1999 to 2000. So it is clear that the unfair contract provisions have been regularly invoked by persons who are neither being exploited nor treated ungenerously by executives in industries that are often involved in million-dollar deals. As the consequences of that are negative and serious, these provisions must be narrowed. That is what this legislation and the proposed amendments will do. The Christian Democratic Party supports this bill, which will result in fairer and more equitable treatment for all workers, not just those in highly paid executive positions. Everybody—executives and other employees— should have in their contracts the same provisions.

The Hon. JOHN DELLA BOSCA (Special Minister of State, Minister for Industrial Relations, Assistant Treasurer, Minister Assisting the Premier on Public Sector Management, and Minister Assisting the Premier for the Central Coast) [4.37 p.m.], in reply: I thank honourable members for their contribution to the debate on this bill. I commend the bill to the House.

Motion agreed to.

Bill read a second time.

In Committee

Clauses 1 to 3 agreed to.

Schedule 1

Ms LEE RHIANNON [4.39 p.m.], by leave: I move Greens amendments Nos 1, 2, 3, 5, 6 and 7 in globo:

No. 1 Page 3, schedule 1 [2], proposed section 108A (1) (a), line 17. Omit "a remuneration package". Insert instead "remuneration".

No. 2 Page 3, schedule 1 [2], proposed section 108A (1) (b), line 21. Omit "a remuneration package". Insert instead "remuneration".

No. 3 Page 3, schedule 1 [2], proposed section 108A (1) (b), line 24. Omit "remuneration package". Insert instead "remuneration".

No. 5 Page 4, schedule 1 [2], proposed section 108A (4), lines 6-18. Omit all words on those lines. 12 June 2002 LEGISLATIVE COUNCIL 3013

No. 6 Page 4, schedule 1 [2], proposed section 108A (4), lines 24-26. Omit all words on those lines.

No. 7 Page 4, schedule 1 [2]. Insert after line 26:

Note. The Full Industrial Relations Commission gave "remuneration" as used in Part 6 of Chapter 2 its ordinary and natural meaning in Shead v Summit Western Pty Ltd (1998) 81 IR 347

These amendments would remove the opportunity for parties to attempt to structure employment contracts in such a way as to deny workers access to the jurisdiction, and would allow the commission to deal with the individual claims on their merits. These amendments would delete the definitions of "employment benefit", "monetary remuneration" and "remuneration package" and replace them with the definition contained in the decision of the Full Bench of the Industrial Relations Commission in Shead v Summit Western, 81 IR 347. In this decision, made in the context of a section 84 application, the commission concluded that the term "remuneration" should be given its ordinary, natural meaning. We move these amendments to return some fairness to the procedure for allocating employment benefits, and I commend them to the Committee.

The Hon. JOHN DELLA BOSCA (Special Minister of State, Minister for Industrial Relations, Assistant Treasurer, Minister Assisting the Premier on Public Sector Management, and Minister Assisting the Premier for the Central Coast) [4.41 p.m.]: The main thrust of the bill is to target the remuneration package of an employee, which is measured by the amount of the employee's salary plus the monetary value of any employment benefits payable. This may include commission, bonuses, the personal non-business use of a car, or any other fringe benefits the employee receives. The bill as drafted narrows the application of the unfair contracts provision of the Industrial Relations Act 1996, giving greater certainty to employers, and highly paid executives will no longer be able to bring extravagant and speculative claims to the Industrial Relations Commission.

The Government therefore rejects the Greens proposal to replace the phrase "remuneration package" with "remuneration" and to define this as the meaning given under the common law interpretation in Shead v Summit Western. In that case the Full Bench of the Industrial Relations Commission held that the word "remuneration" in relation to the unfair contracts provision should be given its ordinary meaning, that is, an employee's total package as a reward for work performed. The Government's definition provided in the bill gives effect to the definition in Shead v Summit Western by making it clear exactly what is meant by "remuneration package" and indicates without doubt that it also includes the value of any non-salary components of an employee's package.

This means that salary packaging arrangements will not be able to purposely include or exclude employees from the jurisdiction. In effect, they will be irrelevant to determining eligibility. What will be relevant is the personal benefit received by the employee for the work that he or she performed for his or her employer. The remuneration package is therefore the amount of the employee's salary plus the monetary value of any employment benefits payable. This may include commission, bonuses, the personal non-business use of a car or any other fringe benefit the employee receives.

Amendments negatived.

The Hon. JOHN DELLA BOSCA (Special Minister of State, Minister for Industrial Relations, Assistant Treasurer, Minister Assisting the Premier on Public Sector Management, and Minister Assisting the Premier for the Central Coast) [4.43 p.m.], by leave: I move Government amendments Nos 1 and 2 in globo:

No. 1 Page 3, schedule 1 [2], proposed section 108A (1) (a), line 20. Insert "(or, if the application concerned relates to a contract that has been terminated, immediately before the termination)" after "is made".

No. 2 Page 3, schedule 1 [2], proposed section 108A (1) (b), line 23. Insert "(or, if the application concerned relates to a contract that has been terminated, immediately before the termination)" after "is made".

These amendments make it clear that when there has been a termination of a contract of employment the quantum of the applicant's remuneration will be calculated for the 12-month period immediately before the termination and not the 12 months immediately prior to when the application was made.

Amendments agreed to. 3014 LEGISLATIVE COUNCIL 12 June 2002

The Hon. JOHN DELLA BOSCA (Special Minister of State, Minister for Industrial Relations, Assistant Treasurer, Minister Assisting the Premier on Public Sector Management, and Minister Assisting the Premier for the Central Coast) [4.44 p.m.]: I move Government amendment No. 3:

No. 3 Page 3, schedule 1 [2], proposed section 108A (2), lines 27-29. Omit all words on those lines. Insert instead:

(2) An application cannot be made for an order under this Division by a person who is a partner carrying on a business if:

(a) the application relates to a contract between that partner and the other persons carrying on that business in partnership, and

(b) the share of the net profits, or payments contingent on the net profits, of the business that are paid to or received by (or payable to or receivable by) the applicant during the period of 12 months immediately before the application is made (or, if the application relates to a contract that has been terminated, immediately before the termination) exceed:

(i) $200, 000, or

(ii) if an amount is prescribed for the purposes of paragraph (b) of the definition of "remuneration cap" in subsection (4)-that amount. The intention behind the original provisions in the Act was to protect award terms and conditions from being undermined by artificial contract arrangements. However, due to subsequent amendments to the provisions and to the manner in which the provisions have been interpreted, the operation of the unfair contracts provision has moved away from its original intention. The bill will reduce the number of cases lodged and will enable judicial members of the commission to be available to deal more expeditiously with the core business of the commission. However, the Government has recognised that not all people in partnerships are as well advised about their situations as they could be or should be. Not all of them are sufficiently well resourced to protect their own interests when entering into the partnership arrangement or to pursue claims in the Supreme Court or the District Court. Under the amendment, partners deriving less than $200,000 per annum from their partnership arrangement will still be able to pursue an unfair contract claim in respect of that arrangement. The value of the partnership to the partner will be determined by reference to the partner's share in the net profits of the partnership and payments contingent on the net profits. This approach recognises that, under the Partnership Act 1892, one of the key characteristics of a partnership is that it is established between persons carrying on a business in common with a view to profit. I commend the amendment to the Committee. Ms LEE RHIANNON [4.46 p.m.]: I move:

That the amendment be amended by omitting all words and inserting instead:

Page 3, schedule 1 [2], proposed section 108A (2), lines 27-29. Omit all words on those lines. Insert instead:

(2) An application by a person who is a partner carrying on a business cannot, without the leave of the Commission, be made for an order under this Division in relation to a contract between that partner and the other persons carrying on that business in partnership.

(3) In determining whether to grant leave under subsection (2), the Commission:

(a) is to have regard to the share of the profits, or payments contingent on the share of the profits, of the business paid or received (or payable or receivable) by the applicant in the 12 months immediately before the application is made, and

(b) may grant leave only if it is satisfied that the amount is commensurate with the remuneration paid or payable (or payable or receivable) under a contract of employment that could be the subject of an application under subsection (1). This amendment deals with that part of the bill concerning the fair treatment of partnerships. First, it makes it clear that the restriction on making an application in relation to a partnership applies only to the partners in that relationship, so the ability of an employee of a partnership to seek a remedy under this division is not affected; and, secondly, it allows a partner to seek leave of the commission to have a partnership contract varied or set aside if the share of profits or other income from the partnership is less than the remuneration cap that currently stands at $200,000 per annum. The Greens are concerned that the bill as drafted will not allow for partners in small undertakings to have unfair partnership agreements set aside. Our amendment would fix this. It is clearly within the leave of the bill and in keeping with what we believe the Government is seeking to achieve. Our concern is real. The 12 June 2002 LEGISLATIVE COUNCIL 3015

definition of the remuneration package that is used to apply the cap appears to leave open the possibility that some employers will structure packages to exclude their employees from section 106 remedies, and the prohibition on partners from using section 106 to set aside or vary unfair partnerships could unintentionally exclude low-income partnerships. Small building contractors and musical roadshows are some of the partnerships that could be disadvantaged if this amendment is not passed. We commend the amendment to the Committee.

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [4.48 p.m.]: The Australian Democrats support this amendment. We believe contracts should be fair. We do not understand why this bill has been introduced. If there are inequities it is surely reasonable for the court to set them aside, as is the case with partnerships. I have seen inequitable partnerships drawn up when one partner is fully aware of a change of circumstances but the other is not. Canizales v. Microsoft, the case that prompted this provision, involved a most inequitable situation.

The Hon. JOHN DELLA BOSCA (Special Minister of State, Minister for Industrial Relations, Assistant Treasurer, Minister Assisting the Premier on Public Sector Management, and Minister Assisting the Premier for the Central Coast) [4.49 p.m.]: The bill as drafted emphasises that the only applications excluded by the bill are claims that challenge the employment relationship or partnership. The bill does not prevent challenges, for example, to contracts entered into by a partnership with third parties, such as employees earning under the remuneration cap or suppliers. I have been advised that the Greens amendment would have the effect of removing the automatic right of review and requiring partners in the situation referred to by the amendment to seek leave of the commission to appear. The Greens amendment is therefore unnecessary and inappropriate, and the Government does not support it.

The Hon. RICHARD JONES [4.51 p.m.]: I support the Greens amendment. The legislation is discriminatory and unfair, and the Greens amendment goes some way towards addressing that aspect. Indeed, I do not believe the legislation should be going through this Chamber.

Amendment of amendment negatived.

Amendment agreed to.

The Hon. JOHN DELLA BOSCA (Special Minister of State, Minister for Industrial Relations, Assistant Treasurer, Minister Assisting the Premier on Public Sector Management, and Minister Assisting the Premier for the Central Coast) [4.52 p.m.]: I move Government amendment No. 4:

No. 4 Page 3, schedule 1 [2], proposed section 108A (3), lines 30-32. Omit all words on those lines.

The original clause sought to ensure that the commission could not make orders in respect of applications that are not able to be made because of the other changes proposed by the bill. This provision was included for abundant caution, but the Government accepts that it is unnecessary and the bill will be clearer without it.

Amendment agreed to.

Ms LEE RHIANNON [4.52 p.m.]: I move Greens amendment No. 8:

No. 8 Page 4, schedule 1 [2], proposed section 108B. Insert after line 33:

(3) Despite subsection (2), Commission may accept an application that is made out of time if the Commission considers there is sufficient reason to do so, having regard in particular to:

(a) the reason for, and length of, delay in making the application, and

(b) any hardship that may be caused to the applicant or the respondent if the application is or is not rejected, and

(c) the conduct of the respondent. The amendment relates to the extension of time for making an application in respect of a termination. The bill seeks to limit applications in respect of terminations of contracts to be made within 12 months of the termination. The Greens believe that in some cases this limit would be arbitrary and unfair. The amendment will give the commission the discretion to accept applications where the circumstances appear to warrant it. This would be consistent with the approach under the unfair dismissal regime. One would hope that commonsense would prevail in this place and the Government would do the right thing by the people of New South Wales, but 3016 LEGISLATIVE COUNCIL 12 June 2002 we are yet to see it. As members would be aware from their experiences in electorate offices, a 12-month time limit for the making of an application in respect of a contract that has been terminated under section 106 will inevitably harm the most exploited sections of our community—namely young people, people with lower levels of education, citizens with English as a second language, pensioners and unorganised workers—

The Hon. Michael Gallacher: Are you talking about the right legislation?

Ms LEE RHIANNON: Yes.

The Hon. Michael Gallacher: I fail to see how it falls into the category of this legislation. I think you are confusing unfair dismissals with unfair contracts.

Ms LEE RHIANNON: I acknowledge the comments of the Leader of the Opposition. I understood we were discussing unfair contracts, which is what I have been addressing. The Greens believe that the need for an extension of time for the making of an application is most relevant to the issue of termination.

The Hon. JOHN DELLA BOSCA (Special Minister of State, Minister for Industrial Relations, Assistant Treasurer, Minister Assisting the Premier on Public Sector Management, and Minister Assisting the Premier for the Central Coast) [4.54 p.m.]: The Government believes that a fixed 12-month time frame is more than appropriate for lodging unfair contract claims. Given this relatively generous period, it is not appropriate to provide the Industrial Relations Commission discretion to extend the period. To equate this sort of discretion to unfair dismissals, as it appears Ms Lee Rhiannon has, is misrepresentative as the period for making a claim for relief against unfair dismissal is limited to 21 days. The Government proposes merely to limit unfair contracts claims to 365 days. Ms Lee Rhiannon's analogy is inappropriate and could lead to a distorted view of the two jurisdictions. The Government opposes Greens amendment No. 8.

Amendment negatived.

Schedule 1 as amended agreed to.

Title agreed to.

Bill reported from Committee with amendments and passed through remaining stages.

CRIMES (ADMINISTRATION OF SENTENCES) AMENDMENT BILL

SUMMARY OFFENCES AMENDMENT (PLACES OF DETENTION) BILL In Committee The CHAIRMAN: Order! The Committee will first consider the Crimes (Administration of Sentences) Amendment Bill. Clauses 1 to 3 agreed to.

New clause 4

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [4.58 p.m.]: I move:

Page 2. Insert after line 10:

4 Monitoring of amendments by Ombudsman

(1) In this section:

the relevant provisions means:

(a) the provisions of the Crimes (Administration of Sentences) Act 1999 amended by this Act, and

(b) the provisions of the Summary Offences Act 1988 amended or inserted by the Summary Offences Amendment (Places of Detention) Act 2002.

(2) For the period of 2 years after the commencement of this section, the Ombudsman is to keep under scrutiny the operation of the relevant provisions. 12 June 2002 LEGISLATIVE COUNCIL 3017

(3) For that purpose, the Ombudsman may require the Department of Corrective Services or the Attorney General's Department to provide information concerning the Department's participation in the operation of the relevant provisions.

(4) The Ombudsman must, as soon as practicable after the expiration of that 2 year period, prepare a report as to the operation and effect of the relevant provisions and furnish a copy of the report to the Minister for Corrective Services and the Attorney General.

(5) The Ombudsman may identify, and include recommendations in the report to be considered by the Minister for Corrective Services and the Attorney General about, amendments that might appropriately be made to the relevant provisions with respect to the operation of those provisions.

(6) The Minister for Corrective Services is to lay (or cause to be laid) a copy of any report made or furnished to the Minister under this section before both Houses of Parliament as soon as practicable after the Minister receives the report.

(7) If a House of Parliament is not sitting when the Minister for Corrective Services seeks to furnish a report to it, the Minister may present copies of the report to the Clerk of the House concerned.

(8) The report:

(a) on presentation and for all purposes is taken to have been laid before the House, and

(b) may be printed by authority of the Clerk of the House, and

(c) if printed by authority of the Clerk is for all purposes taken to be a document published by or under the authority of the House, and

(d) is to be recorded:

(i) in the case of the Legislative Council, in the Minutes of the Proceedings of the Legislative Council, and

(ii) in the case of the Legislative Assembly, in the Votes and Proceedings of the Legislative Assembly,

on the first sitting day of the House after receipt of the report by the Clerk.

As I said during the second reading debate, I do not support the Crimes (Administration of Sentences) Bill. The amendment proposes that the bill be monitored by the Ombudsman, particularly with regard to civil liberties, and that the Ombudsman report on the bill's operation and effect within two years. In short, given the nature of the bill, the amendment provides a feedback loop, which I believe is good practice in bills that affect civil liberties and set precedents. I commend the amendment to the Committee.

The Hon. JOHN DELLA BOSCA (Special Minister of State, Minister for Industrial Relations, Assistant Treasurer, Minister Assisting the Premier on Public Sector Management, and Minister Assisting the Premier for the Central Coast) [4.59 p.m.]: The Government does not support the amendment moved by the Hon. Dr Arthur Chesterfield-Evans. The amendment largely replicates provisions already contained in section 121 of the Crimes (Forensic Procedures) Act 2000. Although the amendment will mean more work for the Ombudsman the Government does not intend to oppose it.

The Hon. GREG PEARCE [5.01 p.m.]: The bill deals with some important issues that can impact on the rights of people who are visiting prisons and people who are incarcerated in prisons. The Opposition did not see the need for this amendment because of the oversight of Corrective Services by the Ombudsman. However, the Opposition is concerned in particular about the number of accidental releases from custody in the past year. There is a need for continued oversight of Corrective Services. The Opposition will support the amendment.

Amendment agreed to. New clause 4 agreed to. Schedule 1 agreed to. Title agreed to. CHAIR: Order! The Committee will now consider the Summary Offences Amendment (Places of Detention) Bill. Clauses 1 to 3 agreed to. 3018 LEGISLATIVE COUNCIL 12 June 2002

Schedule 1

The Hon. RICHARD JONES [5.02 p.m.]: I move my amendment No. 1:

No. 1 Page 5, schedule 1 [7], proposed section 27F. Insert after line 19:

(8) Nothing in this section prevents the powers that may be exercised in relation to a person from being exercised in relation to a correctional officer.

This amendment provides that all the powers to stop, detain and search persons in the immediate vicinity of a place of detention will also apply to correctional officers. Quite clearly, we need to adopt thorough measures to combat illicit drugs in prisons. If correctional officers and visitors are searched we will attack the problem of contraband in prisons from every possible angle, including one of the key sources of contraband drugs in prisons.

The Hon. JOHN DELLA BOSCA (Special Minister of State, Minister for Industrial Relations, Assistant Treasurer, Minister Assisting the Premier on Public Sector Management, and Minister Assisting the Premier for the Central Coast) [5.03 p.m.]: The Government does not oppose the Hon. Richard Jones' amendment No. 1. However, the Government views his amendment as unnecessary because new section 27F refers to a correctional officer being able to stop, detain and search a person without qualification. Obviously, that does not preclude a fellow correctional officer.

The Hon. GREG PEARCE [5.03 p.m.]: The Opposition does not see the need for this amendment, and it accepts the explanation of the Minister in relation to it.

Amendment agreed to.

The Hon. RICHARD JONES [5.03 p.m.]: I move my amendment No. 2:

No. 2 Page 7, schedule 1 [7], proposed section 27H. Insert after line 18:

(4) If:

(a) a dog is used to conduct a search under section 27F for the purpose of detecting an offence under section 27B (4), and

(b) the search fails to detect any prohibited drugs or plants in the possession or control of the person, the State is liable to compensate the person for any loss or damage incurred by the person as a consequence of the search.

My previous amendment made sure that we had some consistency. If these dogs are going to be used they should be used only in places where there is a real problem—where the problem is self-evident. They should not be used in public places, such as on trains and buses and at railway stations. My amendment No. 2 provides that if a person is subject to a search by a sniffer dog and the search fails to detect any prohibited drugs the State is liable to pay compensation for any loss or damage incurred by the person as a consequence of that search. The use of a dog to conduct a search can be a traumatic experience. It is an invasion of civil liberties and, as a result, many people are frightened and humiliated. In the past the Government has not supported these types of amendments and the common law has always allowed for compensation for persons who suffer civil law consequences or actions that are wrongful.

There is no reason, in every case where new criminal laws are created, to specify some civil remedy that may be available. In anticipation that there will be a similar response from members in this instance, I would like to point out a few things. For 15 months during 2000 and 2001 the Police Service used drug detection dogs to detect illicit drugs in nightclubs, hotels, railway stations and streets throughout the State. However, under the law at the time police officers did not have the power to use sniffer dogs in public places. It was in this context that the decision in Police v. Darby was handed down by the Deputy Chief Magistrate in the Local Court. In that case the magistrate found that the actions of a sniffer dog in detecting an illicit substance on a man on a city street constituted an illegal search because it was conducted without reasonable suspicion.

As honourable members would know, the Drug Misuse and Trafficking Act 1985 allows a police officer to stop and search a person if the officer has a reasonable suspicion that the person is in possession of a prohibited substance. As a consequence of that decision, there has been much uncertainty surrounding the use of sniffer dogs. The Deputy Chief Magistrate found that a search by a sniffer dog was a breach of international 12 June 2002 LEGISLATIVE COUNCIL 3019

civil liberties. The magistrate referred specifically to article 17 of the International Covenant on Civil and Political Rights, which provides that:

1. No one shall be subject to arbitrary or unlawful interference with his privacy, family, at home or correspondence, nor to unlawful attacks on his honour and reputation, and

2. Everyone has the right to protection of the law against such interference or attacks.

We have debated this matter in considerable detail. Suffice to say, sniffer dogs in public places are offensive to many people, particularly those who are innocent and have never used drugs but are stopped and searched—it has happened a number of times—and those who have the smell of cannabis about them, who may have used the drug. If these dogs are to be used they should be used in places where there is a serious problem, such as prisons.

The Hon. JOHN DELLA BOSCA (Special Minister of State, Minister for Industrial Relations, Assistant Treasurer, Minister Assisting the Premier on Public Sector Management, and Minister Assisting the Premier for the Central Coast) [5.06 p.m.]: The Government opposes this amendment. There is no need for it. It applies only to loss or damage incurred as a consequence of a search conducted using a dog. Any such loss or damage is likely to be minor and would be dealt with by the Department of Corrective Services in the same manner as any other claim arising out of the department's operations search or otherwise. That is, if the department has been negligent it will accept responsibility for any reasonable claim. The Government opposes the Hon. Richard Jones' amendment No 2.

The Hon. GREG PEARCE [5.08 p.m.]: This is a backdoor approach to try to re-open the issue of dogs being used in relation to police work. If it was something to be opposed it should have been opposed when the powers were debated, not through this backdoor route. In the investigation and enforcement of the law, people's rights are going to be interfered with to some extent. However, it has never been the case that the State is liable for that sort of interference. Other remedies—including trespass and common law remedies—are available to people who are in some way interfered with. This amendment does not add anything; it is a backdoor attempt to change the use of sniffer dogs in these circumstances. The Opposition opposes the amendment.

Reverend the Hon. FRED NILE [5.09 p.m.]: The Christian Democratic Party opposes the amendment. If it were accepted it would open up the possibility that people could receive compensation if they were stopped for random drug and alcohol testing by a police unit. They could receive compensation because of the delay, interference and so on. As the Hon. Greg Pearce said, the amendment is a backdoor way to try to undermine the effectiveness of sniffer dogs.

Amendment negatived.

Schedule 1 as amended agreed to.

Title agreed to.

Bills reported from Committee with amendments and report adopted.

Third Reading

The Hon. JOHN DELLA BOSCA (Special Minister of State, Minister for Industrial Relations, Assistant Treasurer, Minister Assisting the Premier on Public Sector Management, and Minister Assisting the Premier for the Central Coast) [5.11 p.m.]: I move:

That these bills be now read a third time.

The DEPUTY-PRESIDENT (The Hon. Janelle Saffin): Order! I have a certificate from the Chairman that the bills are in accordance with the bills as reported from the Committee of the Whole. The question is: that these bills be now read a third time. All those of that opinion say aye, to the contrary no. I think the ayes have it. The ayes have it. The Hon. Dr Arthur Chesterfield-Evans: No, the noes have it. The DEPUTY-PRESIDENT: Order! Too late. 3020 LEGISLATIVE COUNCIL 12 June 2002

The Hon. Dr Arthur Chesterfield-Evans: No, we can divide on the third reading. That is all right. There were two voices.

The DEPUTY-PRESIDENT: Order! I only heard one.

Ms Lee Rhiannon: We have had this all day.

The DEPUTY-PRESIDENT: Order! I heard one "No", and when I announced the result I heard a second "No". It was too late. You will have to get organised to state "Aye" or "No" at the time the question is put.

Motion agreed to.

Bills read a third time.

JUSTICES OF THE PEACE BILL

Second Reading

The Hon. MICHAEL EGAN (Treasurer, Minister for State Development, and Vice-President of the Executive Council) [5.12 p.m.]: I move:

That this bill be now read a second time.

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

Leave granted.

The method of appointment and regulation of the office of Justice of the Peace in NSW has remained relatively unchanged since the late nineteenth century.

Presently JPs are appointed for an indefinite term on an 'ad hoc' basis by the NSW Attorney General, often to fulfil the requirement of a particular job or community need.

It is estimated that there are currently between 100,000 and 200,000 JPs in NSW. This number is only an estimate because records of JPs appointed prior to the introduction of the current record keeping system in 1992 are not complete.

A discussion paper released in February 1998 by the Attorney General's Department, concerning the role of Justices of the Peace, proposed legislative reforms. The draft Justices of the Peace Exposure Bill 2001 was developed in the light of the many submissions received, the majority of which supported the proposals outlined in the paper.

On 20 September 2001, the Attorney General tabled a draft exposure bill in Parliament, in conjunction with the Justices Act Reform Package. Under the Reform package, which will commence operation at the end of this year, all court duties formerly performed by court staff as Justices of the Peace will be performed by those officers in their roles as Registrars or Deputy Registrars.

The Bill's key features are:

• life time appointments will be abolished and replaced with five year renewable terms; • a public Registry will be established to improve access to Justices' services; • clearly defining the functions of community JPs; • the Governor may remove a JP from office at any time, including for bankruptcy, mental incompetence, or criminal convictions; and • the proposal to introduce an administration fee has been removed.

I shall deal with each of these matters in turn.

Appointment

The Bill provides that appointments to the office will be limited to 5 years. After 5 years the appointment will lapse. Prior to the appointment lapsing, JPs can apply for a renewal of the appointment by demonstrating that they continue to meet the eligibility requirements.

Existing JPs will have a grace period of three years from the commencement of the legislation to apply for a new commission, before their current commission expires.

Limiting the term of appointment will ensure that records are accurate and that current JPs are eligible to continue performing the functions of the office. The majority of JP respondents during the consultation process had no objection to this proposal. 12 June 2002 LEGISLATIVE COUNCIL 3021

Dates for making recommendations to the Attorney and appointments by the Attorney will be scheduled at six monthly intervals, except for cases where urgency can be demonstrated. The current system of nomination by Members of Parliament is retained.

Criteria for Appointment

The regulations and guidelines will prescribe the criteria for appointment as a JP and will reflect the current criteria with the exception of the age restrictions. The Anti-Discrimination Board advises that the current 21-75 year age range is discriminatory on the basis of age. The eligibility requirement will be changed to a lower limit of 18 years or over and will be renewable whilst the appointee continues to meet the eligibility criteria and is capable of carrying out the inherent requirements of the position.

Public Register

Despite the large number of JPs in NSW (around 3000 new commissions per annum) it is a common complaint that members of the public cannot locate a JP as there is no formal mechanism to put members of the public in direct connection with a JP.

To date the Department has not provided contact details to the public as this would require the informed consent of each JP. Under the Bill it will be a condition of appointment and continuation in the office that JPs consent to the publication of nominated contact details in a public register in accordance with the Privacy and Personal Information Protection Act 1998. The contact address may be a business address.

The public register would be available for public inspection at locations nominated by the Department. Section 58(2) of the Privacy and Personal Information Protection Act 1998 provides for the suppression of information where the safety or well- being of any person would be affected.

Some submissions indicated concern about providing private residential details. The Section 58(2) suppression ability combined with the option of supplying a nominated business address rather than a residential address would provide sufficient protection.

Advice sought from Privacy NSW indicated that it had no objections to the Bill in its current form.

The Register will enable the public to ascertain the whereabouts of a convenient JP, and can be used to identify whether there are sufficient JPs available in particular areas to meet community needs.

Defining the functions of JPs

The repeal of the Justices Act 1902 (proposed to commence on 1 January 2003) means that the functions of JPs need to be defined.

The duties once performed by court staff as "authorised justices" or "Justices of the Peace employed by the Attorney General's Department" will now be performed by "registrars of the Local Court."

The functions of community JPs will be limited to administering oaths, affirmations and declarations principally under the Oaths Act 1900. Strict guidelines for correct attestation of documents clearly identifying the JP will be made under the legislation.

Discipline of JPs – Removal from Office

Currently, a JP's appointment can be revoked by the Governor where the JP is convicted of an offence or where the JP engages in conduct which is unbecoming of the office, for example by being made bankrupt.

The Bill will provide that the Governor may remove a JP from office at any time, including for bankruptcy or insolvency, mental incapacity or conviction of certain offences or on other grounds specified in the regulations.

JPs will be obliged to notify the Attorney General of any matter that may cause them to cease to satisfy the eligibility requirements or which may satisfy these grounds for being removed from office.

The requirement for JPs to advise the Attorney General's Department of their continued eligibility and to renew their commission will provide a better system for supervision of the office.

Each matter will continue to be considered on its merits and the JP will be given an opportunity to show cause as to why his or her appointment should not be revoked.

JPs who fail to apply for renewal of their commission at the expiration of the five year term will cease to hold office.

Fees and administration

As the focus of concern in relation to the Exposure Draft Bill was in relation to the introduction of an administration fee for registration, it is proposed that there will be no new administrative fee. A standard certificate notifying the applicant of their registration number will be supplied to all JPs. However it will be open to JPs to also purchase an official decorative certificate, if they so desire.

Given that many JPs have not kept their addresses up to date, any attempt to individually notify JPs of these proposed changes will be extremely difficult. An advertising campaign will be launched to bring the new requirements to the attention of JPs and a dedicated phone line will be established for 12 months to respond to inquiries from JPs.

I commend the Bill to the House. 3022 LEGISLATIVE COUNCIL 12 June 2002

The Hon. JAMES SAMIOS [5.12 p.m.]: I speak on behalf of the Coalition in relation to the Justices of the Peace Bill. The object of the bill is to provide for the appointment and functions of justices of the peace [JPs]. Currently, the Governor of New South Wales appoints justices of the peace under section 29 (4) of the Imperial Acts Application Act 1969.

The Hon. Michael Egan: I did not know that.

The Hon. JAMES SAMIOS: That is the reality. This bill is the result of recommendations contained in a discussion paper released by the Attorney General's Department in 1998. A significant change made by the bill is that a person who is appointed as a justice of the peace will hold that office for five years, whereas currently the office is for life—a long time. People may apply for reappointment if they continue to meet the eligibility requirements. The current nomination procedure by members of Parliament remains the same. Another feature is the establishment of a register of justices of the peace available for inspection by the public free of charge during business hours. The contact address of the justice of the peace may be a business address. The operation of the legislation will be reviewed and reported on in five years. The Imperial Acts Application Act 1969 will be amended by omitting division 8, Justices of the Peace, in part 3. The bill will enable persons of the age of 18 and above to be appointed as justices of the peace. The administrative fee originally proposed by the Government has been removed.

The Hon. Michael Egan: I was sorry about that one. The Hon. JAMES SAMIOS: Yes. Establishment of a public registry will improve access to justices of the peace. It will be a large and expensive administrative burden to keep the records of all justices of the peace and those who seek reappointment every five years. This will involve enormous extra work. JPs currently are appointed for life. The New South Wales Justices Association suggests that there are at least 100,000 justices of the peace, so quite a bit of administration will be involved. The five-year period is considered a bit short so we will move an amendment in Committee to make the term 10 years. JPs have played an important role in the administration of the law. They have witnessed documents and provided administrative necessities for the community at large. The Opposition will not oppose the bill. The Hon. Dr ARTHUR CHESTERFIELD-EVANS [5.17 p.m.]: The Justices of the Peace Bill will establish a new Act that will provide a legislative framework for the regulation of JPs in New South Wales. A discussion paper was released by the Attorney General's Department in February 1998 on issues that had been raised by the public about JPs. The discussion paper recognised 15 principal challenges that needed redress. The bill goes some way towards addressing these issues. JPs have traditionally served both a judicial and an administrative function since European colonisation of New South Wales. The minor yet important aspect of a JP's judicial function is outlined in the Justices Act 1902. The duties of JPs can be divided into three categories. The first two involve being magistrates in the Local Court and as JPs performing ministerial and judicial tasks by virtue of employment within the justice or court system. However, the majority of JPs deal with administrative aspects of the law—primarily the witnessing of oaths, statutory declarations, affidavits and other documents under the Oaths Act 1900. This bill will draw a clear distinction between JPs practising as magistrates or as court officers and JPs who mainly witness the signing of legal documents. Part 2 of the bill outlines provisions regarding the appointment and functions of JPs. Lifetime appointments will be abolished and will be replaced by five-year renewable terms. Applications for renewal must be forwarded to the Minister and comply with regulations under clause 5 (c). Under recommendations arising from a discussion paper by the Attorney General's office, the age for a person applying to be a JP will be lowered from 21 years to 18 years. With the recommendation of the Minister, the Governor may dismiss a person from being a JP if that person becomes bankrupt or mentally incapacitated or is convicted of an offence that is punishable by 12 months imprisonment, or in circumstances prescribed under regulation. Under clause 11 a public register containing the contact details of JPs will be maintained by the Attorney General's Department. This is intended to help the public find JPs. The Justices of the Peace Discussion Paper, Section 1, observed:

For JPs appointed prior to 1992, there is no mandatory registration number. It has become extremely difficult to verify the appointment of these JPs. Consequently, often a document witnessed by a JP lacks credibility where the JP cannot be identified or where other confirmation cannot be given that the person who witnessed the document is a JP.

Clause 17 provides that the Act be reviewed five years after its commencement. The Democrats see this bill as a practical step towards improving the administration of justice in New South Wales. We congratulate the Government on this initiative and we support the bill. 12 June 2002 LEGISLATIVE COUNCIL 3023

Reverend the Hon. FRED NILE [5.20 p.m.]: The Christian Democratic Party supports the Justices of the Peace Bill with some reservations. We understand that over time there is a need to have a bill that updates and reforms certain aspects of government operations, in this case justices of the peace [JPs]. As has been stated, there is some confusion as to who has been authorised to act as a JP. After my father died I went through some of his papers and found a notice that was published in the Sydney Morning Herald in the 1940s. In those days newspapers published the names and addresses of newly appointed JPs. That was one way of advising the public of the people who were authorised to act as a JP. Many years ago I was appointed as a JP, but I do not act as one. I wondered whether at some point I might have slid off the list.

The Hon. Michael Egan: No, you don't. But you will in future. Now I know where to go to get a JP to sign a document. You should not tell too many people about that.

Reverend the Hon. FRED NILE: I had imagined that I had slipped off the list, and that is why I do not act as a JP. I agree with the Opposition's concern over the five-year term; in other words, at the end of five years one's authority to act as a JP will automatically lapse. During the briefing I raised with government advisers that although the age to become a JP will be lowered to 18 years, the majority of JPs are mature people, and in many cases they are senior citizens. At the end of the five-year term their commissions will terminate. If they do not know that, some will continue to act as a JP, with good intentions, because they know that historically their commission was for life.

If the Government does not know the names and addresses of 100,000 out of the 200,000 JPs currently commissioned, how will that information be conveyed to all JPs? Advertisements in newspapers will be of some assistance but I am concerned from the legal point of view with whether, if a JP's five-year term is terminated and the person continues to act as a JP, the documents they continue to witness and sign will be invalid? The practicality of the bill concerns me. I would rather that the commission be for life, with the proviso that the Attorney General can remove a person's commission in the event of bankruptcy, mental incompetence, criminal conviction or conduct unbecoming the commission, and that the person be so informed.

Mental incompetence would probably cover a very elderly person who cannot function efficiently. How would that person be removed from the list? For those reasons I support the Opposition's amendment to grant commissions for 10 years. The Hon. James Samios said that the Government seems to be keen to create a lot of administrative work for itself. Normally governments try to reduce administration and red tape. A five- year provision would mean that every one of the 200,000 JPs would have to apply for reauthorisation. That would result in enough work for another administrative department to be created; I do not believe that that is necessary. I am puzzled as to why the Government thinks it is so important to require JPs to renew their commission after five years.

The Hon. IAN COHEN [5.25 p.m.]: The Greens support the Justices of the Peace Bill. The Justices Act 1902 will be repealed on 1 January 2003 and this bill establishes a new system of appointing justices of the peace. Currently the Government is uncertain about exactly how many justices of the peace there are in New South Wales and where they are located. For example, there could be hundreds in Manly and hardly any in Blacktown. Many people complain that when they need a justice of the peace they never know where to find one. This bill will address that deficiency.

A public registry will be established so that access to justices of the peace will be readily available. The Government should consider making that public register available over the Internet, perhaps through the Attorney General's web site. The bill abolishes indefinite appointments and replaces them with five-year appointments. The Greens believe that is an appropriate time frame. The Opposition flagged moving an amendment in the Legislative Council to extend the term to 10 years, as mentioned by the Hon. James Samios. The Greens are of the view that five years is an appropriate time frame. I will listen to debate on that amendment in the Committee stage. A lot can happen in a person's life in 10 years and it is important that a justice of the peace remain eligible for the office. Reassessment of eligibility after five years is good way of ensuring that inappropriate people do not remain justices of the peace for long periods. As Reverend the Hon. Fred Nile said, elderly people may not be competent to hold the commission. Therefore, the ten-year appointment may be too long for someone to continue to function efficiently. After all, that is the base line for legal documentation. I will listen to the debate on that in the Committee stage. Other than that, the Greens are pleased to support the bill. The Hon. RICHARD JONES [5.27 p.m.]: I support the Justices of the Peace Bill. There is no doubt that the current situation is somewhat chaotic. As the Minister said, there are possibly between 100,000 and 3024 LEGISLATIVE COUNCIL 12 June 2002

200,000 justices of the peace in New South Wales. We do not have any idea how many there are. Justices of the peace have been appointed for the past 100 or so years and many have died, but we do not know how many are still alive, whether they are competent, whether they have committed crimes, or where they are. This bill will make justices of the peace much more visible; a list will be available on the Attorney General's web site, in libraries and at courts. People will be able to find a justice of the peace when they want one.

I was somewhat worried that, when the bill takes effect, many current JPs will not know that they are covered by a three-year grandfather clause. I understand there will be some advertising in newspapers and so on to inform people that they may no longer be authorised to act as a JP after three years. Hopefully, the vast majority of JPs will receive that information. After the three years people may still think they are a JP, as they have been for 20, 30 or even 50 years; they may not know they are no longer authorised to act as a JP. Therefore, any documents they witness may be invalid.

I hope current justices of the peace will find out that after three years they will need to reapply. It is good that there will be a five-year renewal period as opposed to a ten-year period, and that there will be no renewal fee. Apparently every five years a check will be made on whether a JP has engaged in any criminal activity, and if the person remains a good citizen they will remain a JP. However, if a JP has committed a heinous crime over the past five years, no doubt their commission will not be renewed. That will ensure in future that people will know where to find a JP, and the number will presumably be considerably reduced from the present figure of between 100,000 and 200,000.

Members of Parliament will have to get busy and appoint more justices of the peace, and those who are currently justices of the peace will have to get busy and reapply. As I said, I am a little concerned that this information will not reach all those who are currently justices of the peace. In the future, present justices of the peace may witness documents even if they have not reapplied and therefore no longer hold the office. I hope that will not happen, but it may well. I hope that enough money will be spent on the advertising and promotion campaign to let people know about the changes.

The Hon. MICHAEL EGAN (Treasurer, Minister for State Development, and Vice-President of the Executive Council) [5.30 p.m.], in reply: I thank honourable members for their contributions to the debate, and I commend the bill to the House.

Motion agreed to.

Bill read a second time.

In Committee

Clauses 1 to 3 agreed to.

Clause 4

The Hon. JAMES SAMIOS [5.31 p.m.]: I move:

Page 3, clause 4, line 9. Omit "5 years". Insert instead "10 years".

The Hon. MICHAEL EGAN (Treasurer, Minister for State Development, and Vice-President of the Executive Council) [5.31 p.m.]: I am surprised that a wise man like the Hon. James Samios would move such a silly amendment.

The Hon. Richard Jones: He's not silly.

The Hon. MICHAEL EGAN: I did not say that the Hon. James Samios is silly. I said the amendment is silly, for reasons I will explain. The Hon. Richard Jones: The amendment is not silly, either. The Hon. MICHAEL EGAN: It is. Under the system proposed by the Justices of the Peace Bill, justices will be required to reapply for their appointments every five years. While the five-year term may appear to the Opposition to be arbitrary and to impose a burden on justices of the peace, I assure members opposite that the choice of a five-year term has resulted from a careful balancing exercise aimed at optimising the benefits of 12 June 2002 LEGISLATIVE COUNCIL 3025 fixed-term appointments. Allow me to state those benefits. The five-year term will allow the department to ensure that justices remain fit and proper persons to hold that office. There are clear criteria that must be satisfied not only for a person to be eligible to be appointed as a justice of the peace but also for a person to continue to hold the office of justice of the peace.

The holder of this office has important duties to perform within the New South Wales justice system, so it is important to ensure the good character and good faith of applicants. It is important also to ensure they continue to meet the conditions of holding this office. I emphasise that. By instituting five-year appointments, the department will be able to ensure that those criteria continue to be met, including performing criminal and other probity checks. The five-year term will allow the department to maintain a complete, accurate and reasonably up-to-date register. At present we have no way of knowing how many registered justices of the peace there are in New South Wales, how many are active, how many still live at the address provided on the application, or even how many are still alive.

It is estimated that there may be 100,000 justices in New South Wales, based upon the current record system, which includes thousands of justices who may have left New South Wales, ceased to be eligible for appointment, died or stopped serving in that office without having told the department. The five-year term will ensure not only that the contact details of justices of the peace on the public register are kept relatively current but also that people who have lost interest in performing this public role or who are no longer capable or eligible to do so are not still on the register. A rigorously maintained public register will not only ensure public access to justices of the peace but also promote public confidence in the office. By reminding justices of the peace to keep their contact details up to date every five years, the department will be in a position to keep justices of the peace informed of relevant legislative and procedural changes, as well as opportunities for training.

The Opposition's proposal to amend the bill to create a 10-year term instead of a five-year term places all of these benefits at risk. There is no way the public register will be able to be reasonably and reliably maintained, because in the absence of a legislative obligation on justices of the peace to be reassessed for eligibility and to renew their contact details, that information is not available. It is my belief that those who hold commissions as justices of the peace and wish to provide genuine service to their communities will welcome the initiatives currently being considered. The Government is supported in this view by Dr Malcolm Buck, JP, President of the New South Wales Justices Association. He has advised very recently that he strongly supports the five-year term. From the association's experiences with annually renewing members, high levels of mobility in the community make it very difficult to keep a register up to date and accurate.

A 10-year term would render questionable the accuracy of information on the public register. The essence of taking on a role as a justice of the peace is that it is an office of responsibility. If people want to discharge this important office, the onus is on them to ensure that their appointment is up to date. The community is not well served by people who do not take their duties as justices of the peace seriously. Responsible justices of the peace will ensure they are reappointed, just as lawyers renew their practising certificate every year and drivers renew their licence every five years. The Government has removed from the proposals any cost barrier associated with renewing a justice of the peace's commission. In addition, a renewing justice of the peace is not required to be sponsored again by a member of Parliament. Given the responsible role of this office, I do not consider it is too much to ask justices of the peace to renew their commission every five years.

I am sure that justices of the peace will get a reminder, as long as their contact details are still accurate. In that respect—and this is another reason why we need a five-year term—Australia Post advises that one person in five changes their address every year. That is one reason why we sometimes have some difficulty tracking down people who do not pay their fines. It is not a terrible onus on justices of the peace: all they have to do is reapply after five years. They do not have to go back and see their local member of Parliament, although some might argue that they should. I think that would be overdoing it. When I was the member for Cronulla I took my responsibilities as a local member of Parliament very seriously. Many of my constituents wanted to become justices of the peace. Previously they would write a letter and sign their application, and my predecessor would send it off. However, I insisted on meeting every applicant; I insisted that they come to my office for an interview. The Hon. Michael Gallacher: That's why you lost the seat. You did too many. The Hon. MICHAEL EGAN: No. Indeed, most of them—nine out of 10, I think—were pleased and understood the reason I did that. Every now and again there was someone for whom that requirement was too 3026 LEGISLATIVE COUNCIL 12 June 2002 onerous. However, I wanted to meet the people and, as best I could in a short interview, assess their suitability, but I also wanted to ascertain their motive for becoming a justice of the peace. Sometimes the motives were not all that altruistic. Often I found that people wanted to be able to put in the local newspaper an advertisement saying, "Buy your used car from Joe Bloggs, JP". I did not think that was an appropriate use of the office and I always insisted—

Reverend the Hon. Fred Nile: People put it on their calling card.

The Hon. MICHAEL EGAN: I do not mind it being on someone's calling card. I think that is appropriate. However, I was always wary of approving of someone becoming a justice of the peace for some sort of commercial advantage.

The Hon. Greg Pearce: It's crass.

The Hon. MICHAEL EGAN: Crass commercial advantage. I found that most applicants were impressed by the fact that I took it seriously enough to require them to meet me and to allow me to interview them about their reasons for wanting to become a justice of the peace. I do not think any of them will be put out by the fact that after five years they have to reapply. Indeed, I think most justices of the peace would be reassured by that. I know from my own experience that many justices of the peace are completely unimpressed by the fact that they are appointed a justice of the peace. As Reverend the Hon. Fred Nile said, he thought he had slipped off the list. He has not; he is still here. We hope he will be here for a long time, and we hope he will continue to be a functioning justice of the peace for a long time. Now that I know that Reverend the Hon. Fred Nile is a JP, I will be knocking on his office door even more frequently than I have in the past. Sometimes at a precise moment and in the precise location it is difficult to find a JP. I am told that the Clerk is a JP. For some reason I never applied to become a JP. The Chairman is a JP. Can members of Parliament become JPs?

The Hon. Janelle Saffin: Yes. They never used to let lawyers be JPs.

The Hon. MICHAEL EGAN: I would not let lawyers become JPs either. With all of these justices we could easily set up people's tribunals around the State. We could do away with all the lawyers—

The Hon. Janelle Saffin: I don't want people's justice, thank you Minister.

The Hon. MICHAEL EGAN: I am not sure that I am in favour of that either. I am reminded that a former member of this Parliament—I will not mention her name—conducted a rally one Saturday afternoon in the Domain. The rally got coverage on the television that night and I heard her say, "What we want are courts of justice, not courts of law." I thought she had misunderstood what our legal system and system of justice was really all about. I was frightened that she did not understand that it was a frightening statement. I was not going to participate in this debate until I entered the Chamber, but I am sure that I have convinced honourable members that it is sensible for a Justice of the Peace to be appointed for a five-year term rather than a ten-year term.

The Hon. JAMES SAMIOS [5.42 p.m.]: The Treasurer has spoken with great eloquence and has put some interesting arguments against this amendment. If we have had a lifetime to ascertain the number of Justices of Peace who have been appointed for life and we still do not know how many there are, how will we be able to do an effective count every five years? As other speakers have already indicated, it is incredible that the number of JPs is unknown. Some honourable members have estimated the figure at 100,000 and others at 200,000. I ask the Treasurer how can the number of JPs be effectively determined every five years. The State really depends on people to volunteer to be a JP for the community. They do not get paid and they are often asked to perform their duties at all sorts of hours. How many times have honourable members not been able to find a JP, particularly in Parliament House? People ask where can they find a JP?

The Hon. Janelle Saffin: They are at the local bank, we all know that. Quite often the bank manager is a JP.

The Hon. JAMES SAMIOS: How excited is he to receive you? Honourable members know that rural areas lack so many amenities and have a more pronounced shortage of JPs. A JP plays a judicial role in rural areas. The Opposition does not want to burden the taxpayer with the administrative cost of JPs having to apply every five years. I do not see the value of doing that, but I wait with bated breath for the wisdom of the Treasurer on that matter. At this stage the amendment proposed by the Opposition is realistic. It tells the 12 June 2002 LEGISLATIVE COUNCIL 3027

community that a JP cannot be appointed for life, and that age and other factors must be considered, but that a 10-year appointment is a practical administrative approach. Furthermore, a lot more people will choose not to renew their position as a JP after five years; they will say, "To hell with the paperwork. I'm doing it for nothing. I'm doing this to serve the community and it is costing me money. Why should I have to apply every five years?" The Hon. MICHAEL EGAN (Treasurer, Minister for State Development, and Vice-President of the Executive Council) [5.46 p.m.]: As I said, the New South Wales Justices Association supports a five-year term for Justices of the Peace [JPs]. Over the years, I have spoken at meetings of Sutherland shire Justices Association and one or two other associations around the State. The association's members are probably the most active JPs in the State and they understand the need for a five-year limit. Earlier in his remarks the Hon. James Samios asked how will we keep track of JPs. Under this legislation, if JPs do not apply for renewal within three years they will slip off the list and forgo their office.

Reverend the Hon. Fred Nile: They will keep acting as JPs.

The Hon. MICHAEL EGAN: That is a problem and I am sure my colleague the Attorney General with turn his mind to that. Reverend the Hon. Fred Nile: Will all the documents that are witnessed be illegal? The Hon. MICHAEL EGAN: I do not think that will necessarily be the case, or that the practical consequences would go to that length. We already have a problem now in that anybody can sign a document as a JP even if they are not a JP, and even if they were appointed a JP at some time but have subsequently done something that would make them ineligible to be a JP. Reverend the Hon. Fred Nile: They have registration numbers. The Hon. MICHAEL EGAN: The point made by Reverend the Hon. Fred Nile has some strength but it is irrelevant to this issue. I am sure honourable members will do the right thing. After all, we are only elected to this House for eight years, though we should only be elected for four. Preferably we should not be elected at all; we should not be here. There should not be an upper House. The Opposition is still hankering for the days when we were elected for 12 years, and prior to that when it was for 15 years, and prior to that for life. Well, those days have gone. We live in a new world. We are only elected for eight years, and as soon as I can do something about it we will only be elected for four years, and then not at all. The Hon. PATRICIA FORSYTHE [5.48 p.m.]: I was not going to participate in this debate but I found the words of the Treasurer so unconvincing that I have to take part. The Treasurer said that the Justices Association does not oppose appointment for five years. I suspect that the Government put a series of reforms and the association signed off on them without having a choice of five or ten years. The Justices Association just accepted it. If we start putting more onerous responsibilities on people every five years— The Hon. Michael Egan: It is not onerous. The Hon. PATRICIA FORSYTHE: Appointment for 10 years is appropriate. Five-year terms would allow the creation of a little empire and add to the bureaucracy of the Attorney General's office when that office should be focused on many more significant issues. Opposition members were asking why the Government is pushing so hard for five-year terms. A little empire would be tolerable, it was suggested, if it were paid for by an administrative fee. I wonder whether this measure is a way of creating yet another tax, another user-pays device, and every five years justices will need to renew. I will be very interested to get the Treasurer on the record—not a shake of the head, but his words. The Hon. Greg Pearce: Michael the miserable strikes again. The Hon. PATRICIA FORSYTHE: Indeed, the Treasurer strikes again. The Hon. Don Harwin: Watch the regulations.

The Hon. PATRICIA FORSYTHE: Matched by appropriate regulations, every five years this will be a nice little money earner for the Government. The Hon. MICHAEL EGAN (Treasurer, Minister for State Development, and Vice-President of the Executive Council) [5.51 p.m.]: I should point out a couple of things. First, there is no administration fee or any other financial impost. 3028 LEGISLATIVE COUNCIL 12 June 2002

The Hon. Don Harwin: What about issuing a guarantee that you will not bring one in?

The Hon. MICHAEL EGAN: Why would a Treasurer who has reduced taxes in five successive budgets want to impose a new one? I do not put taxes up; I bring taxes down. The record of the Opposition is just the reverse. The Coalition was in office for seven years and put up taxes almost every year.

The CHAIRMAN: Order! I remind the Treasurer that the Committee is discussing a clause. This is not a second reading debate.

The Hon. MICHAEL EGAN: Of course, and I will only say things that are relevant to the comments made by the Hon. Patricia Forsythe. The other day I added up all the tax hikes while the Coalition was in government. By the end of its seven years the Coalition Government had put up taxes by $940 million a year. Now the Opposition is accusing me of wanting to put a fee on justice of the peace applications. I give an absolute assurance that for as long as I am Treasurer of the State— The Hon. John Jobling: Worthless! The Hon. MICHAEL EGAN: I cannot vouch for what the grandson of the Leader of the Opposition might do if he ever becomes Treasurer of New South Wales, but for the next 14 years I intend to be the Treasurer of New South Wales. I give the Chamber an undertaking that for those 14 years there will be no such fee on JP applications. That is a guarantee from a tax-cutting Treasurer. The Hon. Patricia Forsythe also suggested that the Justices Association may have been indifferent to whether it was five years or 10 years and simply accepted a package of measures put forward by the Government. I am advised that that is not the case. I am advised that when the Justices Association was told that the Opposition wanted 10-year terms, its response was that that was ridiculous. That is the response of the New South Wales Justices Association, that the proposal of the Opposition was ridiculous. We know that most proposals that come from the Opposition are ridiculous. This one is no different. I urge honourable members to vote against this absurd amendment.

Question—That the amendment be agreed to—put.

The Committee divided.

Ayes, 18

Mr Breen Mr Harwin Mrs Sham-Ho Dr Chesterfield-Evans Mr M. I. Jones Mr Tingle Mr Colless Mr Lynn Mrs Forsythe Reverend Nile Mr Gallacher Dr Pezzutti Tellers, Miss Gardiner Mr Ryan Mr Jobling Mr Gay Mr Samios Mr Pearce

Noes, 18

Dr Burgmann Mr Hatzistergos Ms Tebbutt Ms Burnswoods Mr R. S. L. Jones Mr West Mr Cohen Mr Macdonald Mr Costa Mr Obeid Mr Della Bosca Mr Oldfield Tellers, Mr Dyer Ms Rhiannon Ms Fazio Mr Egan Ms Saffin Mr Primrose

Pair

Mr Moppett Mr Tsang

The Hon. John Jobling: Point of order: Mr Chairman, may I draw your attention to the standing orders and ask you to deal with a matter. I understand that the Hon. Richard Jones, having called "Aye", voted with the noes. 12 June 2002 LEGISLATIVE COUNCIL 3029

The Hon. Richard Jones: To the point of order: I was not aware that I said "Aye". If I did, it was inadvertently.

The CHAIRMAN: Order! Standing Order 125 provides:

A Member having given his voice with the "Ayes" or "Noes" shall not, on a Division being taken, be at liberty to vote with the opposite party; and if he should do so, the President, on being satisfied thereof, shall order the Division lists to be corrected.

In this instance it is the Chairman of Committees who must be satisfied. I am not so satisfied. The member said he was not aware that he said "Aye", and I did not hear the member's call. There being 18 ayes and 18 noes, I cast my vote with the noes and declare the question to be resolved in the negative.

Amendment negatived.

Clause 4 agreed to.

Clauses 5 to 17 agreed to.

Schedule 1 agreed to.

Title agreed to.

Bill reported from Committee without amendment and passed through remaining stages.

OPTOMETRISTS BILL

Second Reading

The Hon. MICHAEL EGAN (Treasurer, Minister for State Development, and Vice-President of the Executive Council) [6.10 p.m.]: I move:

That this bill be now read a second time.

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

Leave granted.

I have pleasure in introducing the Optometrists Bill 2002. This Bill is a reintroduction of the Optometrists Bill 2001, which lapsed on the proroguing of the Parliament, with the addition of a small number of important amendments to the provisions dealing with the ownership of optometry practices and the use of therapeutic drugs in the practice of optometry.

The Optometrists Bill will protect the health and safety of the public of New South Wales by providing for the effective regulation of the optometry profession and by ensuring that optometrists are fit to practise. The Bill repeals the Optometrists Act 1930, which was last substantively amended in 1969. The new legislation is appropriately updated so as to strengthen and improve the regulation of optometrists in a similar fashion to improvements that have recently been made to the regulatory systems for other health professionals, such as medical practitioners, dentists, chiropractors, physiotherapists and osteopaths.

This Bill is the result of a thorough review process. The review has involved exhaustive consultation with all relevant stakeholders and in particular the optometry and medical professions. Over the course of both this review and previous reviews, dating back to 1988, a number of draft Bills have been produced for consideration. However, this legislation will see the conclusion of that review process and allow the optometry profession to develop in a manner appropriate for the role it fills in the health care system and in a fashion similar to developments in other jurisdictions both in Australia and overseas.

The issue that has been the primary cause for the number and length of the various reviews is the issue of optometrists' access to therapeutic drugs. The current Act allows optometrists to use diagnostic drugs in professional practice but prevents the use of therapeutic drugs. In the course of the current review a Clinical Issues Working Party was established to examine a number of matters relating to clinical optometry including the use of therapeutic drugs to achieve a consensus among stakeholders on this matter. The working party recommended that restrictions on the use of therapeutic drugs be removed from the Optometrists Act and that the matter be dealt with by the Poisons and Therapeutic Goods Act. This is the approach that is taken to regulate the access of other professions, including the medical profession, to restricted medications and the Government has agreed that it is the approach that should be taken for access by optometrists.

The eyes and visual system are extremely complex and delicate and any damage to those systems or loss of sight is a very serious matter and an issue that is of great concern to the public. It is therefore entirely appropriate to take a very cautious approach when approving expansion of optometrists' role into the treatment of ocular conditions by use of therapeutic drugs. Any reforms that are contemplated must be based on verifiable competencies. 3030 LEGISLATIVE COUNCIL 12 June 2002

The current Bill therefore provides that the Optometrists Board may issue a registered optometrist with a drug authority and that there may be different classes of optometrist drug authority which relate to different therapeutic substances. In the interests of ensuring that there is an appropriately high level of clinical governance in the approving of therapeutic substances for use by optometrists the Bill will amend the Poisons and Therapeutic Goods Act to establish an expert committee to determine the classes of optometrist drug authority that may be issued by the Optometrists Board; the poisons and restricted substances that are to be covered by each class of optometrist drug authority; the competency standards an optometrist must meet in order to be granted an optometrist drug authority of a particular class; the criteria to be used to ascertain whether an optometrist meets those competency standards (including criteria as to necessary education, training and experience); the maximum period for which an optometrist drug authority may be granted; and the ocular conditions that an optometrist who holds a particular class of optometrists drug authority is authorised to treat.

The Committee will be established by the Director-General of Health and will comprise the Chief Health Officer of the Department of Health, who will be the Chair of the Committee, a registered optometrist nominated by the Optometrists Registration Board, an ophthalmologist nominated by the Royal Australian and New Zealand College of Ophthalmologists, a physician nominated by the Royal Australasian College of Physicians, and a clinical pharmacologist chosen by the Director- General.

Therefore there will be appropriate safeguards to ensure that only competent optometrists can access restricted drugs.

I emphasise for the benefit of members that optometrists will not be able to sell restricted medications and the only way that optometrists will be able to supply such medications is by way of clinical sample. The Royal Australian and New Zealand College of Ophthalmologists has been extensively consulted during the development of these provisions and has agreed that the process for optometrists to access therapeutic drugs as set out in the Optometrists Bill is appropriate. The provisions will require the involvement of both the medical and optometry professions in the development of competency standards and in determining the therapeutic substances that optometrists will be approved to use and the ocular conditions that optometrists will be approved to treat.

The college has been concerned to ensure that the public health is protected and I take the opportunity to place on record the Government's appreciation of its efforts and contribution to the development of this legislation.

Honourable members are aware that the Government supports the continuation of restrictions on the ownership of optometry practices. However there are a number of non-optometrist owners who currently enjoy rights under the Optometrists Act 1930. These non-optometrist owners are to continue to enjoy those rights. Therefore the existing provisions of the Optometrists Act 1930 by which those non-optometrist owners are entitled to operate an optometry business are carried forward by reference in this Bill. The result is to preserve the status quo and all existing rights.

The Bill includes a regulation making power that provides that regulations may be made prescribing a person or class of persons as allowed to operate an optometry business. That power is intended to be used to allow organisations such as universities, public health organisations and Aboriginal medical services to employ optometrists to provide optometry services. I emphasise that this provision will not allow non-optometrist to undertake optometry practice but will merely allow certain prescribed organisations or persons to employ optometrists to provide optometry services.

Recent health professional Acts passed by the Parliament have amended the Public Health Act to define and restrict certain health care practices to particular registered professions. Restrictions have been placed in the Public Health Act in order to underpin the fact that those restrictions are enacted to protect public health rather than to protect the professional turf of particular professions. This Bill takes the same approach to the prescribing of optical appliances with that practice being restricted to registered medical practitioners and registered optometrists.

The term optical appliance means contact lenses, spectacle lenses or any other appliance designed to correct, remedy or relieve any refractive abnormality or defect of sight. The Bill will not affect the manufacture, fitting and supply of optical appliances as this is controlled by the Optical Dispensers Licensing Act and there will be no restriction on the manufacture and sale of so- called "ready made" glasses which are merely magnifiers and are freely available from a number of retail outlets including community pharmacies.

I turn now to the specific provisions of the Bill.

To ensure that the welfare of patients is the paramount consideration in administering the Act, clause 3 of the Bill states that the objective of the legislation is to protect the health and safety of the public by providing mechanisms to ensure that optometrists are fit to practise. The Bill will achieve this objective through a number of initiatives.

The first of these initiatives is to provide that the board may refuse to register a person, or register him or her subject to conditions, where it is not satisfied that he or she is competent to practise.

For the first time it will be an express requirement that applicants for registration must be competent to practise. As part of the requirement for competence, clause 14 of the Bill provides that the Optometrists Registration Board will have the power to conduct an inquiry into a person's competence. If, following an inquiry, the board is not satisfied as to the applicant's competence it will be able to grant registration subject to conditions or refuse registration. The power to conduct an inquiry will also apply when a person applies to have their registration restored.

The second initiative within the Bill, to ensure that optometrists maintain their competence, is the introduction of a more robust annual renewal process. This process will require practitioners to submit annual declarations to the board on renewal of registration.

Clause 24 of the Bill provides that the annual declaration will cover criminal convictions and findings, ongoing good character, the refusal by another jurisdiction to register the person, the details of any suspension or cancellation of registration or the 12 June 2002 LEGISLATIVE COUNCIL 3031

imposition of conditions in another jurisdiction or by another health registration board in New South Wales, whether the practitioner is registered with another health registration board in New South Wales, significant physical or mental illness that is likely to affect a optometrists ability to practise, and continuing professional education activities.

In addition to practitioners being required to provide the board with an annual declaration detailing any criminal findings, clauses 25 and 26 of the Bill also provide for the board to be notified about practitioners who are the subject of criminal findings. Under these provisions:

Courts will be required to notify the board of practitioners who have been convicted of an offence or made the subject of a criminal finding in respect of a "sex or violence offence".

Essentially, a criminal finding is one where an offence has been proven but a conviction has not been recorded. A "sex or violence offence" is an offence involving sexual activity, acts of indecency, child pornography, physical violence or the threat of physical violence.

Practitioners will be required to notify the board within 7 days: if they have been convicted of an offence of a type that courts are required to report, or if they have sustained a criminal finding in relation to a "sex or violence offence", or if they are facing criminal proceedings for a "sex or violence offence" where the allegations relate to conduct occurring in the course of practice or involving minors.

The third significant initiative is part 4 of the Bill. Part 4 introduces a new disciplinary system.

Clauses 28 and 29 provide for a two tier definition of misconduct based on the definitions in the Nurses Act. The adoption of the two tier definition, which includes both unsatisfactory professional conduct and professional misconduct, will allow for the board to deal with both serious and less serious complaints in the most appropriate manner.

Clause 30 of the Bill provides the grounds for a complaint about a practitioner. The grounds for complaint have been drafted to be consistent with the grounds for complaint in the Health Care Complaints Act, the changes in the grounds for refusing a person registration, the introduction of the two tier definition of misconduct and the introduction of an impaired practitioners system.

The Bill introduces an Optometrists Tribunal, which will deal with complaints that practitioners are guilty of professional misconduct. The Tribunal will be chaired by a legal practitioner with at least seven years experience, and include two optometrists and a consumer selected by the board. The tribunal will hear the more serious complaints about practitioners and the board will, where appropriate, conduct inquiries into complaints that are less serious.

The Bill also introduces the Optometry Care Advisory Committee. The Committee will be used by the board as an expeditious and expert mechanism to inquire into complaints about optometry services, which the Health Care Complaints Commission does not propose to investigate. Those complaints will generally be those at the lesser end of the spectrum of seriousness.

The Committee will comprise four members being three optometrists and a consumer. The Committee Chair will be an optometrist nominated by the Board and the other two optometrists will be selected by the Minister from a panel of practitioners put forward by the Board. Due to the importance of ensuring that the Committee is both independent and perceived as independent, Board members will not be eligible to be appointed to the Committee. Precluding Board members from sitting on the committee will ensure that the same individuals do not consider complaints in different capacities and fora. Members of the committee will be appointed for a fixed term of four years.

The Committee will investigate complaints and make recommendations to the Board for their resolution. Included as part of the Committee's investigatory powers will be the power to require a practitioner who is the subject of a complaint to undergo skills testing. Skills testing will assist the Board in dealing with complaints about professional standards and in ensuring that practitioners maintain appropriate standards.

The Committee will not have the power to determine complaints, but can facilitate the patient and the practitioner reaching an appropriate agreement between themselves. Should the Committee, during its investigations, reach the view that a complaint raises an issue of unsatisfactory conduct that requires referral for a disciplinary inquiry, the Board will be obliged to follow this recommendation. In such cases the board will either conduct an inquiry into the complaint or, for the most serious matters, refer the complaint to the Tribunal for a hearing.

Honourable Members will be aware of the valuable role that the Health Care Complaints Commission performs in investigating complaints about health service providers and in appropriate cases instituting disciplinary action against practitioners. I emphasise that under the new disciplinary provisions the Health Care Complaints Commission will continue to play an important role in the investigation and prosecution of complaints.

As part of the Board's powers to protect the public it will be able to impose conditions on a practitioner's registration or suspend that registration where it is necessary to do so to protect the life or the physical or mental health of any person.

This leads me to Part 5 of the Bill which introduces a system for the board to manage impaired practitioners. The provisions of Part 5 are modelled on provisions in the Medical Practice Act, which have operated successfully for a number of years. The rationale for such a system is that practitioners whose ability to practise is impaired by factors such as physical or mental illness, or drug and alcohol abuse, can be managed and assisted before those problems develop to such an extent that patients are placed at risk.

Following the impairment process the Board will be able to place conditions on a practitioner's registration or suspend that registration where it is satisfied that the practitioner has agreed. Where the practitioner does not agree to the recommendations of an impaired registrants panel, the Board will have the option of lodging a complaint about the practitioner and having that complaint dealt with by the Tribunal or at a Board inquiry. 3032 LEGISLATIVE COUNCIL 12 June 2002

The Bill includes comprehensive appeal mechanisms to ensure that there are appropriate checks and balances in the disciplinary system. Where the Board hears a complaint there is a right to appeal to the Tribunal, and for that appeal to be by way of a fresh hearing. There is also avenue for a practitioner to appeal to the tribunal on a point of law.

Where the Tribunal hears a complaint there is a right to appeal to the Supreme Court. However such an appeal may only be made on a point of law or in respect of the sanction that is imposed by the Tribunal.

In the interests of administrative effectiveness and efficiency the Board will have the power to delegate certain of its functions and to establish committees. The establishment of committees will allow the Board to obtain outside expertise from both the optometry profession and other professions such as the medical profession for specific matters such as the development of competency standards for the use of drugs in the practice of optometry.

The provisions of this Bill will help to ensure that the public can continue to have confidence in optometrists and to expect the highest standards of competence and conduct from the profession.

I commend the Bill to the House.

The Hon. Dr BRIAN PEZZUTTI [6.10 p.m.]: This bill has emerged from what is probably the longest gestation. The legislation was first reviewed following a proposal to introduce it in 1989. The Hon. Michael Egan: When you were Parliamentary Secretary for health? The Hon. Dr BRIAN PEZZUTTI: I had just been elected in 1989. The measure was brought forward with all sorts of changes that optometrists wanted at that time. They wanted to treat eye disease, they wanted to use lasers, they wanted to provide all sorts of medication, they wanted not to release their prescriptions, they wanted ownership only by optometrists and so on. It had a huge pile of conditions. At the time this was thought not to be in the public interest and so that great man Fred Hollows was invited along to give advice. Fred Hollows was a great friend of the Australian Medical Association. Honourable members will remember that at that time Fred Hollows had lung cancer. Ron Phillips was chairman of the backbench health committee and Peter Collins was Leader of the Opposition. We asked Fred along to tell us what he thought of the bill. We knew that Fred had a history of arrangements with the previous Minister, who I believe was Laurie Brereton, to set up a trial process to train and examine optometrists in the use of drugs prior to approval of the use of some drugs for eye disease treatment. None of the ophthalmologists would have a bar of it because in 1986 they were not properly trained to recognise the disease or treat it, let alone use the drugs, nor did they undergo any training in their use. Fred was an unusual character; he was prepared to try anything once. He was a new professor at the University of New South Wales, having come over from New Zealand. I had worked with Fred when I was a young doctor and I thought I would ring Fred and obtain some fearless advice because he was a fearless sort of fellow. So I brought him into the committee. We met in Ron Phillips' office, which is the Whip's office near the Legislative Assembly Chamber. Fred walked in obviously unwell. He had just had some of his lung excised. He was limping a little and puffing and blowing. The Hon. Dr Arthur Chesterfield-Evans: Did he smoke? The Hon. Dr BRIAN PEZZUTTI: He was a pipe smoker. I will never forget what happened. He came in and we reached the stage about managing prescriptions and he said: "I don't really give a damn about that sort of stuff, and ownership. Well, who cares?" When we reached the topic about using drugs Fred said, "Whatever you do, don't do it." I thought his response was rather unusual, and all of the other members of the committee were quite stunned by that very forthright statement. He then told us what had happened while he, an ophthalmologist, was on a funny committee that was set up, I believe, under Mr Brereton as health Minister; what a disaster and sham it was at the time. How times have changed! The bill was eventually ready to be presented. I have a copy of it, dated 1989, should any member wish to see it. That bill did not go any further because the optometrists would not agree to the changes necessary to bring in new legislation. Time moved on and in 1993 there was another attempt to introduce a bill. I have a copy of that draft bill. Again the same problems arose. On that occasion the Minister was required, under the 1988 Act, which was forced upon the Wran Government by the medical profession, to consult with the Medical Services Committee. That committee took one look at the bill and blew its stack. So we did not have to use Fred Hollows again. Anyway, by then I think he was pretty sick or nearly dead, but his words were still ringing in our ears. In 1993 Ron Phillips was Minister for Health. Ron had not really remembered a lot of what happened in 1988 and he thought that, time having moved on, the bill would proceed. The department was in negotiations on the bill but had forgotten to talk to the Medical Services Committee. The committee blew its stack, and as 12 June 2002 LEGISLATIVE COUNCIL 3033

Parliamentary Secretary Assisting the Minister for Health I helped to advise the Minister. With negotiations breaking down, the optometrists withdrew, the department withdrew, everybody withdrew and the bill failed. In 1997 Andrew Refshauge had a go at introducing a bill, but again the same impasse arose in that the optometrists wanted to advance dramatically into the field of medical treatment of eye disease rather than doing simple optometry, which involves the refraction and correction of visual acuity.

So we reached the stage in 2001 when the Minister for Health, Craig Knowles, introduced a bill into the Legislative Assembly. I have a copy of that bill entitled "Optometrists Bill 2001" and also a copy of the second reading speech that was read by Mr McManus, the Minister's faithful reader. The Minister for Health normally gets his Parliamentary Secretary to read his turgid speeches. I notice the Leader of the Government is now reading his second reading speeches. When the poor Minister introduced the privacy legislation last evening he had to read a turgid speech. That speech went down like a lead balloon because, unfortunately for the Minister, the shadow Minister, Jillian Skinner, has a very strong view about consulting the community to see whether legislation proposed within one of her shadow portfolios is in the public interest and advances public safety and health. She consulted fairly widely.

She came to our party room with a number of suggestions for amendment to that bill. So serious were those suggestions that she sought a face-to-face meeting with the Minister, which he granted. She told him what she thought of the bill. She asked him to meet with Dr Paul Beaumont, who has a practice across the road from this place. He happens to be the current representative of the college of ophthalmologists in New South Wales and is a leading expert in the treatment of eye disease. He is not an operating ophthalmologist; he is a medical ophthalmologist who treats patients suffering from diabetes. His practice is open from very early in the morning until late at night to provide for a wide variety of patients who have eye disease, particularly those patients with diabetes.

Craig Knowles listened carefully to what Paul Beaumont had to say. Over a period of weeks the Minister, Dr Beaumont, the optometrists, and Karen Crawshaw from the department reached a series of agreements and consolidated the position. We now have the 2002 bill. This is about the sixth attempt at getting things right. At the end of the day this bill provides for a number of things. One matter of interest: It does not provide any definition of "optometry". It is the only bill in Australia that does not contain a definition of "optometry". However, leaving that aside, that was thought to be too restrictive and it depended on what the board decided was in the public interest. That is an important factor but is not the most important.

However, the bill contains substantive measures. Anybody can read the Minister's second reading speech and the reply of Jillian Skinner, who obviously understood the measure very well. She said that people had grave concerns about serious flaws in the bill and that there was a risk in its provisions. I take my hat off to Craig Knowles, who had the good grace and commonsense, as Andrew Refshauge had, to ensure that the bill would not pass in its current form. The Coalition and the Government worked very well together to reach a result that represents advancement for the people of New South Wales and an improvement on the 1930 Act under which optometrists have been operating, as well as a few amendments that were enacted over time. Former Coalition Government Ministers, Ron Phillips, and the honourable member for Willoughby, Peter Collins, preserved the requirement for prescriptions to be handed over and made provision for the sale of off- the-shelf glasses, which formerly had to be prescribed. The Hon. Tony Kelly: From Bologna? The Hon. Dr BRIAN PEZZUTTI: Yes, but they can be bought in New South Wales for $29.95 and that is why I have another pair. Glasses can be bought off-the-shelf as a result of changes that were made to the Act. I will not canvass the provisions of the original Act because I do not think that assists very much. This bill provides that optometrists only may own optometry shops, and I have no real problem with that. It is a minor matter. It is probably more important that pharmacists own pharmacies to obviate a real risk of harm. Substantially, pharmacists own pharmacies and optometrists own optometrists shops, except for OPSM. That may be a bit anticompetitive, but it is no big deal. By virtue of this bill, the Government will be able to register premises and inspect them. It will be easy to keep tabs on optometrists' premises for regulatory purposes to ensure that they follow the usual laws relating to occupational health and safety. But, more importantly, regulations will apply to the control of infection. I have no real problem with those provisions because they are minor but it was a big issue for the optometrists. The Government and the Opposition were happy to take the advice of optometrists on that matter. The bill varies the composition of the board slightly and that change represents the combined wisdom of the Minister, the Opposition and the optometrists with advice from other boards on how they would react to 3034 LEGISLATIVE COUNCIL 12 June 2002 the change. However, the sticking point and the difficulty with compilation of the bill has been the use of drugs by optometrists. Professor Holden of the University of New South Wales is one of the leading optometrists of the world. He is in charge of a co-operative research centre, the CRC for Eye Research and Optometry in Australia. He and his team have undertaken research and have developed new contact lenses specifically for the Asian markets. The cornea of Asian people is the same as the cornea of everybody else, but the way in which the eyelid of Asian people works has caused contact lenses to be unstable, to be flicked off or to be moved. Professor Holden and his team invented a whole set of new materials, a brand new process and have made a motser. More importantly, the life of people who happen to be Asian has been improved by the use of this drug. Because of that, as a previous board member of the University of New South Wales, this bill gives me a great deal of pride.

The Hon. Michael Egan: A board member?

The Hon. Dr BRIAN PEZZUTTI: A council member of the University of New South Wales. So I take a great deal of pride in Professor Holden being able to advance Australia's position so well in such a major field of endeavour.

The Hon. Michael Egan: He is a good man.

The Hon. Dr BRIAN PEZZUTTI: I just said so, and it is not just that he is a good man—he has been recognised by the Commonwealth for his good works. He has received the award of Officer of the Order of Australia [AO].

The Hon. Michael Egan: He came to see me recently.

The Hon. Dr BRIAN PEZZUTTI: He is a good man. Some years ago he suggested that it was time to change the optometry degree at the University of New South Wales from four years to five years to enable him to train people to treat eye disease. Some people thought that was unnecessary and there were a number of arguments, but, at the end of the day, this bill effects a change to the Poisons and Therapeutic Goods Act. Clause 21 allows optometrists to have access to drugs associated with the practice of optometry. The clause states:

The Board may grant a registered optometrist an optometrists drug authority under section 17B of the Poisons and Therapeutic Goods Act …

The board will take advice and the director-general will produce regulations to control the type of drugs that may be used. The committee that will advise the director-general in those matters is very important and is comprised of an optometrist, an ophthalmologist, a physician, which is a specialist in internal medicine, a chemical pharmacologist and the chief health officer of the department. That committee will give advice to the director-general and the director-general will make the determination. Then the board will determine the standard that will be applied, but the director-general will be allowed input to that decision. In other words, the standards must be complied with and when they are, the board will issue the certificate.

The certificate will authorise a registered optometrist to possess and use, in the practice of optometry, cycloplegics—used for the size of the iris—local anaesthetics, mydriatics and miotics as may be prescribed for use by registered optometrists, but only for such purposes as may be prescribed by the regulations. The certificate relates specifically to the practice of optometry. Based on the main features of the bill, the legislation has reached the stage that I believe it should have reached in 1988. I acknowledge that upgrading provisions relating to the treatment of complaints, et cetera, brought the legislation into line with similar provisions in the State. I congratulate my colleague the honourable member for North Shore, Jillian Skinner, Professor Beaumont and those contacted by Professor Beaumont to give advice on various parts of the bill, such as the Medical Services Committee, which provided major input into the changes.

Officers of the Department of Health adopted a flexible attitude and gave advice on whether changes that the Opposition wanted to make were kosher and reasonable. They discussed both sides of the arguments very nicely in the context of their interest being in public protection. I have to say that those departmental legal officers, such as Karen Crawshaw, were more than happy to be co-operative and positive in formulating a bill that all members of Parliament can promote because it improves quality of services and safety in the practice of optometry in New South Wales. The bill has been a long time in the making. I am very pleased to support the bill. 12 June 2002 LEGISLATIVE COUNCIL 3035

Reverend the Hon. FRED NILE [6.27 p.m.]: The Christian Democratic Party supports the Optometrists Bill. I am pleased that after lengthy negotiations this bill is finally before the House and hopefully will be passed in due course. As honourable members know, a great deal of controversy surrounded the bill and is the reason for its delay. Members of Parliament were lobbied extensively on the possession, use and prescription of certain therapeutic drugs in the practice of optometry. Concern was based on whether optometrists are sufficiently trained or qualified to use drugs and whether the use of drugs should be restricted to the medical profession. I note that clause 21, which reflects the basis of agreement between the various stakeholders, states:

The Board may grant a registered optometrist an optometrists drug authority under section 17B of the Poisons and Therapeutic Goods Act 1966 if satisfied, on the basis of criteria approved under that section for assessing competency, that the optometrist meets the competency standards approved under that section in respect of the class of authority concerned.

The clause also states:

The Board may grant an optometrist drug authority subject to conditions and the conditions of the authority may be altered or added to by the Board at any time by notice in writing to the optometrist.

Now that that matter has been resolved after meetings with the Clinical Issues Working Party, the Christian Democratic Party has no objection to the bill. As I said earlier, the Christian Democratic Party supports the bill.

Ms LEE RHIANNON [6.30 p.m.]: The Greens are pleased that consensus has been reached on this important Optometrists Bill. That consensus is measured by the absence of lobbying that surrounded the previous attempted reregulation of optometrists last year.

[Interruption]

I acknowledge the interjection of the Hon. Dr Brian Pezzutti. The test of this legislation will be to determine whether it protects the ability of small, single optometrist practices to survive against corporate competition. The Greens hope that the bill will facilitate the provision of services to rural, regional and remote communities in New South Wales. The Greens will not oppose the bill.

The Hon. MICHAEL EGAN (Treasurer, Minister for State Development, and Vice-President of the Executive Council [6.31 p.m.], in reply: I thank honourable members for their contributions to debate on this bill.

Motion agreed to.

Bill read a second time and passed through remaining stages.

TABLING OF PAPERS

The Hon. Michael Egan tabled the following reports:

Annual Reports (Statutory Bodies) Act 1984—Reports of the Tow Truck Authority of New South Wales for years ended 30 June 2000 and 2001, together with a statement of reasons for the lateness in presenting the reports.

Reports ordered to be printed.

[The Deputy-President (The Hon. Janelle Saffin) left the chair at 6.32 p.m. The House resumed at 8.15 p.m.]

FINANCIAL SERVICES REFORM (CONSEQUENTIAL AMENDMENTS) BILL

Second Reading

The Hon. MICHAEL COSTA (Minister for Police) [8.15 p.m.] I move:

That this bill be now read a second time.

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

Leave granted. 3036 LEGISLATIVE COUNCIL 12 June 2002

The purpose of this Bill is to amend State Acts and Regulations which are affected by changes made to the securities and futures industry provisions in the Commonwealth Corporations legislation by the Financial Services Reform Act 2001 (Cth) and Financial Services Reform (Consequential Provisions) Act 2001 (Cth).

Members will recall that last year, New South Wales and other States referred powers to the Commonwealth which enabled the Commonwealth to enact national Corporations legislation. The referral of powers overcame difficulties which had arisen as a result of certain legal challenges and High Court decisions in 1999 and 2000. The enactment of national Corporations legislation has given Australia an effective, uniform system of corporate regulation.

Prior to enacting national Corporations legislation, the Commonwealth had been developing a package of reforms in relation to the regulation of financial services in Australia. Introduction of these reforms was delayed pending finalisation of negotiations on the referral of power and the enactment of national Corporations legislation.

Last year, with the agreement of the States and the Northern Territory, the Commonwealth enacted the Financial Services Reform Act 2001 and the Financial Services Reform (Consequential Provisions) Act 2001. These Acts commenced on 11 March 2002 and reformed the regulation of financial services in Australia by introducing a harmonised regulatory regime for market integrity and consumer protection across the financial services industry.

The Financial Services Reform Acts introduced a single licensing system for all financial sales and advice, and for financial markets and clearing and settlement facilities. The single licensing system covers a wide range of financial products including shares and debentures, derivatives, managed investment products, general and life insurance products—other than health insurance—superannuation products and retirement savings accounts but not credit or consumer credit. A person who carries on a financial services business is required to hold an Australian financial services licence covering all products or a more limited class of products.

In practical terms, the Financial Services Reform Acts substituted a new Chapter 7 dealing with Financial Services and Markets, for the previous Chapters 7 and 8 of the Corporations Act.

The previous Chapter 7 contained provisions relating to the acquisition of securities—principally shares and debentures—and the regulation and operation of the securities industry in Australia. It licensed and regulated participants in the securities industry such as dealers, investment advisers and operators of managed investment schemes. It also contained provisions in relation to title to, and transfer of, securities. The previous Chapter 8 provided for the regulation of the futures market in Australia and dealt with the approval and regulation of futures exchanges and participants in that industry.

It is necessary to amend references in State Acts and regulations to the old Chapters 7 or 8 of the Corporations Act and expressions and concepts that are no longer consistent with the new regulatory regime. For instance, the term 'stock exchange' is replaced by 'financial market', licensed dealers and investment advisers are 'financial services licensees' and insurance agents who were authorised under the repealed Insurance (Agents and Brokers) Act 1984 of the Commonwealth will have to be licensed under the Corporations Act. The necessary changes to State Acts and Regulations are contained in Schedules 2 and 3 of the Bill before the House.

Schedule 2 also contains amendments to the Minors (Property and Contracts) Act 1970 and the Property (Relationships) Act 1984 to make it clear that legal practitioners are not required to give financial advice for which they would need to be licensed under the Corporations legislation, when they give certificates under those Acts.

As I mentioned earlier, a limited regulation making power has been included in the Corporations (Ancillary Provisions) Act 2001. This power will be used to make regulations which specify how references in State Acts to provisions of, or terms, concepts or expressions used in the Commonwealth Corporations legislation are to be construed when they are amended by the Commonwealth; and to amend references in regulations to such amended provisions, terms, concepts or expressions. This provision recognises the fact that the Commonwealth will continue to amend the Corporations legislation in the future and that such amendments may have an effect on the construction of various State Acts and Regulations. The regulation making power enables any necessary consequential amendments to be made by regulation.

In conclusion, the amendments made by this Bill are technical and are largely consequential on the amendments made by the Financial Services Reform Acts. The Government remains committed to ensuring that Australia has a national uniform and constitutionally secure Corporations Law. I commend the Bill to the House.

The Hon. JOHN RYAN [8.16 p.m.]: The Opposition—the alternative government—does not oppose this landmark legislation, which fortunately defines an insurance intermediary. If anybody ever wanted to know what an insurance intermediary is there are three definitions of an insurance intermediary in this bill on page 11. It makes fascinating reading. This is largely machinery legislation, which is designed to reform non-financial institutions. It has been well discussed by the organisations that it affects. I am sure the Treasurer will tell us that it is landmark legislation that changes financial arrangements in New South Wales to no end. However, it is in no way controversial. It advances business in New South Wales. The Opposition does not oppose the legislation and commends the bill to the House.

Motion agreed to.

Bill read a second time and passed through remaining stages. 12 June 2002 LEGISLATIVE COUNCIL 3037

PASTORAL AND AGRICULTURAL CRIMES LEGISLATION AMENDMENT BILL

Bill introduced and read a first time.

Second Reading

The Hon. MICHAEL COSTA (Minister for Police) [8.22 p.m.]: I move:

That this bill be now read a second time.

Pastoral and agricultural industries are particularly vulnerable to crime due to their isolation. There are also clear difficulties associated with securing large areas of land. Of the crimes perpetrated against primary producers the loss of stock is the most prominent and is of greatest concern. In March the Pastoral and Agricultural Crime Working Party was formed, following a meeting between the former Minister for Police, the Minister for Agriculture and the New South Wales Farmers Association. The working party's brief was to consider all crimes against primary producers, including property and personal safety issues. The working party consisted of representatives from the New South Wales Farmers Association, NSW Police, the Ministry for Police and the Office of the Minister for Agriculture.

The working party considered a range of issues including methods of stock identification, travelling stock statements, police training, legislation and crime prevention. The working party examined the legislative provisions relating to pastoral and agricultural crime and found that, on the whole, the legislative framework is sound. However, the need for legislative reform was identified in some areas. My colleague the former Minister for Police, the Hon. Paul Whelan, announced in October last year the Government's support for the recommendations. Shortly after taking on this portfolio I met with representatives of the New South Wales Farmers Association and the Rural Lands Protection Board. On 27 February this year I was pleased to confirm a range of initiatives to address rural crime issues. These include the legislative changes proposed in this bill as well as a number of operational initiatives being pursued by NSW Police. Operational responses will include the creation of 32 specialist rural crime investigators at all non-metropolitan local area commands. This bill has industry support from the New South Wales Farmers Association, the Livestock Transporters Association of New South Wales as well as NSW Police and NSW Agriculture. The working party also made recommendations for legislative change to the Wool, Hide and Skin Dealers Act 1935 to address the regulation of that industry. A review of that Act has been conducted in line with National Competition Policy and legislative change will be pursued early next session. I will now deal with the substantive matters contained in the bill. I deal first with hunting without permission. Farmers and farming representatives have expressed concern about trespass on their land. Members of the working party and members of the public who attended the public hearing in Dubbo raised the unauthorised hunting of feral animals and the use of hunting dogs. This was of particular concern to families in isolated country areas. It is why the working party recommended a system of penalty notices for those offences. Farmers are also concerned about their animals being killed by unauthorised hunters. While the current law addresses unauthorised hunting with a firearm, there are no adequate provisions in respect of people who trespass to hunt with vicious dogs.

This bill creates an offence in the Summary Offences Act 1988 of hunting on private land without the permission of the owner or occupier. The offence will not apply where there is a lawful excuse, such as people permitted to destroy feral animals and pests. The bill has also been specifically drafted to ensure that traditional hunting by indigenous people permitted under native title or the Aboriginal Land Rights Act 1983 is also a lawful excuse. This will ensure that traditional cultural practices are not inadvertently interfered with by these amendments. I turn now to amendments to the Inclosed Lands Protection Act. The working party also noted that the Inclosed Lands Protection Act 1901 provides that goats that are branded or wearing collars cannot be destroyed under the Act. That Act is being amended to state that goats that are earmarked or ear tagged also cannot be destroyed. This is to reflect current marking practice, and will protect goats that wander onto another property from being destroyed as if they were feral goats. A consequential amendment is also being made to the Fines Act and Inclosed Lands Protection Act to enable penalty notices to be issued for trespass offences. This will enable police to deal with these minor offences without undue police and court time and resources. This is in line with the Government's policy that is seeing the introduction of penalty notice provisions for a range of other minor criminal offences. In relation to transportation of livestock, New South Wales has a transported stock statement system whereby an approved 3038 LEGISLATIVE COUNCIL 12 June 2002 form is required to accompany livestock when they are carried from one place to another. The legislative basis for this system was included in the now repealed Rural Lands Protection Act 1989. It was placed in the Rural Lands Protection (General) Regulation 2001 as an interim measure pending the working party's recommendations. This part of the regulation is due to expire on 28 September 2002.

The working party found widespread support for a compulsory system of documentation to accompany transported stock. The Government has agreed with the working party's recommendation that commercial documentation such as consignment notes used by livestock carriers should also be able to be accredited as transported stock statements. Larger transport operators who have a well-established system of consignment notes should not have to maintain a separate set of documentation with the same particulars. In its consideration of the matter and during significant consultation with producers, farming organisations, police, NSW Agriculture and livestock transporters, the working party found widespread support for a compulsory system of documentation to accompany transported stock.

It is proposed that a committee comprising representatives from NSW Police, the Livestock Transporters Association of New South Wales and NSW Agriculture will carry out the accreditation process. Commercial livestock transporters will benefit as they will need only one form to transport livestock. The transported stock statements will be approved by the Director-General of NSW Agriculture and available for purchase through the rural lands protection boards. Stock permits will still be used for some short journeys, including for the movement of stock between any two holdings held by the same occupier. Current exemptions, including transportation of stock to a veterinarian, will continue to be recognised.

I turn now to powers of prescribed officers to inspect documentation. Under the current legislation, transported stock statements must be produced if requested by a police officer or a prescribed officer. This authority is retained in this bill. However, the bill strengthens the requirement by providing that a transported stock statement must be carried by the person in charge of the stock and must be produced on the spot if requested by the officer. The current legislation does not make it explicit that an officer has the power to stop livestock transport vehicles for the purpose of inspecting transported stock statements. However, this is clearly implied in the existing powers of inspection. Accordingly, this bill specifically provides that an officer is empowered to stop a vehicle suspected of transporting farm livestock for the purposes of inspecting the transported stock statement and the livestock on the vehicle.

The driver of the vehicle will be required to comply with any reasonable direction of the officer in relation to the vehicle. The driver will be required to produce the transported stock statements and assist the officer to inspect any livestock on the vehicle. Police must show police identification when exercising their functions under the Rural Lands Protection Act. The Act requires persons exercising powers under the Act to be "authorised officers". The Director-General of Agriculture has advised that police officers will be appointed as authorised officers under this Act. Standard police identification may be used in place of an identification card issued under the Act. I commend the bill to the House.

Debate adjourned on motion by the Hon. Greg Pearce.

RADIATION CONTROL AMENDMENT BILL

Bill introduced and read a first time.

Second Reading

The Hon. CARMEL TEBBUTT (Minister for Juvenile Justice, Minister Assisting the Premier on Youth, and Minister Assisting the Minister for the Environment) [8.31 p.m.]: I move:

That this bill be now read a second time.

The Radiation Control Act 1990 is primarily about making certain that New South Wales has effective legislation in place to ensure the safe storage, use and disposal of radioactive substances and radiation apparatus used in health care and by industry, and to minimise incidents and accidents associated with radioactive substances and radiation instruments. It must be clearly understood, however, that the Act in no way relates to radiation safety for the nuclear facility at Lucas Heights, which is solely a Commonwealth responsibility. This bill implements the recommendations of an extensive review of the Radiation Control Act, the first such comprehensive review since its gazettal in 1990. The proposals seek to implement certain 12 June 2002 LEGISLATIVE COUNCIL 3039 recommendations of a National Competition Policy review of Australian radiation protection legislation that must be implemented by 30 June 2002 in order to secure National Competition Policy second tranche payments from the Commonwealth. They also include certain recommendations of the New South Wales Environment Protection Authority, which administers the Act, and others of the Radiation Advisory Council of New South Wales, which advises the Minister on the need to amend the legislation. The National Competition Policy review was requested by the Council of Australian Governments in December 1998 and was undertaken by the States and Territories under the co-ordination of the Australian Radiation Protection and Nuclear Safety Agency. Queensland, however, declined to participate as it had recently reviewed its radiation protection legislation. A steering committee made up of senior officers from Commonwealth, States and Territories radiation protection agencies was formed by the National Radiation Health Committee to conduct the review. New South Wales fully participated and was represented on the steering committee by the Environment Protection Authority. The review commenced on 8 August 2000 and an issues paper was released for public comment from October 2000 to December 2000. After receipt and assessment of all the submissions a draft final report was released to the public in March 2001. The final report of the review was published in May 2001 and the New South Wales Government endorsed the review and its 19 recommendations in November 2001. A major long- term aim of this radiation protection legislation reform program is to achieve consistency in radiation protection and safety provisions for all of Australia. This will benefit business by reducing the complexity of the safety laws covering the sale, use and disposal of radioactive substances and radiation apparatus. Uniformity will also remove current restrictions to the free movement of trained professionals and radiation apparatus, such as medical diagnostic imaging and radiation therapy apparatus, among the States and Territories. These changes will also seek to set uniform requirements, standards and protocols for the reporting of radiation accidents and incidents. This should lead to consistent data being gathered nationally, which will provide a sound basis for planning the prevention and minimisation of such incidents in the future. The Australian Health Ministers Conference on 4 August 1999 agreed that uniform radiation protection would be best achieved through the development of a national directory for radiation protection. The directory would provide a framework for ionising and non-ionising radiation safety and regulatory provisions that could be adopted within existing jurisdictional legislative frameworks. It would be dynamic— changing over time as new agreements were reached between jurisdictions. The States, the Territories and the Commonwealth would use it to guide future changes to existing legislation. Issues for inclusion in the directory could be raised by any of a number of interested parties. In New South Wales these would include State agencies such as the EPA, the Cabinet Office, WorkCover, the Department of Health, the Department of Mineral Resources, and the Department of Transport. Individuals working with radioactive substances or radiation apparatus and professional organisations could also raise issues. A comprehensive round of research and consultation would be conducted at a national level prior to implementation of any agreed provisions of the national directory. To achieve this, the process would need to meet the requirements of the principles and guidelines for national standard setting and regulatory action by ministerial councils and standard-setting bodies established by the Council of Australian Governments and also the regulation review requirements of all the individual States and Territories. The final adoption and inclusion of any document in the national directory would require a majority vote of 10 out of 13 of the members of the National Radiation Health Committee, and the endorsement of the Australian Health Ministers Conference. New South Wales is in a good position to influence the national uniformity agenda because its existing legislation, when introduced a decade ago, was best practice. Implementation of the national directory should serve to bring other jurisdictions into line with New South Wales on many issues. The national directory is now at an advanced state of development. While New South Wales already has a radiation safety framework that mirrors fairly closely the framework in the national directory, some modifications to the New South Wales legislation will be required, a few of which are included in the current bill, whereas most will be made progressively over several years. Indeed, a number of the legislative provisions associated with the development of the national directory that were recommended by the National Competition Policy review cannot be implemented before the 30 June 2002 deadline set by the Council of Australian Governments for implementation of the review's recommendations. These provisions are the subject of a detailed implementation plan prepared by the Australian Radiation Protection and Nuclear Safety Agency. It is expected that the Australian Health Ministers Council will endorse the implementation plan shortly and will submit it to the National Competition Council as a transitional plan to satisfy the requirements for National Competition Policy payments to jurisdictions. 3040 LEGISLATIVE COUNCIL 12 June 2002

The legislative proposals contained in the Radiation Control Amendment Bill 2002 prepare the way for the implementation of the national directory. Further, the bill comprehensively addresses those recommendations of the National Competition Policy review that can be implemented by the 30 June 2002 deadline set by the Council of Australian Governments. The proposals also pick up some additional matters that emerged from a comprehensive review of the legislation conducted by the Environment Protection Authority and the Radiation Advisory Council.

The proposals in the present bill are as follows: minor changes to the current wording of the objective of the Act so as to ensure consistency across all jurisdictions, in accordance with recommendation 1 of the National Competition Policy review; and documents forming part of the national directory for radiation protection to be adopted and given statutory effect in New South Wales. This is achieved by including a definition of the national directory in the bill and by making provision in the bill for the adoption of relevant parts of the national directory by notice published in the Government Gazette. Currently, the Act contains no requirement that it be reviewed periodically. In accordance with recommendation 8 of the National Competition Policy review, provision is made in the bill for review of the Act after a period of no more than 10 years. This, too, is in line with good practice and the Government's policy for regular reviews of legislation.

The present bill provides for membership of the Radiation Advisory Council to be increased from 14 to 16, by adding a representative of the WorkCover Authority, because of that agency's role in the protection of occupationally exposed persons, and an expert in naturally occurring radioactivity, because of the increasing public concern about radiation in the environment and its environmental hazards. In addition, the bill proposes that the designation "radiotherapist" in the current Act be updated to "radiation oncologist". The bill seeks to clarify the roles of the Environment Protection Authority and the Radiation Advisory Council in relation to determination of applications for licences, registrations and accreditations. It does so by making the Environment Protection Authority both responsible and accountable in the District Court for such matters while retaining the authority's capacity to seek, and to take into consideration, the advice of the Radiation Advisory Council on them. The bill seeks to amend the definition of "environment" to achieve consistency with the more contemporary definition used in the Protection of the Environment Operations Act 1997.

As I have just indicated, the bill seeks to clarify the roles of the Environment Protection Authority and the Radiation Advisory Council in relation to determination of applications for licences, registrations and accreditations. It does so by making the Environment Protection Authority both responsible and accountable in the District Court for such matters, while retaining the authority's capacity to seek, and to take into consideration, the advice of the Radiation Advisory Council on them. This solution has the advantage that it will retain the Radiation Advisory Council's current modus operandi while at the same time putting it beyond legal doubt. It is consistent with contemporary corporate governance models, including the emerging model in the national directory for radiation protection, and will be more administratively efficient than other models considered, such as mandatory referrals to the council.

Further, given the high regard that the Environment Protection Authority has for the Radiation Advisory Council and its members, and the clear dependence of the authority on the expert advice of the council, I am confident that the positive interactions between the two bodies will continue. However, I am also committed to careful oversight of these changes to ensure that they work effectively and I would consider further fine-tuning of the Act over time, if necessary. Some miscellaneous amendments are proposed that relate to the issuing of notices by authorised officers of the Environment Protection Authority, the qualifications of authorised officers and the granting of exemptions. The proposed amendments based on the National Competition Policy review were released to the public in all jurisdictions during the development of the final report of the National Competition Policy review of radiation protection legislation.

An issues paper was released from October to December 2000. Following the analysis of the submissions received, a draft final report of the review was released to the public in March 2001. The New South Wales Government participated fully in this review and endorsed its recommendations in November 2001. During development of the final report of the review, the National Radiation Health Committee also undertook a series of consultation meetings in each jurisdiction. Participants included the respondents to the issues paper, stakeholders invited by the jurisdictions, members of radiation advisory councils and committees, and radiation safety agencies, including the New South Wales Environment Protection Authority. Almost all respondents supported these recommendations and, in particular, moves for greater national uniformity. I have set out the detail of the bill. In conclusion, I remind the House that the reforms proposed in this bill are a necessary start to the process of steering radiation protection legislation in the direction of national uniformity. These reforms are also integral to New South Wales' commitment to National 12 June 2002 LEGISLATIVE COUNCIL 3041

Competition Policy agreements initiated in 1995 to review existing legislation and justify any restrictions to competition in terms of overriding concerns for the health and safety of people and the environment. I commend the bill to the House.

Debate adjourned on motion by the Hon. Greg Pearce.

LIQUOR AMENDMENT (SPECIAL EVENTS HOTEL TRADING) BILL

Second Reading

The Hon. MICHAEL COSTA (Minister for Police) [8.45 p.m.]: I move:

That this bill be now read a second time.

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

Leave granted.

Last year the Government amended the liquor laws so that rugby league fans throughout New South Wales could watch the telecast of the Grand Final match on Sunday evening in their local hotel.

That amendment was made, with the assistance of the Opposition, because the Government recognises that hotels are popular venues for viewing telecasts of sport and other significant events.

The Government also recognises that hotels are a traditional Australian social environment for sporting fans.

The amendment was necessary because standard hotel trading hours under the Liquor Act cause problems for many hotels wishing to televise significant events on a Sunday evening.

Standard trading for most hotels finishes at 10 pm on a Sunday—sometimes forcing patrons to vacate the premises during, or immediately after, the event.

It can be difficult for hotel licensees and police to enforce such a closing time, and the forced exit of thousands of hotel patrons who have been watching an event onto the street at 10pm can place a significant strain on local transport and security. This is made worse where patrons are disgruntled at having to leave hotel premises at what they consider an unreasonable hour.

The Government believes it is reasonable that patrons viewing a significant State, national or international event at their local hotel on a Sunday evening should be able to watch the entire event, and spend some time celebrating afterwards.

It also assists local authorities and transport operators if patrons are able to leave hotels at staggered times, rather than all at once.

It is also reasonable that hotels should be able to offer their services for patrons to watch the telecast of a significant event before midnight on a Sunday. Hotels should be able to take advantage of the increased market associated with an event of State, national or international significance.

That is why the Government amended the liquor laws for the 2001 NRL Grand Final match—which was held on Sunday 30 September 2001. Those amendments allowed hotels to trade until midnight so that patrons could view the entire match and celebrate afterwards.

The hotel industry has now approached the Government asking that standard hotel trading be extended to midnight during the forthcoming World Cup soccer final which will be telecast on the evening of Sunday 30 June 2002.

Given last year's NRL Grand Final amendments to the liquor laws and this latest request, the Government believes that more permanent measures need to be put in place.

Therefore, the bill now before the House amends the Liquor Act to allow hotels to trade until midnight on a Sunday during significant events.

The date for these events will be prescribed in the Liquor Regulation where the event is considered by the responsible Minister to be one of State, national or international significance. Obviously there will only be a handful of events that are held on a Sunday evening that qualify under this criteria.

Allowing events to be prescribed, rather than amending the liquor laws each time for a specific event—as was done last year for the NRL Grand Final—will allow extended Sunday trading to be provided to hotels for future events without the need to again amend the Liquor Act.

The extension in this bill will allow hotels to sell liquor for an additional two hours—from 10pm until midnight—for consumption on the licensed premises only.

It will not permit take away sales, and it will not overrule any previously imposed trading restrictions that apply to an individual hotel licence, such as restrictions resulting from a complaint about disturbance to the neighbourhood. 3042 LEGISLATIVE COUNCIL 12 June 2002

Around 25% of hotels in New South Wales already have extended trading approved until midnight or beyond under the existing law. These amendments will not affect the trading rights of those hotels.

And the amendments apply to hotels only. While registered clubs are also a popular venue to view sporting telecasts, clubs generally have no restrictions on their trading hours, and are therefore able to trade during and after these events.

The Government does not consider it necessary or desirable that the trading hours for licensed restaurants or other licensed venues be automatically extended. Those venues are generally not used by the public for viewing the telecast of significant events such as sporting matches. Of course, many of those venues already have midnight trading on a Sunday, or can apply for midnight trading under the existing law.

I would also point out that special provisions are not required for events that are held on a Monday to Saturday, as most hotels are already able to trade until midnight on those days under the existing law.

To ensure that special arrangements are in place for the World Cup final match, the bill also contains separate amendments to the Liquor Act to specifically allow hotels to trade until midnight on Sunday 30 June 2002.

This separate amendment is included in the bill because of the short amount of time available before the World Cup final is held. Rather than having that event prescribed—something that time may prohibit—these amendments will ensure that hotel trading is extended until midnight for that 2002 World Cup match.

Finally, although this bill relates to the trading hours applying to the sale of liquor by hotels, I would like to take this opportunity to place on record the Government's commitment to amend the gaming machine laws at a future time to facilitate early morning trading by clubs and hotels on ANZAC Day.

As honourable members would be aware, the new Gaming Machines Act includes a requirement that all clubs and hotels close down their gaming machine operations for a three hour period, which is generally between 6 am to 9 am each day. From 1 May 2003, this shutdown period is due to be extended to 6 hours—from 4 am to 10 am.

The new shutdown arrangements created some inconvenience on the morning of this year's ANZAC Day, for returned services clubs in particular. An argument has been made that these clubs should not be forced to close down their gaming machines on the morning of ANZAC Day, when people who have been participating in dawn services may wish to return to their club and access its full facilities.

In some communities that do not have an RSL Club, another club or hotel may become the main meeting point for people following ANZAC Day dawn services.

The issue has been raised by a number of Members of Parliament, including the Leader of the National Party in the other place, who has already indicated his support for an amendment to address this problem.

I am pleased to advise the House today that the Government will be bringing forward legislation in the next session of Parliament to amend the Gaming Machines Act to allow gaming machine venues to continue to operate their gaming machines on the morning of ANZAC Day in future.

In the meantime, I commend this bill dealing with hotel trading during significant events on Sunday evenings to the House.

The Hon. JOHN JOBLING [8.46 p.m.]: The Opposition does not oppose the Liquor Amendment (Special Events Hotel Trading) Bill, which is straightforward and quite specific. It simply deals with an amendment to the Liquor Act 1980 to enable hotel trading until midnight on Sunday 30 June 2002, which all members would know is the evening of the 2002 FIFA World Cup soccer final. I am sure it will be watched by millions of viewers in this country and many more millions around the world. It will be a fascinating final and we look forward to knowing who the two finalists will be. The bill enables hotel trading until midnight on other Sundays on which events of State, national or international significance are held. In other words, the effect of the proposed amendment is to extend normal Sunday hotel trading by two hours on those nights.

Honourable members would remember that last year, with the concurrence and support of the Opposition, liquor laws were amended to enable rugby league fans throughout New South Wales to watch the telecast of the grand final on a Sunday evening in their local hotels. That amendment was agreed to because the local hotel is a popular venue to view the telecasts of sport and other significant events. That amendment was necessary because the standard hotel trading hours under the then Liquor Act caused problems for many hotels that wished to televise significant events on a Sunday evening. Many hotels have large screens and comfortable facilities for their patrons to watch sporting events. Unfortunately, the trading hours for most hotels finished at 10.00 p.m. on Sundays, which was a problem for the rugby league grand final. I can imagine the difficulties that would have faced police and licensees trying to enforce a closing time that was halfway through that game—a riot would probably have been the order of the day.

Consequently, it was reasonable in our view that patrons should be able to watch matches of significant importance, and to watch the entire event. The Liquor Amendment (Special Events Hotel Trading) Bill does not propose an open licence until 2.00 a.m. or 3.00 a.m.; it is specific in relation to the extension of two hours until 12 June 2002 LEGISLATIVE COUNCIL 3043

midnight. As we amended the liquor laws for the 2001 National Rugby League grand final on Sunday 30 September 2001, we were approached to make changes to deal with the World Cup soccer final. Honourable members would be aware that that match will start at 9.00 p.m. and finish at about 11.00 p.m. What was good enough for the rugby league final should be good enough for the World Cup soccer final. The World Cup soccer final is coming upon us fairly quickly. The provisions in this bill could be put in place permanently. In this instance we need to deal specifically with the World Cup soccer final, and other events could be dealt with generally in other legislation.

The amendment in this bill will allow hotels to trade until midnight on Sundays during significant events. One might ask how that will be done in this case. Obviously, it will be done by regulation. The Government will prescribe the appropriate regulation under the Liquor Act. If the event is considered a significant event by the Minister it must meet the criterion of being an event of State, national or international significance. The restrictions on licences will be retained. The extra two hours will apply only to consumption of alcohol on licensed premises. These provisions will not apply to the sale of liquor takeaways, which are specifically excluded. It is worth noting that although specific provisions are already in place for events that take place on any day between Monday and Saturday, this bill deals solely with events that occur on a Sunday. As I said, the special arrangement for the World Cup soccer final is needed simply because of a shortage of time to amend the Act generally and the proximity of the final. I note that in the other place the Minister for Gaming and Racing indicated his intention to bring forward legislation in the next parliamentary session to amend the Gaming Machines Act to allow gaming machine venues to continue to operate on the morning of Anzac Day. The Opposition does not oppose the bill. The Hon. RICHARD JONES [8.51 p.m.]: I oppose this legislation because I believe that it will cause problems. The other day riots took place in Moscow when the Russians lost their match. There was anguish in Paris when the French lost their match. People will not be in a fit state if they can continue to drink for another couple of hours, regardless of which team wins and which team loses the final. This bill will cause more drunkenness and more violence on the streets. I do not believe that people should be able to watch these games— The Hon. Michael Costa: They should all be smoking joints! The Hon. RICHARD JONES: It would be a lot more peaceful if they did. A couple of years ago on New Year's Eve people were taking ecstasy. Honourable members will recall that there was no violence as a result of that. When people get drunk they become violent. Obviously Australia will not be playing in the World Cup soccer final, so we will not have major riots in the streets. However, a large number of people will be supporting the winning team and a large number of people will be supporting the losing team. Therefore, I am afraid that this bill will lead to riots in the streets, drunkenness and violence. It would be a good idea if people did smoke pot—at least they would not be violent. The Hon. Dr ARTHUR CHESTERFIELD-EVANS [8.53 p.m.]: Last year the rugby league grand final was held on a Sunday night for the first time. Many smaller hotels have standard trading hours on Sunday that finish at 10.00 p.m. Last year the rugby league grand final was held on a Sunday because the Australian Football League grand final was played on a Saturday. Standard trading hours apply to about 75 per cent of hotels, according to the figures of the Minister for Gaming and Racing. The World Cup soccer final—the four- yearly soccer extravaganza—will be held on 30 June, a Sunday night, starting at about 10.00 p.m. This bill will allow all hotels to trade until midnight on that day. The bill also introduces a general provision so that in the future hotel hours can be extended by regulation for special events. This is more sensible than having to come back to the House every time an event of State, national or international significance is held on a Sunday. It will be the Minister's opinion as to what constitutes one of these events. Is it to be restricted to sporting events? As the bill is drafted, that will not be that case. We could have extended trading for the Eurovision song contest or a U2 rock concert—it all depends on the Minister's bent. Perhaps a poetry reading? This bill has been introduced because of the way the National Rugby League scheduled its games last year. I am well aware of events of national significance. When we managed to get rid of tobacco advertising and we tried to get rid of tobacco sponsorship the Government left an exemption for events of international significance played by more than two other countries. Indeed, an entire rugby league competition was created between South Africa, New Zealand and Australia, with advertising allowed only in South Africa because it had the most lax laws. The tri-nations competition was created, I believe, to allow cigarette companies to promote Winfield cigarettes. What constitutes an event of national or international significance will be in the hands of sports administrators. They will put pressure on Ministers, who will buckle. 3044 LEGISLATIVE COUNCIL 12 June 2002

The Hon. Duncan Gay: Earlier in the day you wanted people to be able to carry dope. Don't smoke it!

The Hon. Dr ARTHUR CHESTERFIELD-EVANS: My policy is to minimise the harm of drugs in society. The fact that this requires different tactics for different drugs is beyond the comprehension of some Opposition members. I am not responsible for the cerebral state of these people. It is not my fault. I have been campaigning to minimise the harm of drugs in an intelligent fashion for some 20 years. In a sense, this bill is the result of someone saying, "Gosh, we have mis-scheduled this thing. We are clashing with the Australian rules final. We just need this Sunday night." Then someone else said, "That was a success. Now we will just have the World Cup soccer final and then we will leave it to the Minister. We don't want embarrassing scenes in Parliament any more."

Of course, the schedule may change. There may be a Sunday night game. The television ratings might be down slightly and it will become a significant event. Of course, this provision will increase noise for smaller hotels in residential areas. People who live nearby will simply have to put up with the noise. After a good night at the football and a great deal of drinking there is an increase in absenteeism—that is another issue. However, we overlook this because we are all good fellows and, after all, the hotel lobby and the alcohol lobby rarely get knocked back by the Government. The Government is good at locking people up for doing the wrong thing. However, with respect to things that are likely to lead to problems—preventive aspects of health, if one likes—it is well and truly napping. It is looking after major lobbies; it is not thinking about public health.

I oppose the bill—although I presume that it will be passed with Opposition support. It is unnecessary to have late trading every night. A hotel closing at 10.00 p.m. on a Sunday night is not an unreasonable imposition on the civil rights of drinkers; they should finish by that time in smaller hotels in suburban areas. My sister lived in a quiet street in Balmain for some years. A hotel which had reasonable closing hours was taken over by a new licensee. The hotel suddenly got a licence until midnight. It got some very noisy bands and then it did not close at midnight—sometimes it continued until 3.00 a.m. When the local residents asked the publican to stop this practice he told them all where to go in most uncertain and foul-mouthed terms. They were seriously wondering whether they would have to move house because no-one seemed to want to do anything about the problem.

Fortunately, this happened in Balmain. The residents—all of whom were intelligent and astute citizens—hung around for a while and observed police cars pulling up outside the hotel and beer being loaded into the back of them. They were able to give number plates, police numbers, times and dates. The Licensing Court was surprised by the evidence. Suffice to say that the licensee disappeared and things became more civilised. The licensee had gone a bridge too far. Had he stayed within the licence he had managed to obtain and kept the music up—presumably the bands brought more clients—he could have disrupted that suburb. That occurs in some suburbs. Of course, I am not criticising good publicans who provide a service in suburban areas. Many of them do a good job. We are making laws that affect the peace and harmony of people on Sunday nights. Basically this bill is the thin end of the wedge. Ministers generally capitulate to the alcohol lobby far too much, and this bill is another example of that. It should be opposed.

Ms LEE RHIANNON [9.00 p.m.]: Last year when the House debated the Liquor (Rugby League Grand Final Special Provisions) Bill I asked why the Government was treating the 2001 National Rugby League grand final as a one-off event. That concern has been carried through into this bill, which not only allows extended hours for the World Cup final but gives the Minister the standing power to extend trading hours for events of State, national and international significance. The gathering together of people at the local club or pub is very much a part of the Australian way of life in many communities. They watch sporting events together and cheer on their favourite team or put down the opposition, who at some earlier stage may have been the favoured team.

The Hon. Michael Costa: Is that what happens at sporting events? You cheer for one side and oppose the others?

The Hon. Duncan Gay: Yes, you should get out more often.

Ms LEE RHIANNON: It is interesting to hear the Opposition give the Minister for Police a lesson on how Australian culture works. I am not sure who is being informed in the discussion. Gathering together for sporting events is particularly important for people in rural and regional New South Wales because they find it much harder to attend major sporting events en masse. So to be able to hang out together at their favourite pub or club is really the only way for these people to see major sporting events. For the supporters of a winning side, 12 June 2002 LEGISLATIVE COUNCIL 3045 the period immediately following a big game is a time for special celebration. And that of course is the problem: many licensed premises are only licensed to stay open and serve alcohol until 10.00 p.m. If major sporting events finish after l0.00 p.m. there are several problems.

With literally tens of thousands of patrons being expelled onto the streets all at once, there are security problems for local residents. Those residents have a difficult time when people are looking to find a way home, to go to the toilet, perhaps to just collapse on the street or to get another drink. I have heard unpleasant stories about incidents at closing time from people who live near pubs. Great pressure is placed on public transport services and taxis having to handle the large number of people who want to travel at the same time. All these excessive crowd activities need to be dealt with. There is no doubt that extending trading hours, as this bill does, will involve added impositions upon residents who live near licensed premises, and the problems will have to be balanced.

That is of course of great concern to the Greens. However, it is unclear whether it will present a greater imposition than would be the case under the current trading hours when large numbers of people are expelled onto the street at the same time. Extended trading hours will hopefully lead to a more gradual and orderly departure of patrons, and reduce the strain on public transport and taxi services. It will avoid tens of thousands of rowdy people, obviously having a good time but creating noise for many local residents, being pushed onto the streets at the same time.

As a matter of principle the Greens favour local control over planning issues, including the trading hours of licensed premises. To that extent we are concerned that this bill overrides the specific concerns and issues of local communities. It is difficult to achieve a balance between the rights of local residents to peace and quiet, the rights of local communities to control local planning issues, and the important cultural aspect of people gathering together in pubs and clubs to experience the enjoyment of major sporting events The bill, of course, refers to major events generally, rather than sporting events specifically, but it is hard to imagine many non-sporting major events that would draw people into pubs and clubs en masse.

Given this confluence of competing factors, the Greens will not oppose this bill, although we ask the Minister to exercise his new power with care and discretion. The ability to extend Sunday evening trading hours should not be abused; the goodwill of residents will only withstand so much. Only a handful of sporting major events should qualify under this bill, perhaps no more than one or two each year. Through our Greens local government representatives and our other community contacts, we will monitor the implementation of this bill, and we will not hesitate to bring any problems to the Minister's attention. Though we have some reservations about the bill we will support it, but we ask the Minister to exercise his new powers with discretion, care and balance. Reverend the Hon. FRED NILE [9.06 p.m.]: The Liquor Amendment (Special Events Hotel Trading) Bill will have a major impact upon this State. The bill does not bring about a minor change to legislation. In fact, it will have a direct impact on 75 per cent of hotels in this State. At the moment, individual hotels have to apply for extra trading hours but under this legislation they will automatically have the right on specified occasions to trade extended trading hours, if they wish, until midnight. At present, the Liquor Act limits standard hotel trading to 10.00 p.m. on Sundays, and 25 per cent of the hotels have taken advantage of that, mainly to meet the needs of tourists and tourism, and now this legislation will allow the remaining 75 per cent of hotels to operate in that way. The legislation is also very vague in that it gives the Minister, not the liquor court, the power to extend trading hours for events of State, national and international significance. The Minister will subjectively decide what he believes is an event of State, national or international significance. As we have heard previously, an event could be built into a sham to gain these privileges. There is no need to go to the liquor court to get an extension of trading hours, and no provision for input by the public, as normally happens when objections can be made to the liquor board about proposed hotel trading hours. At the present time there is considerable debate about the harmful effects of alcohol, mainly consumed at hotels, and alcohol-related violence on the streets. In co-operation with the police and local councils, the Government is discussing the early closure of hotels and stopping bottle shops selling liquor after a certain time in order to reduce alcohol consumption and violence. That is inconsistent with this legislation, which is going in exactly the opposite direction. The only difference will be that people will pour out of hotels and onto the streets at midnight instead of 10.00 p.m. Recently in the heart of Moscow, near the Red Square, there was a serious violent riot when the people virtually went berserk when the Russian soccer team was defeated. The authorities said the main reason for the riot was the consumption of alcohol. 3046 LEGISLATIVE COUNCIL 12 June 2002

That is what can happen if a team is defeated. But the opposite result can have the same effect: if a team wins, its supporters can be carried away by exuberance, as occurred in Leichhardt when the Italian World Cup soccer team was victorious. There was violence on the streets, which the police had trouble controlling. As a consequence of this bill, that violence could occur at 12.00 p.m., which would be even more alarming and harmful for local residents. This is a serious matter and the Christian Democratic Party will vote against the second reading of the bill in protest. We urge the Government to review and examine the bill's operations to determine whether they conflict with other harm minimisation policies regarding alcohol that the Government is implementing in other areas, which we support.

I note it is said that this measure is necessary because hotels must cease trading at 10.00 p.m. Is there not some way to stop liquor sales at 10.00 p.m. but allow people to continue to watch television? The hotel could stop trading but keep the television on. That would allow the best of both worlds: people could watch the World Cup soccer match without consuming alcohol and being off their heads by midnight. The Government should consider that idea.

The Hon. MICHAEL COSTA (Minister for Police) [9.11 p.m.], in reply: I thank honourable members for their contributions to this debate. I acknowledge that Reverend the Hon. Fred Nile opposes the bill on principle, and I recognise his strongly held position. However, I was awestruck by the hypocrisy of some of the other contributions, particularly those of the Hon. Richard Jones, the Hon. Dr Arthur Chesterfield-Evans and Ms Lee Rhiannon. These hypocrites wasted two hours of this Chamber's time today discussing the decriminalisation, if not legalisation, of certain categories of drugs on the basis of civil rights and liberties. They are complete hypocrites and wowsers who like to use this Chamber to grandstand for their own political advantage.

The bill seeks a modest, sensible extension of hotel trading hours for two hours on the night of the World Cup final and on other nights when events of State, national or international significance are held. It is a sensible, modest proposal that the overwhelming majority of the citizens of New South Wales support. The Government believes it will benefit thousands of sporting fans and help to ensure orderly celebrations on hotel premises. I commend the bill to the House.

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

The House divided.

Ayes, 25

Ms Burnswoods Mr M. I. Jones Mr Samios Mr Cohen Mr Kelly Ms Tebbutt Mr Colless Mr Lynn Mr Tingle Mr Costa Mr Oldfield Mr Tsang Mr Dyer Mr Pearce Mr West Mr Egan Dr Pezzutti Ms Fazio Ms Rhiannon Tellers, Mr Gay Mr Ryan Mr Jobling Mr Harwin Ms Saffin Mr Primrose

Noes, 3

Dr Chesterfield-Evans

Tellers, Mr R. S. L. Jones Reverend Nile

Question resolved in the affirmative.

Motion agreed to.

Bill read a second time and passed through remaining stages. 12 June 2002 LEGISLATIVE COUNCIL 3047

LICENSING AND REGISTRATION (UNIFORM PROCEDURES) BILL

Second Reading

The Hon. CARMEL TEBBUTT (Minister for Juvenile Justice, Minister Assisting the Premier on Youth, and Minister Assisting the Minister for the Environment) [9.22 p.m.]: I move:

That this bill be now read a second time.

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

Leave granted.

The Licensing and Registration (Uniform Procedures) Bill 2002 arises from the establishment of the NSW Government Licensing Project in July 2001.

This major Government initiative aims to provide a single IT system to administer licensing processes across NSW Government agencies.

A survey of licensing agencies conducted in 2000 found there are some 200 different types of licences issued in NSW. These are currently administered by 28 separate licensing authorities in NSW using in excess of 70 different IT systems. Many of these systems are nearing the end of their economic life and the cost to replace or enhance them individually would be prohibitive. Instead, providing a single IT system across all agencies is expected to save the people of NSW $70 million in system replacement and enhancement costs.

This project is an important contribution to the Government's commitment to provide the people of NSW with the option of conducting their business with Government agencies electronically, if they so choose.

The NSW Government Licensing System will augment existing mail and counter services for licensees with Internet access to apply for and renew licences. It will also assist in consumer protection by allowing consumers to access public registers of licensees online. This will give consumers very ready access to information to confirm whether any person claiming to hold a particular licence actually does so.

The system will provide citizens and businesses of NSW with a consistent face of government in their dealings with NSW licensing agencies by applying uniform processes to the administration of licences.

The system will initially be implemented in: • the Department of Fair Trading; • the WorkCover Authority; • the National Parks and Wildlife Service; and • the Department of Gaming and Racing.

It will apply to a diverse range of business, occupational and other licences issued by these agencies such as building contractors licences, authorities to conduct charitable fundraising events and registration of items of plant and equipment.

The Licensing System will subsequently be implemented in the remaining licensing agencies following an analysis of their functional requirements against the system.

The licences which are to be administered using the Licensing System are issued under a range of licensing Acts which have differing provisions for very similar processes such as application and renewal. A more uniform legislative framework for these procedures is required in order to reduce the complexity and cost of the new system.

The Bill aims to • remove any barriers to on-line transactions which may be inherent in existing licensing legislation; • provide a consistent legislative framework to enable the development of a generic IT solution that will provide improvements and consistency in customer service across government; and • facilitate future changes, for example the administrative procedures and system will already be in place for new licensing schemes.

The Bill has been drafted in close collaboration with the four initial agencies and the Department of Health. The remaining 24 identified licensing agencies were also included as part of a broad consultation process involving stakeholders across the broad range of licence types covered by the Bill. Overall, there has been very strong stakeholder support for the Bill.

The Bill provides the following: • a standard set of uniform procedures to be used by agencies when assessing and issuing licences or registrations. • clarification that certain provisions of the Electronic Transactions Act do apply to licensing transactions under the proposed legislation; and • importantly, creation of an offence under the Crimes Act for the provision of false information in relation to a licensing transaction. 3048 LEGISLATIVE COUNCIL 12 June 2002

The Bill provides the uniform procedures in three separate Parts, each Part applying specifically to licensing schemes, registration schemes generally and to the registration of health professionals. The provisions of each of these Parts essentially mirror each other, with some changes in language to reflect the differences between a licensing and a registration system. For the sake of simplicity, in any further comment on this Bill I will refer to a licence as a generic term which includes both a licence and a registration.

The uniform provisions of the Bill replace the procedural provisions of each licensing or registration Act with a common procedural framework for all licences, that are to be administered using the NSW Government Licensing System. The Bill does not make any changes to the policy issues relating to licences such as the authority that is given to a licence holder, the eligibility requirements for holding a licence or the disciplinary procedures for a licensee who acts in breach of the licence. These are matters which are quite rightly left for the principal licensing Acts to deal with.

Under the Bill's uniform provisions, applications can be made to the relevant licensing authority by any individual, partnership or corporation that satisfies the requirements of the relevant licensing legislation. Applications cover new licences or an amendment, transfer, renewal or restoration of an existing licence.

The Bill provides for a licensee to apply to have a licence amended at any time while the licence is in force.

Where the relevant licensing legislation allows for a licence to be transferred, an application for transfer may be lodged at any time while the licence is in force. Such an application must be submitted jointly by the licence holder and the transferee.

An application for renewal of a licence may be made within a specified period before the licence expires. The specified period depends upon the original period of the licence. The application must also specify the term of licence sought if this is applicable to the type of licence in question.

A licence which has not been renewed prior to its expiry date may be restored provided that the application is lodged within three months of the date of expiry (or such other period as is set by the relevant licensing Act) and payment of a restoration fee is made.

An application for the replacement of a licence may be made if the licence is lost, damaged or destroyed.

To enable licensing transactions to be conducted on line, this Bill specifically provides for applications to be lodged either in writing or electronically. Written applications must be signed by the applicant and, for a transfer of licence, by the transferee. Electronic applications must be authenticated in a manner approved by the relevant licensing agency. This could be by use of a pin number or a digital signature certificate.

The level of fees will continue to be set by the primary licensing Act. The Bill does however, require agencies to identify that portion of an application which is a processing fee, separate from the annual licence fee. It also provides for the processing fee to be retained by the agency if the application is cancelled. Agencies currently have different practices in relation to the refund of application fees. This provision provides applicants with consistent expectations about the refund of fees.

For some licence types, there may be a reduction in application fees when the application is lodged electronically. The fee reduction is aimed at encouraging the uptake of the electronic option and to reflect any resulting reduction in data entry costs for licensing agencies.

The agency may request in writing any additional information which it may require to make a decision on the application. If the applicant fails to provide the information within 14 days after the request [or such other period as is set by the primary licensing Act] the agency may choose to refuse the application. In this case the licence fee [but not the processing fee] would be refunded and the applicant would have no right of review regarding refusal of the application.

Where the primary licensing legislation requires an application to be advertised by the agency or the applicant, this must be in at least one daily newspaper circulating throughout NSW. The notice must indicate that any person may make a written submission on the application and indicate the procedure for doing so. The closing date must be between 14 and 28 days from the date the notice is published.

The applicant may withdraw an application before a decision is made. The application fees [except processing fees] are to be refunded in these circumstances.

For the purposes of lodging an appeal, where the agency has not made a decision on the application within 14 days of lodgement [or such other period as is set by the licensing legislation], the application is deemed to have been refused. The agency is not prevented from continuing to assess the application after this time. A "stop the clock" mechanism exists during any period where: • additional information is requested from the applicant; • there is an advertised period for making objections; or • the agency is required to refer to a third party for consideration of some part of the application or for assessment.

Notice of the decision on an application must be provided to the applicant and any objector within 14 days of the decision [or such other period as is set by the licensing legislation]. Where an application is refused the applicant or an objector may request written reasons for the decision.

Licences will be issued in a form approved by the principal officer of the agency and will contain specified particulars. Licences may be issued for a fixed period or as a continuing licence. Agencies will have the flexibility to determine the specific periods which may be offered in relation to a type of licence or for a specific licensee.

Where the application is refused the application fee [except for the processing fee] will be refunded. 12 June 2002 LEGISLATIVE COUNCIL 3049

Where the primary licensing legislation provides a right of review in relation to a licensing decision this will continue to apply. Where no review mechanism currently exists a right of review by the Administrative Decisions Tribunal will be available. The right of review extends to an applicant for any licensing process or for an objector in relation to an advertised application, who is aggrieved by the licensing decision.

Licence holders will be required to notify any changes to their licence particulars within 14 days of the change occurring [or such other period as set by the licensing legislation].

In the past it has been difficult for agencies to determine the currency of information held about continuing licences. These licences are issued once and remain valid for the lifetime of the person or the piece of plant and equipment to which they relate. Holders of continuing licences will be required to provide a periodic return confirming that licence particulars have not changed. Licensing agencies will be able to determine how frequently such returns should be completed. This requirement ensures that licensing databases relating to continuing licences remain current.

A periodic administration fee will be paid by holders of continuing licences.

An evidentiary certificate issued by the licensing agency, stating the status of a licence on any particular date or period, will be admissible as evidence in legal proceedings.

Uniform requirements for legal service of notices relating to the licence process will apply. These reflect current practice for the service of notices and also incorporate new mechanisms for the applicant or licensee to elect to receive these electronically.

Facsimile applications will have the same legal effect as an original.

The licensing agency will have the power, if it so chooses, to recover unpaid licensing fees as a debt in any court of the appropriate jurisdiction.

The principal officer of the licensing agency may authorise another person to exercise his or her authority in relation to licensing procedures under the Bill.

The Bill confirms that the methods specified by the Electronic Transactions Act for verification of the sending and receiving of a document electronically will apply to licensing transactions.

The Bill includes amendments to the Business Names Act so that the date, place of birth and residential address of the person who registers the business name do not form part of the public register. This protects the privacy of this personal information and allows their use as part of the procedures to verify the identity of the person when conducting subsequent transactions in relation to the registration of their business name.

The Bill also amends the Business Names Act to remove any barriers to conducting transactions online. The Business Names Registration System will not be replaced by the Government Licensing System in the initial phases of the project. Rather, these amendments to the Act will enable an online capacity to be attached to the existing business names system.

The Bill also proposes the removal of any requirements for information to be provided in the form of statutory declarations as these would constitute a barrier to electronic transactions. To support this change a new penalty for the provision of false information in relation to licensing is proposed under the Crimes Act 1900. The maximum penalty for this offence will be 2 years imprisonment or a fine of $22,000, or both. These are increased penalties which are more in line with the type of penalties applicable under the Oaths Act in relation to the provision of false information in a statutory declaration.

In summary, the Bill reflects current practice, while providing a consistent legislative framework for the procedural aspects of licensing schemes without impacting on the policy issues that the licensing schemes were established to address. The changes will provide some consistency of procedures to make system design viable across such a broad range of licence and registration types without making significant impacts on licence holders.

Most importantly, the Bill will enable licensing transactions to be conducted online in NSW. Yet another example of this Government's commitment to the innovative use of information technology to enhance the economic and social wellbeing of the State.

I commend the Bill to the House.

The Hon. CHARLIE LYNN [9.22 p.m.]: The Opposition welcomes this long-awaited legislation, the Licensing and Registration (Uniform Procedures) Bill. The bill seeks to remove the administrative burden and to improve the currently overregulated licensing system in New South Wales. It does this by establishing uniform procedures and providing a single information technology system to administer licensing processes across New South Wales government agencies. Therefore, it gives the people of New South Wales greater choice. People can now choose to conduct this part of business electronically. The changes made under the bill are basically procedural. They will not affect in any way those important policy issues such as the eligibility requirements for licence holders, disciplinary procedures for licensees or the authority that is needed to approve licences, and so on.

The uniform procedures apply to three distinctive parts—licensing schemes, registration schemes generally and the registration of health professionals. Once it is passed, the bill will deliver what is already a standard service in other States to the level of New South Wales. The Opposition understands that the bill will 3050 LEGISLATIVE COUNCIL 12 June 2002 not only enable licensing-related transactions to be conducted online but will also enable consumers to have instant access to the information regarding various aspects of licensing issues. The bill will deliver convenience of service to the people of New South Wales. These uniform procedures are expected to save taxpayers millions of dollars in system replacement and enhancement costs in the future. These are all good reasons why the Opposition does not oppose the bill.

However, as the honourable member for Ku-ring-gai indicated in the other House, this bill is long overdue. He also pointed out that the Coalition Government in Victoria is years ahead of New South Wales in delivering online government services to people in Victoria. New South Wales, as Australia's largest and most sophisticated economy, plays a pivotal role in our national economy. For example, New South Wales accounts for one-third of Australia's total trade with the People's Republic of China. Businesses in New South Wales deserve what is the standard service in other States. Have New South Wales businesses been denied unbounded opportunities due to lack of efficient government services? With the budget in surplus for seven years, as the Treasurer claimed in his Budget Speech, the Labor Government could have done more and better for the people of New South Wales, and in particular the business community in New South Wales

This bill is a good sign, however, that the Government is now heading in the right direction. The people of New South Wales deserve to know that the Government will be committed to make available more online government services to the people of New South Wales, especially those involved in small businesses. I commend the bill to the House.

The Hon. RICHARD JONES [9.25 p.m.]: This bill aims to provide a single information technology system to administer licensing and registration processes across government agencies and to allow people to access the Internet to apply for and renew licences and registrations. Despite the Minister's comments during the second reading debate in the lower House, the bill does not allow consumers to "access public registers of licensees online" and enable them to "confirm whether any person claiming to hold a particular licence actually does so", as the Minister stated. The information that will be made public on the Internet is not determined by this bill. Whether and what sort of licence and registration information will be made available on public registers will continue to be left to licensing authorities to determine. I believe this is unacceptable. The current requirements of the various authorities are also inconsistent and in many cases inadequate. For example, a public register must be kept by the Director-General of the Department of Fair Trading of all certificates of registration for real estate, stock and station and business salespersons and trainee managing agents, and of all licences and renewals, restorations and cancellations of licences, refusals of applications, and disqualification of real estate, stock and station, strata managing and community managing agents and on-site residential property managers. The same cannot be said for the Director-General of National Parks and Wildlife Service of licences issued under the National Parks and Wildlife Act. In fact, the Director-General of the National Parks and Wildlife Service is not required to keep any register at all, public or otherwise, of licences issued under the National Parks and Wildlife Act. As a result, the licensing processes of the National Parks and Wildlife Service are decentralised and extremely poorly administered, as I mentioned in a speech recently. I would like to give an example of licences issued under section 120 and section 121 of the National Parks and Wildlife Act to illustrate my point. These licences are issued by the National Parks and Wildlife Service under the National Parks and Wildlife Act to harm, among other things, vulnerable species of flying foxes. In 1999 the Humane Society International [HSI]—the largest animal welfare organisation in the world— took legal action in the Administrative Decisions Tribunal, requesting that the tribunal provide it with access to the names and addresses of persons licensed by the National Parks and Wildlife Service to harm flying foxes. The HSI won. The HSI considered that licensed culling was a threat to the survival of flying fox populations and that the National Parks and Wildlife Service was not adequately assessing or monitoring the impact of licensed culling activities. Of course, it could not be called culling; it was mass slaughter of these endangered or threatened species. In particular, the HSI was concerned that many fruit growers could not identify the species of flying foxes being shot at night. Thus, it would be impossible in some locations to ensure that flying foxes listed under the Threatened Species Conservation Act and which are not included on the licence are not accidentally killed. In the process of its application, the HSI discovered that the applications were not numbered or registered in any way; most applications had no notations to indicate whether they were successful and a licence issued, or they were unsuccessful and a licence was declined. The issued licences also varied in terms of conditions attached by different officers, and there was no State sequential numbering system. When HSI received the information for the period requested, there did not even appear to be any system to ensure that every licence that had been issued within the request period was in fact released to the HSI. 12 June 2002 LEGISLATIVE COUNCIL 3051

It is clear from this example that the central register of licences is absolutely essential. The decentralised and manual licence system currently in place—which is extremely archaic—severely compromises the accountability and transparency of the licensing process and has made it difficult to assess the impact on native wildlife populations, either by an international group such as the HSI or even the National Parks and Wildlife Service itself. On the other hand, a centralised register would allow all applications and licences to be tracked and would reduce the time and expense involved in tracking.

At present, to get information about section 120 and section 121 licences issued under the National Parks and Wildlife Act a manual search of each officer's licence issuing records must be undertaken and the process is therefore very expensive and time-consuming. It is absurd that in this day and age a manual search is necessary. A centralised register of licences would also be in line with Government policy on the use of technology to assist Government in servicing the public, and should therefore be made available to the public. While the National Parks and Wildlife Service opposed public access to this kind of information in the HSI case, it was soundly defeated. The Administrative Decisions Tribunal not only found that clearly this type of information has ongoing relevancy, it also found that it was not unlike similar information available upon request or on public register for threatened species.

In order to bring some uniformity to licence and registration record-keeping requirements, I will move amendments in Committee that require all licensing authorities covered by the bill to establish and maintain a public register of all the terms and conditions of each licence. I will also move amendments that extend the maximum period for the making of submissions to three months; require advertised applications to be placed on departmental web sites; and allow any member of the public to make an objection to a licence or registration. The amendments would greatly improve public participation in and accessibility to the licensing and registration systems covered by the bill, and would provide much-needed transparency and public accountability in those systems. I urge all members to support the amendments, which clearly are necessary otherwise the legislation will be virtually useless.

Reverend the Hon. FRED NILE [9.32 p.m.]: The Christian Democratic Party is pleased to support the Licensing and Registration (Uniform Procedures) Bill, which will enable a single information technology [IT] system to be developed to manage the licensing procedures for business and occupational licences in New South Wales. The Government's licensing project aims to develop a single IT system to manage approximately 200 different licence types administered by 28 licensing agencies using in excess of 70 different IT systems. Many of those IT systems are now reaching the end of their life and will soon require replacement. Instead of each agency developing its own IT systems, the bill will allow a single IT system to be developed across all agencies. In the second reading speech it was claimed that this could save up to $70 million in system replacement and enhancement costs. We hope the Government will be able to confirm that aspect in this debate.

Currently there are 1.5 million business and professional licences held in New South Wales, and each year around 600,000 people apply for or renew licences by post or over the counter. Under the bill people will be able to continue to apply for or renew licences by post or over the counter, but they will also be able to apply for or renew licences through their computer systems. The bill provides a set of uniform procedures to be used by agencies when processing licences, clarifies that certain provisions of the Electronic Transactions Act apply to licensing transactions under the legislation, and creates an offence of the provision of false information in relation to a licensing transaction. During the period of the Fahey Government there was a dispute about a lot of money being wasted on computer programming outsourcing. The Government needs to ensure that it puts in place the right system. The Hon. Charlie Lynn: They don't want to make the same mistakes. Reverend the Hon. FRED NILE: The Government does not want to make the same mistakes. Given today's rapid updating of equipment, it is very easy to put in an outdated IT system. Ms LEE RHIANNON [9.35 p.m.]: The bill would establish a uniform procedure for licensing and registration schemes in New South Wales, specifically to facilitate the option of online applications and processing. The bill does not change any of the policy issues relating to the issuing of licences or registrations. While the Greens support this approach, we wish to place on record several issues of concern. First, the need to electronic transactions may threaten a number of jobs in some of the agencies involved, particularly amongst counter staff who deal directly with the public. As we know, the introduction of electronic transactions in the banking sector has decimated employment opportunities in that industry. It is to be hoped that the Government will not follow the mean-spirited, selfish and ultimately short-sighted path taken by Australia's banks by using electronic transactions to reduce the size of its work force. 3052 LEGISLATIVE COUNCIL 12 June 2002

Instead of using the electronic and telecommunications revolution to further marginalise employed people, it is to be hoped that the State Government will have the foresight and courage to break away from the dominant managerialist paradigm. There are opportunities in technological change to expand the horizon of government services and to create meaningful and exciting jobs for many workers. It is a challenge for the Government and this Parliament to facilitate the realisation of those opportunities; indeed, that is our job. A second concern, a dual form of the first, is the potential to divide society between those who have access to the Internet and those who do not. As many scholars have observed, advances in telecommunications and computing could, if not carefully managed, further exacerbate the social and economic divisions within our society. While a well-funded public education system works well to avoid this highly undesirable outcome, much more policy work is required to ensure that no-one is left behind by large-scale technological changes.

The bill offers benefits for rural and remote communities in New South Wales to reduce costs and travel times. It also offers additional convenience to people with disabilities and the elderly, which is a great benefit. However, its benefits are largely restricted to those who have access to the Internet and to the hardware and software to operate it. It is important that that be acknowledged, because it is a very real division within our society at the moment. The Greens support the bill but we urge the Minister to take note of our concerns and ensure that this does not result in divisions within our society.

The Hon. CARMEL TEBBUTT (Minister for Juvenile Justice, Minister Assisting the Premier on Youth, and Minister Assisting the Minister for the Environment) [9.38 p.m.], in reply: I thank honourable members for their contributions to the debate—the Hon. Charlie Lynn, who led for the Opposition and indicated its support for the bill, the Hon. Richard Jones, Reverend the Hon. Fred Nile and Ms Lee Rhiannon. While I do not intend to respond to every issue in detail, I wish to respond to some of the issues raised. The bill lays the foundation for the implementation of the Government's $32 million, four-year connecting.business project by providing a consistent approach to licensing regimes across the State, and removing existing barriers to electronic transactions. The connecting.business project aims to provide a one-stop shop for business and occupational licensing in New South Wales. The new system will make life easier for business, saving both time and money. But it will also deliver benefits to the broader community by facilitating a more secure system for the verification of information provided by applicants, and providing online access to public registers.

This bill is about providing a more uniform, consistent procedural framework to enable the development of a whole-of-government information technology system to make it easier for people to apply for and renew licences. It is not about policy issues relating to who is eligible to hold a licence, the requirements for holding a licence, or the appropriateness of providing public access to particular licence information. These issues remain issues for the licensing agencies that have the expertise and experience to best determine policy matters. That goes to some of the issues raised by the Hon. Richard Jones, who has foreshadowed that he will move amendments in Committee. It needs to be noted that the new government licensing system will provide all participating agencies with significant benefits in terms of improved data management and streamlined licence administration. The question whether a public register is kept, and in what form, is covered in primary licensing legislation and remains a policy issue for the relevant licensing agencies. It is not a matter that should be addressed in this legislation.

Reverend the Hon. Fred Nile raised the issue of savings. The matter was referred to by the Minister in the other place and in my second reading speech, which was incorporated in Hansard. It is expected to save the people of New South Wales $70 million in system replacement and enhancement costs. That is a matter of record in the second reading speech. Ms Lee Rhiannon raised a number of issues, particularly broader philosophical issues about benefits of new technology. Some of those matters are perhaps beyond the scope of this debate, but it is worth noting some of the advice I have from the Minister about staffing, particularly regarding the main tasks in the licensing processes. These will still be required. Questions about job changes, job losses or organisational restructuring cannot be fully answered until the project has been implemented. However, from the outset, it can be expected that there will be an increasing workload to support the new online service channel, improve the robustness of the service and check information with third party suppliers of information who do not have online information checking in place.

Data entry performed by the online user is likely to reduce administrative functions, but the level of user take-up will not be clear until online services have been implemented. It is likely that there will be potential to integrate clerical licensing activities within agencies that currently operate multiple licensing systems. It can also be expected there will be a decrease in workload through the impact of three-year and five-year licence terms, although the actual level of take-up of those increased terms by licensees will not be clear until after implementation. I think the point that Ms Lee Rhiannon was making is that government needs to be aware of the 12 June 2002 LEGISLATIVE COUNCIL 3053 potential for technology to be used inappropriately or in a way that further entrenches inequality and difference rather than working to address those gaps. Probably the most useful advice I can provide is that a joint consultative committee of project and Public Service Association representatives has been meeting regularly since the inception of the project to provide information and discuss progress. The Government is talking about these issues with the body that represents public service employees. This bill is part of an exciting initiative that will deliver significant benefits to businesses, consumers and government. I commend the bill to the House.

Motion agreed to.

Bill read a second time.

In Committee

Part 1 agreed to.

Part 2

The Hon. RICHARD JONES [9.44 p.m.], by leave: I move my amendments 1 to 15 in globo:

No. 1 Page 4, clause 4. Insert after line 37:

register means the register referred to in section 24.

No. 2 Page 5, clause 4, lines 2 and 3. Omit "by or under the relevant licensing legislation to be registered or recorded by the relevant licensing authority". Insert instead "by section 24 (2) to be recorded in the register".

No. 3 Page 9, clause 15. Insert after line 2:

(3) The licensing authority must also cause notice of such an application to be placed on its internet website.

No. 4 Page 9, clause 15. Insert after line 7:

(4) A person may make submissions under this section whether or not he or she can demonstrate an interest in the matter concerned.

No. 5 Page 9, clause 15, line 9. Omit "28 days". Insert instead "3 months".

No. 6 Page 13. Insert after line 29:

24 Establishment and maintenance of register

(1) A licensing authority must establish and maintain a register in accordance with this section.

(2) The following particulars are to be recorded in the register in relation to each licence issued by the licensing authority:

(a) the full name and residential address of the licensee,

(b) the date on which the licence was issued and of each occasion on which the licence is amended, transferred, renewed or restored,

(c) the authority conferred by the licence, including any discretionary conditions to which the licence is subject,

(d) the date on which the licence first came into force and (in the case of a fixed-term licence) the date on which the licence is currently due to expire,

(e) particulars of any disciplinary proceedings that have been taken against the licensee, including particulars of any action taken against the licensee as a consequence of those proceedings.

(3) The register is to be made available for inspection by members of the public, free of charge:

(a) at all times, on the licensing authority's internet website, and

(b) during normal office hours, at the licensing authority's offices.

No. 7 Page 18, clause 33. Insert after line 34:

register means the register referred to in section 53.

No. 8 Page 19, clause 33, lines 2 to 4. Omit "by or under the relevant registration legislation to be registered or recorded by the relevant registration authority". Insert instead "by section 53 (2) to be recorded in the register". 3054 LEGISLATIVE COUNCIL 12 June 2002

No. 9 Page 23, clause 44. Insert after line 8:

(3) The registration authority must also cause notice of such an application to be placed on its internet website.

No. 10 Page 23, clause 44. Insert after line 13:

(4) A person may make submissions under this section whether or not he or she can demonstrate an interest in the matter concerned.

No. 11 Page 23, clause 44, line 15. Omit "28 days". Insert instead "3 months".

No. 12 Page 28. Insert after line 19:

53 Establishment and maintenance of register

(1) A registration authority must establish and maintain a register in accordance with this section.

(2) The following particulars are to be recorded in the register in relation to each person granted registration by the registration authority:

(a) the full name and residential address of the registered person,

(b) the date on which the person was granted registration and of each occasion on which registration is amended, transferred, renewed or restored,

(c) the authority conferred by registration, including any discretionary conditions to which registration is subject,

(d) the date on which registration first came into force and (in the case of fixed-term registration) the date on which registration is currently due to expire,

(e) particulars of any disciplinary proceedings that have been taken against the registered person, including particulars of any action taken against the registered person as a consequence of those proceedings.

(3) The register is to be made available for inspection by members of the public, free of charge:

(a) at all times, on the registration authority's internet website, and

(b) during normal office hours, at the registration authority's offices.

No. 13 Page 33, clause 62. Insert after line 9:

register means the register referred to in section 78.

No. 14 Page 33, clause 62, lines 11 to 13. Omit "by or under the relevant registration legislation to be registered or recorded by the relevant registration authority". Insert instead "by section 78 (2) to be recorded in the register".

No. 15 Page 38. Insert after line 14:

78 Establishment and maintenance of register

(1) A registration authority must establish and maintain a register in accordance with this section.

(2) The following particulars are to be recorded in the register in relation to each person granted registration by the registration authority:

(a) the full name and residential address of the registered person,

(b) the date on which the person was granted registration and of each occasion on which registration is amended or restored,

(c) the authority conferred by registration, including any discretionary conditions to which registration is subject,

(d) the date on which registration first came into force,

(e) particulars of any disciplinary proceedings that have been taken against the registered person, including particulars of any action taken against the registered person as a consequence of those proceedings.

(3) The register is to be made available for inspection by members of the public, free of charge:

(a) at all times, on the registration authority's internet website, and

(b) during normal office hours, at the registration authority's offices. 12 June 2002 LEGISLATIVE COUNCIL 3055

I have been advised by the Minister that the Government will not accept any of my amendments, much to my amazement. Amendments 1, 2, 6, 7, 8, 12, 13, 14 and 15 will ensure that all licensing authorities covered by the bill must establish and maintain a public register of all terms and conditions of each licence and registration. Amendments 3 and 9 will ensure that advertised applications for licences and registrations must be placed on departmental web sites. Amendments 4 and 10 allow any member of the public to object to a licence or registration. Amendments 5 and 11 will extend the maximum period for the making of submissions on applications for licences and registrations to three months. These amendments will bring some uniformity to licence and registration record-keeping requirements, greatly improve public participation in accessibility to the licensing and registration systems covered by the bill, and provide much-needed transparency in the system. I cannot, for the life of me, understand why the Government would not accept these amendments, which would improve the legislation. The Hon. CARMEL TEBBUTT (Minister for Juvenile Justice, Minister Assisting the Premier on Youth, and Minister Assisting the Minister for the Environment) [9.56 p.m.]: The Hon. Richard Jones has moved the amendments in globo but has spoken to them in groups because a number of them relate to each other. I also will attempt to make a response to those groups of amendments so that the honourable member will have a clear understanding why the Government does not support his amendments. First of all I deal with the group of amendments relating to the requirement for advertised applications to also be publicised on an agency's web site. Clause 15 of the bill provides for uniform provisions in relation to the public notice in a newspaper widely distributed in New South Wales. The proposed amendment to clause 15 provides for the public notice provisions to be supplemented by a notice on the web site for the particular licence. While this amendment is not inconsistent with the underlying philosophy of the legislation and the licensing project, it has not been possible to properly consult the primary licensing agencies that would be affected. The amendment is not supported at this time, but the proposal will be considered for inclusion in a later phase of the project following consultation with licensing agencies. I started with that response because it is probably the most positive that I am able to make regarding the honourable member's amendments. The next series of amendments moved by the honourable member relates to the issue of establishing a public register for all licences administered on the government licensing system and providing certain requirements for that public register. I have already alluded to this matter in my response to the second reading debate. The amendment is not supported. The requirement to keep a public register is a policy issue for the relevant licensing agency to determine under its own legislation. Such a decision is made by the agency with expertise, in consultation with stakeholders. It is inappropriate to use this bill to seek to override the legitimate policy considerations and responsibilities of the licensing agencies. There are some licence types where it is totally inappropriate to provide the details proposed by the amendment—for example, the residential address of the licence holder with regard to nurses, particularly psychiatric nurses, who may be put at risk by exposing their residential addresses. The current Nurses Act specifically precludes the release of residential addresses. For example, breeders of protected animal species would be exposed to a greater risk of burglary and theft of the animals if their residential addresses were made public. There are also some current public register provisions that include a broader range of information than that proposed by the amendment—for example, home building and health professionals. For these licensing schemes, the amendment would reduce the current consumer protection capacity of the register. The point of the Government is that it is simply not possible to address the issue of a public register through this legislation, which really is about setting the framework for online licensing. Amendment No. 5 of the Hon. Richard Jones seeks to extend the period in which a person may lodge an objection to the licence application from 28 days after publication of the notice to three months. One of the key objectives of the bill and the project is to reduce red tape and streamline processes. To extend the period for objections from 28 days to three months will result in unnecessary delays in processing applications and is in direct conflict with the objectives of the project. For these reasons the Government does not support the amendment. Most of the other amendments moved by the Hon. Richard Jones repeat these three amendments in different parts of the bill. However, in amendment No. 4 the Hon. Richard Jones seeks to add an additional subclause to clause 15. It states that people may make submissions in response to an advertisement of a licensing application regardless of whether or not they can demonstrate any interest in the matter concerned. The Government believes this amendment is unnecessary as clause 15 (3) already provides that any person may make submissions to the relevant licensing authority with respect to the application. For this reason the Government does not support this amendment. 3056 LEGISLATIVE COUNCIL 12 June 2002

The Hon. CHARLIE LYNN [9.50 p.m.]: The Opposition respects and appreciates the sentiment of the Hon. Richard Jones in proposing these amendments, however, at this stage we support the Government's arguments against the amendments. The Opposition will not support the amendments.

Amendments negatived.

Part 2 agreed to.

Parts 3 to 5 agreed to.

The Hon. RICHARD JONES [9.51 p.m.]: I will not move my amendment No. 16.

Schedules 1 to 5 agreed to.

Title agreed to.

Bill reported from Committee without amendment and passed through remaining stages.

CRIMES (FORENSIC PROCEDURES) AMENDMENT BILL

Second Reading

The Hon. CARMEL TEBBUTT (Minister for Juvenile Justice, Minister Assisting the Premier on Youth, and Minister Assisting the Minister for the Environment) [9.53 p.m.]: I move:

That this bill be now read a second time.

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

Leave granted.

I am pleased to introduce the Crimes (Forensic Procedures) Amendment Bill, which contains various amendments to the Crimes (Forensic Procedures) Act 2000 in order to improve the operation of that Act. The bill also makes a related amendment to the Police Service Act 1990. The Crimes (Forensic Procedures) Act 2000 commenced operation on 1 January 2001. The Act regulates the way in which police can conduct forensic procedures on suspects, persons convicted of serious indictable offences, and volunteers. Since the Act commenced last year, DNA profiling of serious indictable offenders has proceeded, with over 7,000 samples taken from inmates in New South Wales. The Act has been subject to a number of reviews, including a review by the Standing Committee on Law and Justice and a review by the Ombudsman.

As a result of the report published by the standing committee in February 2002 and discussions between officers of the Attorney General's Department, New South Wales police and other stakeholders as to the operation of the Act, it has become clear that a number of amendments are warranted. I propose to outline the important features of the bill which will be of interest to honourable members. I will deal, first, with the amendments to the Crimes (Forensic Procedures) Act 2000 which are contained in schedule 1 to the bill.

An important amendment in this bill relates to part 8 of the Act concerning volunteers. Part 8 deals with persons other than a suspect who volunteered to police to undergo a forensic procedure. Part 8 was not proclaimed along with the rest of the Act due to concerns that the definition of the term "volunteer" used in the Act might also apply to a person who is a victim of a crime. The volunteer provisions in part 8 were mainly designed to regulate the testing of volunteers in mass screening situations, such as the mass screening that occurred in Wee Waa in 2000. The provisions were not originally proposed to apply to victims of personal violence offences.

There are formal procedural requirements in part 8 that are inappropriate for victims of personal violence offences, such as a sexual assault, who may be traumatised at the time they are asked to undergo a forensic procedure. An example of this is the requirement in section 57 of the Act that forensic procedures be electronically recorded. Requiring police to comply with all of the provisions of part 8 whenever they deal with a victim of crime would also create an unnecessary administrative and legal burden for police.

There is also concern that the volunteer provisions of part 8 as presently drafted may pose difficulties for police in the investigation of property offences. The fingerprinting of owners or occupiers of property at the scene of a property offence such as a break and enter offence is a common tool of investigation. These fingerprints are taken for the purpose of isolating the alleged offender's fingerprints at the scene of the crime and eliminating the prints of persons legitimately at the scene. I am advised that there are likely to be in the order of 100,000 of these types of crime scene fingerprints taken each year in New South Wales. Again, requiring police to treat all of these people as volunteers under part 8 of the Act will create an enormous and unnecessary administrative burden.

Items [31] and [32] of schedule 1 to the bill address this problem by amending the definition of "volunteers" to exclude from the operation of part 8 victims of offences against the person as found in part 3 and subdivision 2 of division 1 of part 4 of the 12 June 2002 LEGISLATIVE COUNCIL 3057

Crimes Act 1900, and persons who volunteer to provide a sample of their fingerprints for elimination purposes in relation to property offences. These are sensible changes.

My department is presently working with the NSW Police, the Department of Women and the Department of Health to produce a protocol to provide protection for victims of personal violence offences when they are requested to undergo a forensic procedure. The requirements under the protocol will be less formal than the provisions of part 8 but will still ensure that the victim's rights are properly observed by police officers. For example, the protocol will include all of the information that must be given to victims before they provide a sample for DNA testing, including what will happen to the sample. In addition, item [37] of schedule 1 provides that the fingerprint sample taken from persons for elimination purposes in property offences must be destroyed or returned to the person as soon as practicable after the sample has been used to eliminate the person from inquiries in relation to the offence. Part 8 of the Act will be proclaimed to commence at the same time as the provisions of this bill commence.

Another important amendment in the bill relates to the missing persons index on the DNA database. Part 11 of the Act deals with the DNA database. It provides that the DNA database shall contain a number of indexes including a missing persons index. The missing persons index is defined in section 90 of the Act as "an index of DNA profiles derived from forensic material of persons who are missing and of their blood relatives". DNA profiles on the missing persons index can be matched against all of the other indexes on the DNA database. Unrestricted matching of these profiles is essential given the variety of circumstances that a missing person may be identified using the DNA database.

Concerns have been raised, however, that section 93 of the Act permits DNA profiles obtained from relatives of missing persons to be matched against samples from scenes of unsolved crime. It could be argued that by volunteering samples relatives of missing persons put themselves at risk of being implicated in other crimes. The problem can best be explained by way of example. A woman whose son is missing provides a sample for inclusion on the missing persons index for the purpose of finding her missing son. Her DNA profile can then be matched against any other DNA profile on the crime scene index, including forensic material found at the scene of another crime. As a result the woman may then be implicated in that other crime. There is presently no requirement in the Act that she be warned of that possibility before agreeing to provide the sample.

The amendments in items [33] and [34] of schedule 1 to the bill are intended to address these concerns. Item [33] provides that a person giving a sample for the purposes of the missing persons index must first be told that his or her DNA profile may be matched against all of the other indexes on the database. Item [34] provides that information about a match between that person's profile and any other DNA profile on the database cannot be used in proceedings against that person. If there is a match that implicates the person in the commission of another offence police must carry out a fresh forensic procedure under the provisions of the Act dealing with suspects in parts 3 to 6 of the Act in order to obtain an admissible sample.

This amendment will apply to samples that have already been provided under the Act. Item [43] provides for a person whose profile is placed on the missing persons index to be informed if his or her DNA profile or that of his or her missing relative on the missing persons index matches any other profile on the database. The other amendments in schedule 1 to the bill are intended to clarify some sections of the Act, correct some drafting anomalies in the Act and simplify some aspects of the Act. These amendments will ensure that the Act continues to be an effective tool in the investigation and prosecution of criminal offences.

The Act provides for authorised applicants to make applications to magistrates for an interim, final or second order for the carrying out of a forensic procedure. The class of people who are authorised applicants for an order for the carrying out of a forensic procedure on a suspect include an investigating police officer in relation to an offence. At present the term "investigating police officer" is defined as "the officer in charge of the investigation of the offence". This definition has proved to be too restrictive in practice. It does not recognise the operational realities associated with the conduct of police investigations. In the early stages of an investigation there may not be a designated officer in charge. There may be more than one officer in charge of a large, complex or urgent investigation. Item [2] addresses this problem by extending the definition of "investigating police officer" to include any police officer involved in the investigation of the relevant offence.

The Act provides for a person to act as an interview friend of a suspect or serious indictable offender for the purposes of various provisions of the Act, including when a police officer asks a suspect who is an Aboriginal person or a Torres Strait Islander to consent to a forensic procedure. Section 10 (9) of the Act presently permits police to exclude an interview friend if the interview friend unreasonably interferes with or obstructs the police officer. Item [7] amends section 10 and gives police an additional basis on which they can exclude an interview friend, namely if they believe, based on reasonable grounds, that the interview friend may be a co-offender of the suspect or may be involved in some other way with the suspect in the commission of the alleged offence. Item [7] also provides that if police exclude an interview friend the suspect may then choose another interview friend. If the suspect does not choose another and does not waive his or her right to an interview friend police may arrange for any of the persons referred to in the definition of "interview friend" in section 4 of the Act to attend.

Item [9] extends the circumstances in which a magistrate may make a second order for the carrying out of a forensic procedure to include the situation where the forensic material has been lost or is for any other reason not available for analysis and the carrying out of the forensic procedure for a second time is justified in all the circumstances.

Section 32 of the Act provides for the making of an interim order authorising the carrying out of a forensic procedure on a suspect where such an order is urgently required. An interim order operates until a magistrate, at a hearing, confirms the interim order or disallows the interim order. The amendments contained in items [10] to [20] of schedule 1 to the bill are intended to improve the provisions in the Act dealing with applications for interim orders for forensic procedures.

Item [10] clarifies the effect of a person's consent on an interim order for the carrying out of a forensic procedure on that person. Item [11] clarifies the conditions to be met before an interim order can be confirmed by a magistrate. Item [12] makes it clear that it is only an authorised applicant who may apply for an interim order. Item [14] requires that applications for interim orders should be made in person unless impracticable, in which case it must be made by facsimile or, if that is not available, by other means of communication. Item [13] removes the requirement to support an application for an interim order by evidence on oath or affidavit in the case where an application is by any means other than in person. Item [15] provides that in such cases the 3058 LEGISLATIVE COUNCIL 12 June 2002

application must be supported by evidence on oath or by affidavit as soon as practicable after the making of the application and before the making of any final order.

The amendments in items [16] to [20] of schedule 1 simplify the recording requirements for the making of interim orders. The amendments also make special provision for the recording of applications and interim orders where the application is not made in person or reduced to writing. Item [22] makes it an offence for persons to give information that they know is to be false or misleading in an application for an order to carry out a forensic procedure. This amendment will protect the integrity of the application process. Section 44 (a) of the Act provides that a forensic procedure should not be carried out in the presence or view of a person who is of the opposite sex to the suspect, except as permitted by the Act. This requirement, however, is quite unnecessary in cases where the suspect self-administers a buccal swab to the mouth. Item [23] therefore exempts self- administered buccal swabs from this requirement.

Section 89 of the Act provides that evidence relating to a forensic procedure found by a court to be inadmissible must be destroyed as soon as practicable. Item [38] of schedule 1 amends section 89 of the Act and provides that this evidence should not be destroyed until after the end of all of the relevant proceedings, including any appeal period or any retrial—for example, following a hung jury or appeal. Item [42] simplifies procedures under the Act by permitting police to use a telephone interpreter service where they are required to use an interpreter under the Act. Items [5], [6], [24], [25], [28], [35], [36], [40] and [41] of schedule 1 contain a number of amendments intended to correct some drafting anomalies and clarify some sections in the Act.

The final important amendment in schedule 1 to the bill relates to the Ombudsman's review of the Act. Under section 121 of the Act the Ombudsman is required to report upon the exercise of functions conferred on police officers under the Act. That requirement expires on 5 July 2002. Item [46] extends the period in which the Ombudsman must monitor the exercise of police powers under the Act for a period of a further 18 months from the date of the commencement of part 8.

Schedule 2 to the bill contains an amendment to the Police Service Act 1990 and a consequential amendment to the Crimes (Forensic Procedure) Act 2000. At present it is the practice of New South Wales police to take fingerprints and palm prints from persons who apply to be police officers. This is done in order to check their criminal history and determine their suitability for employment. This information is then placed on the New South Wales police operations database and the national automated fingerprint identifications system. There is some concern that this practice may also be caught by the volunteer provisions in part 8 of the Act. Schedule 2 addresses this concern by exempting this practice from the operation of part 8 of the Act. Schedule 2 also amends the Police Service Act 1990 and authorises the Commissioner of Police to require an applicant for appointment as a police officer to provide a fingerprint or handprint before an application is accepted. Before the print is taken from the applicant, the applicant must be informed that the print may be retained and used for law enforcement purposes. The print must be destroyed if the applicant is not appointed a police officer. A person who stops being a police officer may ask that his or her prints be destroyed.

The amendments in the bill address a number of the concerns raised in the report of the Standing Committee on Law and Justice on the Act, published in February this year. My department is presently conducting a review of the entire Crimes (Forensic Procedures) Act 2000. That review is being conducted pursuant to section 122 of that Act. The report in relation to that review must be tabled in both Houses of Parliament no later than 5 January 2003. The amendments in the bill will improve the operation of the Act. They will ensure that the Act continues to provide police with an effective investigative tool, as well as provide adequate safeguards to individuals who may be subjected to a forensic procedure under the Act. I commend the bill to the House. The Hon. JAMES SAMIOS [9.54 p.m.]: The Opposition does not oppose the Crimes (Forensic Procedures) Amendment Bill. The purpose of the bill is to amend the Crimes (Forensic Procedures) Act 2000 regarding who can make forensic procedure orders and to amend the Police Service Act 1990 with respect to fingerprinting of applicants who wish to become police officers. The background to this bill involved the Standing Committee on Law and Justice chaired by the Hon. Ron Dyer, which recommended the proposed reforms in its report in February 2002. Essentially the purpose of the bill is to change the class of police officers to make forensic procedure orders from the police officer in charge to any police officer involved in the investigation. The bill stipulates also that when the suspect has requested a friend be present in an interview the friend is not allowed to obstruct the interview or to be a suspect. In the case of fingerprinting and hand printing of applicants mentioned in the amendment to the Police Service Act 1990 section 96A (1) proposes:

The Commissioner may, before accepting an application for appointment as a police officer, require the applicant to consent to the taking of a finger print or hand print for use by the Commissioner in determining the applicant's suitability for employment. Subsection (2) states: Before a finger print or hand print is taken from an applicant for appointment as a police officer the applicant must be informed in writing that the print may be retained and used for the purpose of performing a check of the applicant's criminal history. Subsection (3) states: The Commissioner must destroy any finger print or hand print taken under this section from any person who is not appointed to a position as a police officer as soon as practicable after the decision is made not to appoint the person to the position. Subsection (4) states: A person who was not appointed to a position as a police officer may request that any finger print or hand print taken from the person in connection with an application for appointment as a police officer before the commencement of the section be destroyed. The Commissioner must ensure that such a request is complied with as soon as practicable after the request is made. 12 June 2002 LEGISLATIVE COUNCIL 3059

Perhaps the most significant item from the proposed legislation contained in the bill is the emphasis it gives to the importance of DNA testing, which has been described as the fingerprinting for the twenty-first century. We are informed that thus far some 7,000 samples have been taken from inmates incarcerated as serious indictable offenders. Their DNA profiles have been retained on the DNA database system. No doubt that is an important database for the authorities. Already we have seen a benefit, that is, the resolution of a number of offences in the short time since the sampling. This is important legislation and the Opposition does not oppose the bill.

The Hon. RON DYER [9.59 p.m.]: I support the Crimes (Forensic Procedures) Amendment Bill. In February this year the Standing Committee on Law and Justice tabled its report entitled "Review of the Crimes (Forensic Procedures) Act 2000". I have previously detailed the key findings and recommendations of that report. I am pleased to note that the Crimes (Forensic Procedures) Amendment Bill contains several measures that address concerns raised in the committee's report. I also acknowledge the Attorney General's advice that the committee's report will be considered more fully in the course of the Attorney's own statutory review of the Act. Part 8 of the Act, which deals with volunteers, was of particular concern to the committee, and the failure to proclaim part 8 potentially raised questions about the legality of all procedures performed on volunteers.

The application of the volunteer provisions to victims of crime was also considered inappropriate by the committee, and it was speculated by witnesses that concerns about the provisions relating to victims of crime was a key reason for the non-proclamation of part 8. This bill will ensure that victims of crime are explicitly excluded from the provisions of the Act, which should allow part 8 to be proclaimed without further delay. I assume that the need to regulate the conduct of procedures on victims of crime, and the use of any samples obtained, will be addressed by the Attorney in his forthcoming review of the Act.

The committee also drew attention to the potential problem arising from obtaining samples from relatives of missing persons, and the ability under the Act for such samples to be matched against the entire DNA database. This could lead to a cold link to an unrelated crime, the possibility of which the donor had not been warned. The committee recommended that the Attorney General address this problem. This is done in item [33] of schedule 1 to the bill, which requires that volunteers providing samples for the missing persons index be informed that the DNA they provide may be matched against all indexes on the database.

The final matter I wish to comment on is the new requirement for the destruction of forensic material following the quashing of a conviction. In an anomalous provision, the Act required destruction of material following a conviction only if the sample had been taken after a court order. The bill appropriately seeks to extend this provision to all samples taken, regardless of the means of obtaining them. I am pleased that some steps have been taken to overcome the serious flaws in the Crimes (Forensic Procedures) Act 2000 identified by the Standing Committee on Law and Justice. I look forward to further amendments following the Attorney General's review of the Act.

Reverend the Hon. FRED NILE [10.02 p.m.]: The Christian Democratic Party supports the Crimes (Forensic Procedures) Amendment Bill. The bill will make various amendments to the Crimes (Forensic Procedures) Act 2000. It will exclude victims of personal violence and improve the way that the Act applies to persons, particularly family members, who volunteer a DNA sample. I have always been a very strong supporter of the legislation that allows for DNA testing in this State. Honourable members may have seen today's reports of a suspect who was forced to provide DNA samples to assist the Northern Territory police to potentially identify the murderer of the British tourist Peter Falconio.

Apparently there are blood specks on Joanna Lees' clothing and it may be possible, if the suspect is the murderer, to link him to that crime. That shows how important DNA is becoming in combating crime, especially unusual types of crime. In the past, the investigation would have come to a dead end but there is now the possibility of finding and charging the person responsible for a crime. The Christian Democratic Party is very pleased to support this bill. We know that it will help DNA testing to work more efficiently in this State.

Debate adjourned on motion by the Hon. Peter Primrose.

ADJOURNMENT

The Hon. CARMEL TEBBUTT (Minister for Juvenile Justice, Minister Assisting the Premier on Youth, and Minister Assisting the Minister for the Environment) [10.06 p.m.]: I move:

That this House do now adjourn. 3060 LEGISLATIVE COUNCIL 12 June 2002

NRMA ROAD SERVICE

The Hon. CHARLIE LYNN [10.06 p.m.]: I refer to the recent announcement by the board of the NRMA on 30 May which aims to address a long-term imbalance between revenue and cost trends and to deliver faster road service with more accurate estimates of waiting times. According to the board's announcement, the approved 2002-03 budget will result in a net improvement after tax—from a loss of $37.1 million to a loss of $14.8 million—of $22.3 million. In my view, the NRMA board has a public responsibility to ensure that the organisation provides a professional and efficient service to its members, to ensure that it remains financially viable and to ensure that strategies are in place to anticipate future demands.

Given that the NRMA suffered a loss of $37.1 million, the board had a public duty to identify what caused the loss and to put strategies in place to turn it around. I assume that the decision it had to make related to whether it would reduce services to its members to cut costs, or whether it would develop a range of measures to meet members' varying demands. The board developed a suite of membership packages which will apply from 1 November 2002. Under that system members will be able to choose the service that best meets their needs and have aligned a membership fee with each level of service. That measure will result in an additional $7 million in earned revenue in 2002-03 and $21 million in 2003-04.

The new package provides four different levels of service and call-outs. Club membership, which costs $16.50 a year, provides a breakdown service for motorised scooters and wheelchairs and enables members to obtain free maps, discounted guides, the Open Road magazine and travel and theme park discounts. The first package, which costs $65 a year, includes the club membership package plus four road service call-outs each year and city towing of up to eight kilometres. The second package, which costs $75 and is an upgrade from the first package, provides unlimited calls for assistance, city towing of up to 20 kilometres and includes trailer assistance.

A traveller package, which costs $140 a year and is specifically designed for those who regularly travel long distances, provides comprehensive cover and includes unlimited calls, towing and trailer assistance. Twenty-five-year members can select either gold package 2, which has all the benefits of the second package for the price of the first package, or the gold traveller package for $121.25. Life members—people who have been members for 50 years or more—will continue to receive their current membership free. Those members who become eligible after the launch will receive a 50 per cent discount off any product that they select. A one-size- fits-all approach to the membership of the NRMA is an unrealistic expectation in today's environment. The categories of membership to which I have referred offer a sufficient choice to members.

In meeting the future needs of members the NRMA has to invest in a new computer-based system. A new global positioning system and a computer-aided system will allow for a far more efficient road service. This new system will provide greater accuracy in locating breakdowns and ensure more speedy arrivals at breakdowns. It will also enable members to book services at times that more suit their needs. The new categories of membership will enable this vital upgrade to proceed. I suppose that it is always easy to bleat about any increase in charges or any change to a system.

There will always be a small minority of dissidents who will whinge for the sake of whingeing. Before they jump on the bandwagon it would be sobering for them to look at the standard of services provided by the NRMA, which has a membership of two million people in New South Wales and the Australian Capital Territory. The NRMA attends 95 per cent of breakdowns within 60 minutes; in 94 per cent of the breakdowns that it attends in metropolitan areas it is able to get the member's vehicle running again; and in 86 per cent of breakdowns that it attends in country areas it is able to get the member's vehicle running again.

Each year the NRMA answers close to four million calls for help; it attends close to 2.7 million roadside assistance calls each year; it conducts more than 60,000 vehicle inspections each year; it distributes 2.3 million free maps; and, importantly, it gives members a voice by articulating many of their everyday concerns and represents them on a range of mobility issues. I remind those who are concerned about the modest but necessary increase in fees for this essential emergency and world-class service that it costs $208 to call out a plumber, $125 to call out a locksmith, $100 to call out an electrician and $91 to call out a veterinarian—all important but worthwhile emergency services. I ask honourable members to keep these facts in mind when assessing the value of this most important emergency roadside service. 12 June 2002 LEGISLATIVE COUNCIL 3061

OLNEY STATE FOREST LOGGING

The Hon. Dr ARTHUR CHESTERFIELD-EVANS [10.11 p.m.]: Last Sunday I was a guest of State Forests of New South Wales at Olney State Forest. The trip was organised by the North East Forest Alliance and the Wilderness Society to show me what was happening in the Olney State Forest, particularly in compartment 35. The co-operation of the Minister for Forestry was sought. I had a special permit to go into the forest for some hours with the Hon. Ian Cohen and our two guides, Paul and Graham. However, neither Paul nor Graham actually worked in those compartments so they were not able to give us any details—I presumed that that was deliberate. The area was closed to the public. In fact, a tree had been felled and had fallen into some other trees. Thus, it was considered a hazard for anyone who might have considered driving in there. Because of the angle of the cuts, some of the people with us believed that the tree had been felled deliberately.

The conservation groups wanted to make the point that State Forests is not sticking to the regulations it negotiated regarding respect for areas around cliffs and the logging of habitat trees. For example, logging had occurred right up to a cliff—it seemed high enough to meet the definition of "cliff"—but there is supposed to be a 20-metre area around cliffs that is not logged in order to look after the ecosystems. I confess that I could have trodden on some small orchids without seeing them. The logging certainly occurred much closer to the cliff than the permitted 20 metres. The area met the definition of "cliff" given to me it and it had been logged much more closely to the edge than it should have been.

The trees were relatively young—even the ones being logged. There were not many habitat trees—that is, trees with hollows sufficient for mammals to hide in. If part of a branch breaks off and dies the branch remaining continues to grow. An area then gets eaten out by ants, creating a hollow. Mammals, large and small, may hide in the hollow. Birds nest in such hollows. It was pointed out to me that considerable areas have no trees large enough to be habitat trees. There has been a survey of habitats, and the relatively young trees do not have habitats. Consequently, there are no animals and therefore the logging is even more thorough. It was also pointed out to me that when certain trees are logged some of the small trees are not of the same distribution of species as the ones that were logged, so there is a tendency towards monoculture. As a result, some of the biodiversity is lost in the repeat of the logging process.

Although sustainable yields of timber may be achieved, there may be a loss of biodiversity—in particular, losses of flora and fauna—if these regulations are not adhered to. While we were there we spoke to a group of people who are trying to create Jilliby Reserve, which involves the connection of a number of areas currently under State Forests, and under threat of logging, being brought into a larger body of reserve linking up with Watagan State Forest. They were keen to show us that area. It would be wonderful if Jilliby Reserve could be created. We would support such a proposal.

A group of about 70 people from the camp followed our trail into the forest. I gather that they were not supposed to do that. I had not been aware of the legal aspects of this—I had not realised that it was such a big deal for us to go into the forest. The exclusion policies of the Government are a worry if State Forests are not sticking to these guidelines. Will the Environment Protection Authority, which is supposed to be policing this, prosecute in order to give some teeth to these areas—which are, of course, not open to public scrutiny—if the forests are closed? I thank the Minister for Forestry for allowing the Hon. Ian Cohen and me to go into the forest. I simply present the conclusions as I saw them. I believe that we should do less logging and create more national parks. A number of people are interested in going into the forests. That is important for tourism.

WOMEN'S RIGHT TO VOTE ONE HUNDREDTH ANNIVERSARY

The Hon. JAN BURNSWOODS [10.15 p.m.]: As honourable members would be aware, today is the one hundredth anniversary of the passage of the Commonwealth Franchise Act 1902, which gave all non- indigenous women in Australia the right to vote. I am delighted to mark that event tonight, and tomorrow night, with 400 other women, I will be celebrating this historic occasion at a function being organised by EMILY's List to celebrate 100 years of votes for women and, unfortunately, somewhat less for indigenous women.

It will be a great celebration. Women, particularly those associated with the Labor Party, will be able to join with women such as Jenny Macklin, the Deputy Leader of the Federal Labor Party; Joan Kirner, former Premier of Victoria; Jennie George, member for Throsby and former President of the Australian Council of Trade Unions, and many others whom I do not have time to name but who are members of Parliament and leading women in the union movement, in professions and in all walks of life. It is important to mark these types of anniversaries. It may well be that this milestone was only achieved because of the efforts of South Australia 3062 LEGISLATIVE COUNCIL 12 June 2002 and Western Australia in particular in bravely allowing women to vote—in South Australia in 1894, and in Western Australia slightly later. Nevertheless, the Commonwealth eventually allowed women to vote in June 1902 and in August the New South Wales Parliament did the same. This Parliament will be able to mark the occasion in due course.

It is interesting to look back on the relative ease, measured in terms of years, with which women gained the vote, and how much longer it took before they gained the right to sit in Parliament. It took even longer for many women to become members of the New South Wales Legislative Assembly or Legislative Council or members of the Federal Parliament. I remember that when I and a number of other women ran for the Federal Parliament in 1980 some people in the Labor Party—and perhaps even more outside the Labor Party—regarded us as freaks. At that stage no woman from New South Wales had ever sat in the Federal Parliament. Unfortunately, in 1980 none of us was successful. However, it was pleasing that in 1983 Jeannette McHugh had the honour of becoming the first woman from New South Wales to sit in the Federal Parliament. It had taken only 81 years!

Fortunately, since that date the number of women in the Federal Parliament has increased considerably, and it was our proud boast as Labor women that in last year's Federal election we were able to reach our target of 35 per cent women in the Federal Parliament in the Labor Party. We were also able to reach that target in New South Wales. We still have some way to go in reaching that target in the Legislative Council, but I am confident that over the next few months we will be well on track to making sure that with a resounding win for the Labor Party in next year's State election women will be well represented in the New South Wales Parliament.

Finally, I notice that Susan Ryan, a former Federal Minister and long-time senator, was referred to in an article that celebrated the vote for women. She posed the question as to whether women in Parliament have been able to achieve as much as they and others hoped. She questioned whether women politicians have performed differently from their male counterparts. This is a fairly vexed issue that might be canvassed on another occasion. In some respects women should behave differently but in other ways we do not wish to be regarded as God's police.

WORKCOVER DEFICIT

The Hon. GREG PEARCE [10.20 p.m.]: In recent times in this House I have spoken about the out-of- control WorkCover deficit and the Government's shady accounting practices in relation to it. In January of this year the WorkCover actuary wrote a letter to a Legislative Council's General Purpose Committee No. 1, which has since reported. In the covering letter Michelle Patterson, the Acting General Manager of WorkCover, said there was to be a one-off reduction of the deficit of up to $1.33 billion. The letter to the chair of the committee went on to say that it was envisaged that the combined effect of these reforms will reduce scheme costs below premiums and commence a significant downward trend in the scheme deficit. Since then, Minister Della Bosca has been forced to concede that the Government's 2001 reforms have been a financial failure, yielding a fall in the deficit of just $198 million, a long way short of the Government's trumpeted $1.33 billion in so-called savings. But in January the Government and WorkCover had been intent on spin doctoring the $1.33 billion of savings. Indeed, the Minister was quoted in the Sydney Morning Herald on 8 January as saying that the savings were expected to be achieved. Intriguingly, at that stage the Sydney Morning Herald quoted the actuary as follows:

The impact from scheme reforms under the low-savings scenario is not substantial enough in itself to reduce the deficit without the aid of further premium rate increases or reductions in the break-even cost of the scheme.

The report went on to refer to things such as high-savings scenarios, target scheme premiums, and targets achieved. These were intriguing references to terms that the committee asked the senior officers of WorkCover to explain. On 14 February the General Manager of WorkCover, Ms McKenzie, and another senior officer, Mr McInnes, appeared before the committee. When they were asked about these references to "targets mainly achieved" we saw what can best be described as a classic Sir Humphrey performance from those two officers. I will not quote all of their responses, but throughout a quite considerable period of questioning on 14 February it can only be said that they wriggled and squealed and squirmed. As an example, when asked directly what were the "targets mainly achieved", which figured so prominently in the report of the actuary, Mr McInnes said:

We are in the process of finalising all those targets. When we did all the modelling there were target sets, and we can go back and dig out those targets from those models. 12 June 2002 LEGISLATIVE COUNCIL 3063

That was just one example of their obfuscating. In fact, the targets had always been there. When the same two officers reappeared before the committee on 6 March they were asked once again when they would produce the targets, because they had been asked on notice to produce them. Instead of producing them they strung out the committee for as long as possible. On 6 March Ms McKenzie was again dissembling in her answers as to what the targets were and when they would be produced. They were finally produced in late March and we discovered that the "targets mainly achieved" were just the WorkCover internal target for what WorkCover wanted to produce as a best-result figure for the deficit.

The Hon. Jan Burnswoods: Have you reported on this?

The Hon. GREG PEARCE: Yes, the committee has reported on this. The amount of $1.33 billion, which the Government attempts to project as a much better saving, was referred to in an internal WorkCover working document that the senior officers of WorkCover attempted to dissemble and refused to produce to one of the committees of this Parliament in an honest and open way, as they should have.

CAPSICUM SPRAY BAN

UNIVERSITY OF NEW SOUTH WALES ECOLIVING CENTRE

Ms LEE RHIANNON [10.25 p.m.]: Following the death of a man in Queensland a number of legal groups around the country are calling for a total ban on the use of capsicum spray to subdue people. Queensland police stated that the man died from self-inflicted injuries, yet the media reported that the cause of death was cardiac arrest. On that score there is clearly a dispute about what actually happened. Legal groups are interested in the Queensland Criminal Justice Commission's finding so they can clarify whether capsicum spray was a cause of death. Vicki Sentas, spokesperson for the capsicum spray monitoring committee, auspiced by the Community Law and Legal Research Centre at the University of Technology, Sydney, stated:

… research shows that Capsicum spray has an aggregating effect and is known to be particularly dangerous and fatal in people with existing medical conditions, especially if they are distressed or on medication.

She went on to say:

Police are unable to identify people who may be vulnerable to the adverse effects of Capsicum spray merely by assessing the appearance of that person.

She said that the capsicum spray monitoring committee was calling for an immediate halt on the use of the spray. Community legal groups support this call for the spray not to be used and have warned that it is by no means a non-lethal alternative. Damien Lawson, spokesperson for the Western Suburbs Legal Service in Victoria, stated:

Experience from the United States and the United Kingdom, and medical and scientific reports show that the use of chemical weapons such as capsicum spray has caused death or serious injury. Over 160 deaths have been associated with the use of capsicum spray in the United States since its introduction.

The Greens also support the call for police services around Australia to stop using capsicum spray when carrying out their duties. In the material presented to the Greens there is nothing that suggests that that weapon assists police in their duties; rather, it can harm innocent people. I also inform the House of the Ecoliving Centre at the University of New South Wales. I am a member of its board, and the co-ordinator of the centre is the very energetic Cameron Little. The centre does fantastic work. It is located just off the main campus at the Randwick end of the university and has a variety of teams that comprise a large number of energetic people who want to give their services to this excellent centre. The extremely active Animal Systems Team works to promote the safe, ethical and productive use of animals and animal systems in permaculture. The Art in the Garden Team improves the artistic quality of gardens and runs various workshops. The Biodiesel Team works at the Ecoliving Centre and on campus on the design, trial and operation of a biodiesel pilot plant on campus. The Bushtucker Team, the Compostable Organics Team, the Ecoliving Landcare Team and the Energy Team are also groups within the Ecoliving Centre project. The Energy Team is examining renewable energy projects and working to promote their uptake within the wider community. The potential for this work is absolutely enormous. A fully grid interactive system for the Ecoliving Centre is planned and is currently awaiting other renovations to be carried out on the roof so that the solar panels can be put in place. 3064 LEGISLATIVE COUNCIL 12 June 2002

Other activities and objectives of the energy team include conducting a baseline energy audit to establish current energy consumption, creating an energy model of the centre's building, and identifying appropriate technologies for the site to ensure demonstration of both advanced and readily compatible and accessible technologies. All of these teams come together under the broad umbrella of the Ecoliving Centre, which allows people to bring together their creative energy to promote permaculture and ecologically sustainable living. And it is happening in our own city. I encourage members to acquaint themselves with the workings of the centre. I congratulate all those associated with the centre, and I am pleased to be on the centre's board. PILLIGA STATE FOREST The Hon. RICK COLLESS [10.30 p.m.]: Tonight I bring to the attention of honourable members the condition of Pilliga State Forest and in particular the management of one of the world's finest timber resources, the white cypress pine. White cypress pine needs to be managed, and it needs to be thinned to allow it to grow. This species is a member of the Callitris family, and the species most used for timber production is Callitris glaucophylla. This species germinates in relatively rare events which are initiated by favourable climatic conditions. It needs a certain amount of rainfall and certain temperature conditions to allow it to germinate. These germination events may be several decades apart, and when they occur the young seedlings come up so thick that, as one local Pilliga farmer told me recently, "a dog cannot bark in it". If the seedlings are not thinned they quickly reach a lock-up stage and they will not grow any further. They can be some metres high; they can be up to 10 metres high when they reach the lock-up stage, and when they reach the lock-up stage depends on the number of trees per hectare. They do not grow past that stage. That means that trees in a forest might be 50 to 80 years of age but still only a few metres high, and the diameter of the logs would be only a few centimetres. In that situation they create a monoculture, and a monoculture in a forest is not desirable. Unfortunately, under this monoculture of pine seedlings there is no ground cover and erosion and land degradation can occur. That is happening in the parts of the Pilliga State Forest that have been locked up and excised from management. I am afraid that the Pilliga will turn out like that should parts of it be locked up as a national park. Thinning and managing the forest at the lock-up stage allows the forest to provide the community with one of the most durable construction timbers in the world. White cypress pine is well known, and the Pilliga is currently exporting timber throughout the world. In Australia we tend to use a much less durable timber in the form of radiata pine for much of our house construction, and we are allowing white cypress pine to be exported. The thinning operation enhances the overall biodiversity of the forest, with many floral and faunal species establishing colonies in the managed forest. Recently when I was in the Pilliga forest I had an opportunity to look at some of the biodiversity in the managed forest. Of particular note was the fact that there are an estimated 15,000 koalas living in the managed part of Pilliga State Forest, whereas a few years ago the estimated number of koalas in New South Wales was only 10,000. It is because the forests have been managed to enhance biodiversity, to encourage timber production and to provide a resource that the whole community can use that the koalas and a lot of other native species have flourished. I recommend that all honourable members go to the Pilliga forest. The current Resource and Conservation Assessment Council proposal will lock up a lot of the Pilliga forest and destroy its biodiversity. The Pilliga forest needs to be managed appropriately to enhance biodiversity and to provide a very valuable timber resource for all the communities that live in the Pilliga forest. The towns of Gwabegar and Baradine, small communities that rely on the timber industry, will be destroyed if we cannot continue to make good use of this most valuable resource. Cypress pine, one of the world's finest construction timbers, resistant to white ants and in demand throughout the world as one of the most desirable timber species, can be found in the Pilliga forest. The Hon. Michael Egan: What sort of timber? The Hon. RICK COLLESS: White cypress pine. I can assure the Treasurer that it is one of the most valuable building timbers anywhere in the world. FEDERAL GOVERNMENT ARTWORK COMPETITION The Hon. PATRICIA FORSYTHE [10.35 p.m.]: On the centenary of the passing of the legislation for the vote for women, I want to congratulate the Federal Government on its inspired decision to commission a competition for an artwork to be placed in the Parliamentary Triangle—[Time for debate expired.] Motion agreed to. The House adjourned at 10.36 p.m. ______