1668 COUNCIL 8 June, 1988 LEGISLATIVE COUNCIL

Wednesday, 8 June, 1988

The Chairman of Committees took the chair as Deputy-President at 10.30 a.m. The Deputy-President offered the Prayers.

PETITION Cooks River Pollution The Hon. Elisabeth Kirkby presented a petition praying that pollution of the Cooks River at Dulwich Hill be removed by the use of Department of Corrective Services labour. Petition received.

ESSENTIAL SERVICES BILL Second Reading Debate resumed from 7th June. The Hon. ELISABETH KIRKBY [10.34]: When the debate was adjourned last night I was dealing with problems that had resulted from legislation and court cases relating to deregistration of unions. It is important that honourable members be aware of the considerable attention given to this matter in legal journals. The April 1988 issue of the Law Society Journal included an article written by Paul Ames Fairall, entitled "Peace, welfare and good government". The article dealt with limitations on the powers of the New South Wales Parliament. In the content of that article Mr Fairall deals with remarks made by the Chief Justice of this State during the legal process that went on when there was an attempt to deregister a union in New South Wales. The Chief Justice said on that point that the New South Wales Parliament enjoyed judicial power. However, he contended that the manner in which judicial power had been exercised in the instant case was incompatible with constitutional conventions and with the due administration of justice. His Honour issued the following warning: For Parliament. uncontrolled as it is by any of the safeguards that are enshrined in the concept of due process of law, to trespass into this field of judging between parties by interfering with the judicial process is an affront to a society that prides itself on the quality of its justice. That case was such a case, according to the Chief Justice, Sir Laurence Street, for Parliament had sought to abort a legitimate court challenge by the union against the cancellation of its registration. The Chief Justice, noting the almost universal disfavour in which the union was held, reminded Parliament: The greater the hostility directed against a person or organization. the greater the temptation to distort the fundamental precepts of our democracy by setting at nought the great principles of British justice. 8 June, 1988 COUNCIL 1669 Later in his article, Mr Fairall, senior lecturer in law at the University of Newcastle, quoted the President of the New Zealand Court of Appeal, Sir Robin Cooke. Sir Robin, in a recent paper, stated: If ever a Government indifferent at heart to basic rights were to hold office in this country, it could force through, possibly even in a matter of hours and by the basic majorities, legislation opposed to basic principles of justice. Orthodox theory in the past has been that the courts could not intervene. I am not so sure; the authority of Parliament itself-"supremacy" as it is often called-ultimately turns on judicial recognition. That judicial recognition and the ability for unions to appeal against a possibly unjust use of the Minister's powers form the basis of the concerns of the Australian Democrats to the essential services legislation. The Minister and the Government are asking this Parliament to accept that they will administer the proposed Essential Services Act with the best of intent, justly and fairly and in the public interest. However, they are refusing to allow that administration or calculation of the public interest to be reviewed by the courts-by the judicial process. The Australian Democrats believe that is a denial of natural justice. The Government will consider whether the public interest is at risk. Should the Government decide that this is the case, it will take action to force the union members concerned back to work. Neither of those decisions will be appealable, nor will they be reviewable by judicial process. The Government wishes to retain the power to declare a service an essential service, but that very declaration, which under the legislation will carry all sorts of penalties for workers and unions, will not be reviewable. A court must be able to decide whether a government-or rather the Executive of government, or the Minister-has acted ultra vires the Act. To prevent this happening would be as great a denial of the rule of law as is the claim that unions that ignore orders of the Industrial Commission are placing themselves above the law. If the Government is confident of its administration of the Act, why is it scared of independent review? The Government argues that because the essential service in some way has been affected by an illegal dispute as defined by the Industrial Arbitration Act 1940, the workers have no right to have reviewed any decisions made under the Essential Services Bill. However, striking workers will not be the only people affected by the bill. Others who may be affected could include employers, who deserve to have their rights maintained. In particular, they have the right to carry on their business without ministerial interference, if that interference is ultra vires the Act. The Government argues that strikers may go to the commission to seek a review of any decision made. Though the Minister may have used his powers under clause 9 to force them to work, they can return to the commission under the protection of the law. If they do go to the commission, the justice of their dispute will be considered; the commissioner will determine whether their wages are too low, their working conditions are unsafe, and so on. However, the decision of the Minister-to control their work and to force them to go to the commission by declaring their industry essential, even if not listed in clause 4- is not appealable. Under this legislation no court will be able to review the Minister's actions. That is one of my basic concerns about this legislation. I discussed that concern for many hours yesterday with the Minister. As soon as I have finished speaking today, I have another appointment with him to consider this m further. Strengthening the powers of the commission may be needed, currently, upon the decision of the Minister using clause 4 (1) (I), a unionist can keep or lose certain rights, including the right to withdraw decision to declare an industry an essential service because the 1670 COUNCIL 8 June, 1988 that is in the public interest is, in effect, discriminatory. Under clause 17, the final decision to suspend a union's registration is to be made by the Minister alone, exercising his own discretion. Clause 17 (4) (b) in part states that the registration of the union shall be cancelled seven days after the making of a declaration: . . . unless the Minister certifies to the Governor within the 7-day period that the union has ceased to engage in activities which are contrary to the public interest. There is no requirement that the Minister state his reasons or how he believes that the union has not ceased to engage in activities that are contrary to the public interest. The union has no protection if it decides finally to obey the commission's order not to be required to go beyond that order. There is no protection for the union from unreasonable or wilful requirements by a Minister. What is the public interest? How is it defined? I believe clause 21 (2) is acceptable and could remain in the bill. However I believe that subclauses (1) and (3) of clause 21 should be removed. Yesterday in this debate another honourable member quoted from a leader article in the Australian. When I was looking for more information about how the press was handling this legislation, I found a leader article in the Daily Telegraph, which is a newspaper under the same ownership as the Australian. The article was dated 1st June, 1988. It is necessary to consider what the Daily Telegraph feels about this legislation. The leader article stated: Powerful unions in key industries have often displayed a ruthless disregard for the community when pursuing their own interests. Disruptions resulting from some of these disputes create damage far beyond the union's sphere of industrial influence and all too often the entire community is held to ransom. Thc State Government is now fighting back with tough emergency services legislation which will be equal to the muscle wielded by these heavyweights. But there are dangers. In the first place, the unions are likely to feel threatened and may lash out in a reflex action, creating unnecessary disputes. Secondly. the Government may be tempted to use its new weapon in a show of political war games. thus inciting unnecessary disputes. So. before the knee-jerk reactions turn into industrial spasms, we need a cooling off period to examine just what the new legislation means. . . Those unionists who see the new legislation as provocative or confrontationist should check carefully the circumstances under which it will be invoked before getting paranoid about union-bashers. Likewise. the Government will have to use its strike-breaking powers with great sensitivity . . . We arc entering the industrial equivalent of the superpowers' arms race. The leader writer concluded by saying: It is to be hoped the new laws will reduce the days of selfish strikes where a group of petulant workers put other unionists out of work by stopping transport systems or cutting supplies. As long as the application of the new laws is restricted to essential services, there should be no grounds for complaint. The new emergency services legislation will be a test of our social and industrial maturity. Hopefully. it will introduce an era of balanced cooperation instead of the destructive confrontation of the past. That is my earnest hope also, and that is why I have spent so much of the past 73 hours in lengthy consultation with the Minister, Labor Council representatives. and employer representatives. I believe that we should not be 8 June, 1988 COUNCIL 1671 acting in either a confrontationist or obstructionist manner in respect of this legislation. Yesterday in Hobart the federal Minister for Industrial Relations, the Hon. R. Willis, suggested that this legislation breached Australia's international treaties. I gather that Mr Willis has demanded that the Essential Services Bill be changed or dropped. We, I hope through consultation, are in the process of changing it. Other legal advice is to the same effect. Professor Colin Howard of Melbourne University predicted that Mr Greiner would win a legal challenge from the federal Government over this legislation. He said that the federal Government would not be willing to make law in Australia the entire convention of the International Labour Organisation. Professor Howard is reported to have said: It is a very wide-ranging convention and some aspects are not at all compatible with the set up in this country and would cause all sorts of domestic problems. Whatever Mr Willis may have said in the heat of the moment in Hobart- obviously this measure was used by him to gain publicity-is unlikely to have any effect on the legislation now before the House. Obviously the Australian Democrats believe that the legislation can be improved to a greater extent only if formal consultation is allowed to take place; and that can happen only if the consideration of this measure in Committee is delayed. I hope that in the present circumstances the Minister will be willing to call a conferencee of representatives of the Labor Council at which can be raised my concerns and those of other honourable members in order to obtain resolution of the matter. I hope that such a conference will be called in the public interest. I make this request neither to deny the Government its claimed mandate nor to obstruct the legislation, as has been suggested by the Premier, but to allow time for further detailed discussion. I hope that that period will be granted so that the most offensive features of this measure can be changed by amendment. The legislation will then pass without there being a complete, all-out confrontation with the union movement. Such confrontation would certainly be not in the interests of the citizens of this State, and would defeat the purpose of having this House debate the matter over several days. The Hon. JUDITH WALKER [10.51]: It is a tragedy that we are debating legislation such as the Essential Services Bill. The Hon. J. P. Hannaford: It is a pity. If the unions were more responsible, there would be no problem. The Hon. JUDITH WALKER: I think that interjection came from the Hon. J. P. Hannaford. I need glasses, but I am not deaf. I told the honourable member that the other day. His statement lends support for the contention that this measure will punish the entire union movement, and will counter the productive work of many people who have sought to achieve negotiation of disputes. First I shall read from Workforce, which stated: No quick change in New South Wales as Coalition takes over. Despite some comments from prominent members of the incoming New South Wales Government, there will be no sudden anti-union action. Nick Greiner is not stupid enough to take on unions openly and has been advised by both the federal party and major employer groups to take things step by step. Indeed New South Wales, with its now Liberal Government, is being seen in some circles as the testing ground for a policy based on enterprise-level agreements. The result will be a quiet campaign by the State Government although initial anger at the dismissal of ministerial staff has been an initial hitch. That was going before the State Industrial Commission as Morl\.force was going to press. Much of the bluster came from the Labor Council's John MacBean and no one can deny the election result has weakened his power-base. 1672 COUNCIL 8 June, 1988 That article makes it clear there was no initial intention of the Greiner Government to jump on the bandwaggon, punishing workers, quite so quickly as has been done. It is difficult to find any support for the mandate claimed. In the Liberal Party election policy speech made by the now Premier at Rockdale town hall on Sunday, 6th March, few references to industrial matters can be found. The second page of that document contained the statement: Remember being late for work because of traffic jams and trains that just never arrived. Remember petrol queues, doctors' strikes, lack of discipline in our schools. The only thing he said about industrial matters in that policy speech was: To date, Labor's only answer has been to provide money for make-work schemes in the public sector. We will abolish the YES scheme and invest the money in a frontal attack on youth unemployment, under the title "Start to Life". Those two references are the only statements in the Liberal Party election policy speech that could be described as dealing with matters of industrial relations. The average person who went to vote on 19th March was not aware of the draconian legislation that would be brought before the House, and which we have before us today. At no stage were the thinking people of New South Wales told that essential services legislation would be introduced which could encompass every union and every dispute, and that the Minister, by regulation published in the Government Gazette, would be able to decide which union dispute involved an essential service and was against the public interest. The present Liberal Party, in government, does not hold the understanding of democracy that was held by Churchill and by the British Parliament. The Greiner Government hands much of its responsibility to the Executive Government rather than to the Parliament. In its rush to allow the Executive Government to make decisions, the checks and balances required in democratic government are ignored. The Premier wrote to several unions, including the Australian Transport Officers Federation; the State Rail Authority unions, among which the Australian Railways Union is the largest component; the Australian Federated Union of Locomotive Enginemen; and Mr Robinson, secretary of the Bus Employees Union. To those unions he wrote: I have been contacted by some of your workmates who have been told in union meetings that my Government intends to sack thousands of SRA and UTA employees. This is not true. It has never been the policy of the Liberal and National Parties to retrench government employees. And if anyone tries to tell you otherwise, ask them if they have seen the official 1988 Liberal-National Party Transport Policy. Page 15 of that policy clearly states: "The Coalition will not retrench any SRA or UTA employees." You have my promise, here in writing, that none of you will lose your job under a Liberal-National Party Government. In fact, we believe you will be better off. We will make sure that productivity gains are shared with workers. We will market public transport aggressively, to increase patronage. And we will allow service depots to take on outside work. Don't believe the Labor Party's lies. Write to me if you have any worries at all and I will be happy to send you a copy of our policy. Yours sincerely, Nick Greiner. Despite having written to the unions in that way, the Greiner Government set up the Commission of Audit. The first cabs off the rank for an audit were the State Rail Authority and the Urban Transit Authority, under investigation by Coopers and Lybrand. The press release from that Commission of Audit stated: 8 June. 1988 COUNCIL 1673

In partrcular, the report by Coopers and Lybrand Into the State's transport sector, through a revrew of State Rarl Authorrty and Urban Trans~tAuthorrty. w~llIdentify the key issues facrng the Government and the authorrt~essuch as any shortcomtngs rn financral performance, ineffic~entuse of resources, operational ~neffic~enc~esor the problem resultrng from excessive debt The Greiner Government promised that every unionist's job would be safe but has produced legislation that would negate that, and under which even the slightest industrial dispute could become a major issue. I know where this Government is heading. In 1981 the Labor Council of New South Wales facilitated a scheme that put paid to wildcat strikes. Honourable members will agree that during recent years the level of industrial disputation in the State of New South Wales, and indeed across Australia, has dropped dramatically. The facility that put paid to wildcat strikes was an arrangement under which unions had to give employers 72 hours' notice of their intention to withdraw labour. This scheme served New South Wales well. At one time I was a member of the Labor Council disputes committee before moving on to become the vice- president of that council, and I well recall the 17-day railway strike and its resultant chaos. But since those days there has been nothing but responsible trade unionism in this State. The Hon. E. P. Pickering: If that is so, why did Barrie Unsworth pull it on for the petrol strike, just before the State election? The Hon. JUDITH WALKER: That was what the newspapers reported. It has become the catchcry of the Greiner Government. The Leader of the Government in this House wants to know why Barrie Unsworth pulled it on. He did not pull on a piece of legislation that was for essential services. The Hon. E. P. Pickering: That is exactly what he did do. The Hon. JUDITH WALKER: He did not. It was the Energy Authority Act, and was not essential services legislation. He used that Act because the dispute that was occurring in New South Wales at the time was primarily a dispute between the federal branch of the Australian Transport Workers Union and its State branch. Ivan Hodgson, federal secretary of the Australian Transport Workers Union, was seeking to interfere with the administration of the State union. That is why Unsworth moved in that way. He was compelled to do so. Obviously, no Government member has a clear understanding of the role played by some federal unions in State unions, and vice versa. The Hon. E. P. Pickering: Is the honourable member trying to tell the House that action had nothing to do with the fact the State was about to run out of petrol? The Hon. JUDITH WALKER: That is right. The State was not running out of petrol, as the honourable member knows. There was a 10-day supply still on hand. I explained that to the House. I know it is difficult for honourable members opposite to understand. [Interruption] The Hon. JUDITH WALKER: I do not choose to interject on the Hon. R. T. M. Bull when he is discussing agricultural policy, because I do not know a great deal about it. I suggest that the honourable member study industrial relations. Labor has probably been more responsive to industrial relations requirements in this country than has any other group. Some people consider that the manner in which industrial relations are conducted in this country is somewhat strange. In many ways the press has done nothing to assist the trade 1674 COUNCIL 8 June, 1988

union movement. As everyone knows, when a union serves a log of claims it makes extravagant claims on the basis that, until the last of the claims is met, the union is not required to serve another log, which is a costly procedure and is enshrined in industrial relations procedure in this country. In addition to the industrial arbitration courts there are a series of conciliation committees, which conduct proceedings not only under New South Wales legislation but also under federal legislation. Those committees do a fine job. As honourable members would know, a number of conciliation committee panels similar to those of the federal industrial commission have been established in New South Wales. If the Minister for Industrial Relations is unhappy about the progress of attempts to settle a dispute, he can notify a dispute to the court. There is no need to have essential services legislation. That right is also available to a union. The first thing that occurs in that situation is constructive conciliation, the very thing that has not happened before the introduction of this bill. The Hon. E. P. Pickering: What happens when the union tells the court to jump in the lake? The Hon. JUDITH WALKER: Very few unions would tell a court to jump in the lake. The Hon. E. P. Pickering: There are enough of them that do it to warrant this legislation. The Hon. JUDITH WALKER: There are some 350 unions in New South Wales, not necessarily registered to operate as trade unions, but 350 unions affiliated with the Labor Council of New South Wales. All the Government can say is: what about the storemen and packers? What about the other 349 unions? Have they caused any problems? Never. This legislation will affect them, just the same. The Hon. E. P. Pickering: If they behave themselves, they will not be affected by the legislation. They have nothing to fear from the legislation, if they behave themselves. The Hon. JUDITH WALKER: They have nothing to fear but perhaps fear itself? The Hon. E. P. Pickering: Exactly. The Hon. JUDITH WALKER: We can tell them that. The interesting thing about the invocation by Mr Unsworth of the legislation related to the petrol shortage- The Hon. E. P. Pickering: The honourable member said there was no shortage. The Hon. JUDITH WALKER: I did not put it that way. I said there was a 10-day supply. The supply was not running out, as suggested by honourable members opposite. The Minister does not appear to understand that there are in this State branches of federally registered unions that are not registered in this State. It seems to me that the Government does not understand that this bill will have little effect on those unions. The Government will cause all the unions that are registered under a relevant State Act to apply to be registered federally; they will withdraw to the federal scene and that will destroy New South Wales. Is that what the Government wants? Does the Government want to destroy the industrial relations fabric of New South Wales? 8 June, 1988 COUNCIL 1675

That is what the Government will get if it proceeds with this legislation. I do not think the Government understands that. The Hon. F. C. Hankinson: It is a bit above them. The Hon. JUDITH WALKER: I think it must be a bit beyond their comprehension, and that is a bit of a shame. Clause 11 relates to disruption to essential services and enables the Minister of the Crown specified in an order declaring the existence of a state of emergency in relation to an essential service to give directions by notice in writing, in accordance with the powers conferred by the clause, to ensure the proper provision of the essential service during the period for which the order continues in force under clause 10. A direction may be brought to the attention of a person affected by it either by publishing the direction in the Government Gazette or by service of a copy personally or by post or telegram. Let met assure the House that the officials of the average trade union movement in the course of their duties and in the protection of the union members do not read the Government Gazette. The Minister might decide on a specific course of action, publish it in the Government Gazette, and the union may be in strife and be fined. As I said earlier, it seems to me that the Government is ignoring the checks and balances of democratic government. It seems that the Executive of the Greiner Government is being advised by bureaucrats and not by the elected representatives of the people. I will not deal at length with the bill, clause by clause. The Government views this bill as having priority to ensure that essential services are not disrupted by industrial action. The Government has failed to consult the unions but instead, by introducing the legislation, seeks to confront them. The result will be to throw the baby out with the bath water. The Government has a list of priorities, on the top of which is this bill. It is interesting to note that this House will soon debate a bill containing amendments to section 88~~of the Industrial Arbitration Act, which will allow the minimum wage, as it is known, to be dispensed with. When considering the legislation before the House and that to be introduced, one should bear in mind the right of assembly provisions in the Summary Offences Act. The legislation that is to come before the House will remove any compulsion for contractors to subcontractors to become members of industrial organizations. It will a1lo.v individual employees or employers, in appropriate circumstances, to bring matters before the industrial tribunal. The Hon. E. P. Pickering: On a point of order. It appears to me that the honourable member is seeking to canvass matters in legislation that is yet to be introduced before the House. There will be time for the honourable member to raise those matters. It seems inappropriate to raise them now under the auspices of this bill. The Hon. Judith Walker: On the point of order. I am illustrating to the House that this is not just a one cab off the rank bill. It is part of a package, which has been introduced for a reason. I am trying to direct the attention of the House to the legislation that will be debated later to demonstrate that it all means one and the same thing to the union movement. The DEPUTY-PRESIDENT: Order! I uphold the point of order. The honourable member will have adequate time to discuss other legislation when the bill is before the House for consideration. The honourable member will confine her remarks to the bill that is before the House. 1676 COUNCIL 8 June. 1988

The Hon. JUDITH WALKER: The former Minister for Industrial Relations, the Hon. Pat Hills, when speaking to representatives of the trade union movement, advised and warned them that the Liberal Party and the National Party seek not only to destroy the gains made by the industrial labour movement in recent years, but also threatened to rewrite the rule of law so that resistance would be futile. That is what this bill will do. It will rewrite the rule of law, and resistance will be futile. The program the Government has adopted is cumulative and comprehensive. How different is that approach from that of the Opposition, which I mentioned earlier, to achieve industrial agreements in State and federal awards on which employees and employers are able to confer and negotiate. One wonders what sensible employers think of the nonsense being put forward by the Government and embodied in the essential services legislation. The former Leader of the Opposition, now the Premier, said that a Liberal Party-National Party Government would provide for power to declare essential services at any time in the public interest, and would legislate to outlaw industrial action in any declared essential service while the declaration is current. That is hardly what one would call negotiation or consultation. The press has not assisted. Immediately the trade union movement made any comment about the legislation, there was a knee jerk reaction. What else could the unions do? They could hardly say: that is all right, Mr Greiner, we think it is a great piece of legislation-it will take away everyone's rights, but what the hell, this is a new government and we will give it a chance. As New South Wales and Australia have enjoyed industrial peace during the past 10 years, the trade union movement will not accept that position. In that time Australia has been virtually strike free. Given the number of unions and workers in Australia, the number of disputes has been few-particularly when one acknowledges that the trade union movement has been granted but one salary rise each year. For some time wages were frozen and the fallback position was inevitable. The trade union movement in this nation is to be commended for its attitude in this regard. Essential services clearly involve all public sector activities, and that is really only the beginning. The policy represents complete confrontation and will turn back the clock to the pre-1976 days of Askin, Lewis and Willis of daily widespread electricity blackouts and industrial mayhem-black days indeed, which those who were affected by them will never forget. In his contribution to the second reading debate on the bill in another place the shadow minister for industrial relations made his position clear about his thoughts on the bill. He perceived that the problem was that the legislation is provocative. I draw the attention of honourable members to recent events in Australia that were brought about by the hard right-wing; for example, the South East Queensland Electricity Board dispute, the Mudginberri dispute in the Northern Territory, and the Dollar Sweets dispute in Victoria, which were all section 45~disputes. The same situation was sought in the Robe River in Western Australia but the Western Australian industrial court put paid to that, so that the Charles Copemans of the world were unsuccessful in Western Australia. In South Australia the hard right-wing attempted to engender a further section 45~dispute at a site where submarine parts were being manufactured, where site agreements had been negotiated. Clearly, only one State remained in which a section 4.5~case had not been engendered. Not being able to successfully engender such disputes in this State, the Government has introduced this essential services legislation. It has adopted the attitude: if we 8 June, 1988 COUNCIL 1677 cannot get them with a section 451, dispute, we will get them with this essential services legislation. The Journal of Industrial Relations stated in its conclusions: In this year the effect of economic sanctions, such as threats of closure, retrenchments and restructing in the economy, has been more significant than legal sanctions. Concessions by unions at national and company level have marked 1986. Concessions at national level have been only partially mitigated by the Accord package; tax cuts do not compensate for wage discounting and full indexation from the second tier is a hope for only part of the workforce. At company level, the productivity benefits- And this legislation refers to productivity: -from changes to work practices are not intended for distribution to employees as well as owners. The steady but slow progress of the superannuation campaign stands alone as the reward for union's "economic responsibility"--and even it is a deferred benefit. In this austere climate, it was in keeping that lock-outs and dismissals, rather than strike action, should have formed such a significant part of industrial action. One employer representative was quoted in another context that an effective tactic when you had nothing to give was to take something away from them and then give it back. This tactic seemed to figure in much of the action faced by trade unions in 1986, so that in battling for reinstatement or to retain some protection of jobs, other matters such as work practices were conceded. The major problems for employers when embarking on these disputes has been the tenacity frequently shown by the rank and file. None of the concessions were won easily. nor has the industrial relations aftermath of these long disputes always been the quiescence that has characterized the Queensland electricity dispute. The Australian union movement gives few signs of being receptive to what the Americans have termed concession bargaining. I shall not bore the House with what I think of the doctors' strike, yet I notice that doctors will not be affected by this essential services legislation. Although the Government has agreed to remove the coercive clause from the relevant hospitals legislation, doctors still have not returned to hospitals and still no agreement has been reached. It will be interesting to learn whether doctors will be regarded as essential under the Act. Does the Greiner Government believe that it can cast the bread upon the waters and mollify the union movement with promises of overturning the legislation on Workcover and TransCover, and that the promise of such carrots will ensure the passage of this legislation? Does the Greiner Government believe that it can afford the tough line it is prepared to ride out during the initial muscle-flexing of the trade union movement? Would not the Greiner Government have been better served to follow the tried and true methods of negotiation, and the process of consultation and conciliation? Does the Greiner Government believe that in order to implement its Greiner- incorporated style of government the only way to achieve success is to bludgeon the trade union movement into submission by the penalties contained in this legislation? If this House withholds the passage of this legislation for the reason that it does not believe the Government has an understandable and clear mandate to introduce the most draconian legislation ever in this nation, and if indeed it transcends the International Labour Organisation's recommendations, this House of review will stand head and shoulders over any legislative body for upholding the rights, dignity and basic tenet of withholding labour of all trade movements in this State. Working men and women of New South Wales and Australia will salute this august body. I conclude on this note: for 32 years I worked in private enterprise and spent 20 years of that time in the insurance industry. Prior to becoming a union secretary I held a position with a large insurance company that was granted Royal charter in 17 10. I had worked with this company for only six weeks when I was summoned to appear before management. I was asked why when I sought 1678 COUNCIL 8 June. 1988 employment with the company I did not say that I was the president of the respective insurance trade union. I replied: I was not asked. Management then said: you were asked what your interests were. That is true, but trade unionism is not an interest, it is a way of life, and I condemn this bill as an affront to every working man and woman in this country. The Hon. R. B. ROWLAND SMITH (Minister for Sport, Recreation and Racing) [l 1.171: On behalf of the Leader of the Government in this House, and given the importance of this legislation, I move: That debate be adjourned to a later hour of the sitting to allow for consideration of all contributions to the debate by honourable members. Motion agreed to. Debate adjourned.

INDEPENDENT COMMISSION AGAINST CORRUPTION BILL (No. 2) Second Reading Debate resumed from 7th June. The Hon. J. R. HALLAM (Leader of the Opposition) [l 1.181: Today this House is dealing with the Independent Commission Against Corruption Bill (No. 2), which has already been amended 21 times by the Government-clearly an acknowledgement that the legislation brought before the other place originally was far from perfect. At the outset I wish to make patently clear that so far as the Opposition, the Labor Party of New South Wales, is concerned, it is not opposed to the establishment of a body to investigate corruption. Second, the Opposition believes that the Government has an unequivocal mandate to introduce such legislation. During my address to the Legislative Council I will show, however, that the specific provisions of this bill amount to a gross invasion of the civil liberties of the citizen, of a kind unwarranted in attempting to address social problems. The Opposition will show that these measures are unprecedented in democratic countries. In fact, General Pinochet would not have gone as far to address problems in Chile. The fact is that the Independent Commission Against Corruption will have greater powers to punish its critics than the South African police. The Hon. R. B. Rowland Smith: Rubbish, and the Leader of the Opposition knows it is rubbish. The Won. J. R. HALLAM: The Deputy Leader of the Government says that my claim that the commission will have greater powers than the South African police is rubbish. The Hon. R. B. Rowland Smith: That is correct. The Hon. J. R. HALLAM: For the benefit of honourable members, I quote from a press statement issued by a group of eminent New South Wales lawyers, the New South Wales Council for Civil Liberties: The Independent Commission Against Corruption will be given greater powers to punish its critics than the South African police, the Secretary of the Civil Liberties Association. Mr Robertson, said today. The ICAC will have power to arrest and hold in detention without bail. and to prosecute. What is worse is that the critic is prima facie guilty of a crimc of criticism, and the onus is on him to prove his innocence. 8 June, 1988 COUNCIL 1679

That is a complete reversal of the onus of proof in this country. The Council for Civil Liberties has noted 21 departures from the New South Wales Search Warrants Act. The view of the Council for Civil Liberties is backed up by this editorial in the Australian, "This bill should be radically amended if it is to be passed into law". Those are not just the views of the Opposition. The Hon. R. B. Rowland Smith: Why not refer to the views of eminent jurists, such as the Chief Justice? The Hon. J. R. HALLAM: If the Deputy Leader of the Government wishes it, I shall refer to the Chief Justice shortly. The Bar Association and the Council for Civil Liberties also have taken the view expressed in the editorial. The fact is that this measure abandons fundamental democratic principles that have been evolved in western countries since Magna Carta. I repeat, the Opposition acknowledges that the Government has a mandate to establish an Independent Commission Against Corruption with the powers of a Royal commission. That mandate is not questioned. The Opposition does question the horrendous powers that the commission will have by the provisions in this bill, for example, the indiscriminate telephone tapping and overriding of the courts. The Bar Association has spoken out strenuously against that power. Other examples include the reversing of civil rights to allow general powers of search and seizure; the undermining of legal principles of professional privilege-which I shall deal with at length in Committee; and attacks on basic freedoms, including the freedom of the press. In our society several freedoms are sacrosanct-freedom of speech, freedom of assembly, freedom of organization and freedom of the press. Those are attacked under this legislation. The secrecy provisions of the bill can be used to place the commission above the criminal law and, therefore, interfere with the administration of justice. If passed in its present form, this legislation will be the greatest assault upon civil rights and freedoms of the community in the history of this country. The plethora of powers invade the privacy of the individual. They smack rather more of the KGB than an investigative commission in a democracy. The secrecy in which the affairs and documents of the commission are shrouded is more suited to wartime Europe than peacetime Australia. The Hon. R. B. Rowland Smith: The Leader of the Opposition has a vivid imagination. The Hon. J. R. HALLAM: I challenge honourable members on the Government side to point to just one clause of the bill that aims at protecting basic rights and freedoms of the individual citizen. They will be unable to point to one clause because, I regret to say, there is none. The Hon. R. T. M. Bull: Is the Leader of the Opposition opposing the bill? The Hon. J. R. HALLAM: I am making detailed comment on this legislation. I am not giving the simple and slavish support that honourable members on the Government side will give. The Opposition is opposed also to the manner in which such an important piece of legislation is being bulldozed through the Parliament. The Hon. R. B. Rowland Smith: Bulldozed? You can debate it for the next two weeks if you wish. The Hon. J. R. HALLAM: The community has not been given an opportunity to debate these measures. 1680 COUNCIL 8 June, 1988 [Infrrruptron] The DEPUTY-PRESIDENT: Order! The Leader of the Opposition needs no assistance from members on either side of the House. The Hon. J. R. HALLAM: There has not been adequate opportunity for interested community groups to examine the provisions of the bill and consult the Government on alternative proposals. Already the Government has amended this measure 21 times; already we are dealing with the second Independent Commission Against Corruption Bill. In contrast, before the National Crime Authority legislation was introduced by Mr Fraser and Mr Hawke, two years of discussion and consultation were allowed. There is one alarming and partisan aspect of the legislation on which the Government has already indicated its position. The Government has intimated quite openly that it will use the commission as a statutory base for a witch hunt directed against the Australian Labor Party. The Hon. R. B. Rowland Smith: If you have criminals, we will seek them out. The Hon. J. R. HALLAM: A clear instance of the Government's foreshadowed intention in this respect came in the Attorney General's statement in another place on 18th May when he said, "The commission will spend much time examining the workings of the Labor Party". Is that the view of an objective Attorney General? The commission has every prospect of becoming a circus for public entertainment and political point-scoring. Armed with these draconian powers and propelled by the Attorney General's desire to settle old scores, the commission risks becoming a latter day colosseum where, instead of Christians being thrown to the lions, political opponents will be fed to the wolves. My grave concerns about the Government's haste in introducing this bill. and its excessive provisions, are shared by many individuals and organizations in this State. I list- The Hon. R. B. Rowland Smith: The criminals? The Hon. J. R. HALLAM: -the Council for Civil Liberties. The Deputy Leader of the Government says, "The criminals". Is the Council for Civil Liberties composed of criminals? The Hon. R. B. Rowland Smith: I did not say that. The Hon. J. R. HALLAM: The New South Wales Bar Association and the judiciary share my grave concerns. Letters have been written by judges. The Hon. J. P. Hannaford: Are all members of the judiciary against this bill? The Hon. J. R. HALLAM: I know that the Lieutenant-Governor has communicated with the Premier. The Police Association. many prominent barristers and solicitors, and the Australian Journalists Association-all of these organizations have expressed objection to many aspects of the measure before the House. The Hon. J. P. Hannaford: Are they totally opposed to the bill? The Hon. R. B. Rowland Smith: Of course they are not. The Hon. J. R. HALLAM: I take the opportunity in this most important debate to put on record the achievements of the Opposition when in government and the steps taken to fight public corruption. . 8 June, 1988 COUNCIL 1681 [Interruption] The Won. J. R. HALLAM: The Minister for Sport, Recreation and Racing is stupidly naive and immature enough to scoff. Will he not acknowledge a major initiative in the establishment of the office of Director of Public Prosecutions, with its director, Mr Reg Blanch, Q.C., invested with the responsibility to institute and conduct proceedings for indictable offences in higher courts? Mr Blanch has the responsibility for determining such matters as no bill applications and ex oficio indictments, and considering Crown appeals. The establishment of that office was a major initiative of the previous Government. Reference of these powers to the Director of Public Prosecutions allows for an efficient and consistent prosecution policy and a more independent decision-making process, as many of these functions were previously performed by the Attorney General. The Hon. R. T. M. Bull: Guided by the Attorney General. The Hon. J. R. HALLAM: The honourable member does not know what he is talking about; he has arrived recently from the bush. The former Government also established a special unit, including the drug prosecution unit, with 33 legal and financial specialists within the office of the Director of Public Prosecutions, and established the Judicial Commission to ensure that the judiciary remains above reproach. I understand that some leading judicial officers, who previously objected to the establishment of the Judicial Commission, have changed their views. The former Government did not find it necessary to institute the type of surveillance of the judiciary which this bill contemplates. The Unsworth Government established an independent criminal listings directorate and a separate criminal registry in the Supreme Court. As part of its program to combat drug-associated crime, the Wran Government established the State Drug Crime Commission. As at March 1988 the commission had arrested 39 people on 138 most serious charges. Unlike the Greiner Government, the Wran and Unsworth administrations widened the powers of the Ombudsman to allow investigation of complaints against police, and created or enhanced specialist police squads such as the organized crime squad; the drug law enforcement bureau, whose strength was increased from 18 to 200; the internal affairs branch whose strength was increased to 207; the internal security unit; the bureau of criminal intelligence whose strength was increased from nine to 287; and the joint Commonwealth-State task force on drug trafficking. When the Opposition was in Government it introduced the Special Commissions of Inquiry Act to give the Government power to conduct a Fitzgerald type inquiry in New South Wales. On the other hand the present Government lists all the successful prosecutions of the police undertaken by the previous Government as though they represent a failure to tackle corruption. These are major achievements. They demonstrate the reverse of what the Government is attempting to portray in the community. The prosecutions I have mentioned are testimony to the success of the measures introduced by the Wran and Unsworth governments and their determination to punish wrongdoing. The success or failure of the Independent Commission Against Corruption will be measured in exactly the same terms. It is hoped that the performance of the ICAC will match the record of the Ombudsman under a Labor government. Only time will tell. Though the Opposition accepts the underlying policy of the Government in introducing the bill, it opposes several specific provisions. The deficiencies in the bill are three-fold. There is a 1682 COUNCIL 8 June, 1988

complete absence of democratic accountability in the mechanisms proposed to monitor and review the operations of the commission. This clearly shows the immaturity and naivety of the new Government. There is a complete failure to protect civil liberties and even the most rudimentary common law rights of citizens. The commission will be equipped with powers inappropriate to an investigatory body not subject to adequate judicial oversight. In granting such powers to the ICAC, the Government has discarded the checks and balances that have evolved over many hundreds of years in democratic countries, beginning with the Magna Carfa. No regard has been paid in this bill to the proper roles of the three arms of government-the Executive, the Parliament and the judiciary. The ICAC will be unlike anything in Australia, the United Kingdom, the United States of America or Canada. The exercise of the excessive powers given to the ICAC will not be adequately reviewable by any of the three arms of government. This is dangerous folly. For these reasons the Opposition urges the Government to reconsider the bill and to undertake a period of consultation with the community. The bill will compromise the independence of the judiciary which is vital to the proper functioning of our legal system. Judges must be free to decide matters without fear or favour. They must also be protected from the publicity surrounding unwarranted personal and professional attacks by disgruntled litigants. Under the provisions of this legislation, the public examination of witnesses will lead to such attacks. Though the allegations sf witnesses may prove false, the damage will be done. The bill fails to recognize the special position of the judiciary; thus, the measure has been extensively criticized by the Bar Association of New South Wales, I quote from Mr Handley's letter: Separate provision has been made in the Judicial Officers Act for the investigation of allegations of misconduct against judges. That Act, of course, was introduced by the previous Government. Mr Handley continued: That Act provides for some important safeguards for judges including safeguards against- And I emphasize: -publicity being given to allegations which may later turn out to be completely unfounded. The Bar Council regards the powers of the Commission over judges as totally incompatible with their proper standing and independence. If the bill as it stands becomes law an officer of the Commission will be able to enter the chambers of a judge and inspect and copy documents in his chambers without any leave of the court and without any prior warning (clause 23). The commissioner would be able to require a judge to provide a statement of information about a matter it was investigating (clause 21) and the judge would be liable to 6 months' imprisonment if he failed. without reasonable excuse, to provide that statement (clause 82). The attempt by the Government to bring the whole State judiciary within the reach of this bill represents a massive vote of no confidence by the Government in our judiciary which in our opinion is totally unjustified. We would strongly urge therefore the bill be amended to delete the sub-paragraph (0 of the definition of "Public Official" in clause 3 (I). Subclause (2) of clause 40 will enable the commissioner to issue a search warrant himself, thus bypassing the requirement recognized in all other legislation in Australia that such search warrants can only be issued by a justice or other judicial officer. The power of the commissioner to issue a search warrant in his 8 June, 1988 COUNCIL 1683 own favour is a gross violation of the civil rights of the citizen. Such a power is not warranted for any purpose. If the commissioner has a reason for searching the private premises of the citizen, he should present his reason to an authorized justice in the same way as other law enforcement organizations. Such a requirement is not too onerous for the police, the National Crime Authority or the State Drug Crime Commission. Why should it be overruled for the ICAC? The amendments do not overcome this substantive objection. There is now a requirement in the Search Warrants Act to observe certain rules. These provisions will not overcome our objections. There is a grave possibility of the misuse of the search warrant power. This was evidenced recently when Mr Grassby was arrested at 5 a.m. and handcuffed. The National Crime Authority knew all it had to do was telephone Mr Grassby, and he would have presented himself. The circumstances of his arrest constituted a clear abuse of power. Indeed, at the committal proceedings, Mr Grassby's solicitors were able to use documents that they had subpoenaed from the NCA and he was acquitted of the charges against him. Under this legislation the commissioner will be able to refuse to hand over documents that he has used as the basis upon which to lay charges. Had that power been heid by the NCA at the time of its dealing with Mr Grassby's matter, the NCA would not have been required to supply the evidence that revealed a conspiracy between Detective Provost and a witness, who admitted actually to fabricating evidence, and that a young typist had kept a record of that and filed it away. However, the integrity of the NCA was such that Mr Grassby's solicitors were able to subpoena that evidence, which proved to be game, set and match in achieving Mr Grassby's acquittal. Had that evidence not been able to be subpoenaed, Mr Grassby would have been incarcerated as an innocent man. Therefore it is wrong that this legislation should include such horrendous provisions. I turn now to a consideration of freedom of the press. Clause 8 (1) (d) is broad enough to extend to the leaking of information by a public official, irrespective of whether the public interest may have benefited from such a leak. The Bar Association has instanced Sergeant Arantz as an example of someone who leaked information that may have been in the public interest. The Bar Association has requested an amendment to this clause. As drafted, this legislation will constitute a clear invasion of the right of the freedom of the press. A journalist will be subject to criminal charges under this legislation if he refuses to reveal the source of his information. The provision of such wide powers should receive serious consideration. Clause 36 of the bill will empower the commissioner to cause the arrest of a person and detain him in custody until released by order of the commissioner. The Government should provide some explanation of the need for that clause. Mr Handley, of the Bar Association, has said: Clause 36 (2) (a) of the bill enables the commissioner to issue a warrant for the arrest of a person if he is satisfied that the person "will not attend before the commission to give evidence without being compelled to do so". Clause 36 (6) enables an arrested person to be detained in custody "until released by order of the commissioner". We see no justification for the existence of such a draconian power to be exercisable against a person who may not have been summonsed to appear before the commission. The existing power seems to us to be far more drastic than is required. Clause 36 (2) should be amended to limit it to cases where a person. having been summonsed to attend the commission. has failed or rcfused to do so. I684 COUNCIL 8 June. 1988

That is a reasonable request. Mr Handley continue I have already drawn attention to the open-ended power to detain a person in custody who has been arrested under a warrant issued pursuant to clause 36. In our submission such an unrestricted power given to a public official other than a judge is wholly unprecedented in peace time conditions in this country and is contrary to fundamental notions of civil liberty and the rule of law. We would strongly urge therefore that clause 36 (6) be amended to impose a duty on the commissioner to release an arrested person on reasonable bail and on appropriate conditions which might include the surrender of his or her passport. Om the question of legal professional privilege the Government, again by its bulldozer tactics, has failed completely to recognize a fundamental privilege that courts and lawyers have had for, I believe, two centuries. The abrogation of professional privilege is a matter of great concern to me, and I shall move amendments on that aspect in Committee. A lawyer who has taken instructions from a client could be called by the commission as a witness against his client. I do not think that is a sensible proposal in a western, democratic society. The Attorney General dealt with this aspect, and I shall speak further about it in Committee. I instance a judgment of His Honour Judge Cross, which clearly states that it is not an argument to say that a lawyer can conspire with a client. If the lawyer does that, clearly he is outside the law and can be charged. So, it is a nonsense to make that allegation. Clause 11 1 (3) of the bill protects from compulsory disclosure to a court documents that have come into existence as a result of the work of the commission. Again, such a secrecy provision is unnecessary and excessive. The failure to produce such documents may result in a grave injustice to an accused person-to wit, Mr Grassby. With regard to accountability, the two proposed mechanisms to review the operations and conduct of the ICAC are totally and hopelessly inadequate. First, neither the Operations Review Committee nor the joint parliamentary committee will have any power to call for information from the commission. In the absence of information how will the committees review the operations of the commission? Without the power to call for information, these committees will be a sham-unlike the supervisory committee of the National Crime Authority, which reports to the federal Parliament, and has a proper supervisory role. Secondly, the committees will have virtually no power to direct the ICAC should wrongful activity be uncovered. If one or other of the committees were able to uncover improper or corrupt behaviour by the ICAC, what would it do? It could not direct the ICAC to cease the activity and it could not call on the Minister or the Premier to put a stop to the activity-which might be self-referencing, ongoing and all-embracing. The ICAC is not accountable to any individual or institution. The effect of the two committees being established by this bill will be that the ICAC will not be democratically accountable to any institution; it will be a law unto itself. The abolition of the two committees would not change the ICAC in any material way. Honourable members should not pretend that any checks and balances have been built into this bill. They have not. Once the ICAC becomes operational, it will be completely outside the proper control of the Executive, the judiciary. the parliamentary committee and the Operations Review Committee. In Committee I shall deal more extensively with these matters, by way of amendments. 8 June, 1988 COUNCIL 1685 The DEPUTY-PRESIDENT: Order! The next honourable member to participate in this debate will be the Hon. I. M. Macdonald. This will be the honourable member's maiden speech. Notwithstanding that this measure is controversial, I expect that honourable members will extend the traditional courtesies to a member making his maiden speech. I draw to the attention of honourable members that the Hon. I. M. Macdonald's mother is in the precincts of the Chamber. The Hon. I. M. MACDONALD [11.49]: I rise on this bill because I believe passionately in its need but deplore many of its means. In the late 1970s while working in the Attorney General's Department I concentrated my research on the issues of organized crime, the illicit drug industry, and their hideous results. Of particular concern and interest to me was the Nugan Hand Bank and its sinister links with many sections of our society. As a result of this intensive research into the dark side of Australian life, I have for years advocated a State crimes commission and supported numerous initiatives to curtail organized crime and corruption. These have included the internal affairs branch of the Police Department, strong powers of the Ombudsman, the State Drug Crimes Commission, and the Judicial Conduct Division. Running parallel to the emergence of effective anti-crime and corruption measures has been my deep-seated concern at the consistent erosion of civil liberties that seem part and parcel of our fight against crime. Legislators, in their enthusiasm, are adopting laws in many countries which undermine hundreds of years of natural justice. While this is done in an eagerness to stamp out the illicit drug industry, in many instances its effects can be unacceptable to society. This bill, as I will endeavour to demonstrate, does just that: it continues a trend into dangerous directions which challenge the very concept of democracy and freedom that Australians have fought and died for. And I find I have support for this view from a suprising quarter. The Attorney General has said of this bill, "I am a civil libertarian who is obviously very concerned about the extent of the powers that we are going to give this body". That statement says it all, and one can not overstress his own words of "very concerned" enough. We have in this Chamber the duty to look at the powers that concerned the Attorney General and make up our minds as to how they should be enacted into law. In a world beset by totalitarian regimes which live off summary justice, oppression and the denial of personal liberty, nations like Australia, with our British traditions of justice, have come to treasure and jealously protect those. In essence, I refer to the rule of law and the principles and practice of natural justice. I refer to such freedoms as free speech and assembly, as trial by jury, and the availability of prerogative writs such as mandamus and habeas corpus, to review abuses of executive power. The bill currently before the House threatens many of those principles and freedoms that hark back to the Magrza Carta. It must not be allowed through this Chamber without appropriate amendment to ensure it does not violate our great legal traditions. I know the Government has a mandate to establish an independent commission against corruption, and I endorse that we have an independent commission against corruption. However, the Premier is patently wrong when he claims this bill is endorsed by the people. On the contrary, the details in this bill were not formulated by the Attorney General until he visited, of all places, Hong Kong to learn how that undemocratic dependency ran its justice system. While we accept the Government has a mandate to establish the commission and will not oppose the concept, we reject the false proposition that the electorate has given them a mandate to violate the rule of law. The Government 1686 COUNCIL 8 June, 1988 did not seek, nor receive, a mandate to redefine the accepted meaning of corruption to subject all holders of public office, from the Vice-Regent down, to a Royal commission into the widest range of petty matters, often having no criminal implications at all. Nor did it seek or receive a mandate to enable public officials, and indeed all members of the public, to retrospectively be publicly declared corrupt, particularly when actions were considered either legal or not within the ambit of the meaning of that word at the time. Accordingly, this bill deserves to be vigorously reviewed by this House. Where it offends the fundamental principles of justice it should be appropriately amended so the people of New South Wales get the commission they voted for. The Government has fallen into three traps in its approach to drafting this legislation. Firstly, and most importantly, it tried to meet the secret political agenda, which is the persecution of its Opposition through the creation of a permanent inquisition into their administration-and the Leader of the Opposition has already pointed to that earlier in his speech. The threats of the Premier and the Attorney General have already exposed their approach to this bill. The Attorney General recently said-and I quote again what the Leader of the Opposition has quoted-"The commission will spend much time examining the workings of the Labor Party". Both the Premier and the Attorney should not forget the words of Francis Bacon, "Revenge is a kind of wild justice, which the more man's nature runs to, the more ought law to weed it out". There are many examples of political witch hunts rebounding on their creators. The most recent was the Costigan inquiry into corruption in the Federated Ship Painters and Dockers Union of Australia initiated by the Fraser Government. Originally that commission was designed to cause damage to the trade union movement and, hopefully, the Labor Party. Instead, it exposed a multibillion-dollar tax fraud and caused a great deal of damage to the friends and supporters of the Liberal and National parties. The second trap into which the Government has fallen is that the Attorney General in scouring the free world for a precedent has chosen to imitate the model established in an undemocratic colony which has a commission that is directly subject to the Executive. Pertinent, and equally astounding, must be the Attorney's remarks on his return from Hong Kong that he was adopting this model because it prevented New South Wales lawyers from using the rules of natural justice in defending their clients. The third trap is, of course, the indecent haste with which this bill has been drafted and is being rushed into law. Any legislation affecting the integrity of our citizens who give service in public life, including governors, judges, Ministers, parliamentarians, police and public servants, should always deserve deliberate consideration and wide consultation. This bill was rushed into the Assembly less than two weeks ago. So sloppily was it drafted that credence must be given to the rumour that it was drafted by a Queensland lawyer. The Government was obliged to amend the bill 16 times in the first Committee stages and a few more rimes when it was dealt with again in the Legislative Assembly. Upon receiving a broadside from the New South Wales Bar Association the Attorney stated he was prepared to countenance even further amendments. Clearly, this legislation, representing the most profound attack on civil liberties in this State's history, is a drafting shambles. By its very nature, the commission in this bill will entangle the investigating with the investigated in matters of heated political controversy. Its huge staff will, in a short period of time, embroil much of our bureaucracy and thousands of others in investigations not only about criminality but even about partiality in the policy-making process. The long-term effect of that on 8 June, 1988 COUNCIL 1687 our public service would be devastating. We all want to ensure public confidence in the integrity of public life, but poorly drafted or ill-considered legislation will achieve the very opposite. For some years, the judiciary in most States of Australia has refused to accept Royal commissions on the basis that by involving judges in the political process we bring the judiciary into public contempt. The eminent Victorian Chief Justice, Sir William Irvine, made the following comments which should be digested by those opposite who wish to rush this bill into law: The subject matter of the Commission proposed by the Victorian Government involves charges both of departmental inefficiency and of corruption of the Public Service. The enquiry must of its nature extend beyond the investigation of any particular charge. It seems to me to be impossible to frame any Commission which could in this case disentangle such issues from subjects of parliamentary controversy. Accordingly, he refused to take the commission, and most Australian judges have followed his lead. This leads me to the aspect of this bill that I find most dangerous. That is the impossibly wide and vague definition of corrupt conduct, outlined in clauses 7, 8 and 9 of this bill. Certainty has always been the golden rule for those responsible for drafting our criminal laws. If criminal laws are to be obeyed, the public must have a clear understanding of their provisions. Under clause 8 (I), paragraphs (a), (b) and (d), a citizen can be found to be guilty of corrupt conduct if he does anything that could indirectly adversely affect a public official in the impartial exercise of his official functions, provided that the official in turn has done something that could involve a criminal offence, or even a disciplinary offence, under the Public Service Act. Those latter provisos are contained in subclauses (1) and (3) of clause 9. I submit this definition has many severe weaknesses. First, section 66 of the proposed Public Sector Management Act, in setting out what constitutes a disciplinary offence, will bring within the ambit of this Act matters that have nothing to do with the ordinary meaning of corrupt conduct. Section 66 of that Act states: An officer IS gu~ltyof a breach of d~sc~pl~neif the officer- (a) contravenes this Act or the regulations; or (b) engages in any misconduct: or (c) consumes or uses alcohol or drugs to excess: or (d) intentionally disobeys. or intentionally disregards, any lawful order made or given by a person having authority to make or give the order: or (e) is negligent. careless. inefficient or incompetent in the discharge of his or her duties: or (f) engages In any d~sgracefulor Improper conduct This means that a public official could be subjected to this commission under clause 9 if the official has been negligent, careless, inefficient or uses alcohol or drugs to excess. This provision should not be included in such an Act, but it is there in black and white. This stretches the meanings of corrupt as defined in the dictionary, one of which is, "Open to or involved in bribery or other dishonest conduct". Yet, in addition to the largely minor matters listed in the Public Service Act and regulations a long list in clause 8 (2) includes such matters as nonfeasance, misfeasance, oppression, bankruptcy, treason and homicide, which, though criminal, do not necessarily relate to matters of public financial dishonesty. One wonders why the rest of the offences listed in the Crimes Act, such as sexual assault, armed robbery and larceny, were not included. If this were not enough, the definition of corrupt conduct becomes so wide-ranging that it touches upon the ludicrous. For instance, paragraph (v) of 1688 COUNCIL 8 June, 1988 subclause (2) of clause 8 describes another form of corrupt conduct as "treason or other offences against the Sovereign". The Imperial Acts Application Act 1969 largely ensures that this offence remains current in New South Wales. Lord Halsbury's Laws of England lists numerous offences under this provision including acts which: . . . violate the King's wife or the Sovereign's eldest daughter, unmarried, or the wife of the Sovereign's son and heir. Really, is this provision needed in such an Act? The question of allegiance embraced in this subclause is drawn so broadly that celebrations by Irish republican public servants on St Patricks Day could be investigated by the corruption commission. It is too absurdly easy to drag a citizen before the commission under this clause of the bill. For example, unauthorized public policy statements by public servants are a breach of discipline in this regard. All honourable members will recall the ill-fated saga of Sergeant Arantz. More recently, the Minister for Environment intervened in a case where the Director of the National Parks and Wildlife Service exercised his rights under the Public Service Act to prevent an officer of his from delivering a controversial paper at a conference. By application of clause 8 of the bill, the Minister, who is also a public official, is caught directly interfering in the director's impartial exercise of his duties as bestowed on him by the Public Service Act. In this case the Minister could be deemed guilty of corrupt conduct under part 3 of the bill. Of course, that is not the only time he would have offended. Honourable members should remember the bill is retrospective. Remember when the Minister sacked the head of the Zoological Parks Board, Dr Kelly? The Premier subsequently decided Dr Kelly's actions were proper and reinstated him. This situation meets the requirements of clause 9, as it involves the dismissal of a public official. If the Premier was correct and Dr Kelly's action was both an honest and impartial exercise of his functions, then the Minister could again be deemed guilty of corrupt conduct. However, if the Minister was right and Dr Kelly's conduct was improper, the Premier could be guilty of corrupt conduct under this proposed Act. Subclause (2) of clause 9 contains another dangerous legal precedent for our democratic country. It has long been an established principle of our criminal law that criminal sanctions should not be imposed retrospectively. Yet subclause (2) states: It does not matter that proceed~ngsor actlon for such an offence can no longer be brought or cont~nued,or that actlon for such d~sm~ssal,d~spens~ng or other termlnatlon can no longer be taken. The British system of justice has always bridled at changing the rules after the game has started. This clause seeks to override the statute of limitations in respect of offences. At the root of this principle is the maxim that, "an Act does not make a man guilty of a crime unless his mind be also guilty". Subclause (2) retrospectively declares acts to be corrupt conduct, even if the person concerned, at the time, understood it not to be so. In the past, the Liberal Party, and in particular the current Attorney General, have declared their total opposition to all forms of legal retrospectivity on the basis they were anathema to Liberal Party philosophy. I fear that a great many citizens will be found guilty of corrupt conduct although they have committed no crime or there is no evidence available to the Director of Public Prosecutions to lay charges against them. Thus, we will be in the invidious position where a growing band of our prominent citizens could be publicly labelled as corrupt. Their reputations could be ruined but they will have no access to the courts to clear their names. 8 June, 1988 COUNCIL 1689

Even more scandalous is the situation where, having been declared corrupt, these prominent citizens continue to hold their high office, causing the public to hold our system of public administration in contempt. Surely, honourable members will view this as an intolerable situation which is inevitable while the definition of corrupt conduct in part 3 of the bill brings in merely disciplinary matters and questions for value judgment such as partiality and where proceedings may not be able to be commenced. Those Government members who would suggest such a scenario is fanciful need only to look to the recent experience of Mr Kerry Packer. Unfortunately, the Government under this Act will deny such people their day in court. Clause 18 prevents the courts from taking any effective action against the corruption commission by way of prerogative writ. That is very dangerous because it has long been a tenet of Australian law that when a decision is made that may reflect adversely on a person's reputation, then the rules of natural justice are available to give him or her relief. Sir George Jessell, Master of the Rolls in Fisher v. Keane, 1878, said that a committee should not: . . . blast a man's reputation forever-perhaps to ruin his prospects for life, without giving him an opportunity of either defending or palliating his conduct. Clause 18 effectively endangers this long-held principle, because no proceedings may emanate following an adverse finding. More recently, in the case of Heatley v. Tasmanian Racing and Gaming Commission, the High Court enthusiastically reaffirmed centuries of British law on the subject. Committees should not have the right to destroy a person's reputation forever and ruin their prospects for life without allowing them access to the courts to clear their names. No citizen should be declared corrupt in this country without due process of law and that means a proper preliminary hearing and trial by jury. There is only one sensible course for the Government to take and that is to withdraw part 3 and redraft it in clear and simple language. It should limit the definition to the conduct described in clause 9 (1) (a), to truly criminal behaviour, and it should withdraw subclause (2) entirely. Disciplinary matters are dealt with adequately in numerous Acts. I wish to turn to clauses 11 1 to 113, which are framed in a way to prevent the exposure of wrong-doing by the commission, particularly the disclosure of embarrassing or illegally obtained information. Who, one might ask, is guarding the guardians? Certainly not the Ombudsman, who is excluded by clause 1 18. This is a very serious deficiency as was highlighted in the recent Grassby case, to which the Leader of the Opposition has already referred. Bodies such as the National Crime Authority and the proposed Independent Commission Against Corruption can ill afford to expose themselves to very proper criticisms such as those made by the magistrate hearing the committal against Mr A1 Grassby only a few days ago. In July 1987 Mr Grassby's house was raided. He was arrested and humiliatingly locked up and charged with accepting bribes from Mr Trimbole. Later he was to lose his employment. The day after Mr Grassby's arrest the Sydney Morning Herald reported that the former Leader of the Opposition, Mr Greiner, claimed that the National Crime Authority's actions were taken as a direct result of charges that he had laid against Mr Grassby in the Parliament. Mr Williams, S.M., attacked the National Crime Authority and the federal police for having placed themselves above the law in their failure to disclose certain evidence. He found that the NCA had edited a transcript of conversations between a police officer and a key witness with the pseudonym of Mr Smith in a way that was designed to protect the NCA and its staff rather than provide the court with the fullest material with which to produce its 1690 COUNCIL 8 June, I988 judgment. Mr Williams stated that if the taped interviews between Detective Inspector Provost and Mr Smith had not been reluctantly produced under subpoena, then in all probability these defendants would have been committed for trial and, in all probability, convicted. Specifically clauses 1 1 1 to 1 13 provide that documents and other evidence obtained in the course of Independent Commission Against Corruption investigations should be withheld from a person charged as a result of those inquiries. The most offensive powers are contained in clause 113, which prevents the courts from examining relevant evidence before determining that the disclosure of such evidence is, and I emphasize is, in the interests of justice. How can a court make such a definitive determination without having first examined the evidence? The clause is a dangerous charade, which at first blush appears to provide a discretion in the courts. But in reality the clause requires the court to make its determinations in the dark. I do not propose to canvass at length the many clauses that offend against the rules of natural justice and deny basic civil liberties., However, a number of those clauses are so profound that they demand honourable members' attention. I commence by turning to the treatment meted out to three groups of citizens. I refer to the judiciary, the police and the media. Judges are caught by the definition of public official. The definition of corrupt conduct specifically mentions the partial exercise of official functions. Judges are constantly assailed with allegations of partiality by disgruntled litigants. They are particularly vulnerable to the definition of corrupt conduct in part 3 of the bill. When the Judicial Officers Bill was before this Parliament many members of the judiciary held the view that it was an attack on their independence. There can be no doubt that this bill is a demolition of judicial independence. The Independent Commission Against Corruption is empowered to investigate members of the judiciary and also to enter their chambers, seize their papers, tap their telephones, install listening devices in their courts and homes; and force them before the commission to answer questions. The Chief Justice said of the much milder Judicial Officers Bill to the former Attorney: In the structuring of a judicial commission I would see it as essential that any authority to inquire into the conduct of individual judges or magistrates should be contined to a bench comprising only members of the judiciary. To go beyond this would be to expose the judiciary to an unacceptable inroad on the basic principle of judicial independence. No wonder the concerns of our judiciary are starting to spill over into the public arena as the judiciary-like most of us-read the actual fine print of this bill and not the distortions of the Government. Perhaps the class of public officials that has the most cause to object to this bill are police. The overwhelming majority of corruption allegations will be levelled at them. At the moment, such allegations are dealt with by the internal investigation section, the Ombudsman's office and the police tribunal-a formidable array of investigators. The progress of the Labor Government's campaign to clean up the police force has been largely successful. The appointment of Mr Avery and the establishment of a range of institutions charged with the task of exposing corrupt police has, as any fair-minded person would agree, dramatically reduced the level of complaints against police that were so prevalent in the 1970s and early 1980s. However, clause 1 1 of this bill will force the commissioner to report all matters before the internal affairs section, the Ombudsman, and the Police Tribunal to the corruption commission, as well as any other matter that comes to his attention which may fall within clause 8. Police could find themselves in 8 June, 1988 COUNCIL 169 1 the extraordinary situation of being simultaneously investigated by no less than four different bodies. They could also be in double jeopardy if the corruption commission chooses to conduct hearings under clause 18 while a police officer is also being tried by a court or is being dealt with by the Police Tribunal.

It is, I believe, most improper that the commission can conduct a hearing while simultaneously a public official has other related legal proceedings before the courts or other bodies. How could anyone get a fair trial under such circumstances? It is not enough for the Government to attack the independence of the judiciary and harass the police force; they have also singled out for special treatment journalists. Paragraphs (a) and (d) of clause 8 (1) provide the commission with powers to intimidate journalists' sources. This can only lead to the gaoling of journalists whose adherence to ethics constrain them from divulging their sources. Let us take, for example, an article by Dennis Shanahan and another journalist in the Sydney Morning Herald, on 17th June, 1987. This article said inter alia: Last night Mr Carr was in Paris and was unavailable for comment. Mrs Thomsom refused to elaborate but confirmed the existence of the file notes obtained by the Herald and Mr Fitzgeraid said he believed someone was trying to smear him . . . On May 27 this year. in a ministerial memorandum, Mr Carr satd that after discussions with the chairman of the SCRA, Mr Tony Bradford, a former ALP City Council alderman, it had been decided a new deputy director of SCRA be appotnted. The revelation of "file notes" and a "ministerial memorandum" in these paragraphs is particularly important. This was a scoop for Mr Shanahan but constituted a clear breach of clauses 8 and 9 of this bill-that is, it represents misuse of information by a publlc official. This'source had to breach the discipline provision of the Public Service Act in glving Mr Shanahan, who is now the Attorney's press secretary, .the story. Further, there is no doubt it adversely affected the career of a senior publlc official. Under paragraph (a) of clause 8 (1) not only would Mr Shanahan be guilty of corrupt conduct, he would be obliged to name his source or face up to one year's goal if he refused. I do not believe Mr Shanahan acted corruptly in this instance. I make the point, however, that this means that every time a journalist obtains a story based on information leaked by a public official, including a member of Parliament, she or he could be subject to search warrants or telephone taps, listening devices and search seizure, as well as being dragged before the commission and compelled to divulge the source. This is a profound attack on the freedom of the press. Mr K. R. Handley, Q.C., President of the New South Wales Bar Association and prominent member of the Anglican Synod, in his letter to the Attorney General of 2nd June, said in relation to paragraph (d) of clause 8 (1): This provision, and the wide powers of the Commission also represent a threat to the traditional freedom of the press in publishing information relating to the affairs of Government. We would therefore strongly recommend that clause 8 (I) (d) be amended to limit it to the misuse of information in return for bribes or personal profit or for other corrupt purposes in the ordinary sense of that word. Mr Chris Warren, the federal secretary of the Australian Journalists Association, said of these provisions: All journal~stswelcome the opportuntty for a publ~catrtng of tssucs of public concern that have artsen rn recent years. 1692 COUNCIL 8 June, 1988

Most of these issues first became public because of the research and courage of journalists who made public information governments may have wished to have been kept secret. If the Government's proposed commission had been in place then, those journalists would have faced having their phones tapped, their contacts interrogated and their everyday actions closely scrutinised. They would have faced jail for publishing the information and for refusing to place their sources at risk by exposing them. It would be remiss of me to debate this bill without making a few pertinent remarks concerning the question of the commission's accountability under part 7. The Government makes much of the independence of the commission, stating that it will be accountable only to Parliament. If one examines the oversighting powers of the parliamentary committee, it becomes abundantly obvious the commission will be a virtual law unto itself. Frank Costigan, Q.C., and Frank Galbally, Q.C., have severely criticized the failure of the federal Government to make the National Crime Authority properly accountable to the Parliament. Both Costigan and Galbally have argued that such a commission, if it is to be truly accountable, must be subjected to a set of strict guidelines governing its activities. The joint parliamentary committee must have the duty to establish such controls. The committee should be given powers to regulate the commission's practices with respect to listening devices, telephone taps, informers, search warrants, indemnities, and the protection and maintenance of witnesses. To do this, the committee must be properly resourced and have access to the commission's staff, otherwise it will be impossible to assess its performance. If the chairman of the commission and his deputy are to be seen to be truly independent, then the committee should be given the role of assisting in their selection. This should be done in the same way as the appointment of Supreme Court judges, ambassadors and other officials in the United States of America, that is, by public hearings where the candidates' bona fides and integrity can be publicly assessed before their appointment. The legal profession has been quite justifiably incensed by the contempt powers of the commission contained in part 10 of the bill. This part treats the commission as if it were a court. It is to be no more a court than the New South Wales Police Force or the Corporate Affairs Commission. It is to be an investigating body. Clause 98 (e) and (i) seek to create the new crime of criticism of the commission not limited to its hearing functions. Citizens can criticize judges and their decisions and even the Governor, and not be gaoled. They will, however, not be allowed even to tell the truth about this commission. As the Council for Civil Liberties points out, this clause is modelled on the South African Police Act which prohibits criticism of police under penalty of gaol. This is the way the administration of justice in New South Wales is headed. The extraordinary search warrants provisions, the denial of legal professional privilege, the absolute secrecy clauses, the ouster of the Ombudsman's jurisdictions, the failure to provide for an absolute right of legal representation, are but some of the denials of our basic freedoms that will be dealt with at length by other speakers. All in all, I think it fair to say that there has never been a more potentially dangerous bill presented to this Parliament. It is not enough to fall back on the good faith and judgment of the commissioner. The A~rstralianin its editorial of 29th February said: Thcrc is the danger that an independent investigative body could become irresponsible ad. if unrestrained. could not only improperly and unjustifiably damage the 8 June, 1988 COUNCIL 1693

reputation of individuals, as has been the case with at least one recent royal commission, but could also usurp some of the authority of Parliament as the constitutional guardian of legislative probity . . . The elimination of corruption might be poor compensation for the unjustified destruction of personal reputations or irrational or partisan interference in the proper processes of government by an over-zealous or egomaniacal commissioner. . . The old question as to who guards the guardians also needs to be dealt with. What is to be done if it is found that the commissioner himself is corrupt or demented?. . . They are not my words but those written in an editorial in the Australian. Indeed, who will guard the proliferation of guardians that can undermine the civil liberties of our society? As a House of review, it is our duty to see that all its provisions are properly scrutinized. The only way to do that effectively is to enact appropriate amendments. Then we will have a commission supported by all, especially honourable members on this side of the House. Finally, Mr Deputy-President, I seek your indulgence and that of honourable members for a few minutes longer in order that I may record my appreciation to some people who deserve specific mention. To my mother, who brought up five children single-handedly and who endured the uncertainty and worry of a parent of a student activist during the hideous Vietnam war era, I offer my congratulations. To my wife Larisa and family, who have managed to survive late nights and weekends while I was consumed with matters of government and who have supported me over the years; to Frank Walker, who for years ably fought all the just struggles within the party and government; to George Campbell, the late Jim Roulston, George Georges, Senator Arthur Gietzelt, the Hon. Gerry Hand and John McCarthy, who have always fought for a just and fair society and encouraged me to pursue such; to Jack Ferguson, who brought me to Sydney and desired that I remain when I was tempted to leave; and, finally, to a large number of people who have been colleagues and friends-the Hon. Delcia Kite, the Hon. Jack Hallam, Annette McCarthy, the Hon. Bryan Vaughan, the Hon. Ann Symonds, Kristine Niell, Greg Jones, Steve Massellos, Brian Dale, Bob Debus and Bruce Hawker4 thank you, one and all. I look forward to working with all members of the Chamber, especially the class of '88. The Hon. JUDITH WALKER [12.26]: Before I address the bill, I offer my congratulations to the Hon. I. M. Macdonald on a well-researched, well- thought-out, beautifully delivered maiden speech. Undoubtedly many honourable members will take part in this debate after I have concluded my contribution, so I shall not occupy the time of the House in detailing the objections of the Council for Civil Liberties. However, I remind honourable members that this morning in my speech on the Essential Services Bill I pointed out to the Government that it was in danger of abandoning the Westminster system and that its members really should read Churchill's speech in the House of Commons in November 1947 in which he clearly said that if government Allows itself to make decisions with just the Executive and not the Parliament in mind. it will destroy the checks and balances upon which democracy and the Westminster system are based. In the measure before the House the Government again abandons the Westminster system by saying, on the one hand, that the Government will appoint the commissioner to head the Independent Commission Against Corruption and, on the other hand, that his removal from that position will require the approval of both Houses of Parliament. Why does the Government not provide in this measure for both Houses of Parliament to have the ability not only to dismiss but also obviously to select the commissioner? I suggest that the Government might well see fit to look into that matter. 1694 COUNCIL 8 June, 1988

In terms of natural justice, the legislation before the House is appalling. It does not allow for natural justice in any sense or form. It seems to me that in this country there are forces at work that would deny natural justice to a whole range of people. Perhaps honourable members will recall that when the Age tapes were published an article appeared in one of the newspapers which pointed to a person reputed to be Kerry Packer. The article called him-not Godsell- The Hon. E. P. Pickering: Goanna. The Hon. JUDITH WALKER: I thank the Leader of the Government; it was Goanna. Mr Packer was not Goanna; but honourable members should consider the attempts that he had to make to clear his name. He is a little more fortunate than those people who have been slighted in the Fitzgerald commission in Queensland. The Hon. E. P. Pickering: I thought he admitted publicly that he was in fact Goanna. The honourable member will find that he did. The Hon. JUDITH WALKER: Did he? The Hon. E. P. Pickering: Yes. The Hon. JUDITH WALKER: But he certainly was not guilty of what was claimed. The Hon. E. P. Pickering: That is a statement the honourable member might make, but she cannot say that he was not Goanna. The Hon. JUDITH WALKER: Kerry Packer certainly was not guilty, as the Age tapes showed. He had to go to considerable lengths to clear his name. The Leader of the Government cannot deny that. But those appearing before the Fitzgerald inquiry in Queensland are not so lucky. I have no torch to carry for the Hon. Russ Hinze, but I feel he has been badly treated in the proceedings before the Fitzgerald inquiry. And I do not see how the proposed Independent Commission Against Corruption in New South Wales will act differently. Is it really intended that the proposed commission is to be independent, yes or no? On this aspect of independence of commissions against corruption the Chief Constable of Gwent, Mr J. E. Over, wrote: In July. 1978. 1 started a two year secondment to the Royal Hong Kong Police and. as part of my duties. was responsible to the Commissioner for the investigation of all complaints against the Police. excluding those involving allegations of corruption. In order to put the task in perspective. I should point out that the Force. including its auxiliary clement. has an cstablishmcnl of 26.000 otficers. Much has been said recently about the vexed question of the introduction of a further "indcpendcnt" element into our systcm of investigating complaints. I believe it to be worthwhile examining systems which currently operate in Hong Kong where there is an indcpendcnt commission for the investigation of corruption working alongside the normal "Police Complaints" procedures. Clearly, the police in New South Wales feel that the right of investigation should not be removed from them. To everyone who cares to listen, they are saying that New South Wales already has an investigative body within the New South Wales Police Force, and that that should be beefed up, but they do not believe that the proposed independent commission should have wide-ranging investigative powers. The Chief Constable of Gwent, who wrote the article to which I have referred, was seconded to the Independent Commission Against Corruption in Hong Kong, and later, in the same article, made the following interesting observations: 8 June, 1988 COUNCIL 1695

Corruption is a crime and the investigation of crime is the task of officers trained in investigation work and the investigation of crime is not within the province of lawyers and others. It is interesting to note that the Commission of Inquiry's Report says that this is a powerful argument and that good criminal investigators are not produced in a day but take years of experience "as every Judge, magistrate and police officer well knows . . . There is no source of trained investigators in Hong Kong outside the Royal Hong Kong Police Force". It is to be hoped that the Government will not tell us that a trained investigator is someone of the likes of Bob Bottom, who was reported in the Daily Telegraph this morning as saying that if this House holds up this legislation it will be some 12 months down the track before an investigative vehicle could start operating as an independent commission. Bob Bottom suggests that if this be the case, and if there is this delay, many police and many criminals will be grateful. I am quite amazed to hear that suggestion. If Bob Bottom, or Gary Sturgess, or any other person working on the setting up of the independent commission, holds information concerning crimes indictable under relevant laws in this State, why are these people not held guilty of misprision of a felony? We are told that there are such terrible matters waiting in the wings for the independent commission to deal with, but no one has raised the issue about those who withhold information concerning indictable crime. That bothers me. I have been advised that there is no file kept on me, and for that I am greatly relieved- The Hon. E. P. Pickering: Who advised the honourable member about that? The Hon. JUDITH WALKER: I cannot tell you but I suppose the person who kindly did that felt I should not be left believing that a file was kept. I have nothing to fear from this or any other government. As an Australian, one should not be the subject of a file kept by somebody without being told. No one should keep files on other people in this country. What sort of country would we find ourselves living in if we could not pick up a telephone and have a conversation; if one cannot make a light-hearted comment? The Leader of the Opposition likened that to events that happened in Europe. However, I would suggest that Hitler would have been too smart to have done that because he would have seen the ramifications behind the proposed Independent Commission Against Corruption. He would not have touched it with a barge pole. But the Spanish Inquisition would have liked it. The Spanish Inquisition was madly keen on this sort of thing, and the European inquisitions too. The Roman Catholic Inquisition, particularly the Spanish Inquisition, got so bad that Pope Sixtus IV had to interfere. He had set it up but it went mad. The Spanish Crown really liked it because the Spanish Crown then had in its possession a weapon too precious to give up. The efforts of the Pope to limit the powers of the Inquisition were without avail. In 1483 the Pope was induced to authorize the naming by the Spanish Government of a grand inquisitor for Castile and, during the same year Aragon, Valencia, and Catalonia were placed under the power of the Inquisition. The first grand inquisitor was the Dominician, Tomas de Torquemada. Who will be the first grand inquisitor in New South Wales? The Hon. E. P. Pickering: What has this to do with the legislation before us? The Hon. JUDITH WALKER: The Leader of the Government knows well that the powers to be given by this legislation are as bad as anything that brought about the Spanish Inquisition. The Spanish Inquisition was suppressed in 1820 by Joseph Bonaparte, but rose again in 1823. Nevertheless, he had his 1696 COUNCIL 8 June, 1988 way and finally suppressed it in 1834. One wonders who the adviser to the Premier is. I suspect there is a dangerous eminence behind the Premier. It is all very well to hold the view that there is a moral obligation on the Government to provide a corruption-free society, but the police force is empowered to make sure that New South Wales is such a place. The Leader of the Government in the House has a great deal of regard for the New South Wales Police Force and, in particular, for the commissioner of that force. The Hon. E. P. Pickering: I hope you do too. The Hon. JUDITH WALKER: If you were to read some of my speeches, you would know that I do. It is clear that the Commissioner of Police is a man of great integrity. Through his ability to reach down through the ranks of those he controls in the police force he is able to impart that same integrity and moral outlook to them as they go about their work. The Hon. E. P. Pickering: You trust him so little that you will not even let him deal with minor complaints against members of the police force. That is how much you trust him. The Hon. JUDITH WALKER: With all due respect, Mr Deputy- President, I was smacked over the wrist this morning for referring to matters outside the leave of the bill, and now the Leader of the Government is doing much the same thing. The Hon. E. P. Pickering: There is no point of order in that. The Hon. JUDITH WALKER: I was not taking a point of order. Who is the dangerous eminence who sits behind the Government in the formation of this bill? Without doubt, the Government has a mandate to bring in an independent commission of inquiry. The Hon. E. P. Pickering: You admit that? The Hon. JUDITH WALKER: Of course it does. There would be no point in the Opposition saying there is not a mandate, but what seriously affects us all is the nature of the legislation. It would be possible to have an independent commission on crime without attaching to it the dangerous precedents inherent in this measure. One wonders what type of moralistic person is behind the legislation. Going back through history one looks for similar dangerous eminences. Take the example of Richelieu, who was much admired for his dictatorial successes but too little respected for the manipulative skills with which he handled the personnel of the ramshackle government machine. There was a network of councillors, officials, and persons described as attendants who were sent to the provinces on special missions, and governmental pamphleteers who were Richelieu's clients. These included powerful men. Indeed, there were times when the King was frightened of Richelieu, so that he removed him from power for a considerable period but Richelieu regained his eminence. I am concerned about what this legislation proposes, and I am sure every reasonable citizen of this State is equally concerned. Those citizens are not out in the streets, banging at the doors of Parliament House to show their concern, but nevertheless they are deeply concerned about the nature of this measure and about the lack of natural justice. If the denial of justice inherent in the measure is perpetrated by its enactment we shall face a terrible lifestyle, and our way of life, which finds expression in the words of "Advance Australia Fair" and the national identity we share when we sing "Waltzing Matilda", will be ruined for ever. Sir Keith Hancock said: 8 June. 1988 COUNCIL 1697

The English air is thick with juristic and ethical discussion. What follows from a breach of the Convenant? Do sanctions mean war, or are they police action? Is the use of force morally justifiable? When is it justifiable? These questions rend the leadership of the Labour Party. Archbishops pronounce upon them. Canons give answer. Public meetings support one side or another, and sometimes both sides at once. An Italian would conclude that England was mad. He would be wrong. England is merely mediaeval. This is what will happen to us if we continue with the type of nonsense embodied in this legislation. Why is it not possible for this Government to retire gracefully from this legislation and to bring to the House legislation that is fair to all people, particularly those who will be brought before the commission of inquiry? I shall read what Mark Twain said as it is something we should all remember. By and by there was a result; and I think it may be called the finest thing in Australasian history. It was a revolution-small in size, but great politically; it was a strike for liberty, a struggle for a principle, a stand against injustice and oppression. It was the Barons and John over again; it was Hampden and Ship-Money; it was Concord and Lexington; small beginnings, all of them, but all of them great in political results, all of them epoch-making. It is another instance of a victory won by a lost battle. It adds an honourable page to h~story;the people know it and are proud of it. They keep green the memory of the men who fell at Eureka Stockade, and Peter Lalor has his monument. I sincerely hope this House looks seriously at the provisions contained in this bill and does not push Australia to a Eureka Stockade situation again. The Hon. M. R. EGAN [12.43]: There is no doubt that the Government has a mandate to establish the Independent Commission Against Corruption. But it has no mandate to set up a Star Chamber. It has no mandate to deprive the citizens of this State of basic civil liberties, such as the right to natural justice. It has no right to invade the confidentiality of proper solicitor-client relationships. It has no right to invade the privacy or the confidentiality of the confessional. It has no right to muzzle the media. It has no right to prevent adequate parliamentary scrutiny by the proposed joint parliamentary committee, and it has no right to protect the commission from debate and criticism in Parliament by abrogating the ancient privileges of this Parliament and its members. It has no right to set up an Australian gestapo, as the President of the New South Wales Bar Association, Mr Ken Handley, Q.C., has aptly described it. It is worth pointing out that Mr Handley and the New South Wales Bar Association supported the principle of an Independent Commission Against Corruption. Their criticisms are not the criticisms of those who were against the idea from the start. Their criticisms are criticisms of those who have supported the establishment of an Independent Commission Against Corruption. The name of this bill, Independent Commission Against Corruption Bill, is itself a fraud because the proposed commission is in no way independent. It is not subject to any effective outside scrutiny. Dealing first with the question of its independence, let me make a number of things perfectly clear. First, there is only one commissioner, not three, as I believe we have with the State Drug Crime Commission. The National Crime Authority also has three commissioners. With this bill only one commissioner is appointed by the Executive Government. It seems to me that it is very much easier to get one person to do the Government's bidding than it is, say, to get three people or five people to do the Government's bidding. As I have pointed out, the commissioner is appointed by the Executive Government. One might say he has a certain lo7 1698 COUNCIL 8 June, 1988 security of tenure. He is appointed for five years. However, if one refers to schedule 1, one finds that though the commissioner is appointed for five years, the Executive Government has the right at any time to remove him from office. Clause 2 (2) of schedule 1 states that the Governor may at any time remove a person from office to which the person was appointed under the clause. In other words, the so-called independent commissioner has no security of tenure whatever. If he does not do the Government's bidding, he can be removed. If he does not cover up for the Government, he can be removed. If he does not harass and hound the Government's opponents, he can be removed, simply by decision of the Executive Government. There is no requirement under the schedule for his removal on the grounds of misbehaviour or unfitness for office. There is no requirement to establish that he has misbehaved in any way or that he is unfit to hold office. He can be removed at the whim of the Executive Government. He is hardly independent. Does the Government seriously maintain that a judicial officer who does not have security of tenure is independent of the Executive Government? Would the Government say that the Chief Justice of New South Wales was independent of the Government, if the Government tomorrow at its whim could remove him? Would the Government say that the Ombudsman was independent of the Executive Government, if the Ombudsman could be removed from his office tomorrow at the whim of the Executive Government? Of course it would not. In the same way, the commissioner oft e ICAC is not independent of the Government because he has no security of enure. He can be removed by the Executive Government at any time it wishes. The same provision applies to the Operations Review Committee. That committee consists of eight people, seven of whom are appointed by the Executive Government. The commissioner is appointed by the Executive Government. The Commissioner of Police is also appointed by the Executive Government. In addition there are four nominees of the Government, plus an assistant commissioner nominated by the commissioner. The four nominees of the Government will not be independent of government. In relation to their security of tenure, schedule 2 to the bill provides that they are appointed for 12 months, so that they will well know that if they do not do what the Government expects of them, they will not be reappointed at the expiration of that 12 months. Just as the commissioner will know, those nominees will be aware that schedule 2 to the bill provides that they too may be removed by the Government from membership of the Operations Review Committee at any time and without cau e. They may be removed simply because the Government is unhappy with he job they are doing; they may be removed by the Government if that Operations Review Committee is attempting to ensure that members of the Government, or friends of the Government, are closely investigated; they may be removed if the Government is satisfied that its appointees to the Operations Review Committee are not doing what they should to ensure that opponents of the Government are being harassed and hounded sufficiently. We must dispense completely with this myth of an independent commission against corruption. The commission will have no independence at all; at all times it will be a creature of the government of the day. I turn now to address the issue of parliamentary scrutiny. The Government has made much of the proposed parliamentary joint committee to oversee the workings of the commission. Clause 64 (I) provides that the functions of the joint parliamentary committee will be to monitor and review 8 June, 1988 COUNCIL 1699 the exercise by the commission of its functions. That sounds a marvellous idea-that the committee be clothed with adequate powers of scrutiny. But clause 64 (2) provides: Nothing in this Part authorises the Joint Committee- (a) to investigate a matter relating to particular conduct: or (b) to reconsider a decision to investigate. not to investigate or to discontinue investigation of a particular complaint: or (c) to reconsider the findings, recommendations, determinations or other decisions of the Commission in relation to a particular invest~gationor complaint. Clause 64 (1) provides that the committee may do almost anything, yet clause 64 (2) provides that the joint parliamentary committee cannot really do anything at all. How could the joint parliamentary committee satisfy itself that the commission is not corrupt, not incompetent, not conducting a witch hunt, or is simply not misguided, if it cannot investigate a matter relating to particular conduct? What powers will the committee have to investigate anything if it is to be excluded, by clause 64 (2), from investigating or examining matters listed in that clause? The establishment of a joint parliamentary committee will be a complete fraud if the committee has no power to do anything. The bill severely shackles debate about and criticism of the commission by parliamentarians, and by parliamentarians in this Parliament. Put simply, the bill will abolish many aspects of parliamentary privilege. Any member of this Parliament who dares to criticize the workings of the commission will run the risk of being in contempt of the commission, under the provisions of clause 98 (e). What the New South Wales Council for Civil Liberties has to say about clause 98 (e) provides an interesting comparison of this clause with section 278 (1) of the South African Police Act 1958, which the council points out was used to arrest Archbishop Hurley for revealing police misconduct in Namibia. The council stated: Clause 98 (e) of lCAC Bill makes it a criminal offence to use words that are false and defamatory to ICAC, the Commissioner of Assistant Commissioner. It is not a defence that the publisher bclievcd that the words were true. The only defence is where the publisher establishes that there was a reasonable excuse, a concept which is not defined. The onus is upon the publisher to establish this defence. The penalty is imprisonment for an unlimited number of years. Who will be game to criticize the workings of this commission when such draconian provisions are in the bill. All the while people who criticize will be in fear of being dealt with for contempt of the commission for making a statement about a commissioner or the commission that is false or defamatory. particularly when the obligation will be upon the person making the statement to establish his or her innocence of the contempt charged. Any member of Parliament who criticizes this commission, even in this Parliament, may be dragged before the commission. If any members doubt that statement, I refer them to clause 37 (2), which is as follows: A witness summoncd to attend or appearing before the Commission at a hearing is not excused from answering any question or producing any document or other thing on the ground that the answer or production may incriminate or tend to incriminate the witncss. or on any other ground of privilege. or on the ground of duty of secrecy or other restriction on dislcosurc. or any other ground. In other words, a member of Parliament summoned to appear before the commission as a result of comments and criticisms the member made in this Parliament may not claim privilege. The Hon. E. P. Pickering: That is right. 1700 COUNCIL 8 June, 198

iest may not refuse to answer questions before the commission because the information provided to the priest was given in a confessional. Clause 37 (2) makes ndantly clear that a priest may be dragged before the commission and co d to divulge information given to him in the confessional. A situation similar to that which pertains in South Africa-where bishops and archbishops are dragged before courts every day of the week-will arise. I referred earlier to Archbishop Hurley. It may be that in a year or two in New South W-ales Archbishop Robinson will be summoned to appear before the Independent Commission Against Corruption, or that Cardinal Clancy, the Archbishop of Sydney, will be dragged before the commission. Neither of those gentlemen will be able to refuse to provide information to the commission on the ground that information was given to them in the confessional-an aspect of the legislation that apparently the Government supports and of which it is proud. Clause 23 will enable an officer of the commission to enter this Parliament-this building-or the office of any member of this Parliament in Parliament House, to inspect and seize any document. Any honourable member who doubts that should read clause 23, which provides: For the purposes of an investigation. the Commissioner or an officer of the Commission authorised in writing by the Commissioner may, at any tirne- (a) cntcr and inspect any premises occupied or used by a public authority or public official in that capacity: and The definition of "public official7' covers a member of the Legislative Council or a member of the Legislative Assembly. [The Depi~ty-PresidentLeft the chair at I. I p.m. The House resumed at 2.30 p.m.] The Hon. M. R. EGAN: I was dealing with the powers that the bill will give the commission's authorized officers to enter the Parliament, the office of any member of Parliament, and inspect or seize any documents in that office. I had said that clause 23 will extend that right of entry to the Parliament as premises occupied by public officials. Under clause 19 (2) it would seem that members of Parliament who criticize the operations of the commission will be liable to have their offices and homes bugged under the Listening Devices Act 1984. I mentioned also that clause 37 of the bill will remove the privilege of a member of Parliament who is called before the commission to give information. That clause also will remove the legal professional privilege of solicitors. That matter was extensively dealt with by my colleague the Leader of the Opposition, the Hon. J. R. Hallam. I had pointed out that under clause 37 anything confided to a priest or minister of religion in the privacy of the confessional is not protected, and that the priest or minister of religion would under this provision be obliged to inform the commission of information gained in the confessional. Clauses 13 and 16 give the commission enormous powers. Under clause 13 the principal functions of the commission include: (a) to investigate any circumstances implying, or any allegations, that corrupt conduct may have occurred. may be occurring or may be about to occur. Under clause 20 (2) the commission may conduct an investigation even though no particular public official or other person has been implicated. Clause 21 provides that the commission may conduct an investigation on its own initiative. It would seem to me that those provisions will enable the commission to commence an 8 June, 1988 COUNCIL 1701 investigation without having any evidence at all; it will merely need an allegation of corrupt conduct. As other honourable members have pointed out, the definition of corrupt conduct is extraordinarily wide. It even covers conduct that is not only a dishonest exercise of an official function but also a partial exercise of an official function. It seems under that clause that conduct which, for example, might be held by the Ombudsman to be wrong conduct can under this measure become corrupt conduct. Though moral turpitude might not be involved in the conduct complained of, if that conduct is a partial exercise of an official function, and if it is such as would enable disciplinary action to be taken against the official, it becomes corrupt conduct under the definition in this bill. That is an incredible power to give to the commission. I revert to clause 13, which deals with the functions of the commission, including to investigate any circumstances implying that corrupt conduct may have occurred. That seems also to be an unbelievable power of the commission. Does that mean, for example, that if the Deputy Leader of the Government is seen going to confession on Saturday, there is an implied wrongful conduct on his part? The Hon. R. B. Rowland S ith: I do not have to confess. The Hon. M. R. EGAN: If the honourable member does not have to confess, he is the only member of this House, perhaps the only person in the world, who is not tarnished with original sin. I doubt that the honourable member comes within that category. The very act of a person's going to confession is conduct that implies wrongdoing. Under this bill, that sort of conduct can lead the commission to commence an investigation. I have already outlined to the House how, under the bill, a priest or minister of religion who hears a confession can be called before the commission and ordered to reveal information given in a confessional. That is a quite frightful situation, but one which is allowed under this bill. Surely, this must be one of the worst pieces of legislation introduced in any Parliament of this nation. I have not spent time dealing with the provisions of the bill that are an unjust imposition on those being investigated by the commission. Some attention has been given to that matter by my colleague the Leader of the Opposition, the Hon. J. R. Hallam. 1 draw the attention of honourable members to a copy of a letter that I am sure all of them would have received from the New South Wales Bar Association. I shall not deal in detail with the matters raised by the association in that letter; I will simply point out some of the issues of concern to the Bar Association. The question of search warrants is dealt with at some length. The Bar Association points out that clause 40 (1) provides that an authorized justice may issue a search warrant, and that clause 40 (2) also enables the commissioner to issue a search warrant-a quite unprecedented power. Similarly, the Bar Association asserts that in its present form the bill does not appear to require a commissioner to act fairly towards persons being investigated by, and witnesses called to give evidence before, the commission. I should be fascinated to hear the inister's explanation for that omission from the bill. Similarly, the bill provi deficient rights for a person who appears before the commission to examine or cross-examine any witness. A person may only with the leave of the commission. It is not an automatic r Association deals at some length with the powers of arrest. It points out that that is an enabling a person to be in custody upon arrest und pursuant to clause 36 o 1702 COUNCIL 8 June, 1988

The Bar Association deals also with clause 11 1 (3) of the bill, which protects from compulsory disclosure to a court documents that have come into existence as a result of the work of the commission and knowledge gained by an officer of the commission in the course of the discharge of his or her duties. Again, that matter was thoroughly dealt with by my colleague the Leader of the Opposition. I draw attention to that criticism to emphasize the importance that the Opposition and others in the community attach to that particular provision of the bill. The Bar Association points out that its submission was compiled by a number of barristers. In his letter the president of the association, Mr Handley, stated: A number of barristers have assisted me in the research which has gone into the preparation of this letter. In view of the limited time available it is possible this letter contains errors. Mr Handley continued: Of even greater lmportancc 1s the poss~b~l~tythat we have overlooked Important matters which would requlre yet further amendments. For the reasons I have given, the bill is objectionable and needs significant amendment before it could possibly be considered as acceptable in a free and democratic society. The Hon. ELISABETH KIRKBY [2.41]: On behalf of the Australian Democrats I support the Independent Commission Against Corruption Bill (No. 2). I emphasize that what we are supporting is the second bill; we had serious concerns about the first bill that was introduced. There is a great danger in the public-and possibly members of the news media-and some honourable members in this Chamber and another place, accepting what they read in the news media as being the position of the Australian Democrats. I refer in particular to the editorial in today's Sydney Morning Herald, which states: Mr Carr's decision to combine with the Democrats to force amendments to the Independent Commission Against Corruption Bill risks being seen as obstructionist. Consultation took place between me and members of the Opposition about some further amendments, but I was never under the impression-nor did I have any discussion at all with Mr Carr about this matter-that we would force through amendments. I was also surprised to read another report in today's Sydner Morning Herald, which reads as follows: Thc Labor leader. Mr Carr. said in Hobart that agreement had been reached with the Democrat Party members to oppose the provisions, making their defeat certain when the House considers the bill this morning. I realize that Mr Carr is attending the Australian Labor Party conference in Hobart and that it is necessary for him to make statements that attract the attention of the news media. However, I wish that he would not couple the Democrats with his play to attract media attention. I am also concerned about the editorial in the Australian of 7th June which stated: Thc best defence against crime and corruption is a competent and honest police force. It is self-evident that everyone believes there should be a competent and honest police force. However. it does not matter what sort of police force we have if we have corrupt public servants and a corrupt judiciary, particularly corrupt magistrates. because police will make no progress in the fight against corruption if charges are dismissed by corrupt magistrates. Certainly we will get nowhere if politicians in this State are corrupt. That is why this bill will not put politicians or judges above the law. 8 June, 1988 COUNCIL 1703

It is interesting to read the editorial in the Australian of 7th June and compare it with the Independent Commission Against Corruption Bill (No. 2). The writer of the editorial has based his opinions on the first bill. Some of his concerns would be perfectly valid if they related solely to that bill. But the Government was amenable to withdrawing the first bill and introducing the bill now before the House-including many amendments suggested by the Australian Democrats and by the Australian Labor Party-thereby displaying good faith and undermining completely the objections still being made about the bill. Last night in this House in debate on other legislation I said that we have a right to discuss bills in fine detail and to move amendments. However, when those amendments have been accepted by the Government of the day, it is beyond reason then to say: "That is not good enough. We want some more amendments. We still want this piece of legislation withdrawn and we still object to it". If we do that we will be behaving in much the same way as certain doctors in this State have behaved towards successive Ministers for Health. They have consulted with the Ministers who have attempted to meet their demands, but at all times the doctors have retreated and made even further demands. This accusation has also been levelled against unions, which are then described as irresponsible. The writer of the editorial in the Australian has got many things completely wrong. Speaking of the Bar Council, he said: It condemns the powers that the Bill would give to the commission to issue search warrants in its favour, a provision without precedent in our legal system. That concern has been addressed in the second bill now before the House. Referring to Mr Handley, recently quoted in debate by the Hon. M. R. Egan, the editorial continued: Mr Handley also draws attention to the power to be given to the commission to override the legal professional privilege involved in the relationship between persons being investigated and their legal advisers, an essential component of the right to a fair trial. Unfortunately, it is this confidentiality-the legal professional privilege between persons being investigated and their legal advisers-that has led in previous years to miscarriages of justice in this State. I wish to draw to the attention of honourable members the concerns raised with me by the Council for Civil Liberties about the first bill introduced by the Government. It is interesting that a document issued by the council sets out clearly the Government's mandate. The document stated: On 26th February. 1988, Mr Greiner announced that his Party would. if elected to govern, establish a "full-time truly independent institution which is capable of investigating allegations of graft in and around government". He (Mr Greiner) outlined the structures and powers of the lCAC as follows: The lCAC will: be answerable directly to Parliament and not to the executive government. similar to the Ombudsman: This was challenged by the Hon. M. R. Egan but I shall shortly attempt to explain that that is exactly what the Government has done. The document continued: be able to initiate investigations on its own behalf, and report publicly (even when Parliament is not sitting), without supervision or direction from the executive government; be empowered to investigate criminality and impropriety and to present evidence to the Director of Public Prosecutions, and make recommendations to the relevant disciplinary bodies, for appropriate action: 1704 COUNCIL 8 June, I988

Therefore no power is vested in the commission to take action unilaterally. Evidence must be presented to the Director of Public Prosecutions. I continue to quote what Mr Greiner said: be able to investigate public officials in all State government departments and instrumentalities, whether Ministers of the Crown, members of Parliament, public servants or police. The Commission's authority shall also encompass the judiciary and employees of local government; have the powers of a royal commission when conducting formal hearings; The powers that this bill will vest in the commission are considerably less than the powers of a Royal commissioner. Mr Greiner continued: be empowered to approach the Supreme Court to seek injunctions and restraining orders freezing the assets of persons involved in systematic corruption; Such matters would be within the domain of the Supreme Court, irrespective of whether that power were included in this bill. Th6 document continued: be empowered to make recommendations directly to the Attorney General for the granting of indemnities, and to make arrangements for the granting of witness protection: except in the rarest of cases, hold its hearings in public; What could be more democratic than that. The document continued: be staffed by hand-picked police officers and legal, accounting and technical experts. The commissioner will be appointed for a set term of not more than seven years. and will hold office during ability and good behaviour- Because of the suggestions raised by the Hon. M. R. Egan, I emphasize the following: -subject to removal only by Parliament. Thc cntrre lCAC will be placed outslde the framework of the Public Serv~ceAct and w~llbc financed from a single head of expend~tureIn the State Budget. These measures were intended to maximise the Commission's independence from political interference. but they would only be effective as long as individuals of unimpeachable reputation were appointed to senior positions in the Commission. Corruption by public officials is notoriously difficult to prove, and only an agency such as the ICAC can obtain the proof required to prosecute corrupt officials and restore public confidence in the integrity of government in New South Wales, Mr Greiner said. If the Government has any mandate, it has above all a mandate to introduce in this State a commission against corruption, to stamp out corruption, and once and for all to end the concern that the public has about corruption through all levels of public service and, regrettably, the judiciary, the police force and other public bodies in New South Wales. I believe that is the Government's overwhelming mandate-far beyond any other that it could claim to have. However, the New South Wales Council for Civil Liberties is concerned that the ICAC will reverse three centuries of development of human rights protections from unreasonable searches; that the ICAC will be placed above the criminal law, that the ICAC will be empowered to interfere in the administration of justice; and that its powers will go well beyond that of Royal commissions. I do not agree that the council has good cause to have those concerns. By amending the original legislation and making so many changes, the Government has substantially met the objections raised by the Council for Civil Liberties. The council may still have some concerns, but its main concerns have been met. In a communication to me dated 26th May the Australian 8 June, 1988 COUNCIL 1705

Council for Civil Liberties raised its concern about surveillance powers. The council explained that: The proposal to give the ICAC power to tap telephones may not succeed because of the secrecy surrounding the organization's operations and the lack of independent oversigh1 of its use of such powers. The council also brought to my attention that section 35 (1) (h) of the federal Telecommunications (Interception) Amendment Act 1987 required that before a State body can be given phone tap powers it must be shown that there will be oversight of the exercise of the power by an agency of the State, independent of the phone tapping by an agency. That matter has not been denied by the Government. Indeed, during the second reading debate on this bill in another place the Attorney General and the Premier made it perfectly clear that they are aware they are bound by the federal Act and will work lawfully within the provisions of that Act if and when it is believed necessary for telephone tapping surveillance powers to be used. The Australian Journalists Association is concerned that the powers of the ICAC will pose a threat to journalists. Christopher Warren of the federal executive of the Australian Journalists Association issued a press release which stated: Journalists who refused to tell the proposed commission the source of their leaks face imprisonment of up to 12 months. This places the bill in direct contradiction with the AJA's code of ethics which requires all journalists to respect the confidentiality of their sources. However, after receiving that release from Mr Warren on behalf of the AJA, I was reliably informed that journalists apparently are forced to reveal their sources to Royal commissions. If they refuse to do so they can be gaoled for contempt of the commission. Mr Warren was concerned also about the proposed commission's unprecedented powers to tap phones and bug offices of journalists suspected of receiving leaks. I do not believe that power exists. Nor do I believe that it was ever intended that the phone tapping power should be used in such a way. As has been made clear, those concerns have been addressed by the Attorney General and the Premier. I hope that will allay the fears of the AJA. A suggestion was made that the ICAC will have unlimited powers to arrest and hold a person on detention without bail. That suggestion has been proved to be false. The ICAC will have power to arrest for two purposes only: first, if a witness fails to answer a subpoena to give evidence at a hearing before the commission-that power of arrest is only for the purpose of that person's being brought before the commission to give evidence and is similar to that of a Royal commissioner; second, if the commissioner considers it appropriate that a person in contempt of the commission be arrested-that is solely for the purpose of that person's being taken immediately before a Supreme Court judge for determination of that question of contempt. Once again, that person will be protected by the full force of the law. The Supreme Court will decide whether that person was wrongfully arrested; and obviously that person could be represented in that court by legal counsel. Because of all these objections it should be pointed out that the commission's power in relation to contempt is far more restricted than the power exercised by commissioners under the New South Wales Royal Commissions Act. The Commissioner for the Independent Commission Against Corruption must refer a determination of contempt to the Supreme Court. The amendments contained in this bill will ensure that the protections provided for in the Search Warrants Act will apply to warrants issued to or by the ICAC. 1706 COUNCIL 8 June, 1988

The protections the Government has seen fit to include in the second version ofthe bill are valuable. They were concerns of the Australian Democrats that I personally discussed with the Attorney General. I was pleased to read in the Hansard report of the Legislative Assembly proceedings that arrived on my desk yesterday that the Attorney General was kind enough to mention my name in his remarks on the Independent Commission Against Corruption Bill (No. 2) and the fact that we had had fruitful and helpful discussions on the measures in the bill that resulted in removing the worst features of the first bill. The Hon. M. R. Egan has said the Commissioner will not be truly independent because subclause (2) of clause 2 of schedule 1 reads, "The Governor may, at any time, remove a person from the office to which the person was appointed under this clause". I believe the honourable member has misread the subclause. Subclause ( 1) of clause 2 reads: 2. (1) The Governor may. from time to time, appoint a person to act in the office of Commissioner or Assistant Commissioner during the illness or absence of the Commissioner or Assistant Commissioner, and the person. while so acting, has all the functions of the Commissioner or Assistant Commissioner and shall be taken to be the Commissioner or Assistant Commissioner. That subclause will apply only in the case of an acting commissioner, and I feel sure that the Minister in his reply will confirm that. The subclause does not relate to the removal from office of the commissioner, who is to be appointed under the terms of the legislation. The reason for and method of his appointment have been clearly laid down in another place in the speeches of both the Premier and the Attorney General. In the Premier's first reading speech on the first bill he said: The Independent Commission Against Corruption will be constituted as a statutory corporation consisting of a single commissioner. The commissioner will have total direction and control of the commission. He or she can be appointed only for a term or terms totalling five years- Which again points out that some of the concerns raised by the Council for Civil Liberties are ill-founded-it is not seven years; it is five years: -and can be removed from office only by the Governor on the address of both Houses of this Parliament. This is one way in which the independence of the commission from the Executive is safeguarded. That is perfectly clear, and there should be no further concern about the matter, because the commissioner can be removed on the address of both Houses of the Parliament in exactly the same way as a Supreme Court judge can be removed. Surely that provision will give the Parliament a very proper oversight of the commissioner if he is ever found to be overriding his powers and acting in either a corrupt or a wrong manner. Parliament, therefore, will be in control, not the Executive. The measure in clause 18 of the original bill was of concern and is part of the reason for the Opposition introducing amendments this afternoon. Originally, clause 18 provided that the commission could continue carrying on its work despite any proceedings that may be before any court, tribunal, warden, coroner, magistrate, justice of the peace or any other person. In another place the Attorney General explained that that provision was modelled on the Queensland commissions of inquiry legislation and was intended to facilitate the functioning of the commission. Concerns were expressed about the possible impact of commission hearings on matters before the courts, and these, of course, were the concerns expressed by the Council for Civil Liberties. On 3rd June the Attorney General in his second reading speech said: Thc Government is thereforc seeking to amend the legislation to provide that where procccdings are taking place in a court or tribunal or other body. the commission should 8 June, 1988 COUNCIL 1707

hold its hearing in private in so far as the hearing relates to or may affect matters before that court, tribunal or other body. Surely that statement by the Attorney General should allay the fears that people may have that proceedings before the commission being conducted at the same time as other court proceedings would prejudice natural justice. The independence of the commission and its responsibility to Parliament have been clearly spelled out, but they need to be spelled out possibly yet again because obviously there is still great confusion-maybe not in the minds of honourable members, but certainly in the minds of the media. In exercising its powers under the legislation the commission will not be subject to the direction and control of the Executive Government. The commissioner will be able to be removed only by the Governor on the address of both Houses of Parliament. The only matters the commission must investigate are those referred to it by Parliament. A parliamentary joint committee to monitor and review the commission's exercise of its functions will be set up. At the request of the Australian Democrats, the membership of that parliamentary joint committee was increased from seven to nine, which will allow honourable members on the crossbenches in another place to be represented on that committee. That is a proper provision, and I am grateful that the Government accepted the suggestion. Reports of the commission's investigations, the results of public hearings and reports on administrative and policy matters will be forwarded directly to the Presiding Officers in both Houses of Parliament. The commission will not be subject to public service legislation, which again will guarantee its independence. With minor exceptions, regulations under the legislation will be made on the recommendation of the commissioner. It seems to me that all those matters have been clearly addressed by the Government. That is why I am particularly angry at another newspaper article, this time today's edition of the Dailj, Telegraph under the headlines "Council Delays Anger Greiner". It reads: State Governmen1 plans to set up a tough new crime commission may have to be shelved for up to 12 months because of a brawl in the New South Wales Upper House. And Premier Nick Greiner warned yesterday he was losing patience with the Legislative Council for continually delaying crucial legislation. I do not know what Mr Greiner has said to the media. I know only what he is reported to have said. However, in this case the Legislative Council has not delayed the Government. Honourable members in this Chamber have had no opportunity to discuss the proposed legislation until this afternoon. How can it possibly be said that the Legislative Council is delaying the legislation? We have been attempting to discuss the matter in a rational way with the Attorney General, who has been totally co-operative. I do not see why, as reported in the same article, Mr Greiner believes it necessary to make statements such as: Unless the Opposition and minor parties are more co-operative in the coming days Mr Crciner will consider drastic action-including the use of a referendum-to get his legislation passed. The Premier has been given no indication that this legislation will be blocked. I place on record that the Australian Democrats have been acting in a most responsible and careful manner. We have been discussing matters in detail with the relevant Ministers. We have not been making inflammatory statements. Apparently the only person making such statements about our behaviour is the Premier. I can see that he may have political reasons for doing so. It may suit him to let the public believe that it is the Australian Democrats, the crossbenchers in the Legislative Council, who are trying to make his life unbearable by constantly delaying crucial legislation. 1708 COUNCIL 8 June, 1988

The Hon. R. B. Rowland Smith: The honourable member could go on debating this for two weeks. The Hon. ELISABETH KIRKBY: True. But we have not done so, nor do we intend to do so. I should like honourable members on both sides of the Chamber and the media to be well aware of that. Reverend the Hon. F. J. NILE [3.11]: I strongly support the Independent Commission Against Corruption Bill (No. 2). The Call to Australia group accepts that this Government has a mandate for this legislation. The community is expecting the legislation. Unlike the Australian Democrats, we are on record as fully supporting it. Certainly, none of the criticisms of the Premier should be directed at our group. The object of the bill is set out quite clearly. It is: . . . to constitute an Independent Commission Against Corruption, and to confer on it wide powers, with special emphasis on- ~nvestigatingcorruption or possible corruption where public officials are involved, ather on a complaint or reference made to it or on its own initiative; and educating public authorities and the community generally on the detrimental effects of publtc corruption and strategies to combat it. There is no doubt that the community wants a war against crime and corruption in the State. The Leader of the House has used the term the State of corruption. That is a perception in the minds of people and that is why this commission is needed. I trust the Minister may be able to put to rest one of my concerns about its operation. There may be no evidence of organized crime figures in the State being directly associated with corrupting public officials though they are engaged in illegal activity-whether it be drugs or prostitution-on an organized basis. In other words, they are the administrators of organized crime and not the persons who sell drugs or carry guns. Honourable members know these people by name, they are well known in our city. It is important that the commission has powers to investigate these people to ensure that charges are brought against them. One could liken the influence of corruption to a spider's web. It would be a tragedy if the commission saw in the spider's web a customs officer, a police officer or a public servant who had been corrupted-and I am not suggesting that is not important-and the focus was on that person and not on the big spiders in the centre who created the web-the organized crime figures in our city, State or nation. If that were the case, we would need another commission against organized crime. In discussions prior to the election a commission against organized crime was the term used. It seems that the powers of the commission that will now be set up may not be wide enough. Some honourable members are critical that the commission will have too much power; I do not accept that. Others have made a big fuss about what the Council for Civil Liberties has said. I have never given the views of the council much credence on these sorts of issues-so that may be put to one side. Parliament needs to ensure that the commission has sufficient powers to do its job. If it does not, additional powers should be added to its authority. Clause 8 of the bill defines corrupt conduct, among other things, as: (a) any conduct of any person (whether or not a public official) that adversely affects. or that could adversely affect. either directly or indirectly, the honest or impartial exercise of official functions by any public official. any group or body of public officials or any public authority: That provision may be the means by which non-public officials can be investigated by the commission. If that is Ihe intention, it seems to be a roundabout way to do it. That should be made quite clear as this bill is debated. 8 June, 1988 COUNCIL 1709

I am not criticizing the bill, but authority should be clearly given to the commissioner who heads the Independent Commission Against Corruption so he can investigate figures who are not public officials and who on the surface may not have any direct association with public officials. What will happen in that situation? There is no doubt that the Government has a mandate to clean up organized crime and corruption in our city. Honourable members have heard me refer to some of the problems the State has faced in the past. Probably the two best examples were during the Askin era and the Wran era. In those days there were similar problems. Dr Alfred McCoy, a respected authority on organized crime and author of the book Drug Trafic, said: During the eleven years from 1965 to 1976 with the Liberal-National Parties in power. New South Wales endured a period of political and police corruption unparalleled in its modern history. A commission against corruption was needed then. The author of the Prince and the Premier said: Put simply. during the Askin years. the 1965-1975 decade of New South Wales it became open slather in the traditional avenues of corruption. Whilst Sir Robert Askin was in power, organized crimc became institutionalized on a large scale in New South Wales for the first time-Sydney became and has remained the crime capital of Australia. During the Wran Government's reign, there was no change in the position. That has been verified by a number of leading citizens, particularly those involved in the judicial and police field, and some who conducted Royal Commissions. For example, in 1983 former Royal commissioner Frank Costigan said: If nothing IS done about the current problem of organized crlme, w~th~nfive years th~scountry w~llbecome a jungle. When Mr Justice Slattery sentenced the people involved in one of the major drug trafficking activities in this city-which involved, regrettably, some citizens in leading positions such as Dr Nicholas Paltos; Ross Karp, a legal practitioner; and Graham Palmer, who was involved in development, he said: The Australian community has come to accept that men of considerable talents and expertise. especially in the professional and business ranks-including solicitors, accountants, executives, bankers. financiers and powerful criminals, all with a network of overseas connections-are probably engaged, through underlings, in the importation of narcotic goods into this country. That is a very good summing up. The former Royal commissioner, Mr Justice Athol Moffitt, who was President of the New South Wales Court of Appeal for almost 10 years, in this book, A Quarter to Midnight, wrote: Organ~zedcrlmc has made tremendous advances In the last 10 years and IS now operating on a large scale across Australla Its advances In the last 10 years have been enormous Mr Justice Moffitt went on to state an observation, which I believe to be true- it certainly provides further evidence of the necessity for this legislation to establish a commission into corruption. Mr Justice Moffitt said: No institution-legislative. executive or judicial-should assumc that some of its members will not be the target of corruption and that some will not succumb. Indeed, organised crime in Australia has reached the stage where it is clear that some people in official, political and judicial office have been corrupted. Mr Justice Moffitt gave examples and said: By early 1985 there had been enough material available to lay charges agalnst judges. a magtstratc and a mtnlster of the Crown for corruptly ~nterfertngw~th the course of justtce or for corruptton othcrwlsc. 1710 COUNCIL 8 June, 1988

He then referred to police officers who had been charged with corruption as well. He said: The most serious corruption of the judiciary or magistracy is of the one who can himself act corruptly in relevant cases and can corruptly control the lists because he can ensure that "important" cases are dealt with by himself or by another whom he knows to be corrupt, lcnicnt or open to persuasion innocently or otherwise. Those comments apply basically to Sydney and New South Wales. Mr Justice Moffitt continued: Australla-I fear the process has already begun-is in deadly danger of the corruption of senior politicians, senior police, senior judges and senior magistrates. Should that occur ours would become a chronically corrupt society where the bribe is the way of life and "justice" can be bought-truly a country of the Third World. One might say the legislation to set up this commission has grown out of his concern. It is not too late. The legislation certainly is needed and has my full support. The bill makes provision for the commission to act independently. The Government has taken into consideration the possibility that the commission could investigate individuals within the Government, and as has been said already, the commission could investigate the Premier. The commission can investigate judges and politicians. If the commission is to do its job correctly, no one should be excluded from investigation. Judges should be included, with the strong proviso that no judge may be removed from office without the consent of both Houses of Parliament. In recent years enough allegations and charges have been laid against judges to make it mandatory for judges to be included in investigations of the commission. I have confidence in the judiciary but in recent years those problems have been brough to our notice. We need to ensure that the commission is allowed to act independently. Mr Justice Moffitt gave a warning about this matter, which I suppose applies to both the coalition parties and the Labor Party. He said: Political parties have regarded the investigation and outcome of these charges to be of political significance as reflecting or benefiting one party or the other, rather than being matters needing to be disposed of in an independent way in the public interest. Findings, whether by courts or inquiries, which are considered adverse to some political party or othcr interest are often met by attacks on the integrity or competence of those who havc delivered them. whether a commissioner. . . or a jury. If the commissioner himself were not truly independent he could be pressured by powerful personalities of this State. Political parties may like to try to rein in such a person. Mr Justice Moffitt gave another warning when appointing a commissioner and said: Polltlcal partlcs on comlng to power seek to enhance thls cxpectar8m by "polltlcal appolntmcnts" to Independent offices They appolnt former party members or people whom thcy judge will be dtsposed to favour the party Interests Sometimes they promote to some othcr ohcc a person appointed by the prcvlous Governme~tso they can make thctr own appointment to the office vacated by hlm The major issue of the independence of the commission and its trustworthiness rests with the person who is appointed. This will not be an easy matter. I can imagine that whoever is appointed as commissioner will in some way be open to criticism by some sections of the community. It is very hard to find someone who is absolutely neutral in political terms. Honourable members know that some judges seem to favour the Labor Party and other judges seem to favour the Liberal Party-I do not mean in their decisions but simply by their approach, their own lifestyle, their origins, and their background, which often do not change. 8 June, 1988 COUNCIL 17 1 1

I urge the Government to take great care when appointing the commissioner. I have wondered whether it would be so difficult to find such a person that the Government would have to choose someone like the Reverend Sir Alan Walker or Dean Lance Shilton. 1 know they are churchmen and people say that churchmen have no expertise in crime and corruption, but to find someone who is totally independent, without bias for this position is not an easy task. The Government does not want someone who is so harmless that he will not carry out his duties with zeal. I emphasize that the commissioner should not only be someone who is honest and who has the relevant skills-that is a basic requirement-but that he should have courage-that is an important qualification-to continue on a pathway in spite of being criticized. He should have the courage of his convictions and his beliefs. Another important qualification is a zeal about his task. We do not want someone appointed to this position who will simply warm the seat. Some people feel that the National Crime Authority has gone into slow gear, whereas under Mr Costigan, Q.C., it was more aggressive. The personality of the person in charge of these organizations can affect their operations. The person appointed as commissioner of the Independent Commission Against Corruption will need to be a person who is courageous on the one hand and someone who is zealous and has a strong desire and commitment to fight and expose corruption. That person will take corruption by the throat, so to speak, shake it and bring it to justice. I urge the Government to bear those matters in mind when it has under consideration the person it will appoint to the position of commissioner and those it will appoint as assistant commissioners. I turn now to such matters as telephone tapping. Those engaged in the war against corruption and organized crime-over the years the expertise, skill and ability of those involved in organized crime have increased-must have the same skills and have available to them the latest technology, including the ability to tap telephones and engage in other means of surveillance in keeping tabs on people who are under investigation, as do those who are involved in organized crime. I know that such persons having those facilities available to them makes some people fear for their civil rights. In fighting organized crime, I do not believe we have any option- The Hon. R. B. Rowland Smith: They would have found A1 Capone, would they not? Reverend the Hon. F. 9. NILE: That is right. We have no option but to establish a commission with such powers. I believe that all honourable members will support the commission and monitor its activities. If the fears of some people about the invasion of privacy or civil rights become a reality, this House is equipped to deal with such matters. I am sure that the Government would accept changes to the commission's powers in due course if that were seen to be necessary. Perhaps the commission will need greater powers as a result of changes in some areas. Let us give the commission a go. Let us get if off the ground and working. Some newspaper reports have suggested that the establishment of the commission will be delayed. I am not one of those who intends to delay its establishment. I am concerned that if the Government were obstructed in establishing these sorts of commissions, it might begin to have second thoughts about the whole matter. Some of us who want to see such a commission established might find that that was no longer a priority of the Government. In other words, some of the projects that the Government has on its agenda need the support of this House to come to fruition, otherwise such projects might be 17 12 COUNCIL 8 June, I988 reconsidered by the Government and the end result might be that the commission is not established. I believe that the bill ought to be allowed to proceed at this stage and that it should be given our full support. I believe also that we need to be careful in deleting from the bill certain sections which give powers to the commissioner. Obviously it is a complex bill, and it would be a tragedy if well-meaning persons sought to remove from the legislation a particular provision which in the long run was vital to the success of the commission. Many of the aspects covered in the legislation are like a jigsaw puzzle of interlocking values and influences; one simply cannot pull pieces out and put other pieces in. In other words, those who have designed the legislation have an overall picture of what they are trying to achieve. So there would be no point in our so emasculating the legislation that the commission could not do its job and consequently became a toothless tiger. We must give the commission, the commissioner and the assistant commissioners our full support in the long-term interests of our State and our nation. I support the bill. The Hon. K. W. REED [3.35]: The Independent Commission Against Corruption Bill (No. 2) clearly is a most important bill. Much has been said about the legislation, and indeed much more will be said about it. I take a little of the time of the House to offer my congratulations to the Hon. I. M. Macdonald on what I thought was a most exemplary performance this morning in presenting his first speech to this House. Quite apart from his method of presentation to the House, I am sure the the competent manner in which he researched his speech made every thinking member of this House-that would exclude the Hon. J. H. Jobling and certainly the Leader of the Government- reflect on just what is before the House. The Opposition does not question that the Government has a mandate to establish the proposed commission. Indeed, the real debate does not surround that question but the content of the legislation. I was most disappointed, therefore, that Reverend the Hon. F. J. Nile, in his concluding remarks on mark 2 of this legislation- The Hon. M. F. Wiiiis: Let us know if the honourable member intends to support it. The Hon. K. W. REED: I shall support the amendments that the Leader of the Opposition will move. I was most disappointed that Reverend the Hon. F. J. Nile in his concluding remarks on mark 2 of this bill commented that he will not be one of the persons who will waste the time of the House. The imputation was that other honourable members will do so. I do not belive that other honourable members who have contributed to the debate have done so in any greater fashion than has Reverend the Hon. F. J. Nile, indeed, the purpose of our being here is for debate. Reverend the Hon. F. J. Nile: I did not mean that. The Hon. K. W. REED: I take it that Reverend the Hon. F. J. Nile was not suggesting that any honourable member was wasting the time of the House or was in any way frustrating the passage of the bill. He commented further that he would be disappointed if well-meaning people-those people who mean well but do not know much-tried to interfere with this wonderful legislation to the point where it became emasculated. He suggested that no one, apart from the Government which has proposed the bill-we now have before us mark 2 of the bill in the course of a week-would have much of an idea of the intention of the legislation. I thought that a rather naive approach for Reverend the Hon. F. J. Nile to take, particularly in light of the fact that all members of this Chamber pursue the truth and would ensure that the Independent Commission Against Corruption was a great sxcess. 8 June, 1988 COUNCIL 1713

It is the speed with which the bill has been presented to the House-as I have already indicated, this is mark 2 of the bill-that is the real cause of concern. As the days go by-not the weeks or the months-it is clear that even the news media is beginning to realize the implications of the legislation. The leading article in this morning's Sydney Morning Herald and yesterday's Australian newspaper, as well as, needless to say, many reports that have been presented to members of this Chamber by the New South Wales Bar Association and representatives of many other notable and reputable organizations, bear out that the legislation has been rushed into the Parliament and that people have not been given an opportunity to digest its contents. The arrogance of the Government concerns me. This Chamber is debating important legislation, and thus far has done so quite properly, but the Government is already huffing and puffing, chastising the Legislative Council for daring to challenge its legislation, saying that Mr Carr cannot control his boys in the upper House. That is the sort of remark made by the Attorney General. Clearly, the Government is trying to bulldoze this measure through this House and the Leader of the Government in this place is apparently attempting to make sure of it. Though here I must pay the Leader of the Government due regard, for he has said that every member of thls Chamber will be given the opportunity to speak fully on the bill, and that he will not do as he did with the debate on the private motion on abortion the other day, when he tried to make members hurry with their speeches. The Leader of the Government would be the first to agree with me that so far in this debate there has not been one suggestion of delay, despite the imputations of some newspaper articles to that effect. All we have had so far is sensible debate on the bill. In picturing what the Premier is trying to achieve by this bill one forms a mental picture of Dr Nick in a dental surgery with a wide mouth and a big tooth extracted from it, with the tooth bearing large roots marked Corruption. His problem lies in the fact that outside his surgery door are many more mouths all containing equally large teeth with corrupted roots. The aspirations behind the measure may be sound-though this is not to talk in detail of the legislation itself-but it cannot be suggested that after it is enacted and when the commission is operating, we shall no longer have corruption in our society. It is, of course, the hope of all in this Chamber and the Parliament that the commission should be effective and one that will not trip over itself or the law in its pursuit of protection for the people and the law. All media articles that have touched on this legislation in one way or another have suggested it has problems. After all, the bill is mark 2. The Government has already had a previous go at introducing this legislation, and more than 20 amendments were made to that piece of legislation. Many more concerns remain to be dealt with. Miss Schurr, of the Council for Civil Liberties, referred in a newspaper article to the power of the Ombudsman and the matter of telephone taps. She said there should be a body to oversee the use of the power for telephone taps. The New South Wales Ombudsman has been named as suitable to oversee that agency; however, the Ombudsman will be subject to ICAC investigation and the independence of his office therefore is compromised. The secrecy provisions of the Independent Commission Against Corruption may also prevent the Ombudsman gaining full access to the commission's records concerning telephone taps. Many other worthwhile points of concern were expressed in the media. One that deserves mention relates to journalists. In the Sun-Herald of 29th May, Mr Christopher Warren of the Australian Journalists Association emphasize that 108 1714 COUNCIL 8 June, 1988 the Independent Commission Against Corruption would threaten journalists with gaol for handling documents leaked to them by public servants. The important point to be made here is that access to public documents in this State is restricted. Nevertheless, as the Council for Civil Liberties specified, one of the ways in which information can come to the fore-and, indeed, Bob Bottom was an accomplished exponent of this method-is when leaked documents reach members of the Opposition. When the present Government was in opposition its members took advantage of that procedure, and did so whenever possible. It is all very well for Nick the Knight in his shining armour, seated on a snow white horse, to gallop forth shouting that he will clean up everything, including leaks. That is admirable for today; but should not this Government be more concerned with what might happen eight years down the track? As an aside, we must realize this Government will not stay that long in office. But, for the purpose of my example, in eight years' time we could find Nick the Knight with his once shining armour dulled a little by time and his snow white horse somewhat less than clean because of its passsage through muddy puddles. And we will find then, as the result of Nick the Knight's brilliant action today in closing loopholes, that the actions of Nick the Knight cannot be exposed. The Hon. E. P. Pickering: That is a strange logic, if anything. The Hon. K. W. REED: I regret that my reference to Nick the Knight might have confused the Leader of the Government but I know that the snow white horse aspect will get to him in due course. If the Leader of the Government checks what I have said he will realize there is logic behind what I am saying. An article appeared in the Daily Telegraph on 15th January which reported comments made by the then Liberal Leader of the Opposition, Nick Greiner. He is reported as having said that the Government will have no influence or control over this body at all. He was quoted also in an article in the Age of 25th May where he stated that the commission would be independent of the Government, but gave no further detail. It was also reported in that article that Mr Greiner said he had 74 matters for the independent commission to investigate. Perhaps the most suitable way to commence my contribution to this debate would be to draw a parallel between this measure and a report relevant to the Department of the Special Minister of State meeting on the National Crimes Commission in the Senate Chamber on Thursday, 28th July, 1983. A paper was prepared for the meeting by Mr Justice firby, Chairman of the Australian Law Reform Commission. The theme of his address was "National Crimes Commission: another ASIO?". 1 shall quote extracts from that paper because, in many ways, it highlights the problems facing members of the Opposition and the alarm voiced by all who have studied the measure. In referring to British justice, Mr Justice Kirby said: Unlike other countries. ours is not a society where officials can stop and search you at random. require identity passes for no cause or otherwise arbitrarily invade your life and property. We tamper with these features of our freedom, at our peril, for when we do do we redefine the relationship between the State and the individual. After having referred in his report to the birth of ASIO, and taking into consideration its mandate, if one can put it that way, Mr Justice Kuby said: Would a Crimes Commission be more effective than AS10 has been? Would it be able to avoid the pitfalls and problems which have dogged AS10 since its establishment and revealed by Mr Justice Hope's earlier inquiry? 8 June, 1988 COUNCIL 17 15

Honourable members might well substitute the ICAC for the reference to the crimes commission. I believe we have had recent examples of the fact that that is not true. Reference has been made in this debate to the National Crime Authority and its dealing with Mr Grassby. Mr Justice Kirby continued: Chief amongst these problems-even for friends of ASIO-has been the ambiguous place in our democratic society of bodies which are not readily accountable to the elected Government and Parliament. In an understandable endeavour to make the body independent (so that it can pursue its targets without the risk of interference by corrupt or unsympathetic politicians) there is a very real danger of creating an institution which is largely unaccountable to the democratic elements of our government; unable, because of the secrecy of its operations, always to justify its work and its position publicly; prone, by the nature of its mission, to take on an evangelistic, messianic role; and, able, by the sharing cf selected secrets, to win over even initially sceptical or unsympathetic administrators or politicians, admitted into its secret world and to its assessments and points of view. I should like honourable members to pay particular attention to the following quotation of Mr Justice Kirby relating to organized crime: Recent public debates about the Crimes Commission have shown how commentators envisage that organised crime means their pet "bogey man". It may be drug syndicates- Reverend the Hon. F. J. Nile might do well to listen to this. Mr Justice Kirby continued: -distributors of porno video tapes or police use of "verbals". Unless there is an effective political accountability, the risks of such a Commission, however modelled, seem unacceptably great. Whilst there are dangers that accountability to political representatives can sometimes be used to muzzle the effectiveness of a body such as a Crimes Commission, there are far greater dangers in allowing such a body to range widely over the landscape. This is especially so if it has unusual powers within imprecisely defined functions, able to act, unrestrained, at the whim of those who constituted the body and who are not effectively accountable in a democratic way. Mr Justice Kirby concluded: We may feel dissatisfied with and frustrated by aspects of our criminal justice system. Certainly. in a Federation there are special problems and clearly we should be addressmg those. Creating a new institution, even though out of line with our legal traditions, also has obvious political advantages. It is seen to be doing something. No one would deny that the Premier would like to be seen to be doing something. Mr Justice Kirby continued: And it is so much easier than tackling the hard questions mentioned at the end of the Prime Minister's speech: reforming the unreformed laws that lead organised crime to flourish; improving the quality of our police services; addressing specific needs of co- operation between agencies within Australia: and improving specific aspects of our criminal laws and procedures. 1 have an uneasy feeling that. with a Crimes Commission- He might well have said the ICAC: -we would get the worst of both worlds. Whichever model we choose of the two proferred, we stand the risk of creating either the cosmetics of an ineffective agency or a too-powerful institution unaccountable, in practice. to the courts or to our democratic institutions. The hard business of real law reform is to tackle the problems of our criminal justice system. is not. I believe, to create new institutions, the need for which is doubtful and the real alternatives to which have not been tried. Those are important comments by an eminent person that I believe this Chamber, in the light of the development of the National Crime Authority, cannot afford to ignore. I ask honourble members to keep in mind the aspect 17 16 COUNCIL 8 June, 1988 of political accountability, for it is my intention to expand on that topic in the debate. The Hon. R. B. Rowland Smith: Has the honourable member come to the main part of his speech yet? The Hon. K. W. REED: Honourable members have heard the introduction, the preamble. The Hon. Dr Marlene Goldsmith: Now we get the amble. The Hon. K. W. REED: No, that is for Nick the Knight and his white horse. The main thrust of my comments will revolve round the question of accountability. I have made comments about that paper presented by Mr Justice Kirby and that is further reinforced by comments by a number of other speakers relating to the question of accountability. In relation to the Independent Commission Against Corruption Bill, Mr Michael Bersten, criminologist, lawyer and part-time lecturer in law at the University of New South Wales said that the joint parliamentary committee which will overview the commission, as outlined in part 7 of the bill, should have a more active role. He said: It should have the power to be able to investigate and evaluate ICAC, set broad policies and priorities of the ICAC. issue guidelines to ICAC with respect to its routine practices such as the use of informers. witness indemnities, phone tapping, search warrants, interrogation and the conduct of public hearings. These powers do not amount to interference with the independence of the ICAC as they do not involve Parliament in particular lCAC operations. Instead they provide ICAC with direction for which the Parliament is responsible to the voters. Mr Bersten made the following further comments relating to the power of the ICAC: Is the model of a statutory body monitored by a Parliamentary Committee appropriate. as is the case with the NCA? Given the difficult relationship between the NCA and the Joint Committee on the NCA which monitors it, would not the goal accountability to Parliament be better achieved by making the anti-corruption or anti-organised body a Standing Committee of the Parliament as suggested a few years ago by Independent MP, Mr John Hatton? People involved in the law are concerned with the accountability of the ICAC, with its structure and with the committees which will oversee its operations. The DEPUTY-PRESIDENT: Order! Pursuant to sessional orders, business is now interrupted for the taking of questions.

QUESTIONS WITHOUT NOTICE

DEPARTMENT OF AGRICULTURE AND FISHERIES The Hon. J. R. HALLAM: I ask a question without notice of the Minister for Sport, Recreation and Racing, representing the Minister for Agriculture and Rural Affairs. Will the Minister inform the House what the actual loss in revenue was to the Department of Agriculture and Fisheries as a result of the decision to abolish licence fees for amateur fishing in inland New South Wales? Is the Department of Agriculture and Fisheries considering, within the Division of Fisheries, any substantial cuts in programs, research or otherwise? Is the Department of Agriculture and Fisheries reviewing decisions to reduce any services provided by the Division of Fisheries? Is any consideration being given to increasing charges within the Division of Fisheries? 8 June, 1988 COUNCIL 1717 Further, is any consideration being given to reducing major programs for advisory services or research within the Department of Agriculture and Fisheries in general? The Hon. R. B. ROWLAND SMITH: I am surprised that the Leader of the Opposition should ask such a question-or should I say questions-which obviously should have been put on notice. When the Leader of the Opposition was Leader of the Government in this House, the Opposition did not dare to ask a series of questions of the type just asked, which are outside the area of responsibility of the Minister to whom the question was put. The Leader of the Opposition was quick to say at that time, "Put the question on notice and we will give you an answer". That is exactly what 1 shall say on this occasion. I shall consult with my colleague the Minister for Agriculture and Rural Affairs and furnish the Leader of the Opposition with a reply tomorrow.

NEW SOUTH WALES RUGBY UNION The Hon. M. R. EGAN: My question without notice is directed to the Minister for Sport, Recreation and Racing. Does the Minister recall answers he gave recently about an $880,000 grant to the New South Wales Rugby Union for works at Concord Oval? Did the Minister inform the House that this grant was a bicentennial grant? Why was an application from the New South Wales Rugby Union accepted in March 1988 when applications for bicentennial grants closed in March 1987? Who recommended and authorized the grant, and on what grounds? Was the New South Wales Rugby Union given special treatment because of the fact that a member of the finance committee of Concord Oval was Mr Bob Frost, the treasurer of the New South Wales Liberal Party, or because two other members, Mr Ross Turnbull and Mr Alan Jones, were former Liberal Party candidates? Is it a fact also that Mr Ken Elphick, the executive officer of the New South Wales Rugby Union, is a member of the New South Wales Bicentennial Council? Did Mr Elphick participate in the council's consideration of the application? Will the Minister table the relevant papers and, if so, when? The Hon. R. B. ROWLAND SMITH: There is no doubt about it, the honourable member is a sticker. I have answered this question already, but because the honourable member is a slow learner I shall repeat what I said on an earlier occasion. During question time in this Chamber on Tuesday 31st May, the Leader of the Opposition led an attack on the Government based on the allegation that the executive officer of the New South Wales Rugby Union, Ken Elphick, was granted a remuneration package of $324,000 at a time when the union had many unsatisfied creditors. It was said that the amount included a loan of $170,000, which was substantially waived by the Rugby Union. The Opposition alleged that a substantial part of the recent bicentennial grant of $889,000 was used to waive the loan. In answer to the first part of the honourable member's question I inform the House that the bicentennial grant was authorized by the Premier to the New South Wales Rugby Union at Concord. The Rugby Union's debt of $15 million has been guaranteed by the Macquarie Bank- The Hon. M. R. Egan: That has nothing to do with my question. The Hon. R. B. ROWLAND SMITH: The honourable member should allow me to answer the question: he wants to be both the questioner and the answerer. 17 18 COUNCIL 8 June, 1988

The Hon. M. R. Egan: I seek an answer to my question. The Hon. R. B. ROWLAND SMITH: And I am providing the honourable member with an answer. The New South Wales Rugby Union will be able to service the $15 million loan facility. The Government's position is that it will not interfere in the administration of a sport. The former Minister for Sport and Recreation requested that the union's financial affairs be examined by the Corporate Affairs Commission. To date these inquiries have failed to disclose any illegalities in the conduct of the affairs of the union. I have answered this question on several occasions. The recent $889,000 bicentennial grant by the Government covered the exact contract price of the construction of the roof over the eastern grandstand at Concord Oval. Any suggestion that the Government's grant was used for any other purpose is most definitely incorrect. The Government had no knowledge of the veracity of the Opposition's claim about any payment made by the union to an employee. Such matters are the business of the New South Wales Rugby Union and Mr Elphick. The Hon. M. R. Egan: On a point of order. The answer the Minister has provided bears no relationship to the question I asked. The Minister is addressing irrelevant matters. The DEPUTY-PRESIDENT: Order! No point of order is involved. Consistent rulings of this House have provided that Ministers may answer questions in any way they deem fit.

POLICE POWERS The Hon. R. D. DYER: I ask the Minister for Police and Emergency Services and Vice-president of the Executive Council a question without notice. I refer to the Minister's answer to me yesterday about advice furnished to the Government by the Crown Advocate and the Solicitor-General regarding police powers of arrest and detention in the light of the High Court decision in Williams' case. Will the Minister now rectify his possibly inadvertent omission yesterday by advising the House what is the actual substance of the advice regarding procedures for the arrest and detention of suspects by police? Am I correct in assuming that the Commissioner of Police has advised police in his circular that an alleged offender should now be brought before a justice to be charged without unreasonable delay? The Hon. E. P. PICKERING: The instruction given to police by the commissioner, based upon advice supplied from the Attorney General's Department, is, from memory, contained in a document two or three pages long. It is precisely worded advice for obvious reasons. I did not have it available to me when the honourable member asked his question yesterday and I do not have it available today; but I shall make a copy available to the honourable member. Clearly, after arresting a person police have a responsibility to ensure that that person is brought before a court without unreasonable delay. That is the foundation of the advice. However, one has to spell out for the benefit of serving police officers, who have to face the real world on a day-to-day basis, the parameters that define reasonableness. This two-page or three-page document does just that. Senior police, including the commissioner, assure me that the document is an excellent working document for police. The New South Wales Police Association has made public statements to that effect also. I am concerned about the honourable member's interest as I feel sure he would want this matter spelled out for police. I shall provide the honourable member with a copy of the document and, if he has any questions after reading it, I shall be happy to answer them. 8 June, 1988 COUNCIL 1719

MENTALLY AND DEVELOPMENTALLY DISABLED The Hon. DEIRDRE GRUSOVIN: I direct a question without notice to the Minister for Family and Community Services, representing the Minister for Health and Minister for Arts. In view of the inability of the Minister's colleague the Minister for Health to recognize the different need requirements for people suffering mental illness and those with developmental disabilities, and in the light of comments made by Dr Michael Ryan in praise of the Minister for Family and Communtiy Services, will the Minister press for the transfer of community-based services for people with intellectual disabilities to the family and community services portfolio? Or will the Minister follow her colleague's example and callously ignore the delivery of services to this family group? The Hon. VIRGINIA CHADWICK: If ever there was a question that damned with faint praise, this is it. Any suggestion that my colleague the Hon. P. E. J. Collins, Minister for Health, does not understand the difference between mental illness and developmental disability is clearly in error. For some time this matter has been of considerable concern both to myself and to my colleague the Minister for Health. Indeed we have been concerned for much longer than the time the Deputy Leader of the Opposition started to take an interest in family and community services. I totally reject the overt-not even implied- insult to the sensitivity and intelligence of my colleague. That having been said, I thank the honourable member for acknowledging the rather gratifying letter of a doctor printed in today's Sydney Morning Herald. I had no idea of the doctor's politics when he came to visit me but, according to his letter printed in the Sydney Morning Herald, he is an active member of the Labor Party. It is doubly gratifying to me that he found my attitude to and understanding for those who have developmental disabilities sufficiently praiseworthy that he was minded to write to the Sydney Morning Herald and say so. Clearly, my colleague the Minister for Health and I are interested in the delivery of services for those with disabilities, whether the disabilities result from developmental delay or psychiatric illness. It is not so much a difference of types of illnesses; it is more complex than that because one has to determine also who best can deliver community-based services. Those matters were not the subject of discussions with government; they were discussed by the Hon. P. E. J. Collins and me when we were in opposition. Those discussions are continuing. The Deputy Leader of the Opposition can be assured that the final resolution reached after those discussions will be for the well-being of those with disabilities, regardless of the type of disability.

PENSIONER TRAVEL CONCESSIONS The Hon. FRANCA ARENA: I direct a question without notice to the Minister for Family and Community Services. Is the Minister aware that this morning there was a demonstration by pensioners outside the Parliament? Is the Minister aware that most of the pensioners to whom I spoke were from Newcastle and were expressing concern about the recent increases in fares but especially about the fact that they could not travel any more from Sydney to Newcastle and from Newcastle to Sydney for $1, as they were able to do when the Labor Government was in office? As the Minister has a deep and genuine concern for Newcastle, will she make representations to the Minister for Transport to reinstate the $1 trip for pensioners from Sydney to Newcastle and vice versa? 1720 COUNCIL 8 June, 1988

The Hon. VIRGINIA CHADWICK: Obviously, as a Novocastrian, I have a particular interest and concern for Newcastle people, whether they be pensioners, senior citizens or of other age or status in life. However, the reality is that, although I have a particular bias and preference for Newcastle, the matter to which the honourable member alludes is of interest and concern to any senior citizen travelling anywhere within the State. The changes to eligibility for transport concessions result from a determination of Cabinet, which I uphold.

RATE-PEGGING The Hon. K. J. ENDERBURY: I address a question without notice to the Minister for Family and Community Services, representing the Minister for Local Government and Minister for Planning. Has the Minister noted that the secretary of the New South Wales Shires Association has been reported as saying that the Government should scrap rate-pegging? Will she assure the House that the ratepayers of this State will not be slugged financially by any such irresponsible action? The Hon. VIRGINIA CHADWICK: I shall refer that matter to my colleague for an answer as soon as possible.

BATHURST CAR RACING The Hon. J. C. J. MATTHEWS: I address a question without notice to the Minister for Sport, Recreation and Racing. Will the Minister advise the House whether the Bathurst international sedan car race previously known as the James Hardie 1000 is to go ahead as planned this year? The Hon. R. B. ROWLAND SMITH: The motor car classic at Mount Panorama, Bathurst is an important event for the city of Bathurst. It is important to those who go to Bathurst on the October weekend, and important because of the amount of money that is spent in the town at that time. The major motor car event on the New South Wales racing calendar is that conducted at the Mount Panorama circuit each October long weekend. This event, because of sponsorship involvement, has become nationally recognized as the James Hardie 1000. Through television exposure the event has become known internationally, and the 1987 event was designated as a round of the World Touring Car Championship. The event is conducted by the Australian Racing Drivers Club, the ARDC, which operate under the auspices of the Confederation of Australian Motor Sport. CAMS. James Hardie Industries has been the major sponsor of this event for 20 years. James Hardie Industries has decided to withdraw sponsorship for this year's event. Sponsorship of this year's race has now become a legal issue because a dispute occurred within ARDC many months ago about what organisation held the responsibilities for marketing the event. Previously Australian Motor Sports Promotions, AMP, a subsidiary of ARDC, had the rights to conduct the event. AMP in turn contracted the Strathmore group to make the necessary marketing and promotion arrangements. ARDC attempted this year to market the event itself but, following a legal challenge, the court found that Strathmore was the only agency with the rights to market and promote this event. 8 June, 1988 COUNCIL 1721

In view of this ongoing dispute and the limited time available in which to prepare for the October race, CAMS recently intervened-approximately two weeks ago-and a committee has now been established to review and arrange marketing and sponsorship aspects for the race. This committee, known as the Bathurst 1000 88 Committee, consists of representatives from the Confederation of Australian Motor Sport, ATN Channel 7, the Australian Racing Drivers Club, the Bathurst city council, and Strathmore Promotions. Advice from James Hardie Industries in respect of that company's withdrawal from sponsorship indicated that James Hardie had negotiated its contract with the ARDC on the basis that AMP would be the agency to handle sponsorship arrangements. James Hardie believed that such an arrangement was preferable to dealing with a club executive committee which could change at any time. It is for that reason that James Hardie decided not to renew sponsorship arrangements. Advice currently provided by the ARDC is that the event will certainly be conducted this year, and it is expected that sponsorship details will be finalized within a matter of weeks. The international body responsible for motor sport, the Federation Internationale de I'Automobile, has disbanded the World Touring Car Championship series and in its place has established a two-zone competition: the European Touring Car Championships, and the Asian Pacific Championships. The 1988 Bathurst event has been awarded the status of the Asian Pacific Championships, and leading competitors in the European Touring Car Championships, which will be held prior to the Asian Pacific Championships, are expected to compete at this year's Bathurst event. That is excellent news for those interested in this sport, and particularly for the city of Bathurst. The Hon. Ann Symonds: Will the Minister be there? The Hon. R. B. ROWLAND SMITH: Yes, of course.

AUSTRALIAN BROADCASTING CORPORATION PROGRAMS The Hon. R. T. M. BULL: I address a question without notice to the Minister for Sport, Recreation and Racing. Is the Minister aware of rumored changes to ABC radio and television rural programming due to be introduced in August? Will the Minister inform the House of those changes? The Hon. R. B. ROWLAND SMITH: I am aware of some rumours about the future of ABC rural programming, but I am not aware of any definite changes. I shall approach the ABC in regard to any changes and endeavour to provide an answer in a short space of time.

MEDICAL SERVICES TRIBUNAL The Hon. JUDITH WALKER: I address a question without notice to the Minister for Family and Community Services, representing the Minister for Health and Minister for Arts. Will the Minister advise whether the New South Wales branch of the Australian Medical Association has requested the Government to establish a medical services tribunal to ensure any disputes arising within the public hospital system never have to be dealt with under the essential services legislation? Further, have the Minister and the Government agreed to this course of action? 1722 COUNCIL 8 June, 1988

The Hon. VIRGINIA CHADWICK: I shall refer the question to my colleague the Minister for Health. I shall provide the honourable member with an answer as soon as possible.

COMMUNITY SERVICE AWARDS The Hon. J. M. SAMIOS: Does the Minister for Police and Emergency Services and Vice-president of the Executive Council intend to introduce a new system of awards for members of the public who perform acts of bravery? If so, will the Minister provide the House with details of the scheme? The Hon. E. P. PICKERING: A new system of awards will shortly commence as a means of recognizing acts of bravery by members of the public. I am aware that already other systems exist for recognizing acts of bravery by members of the public, but it is sometimes the case that these awards are not made until long after the event. Without in any way impinging upon the value of other awards, I have given approval for a new system, to be known as community service awards, to be set in place. I believe that the first of these awards is at present under consideration. Under this new scheme anyone will be able to make a nomination for a person to receive an award and that nomination will be considered by a special committee of prominent citizens. This committee, which was set up last year by the previous Minister, has never met. I have asked that the members of this committee be contacted to ascertain whether they still wish to serve on the committee. If for some reason they are unable to do so, replacement members will be found. This new system of awards is most desirable because public recognition of acts of bravery is a most important element in any society. There must be many acts of bravery which pass unrecognized. That is unfortunate because when a brave act is publicized, it can serve as an inspiration to others as well as giving a proper reward to the person or persons involved in performing the brave act. Today there has grown up a fairly widespread view in the community that all the problems and ills of society can be satisfactorily dealt with by the established, government-operated forces of law and order and emergency services. This is simply not the case and can never be the case in any society. There must always be situations where life and limb depend upon the intervention of ordinary private citizens because the official forces are not on the spot, as they can never be on the spot everywhere all the time. It is not a healthy attitude for any community to expect the official forces of law and order to take care of every emergency and every problem that arises. It is always an inspiration for us to see a photograph in the newspaper or a report on the television of some heroic act carried out by someone who could have been the man or woman next door-simply an act of heroism by an ordinary citizen, not someone who is trained and paid to do the job. Seeing these sorts of things recorded and praised in the media can encourage others to emulate the action or at least be aware that there is a role for them to play in helping others, and that the opportunities for heroism can arise usually quite unexpectedly in our daily lives. The guidelines for the awards generally are that they will be made to people who have saved a life or lives and placed themselves in danger by doing so; greatly assisted police or emergency services in arrest, rescue, disaster or other precarious situations; or helped police or emergency services in their work generally by some outstanding act of bravery. Nomination forms for awards have been prepared and are available from police headquarters. Nominations should be made on one of these forms. 8 June, 1988 COUNCIL 1723

FUNDING FOR WOMEN'S AFFAIRS The Hon. ANN SYMONDS: My question without notice is addressed to the Minister for Family and Community Services in her capacity of Government spokesperson on women's affairs. Is the Minister aware that the previous Government produced annexures to the Budget which in effect provided an impact statement on women? Will the Minister undertake to provide information, perhaps through the Women's Co-ordination Unit, on the direct impact on women of the Premier's financial statement of 2nd June? The Hon. VIRGINIA CHADWICK: I thank the honourable member for the idea expressed in her question. It had not occurred to me to provide information as a result of the recent financial statement. Coincidentally, today I spoke with the head of the Women's Co-ordination Unit and considered recommendations for continuing action throughout the year. We discussed this matter in relation to the forthcoming State Budget. I am not unsympathetic to the idea raised by the Hon. Ann Symonds. Though the impact may be lost, being a little late after the financial statement, I undertake to look at the possibility of the merits of such action.

AIDS SCREENING Reverend the Hon. F. J. NILE: I direct my question without notice to the Minister for Family and Community Services representing the Minister for Health and Minister for Arts. What action is the Government taking to identify AIDS carriers in New South Wales in view of the alarming World Health Organisation estimate released today that there are 85 000 AIDS carriers in Australia, with the majority in Sydney, and that more than 40 000 of those carriers could develop full-blown AIDS? Will the Government introduce compulsory blood testing for AIDS for people in high-risk groups in view of the 872 confirmed AIDS cases, the majority of which are in Sydney, of whom 462 have already died from AIDS? The Hon. VIRGINIA CHADWICK: I thank Reverend the Hon. F. J. Nile for his continuing interest and concern, as often expressed in this House, about the terrible scourge of AIDS in our community. I shall attempt to provide the honourable member with a detailed answer through my colleague the Minister for Health.

COSMETIC SURGERY The Hon, K. J. ENDERBURY: Has the Minister for Family and Community Services, representing the Minister for Health and Minister for Arts, seen a newspaper report concerning breast implant surgery undergone by film star Jane Fonda to improve her figure? Did the Minister note that the procedure was not a complete success as Miss Fonda required follow-up surgery because after the original operation one side was higher than the other? In view of this example, and many others, will the Minister for Health undertake to warn the public, through the department's many outlets, of the risks involved with cosmetic surgery? The Hon. VIRGINIA CHADWICK: This is a balanced question. I regret I am not abreast of such matters but I shall undertake to refer the question to the Minister for Health and provide an answer. 1724 COUNCIL 8 June, 1988 SPEAKER'S WIG The Hon. M. R. EGAN: My question without notice is addressed to the Minister for Police and Emergency Services and Vice-president of the Executive Council, representing the Premier, Treasurer and Minister for Ethnic Affairs. Was the Premier consulted about the purchase from London of a new wig for the Speaker of the Legislative Assembly? Did the Premier approve the expenditure? Did the new wig cost many thousands of dollars? If so, what was the exact cost? What was the condition of the wig to be replaced, given that it is made of durable horsehair and had not been used for 12 years? Does the new wig look any less ridiculous than the former wig? Does the Premier regard this expenditure as acceptable when many additional and severe financial imposts have been made upon the citizens of New South Wales? The Hon. E. P. PICKERING: I would not have a clue about any of the matters raised in the honourable member's question. I shall refer it to the Premier. However, if that is the standard of question that the honourable member considers he should ask, he trivializes the House. This House represents the people of New South Wales and the honourable member should be interested in much more important matters.

JUVENILE CAUTIONING SYSTEM The Hon. ELISABETH KIRKBY: I direct my question without notice to the Minister for Police and Emergency Services and Vice-president of the Executive Council. In view of the fact that recently the Minister stated that police cautioning of juveniles has been abolished, will he inform the House whether police will still consider cautioning children under 16 years of age for riding bicycles or skateboards on footpaths in or around shopping centres? Does the first caution given to a juvenile involve sending a slip to the juvenile's parents explaining that a caution has been administered? Does the second caution involve sending a letter to the parents informing them what has happened and requesting them and the juvenile to attend at the police station? If a third caution is issued, is consideration given to the offences, and may the juvenile be required to appear in the Children's Court? Is it correct that this system commenced in 1983 and, after a six-month trial, has been applied statewide? Will the Minister confirm that the probationary period for the juvenile cautioning system has proved highly successful, and that only about six offenders out of every 900 offend three times? Because of public concern, particularly among the elderly, that they are in danger if bicycles and skateboards are used in shopping centres and car parks and on footpaths, will the Minister permit cautioning of such young offenders to co,?tinue, regardless of what happens to the cautioning system for juveniles committing serious offences? The Hon. E. P. PICKERING: Throughout the recent election campaign the coalition clearly stated on many occasions that the juvenile cautioning system introduced by the previous Government would be abolished within minutes of the coalition's occupying the Treasury benches. That is exactly what happened. The previous Government had in place a system that in effect virtually required police officers to issue cautions for almost all offences committed by young people. If a police officer felt sufficiently strongly about a matter, he had to submit a written report to a senior sergeant before a charge could be laid. In other words, young people were told, in effect, that provided they were not involved in rape, murder or such matters, all that would happen in the unlikely event of their being caught is that they would be cautioned. That 8 June, 1988 COUNCIL 1725 applied, for example, to the offence of stealing a motor vehicle. That was an absurd system, and the Government has abandoned it. In place of that system the Government has advocated the use of common sense. It has given a clear-cut instruction to the New South Wales police service that individual police officers will either charge or caution young people, according to the individual circumstances. The decision will be left to the discretion and common sense of the police officer. I do not accept that many young people in the State will be charged with riding a skateboard along a public street. Clearly, those young people will receive a caution for that sort of behaviour, and be taken home to their mothers and fathers. I do not want honourable members to give the impression that the cautioning concept has been abandoned. It has not. It will continue to be an important part of policing. However, if tonight a young person steals a car, he knows that he will not be cautioned only. The Government has directed that police officers are not allowed to caution youn people who steal cars; it has drawn the line at that offence. However, for o t$ences below that line, if a young person commits an offence, he cannot be sure, if caught, whether he will be cautioned or charged. The Hon. M. R. Egan: They never could be charged. The Hon. E. P. PICKERING: They were virtually certain of that. Under the new system, the number of offences committed by young people is decreasing dramatically-which is exactly what the Government wishes to achieve.

PRISON OFFICER EMPLOYMENT The Hon. R. D. DYER: I ask the Leader of the Government, representing the Minister for Industrial Relations and Employment and Minister Assisting the Premier the following question. Did the former Minister for Industrial Relations and Employment, the Hon. Pat Hills, set up an inquiry under Mr Justice Bauer to examine all aspects of employment of prison officers, with a view to improving their pay and conditions? Does the Government now plan to abandon or foreshorten that inquiry, or to limit its activities in any way, without improved benefits being granted to prison officers? Will the Minister assure the House that the inquiry will be allowed to proceed unimpeded? The Hon. E. P. PICKERING: I shall submit the detailed question to my colleague in another place who is responsible for that matter.

POLICE DEPARTMENT EXPENDITURE The Hon. M. R. EGAN: My question is directed to the Minister for Police and Emergency Services and Vice-president of the Executive Council. Will the Minister inform the House whether the Police Department has been exempted from the 1.5 per cent so-called productivity savings announced by the Premier in his statement last Thursday? If not, will the Minister give an assurance to the House that those expenditure cuts will not be applied in the areas of community policing, general police services, criminal investigation, or traffic supervision and control? The Hon. E. P. PICKERING: Like every other part of the administration of government in New South Wales, the New South Wales police service has been provided with a target to achieve improved efficiency in its next budget. 1726 COUNCIL 8 June, 1988

The Hon. M. R. Egan: An expenditure cut, in other words. The Hon. E. P. PICKERING: No, it is not an expenditure cut. [Interruption] The DEPUTY-PRESIDENT: Order! The Minister should be permitted to answer the question without interjection. The Hon. E. P. PICKERING: For the information of the Hon. M. R. Egan, if my memory serves me correctly the coalition gave an undertaking prior to the recent elections to increase expenditure on law and order and the justice system. I think the undertaking was an increase in the order of $50 million real expenditure. When the Budget is presented, that increase could be closer to $60 million. So, the Hon. M. R. Egan should not worry about promises and additional money. There is no doubt that the Government is allocating additional money to policing, law and order and the court system. However, that does not suggest for one moment that improved efficiencies cannot be achieved within the administration of the New South Wales police service. I assure the honourable member that I have identified dozens of areas to which in the fullness of time I shall address my mind, to ensure that our police service is performed in a more cost-effective way. As those measures are put in place I shall be proud to inform the people of New South Wales what they are. That is what the Government means by improved efficiency.

POLICE DEPARTMENT EXPENDITURE The Hon. M. R. EGAN: I ask the Minister for Police and Emergency Services and Vice-president of the Executive Council a supplementary question. Will the Minister identify the areas in which he intends to make productivity savings? The Hon. E. P. PICKERING: I thought I told the honourable member that I shall be proud to identify them as they occur.

MINISTER FOR FAMILY AND COMMUNITY SERVICES The Hon. B. H. VAUGHAN: I direct my question without notice to the Minister for Family and Community Services. Has the Minister had the opportunity of reading yesterday's Hansard proof of my question to her and her reply? Has she noticed that she is yet to answer that part of the question that I can summarize as, while she was shadow minister, did she rely on information supplied by officers of the Department of Youth and Community Services, which information was not authorized by the department? The Hon. VIRGINIA CHADWICK: The honourable member asked among other things if I have had the opportunity to read yesterday's Hansard proofs. With the House sitting, and my having taken the opportunity at lunch time today to hand over a cheque for $2 1,000 from the Government to the Homeless Association of New South Wales, I regret to inform the honourable member that the answer is, no, I have not yet had the opportunity to read the proofs. 8 June, 1988 COUNCIL 1727 FLAG RAISING The Hon. M. F. WILLIS: My question without notice is directed to the Minister for Family and Community Services, in her capacity as the Minister in charge of flags, and in her capacity representing the Minister for Education. Is the Minister aware of the increasing enthusiasm and community support for our flag, and for flag-raising ceremonies in schools? What does the Minister plan to do to assist the further fostering of pride in our flag and in our State? The Hon. VIRGINIA CHADWICK: One of the more pleasant surprises that I received when I was appointed Minister for Family and Community Services was to learn that the Department of Family and Community Services has the responsibility for State flags. I enthusiastically embrace that responsibility. It occurred to me that one difficulty that honourable members of this House have experienced during past years was the downright refusal of the former Government, for reasons beyond my comprehension, to assist the honourable members of this House to obtain State flags. The DEPUTY-PRESIDENT: Order! The Minister will answer the question. The Hon. VIRGINIA CHADWICK: The Government is cost-conscious, and 45 flags do not come cheaply, but bearing in mind that some people may not want to put a State flag in their offices, the Government may be able to keep the cost down. I inform honourable members on both sides of the Chamber that the distribution of flags to local groups may create some difficulty for local members by impinging upon their rights and responsibilities. However, it will give me enormous pleasure, on behalf of both the Government and the Department of Family and Community Services, which is now more traditionally and family oriented than perhaps it was in the past, to offer to any honourable member interested-though I expect some will not take the offer up-the opportunity to receive a flag for his or her office.

MINISTER FOR FAMILY AND COMMUNITY SERVICES The Hon. B. H. VAUGHAN: I ask the Minister for Family and Community Services whether she has had the opportunity to read the galley proof to which I referred a short time ago. Will she also attempt to recollect whether, shortly after she became Minister, she addressed a meeting of her senior bureaucrats in which she admonished them in words to the following effect, "I know all about leaking. I know the people who gave me the stuff, and I won't tolerate it"? The Hon. VIRGINIA CHADWICK: My goodness, that has given me a start. It will probably be some time before I can read the Hansard proofs of yesterday, but certainly I was unaware that the Hon. B. H. Vaughan was at that meeting of my senior departmental staff.

TAFE COURSES The Hon. P. F. O'GRADY: I direct a question without notice to the Minister for Family and Community Services, representing the Minister for Education and Youth Affairs. Will the Minister inform the House whether the Government intends to charge the $100 student fee for one-day technical and further education college courses run at rural TAFE colleges in such subjects as weed identification or agricultural blasting? 1728 COUNCIL 8 June, 1988 The Hon. VIRGINIA CHADWICK: I confirm the Government's general intention announced clearly last week that a $100 fee will be attached to TAFE courses. I regret that I am unclear whether that will be a blanket $100 charge across all courses. However, in relation to specific courses in rural colleges of technical and advanced education, whlch are obviously of particular interest to the honourable member, I shall certamly undertake to find out. I can confirm, as was announced last week, that there is a general intention to impose that $100 fee. I am unclear whether exemptions will apply to particular courses.

POLICE FOOTWEAR The Hon. JUDITH WALKER: Will the Minister for Police and Emergency Services and Vice-president of the Executive Council inquire into the footwear worn by police? As the Minister knows, at present they wear regulation boots. It has been brought to my attention that those boots are somewhat uncomfortable for men on street and beat patrol duties. I ask the Minister whether he will have an inquiry made so that some relief may be given to the men who do foot patrol work because the boots are far too heavy and were not designed for that particular work. The Hon. E. P. PICKERING: The honourable member has asked an interesting question. I have been to many police stations over the past four years and have never heard anyone complain about footwear. If the honourable member would be kind enough after question time to inform me of her source of information and give me some further background information, I shall look into it. If there is a problem, the Government will try to do something about it.

PETROL TANKERS The Hon. G. R. IBBETT: I direct my question to the Minister for Sport, Recreation and Racing, representing the Minister for Transport. Is the Minister aware of the number of recent crashes of fuel tankers in this State? Is he aware that on impact a number of tankers have burst into flames? Is he aware also that tankers are being constructed of lighter and lighter materials? Will the Minister have the matter investigated so that the roads are made safer for the people of New South Wales? The Hon. R. B. ROWLAND SMITH: Yes, I am aware of the number of crashes that have occurred involving fuel tankers and the damage that is caused as a result of their bursting into flames. I have no knowledge of how the vehicles are constructed but I shall pass the honourable member's question to my colleague the Minister for Transport and furnish the honourable member with a reply as early as possible.

POLICE RECRUITMENT AGE The Hon. R. D. DYER: I address a question without notice to the Minister for Police and Emergency Services and Vice-president of the Executive Council. I preface my question by referring to the provisions of section 7 of the Police Regulation Act, which requires police recruits to be attested as probationary constables before attaining the age of 35 years. In view of various representations made to him by some members of Parliament, will the Minister consider whether it might be desirable to raise the maximum recruiting age to, say, 40 years, in order to admit othenvlse suitable recruits to the Police Force who are at present excluded on the basis of age alone? The Hon. E. P. PICKE Commissioner of Police and Department generally. I am not sure but it seems to me that the average policeman t When I walked past the ranks of graduate officers that feeling was especially reinforced upon my thi as a result of the former Government's failure ov adequate numbers of police officers at a proper 1 suddenly in the middle of an enforced enrolment of That has meant that a real problem is service of many young, inexperienced o quickly.

The former Government was compelled to do has been forced to do it to address a problem created over many years. Because of the problem, I have examine the desirability of raising the entrance a lack of maturity in young officers. However, it difficulties is that because recruits now undergo a a substantial residential component at Goulburn- place in the world to live for a long period-it is people, who usually have family responsibilities, commitment. I am awaiting a reply from the cornmis some substance and common sense in the honourable

MINISTERIAL REPLIES The Hon. P. F. O'GRADY: I address my question Minister for Family and Community Services represent Local Government and Minister for Planning. In the response yesterday concerning the speedy answer to minis does she feel that a delay of two months is acceptable on made to the Minister for Local Government and Minister for Planning on disabled telephone access at Darling Harbour? Will the Government inst the Darling Harbour Authority to modify areas surroun ing telephone bo for the disabled at Darling Harbour so disabled people can gain access?

The Hon. VIRGINIA CHADWICK: I can scarce believe what my ears tell me I am hearing. Last week and had to send a mountain of letters back to the department not about to sign letters which just said "Thank you for here is the reply" or words to that effect when the repre in February or March 1987. I am now replying to represe am apologizing-and pardon me for being partisan and ins that it is not my fault-"that this reply to your representati ago is a little late". Seriously, I do understand that it is honourable member who asked the question because he is a new member, hence;. he cannot in any way be held responsible for the sins, the faults and omissions of the previous administration. However, it is a mistake worthy of, shall I say, Mr Carr and Harris Daishowa, even asking a question when the answer to th question reflects so unkindly upon the previous administration and th honourable member's colleagues. 1730 COUNCIL 8 June, 1988 PUBLIC HOSPITAL FUNDING The Hon. M. R. EGAN: My question is addressed to the Minister for Family and Community Services representing the Minister for Health and Minister for Arts. Does the Minister recall the Government's pre-election promise that expenditure on public hospitals in real terms would be maintained and increased? If so, how does that accord with the announcement by the Premier last Thursday that hospital subsidies are to be cut by 1.5 per cent? The Hon. VIRGINIA CHADWICK: Yes, I do recall that election commitment. It was not an election commitment made in haste and it was not made lightly. Most certainly Government supporters are conscious of what they suspected and in part knew when they were in Opposition-that a high priority had to be placed on the hospital budget, whether one is talking about maintenance of buildings, morale, staffing or the adequacy of services. Having attained office and realizing the terrible and deplorable state of things such as maintenance in our hospitals- The Hon. M. R. Egan: Why is the Government cutting expenditure? The Hon. VIRGINIA CHADWICK: The Government is not cutting expenditure. The Hon. M. R. Egan: A 1.5 per cent cut was announced last Thursday. The Hon. VIRGINIA CHADWICK: The honourable member is talking about subsidies. The honourable member is not in a position to extrapolate from a change in subsidy rate a generalization that there has been an overall reduction in the New South Wales health budget. It is the paucity and falsehood of such statements and the trivialization of important matters that has caused the honourable member to change sides in this Chamber. If he maintains that sort of attitude he and his colleagues will be on that side for a long time.

WESTERN SYDNEY FLOODING The Hon. R. B. ROWLAND SMITH: Yesterday the Hon. P. F. O'Grady asked me what action had been taken to set up a statutory committee to control flood mitigation in western Sydney. Honourable members would be well aware of the serious flooding which occurred in a number of locations in western Sydney following torrential rain in April this year. I am pleased to inform the honourable member and the House that my colleague the Minister for Natural Resources has met with representatives of the affected councils and has directed that the Department of Water Resources urgently investigate the options for setting up a flood mitigation authority. I understand that the department has almost completed a draft options paper and will furnish it to the Minister this week. The paper will detail the various options for an authority or similar mechanism to achieve more effective co-ordination of structural and non- structural flood mitigation measures, and to provide the required level of funding. After the Minister has had the opportunity to examine the paper, officers from the Department of Water Resources will meet with all affected local councils to discuss the contents of the paper. On the basis of their comments the draft will be revised and issued generally to allow all relevant councils, government bodies, residents and special interest groups formally to consider it. Departmental officers will be available during this period to explain the proposals to the councils and residents. Discussions between senior officers of the relevant government agencies will also be held to clarify their respective 8 June, 1988 COUNCIL 1731 roles. It is important that the impetus on this issue be maintained because flooding can easily be overtaken by other issues. Unless some positive steps are taken quickly it is inevitable that there will be a repeat of the recent flooding. If there is broad support for some form of catchment co-ordinating authority, my colleague the Minister for Natural Resources will take a firm proposal to Cabinet at the earliest opportunity.

PENSIONER TRAVEL CONCESSIONS The Hon. E. P. PICKERING: On 7th June I was asked a question by the Leader of the Opposition concerning excursion bus ticket costs for pensioners I advise the House that the honourable member is correct in saying that, as a result of last week's financial statement, the pensioner excursion bus ticket has been increased from 60 cents to $1. Pensioners will be able also to take advantage of the heavily discounted metroten tickets, available at half-price to concession holders. The Hon. J. R. Hallam is not correct in stating that the pensioner's two free interstate trips have been abolished. What the financial statement did is introduce a $10 charge for each of these interstate trips. Together with many other changes, these changes to pensioner travel concessions have been necessitated by the revelation to this Government by the State Commission of Audit, that transport authorities' losses exceed $1,500 million per annum or $300 per person. Even the honourable member must be aware that this situation cannot continue. The public transport package announced in the financial statement is designed to improve the efficiency of public transport and reduce the call on public funds. Having said that, I emphasize that the changes to which the honourable member refers do not alter the fact that pensioners continue to enjoy concessions in travel expenses.

PEAKHURST POLICE STATION The Hon. E. P. PICKERING: Recently the Hon. J. M. Samios asked a question concerning the Peakhurst police station. I inform the honourable member that during the past year, when I was in opposition, and since I became Minister, I have had endless representations from local residents complaining about robberies and vandalism. In March this year, during the election campaign, I visited the area with our candidate who has now become the honourable member for Georges River, Mr Terry Griffiths, and we spoke to a deputation of 10 shopkeepers. All these people have suffered by having their shops or businesses broken into. All of the break-ins had taken place during the ' previous two weeks. In fact, the need for better law and order has become so great that recently a number of the local shopkeepers announced in the local press their intention to spend the enormous sum of $14,000 a week to hire their own security staff. In answer to the Hon. J. M. Samios' question, I am pleased to inform the House that the current police station is an aluminimum portable building located on a vacant block of land at Peakhurst. It has, I understand been there for some years. The station has responsibility for a series of districts, some of which are known to have significant crime problems. It was only during the last election campaign that the former Government saw fit to extend its hours of operation past 10 o'clock, and allowed it to serve the Peakhurst community on a 24-hour basis. The district it serves is an area which desperately needs attention to the issue of law and order. Only a few weeks ago, the Sydney Morning Herald named one of the nearby suburbs, the district of Riverwood, as one of the drug capitals of this city. 1732 COUNCIL 8 June, 1988 Provision has been made in the New South Wales Police Department 1988-89 capital works building program for the construction of a new permanent police station at Peakhurst at an estimated cost of $1.78 million. Work is programmed to commence in April 1989 and to be completed by May 1990. The New South Wales Police Department is currently involved in tentative negotiations through which it may be possible to effect an exchange of properties resulting in the acquisition of a new police station at Peakhurst in exchange for the present police station site.

DEPARTMENT OF EDUCATION RECRUITMENT POLICY The Hon. VIRGINIA CHADWICK: Recently the Hon. Judith Jakins asked me a question in my capacity representing the Minister for Education and Youth Affairs. The question related to the policy of the Department of Education giving preference of employment to members of trade unions and asked whether the Minister for Education would remove this discriminatory employment practice when recruiting teachers. I am advised that the Department of Education does give preference to members of trade unions where preference clauses in awards compel it to do so. The awards containing such clauses cover most areas of employment. It is not within the competence of the Minister for Education to vary the present practice. Any change would require the amendment of the Industrial Arbitration Act, as section 129~of the Act more or less compels the insertion of a preference clause in an award where the union applies for it.

INDEPENDENT COMMISSION AGAINST CORRUPTION BILL (No. 2) Second Reading Debate resumed from an earlier hour. The Hon. K. W. REED: Prior to question time I outlined a number of matters and told honourable members that key aspects of my contribution to the debate related to accountability-in particular public accountability. So far as the Independent Commission Against Corruption is concerned, public accountability would appear to be confined to just three areas: perhaps most importantly, its financial dependence on government; its requirement to report to Parliament, and the overseeing by the joint parliamentary committee. Mr Russell Hogg, lecturer in law at the Macquarie University in a paper entitled "Campaign for Criminal Justice" made some interesting remarks about the ICAC. In my further remarks I intend to refer to several passages in that paper. On the question of independence and the need for lack of political interference, Mr Hogg said: However. whilst partisan political interference must be guarded against, democratic political interference (i.e. directly through the parliament or through the government of the day) is of the essence of public administration in a parliamentary democracy. What guarantees otherwise exist against the pursuit of private interests through such an agency? Or the resort to oppressive or illegal methods? How is it possible to ensure that the expenditure of public moneys is in accord with public priorities i.e. those amved at through democratic processes which are open and accessible to electors? As has been indicated above. the question of the priorities of the ICAC is not a neutral, apolitical one, but cames vital implications for public administration. If honourable members refer to part 7 of the bill, which deals with the joint parliamentary committee, it will take them little time to realize that the committee proposed by the legislation, which is based on section 55 of the 8 June, 1988 COUNCIL 1733 National Crime Authority Act, is a committee without teeth and what one might generally describe as a mushroom committee. The committee may well prove to be effective, but not because of how it was structured initially. In two reports to the Commonwealth Parliament by the joint committee on the National Crime Authority, the second of which I have a copy, the committee has expressed concern that the Act should be amended so as to allow further possession, and means of possession, of information to the committee. On page 4 of the report, in item 4, the committe report reads: The matters of interest document, which formed the basis of the subsequent briefing covered such areas as staffing and organization: computer and information systems, operations and methodology of the Authority under terms of the National Crime Authority Act 1984; specific operational matters: and a general briefing on organized crime in Australia. Clearly this bill is setting up a committee that it is already established will be inefficient and not workable to the degree that such a committee should be workable or operational. Despite the fact that the Premier has indicated that he wants an independent commission, one is perhaps entitled to ask what role the parliamentary joint committee will play. Obviously the committee is meant to play a minor part and its role of informing the Parliament and the elected members of the Parliament becomes secondary. The functions of the commission are set out in part 4. Clauses 12 to 19 relate to matters that may be referred to the commission and cover a number of areas. The commission may investigate any matter that is referred to it by any private or public source, but it will be for the ICAC to decide who or what it will investigate. That right distinguishes the commission also from the National Crime Authority, which can employ special inquisitorial powers only in relation to matters referred to it by the joint committee. The committee proposed by the bill does not have the same sorts of powers as the already deficient NCA committee. Mr Hogg further stated: This degree of autonomy when taken with the coercive powers of the ICAC cannot be justified in a democratic State. It may result in highly oppressive practices and effects but quite apart from this, there are issues of efficiency and equity in the use of public resources that are not adequatly met in any such organizational structure. The potential range of targets of investigation is enormous. With no requirement to investigate matters referred or to report back to private complainants the ICAC will be left with major decisions as to priority across the range of public administration and private conduct improperly affecting it. It is a proper question to ask just what factors will influence the exercise of this vast discretion, for where the standards in question are so vague, general and arguably relative this amounts to the delegation of what is effectively a legislative power to the ICAC. The selection of some agencies or some activities for investigation and the neglect of others might often be open to allegations of being inequitable, discriminatory or an abuse of public powers. Is the Government attempting to legitimize the commission in an independent or non-party political way, or is it blatantly setting in train a grand slam that is politically motivated and will bypass the Parliament, or at best reduce its powers? The answer appears to be the latter alternative. I have already emphasized to honourable members the weakness of the parliamentary joint committee. Indeed, one needs to examine the provisions in part 6 related to the Operations Review Committee to understand the effect this legislation will have cr: the parliamentary joint committee. Clearly the Operations Review Committee will have the power, whereas the parliamentary joint committee is reduced to a distinct minor monitoring role. The functions of the Operations Review Committee as set out in paragraphs (a) and (b) of clause 59 (1) are to advise the commissioner whether the commission should investigate a complaint made under the legislation or discontinue an investigation of such a 1734 COUNCIL 8 June, 1988 complaint. The Operations Revlew Committee will therefore advise the commissioner on which direction to take and which matters to pursue. A report in the Daily Telegraph of 1st June entitled "Search Powers of the Commission" compliments the Premier on the compilation of the Operations Review Committee and states that he has increased from two to four the number of community representatives on the Operations Review Committee. This effectively means that the Operations Review Committee- the committee that will be dictating the direction of the commission and the ways in which the commission will deal with matters-will be made up of eight persons consisting of the commissioner, who shall be chairperson of the committee; an assistant commissioner, nominated by the commissioner; the Commissioner of Police; a person appointed by the Governor on the recommendation of the Attorney General and with the concurrence of the commissioner; and four persons appointed by the Governor on the recommendation of the Minister and with the concurrence of the commissioner to represent community views. It is interesting that five of those eight members will be appointed by the Governor after recommendations from a member of the Government, a Minister, in each case with the concurrence of the Commissioner. For the purposes of the point I wish to make here, the concurrence of the commissioner is irrelevant because of the way in which the commissioner is appointed. Of the people on this eight person committee, which will guide, direct, commence, withdraw or otherwise deal with matters directed to it-in other words, the whole operations of the commission-five will be appointed directly by the Government, through the Governor, who will inform the Commissioner of Police, the commissioner of the commission, and any assistant commissioners what direction they should take, how far they should go, what they should do, and so on. The great charade about the matters to go before the commission being out of the hands of the Executive Government and the Government not having a say in the operations of the commission is clearly exposed. Paragraphs (d) and (e) of subsection (1) of proposed section 60 provide that proposed appointees to the commission, apart from having to be recommended by the Attorney General and the Minister, must have the concurrence of the commissioner. Some might think that a provision which requires the approval of the commissioner for such appointments is wonderful; but who approves of the commissioner? The Leader of the Government, in his brief second reading speech on this bill- The Hon. E. P. Pickering: It must be taken in conjunction with the original second reading speech. The Hon. K. W. REED: I am not being overcritical. The Leader of the Government said that the Premier will consult with the Leader of the Opposition on the appointment of the commissioner. That is wonderful. I am sure that the Leader of the Oppostion will be pleased to enter into discussions about who should be appointed. The Hon. J. P. Hannaford: It has not occurred under previous governments. The Hon. K. W. REED: We are talking about the establishment of an independent commission. The proposal is that the Premier consult with the Leader of the Oppposition on who should be appointed as commissioner to this independent commission. Reverend the Hon. F. J. Nile pointed out that the success or otherwise of the operations of that commission will depend on the commissioner. After a certain time he will be the person who will approve or 8 June, 1988 COUNCIL 1735

otherwise the appointment of persons to the Operations Review Committee. There will be a major problem if the commissioner does not meet all the standards that are required of such a person. The New South Wales Council for Civil Liberties, in a paper it presented on this bill, suggested what I regard as the only mechanism by which an independent or bipartisan decision, without potential imputations, could be arrived at. The council has put forward the proposition that the Parliament should select the commissioner. After all is said and done, the legislation provides clearly that the Parliament will be the body that will remove the commissioner. If the Parliament is to have some say about that matter, why should it not appoint the commissioner? Why should it be up to the Premier and the Leader of the Opposition to appoint the commissioner? This Chamber has Government members, Opposition members and representatives of two other political groups. Until the last election we in this Chamber had also one Independent member. The Legislative Assembly has a number of Independent members. Is it proposed that the Independent members of Parliament should not have a say in the selection of the commissioner and that the Premier, the Leader of the Executive Government in New South Wales, will have sway over the democratic rights of those Independent members and make that decision without consulting them? Indeed, that is exactly what is proposed as the way in which the commissioner will be appointed. If the person appointed as commissioner is to remain independent, I cannot see that an eminent person could be appointed to such a key leadership role in any other fashion than by the Parliament. Contrary to what Nick the Knight is reported to have said in the newspapers, we are not establishing a commission that will be independent of political or government interference. That is exactly what the community is getting. That highlights plainly the fears and concerns expressed by members of this Chamber. There is no doubt that any appointments, from the commissioner to the members of the proposed committee that will review and direct the operations of the commission, will be politically motivated. Part 6 of the legislation contains no requirement that appointees recommended by the commissioner, the Governor, or the Attorney General be Australian citizens. It contains no requirement for them to take an oath of allegience or to declare their political connections or their legal background. The bill is silent on these matters. I conclude my remarks by referring to the cost of this exercise. Though such matters are not paramount at present, in due course committees, commissions or whatever, one way or another, must be accountable. Unless their performance and efficiency warrant the cost of maintaining them, they are abolished. Appendix E on page 60 of the 1986-87 annual report of the National Crime Authority shows that its appropriation for that year was $15,345,600, with its expenditure being just below that figure. Appendix F on page 61 of that report sets out the fees paid to consultants. I have not had time to ascertain whether the figures set out on that page are included in the total appropriation I have just mentioned, but nine consultancy firms are listed on that page. It shows that $325,291 was paid to Logica Pty Limited. In due course people will be trying to ascertain how far the commission has been allowed to wander, if I may put it that way, in its inquiries; to what extent it has relied on the public service for reports, and the public service already provides reports; how much it has relied on consultants; and how much it has kept in mind its accountability to the public in its inquiries. Or will it, as Mr Justice krby indicated in his speech, pursue, for example, the 74 items that the Premier indicated were matters of priority over and above the other important matters that may be referred to it? IL 8 June, 1988

IGNOLD [5.20]:First, I should like to congratulate for his very well-researched and finely delivered bill. I shall speak very briefly, as the grounds for ve been well covered by numerous previous speakers, take up the time of the House unnecessarily. tion of democracy. A true index of the viability of ffectiveness of the application in fact as opposed to the theory of this foundation principle of accountability. This bill is directed to the meritorious object of eliminating, or at least restricting, corrupt conduct of public officials. No responsible citizen is likely object. It is indeed a worthy object, or end. However, rsuit must not be so relentless, zealous or insensitive d and worthwile ends, for example, legitimate human no end is so vital that it is justified by any and every indeed the relevant principle or guide for appraising the present bill. History provides instructive examples of the excessive zeal of democratic institutions. Indeed, it is in classical Athens-recognized as the cradle of western ystem of ostracism, the democratic right explusion from the city of any person. The Id thereupon be banished. Among those the ostracism was Pericles, Athens' most occurred after events had gone badly for . Looking back some 2 000 years from the mocracy, no one would approve of the system that the system lacked the necessary checks system operated with fairness. Rights of of the people at the annual vote. Turning to the present bill, one asks what are the checks and balances against the risk of arbitrariness in the operation of the Independent Commission re the Government answers this question, I pose First, to whom is the Independent Commission nsible? Second, how is the conduct of the le? I trust that the Minister will answer these The bill has, as all honourable members know, several important quarters and I concur with Wales Bar Council given in a letter of 2nd June igned by the President, Ken Handley, Q.C. As ready quoted in part, and elaborated by previous leave of the House to insert in Hansar whole of that

. [See Addendum.] ave been conflicting statements in some areas made the bill as public officials does not alter my support New South Wales Bar Council. I draw the attention lease of 8th June from the Catholic Archdiocese of

mission Against Corruption Legislation Catholic Church spokesman. Fr. Brian Lucas said that clause 37 (2) of the lndcpcndeni Commission Against Corruption Bill should be amended to prevent a commissioner seeking information that was given in the course of religious practice. 8 June, 1988 COUNCIL 17317

The present draft legislation excludes a duty of secrecy as an excuse for not giving evidence to a commissioner. "Catholic priests would never betray the confidentiality-of the confessional in any way or for any reason", he said. "If necessary they would refuse to comply with the legislation even if this meant penal sanctions", he said. "In the long history of the Church priests have gone to their deaths rather than betray the confessional", he said. "Legislation should respect the fundamental right of an individual to the free practice of religion. No-one should have the power to intrude on the confidentiality of that activity" he said. Though all parties agree to the principle of the bill and that there is a pressi need to remove corruption from this State, because of strong opposition t many aspects of the bill it Id perhaps be a wise step by the Government to insert a sunset clause into bill. In this way it would operate for a limited time, at the end of which hievements could be assessed and reviewed. As a House of review unused to acting in that capacity, and still finding

rnment will incorporate in the bill some of the suggestions made. The fact that the Gove that mandate should be carried way, taking into consideration t liberty and justice to the citizen Constitution we are given power to of the people of New South Wales in this House, particularly to the t light and not for the purposc of s way. The Bible tells us that "In the wisdom". I believe w legislation in this Ho Government does not the people of this Sta one party. I believe th capacity eventually to we have hitherto seen

Addendum The Honourable J. 8. A. Dowd M.P., Attorney-General for New South Wales. CI- Parliament House. Macquarie Street. SYDNEY. 1738 COUNCIL 8 June. 1988

Dear Mr Attorney, RE: INDEPENDENT COMMISSION AGAINST CORRUPTION BILL I refcr to our telephone conversation this morning concerning the above Bill which is now in the Upper House and due to be debated there next Tuesday 7th June. The Bar Association obtained copies of the Bill, Explanatory Memorandum, and Second Reading Speech shortly after the Bill was introduced into the Lower House. A number of our members have been working on the Bill since then in such time as has been available. I have also given this Bill as much of my own personal time and attention as I have been able to spare. Needless to say the Bar Council is not opposed to the principles of the Bill for which the Government has a clear mandate. Indeed as President of the Bar Council I have gone on record as supporting the establishment of such a Commission in an interview with ABC radio in January this year. A detailed examination of the Bill however has revealed a number of provisions which arc objectionable in principle and go far beyond the Royal Commission's Acts of the Statc, Commonwealth and Queensland. Some of the provisions appear to us to be unreasonable. unnecessary and to entrench upon important civil liberties. I will endeavour to highlight the matters of major concern. The Judiciary No one can be unaware of recent events in this State involving members of the Judiciary and the Magisterial Bench. Nevertheless at the present time there are to the knowledge of the Bar Council no outstanding allegations of corruption against any State Judicial Officer. Moreover separate provision has been made in the Judicial Officers Act for the investigation of allegations of misconduct against Judges. That Act provides some important safeguards for Judges including safeguards against publicity being given to allegations which may later turn out to be completely unfounded. The Bar Council regards the powers of the Commission over Judges as totally incompatible with their proper standing and independence. If the Bill as it stands becomes law an officer of the Commission will be able to enter the Chambers of a Judge and inspect any copy documents in his Chambers without any leave of the Court and without any prior warning. (clause 23). The Commissioner would be able to required a Judge to provide a statement of information about a matter it was investigating (clause 21) and the Judge would be liable to 6 months imprisonment if he failed, without reasonable excuse, to provide that statement (clause 82). The attempt by the Government to bring the whole State judiciary within the reach of this Bill represents a massive vote of no confidence by the Government in our judiciary which in our opinion is totally unjustified. We would strongly urge therefore that the Bill be amended to delete suh-paragraph (0 of the dcfinition of "public official" in clause 3 (I). Search Warrants Clause 40 (1) provides that an authorised justice may issue a search warrant. Clause 40 (2) also enables the Commissioner to issue a search warrant himself thus by-passing the important and traditional safeguard embodied in clause 40 (1). The existing legal requirements under Commonwealth and Statc law which prevent public officials from entering and searching private homes and othcr buildings without a search warrant issued by a justice or other judicial officer is the basis of the maxim that an Englishman's (Australian's) home is his castle. We are not aware at the moment of any othcr legislation in Australia which allows a public official to issue a search warrant in his own favour. Wc would urge therefore that clausc 40 be amended by omitting sub-section (2) entirely. Corrupt Conduct The definition of corrupt conduct in clause 8 (1) (d) includes the misuse of information or matcrial by a public official "whether or not for his or her own bencfir". 8 June. 1988 CO'UNCIL 1739

This definition is wide enough to include the leaking of informat~onto the media in circumstances where the public official is acting with the highest of motives in the public interest. Witness the case of Sergeant Arantz honourably but formally reinstated by the Premier shortly after the last election. This legislation should not be capable of being used as the equivalent of the United Kindom Official Secrets Act. While no Government appreciates the leaking of official information or documents to the media it will have benefited from such leaks while in opposition. Until this State has a strong Freedom of Information Act unofficial leaks will continue to be an important check on the exercise of power by the Government and by public officials. This provision, and the wide powers of the Commission also represent a threat to the traditional freedom of the press in publishing information relating to the affairs of Government. We would therefore strongly recommend that clause 8 (I) (d) be amended to limit it to the misuse of information in return for bribes or personal profit or for other corrupt purposes in the ordinary sense of that word. Duty to Act Fairly The Bill in its present form does not appear to require the Commissioner to act fairly towards persons being investigated and witnesses called to give evidence before the Commission. While it is to be expected that any person appointed as the Commissioner will act fairly in the exercise of his wide ranging powers whether or not he is under a statutory duty to do so, we believe that it is important that such a duty be written into the Bill especially as the Commission is intended to be an on-going body which may function for many years before its work has been completed. We suggest therefore that a new sub-clause 3 be added to clause 17 of the Bill modelled on Section 39 of the Administration Appeals Tribunal Act (Commonwealth) which would impose a duty on the Commissioner- "To ensure that every person being investigated by the Commission is given a reasonable opportunity to present his or her ease, and in particular, to inspect any documents to which the Commission proposes to have regard in any report or in making any recommendation and to make submissions in relation to such documents." Clause 33 (2) of the Bill provides that the Commission is required to give a reasonable opportunity for a person giving evidence at the hearing to be legally represented. We would submit that this clause should be extended so as to give the right to legal representation to any person referred to in clause 32 of the Bill. Clause 32 we suggest should be amended by deleting the word "may" in the third line with a view to substituting the word "shall'. Clause 34 (1) of the Bill enables a person authorised to appear at a hearing or his or her legal practitioner to examine or cross-examine any witness on any matter that the Commission considers relevant, but this right is only exercisable "with the leave of the Commission". I understand from our telephone conversation this morning that the requirement for leave may be removed in the Committee stage in the Upper House. We would strongly urge such an amendemnt on the Government. At the same time we would point out that if the Government sees fit to adopt the proposed additional sub-clause (3) of clause 17 the Commission would retain a proper measure of control over its proceedings because it would be bound to give no more than a "reasonable opportunity"to such persons to examine or cross-examine any witness. Duty Not to Prejudice Fair Trial In our opinion clause 18 should be amended to ensure that the Commission does not conduct a hearing addressing issues raised in current or pending criminal proceedings in such a fashion as might prejudice the right of an accused to a fair trial. This is all the more important in the light of the Commission's right to disregard the rules of evidence (clause 17). to compel the answering of questions and the production of documents (clauses 21. 25 and 37) and to conduct its hearings in public unless it otherwise directs (clause 31). Powers of Arrest Clause 36 (2) (a) of the Bill enables the Commissioner to issue a warrant for the arrest of a person if he is satisfied that that person "will not attend before the Commission 1740 COUNCIL 8 June, 1988

to give evidence without being compelled to do so". Clause 36 (6) enables an arrested person to be detained in custody "until released by order of the Commissioner". We see no justification for the existence of such a draconian power to be exercisable against a person who may not have been summonsed to appear before the Commission. The existing power seems to us to be far more drastic than is required. Clause 36 (2) (a) should be amended to limit it to cases where a person having been summonsed to attend the Commission has failed or refused to do so. I have already drawn attention to the open-ended power to detain a person in custody who has been arrested under a warrant issued pursuant to clause 36. In our submission such an unrestricted power given to a public official other than a Judge is wholly unprecedented in peace time conditions in this country and is contrary to fundamental notions of civil liberty and the rule of law. We would strongly urge therefore that clause 36 (6) be amended to impose a duty on the Commissioner to release an arrested person on reasonable bail and on appropriate conditions which might include the surrender of his or her passport. Legal Professional Privilege Clause 37 (2) of the Bill provides that a witness summoned to attend or appear before the Commission is not excused from answering any question or producing any document "on any other ground of privilege". These words in their context clearly abrogate legal professional privilege a long established and most important privilege the maintenance of which is essential to the proper administration of justice in a free society. Generally speaking Commonwealth and State legislation has not sought to interfere with legal professional privilege which protects from disclosure, without the consent of the client, confidential communications between client and legal adviser for the purpose of obtaining legal advice or preparing for the conduct of litigation. As you would be well aware the privilege does not attach to communications brought into existence in preparation for or in furtherance of any crime or fraud and if there is some prima facie foundation for the view that the communications in question were undertakcn for such a purpose the privilege is lost. See Cross on Evidence 3rd Australian Edition 1986 at pages 645-6. In these circumstances we would most strongly urge an amendment to clause 37 (2) of the Bill which would entitle a witness to refuse to answer questions or produce documents if they were properly the subject of legal professional privilege. Liability Of Commission To Produce Documents On Subpoena Clause I I 1 (3) of the Bill protects from compukory disclosure to a Court documents which have come into existence as a result of the work of the Commission and knowledge gaincd by an officcr of the Commission in the course of the discharge of his or her duties. Clause I11 (4) however entitles the Commission to disclose information or produce documents when directed by the Commissioner. One of the first acts of the present Government has been to repeal the provisions of the Evidence (Amendment) Act 1979 passed by the previous Government which enabled the Attorney-General by the grant of a certificate to prevent the disclosure of documents or information to a Court. This legislation was rightly condemned at the time by the then Opposition, the Press, and I believe by the Bar Council and Law Society. The Government is to be commended on the prompt repeal of this legislation. Unfortunately clause 11 1 (3) of the present Bill re- introduces, by ~hcback door. a similar secrecy provision which is open to the same objections, Wc strongly urge the Government to remove clause 11 1 (3)from the Bill and in this way to demonstrate its continued commitment to the policy of open Government. In conclusion we would remind you of the remarks of Gibbs A.C.J. in Sankey v. Ukit/aiu ( 1978) 142 C.L.R, at 42 where His Honour said:- "If State papers were absolutely protected from production, great injustice would be caused in cases in which the documents were necessary to support the deftncc of an accused person whose liberty was at stake in a crimrnal trial." Conclusion ay have been additional amendments in the Lower House in addition to the 16 amendments notified in writing prior to the Committee stage but in the tine available it has not been possible to verify this. I also understand from our COUNCIL 1 94 1

conversation this morning that additional amendments may be moved in committee in the Upper House. A number of barristers have assisted me in thc research which has gone into the preparation of this letter. In view of the limited lime available it is possible this letter contains errors. Of even greater importance is the possibility that we have overlooke important matters which would require yet further amendments. In the circumstances we would strongly urge the Government to allow the Bill to be considered by an all party select committee in the Upper House with a mandate to report back within say 14 days to enable these matters to receive proper consideration. I would point out that the legislation is intended to be permanent and therefore more care than might otherwise be required is called for before this legislation passes into law. Yours sincerely, K. R. HANDLEY Q.C. President Postscript A cross check conducted by a Queen's Counsel who is a member of the Bar Council between the provisions of this Bill and the provisions of the National Crime Authority Act has revealed that in a number of significant matters referred to in this letter the powers of the Corruption Commission are more extensive than those of the National Crime Authority. This in itself indicates how extensive and far reaching are some of the powers of the proposed Commission under the Bill in its present form but the matter is even more serious when one has regard to the fact that the National Crime Authority conducts its investigations in private. While in some respects this restriction on the powers of the National Crime Authority may be undersirable it does provide a strong safeguard to persons under investigation in protecting them from damage to their reputations and media publicity which in the end may be shown to be quite unjustified. The fact that the proposed Corruption Commission will conduct its hearings in public makes the safeguards referred to in this letter of even greater importance. A cross check against the State Drug Crime Control Commission Act has also established, at least prima facie, that the powers granted under the present Bill are more extensive than those granted to the Drug Commission in the areas addressed by this letter and once again persons under investigation by that Commission have the important safeguard provided by the requirement that the Drug Commission conduct its investigations in private. The Hon, B. H. VAIJGHAN [5.31]: I feel the same frustration this legislation as I did about the Judicial Officers Bill. On the occasion Judicial Officers Bill, of course, my complaint in this Chamber was although my complaint in the party forum was strident. That is how politicai parties function, as you, Mr Deputy-President, know better than anyone else here. Two bills have moved me to wrath in my time in this place. 1 have just mentioned what one was. I was on the wrong side, in my view, on that occasion and I did what the Leader of the Government would do in similar circumstances. The Hon. R. D. Dyer: Do not take the confessional too literally. The Hon. B. H. VAUGHAN: I will come to that in a moment. I was in the wrong on that occasion. On this occasion I am on the right side and I can vote accordingly. On this side and on the crossbenches we have heard a detailed censure of this legislation. I believe that the masterly dissection of the bill the Hon. I. M. Macdonald leaves very little to add. I am sure it occasion some soul-searching in the hearts and minds of the very decent people on t other side of this Chamber-just as it dld on our side. I find execrable clauses 21, 22, 23, 37 (2)and 83. It could well be in those days, 30 years ago, when I was an associate to a High Court judge, that I became a bit overimpressed by the judiciary, but I have been unable to slough it off. I still have what might almost be a reverence for the judiciary in this State and in Australia. 1742 COUNCIL 8 June, 1988

In the history of the legal system of New South Wales, a system of which all members of this House should be truly proud, never has there been a more inglorious altercation than this among the administrators of justice, the Government, the Attorney General, his department and the judges themselves. In New South Wales we can be truly proud of our judicial system and of the officers who administer it. In the Supreme Court, the Court of Appeal, the Industrial Commission, the Land and Environment Court, the District Court and the Local Court, we have a system of judges remarkably free from any question of corruption, remarkably free from any criticism of judicial performance. Not a word of that is mine, of course. All words from the phrase "in the history of the legal system" are the words of John Dowd, shadow attorney general, New South Wales, in October 1986. The Hon. E. P. Pickering: He would not resile from those words today. The Hon. B. H. VAUGHAN: The Leader of the Government has just interjected: he would not resile from those words today. The Hon. E. P. Pickering: Of course he would not. The Hon. B. H. VAUGHAN: He has interjected again: of course he would not. I do not think he would either, but I wonder whether he has lost some of the respect for the judiciary for which he has been renowned, and renowned for a long time. I read in the Sydney Morning Herald, I think of yesterday, that he, John Dowd, said: Well, with the greatest respect, it is too late for the judges. They have had six to nine months to concern themselves with this. Just swept away-swept away. The Hon. R. D. Dyer: He said they are too late. The Hon. B. H. VAUGHAN: He said they were too late, too late. "You have had six to nine months", he said to them. "Why have you not done something about that to date?" Well, quite rightly I suppose, they never imagined this lot would be in government. The Hon, Deirdre Grusovin: They also did not know what was going to be in the legislation. The Hon. B. H. VAUGHAN: How could they. I shall quote Mr Dowd again. Referring to judges generally in this State, he said they: -not only obey the law, but indeed carry it out. They will do that without fear or favour because of the tradition of independence that has carried through from the time the English law came to this colony, and from the time our judicial system was set up. This is a common law country with the best judicial system in the world. We all agree with that, but how can you stand by that sort of utterance and produce those several sections that I have just put to this House in the context and understanding that judges are included in all of that lot? With what anguish, however, John Dowd-a thoroughly decent person-must have introduced the bill that is the Independent Commission Against Corruption Bill (No. 2). They had one go at it, and this is the second go at it. On the first occasion the Premier of the State, because it is his bill, introduced the bill. Poor John Dowd had to introduce it on the second occasion. I have referred to some clauses and I shall read them. I am inclined to think that most people have not had a proper look at this legislation. Clause 21 (1) states that: For the purposes of an investigation, the Commission may, by notice in writing served on a public authority or public official, require the authority or official to produce a statement of information. 8 June, 1988 COUNCIL 1743

Of course what Ken Handley was talking about when he said he wants the definitions changed is that he wants the Government to realize that a public official is a judge, and a judge is a public official. Here is legislation requiring that judge to produce a statement of information. It must have surprised you, Mr Deputy-President, when you read that. Clause 21 (2) provides: A notice under this section must specify or describe the information concerned, must fix a time and date for compliance and must specify the person (being the Commissioner or an Assistant Commissioner) to whom the production is to be made. Can one imagine the President of the Court of Appeal receiving such a notice? Clause 21 (3) provides: The notice may provide that the requirement may be specified by some other person acting on behalf of the public authority or public official and may, but need not. specify the person or class of persons who may so act. Why was not a judge's tipstaff included in paragraph (3)? Clause 22 (1) provides: For the purposes of an investigation, the Commission may, by notice in writing served on a person (whether or not a public authority or public official). . . It does not matter whether it be Sir Laurence Street or someone else: require the person- (a) to attend. at a time and place specified in the notice, before a person (being the Commissioner or an Assistant Commissioner) specified in the notice; and. . . Can honourable members imagine the parliamentary salaries tribunal, Mr Justice Slattery, being required to attend, as provided in a notice? Can honourable members imagine an imperial ukase, of the type used in Tzarist Russia, being sent to a judge? A knock would be received at the judge's door, which would be opened by the judge's tipstaff. The person serving the notice would say, "I want to see Mr Justice Slattery". He would see the judge's associate and he would say, "Listen, we want Mr Justice Slattery down the road to make one of these statements of information". What balderdash. Can honourable members imagine that happening? Who in heaven's name could have put this legislation together. The answer will come out in time. Clause 22 (2) provides: The notice may provide that the requirement may be specified by some other person acting on behalf of the person on whom it was imposed and may, but need not, specify the person or class of persons who may so act. In the scenario I have just sketched Mr Justice Slattery could send perhaps his tipstaff and his associate, which may even purge the absence of Mr Justice Slattery. Clause 23 (1) provides: For the purposes of an investigation. the Commissioner or any officer of the Commission authorized in writing by the Commissioner may, at any time- (a) enter and inspect any premises occupied or used by a public authority or public official in that capacity: and . . . Just what does that paragraph mean? One could barge into premises and inspect any premises. I do not wish to give the Government a free kick, but I am sure that this is not what the Government intended. Not for one moment do I think that the Leader of the Government in this House intended this. I have been informed that there may finish up being 90 to 100 staff employed, and I am sure that the Leader of the House did not for one moment intend that one of that number would knock on the door of a judge's chambers-the chambers of Mr Justice Priestley, Mr Justice Bryson, his Honour Judge Jim Staunton, or Judge Frank McGrath-to serve such a notice. If the Minister did not intend raph (b) of clause 23 (1)

(b) inspect any document or other thing in or on the premises; and . . . o'clock in the morning reading a at at 10 o'clock he will commence a heavy case load, and and take His Honour's transcript. Surely that slation. Surely it was not intended that any s could be inspected. They might his oath when he took Her Majesty

(c) take copies of any document in or on the premises. I cannot imagine the Hon. J. J. Doohan intended this to be what the legislation Clause 23 (2) provides: ion (I) does not authorise the inspection of a document or thing, or the s of a document, . . . Jln my teenage days this provision would have been called a howler. It continues: . . . so far as the document or thing concerns the relationship between the State Bank or the Government Insurance Office and a client of that Bank or Office. What is wrong with Westpac Banking Corporation or the Commonwealth Bank sf Australia? What about the Mercantile Mutual Life Insurance Company Limited? This legislation is unbelievable. Clause 23 (3) provides: The public authority or public official shall make available to the Commissioner or authorized officer such facilities as are necessary to enable the powers conferred by this section to be exercised. 1 have drawn to the attention of honourable members those clauses that concern me, clauses 21, 22 and 23. I now address clause 37 (2). All honourable members have their hobby horse; this clause relates to one of mine. This impiausible, eccentric clause provides: A witness summoned to attend or appearing before the Commission at a hearing is not excused from answering any question or producing any document or other thing on the ground that the answer or production may incriminate or tend to incriminate the witness. or on any other grwnd of privilege, or on the ground of a duty of secrecy or other restriction on disclosure, or on any other ground. The Leader of the Government in this House has a love for the parliamentary system, which most members in this House share. I and my honourable and gallant colleague the Hon. M. F. Willis, the Hon. Deirdre Grusovin, the Hon. T. J. Moore, and others who served on the Joint Select Committee upon Parliamentary Privilege want to know what sort of dragnet phrase is, "or on any other ground of privilege". I am sure that that is not what was intended. The Non. E. P. Picketing: Yes, it was intended. The Nan. B. H. VAUGHAN: In that case, so long as the Leader of the Government is able to justify that action, I will accept what he says. However, not wishing to be intransigent, I am inclined to think that this provision is a draftsman's error, a blunder of the highest order, and the sooner it is expunged, meaning thereby the privilege of this Chamber and of this Parliament remains sacrosanct, the better. I am not talking about perquisites. I am one of those ho believe that the privilege of Parliament does not extend beyond the four alls of this Chamber and the four walls of the other place. If we wanted to change that position, as the Parliament of New South Wales, we can do anything we like. As old Dr Curry used to say, Parliament can do anything but make a 8 June. 1988 COUNCIL 1745 man a woman. That was one of Dr Curry's favourite expressions. As members of Parliament, we can decide what will be the privileges of this Parliament. The Hon. J. P. Hannaford: Does clause 24 (2) provide an exemption? The Hon. B. H. VAUGHAN: I shall refer first to clause 37 (2). That clause is dangerous and must be looked at. Clause 83 provides: A person shall not, without reasonable excuse, refuse or fail to comply with a notice served on the person under section 22. That clause puts the judges that I defended last evening, that I am defending tonight, and will go on defending, in a situation where they may be carted off if they do not comply with clause 22. No Government could possibly have intended that. Last night in debate on other legislation I said that we politicians have probably earned the disdain that the public of this State and nation has for politicians because we get bad press, which we may deserve in some cases but in many instances not. But the moment a judge goes to press he is villified for the remainder of his career. Judges do not deserve and have not earned the bad press they have received. When the man in the street says that this judge is corrupt and that judge is corrupt, usually you know he is talking about some magistrate of the 1920s or the 1930s, and the folklore is passed down forever that that magistrate has too much to do with the police and the like. With the exception of one recent difficult matter, no one has pointed a finger at a judge in this State. Yet the man outside this place does not give a fig, I am sure, about legislation such as this, which will emasculate and denigrate the functions of our judiciary. If we do not have judges on our benches, let us have chaos. What is the use of this spot? I read in the Public Law, a British journal of administrative law, an article by the Vice-Chancellor of London University. He said: If you were to ask a thinking man whether he regarded the independence of the judiciary as important. he would almost certainly answer, "yes". If asked to explain what he meant by the words. he would probably say that a judge should be free of any pressure from the Government or anyone else as to how to decide any particular case. That is worth repeating: . . . he would probably say that a judge should be free of any pressure from the Government or anyone else as to how to decide any particular case. The vice-chancellor went on to say: For that reason a judge's salary is not dependent on Executive decision but is paid out of the Consolidated Fund and cannot be removed save by resolution of both Houses of Parliament. If pressed further and asked why judicial independence was important, our thinking man might at first hesitate, but in due course the answer would be along the lines: "The courts are there to protect the rights of the individual as against the State by insuring that Executive powers are lawfully exercised". The article continued: That is the general concept of judicial independence. Nothing I say should be taken as suggesting that judicial independence in decision-making in court is any less honoured today than it was in the past. But I do see a different and more insidious threat to the independence of the judiciary as a collective body as opposed to the independence of each judge as an individual-a threat to the independence of the legal system as opposed to the judges who operate it. The threat arises by reason of the Executive's control of finance and administration. 1746 COUNCIL 8 June, 1988

Of course, we would add to that an Independent Commission Against Corruption. On 30th September, 1986, the judges of the Supreme Court issued a media release about the bill I spoke of earlier. It is my view that one could adopt that media release for the purposes of this bill, for it said: Any proposal, such as th~sB111, whlch has the potentla1 to compromise the mdependence of the Jud~c~aryand thus to affect the people's r~ghtto justice, necessar~ly requlres the most extenslve examlnatlon and publ~cdebate. The proposal affects the Judmary as a whole. It should be d~scussedoutside Parhament, and debated and dec~ded In Parhament, on non-party poht~calImes. The Attorney General [of that day] has descr~bedthe B~llas revolut~onaryand unprecedented Yet it has been mtroduced w~thextraordmary haste for which there IS no just~fication There has been no publlc debate and no opportunity for the deta~led constderat~onwh~ch such a measure demands. Th~sPubl~c Statement IS dehvered to the Attorney General [of the day] with the request that ~tbe transmitted to the Pres~dentof the Leg~slatweCouncd and the Speaker of the Leg~slat~vcAssembly. Mr Deputy-President, I am probably over-preoccupied with the judiciary in this State. But I have been involved with it for 30 years, and I realize you have been involved with it for an even longer period. I cannot understand how, in 1988, we in this place can put the judiciary of this State in the position into which this bill will put it. Having said that, I want to say just one other thing. I heard the Hon. Marie Bignold refer to a news release issued today by the Catholic Archdiocese of Sydney. I have a copy of that news release. I am thinking that there is no way that the Leader of the Government in this House-or anyone on that side, let alone anyone on this side-intends that this measure should place at risk the seal of confession, as we say. That makes one think about the patient who goes to a medical practitioner. What about him? And what about the medical practitioner? This Government does not intend that; I am sure it does not. Well then, with the least acrimony possible, and with the least time necessary, we all ought do something about it. I have here 35 pages of references and remarks that some people consider I should make. I do not think I have to say a single word more than I have already said. I shall take these documents and references and sit down, because those are the matters that excite me-those are all the matters that, together with other points raised in the House this afternoon, have to be raised about this bill. The Hon. E. P. PICKERING (Minister for Police and Emergency Services and Vice-president of the Executive Council) [6.1], in reply: The bill before the House is most important. Many members have spoken most eloquently on the measure and it behoves the Government to take on board the submissions and give them careful consideration. For that reason I intend to adjourn the debate to a later hour of the sitting to enable the Government to consider the matters raised and provide the House with a detailed and well- considered response to the second reading debate. Motlon by the Hon. E. P. Pickering agreed to: That this debate be now adjourned to a later hour of the slttrng SUMMARY OFFENCES BILL JUSTICES (SENTENCING) AMENDMENT BILL Second Reading Debate resumed from 2nd June. 8 June, 1988 COUNCIL 1747

The DEPUTY-PRESIDENT: Order! Before I call upon the first speaker, who will be the Hon. Elaine Nile, I draw the attention of honourable members to the fact that this will be a maiden speech. I expect that honourable members will extend to the Hon. Elaine Nile the traditional courtesies. Honourable members will be grateful that the Hon. Elaine Nile knows that her husband is present in the Chamber; I have no doubt that will be a source of great comfort to her on this most auspicious occasion. The Hon. ELAINE NILE [6.3]:I support the Summary Offences Bill and cognate bill though I am concerned that the legislation does not go far enough to meet the genuine needs of the people of New South Wales. At the outset I wish to congratulate those new members who were elected to the House in the recent election, especially those who have already made their maiden speeches which have contributed much to discussion and debate in the Chamber. I refer particularly to the Hon. Richard Jones. I also wish to thank you, Mr Deputy-President, the President, who is absent from the Chamber, the Clerks of the Parliament and the staff for help they have provided in the settling-in period. No doubt most new members feel overawed when they are elected to a Chamber such as this. Being a member of the public gallery is very different from being a member of the Council. It is a privilege and an honour to be a member of this House, having regard to the difficulty experienced by the Call to Australia group in receiving acknowledgment of its candidates in the recent election. The Call to Australia group was censored completely from the news media, including television and newspapers. In one instance stories were ready to go to press in one northern newspaper when suddenly a D4 notice was issued and the stories were removed completely from the copy for that day. Older members of the House will recall that a D4 was used in wartime in the area of censorship. It is a miracle that I am here today representing the Call to Australia group. We realize that the people at the grass roots of society who really care about family life and godly values voted for us. I wish to thank, first, my husband. Sometimes he is hard to put up with, but I know that I am not so easy to put up with at times. However, we have been married for 30 years. You grow to think alike and even to speak alike, as many honourable members will know. I thank him for the patience he has shown over the years. I also thank the workers in the Call to Australia movement. They are just ordinary men and women who love their families and family life and want the very best for their children. I thank them very much for their work in manning the polling booths at the recent election. Years ago the former Leader of the National Party, Leon Punch, commented on how happy the Call to Australia workers were, especially in his electorate. We took that as a compliment. Their aim is to help in legislating for godly government and for laws that will uphold the traditional family in marriage and protect the family unit from abuse. The Call to Australia group believes that the family is the most important unit in society and must be protected. Its members think also of the unborn child who cannot speak for itself. During the recent election it was interesting to note that a member of Parliament said that the Call to Australia group had voted in favour of abortion on demand. Until then a vote on the issue of abortion had never been taken; no doubt that example shows that politicians become confused now and then. I wish to read to the House some of the scriptures on which the Call to Australia group bases its family policies. Genesis 2:22-24 states: 1748 COUNCIL 8 June, 1988

And the rib, which the Lord God had taken from man, made he a woman, and brought her unto the man. And Adam said, This is now bone of my bones, and flesh of my flesh: she shall be called Woman, because she was taken out of man. Many honourable members will have realized that mamage is a mystical union. When my mother died, my father realized the truth of that passage from Genesis. He said, "I feel as though part of me has gone". Many honourable members have experienced the feeling of becoming one flesh. That is the importance of marriage. Mark 10:6 says, "But from the beginning of the creation God made them male and female". Probably that is not acceptable to the feminists who believe that man and woman are one. On the importance of marriage, Mark 10:9 reads, "What therefore God hath joined together let not man put asunder". The Family Law Act does just that. Proverbs 18:22 says, "Whoso findeth a wife findeth a good thing". I like that passage. Hebrews 13:4 says, "Marriage is honourable in all, and the bed undefiled: but whoremongers and adulterers God will judge". The Call to Australia group unashamedly bases its policies on the word of God in Holy Scripture. The Summary Offences Bill does not go far enough. Despite the Government being elected with a massive mandate to restore law and order in New South Wales, to make our streets safe, to clean up prostitution in kngs Cross, Darlinghurst, city areas, and especially suburban areas along Canterbury Road, many of the proposed changes in the bill are minor. Born in Waterloo of working-class parents, I am concerned about our city. I was the third child of Luke and Jessie Crealy. My father was one of the original glass- blowers apprenticed to the late "'Knock-out" Smith, well known in the glass industry and the horseracing industry, when his operation consisted of one tin shed. My parents were honest and very outspoken. I grew up in an era when some infamous shootings took place in that area. Sometimes I think that people believe that Fred Nile must have been born in a convent. That is not meant to be a slur on convents. However, the media particularly seem to think that the Niles do not know anything about life. Maybe we know a little more than some honourable members in this House. I can well remember some families and the hardships they had to endure. I recall husbands who would collect their wages at the end of the week, put a little aside for Saturday, and go to the hotel to drink away their money. Although they had seven and eight children, their families stuck together. That does not seem to happen these days. Even though in those days families had problems, there was something about marriage, and families stayed together. I remember one man from a well-to-do family who was in the legal profession. He went on the bottle and lost his family and his profession. It was a terrible thing to see him always wandering around with a methylated spirits bottle wrapped in a brown paper bag under his arm. Neither my husband nor I have any truck with hotels or clubs opening 24 hours a day. In our own families we have seen people suffering, going down, and not getting up again. I thank God for those days because I believe that we who are older have seen the other side of life. We have seen the goodness that has resulted from families staying together. Before my marriage I worked as a comptometrist, and after marriage I was a clergy man's wife. I worked also with my husband at Reverend Alan Walker's Central Methodist Mission, at 210 Pitt Street, Sydney. There, we were into the prostitution scene, and kids on drugs. Even in those days two of the Murphy boys would come to the coffee shop that we ran in the city each 8 June, 1988 COUNCIL 1749 Saturday night. Fred has been bashed and cut up with a jagged bottle, and so on. Even in those days some of the sharpies would come in and play dumb. They wanted somewhere to hang out and play the pinball machines. That was how the mission operated. It took one group 12 months to get through to those young people. None of them wanted to talk. Yet, they were kids, someone else's children. They belonged to a family. One night another group of young people came to the coffee shop and were out to get the first group. In the mission that night the lights went out, the tables were overturned, there were bottles flying, and Fred was cut up. The most beautiful thing is that no one was beyond redemption. When the 21 squad arrived they took Fred and all the young people down to Central police station. They were all lined up with bloody faces and bloody clothes. Fred had to go along the line and say who were the good guys. I was proud of them that night because they realized what side they were on, and they turned the tables on the other group. I remember a 15-year-old girl coming to us, frightened out of her wits. She had become a Christian, but she was in the prostitution scene at Kings Cross. She wanted to get out of it, but she said it was not as easy as might be thought. She said that she had been threatened with being slashed and scarred for life. Of course, that was very frightening for a young girl. Fred and I have had young people in our homes who have had drug problems. One girl came from a religious home. She was introduced to the drug scene in a club by her brother. To keep her habit going she was working as a prostitute at Kings Cross. She was only 19 years of age. We put her in the Langton Clinic twice. However, each time she returned for some reason. On one occasion she came home with an alcoholic with one leg, and of course they played on our sympathy. Finally we took her out of the clinic and sent her to a country Christian establishment at which there was no replacing one drug with another. She had to go cold turkey. Today she is married and has children and is free from her former problem. Young people can be assisted to kick the habit. I believe the Government should have a clearer policy on helping children who are on the streets with a drug problem. A few years ago when we were in Israel we visited a drug clinic in Jerusalem. A doctor there said that because Israel was in a state of siege they could not afford to have their young men and young women drugged. He said that they treat drug addiction seriously, and that the only way to cure it is to make addicts go cold turkey. I wish our Government would come to grips with what is happening with young people at Kings Cross and in the suburbs. It is. pitiful to see such children wandering around, getting clean syringes, and on it goes. It was suggested in this House and by officers of NACAIDS that young people who have a habit should be given syringes of pure heroin. That is disgusting and disgraceful. They should have children on drugs in their own homes to see the hell that those children and their parents go through. Prostitution and drugs go together. Fred and I have four children, three sons and one daughter. Two of our sons are police officers. The third is a physical education teacher. Until recently our daughter had worked for more than three years at a rehabilitation hospital. I am a Christian and I do not have any doubts about my faith as it is in the living word of God, Jesus Christ, and in the written word of God, the Holy Scriptures, the Bible. The way I live and what I believe is based on that. At the age of 16 I accepted Christ into my life. I did not grow up in a religious family. A number of years ago I found out that our family included a number of closet drinkers who belonged to the brethren. Maybe that is why my father was not too keen on the church. During the past 1750 COUNCIL 8 June, 1988 30 years we have had some traumatic experiences, but I can testify that Jesus Christ himself, and a personal faith in him and prayer, has taken us through. I remember one occasion when at the age of 1 I months one of my boys had a tracheotomy. From then on until he was about 10 years of age I was taking him backwards and forwards to hospital. On occasions he would simply stop breathing. One day a taxidriver said to me that he thought all we religious people had something going for us and never got sick. Well, the good and the bad suffer the same. I believe that as parliamentarians we should subscribe to the highest ideals in legislation, instead of being defeatist and taking the easy way out by legislating for the lowest common denominator. Governments have been legislating for immorality. At times, Christians seem to have the suggestion that they should not force their morals on society. That belief has contaminated a number of Christians. The previous Government did not legislate for morality; it legislated for immorality. That Government had a real problem. On 4th July, 1987, when Premier Wran resigned his office, he made the following statement on television: What we d~din ten years was to change the lives of eople and when you change the lwes of people In New South Wales you change Australia. I shall read that again because it is very important. Mr Wran said: What we did In ten years was to change the lives of people and when you change the hves of people In New South Wales you change Australia. I believe Mr Wran was expert at that. By his legislation, and the summary offences legislation in particular, he changed the lives of people in New South Wales. I am not talking about a great conspiracy. If honourable members examine legislation that has been introduced, they will see that it effectively has changed the lives of people. One might ask, what is a change? A change agent can be an individual, an institution or an organization, that sets out to change the four most important things in a person's life-that is, their beliefs, values, attitudes, and behaviour-without their knowledge or consent. If one thinks particularly about what happened following the repeal of the Summary Offences Act in 1979, one will see that the former Government did exactly that. Some changes have been brought about by the news media-that is the television and newspapers-the education system, the New South Wales Teachers Federation, the trade unions, the universities, and political parties. The attitudes of younger honourable members are possibly different from those of older members. I know we have all softened up in the gradual change. I remember when we brought Malcolm Muggeridge to this country a number of years ago. He used to tell the story-all honourable members would have heard it-of putting a frog in some cold water over a burner. As the water heats up slowly, the frog becomes accustomed to the heat until, finally, when the water is boiling, it is too late for the frog to jump out. That is what we have been like over the past 20 years or more. Society has been changing very slowly, and we have gradually accepted that change, until now the people of New South Wales are screaming out about prostitution, the education system, the change in values, the kids on the street and the use of four-letter words. All of a sudden everything was hit. Last year we had a meeting in the Bathurst Red Cross Hall. About 40 students from the college of advanced education met us outside the hall. Some of the male students had inflated condoms attached to sticks. The girls-and indeed the men too-were fairly ragged looking. We invited them into the hall. It was a bit of a shock to the square, Christian people who were there. The students sat on one side of the hall and screamed out four-letter words all night. 8 June, 1988 COUNCIL 1751

A family man said, "would you mind taking down those condoms; we find them offensive". The students said, "No way". A young man sang out, "I want my homosexual rights". I said, "You have got your homosexual rights. You may have something else more than you bargain for-AIDS, as well". He then sat down. Those students are the young people who will go out to our schools and teach our children. Yet they cannot see it. By repealing thc Summary Offences Act in 1979 the former Government opened wide the doors by taking away police powers, and brought in the civil liberties do-your-own-thing philosophy. In those early days just after the repeal of the Act a police officer laid a charge against a man who dropped his trousers and exposed himself in front of a family group. I should like honourable members to consider how they might react if they were with their families and young children and something like that happened. The magistrate dismissed the charges because he did not believe the constable was a reasonable person. The same sort of thing happened when a couple of police officers laid charges against nude males on public beaches. Again the charges were dismissed. Some police had their knuckles rapped because of their attempts to enforce the summary offences law. Is it any wonder that the morale of the police has fallen? Not long after the repeal of the legislation some senior police officers resigned from the Police Force because they were frustrated when they could not carry out their duties. The Call to Australia group has always supported the police in this State. There is always a rotten apple in every barrel. Whatever that barrel might be labelled-whether it be police, judiciary, Parliament, customs-we should still encourage the majority of police, who are good honest men. They protect the community. I suppose the first person honourable members would call if they had a problem would be a policeman. We have been robbed a number of times, even while we have been asleep in our own home. The first person we called for was a policeman. I know a lot of police officers put their lives at risk. I suppose when one is a mother who has two sons in the police force one may have a biased outlook. I remember an incident when one of our boys had just come out of the Academy. Most honourable members will remember the man Munday, who was facing murder charges; he was placed in the Morisset psychiatric hospital, but escaped. On his way to Sydney he abducted a mother and child and murdered them both. He was then seen in the Balmain area, where one of my sons was stationed. That boy, who was 19 years of age, was put at the back entrance of the premises where Munday had been seen. A detective was stationed at the front door. Munday had a shotgun; my son had just a pistol. As a mother I am very much aware that many young policemen put their lives on the line, yet so often they are denigrated and put down by the media and politicians. I do not know what we would do without them. The Government is making major claims for the proposed Summary Offences Act, yet many of the changes appear to be only cosmetic. I am not going to go into the bill in depth or carry out a great academic exercise. I shall talk about something simple that, sad to say, has been accepted by many people and by both the former Government and this Government-and that is, prostitution. Prostitution is defined in the dictionary as the use of one's body, honour, talents, et cetera in a base way; a prostitute is a women who gets money for immoral behaviour with men, especially for indiscriminate sexual intercourse; and a person who does base things for money. I cannot imagine that any woman in this House would be in favour of legalized soliciting on the streets of Sydney and legalized prostitution. The Sydney Morning Herald of Wednesday, 1st June, reported: 1752 COUNCIL 8 June, 1988

The bill for the first time defines the act of prostitution. Under the present Prostitution Act, which is to be repealed, the only offence which a person who engages in prostitution can be charged with is offensive behaviour. Prostitution will include sexual intercourse between people of the same sex. That means homosexual prostitution as well. Over the years some honourable members have probably been to Kings Cross and seen the stable of girls ranged in rows along the main street-little girls, some of them 12 years of age, in their little outfits-completely controlled, selling their bodies to men. I believe that only a man would encourage prostitution. We once referred to prostitutes in Hamburg who sit in windows as being like hunks of meat set up for sale in a butcher's shop. Someone thought that was pretty crude, but a woman on the streets selling her body for money is pretty crude. Honourable members should think how they would feel if one of their daughters prostituted herself. It may not be all right for one of their daughters to do it, but is it all right for someone else's daughter to do it? The role of morality is to set a high standard to which all may aspire. Professor Dunstan of London University put it this way: Life in society is to be lived above law, not by it. . . Criminal law exists to secure minimum standards of behaviour for the protection of society. The laws against prostitution must be related to the protection of society. This protection needs to extend not only to individuals within society but also to the great institutions such as marriage on which the whole fabric of our society depends. Professor Mitchell of Oxford University said: The function of the law is not only to protect individuals from harm, but to protect the essential institutions of a society. These functions overlap, since the sorts of harm an individual may suffer are to some extent determined by the institutions he lives under. Prostitution has sometimes falsely been termed a victimless crime. Prostitution always has victims. We consider these victims and the harm they suffer because care and concern for present and future generations of Australians is at the heart of this issue. Some years ago the Labor Party held a victimless crime seminar. People who attended that seminar talked about suicide, prostitution and drug addiction as being victimless crimes. All of those things have victims. The persons involved and the families that surround and love the victims are all victims. The female prostitutes who perform sexual acts with men in return for monetary payment are themselves the first victims. The harmful effects of prostitution are attendant upon an increased involvement in the life of prostitution with a correlated decrease in social relationships with others outside that world. Once the commitment to take money has been made, that female has given up even the pretence of an emotionally valued relationship with the male. The life of prostitution, like other forms of deviance, commits a person at the most deeply experienced level in a world where the private sexual experience has been depersonalized. The prostitute's capacity to return to conventional society is thereby reduced. Some prostitutes marry out of the life, while others drop into occupations at the margin of delinquent communities. Others remain in the system because they have police and prison records; still others because they are drug addicts. Prostitution in nearly all countries is characterized by secrecy, intense occupational involvement and difficulties in leaving the so- called profession. Its ties with the criminal underworld leave the prostitute open to harassment, not only from the police but also from other prostitutes and other members of criminal subgroups. Dr Paul Wilson, the criminologist, conducted a television interview with a prostitute. I should like to read to the House some of the questions and answers, which made up that interview. They are: 8 June, 1988 COUNCIL 1753

Q. When did you become a prostitute? A. About five years ago. Q. Do you enjoy your work? A. No, frankly. no. Q. Did you enjoy it when you first started? A. No I didn't. I enjoyed the money coming in but not the actual sex part of it. Sometimes. rarely, I did. Q. Do you enjoy the sex ever, now? A. No, it's just a job. Prostitutes would be ashamed to admit they did. Q. Does being a prostitute colour your attitude to men? A. Definitely. because you think that every man you meet is just going to want sex from you. Q. Does it destroy your capacity to be able to love? A. Yes. definitely. Q. Do you find being a prostitute hardens you? Do you regret being unable to take your place with other women? A. I regret not being able to marry and lead a normal life but I am not ashamed. Q. Do your clients ask for a lot of perversions? A. Yes, they do. Q. What percentage of men would ask for these? A. Eight out of ten. Most girls who become prostitutes serve an apprenticeship to a more experienced prostitute or a pimp. During this training period, which usually lasts about three months, the girl gets over the traumatic adjustment to exchanging sex for money. She also learns how to solicit customers, set the price, collect the fee, manage the sexual contact and dismiss the customer. In one sample of 33 callgirls all but one commenced with some kind of apprenticeship. Some girls approached longstanding friends to learn their trade and a few had lesbian relationships with their contacts. Those girls who had a pimp as a first contact usually had a romantic relationship with him; but this was not always the case. In other cases the pimp made the first move and solicited the girl. Teenage girls who drift into prostitution in search of easy money and false glamour become victims. By selling their bodies for depersonalized sex they become cynical towards men, lose the capacity for love and affection and usually destroy any hope for stable marriage. Brutal attacks by clients and pimps are common, and so is drug addiction. Venereal disease is a constant threat which, if undetected, can leave the girls sterile. The pimps, madams and prostitutes who provide the training for this life of degradation are surely guilty of one of the worst crimes of exploitation. Any government that allows that to contmue is guilty also of the worst kind of exploitation. The problem is that prostitution has been glamorized by the media, by visits to this country by high-living prostitutes from the United States, by films on television and in movie houses which certainly do not show the sick, sad side of this way of life. Clients use prostitutes for a variety of reasons. For many men, especially in the lower class, the motive is often simply sexual relief or the opportunity to experience a novel sexual contact-either with a new female or a taboo technique. However, for many other males, more commonly middle-class, novelty of partner and technique are certainly involved. An equally potent factor, it seems, is the lack of future responsibility for the cansequences of sexual contact. Psychology suggests that under ordinary peacetime conditions those who habitually resort to prostitutes do so not as a matter of custom or habit 1754 COUNCIL 8 June, 1988 but rather because of a deep-seated psychic maladjustment-the same basic kind of regression or infantilism from which the prostitute herself most probably suffers. The prostitute satisfies a psychopathological demand. This bill will not stop prostitutes from soliciting on the streets of New South Wales. For example, how is the Government going to get the prostitutes off Canterbury Road by simply adding the words, "within view from" contained in clause 19 (I)? That clause reads: A person in a public street shall not, near or within view from a dwelling, school, church or hospital. solicit another person for the purpose of prostitution. What is to stop prostitutes from soliciting on Canterbury Road outside a car yard, away from private dwellings or homes? A senior police officer has said to us that this new legal concept will be difficult to implement. Does a police officer have to stand on the porch of a house or look through a window of a house to try to spot the prostitute? Perhaps this new so-called tough Summary Offences Bill should be called the spot the prostitutes bill. Was there consultation with the police before this bill was drawn up? I thought the Government may have learned from what happened with Aboriginal land rights. It did not consult with the Aborigines before it stepped into hot water. The Government says it will be an open government. Let it be seen to be an open government so the people will know what it is intending to do. I hope I will be proved wrong, but in my view this bill will need further review and amending as we monitor how it works in practice. The people of New South Wales do not want prostitutes soliciting on the streets for illegal or legal brothels. What will happen to the large number of illegal brothels if there are no police powers to close them down. What happened about the illegal brothel Touch of Class in Surry Hills? The city council tried to close it down. The council went to the Land and Environment Court. Mr Justice McClelland said it was not a moral question but it was a very well run brothel. What has happened about that? Is the brothel still going? The Hon. E. P. Pickering: I do not know. The Hon. ELAINE NILE: I would like the Minister to find out. The people of New South Wales want to know: Are police going to close down the illegal brothels? A report in the Sydney Morning Herald on 12th May demonstrates clearly that both male and female prostitution will continue on the streets of Sydney after this bill is passed. That article is headed "End of The Wall may put boys beyond help". I would never have dreamed that I would have to defend young girls or young boys in prostitution, but governments really do not care. I have been to the wall and I have seen boys as young as 13 years of age standing on the street soliciting. The article read: For the past 20 years men have met each other in the evenings along the famous stonc wall behind East Sydney Technical College in Darlinghurst Road, Darlinghurst . . . The Wall. as it is commonly known. is to be "closed down" by the police by August, when the rebuilt St Vincent's Hospice for the terminally ill is due to open. . . Chief Superintendent Bob Stafford. commander of the Kings Cross patrol, said it was obviously inappropriate for people coming to visit dying relatives to be confronted by the young boys. "They've been given the message and they know they have to go." he said. . . Mr Stafford said the police would like to see the boys move close by. to an identifiable area . . . Where is that identifiable area going to be? Will it be in Sydney? Will it be in the Harbour Bridge pylon or outside Parliament House? What a ridiculous situation. They are going to be allowed to solicit. A few weeks ago my husband went to where these young boys were lined up. Everything is very well 8 June, 1988 COUNCIL 1755 controlled. A female, about 32 years of age, with a walkie-talkie was bringing the boys out.As the cars would cruise by she selected a boy to go to a car with a certain number-plate. If the Government is going to allow this sort of thing to continue in this State-with the lives of boys and young girls and older men and women at risk-it stands to be condemned. An acquaintance of mine is a homosexual who has come out of this scene. He had been in that scene for many years. Recently he rang me and said: "I have great news. I am clear. I do not have AIDS". I know a young girl who has just gone to West Germany. She was into prostitution and drugs at Kings Cross. When she knew she was clean she also rang me. People would have no idea what it is like to see these young persons turning a.way from drugs and prostitution and knowing that they are going to live. AIDS is a temble thing because it is a death sentence to those who contract it. People in identifiable high risk areas talk about the AIDS bus and it visits the area. Late last year a medical report from Finland stated that it took as long as 14 months before the AIDS anitbodies showed up in the blood. I ask what are people doing with these young boys? Do they test them on the spot and say, "You are okay, back into the scene"? Finland has a very cold climate, yet the medical report stated that it took 14 months before the antibodies showed up. Senator Susan Ryan's federal 1983 Sex Discrimination Act incorporates article 6 of the United Nations convention report on the Elimination of All Forms of Discrimination Against Women. It sets out legally binding nationally accepted principles and measures to achieve equal rights for all women. Article 6, which has been signed by Australia, reads: Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women. I emphasize those principles. Will the Greiner Government take action to suppress prostitution? About four years ago one of the Catholic sisters from St Vincent's Hospital rang me to say she had a mother and daughter team working together as prostitutes. The girl was 12 years of age. The Catholic sister said: "We have never struck a team like this before: a mum and her daughter prostituting on the streets of the Cross". It shocked this Catholic sister. Is that the sort of thing that this Government is going to allow to continue in this State? I am on the opposite tack to Senator Susan Ryan. I am not a feminist. I think what I have quoted is about the only provision in her bill with which I agree. The Leader of the Government, the Hon. E. P. Pickering, said in his second reading speech: The most sweeping reforms in the bill are in the area of prostitution, which are contained in part 3 of the bill. Though deplorable in the eyes of many, prostitution is a social fact which has persisted in many civilizations for many centuries. History has shown that repressive legislation has not been successful in its eradication. We have never tried to suppress prostitution. I have asked police officers whether they have gone out full pelt to try to suppress prostitution and they have said no. I think the police would know best what is happening. Prostitution was unknown in Australia until the Europeans settled in this country two hundred years ago. The Aborigines were not prostituting themselves before the settlers arrived. The Aborigines learned prostitution from us. What is the Government going to do about prostitution? Are they going to suppress it or are they going to control it? We were in mainland China in 1985 and spoke with the Chinese Minister for Health about prostitution. His comment was that western society is weak and that we try to do all things to all men. He said, "You people in the west do not have the will to act positively and close down 1756 COUNCIL 8 June, 1988 brothels". They closed down brothels in China. Prostitutes are being brought into China mainly by western people. Prostitution is not legal in China and the Chinese are stamping down on girls found working as prostitutes. In the past some people have said it is impossible to eliminate or control prostitution. It is not impossible; it has been done. Brothels in Shanghai were under surveillance for 12 months, and then on a given day the authorities pounced down. All the prostitutes who were taken into custody were counselled and retrained by national women's groups. Some of the prostitutes went into hospitals. So brothels can be closed. It is only a weak government that will not even try to close them. Recently on television at news time I heard the Hon. Ted Pickering say that this Government has the will to act. I am sure that he may try to act to close brothels, but no previous government in New South Wales has ever tried to close them. I am most concerned at the recommendations from the select committee on prostitution, which was set up by the former Australian Labor Party Government. That committee looked into legalizing brothels. One submission accepted by the ALP Government-and I am sure that years ago the men of the older brigade in the Labor Party would never have accepted the submission- was made by a person called Roberta Perkins. Several years ago Roberta Perkins used to be Robert Perkins. Robert had two sons before he had a sex change. Robert made his submission to the select committee on behalf of the Prostitutes Collective and this is what he or she-or whatever-said: Prostitutes made better mothers than most other women because they had more time and more money to give to their children. They are night workers and they get very well paid. What an insult to the mothers of New South Wales that the Government accepted that submission. An article I shall refer to shows how far the acceptance of prostitution has gone. The article entitled "Prostitutes could aid disabled" appeared in the Australian. It stated: Male prostitutes could provide a valuable role in helping disabled women learn about their sexuality, a conference for disabled women was told in Melbourne yesterday. Ms Julie Bates, of the NSW Prostitutes Collective, said prostitutes should be able to visit hospitals and rehabilitation units to sell their services to disabled people. Prostitutes could use their sexual expertise to help the disabled gain an understanding of personal sexual gratification. A commercial sex service could be supplied in a sensitive, experienced way if there were a demand by disabled people. Is this what the Government is aiming to do? That matter is being treated, very seriously. I think the Hon. J. R. Hallam said the other day, speaking to the motion on books studied in the classroom, that if the ALP did not vote for that motion the people of New South Wales would soon know that the Opposition was voting in favour of obscene or dirty books. The same principle applies in this debate. I have made this matter known throughout New South Wales. Recommendation 10.35 of the select committee reads: That having regard to the principles of planning law and the desirability of local decision-making on the siting and other relevant factors of such premises, local councils be the authority in the first instance to be involved in assessing the situation of individual premises. That is a recommendation to legalize brothels. Local government will lose the power to say that they do not want a brothel in a particular area. The Touch of Class establishment took its case to the Land and Environment Court to overrule a decision by council. Already 30 councils in Melbourne have had their 8 June, 1988 COUNCIL 1757 decisions overruled in similar matters, for Victoria has legislation similar to that which applies in New South Wales. The right of local government to make a decision in these matters has been taken away. More power should be given to local government. Recommendation 10.36 of the select committee is in these terms: That the term "prostitution" be defined to cover all acts of sexual gratification for payment between persons of different sexes or of the same sex, and to include sexual intercourse, masturbation committed by one person on another, acts of sado-masochism and acts of bondage and discipline. It is amazing that the police out there on the streets are trying to stop these activities and yet a select committee recommends the legalization of the activities within a brothel. Homosexual and heterosexual brothels could be set up in your local shopping centre. What would that do for the boys coming home after a night on the town? What would that do to young men if that recommendation is given legal effect. Recommendation 10.47 states: That any person lodging a development application for consent as an owner or operator of a brothel be of good name and character. I guess the Archbishop of Sydney could lodge such an application; anyone could. I hope that the Government will not legalize that sort of activity in this State. The Leader of the Government, in his second reading speech on this bill, said: The existence of Acquired Immune Deficiency Syndrome, and the method of transmission of this tragic disease, is an additional factor which cannot be ignored when formulating legislation in this area. Prostitutes, both male and female, have been identified as a potential risk group in the transmission of the virus which leads to AIDS. Existing co-operation between prostitutes and health authorities has been responsible for a reduction in the incidence of the transmission of this virus. Excessively punitive legislation attempting to outlaw prostitution completely would have the effect of driving prostitutes underground, thereby jeopardizing existing educational and health programs. This would have fatal implications for the transmission of AIDS. AIDS is transmitted by promiscuity. I believe that this Government is promoting promiscuity by allowing the prostitutes to stay on the streets. The girls should be taken off the streets. The Government has the power to stop them from carrying on prostitution in houses or wherever. But it will not stop. We all know that condoms are not 100 per cent safe as a precaution against the spread of AIDS and that AIDS is being transmitted to prostitutes. Our children are being taught in the classroom to be promiscuous with the assistance of an AIDS kit. They are told, "'Use a condom and you will be safe". That is a flagrant lie. We reject that entire argument. Prostitutes are one of the highest risk groups in the transmission of AIDS and are helping to spread the disease in the community. If we are to reduce the spread of AIDS, we must campaign to eliminate by every means possible the prostitution industry. It seems that the Government is doing exactly the opposite. For the sake of the prostitutes, the Government should act. I ask the Minister whether prisoners are to be required to undergo a compulsory blood test for AIDS. The son of an acquaintance of mine was sent to Long Bay gaol on a drugs charge. The parents literally went through hell because they thought that he might be homosexually raped. That sort of activity must be stopped in our prisons. Homosexuals or those who engage in that sort of activity should be set apart from the rest of the prison inmates. I urge the Government to adopt the following policy: take urgent possible steps to eliminate the exploitation of women, teenagers and children through the degrading activlty of prostitution; ensure the elimination of the prostitution industry as a major bicentenary project by 1990; arrange for co- 1758 COUNCIL 8 June, 1988 operation by community organizations, law enforcement and welfare agencies to implement a program of rehabilitation and re-education, retraining and relocation for all prostitutes by 1990; implement a vigorous law enforcement campaign over the next three years to remove all persons who are exploiting females and or males through prostitution and on drugs, including organized crime bosses, pimps and clients. An education program about the dangers of being a prostitute should be directed particularly at female school students as part of a high school personal development course. The glamour should be stripped away to reveal the exploitation, cruelty, fear, drug addiction, venereal disease, premature ageing, death and suicide. Commerce, industry, the news media and advertising companies should be recruited in this positive campaign to save women from prostitution. This assistance could take the form of providing employment for rehabilitative prostitutes, of rejecting advertising for prostitution under various guises, such as advertisements for massage parlours and so on. A firm stand must be made now before the prostitution empires fully exploit the electronic age with television advertisements; cable televison showing the prostitutes available for hire; printed tourist catalogues, which are available in New South Wales; letterbox drops and so on. The ultimate consumerism in a materialistic society is male and female prostitutes for sale, of all ages, nationalities and races. Supporting action is needed to be taken by various State government agencies against brothels, prostitution, including phony operations, such as massage parlours, escort services, callgirls and so on, by the cancellation by Teit.com Australia of telephone services and by Australia Post post office boxes used for the purposes of prostitution, as well as the transmission of pornography and illegal drugs. Locations where prostitution is carried on should be simply pr~scribedby local councils in co-operation with the Police Department. Bdsiness and building permits should be cancelled, and an investigation should be undertaken of the reason for prostitution from the customer's point of view, and various solutions should be developed. We could balance male and female populations in areas such as Wollongong through migration and relocation of those in similar national groups. We must encourage a far more positive attitude to this serious, sociomoral problem, and not simply shrug our shoulders saying, "I am all right, Jack" and "It is a fact of modern life". As long as it is happening to someone else we will not worry; it is only when it hits us that we take notice. If we do not take the necessary steps, Australian society could finally collapse in a sea of degradation, exploitation, drugs and crime. Professor Blaiklock gives the following warning: And thus nations pass away. for commonly in the story of a nation's rise and fall comes a lime when the authority of the ideal is questioned. There comes a moment when in the phrasc of the great and mordant historian, the Roman, Tacitus, a group discovers that 'what authority had kept hidden' can be challenged and outfaced. Comes 'permissiveness'. It is the beginning of the end, unless. intelligent enough, endowed sufficiently with courageous leadership, frightened enough, or swept by a revival of faith. a people rallies and returns to strength. Unless that happens, 'as surely as water will wet us, as surely as tire will burn,' that people dies. There is always another race, disciplined. moral, rigid in its attitudes, waiting to apply its strong thrust to the crumbling structure. Perhaps puritan. communist China may be that race? We have spoken and the Government has spoken about prostitution and AIDS. The subject of AIDS touches me personally because I have friends who are dying of AIDS. 1 have worked with this group of men, women and children who have AIDS contracted through the transmission of poisoned, contaminated blood in hospitals. This Government and the previous Government have put them into a corner like throw-away people. They are frustrated, they are hurt. 8 June, 1988 COUNCIL 1759 and they are dying. During the floods in May this year sewage entered the house of one victim. Her house was completely flooded. She called for help but could not get any. At present she is a category B AIDS victim and the lesions are breaking out on her body. She was distraught and said to me, "Mr Greiner has promised flood money. Will Mr Greiner give us blood money?" This woman has two children aged 16 and 17. The youngest, a boy, has threatened to commit suicide. He cannot come to grips with why his mother is dying from AIDS, as she has done absolutely nothing to contract it. So at present she must deal with the stress suffered by that boy and her daughter. I hope that the Greiner Government will provide immediate care and counselling and compensation to these victims. I have sat in a room with thirty or forty AIDS victims, many of whom are young women with babies. They are all dying. One mother has already lost her daughter in an accident. She said that she wished she had died because her husband and her remaining child will have to go through the stress of watching her die. Yet this Government seems to be giving money to the homosexual community-and these people know it. This woman said to me, "I am not going down to the Albion Street clinic where a counsellor puts a condom on a banana in order to show a homosexual how to do his thing". She said, "1 have had it". These people are suffering on their own through no fault of their own. I ask the Government to examine their situation and to think of them as innocent people, because that is what they are. They have even said to me that because no one will take any notice of them or listen to them they will not notify anyone that they have AIDS; and they intend to tell other victims not to notify anyone that they have AIDS. So, in the event of an accident, an ambulance man or a police officer who tries to resuscitate one of these people could become infected by coming in contact with regurgitated vomit or whatever. These people are so hurt that they would go so far as to injure other people. That is very sad. But they were put in this position through no fault of their own. Other areas of concern emerge. How would the bill stop nude bathing on public beaches? Will it stop nude bathing on Bondi Beach? I believe that the answer is, no. Will the Government put my doubts to rest by accepting an amendment to the bill? A couple of days ago, one newspaper carried the story of a woman named Francesca D'Espiney who had an appeal upheld against her conviction for wilful and obscene exposure for which she was arrested at Bondi Beach, when wearing nothing but zinc cream and a G-string. Families go to Bondi Beach, and we would like to see the law amended so that they can go there without being offended. We believe that if nudists want to have a beach of their own, they should, but the family beaches should be kept for families. In supporting the bill I particularly support several clauses. Clause 4 deals with offensive conduct or language, basically the use of four-letter words. We have reached a stage where we hear it coming from children in the schools and on the beaches: I might even have heard it from the floor of this Chamber yesterday. Clause 9 deals with the defacing of walls, the use of graffiti, and damaging shrines. A couple of years ago the war memorial in Sydney was defaced. Six members of my family served in World War I1 and one served in Vietnam. The latter lost a leg and is still suffering from the emotional consequences of his experience. War memorials should be maintained as sacred sites. Clause 10 deals with the offence of possession of offensive implements, including knives. I am in full agreement with what the legislation intends in that respect. 1760 COUNCIL 8 June, 1988

Clause 1 I deals with the possession of liquor by minors; clause 15 deals with living on the earnings of prostitution, and clause 28 deals with violent disorder. These clauses deserve support. We cannot live like animals in our society. My opinion might seem harsh to some, but I believe we are training a generation of morons and perverts. This is borne out by what we see on the streets of Sydney today and what we allow in the area of Kings Cross. Permissiveness has been defined as: . . . "thai statc of thc spirit in which that which once stirred shame and revulsion is first tolcratcd. then acccptcd and finally embraced?'Thus men die. And the way back is to rctracc thc abandoncd path and rccover thc old standards, faith and loyalty. Speaking from the scriptures, St Paul said: Pleasc my brothers, considering all that God in his mercy has done, offer him your person. no dead sacrifice but alive wholly, something God can accept. and the only service you can really render. Stop trying to adapt yourselves to the society you live in but carry on the transformation which began with the new life in your mind so that you can try out for yourself how good. satisfying, perfect, God's will for you is. In Galatians 6:7 the following statement appears: Bc not decieved. God is not mocked. Whatsoever a man sows that shall he reap. The same applies to governments. I trust that the Premier and the new Government will take these words to heart and act on them, for whatever seed this Government sows, so shall it reap, and if it sows bad legislation, it shall reap the results of that. But the Government itself shall not suffer, it shall be the people, the families and the young people of New South Wales. The words of the prayer offered in this place state that we are here to advance the glory of God and the true welfare of the people of New South Wales and Australia. I commit myself to that task. Debate adjourned on motion by Reverend the Hon. F. J. Nile. [TheDeputy-President lqft the chair at 7.5 p.m. The House resumed at 8.30 p.m.]

ESSENTIAL SERVICES BILL Second Reading Debate resumed from an earlier hour. The Hon. E. P. PICKERING: I thank honourable members who have spoken on the bill before the House. Sadly the contributions of members of the Labor Party have been predictable and generally marked by ill-informed fervour from the Opposition benches. Indeed the Opposition, as indicated in the meanderings of its numerous speakers, has failed to understand the stance of this bill and its intended application. Let me reiterate what has been said in this House to illustrate that point. The Leader of the Opposition claimed that the bill is designed to provoke confrontation with the union movement. The Hon. R. S. L. Jones said that industrial chaos will flow from the passage of the bill. The Hon. J. D. Garland said that the current industrial relations climate does not warrant the introduction of the bill. It is patently clear from those comments that those on the other side of this House have failed completely to grasp thc significance of this bill. The Essential Services Bill aims basically to equip the Government with emergency powers of a nature necessary to ensure that public inconvenience in the use of essential services IS avoided. They are contingency powers which any 8 June, 1988 COUNCIL 1761 responsible government should have for possible use, though the Government hopes they will rarely, if ever, be used. I stress ardently that in the industrial relations arena these emergency powers will be used judiciously, and only when the rule of industrial law is being openly defied. Indeed, the confrontationist party in any instance occasioning the Government's invoking of these powers will be a union that cannot accept the umpire's decision as handed down by the industrial tribunals. It will be the public that is needlessly provoked by the economic and social dislocation that results from the denial of essential services. It is no use waiting until some major ,industrial problem has arisen before seehng parliamentary passage of this type of legislation. A responsible government should have adequate powers to protect fully the public when the need for that protection arises. This bill is framed deliberately to provide for the exercise .of emergency powers in the event of the occurrence of a disruption to an essential service for any cause, whether industrial disputation, natural disaster, major equipment breakdown, or other happening. Thus, the bill has a broader frame of reference than application to industrial disputes and therefore its provisions are not appropriate for inclusion in the Industrial Arbitration Act. Accordingly, a freestanding Essential Services Bill has been produced. The bill has been drafted as wide as is constitutionally permissible under our federal system. The Government has a clear mandate for this form of essential services legislation. The Hon. R. T. M. Bull has reminded the House that in 1985 the former Opposition spokesman on industrial relations referred to the need for essential services legislation. It was only last year that the structure of such legislation was revealed by the current Premier and the present Minister for Industrial Relations and Employment, so that it would have been a matter of public knowledge well before the 1988 election. This bill implements the planned measures. It is definitely not a sudden and secretive reform package. Let me refute the claims of the Leader of the Opposition in this House that the bill is not necessary, given the existence of the Energy Administration Act. I make it clear that the Essential Services Bill is concerned with the introduction of emergency measures and procedures akin to those operative in relation to energy, power and fuel supplies under the Energy Administration Act, an Act which was introduced last year by the Unsworth Labor Government and carried over the same emergency provisions of the Wran Government's 1976 Energy Authority Act. However, compared with the field of operation of the 1987 Act, the coverage of this bill relates to all essential services. Disruption will not be limited to energy and energy resources. The Government needs to be equipped to protect the public interest in the continued provision of more essential services than just electricity and petrol. While touching on the Energy Administration Act might I take the opportunity to refute the notion of the Hon. J. D. Garland that the Government has claimed that the industrial law sanctions in this bill were founded on provisions in the Energy Administration Act. To the contrary, the Government has always expressed the view that an extended range of sanctions was necessary in this bill to ensure observance of the emergency measures and to uphold the rule of industrial law. The regulation-making powers and direction-giving powers in this bill are just as wide as allowed for by the former Government in relation to disruptions to energy supply under the Energy Administration Act. They are powers necessary for any government to have available for possible use in the face of a crippling disruption to an essential service when the overriding public interest must be considered. Moreover, the width of any powers contained in regulations is able to be reviewed by this House and subject 1762 COUNCIL 8 June, 1988 to possible disallowance. It goes without saying that a most important power that this House clearly has is the right to disallow regulations. Honourable members would be well aware that a special sessional order has been created to provide that upon 24 hours notice a member may move for the disallowance of a regulation, and that the next day the debate will come on as the first order of business. The fact that the Hon. R. S. L. Jones has today given notice of the disallowance of a regulation connected with drugs in prisons and the control thereof is clear proof of an added and important power of this House. I am sure the Hon. R. D. Dyer, who has fought for proper powers for this House, would be the first to admit that the sessional order represents a significant step in the right direction, as does the historic announcement today of the establishment of standing committees of this Legislative Council. I assure Reverend the Hon. F. J. Nile that police inspection powers also are consistent with the emergency provisions in part 6 of the Energy Administration Act. Many members from the Opposition who spoke in this debate referred to the capacity of the regulation and directory powers of clauses 9 and 11 to override award conditions. They referred, rather horrifically, to compulsory 24-hour shifts for workers and to supplanting of workplace safety requirements by regulations or ministerial orders. Such scare tactics are rightly treated as plain fantasy by the Government. Any responsible intelligent member of the Opposition who has had anything to do with industrial relations and industry in general would be aware that such assertions are sheer nonsense. I assure honourable members that the emergency powers provided in this bill will not automatically be invoked by the Government every time a strike occurs in any essential service industry. The proposed Act, like any other legislation, will call for sensible and sensitive administration. In the event of industrial action- The Hon. Franca Arena: The Opposition would trust the Leader of the Government in this House in this regard but it does not trust many other Ministers of the Cabinet. The Hon. E. P. PICKERING: I am delighted that the Hon. Franca Arena would trust me in that regard, but she demonstrates a basic misunderstanding of the bill. I may well be the Minister who exercises rights under the legislation, as any Minister of the Crown may be confronted with an essential service problem and will have power under the Act to invoke the provisions of this legislation. I assure the honourable member that I would use such powers with great sensitivity, as she has properly intimated I would, recognizing my knowledge of, experience with, and service in industry and working with unions that are not considered to be the easiest of unions to work with? The Hon. R. D. Dyer: Did the honourable member use his beagle hound, which was said to be an expert in these matters? The Hon. E. P. PICKERING: My beagle hound knew when a strike was imminent in the coal industry. In the event of industrial action in an essential service industry the Government will allow the accepted process of conciliation and arbitration to be pursued under the Industrial Arbitration Act. Surely there would not be one member of the Opposition who would not agree that that is the proper way to go, that the normal process of industrial arbitration would be applied by the Minister responsible to ensure that the properly constituted court deals with a dispute. Indeed, that properly constituted court may well decide. for all we know, that the employer is at fault. 8 June, 1988 COUNCIL 1763

As I understand the legislation, the impact of any subsequent action would be equally attributable to employer or employee; it would depend upon who the court thought was at fault. The Government will not rush in to invoke emergency powers and needlessly inflame the situation, which I am sure all honourable members would agree would be counterproductive. This legislation is not legislation of a no-strike nature. The attempt to paint this Government as one that somehow or other believes that in this day and age it can legislate to outlaw strikes will simply not wash with the population of New South Wales, which recognizes that the Government is not of that mould. Certainly any government of which I am a Minister would not be of that mould. The Government's handling of the recent Shell Company of Australia oil tanker drivers' dispute demonstrates a true and responsible approach to the use of this type of legislation. When it was used by the former Premier, it worked extraordinarily well. The forces of law prevailed. No one was hurt. The unions were not hurt. More important, the wider community was not hurt. In some respects the political position of the former Government, just before an election, was also not hurt. The people of New South Wales, as I recall it, applauded the former Government for acting as decisively as it did. Despite calls for the invoking of the emergency provisions under the Energy Administration Act in the recent dispute, the Minister for Industrial Relations and Employment held back. The situation was resolved because he remained ready to mediate in the dispute and permitted the normal course of negotiations under the auspices of the State's industrial tribunals to be pursued. In that view the Minister was supported by the Leader of the Opposition, who quite responsibly said that this was the way to go. This Government will continue to follow the sensible path of preserving the pre-eminent involvement of the Industrial Commission of New South Wales. The Government recognizes that the commission is the repository of considerable wisdom in the very complex field of industrial relations. It will use the emergency powers not in the nonsensical way suggested by members of the Opposition, who have tried to drum up all types of fanciful histrionic examples. The Government will not seek to erode award and common law rights. The Hon. H. B. French: I hope the honourable member does not have to eat his words. The Hon. E. P. PICKERING: The Hon. H. B. French commented across the Chamber about industrial relations. I suspect that the honourable member would be willing to acknowledge that I did my stint in the field of industrial relations. The Hon. F. C. Hankinson: Yes, but on the other side of the table. The Hon. E. P. PICKERING: To be perfectly candid, on both sides of the table. I was an accredited unionist, a card-carrying member of the trade union movement. The Hon. H. B. French would recall that I had hardly become a member of this Chamber when I was accused by his party of being on strike. I have worked on both sides of the industrial fence in a hard industrial arena. The Hon. H. B. French: All I am saying is that I hope the honourable member does not have to eat his words. Time will tell. The Hon. E. P. PICKERING: I do not expect that I shall have to eat my words. This legislation is sensible and will do much to protect the interests of the community of New South Wales. I assure the Hon. H. B. French, and I am sure he would take my comment as sincere, that my every action as a 1764 COUNCIL 8 June, 1988

Minister of the Crown will only ever be directed to the general well-being of the community of New South Wales. The Hon. J. R. Hallarn: As the honourable member sees it. The Hon. E. P. PICKERING: Of course, as I see it. How else could I act? My every action will not be directed to the sectional interests of the trade union movement, of employers, or any other sectional interest that would be to the detriment of the general community. I assure the Leader of the Opposition that I will always put the people of New South Wales before my party, which is more than members of the Opposition can say. The Government will use the emergency powers not in the nonsensical way that has been suggested by the Opposition, but rather to preserve, when necessary, the status quo existing before the onset of the industrial disturbance. Emergency powers must be viewed as last resort powers to be exercised when the accepted industrial machinery has been defied. As the responsible Minister said so clearly in another place when the bill was introduced: What has any member of the trade unton movement in thts State to fear from this legtslatton unless he wants to abuse the law, unless he does not want to subm~tto a deciston by a referee. but wants to be able to do what he wants whenever he wants? The Hon. J. R. Hallarn: The message the Minister is about to receive is to keep talking because the Minister for Industrial Relations is negotiating - outside the Chamber. The Hon. E. P. PICKERING: I will read my own messages. I am perfectly capable of doing that. The Hon. J. J. Doohan: The Leader of the Opposition assumes that will be the message because of what used to happen when he was Leader of the Government in this House. The Hon. J. R. Hallam: And I am not too bad a judge. Why does not the leader of the Government read the message? The Hon. E. P. PICKERING: I have read it. The Hon. J. R. Hallam: Read it aloud to the House. The Hon. E. P. PICKERING: The Leader of the Opposition will hear about it in due course. I am not here to do as he tells me. The Hon. B. H. Vaughan may be assured that the orders of the Industrial Commission will be disobeyed at the peril of the parties appearing before the commission, because this backdrop essential services legislation will be availed of, if required, to ensure the rule of industrial law is maintained. When all is said and done, that is the essence of the bill. All the Government seeks to do is to uphold the law. Anyone who wants to vote against a measure to uphold the law does so at great peril, I would suggest. The Government rejects any notion that the provisions of the bill are contrary 10 any International Labour Organisation convention relating to freedom of association, as was suggested by a federal colleague of members of the Opposition. The Hon. M. F. Willis: That is a furphy. The Hon. E. P. PICKERING: It is a furphy. Members of the Labor Party probably had nothing better to talk about at their Hobart convention. Mischievous is the only word to describe the calculated and unwarranted intrusion into this debate of the Commonwealth Minister for Industrial Relations, the Hon. R. Willis. I am informed by the New South Wales Minister for Industrial Relations and Employment, the Hon. J. J. Fahey, that this bill 8 June, I988 COUNCIL 1765 does not inhibit the historic right of workers to combine for the betterment of their industrial conditions. It is all very well for Opposition members to allege infringement by the bill of International Labour Organisation standards, but no specificity of ILO convention or article and offending bill provision has been forthcoming. Quite simply, the allegation is a straightout furphy. The Hon. Franca Arena: Another two messages. Messages galore! The Hon. E. P. PICKERING: Communicating is what this House is all about. The Hon. Franca Arena: We, too, would like to know what those messages are. The Hon. E. P. PICKERING: And you will. I turn to another matter raised in the debate. The Government makes no apology for the manner in which it has seen fit to categorize essential services in clause 4 of the bill. The listed clause 4 (1) services basically represent key sectors in which there have been protracted industrial disputes in the past several years. But it would be futile to seek parliamentary amendment of the clause 4 (1) list of essential services every time a serious disturbance occurs in some other industrial activity. Hence, the inclusion of clause 4 (2) is warranted. The Labor Council and Opposition members have made much play of the existence of clause 8 (2) in the bill, which states a proclamation may be made whether or not an emergency situation exists, or is likely to exist, in relation to an essential service. The Leader of the Opposition in this House and the Won. F. C. Hankinson have argued that the subclause is too wide and in fact unmasks the Government's intended broad use of the bill's emergency powers. This argument is totally rejected in that it highlights a clear misunderstanding of the bill. There is a two-tier arrangement for action by a government under the bill. First, a Governor's proclamation may be made in the event of a threatened or actual disruption to an essential service, and regulations are then possible; second, a Minister may issue directions under a Governor's state of emergency order where there is a threatened or actual disruption and an emergency situation exists or is likely to exist. Clause 8 (2) is nothing more than a clarifying drafting provision. Its sole purpose is to specify that a valid proclamation, under clause 8, may exist even though an emergency situation could be said to prevail and there has been issued, or could be issued, a Governor's order under clause 10 of the bill. Really, the Opposition is slipping badly in its efforts to find fault with this bill. Honourable members who participated in the debate also harshly characterized union deregistration as a weapon capable of use at the subjective whim of the Minister. The union deregistration or exclusion of union members options will only be entertained by the Government and its Ministers after all avenues for peaceful settlement of the industrial dispute have been ignored, and when those Ministers have to act in the general public interest. Action in relation to a union's registration under the Industrial Arbitration Act or the exclusion of union members is permissible under the bill only following consultation by the Minister with the Industrial Commission president regarding the dispute and open defiance by the union of a commission order. The union deregistration possibility thus follows upon exhaustion of the primary conciliation and arbitration measures. The industrial law sanctions of part 4 of the bill must be seen as directed at achieving a quick return to work in an essential service industry. 1766 COUNCIL 8 June, 1988 Let me add that this Government recognizes and respects this House as a House of review. To this end, discussions have been held with a view to explaining the detailed provisions of the bill and listening to constructive suggestions, in the course of which the Leader of the Australian Democrats, the Hon. Elisabeth Kirkby, foreshadowed proposed amendments, as did Reverend the Hon. F. J. Nile. Let me assure the House that constructive amendments will always be carefully examined on their merits by this Government. In conclusion, let me assure honourable members that this legislation will be administered responsibly by this Government. It could be no other way if the coalition is to remain in office in this State. I emphasize that it is not an anti- union, no-strike bill. Indeed, the provisions of the bill are aimed at restoring the integrity of New South Wales industrial tribunals and will serve to enhance observance of the rule of industrial law in our society. The Essential Services Bill represents the empowering of the Government of this State with the necessary means to protect the public from a disruption to an essential service should it occur from whatever cause. It is last-resort legislation, to ensure that community inconvenience in the denial of an essential service is minimized. This bill is for the protection of the ordinary men, women and children of this State. In acceptance of a very clear election mandate to introduce essential services legislation of this kind, I am proud to commend the bill. Question-That this bill be now read a second time-put. The House divided.

Ayes, 21 Mrs Bignold Miss Kirkby Mrs Sham-Ho Mr Bull Mr Matthews Mr Rowland Smith Mrs Chadwick Mr Mutch Mr Willis Mrs Evans Mrs Nile Dr Goldsmith Revd F. J. Nile Mr Hannaford Dr Pezzutti Tellers, Mrs Jakins Mr Pickering Mr Gay Mr Jones Mr Samios Mr Killen

Noes, 19 Mrs Arena Mr Hankinson Mrs Symonds Mr Brenner Mr Ibbett Mr Vaughan Mr Egan Mrs Kite Mrs Walker Mr Enderbury Mr Macdonald Mr French Mr Manson Tellers, Mrs Grusovin Mr O'Grady Mr Dyer Mr Hallam Mr Reed Mr Garland

Pairs Mr Doohan Mr Johnson Mr Jobling Mr Kaldis Question so resolved in the affirmative. Motion agreed to. Bill read a second time. 8 June, 1988 COUNCIL 1767 SUMMARY OFFENCES BILL JUSTICES (SENTENCING) AMENDMENT BILL Second Reading Debate resumed from an earlier hour. Reverend the Hon. F. J. NILE [9.10]: I extend my congratulations to my wife on her maiden or first speech. It is difficult for me to call my wife's first speech a maiden speech. However, she spoke well from her heart and shared with the House her concerns. Honourable members will now know my wife's attitude on many issues, particularly on prostitution. I of course have always known her beliefs. I commend other honourable members who delivered their maiden speeches for the high quality of their presentations. I support the Summary Offences Bill, which reflects the Government's mandate to restore the Summary Offences Act, an important measure introduced by the former coalition Government. During the recent elections the present Premier and other coalition candidates assured the people of New South Wales that they would do all they could to restore that legislation. They gave that assurance not simply to be pedantic about reintroducing legislation that was repealed by the Labor Party, but because they honestly believed, as I do- and I think the majority of the community do-that this type of legislation was needed to return law and order to New South Wales, particularly on the streets. As the Hon. Elaine Nile said in her maiden speech, many problems reared their ugly heads when the Summary Offences Act was repealed in 1979. Increasingly offensive behaviour of all types including offensive language, swearing, and abusing police officers became common on the streets. I have two sons who are members of the police force, and have heard firsthand about that sort of behaviour. Prostitution increased when soliciting and loitering for the purposes of prostitution became legal for females, and increased further in 1984 when it became legal for males. Whereas formerly prostitution was confined to some part of Kjngs Cross, it then began to spread down William Street. A gaggle of prostitutes was usually found outside the Australian Broadcasing Corporations's headquarters in William Street. I often went there for interviews or to deliver press material. On occasions I was confronted by three or four prostitutes standing outside that building. Looking at those young girls I did not have-and I doubt whether any other honourable member would have-any animosity towards them. Rather, I felt a combination of anger that they were being exploited, and sadness because many of them obviously were ill. I did not know whether that illness was caused by drug abuse or other health problems. Those girls in William Street invoked in me a great sense of sorrow and a hope that somehow they could be given a new chance in life, the hope at least of a new start. This bill is a step in the right direction to achieve some hope for those girls, but it does not go far enough, as I shall explain. Violence on the streets has increased. I do not refer to minor physical violence only. People have been knifed and killed in George Street. Often innocent passers-by, or people in cars have been assaulted without provocation. On many occasions the victims have been unknown to their assailants. Following the repeal of the Act, a senseless violence erupted in our city and many people felt a sense of terror at having to enter Town Hall railway station to board a train. Many women who assist in my activities come to the city to work in a voluntary capacity or attend meetings. They are frightened to 1768 COUNCIL 8 June, 1988 enter that station because usually there are gangs there who assault males and females, or steal handbags from females of any age, including those old enough to be grandmothers. No mercy is given to woman of any age; all are fair targets. Even husbands and wives are assaulted; so a woman with her husband is not safe. The people of New South Wales are not willing to tolerate that situation. Only time will tell whether their hopes for an end to that violence will be fulfilled by the new Government. In March, the electorate certainly rejected the former Labor Government. The electorate believed that, even giving the former Government the benefit of the doubt, or making allowances or excuses for it, its time had finally run out. The Hon. R. B. Rowland Smith: How could one make excuses for it? Reverend the Hon. F. J. NILE: In 1984 people who voted for the Labor Party might have thought they should not have voted for Labor, but in the hope of some improvement they gave Labor the benefit of the doubt. However, in 1988, when people saw that things were not improving but were getting worse, despite some late endeavours to try to reverse the trend, they decided that it was too late and exacted their penalty by removing the Labor Government from office. As has been said in other recent debates, it is always difficult to ascertain the issues that made people vote in a particular way. It is hard to prove that any one issue had that effect. I believe there was a combination of events, but that close to the top of the list would have been the matters dealt with in this legislation: the everyday, illegal activities that confronted, irritated and frightened people, and made them angry. Perhaps the best example was the virtual explosion of prostitution that occurred in the heart of Labor territory, along Canterbury Road. Some residents there were not happy, but accepted, that vice occurs at Kings Cross. Mr Wran may have legalized what happens at Kings Cross, but all of a sudden those activities were taking place on the doorsteps of Canterbury Road residents. They quickly became aware of what happens when these activities spread from the inner city along the arterial roads. I believe Canterbury Road was an example, but prostitution occurred also on other main roads heading out of the city. Prostitutes learned that it was legal to solicit .and loiter for the purposes of prostitution. Although certain restrictions applied in the vicinity of churches, schools, homes and so on, some of those restrictions were openly disregarded and treated with total disrespect by the prostitutes and those who organized them. From 1979 until the present, police officers gradually assumed the shameful role of umpires. It often happened that two prostitutes would have a fight about a certain piece of territory. The police could not do anything to stop the prostitutes from soliciting. They did not have the power. All they could do was to stop the prostitutes from fighting, and send them back to their corners. It was demeaning for police officers to be placed in that position. That is another factor that undermined the morale of police officers and gave them a sense of powerlessness. That powerlessness was demonstrated by reports I received from many police officers that Sydney prostitutes went out of their way arrogantly and insolently to solicit police officers in uniform. Police officers in the course of their patrols were brazenly solicited as a clear demonstration that the prostitutes believed they could do what they liked; that the police had no power over them. The police had to walk away in humiliation. 8 June, 1988 COUNCIL 1769 The prostitutes swear at policemen, call them names and intimidate them, knowing that they do not have the power to take action. It is no wonder the police became demoralized and the gangs took over the streets of Sydney, the railway stations, and any other place where they thought they could molest and threaten the ordinary citizens of this city going about their business or recreational activities. The bill is needed, and the House should support it and give it every opportunity to work in our society. It includes some aspects of the Acts it will repeal and will tighten up and improve some of that legislation. Part 2 of the bill deals with offences in public places. The Offences in Public Places Act, which is riddled with loopholes, was never really intended to work, and became a lawyer's paradise for the legal profession to use to obtain an acquittal for their clients. It has been said that the police dragged their heels and failed to lay charges when they should have, though they did have the power to do so. As honourable members have heard already, many of the charges they laid were dismissed by the magistrates. The police are not dumb. Once they lay a charge for what they deem an offence and the charge is dismissed, word goes through the police force that the charge has been dismissed and that those sorts of charges will not succeed. The police are then discouraged from proceeding in that way. 1 have talked to police officers who laid charges against men who were totally nude on the beach at Cronulla. The police thought those men were committing an offence, but the charges were dismissed. Those officers were embarrassed. One of them gave me the impression that he thought he had a black mark against his name because if a charge is dismissed the inference is that the police officer did not fully understand the law; he made a mistake. Instead of being patted on the back for trying to uphold the law, he feels he is open to criticism. I hope that is not the case, but honourable members will understand that that police officer and his fellow officers will not rush into laying those sorts of charges again. The offences in public places provisions of the bill include the use of offensive language in or near, or within hearing from, a public place or a school. That should give the police greater opportunity to make sure that the streets are peaceful places where people will not be offended by a tirade of four-letter words. That sort of offence has been increasing. Clause 5 of part 2 of the bill will retain the words "wilfully and obscenely expose his or her person". Unfortunately, in previous legislation those words have not been particularly successful. I foreshadow that I shall move an amendment in Committee to insert a new clause 5: "A person shall not, in or within view from a public place or a school, indecently expose his or her person. Maximum penalty: 2 penalty units". There is no law against a person-particularly a male-being totally nude on a public beach and walking past a mother with two or three little girls who are at the beach to swim or just to sunbake or play in the sand. If that man removes his clothes and is careful enough to walk along the sand, lie down on the sand and sunbake or walk along the sand into the water, any charges laid will be dismissed because there was no wilful and obscene exposure. The courts have interpreted that wording to mean that the man must actually dance around or throw himself around or in some other way draw attention to himself. According to the magistrates at the courts in which these cases have been heard, an accused cannot be found guilty of an offence of wilful or obscene exposure simply because he walked naked on the sand or into the water. My amendment is essential because the people of New South Wales are fed up with the increase in nudity on public beaches. Public beaches are family beaches. I am against a form of reverse discrimination where exhibitionists can 1770 COUNCIL 8 June, 1988 take over beaches and force families off the beach by making it uncomfortable for them to stay in a particular spot. I am pleased that the Government has included clause 8, which deals with damaging shrines, monuments or statues by wilful defacement. Tragically, recently there has been a tendency to deface war memorials with graffiti or slogans-even the Cenotaph. This clause is important. My only argument with it is that the penalty is too small. Clause 7 of the bill provides that a person who damages any part of a fountain erected in a public place shall be subject to a maximum penalty of four penalty units, which I gather is $100 times four, or $400. Yet, if a person damages the Cenotaph or the war memorial in Hyde Park, the maximum penalty will still be only four penalty units. A fountain erected in a public place and the Cenotaph have been treated in the same way. I shall not move an amendment to change the penalty, but the Government should review it. Clause 10 deals with the custody of an offensive implement. I have mentioned the knifings that occurred in George Street. There must be aggressive enforcement by the police to prevent people from carrying concealed weapons anywhere, and certainly in a public place. Clause 1 1, which covers the possession of liquor by minors, is again a worthwhile aspect of the proposed legislation. The other provision of the bill on which I wish to comment is part 3, which deals with prostitution. Obviously I feel strongly about a person who lives on the earnings of a prostitute-the pimp. Clause 15, which deals with living on the earnings of prostitution, is to be supported. I warn the Government, however, that there are major problems with clauses 16, 17 and 18. It is not easy to identify the problems. Clause 16 deals with prostitution or soliciting for the purpose of prostitution in massage parlours or a photographic studio, and clause 17 will prohibit the owner, occupier or manager, of a massage parlour or photographic studio from knowingly suffering or permitting the premises to be used for the purposes of prostitution. In general, those clauses of the bill are worth while. Clause 18 deals with advertising of premises used for prostitution. That clause may be a major stumbling-block to the police and the courts. Clause 18 reads: A person shall not. In any manner- (a) publ~shor cause to be publ~shedan advert~sement;or (b) erect or cause to be erected any sign, lndlcat~ngthat any premlses are used or are available for use, or that a person IS ava~lable,for the purposes of prostltutlon. That provision seems fairly clear to me. People regulary send me the addresses of brothels given in newspaper advertisements which they have cut out of suburban newspapers. I send all these advertisements with the names and addresses of the premises to the vice squad. It is quite clear that these places are offering prostitution. Often there are photographs showing seminaked women. Also, often advertisements for oriental ladies show pictures of half- dressed Asian women. Many of these places have services available from 6 p.m. to 3 a.m. or 5 a.m. and then printed in the advertisement will be the words- The Hon. Franca Arena: They have no union? Reverend the Hon. F, J. NILE: That is when the premises are open. Whether one girl works all that time or not, I do not know. The point I am making is that they are not genuine massage parlours, but clearly places of prostitution. The owners of these places are so clued up on the law that they actually print in the advertisement two words "No sex". The police say that the establishments are not advertising for the purposes of prostitution so they cannot take action against them. In other words, where advertisements say there 8 June, 1988 COUNCIL 1771 is no sex, there is sex. "No sex" are a brothel's code words. When a place advertises no sex, that means that is where one gets sex. If I were to move an amendment saying that advertisements containing the words "no sex" be prohibited, these people would change the words "no sex" to some other code that would tell the customers it is a brothel. The Government should have discussions with the vice squad to find out what is the obstacle to police enforcing the law against this type of widespread blatant advertising. The police say they cannot take action. I hope that before introducing this bill, which deals with so may offences-and it should be remembered that the Leader of this House is the Minister for Police and Emergency Services-there were extensive discussions with the responsible police in these special areas. The Hon. E. P. Pickering: There was. Reverend the Hon. F. J. NILE: If that is the case, why is clause 18 unchanged when police tell us that it does not work? I am not suggesting the Minister has to have the discussions personally, but was there sufficient discussion. Obviously the Minister thinks consultation occurred. But I am in close contact with many police officers and the word is that they are not opposed to this bill in principle. However, there is a feeling that they were not sufficiently consulted on it. The police feel that to a degree they have been ignored on how the legislation should have been drafted. The Minister may need to check out the consultation process to ensure that he has not been "Yes Ministered" by some public servant. It may be tFat the consultation he thinks is taking place is not occurring to the extent it should. My main criticism of the legislation is that it does not go far enough. I support the bill because it is a step in the right direction but the people of this State, having given the Government a mandate, will be bitterly disappointed when they see the effect of the legislation. People are assuming this will be a new tough Summary Offences Act that will initiate a big crackdown on prostitution. Many headlines in the newspapers give that impression. I was waiting with expectancy to see the legislation, thinking that at last things would get moving and that there would be an all-out campaign to clean up prostitution in this city. Imagine my disappointment when the only change to the soliciting law was to add the four words "or within view from" in clause 19 of the bill. This is the so-called massive crack-down on prostitution, the great new policy, and yet the only change was four words. The previous provision reads: A person In a publ~cstreet shall not, near a dwell~ng,school, church or hospital, solic~tanother person for the purpose of prostltutlon. That is the present very weak law that will be changed by the introduction of this bill. Even that provision is the result of an amendment. The previous Government included the proscription that one could not solicit near a dwelling, school, church or hospital. In the beginning it was an open go; persons could solicit anywhere. The Labor Government amended that law so that persons could not solicit near a dwelling, school, church or hospital. At that time I said it was a weak improvement. The new Government has claimed a mandate to introduce the Essential Services Bill and the Independent Commission Against Corruption Bill. It has a similar mandate to clean up the streets of Sydney and, regrettably, all it can do is to add four words. Clause 19 (1) of this bill reads: A person In a publ~cstreet shall not, near or w~th~nmew from a dwelhng, school, church or hosp~tal,solrc~t another person for the purpose of prostltut~on. I hope I am wrong but I do not believe that will satisfy the people on Canterbury Road. Even with this new law, prostitutes can still solicit on Canterbury Road-as they have been doing outside car saleyards-provided 1772 COUNCIL 8 June, 1988 they are not in view from a dwelling, a school, a church or a hospital. One police officer told me that police wiIl have to position themselves almost in line with a dwelling or a house to enable them to see the prostitutes. Maybe a girl will say she was not in view from a dwelling and a police officer will say she was. That will lead to a conflict in court. It will be interesting to see how that conflict is tested in court if a prostitute argues she was not within view from a dwelling and a police officer says she was. The change to the legislation is an improvement but the Government had a mandate to go further. I do not know why it has hesitated. Obviously the Council for Civil Liberties and other groups are bringing pressure to bear and the Government felt it should take only a small step instead of the big leap that the people of this State were seeking. That is why in Committee I shall move that at page 8, line 18 and line 2 1, after the word "hospital" the words "or public place" be inserted. Those amendments will bring the legislation in line with other provisions in clause 19. Subclause (3)of clause 19 reads: A person shall not, in or near, or within view from. a dwelling, school, church, hospital or public place. . . However, the words "or public place" are omitted from subclauses (1) and (2) of clause 19. In clause 20 the words "or public place" are used. Paragraph (a) of subclause (I) of clause 20 contains the words "or public place" and reads: Each of the persons taking part in an act of prostitution- (a) in, or within view from, a school, church, hospital or public place; To be consistent, the words "or public place" should be included in subclauses (1) and (2) of clause 19. That would give the police the flexibility they need to clean up Canterbury Road. If the prostitutes are standing outside a car sales yard-which clearly is a public place, not a church or a school-the police may take action. They will be able to force the girls to move on or face arrest and be charged. Once the girls understand the law, I believe they will not normally infringe it. They know how the law works and they will realize they can no longer solicit in Canterbury Road. I urge the Government to accept my three amendments, one dealing with indecent exposure and the other two with strengthening police powers to enable them to rid the streets of indecent behaviour. If this legislation is passed by this House, and is proclaimed by the Government and nothing really happens, the Government will be subjected to much criticism. I commend the Government for introducing the measure in clause 20, which deals with public acts of prostitution. If my amendments are agreed to, a total attack will have been made on the problem of prostitution. The Government will see some positive results from those two measures working together. I support the controls in part 4, which deals with public assemblies. My only concern is the onus that will be imposed on the police. This legislation is basically the same as that introduced by the former Labor Government. If the police do not agree to a march being conducted in a public place, they will have to take action to serve notice on the person involved, take the matters to court and so on. It puts a heavy responsibility on the Commissioner of Police. The best example of that is the so-called gay mardi gras. Under the present law, to hold such a parade all one has to do is inform the police. I regularly write to the Commissioner of Police saying that we will march on a certain day from one place to another. He writes back and says, "Very well. You will be met at a certain point by police officers in a car and they will escort the procession". The Hon. E. P. Pickering: The police may refuse permission. 8 June, 1988 COUNCIL 1773

Reverend the Hon. F. J. NILE: I know that, but could honourable members imagine the Commissioner of Police taking on to himself such a political decision in a matter so sensitive as the gay mardi gras? If the Commissioner of Police takes the easy way out-I am not suggesting he is a weak man- The Hon. E. P. Pickering: The Commissioner of Police has the responsibility for public safety. It is a matter of public safety. Reverend the Hon. F. J. NILE: I am going beyond public safety. The Hon. E. P. Pickering: But that is the responsibility of the Commissioner of Police. That is all he is asked to do. Reverend the Hon. F. J. NILE: It is more than public safety. If a procession is being held that is offensive to so many people in the community, it puts a great deal of onus on the Commissioner of Police to become involved. If it is not the job of the Commissioner of Police to stop it- The Hon. E. P. Pickering: His job is to protect the public safety, that is all. Reverend the Hon. F. J. NILE: Then the Government must intervene. How will the Government stop the gay mardi gras next February? That procession is offensive to many people in the community, for it includes many indecent and blasphemous activities. One of their floats depicts the Popemobile with a man dressed as the Pope. Another group of homosexuals dress up as Anglican bishops and ministers and pretend to be celebrating communion at a communion table. Many of the men are in various stages of undress. Under this public assemblies provision I ask who will be able to stop that particular parade? At this stage it seems that the Commissioner of Police will be left holding the bag. The Hon. E. P. Pickering: It is a question of public safety only. Reverend the Hon. F. J. NILE: It is not just public safety, but what is offensive and blasphemous to the community. It may involve the gay mardi gras this year but what would happen if some other extreme group, such as the paedophile support group, decided to conduct a parade? Would they be allowed to parade through the streets of Sydney? The Hon. E. P. Pickering: One is a distinctly illegal activity and one is not. Reverend the Hon. F. J. NILE: The activity of paedophilia is illegal but a march by the paedophile support group would not be breaking the law; that is, they are not engaging in any indecent acts with children. But if they carry posters and banners I believe the people of this city would regard that as offensive. In a civilized society-and we are supposed to be civilized-I do not regard it as censorship. There must be some control on what can happen so that the majority of people are not offended by what goes on. The public assemblies provision of this bill needs to clarify what happens beyond the point of public safety. It is a most important aspect. I support the measures in part 5, which deal with violent disorder. It is a tragedy that we need this sort of legislation. The measures will be useful and will give police more confidence in carrying out their duties on the streets of Sydney protecting men, women and children and making our streets safe and places of peace. I commend the Government for introducing the bill. It is a step in the right direction but it does not go far enough. The people of this State 1774 COUNCIL 8 June, 1988 will be disappointed if some amendments are not made to the legislation. Following the amendments, the Government should review further the legislation in due course. I support the bill and foreshadow those amendments.

The Hon. R. S. L. JONES [9.49]: The Government has a clear mandate to re-enact the measures in the Summary Offences Act. The legislation will do much to restore the morale of the police force. However, examining these bills and others that have been debated in this House recently, it seems to me that the new Government's motto is vis vincit omnia, which means force conquers all. I believe the Government would find the motto amor vincit omnia, which means love conquers all, would work a lot better. The Summary Offences Bill will give the police wide-ranging new powers. It would appear that under clause 4 of the main bill a person may be arrested for almost any offence. If a person were to say "boo" to a policeman, that person could be arrested for that offence. That clause does not say that a reasonable person must be offended. The Hon. E. P. Pickering: That is dead right. The honourable member has got that dead right. We want meaningful laws and not nonsense laws. The Hon. R. S. L. JONES: If I said "boo" to a policeman I could be arrested. The Hon. E. P. Pickering: The honourable member would not be arrested for saying "boo", and he knows it. That is not offensive. The Hon. R. S. L. JONES: It might be offensive to a policeman. It is my belief that it is inappropriate for the Government to reintroduce the offence of offensive language that depended on the particular police constable hearing the language. What is offensive language to one police constable might be completely acceptable to another. 1 think the Minister should make it crystal clear to the police force what does and does not constitute offensive language. I note in the Minister's second reading speech that the common law interpretation of the word offensive will apply under clause 4. But how will a policeman know what that means? I ask the Minister to clarify exactly which words or phrases he considers to be offensive language. Will the Minister please tell us which of the following phrases he considers to be offensive language? The Hon. E. P. Pickering: This is not necessary, really. Show them to me in writing and I will let the honourable member know privately. The Hon. R. S. L. JONES: "Let go of my arm"; is that all right? The Hon. E. P. Pickering: I will answer the honourable member later. The Hon. R. S. L. JONES: "Piss off', "you idiot", "you mug", "you pig", "bugger off', "leave me alone", "you are a racist pig", "you bastard", "you old bastard", "bloody hell", and "sod off'. Are these phrases offensive language, and under which circumstances are they offensive? There are many phrases used colloquially-for instance, on building sites-that would not be used in a church. Will language commonly used on building sites be deemed to be offensive language? Will a person on a building site who uses four-letter words in the normal course of work be arrested for using those four-letter words? In the fourth paragraph of the Minister's second reading speech he says: C~tlzenshave a right to use publ~estreets without bemg subjected to offenswe language It is not any unusual language that is proscribed. There is, of course, a r~ghtof freedom of speech It is the cho~ceof offensive words, rather than the expression of a wew, which is the determining factor The words must be calculated to wound the feel~ngs,arouse anger, resentment, disgust or outrage 8 June, 1988 COUNCIL 1775

But of whom-a sensitive country policeman? This brings me to my next point, which concerns the old Summary Offences Act. I wish to refer to a report entitled "Statistical Report No. 18: Minor Offences, City and Country" by M. Farquhar, O.B.E., Chief Stipendary Magistrate of New South Wales, published by the New South Wales Bureau of Crime Statistics and Research. The Hon. J. H. Jobling: What date is that? The Hon. R. S. L. JONES: 1973; under the old Summary Offences Act. The Hon. J. H. Jobling: The honourable member is just bringing a little ancient history into the debate. The Hon. R. S. L. JONES: We are not going forward; it is the same ancient history. History is now repeating itself. The Hon. J. H. Jobling: History is still ancient. The Hon. R. S. L. JONES: It is to be hoped that history will not repeat itself. This report shows that under the old Act, of those charged with offensive behaviour Aborigines were discriminated against in country towns. Aboriginal towns are defined in this report as Brewarrina, Walgett, Lightning Ridge, Collarenebri, Bourke, Peak Hill, Coonamble, Gulargambone, Wilcannia, Moree, Boggabilla, Tenterfield, Condobolin and Wee Waa. In these country towns with very large Aboriginal populations, 25.3 per cent of those arrested for offensive behaviour were gaoled; in the remainder of the country towns, which are non- Aboriginal country towns, 3.5 per cent of such people were gaoled for offensive behaviour. According to these figures, Aborigines have 7.23 times more likelihood of being gaoled than white people in country towns-that would be a death sentence to many Aborigines who cannot cope with being in gaol-and 12.93 times the chance of those in Sydney. The Hon. Marie Bignold: Is the honourable member talking about today or in 1973? The Hon. R. S. L. JONES: I am talking about the situation under the old Summary Offences Act when there was provision for a gaol sentence to be imposed for offensive behaviour. The Hon. J. H. Jobling: What about today? The Hon. R. S. L. JONES: We shall find out when this bill becomes law. The Hon. J. H. Jobling: No, what about the figures today? What is happening now. The Hon. R. S. L. JONES: This provision is being reintroduced. The Hon. J. H. Jobling: The honourable member should give us the figures applicable to the present situation. The Hon. R. S. L. JONES: There is no provision for a gaol sentence to be imposed for that offence right now, but this new legislation contains such a provision, and that is my whole point. The Hon. J. H. Jobling: The honourable member is using figures pertaining to 20 years ago. What about today's figures? The DEPUTY-PRESIDENT: Order! The Hon. R. S. L. Jones has the call. 1776 COUNCIL 8 June, 1988 The Hon. Marie Bignold: On a point of order. Would you ask the honourable member to speak a little louder? I am sure Hansard is having as much difficulty hearing the honourable member as we are. The DEPUTY-PRESIDENT: Order! Would the honourable member speak a little louder and a little slower so that honourable members at the back of the Chamber can hear him? The Hon. R. S. L. JONES: For using unseemly words, Aborigines in country towns were gaoled in 21.6 per cent of cases, which compares with 5 per cent in other country towns with a smaller Aboriginal population, and 3.8 per cent in Sydney. That means that Aborigines had 4.3 times more chance of being gaoled than whites for using unseemly words in country towns and 5.2 times the chance of people in Sydney. The Hon. J. H. Jobling: Where are the majority of Aborigines? The Hon. R. S. L. JONES: I just listed the towns. Under the provisions of the old Summary Offences Act, which provided for the imposition of a gaol sentence for the use of offensive language and offensive behaviour, Aborigines were heavily discriminated against indeed. The synopsis in statistical bulletin No. 3 1979 entitled "Aboriginal People and the New South Wales Criminal Justice System: A Review of Existing Information" published by the Bureau of Crime Statistics and Research, New South Wales Department of the Attorney General and of Justice reads: Court statistics over several years suggest that penalties for minor offences are different in country towns with a high concentration of Aboriginal people. Compared with the rest of the State, people dealt with in these courts for drunkenness offences are more likely to be fined with 24 or 48 hours inprisonment in default. In 1977 drunkenness offences increased in these "Aboriginal" towns, compared to decreases in other regions in the State. A census of New South Wales prisoners- The Hon. Marie Bignold: On a point of order. Mr Deputy-President, would you rule on whether the information being supplied by the honourable member is a digression from the subject-matter of the bill under debate, which deals with offensive conduct and language in public places? As far as I am aware it has nothing to do with statistics concerning offences by Aboriginal people in various places. The DEPUTY-PRESIDENT: Order! Thus far the remarks of the honourable member have been skating very close to being ruled as not relevant to the debate. However, thus far the material that the honourable member has been conveying to the House has been relevant to the subject-matter of the bill. He has been citing statistics that have arisen from offences committed under the old Summary Offences Act and has been seeking to draw a parallel between that and what might happen under the new Summary Offences Act, as I understand it. That being so, I rule that no point of order is involved. The Hon. R. S. L. JONES: That report continued: A census of New South Wales prisoners in 1974 showed that the rate of imprisonment of Aborigines was at least 17 times that of the rest of the population. These statistics, taken collectively. represent clear evidence that Aboriginal people are subject to systemic discrimination in New South Wales. They have a different experience from the rest of the population at the hands of the justice system, which defines, detects and punishes crimes. 8 June, 1988 COUNCIL 1777 As I said before, when Aborigines are sent to gaol, it very often means a death sentence. That is why I am opposed to the reintroduction of a provision in clause 4 that would allow the imposition of a prison sentence for offensive language. I draw the attention of honourable members to the last paragraph of the Minister's second reading speech. As a reminder to police and magistrates I point out that the objects of the Justices Sentencing (Amendment) Bill are to amend the Justices Act 1902, and to require a justice when sentencing an offender to full-time imprisonment for a summary matter or an indictable matter being dealt with summarily, to satisfy himself or herself that no other course is appropriate. Under clause ~OAB(2) of the Justices Sentencing (Amendment) Bill a justice or justices shall state, before sentencing a prisoner to imprisonment, that all possible alternatives have been considered. This is a clear message that a prison sentence is the very last resort, and that prison sentences, if brought under clause 4 of the Summary Offences Bill, are not to be imposed lightly. In view of the potential for discrimination in sentencing against Aborigines, particularly in country towns, I foreshadow moving two amendments. First, that at part 2, page 3, clause 4, all words on line 40 down to and including line 4 on page 4, be omitted and there be inserted in lieu thereof the words: 4. (1) A person shall not conduct himself or herself in or near, or within view or hearing from, a public place or a school, in such a manner as would be regarded by a reasonable person as being offensive. Second, that at part 2, page 4, clause 4, line 5, after the words "6 penalty units" the words "or imprisonment for 3 months" be omitted. The Hon. E. P. PICKERING (Minister for Police and Emergency Services and Vice-president of the Executive Council) [lo. 11, in reply: In view of the importance of this legislation and the contributions made by many members, the Government wishes to consider in detail the submissions placed before the House. Accordingly, I move: That this debate be now adjourned to the next sitting day. Motion agreed to. Debate adjourned.

DRUG MISUSE AND TRAFFICKING (AMENDMENT) BILL In Committee Consideration resumed from 2nd June. The Hon. E. P. PICKERING (Minister for Police and Emergency Services and Vice-president of the Executive Council) [10.4]: The Hon. R. D. Dyer was proposing a short amendment, with which he may no longer wish to proceed. The Hon. R. D. DYER [10.5]: In speaking to the next amendment standing in my name may I say that since this matter was last before the Committee of the Whole, on behalf of the Opposition I have given further consideration to the arguments raised by the Minister in response to the amendment I moved successfully on the last occasion. The Committee will recall that the Minister advanced the argument that the proposals in the bill, set out in the schedule, are necessary to prevent undue delay in the disposal of cases or the undue clogging of the lists in the superior courts. On the previous ll' 1778 COUNCIL 8 June, 1988 occasion the Opposition took the view that the quantities should remain as they are but, in view of the Minister's arguments and the discussions I have had with the Attorney General, the Hon. John Dowd, the Opposition has reconsidered its previous attitude. In addition to the arguments advanced by the Minister, the Attorney General has stated that it is intended, during the forthcoming budget session of this Parliament, to legislate to permit appeals against inadequate penalties imposed by magistrates in the Local Court jurisdiction. That being the case, the Opposition's reservations tend to be allayed, in that, if there is a tendency for magistrates to err in respect of sentencing in regard to lower quantities of drugs, such an error can be corrected on appeal. I thought it appropriate, at this stage of the Committee's deliberations regarding the amendments, to announce that that is the Opposition's stand. We are seeking to act responsibly. We have considered the Minister's arguments and we will no longer pursue the course we were following when these amendments were last before the Committee. Reverend the Hon. F. J. NILE [10.6]: As one who supported the amendments, I now support the explanation given by the Hon. R. D. Dyer for no longer pursuing the course formerly adopted before the Committee. He spoke of discussions with the Attorney General. This is not in any way to be regarded as the adoption of a softer approach on drugs. Justice will be more rapid and can be implemented through the magistrates' courts without undue delays, avoiding a clogging up of the cases listed in the superior courts. I accept the withdrawal of the amendments. The Hon. E. P. PICKERING (Minister for Police and Emergency Services and Vice-president of the Executive Council) [10.7]: I thank the Opposition and the crossbenchers for the attitude they have adopted about the legislation. I recognize that my delaying the passage of the bill enabled members more properly to address the measure. The additional information obtained by the Opposition has facilitated the passage of the bill, for which I am grateful. I should like it noted that when the bill was debated on the last occasion I endeavoured to the best of my ability to bring foward all information available to me. The fact that the Attorney General has been able to advise the Hon. R. D. Dyer of his intentions in another place during the forthcoming budget session of Parliament has assisted this House in the passage of legislation. I am grateful for the Attorney General's assistance in that regard. Common sense has prevailed. This is clearly for the benifit of the people of New South Wales. The Hon. R. S. L. JONES [10.9] I move: That at page 13. after the hecommencing "Nlcomorph~ne" there be Inserted the words "Ntcot~ne.075g .025g 0.125g 12.5kg 50kg." The House did not allow my previous amendments on cannabis and cannabis leaf, but I think this should pass. After all, tobacco and nicotine kill about 17 000 Australians a year. It is the most dangerous drug on the market. It is in fact a schedule 7 poison. Schedule 7 poisons are described as being substances of exceptional danger which require special precautions in their manufacture or use. I recommend this amendment to the House and would expect the amendment to pass quite easily. The Hon. E. P. PICKERING (Minister for Police and Emergency Services and Vice-president of the Executive Council) [10.10]: One has to admire the tenacity of the honourable member. As one who gave away smoking some 12 years ago. I have some sympathy for what the honourable member is seeking to achieve. The law clearly is that one can slip down to the local shop 8 June, 1988 COUNCIL 1779 and buy a packet of cigarettes. Indeed, some members of this Chamber do that regularly. It is not an illegal activity. To prescribe it under the legislation as an illegal activity would cause a fundamental problem to many people in New South Wales. Rather than cause great distress to the general population of the State, I am afraid the Government has to reject the amendment. Amendment negatived. The Hon. R. S. L. JONES [10.12]: Having failed with my first amendment, I move: That at page 15, after the word "Thiofentanyl" there be inserted the words "Tobacco leaf' "300.0g" "30.0g" "1000.0g" "25.0kg" and "100.0kg". This amendment is moved for similar reasons. Tobacco is one of the deadliest herbs known to the human race and should not be legal. The Hon. E. P. PICKERING (Minister for Police and Emergency Services and Vice-president of the Executive Council) [lo. 131: The comments I made about the earlier amendment stand. For that reason the Government rejects the amendment. Amendment negatived. Schedule as amended agreed to. Bill reported from Committee with amendments.

Adoption of Report The Hon. E. P. PICKERING (Minister for Police and Emergency Services and Vice-president of the Executive Council) [lo. 161: I move: That the report be now adopted. The Hon. VIRGINIA CHADWICK (Minister for Family and Community Services) [lo. 171: I move: That the question be amended by omitting all words after the word "That" with a view to inserting in lieu thereof the words "this bill be now recommitted w~tha view to the further consideration of schedule I." Amendment agreed to. Motion as amended agreed to.

In Committee (Recommittal) Recommitted schedule 1 The Hon. R. D. DYER [lo. 181: I move: That at page 7, after the words "Cannabis leaf', "200.0g" "25.0gm and "750.0g" be omitted and there be inserted in lieu thereof "300.0g" "30.0gM and "1000.0g". It becomes necessary to move this amendment to give effect to the announcement I made when the Committee was last considering the provisions of the bill. The purpose of the amendment is to restore the quantities relating to the substance cannabis leaf that appeared in the bill prior to its amendment. I trust that that explanation is clear and that the Committee understands that I am seeking to restore the preexisting quantities that were included in the bill. Amendment agreed to. 1780 COUNCIL 8 June, 1988 The Hon. R. D. DYER [10.20]: I move: That at page 7, after the words "Cannabis resin", "20.0gW,"2.0g3', and "40.0g" be omitted and there and there be inserted in lieu thereof "30.0g". "5.0gn, and "90.0g". I move this amendment for the same reasons I enunciated when moving the amendment just dealt with by the Committee. Amendment agreed to. Schedule as further amended agreed to. Bill reported secundo with further amendments, and passed through remaining stages. House adjourned at 10.24 p.m.