11146
LEGISLATIVE COUNCIL
Wednesday 12 November 2008 ______
The President (The Hon. Peter Thomas Primrose) took the chair at 11.00 a.m.
The President read the Prayers.
PHOTOGRAPH OF LEGISLATIVE COUNCIL
The PRESIDENT: I advise members that before the House proceeds with business an official photograph will be taken of members and officers of the Legislative Council. For this purpose I ask members and officers to follow the instructions of the photographer.
TRANSPORT ADMINISTRATION AMENDMENT (RAIL AND FERRY TRANSPORT AUTHORITIES) BILL 2008
Bill received from the Legislative Assembly, and read a first time and ordered to be printed on motion by the Hon. Tony Kelly, on behalf of the Hon. John Della Bosca.
Motion by the Hon. Tony Kelly agreed to:
That standing orders be suspended to allow the passing of the bill through all its remaining stages during the present or any one sitting of the House.
Second reading ordered to stand as an order of the day for a later hour.
MINISTRY
The Hon. TONY KELLY: I inform the House that, on 11 November 2008, His Excellency the Lieutenant-Governor directed that it be notified that he had removed from office and withdrawn the commissions of the Hon. Anthony Paul Stewart, MP, as the Minister for Small Business, Minister for Science and Medical Research, and Minister Assisting the Minister for Health (Cancer), and as a member of the Executive Council. I further inform the House that His Excellency the Lieutenant-Governor has appointed the Hon. Jodi Leyanne McKay, MP, as Minister for Small Business, Minister for Science and Medical Research, and Minister Assisting the Minister for Health (Cancer).
REPRESENTATION OF MINISTER IN THE LEGISLATIVE ASSEMBLY
The Hon. TONY KELLY: I inform the House that in the representation of Government responsibilities in this Chamber, the Hon. John Della Bosca, in addition to representing the Hon. Jodi McKay, MP, in her capacity as Minister for Tourism, and Minister for the Hunter, will also represent Minister McKay in her capacity as Minister for Small Business, Minister for Science and Medical Research, and Minister Assisting the Minister for Health (Cancer).
BUSINESS OF THE HOUSE
Take-note Debate on Mini-budget 2008-2009
Motion by the Hon. Tony Kelly agreed to:
1. That the House take note of the Mini-Budget.
2. That, on Friday 14 November 2008:
(a) the House meet at 9.30 a.m. for the purpose only of conducting a take-note debate on the Mini-Budget,
(b) that debate on the Mini-Budget take precedence of all other business on the notice paper that day,
(c) that, notwithstanding anything contained in the standing or sessional orders, no other business, including formal business and questions without notice, will be conducted on Friday 14 November 2008,
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(d) that each speaker on the motion be limited to 15 minutes,
(e) that the House continue to sit from 9.30 am until 5.00 pm with no interruptions,
(f) that if any division is called, it will be deferred and set down as an order of the day for the next sitting day, to be determined after question time on that day,
(g) that if debate on the motion has not earlier concluded, at 5.00 pm business be interrupted to allow a Minister to move the adjournment motions,
(h) the following adjournment motions are to be put without amendment or debate:
1. That this House at its rising do adjourn until Tuesday 25 November 2008 at 2.30 pm.
2. That this House do now adjourn.
SESSIONAL ORDER
Take-note Debate on Mini-budget 2008-2009
Motion by the Hon. Tony Kelly agreed to:
That, if debate on the motion that the House take note of the Mini-Budget is not concluded on Friday 14 November 2008:
(a) the order of the day for resumption of the debate be set down on the notice paper for the next day on which debate on Budget Estimates 2008-2009 takes precedence,
(b) that the take-note debate on the Mini-Budget be considered concurrently with the debate on the Budget Estimates 2008-2009 under the sessional order relating to the Budget Estimates 2008-2009 provided that at the conclusion of the debate the questions be put separately, and
(c) that during the debate, any member who has already spoken to the motion that the House take note of the Budget Estimates 2008-2009 may speak a second time, but only in relation to the Mini-Budget.
UNPROCLAIMED LEGISLATION
The Hon. Penny Sharpe tabled a list detailing all legislation unproclaimed 90 calendar days after assent as at 11 November 2008.
TABLING OF PAPERS
The Hon. Penny Sharpe tabled the following papers:
(1) Annual Reports (Statutory Bodies) Act 1984—Report of the Independent Pricing and Regulatory Tribunal for the year ended 30 June 2008.
(2) Report of the Independent Transport Safety and Reliability Regulator entitled "Implementation of the NSW Government's Response to the Final Report of the Special Commission of Inquiry into the Waterfall Accident— Reporting period July-September 2008", dated 31 October 2008.
Ordered to be printed on motion by the Hon. Penny Sharpe.
BUSINESS OF THE HOUSE
Withdrawal of Business
Private Members' Business item No. 144 outside the Order of Precedence withdrawn by Dr John Kaye.
BUSINESS OF THE HOUSE
Suspension of Standing and Sessional Orders: Order of Business
Ms LEE RHIANNON [11.28 a.m.]: I move:
That standing and sessional orders be suspended to allow a motion to be moved forthwith that Private Members' Business item No. 130 outside the Order of Precedence, relating to woodchipping, be called on forthwith.
11148 LEGISLATIVE COUNCIL 12 November 2008
The motion calls on the Government to end woodchipping in south-east New South Wales native forests; not to allow the owners of the Eden chip mill, South East Fibre Exports Pty Ltd, to establish a biomass energy plant based on native forest wood to power the chip mill and feed surplus electricity into the grid; and to prepare a restructuring and training package for the chip mill workers and management so that the plant is completely closed by the end of 2008 unless it can make a full transition to plantation resource. The motion is urgent because, as we speak, more logging of native forests has commenced around Bermagui on the New South Wales far South Coast. These forest operations by Forests New South Wales, targeting compartments 2004 and 2005 in the Bermagui State Forest, began last month and will continue into 2009.
The motion must be dealt with today because the logging operation poses such a sizeable threat to the local forest ecosystems in the Bermagui River area that there will be a negative impact on the local economy. I urge members to support bringing on this matter about logging native forests in south-east New South Wales by urgency and not to be swayed by any argument from Government Ministers, who often try to argue that the Regional Forest Agreement [RFA] justifies this forest destruction.
The RFA was set in 1998 and not reviewed in 2003 as required; indeed, it never has been reviewed. In fact, the handling of the RFA is another reason that the matter is urgent. Clearly there is a need to review the RFA in the context of the latest study on forests and greenhouse gas emissions as this work reveals that the Government has seriously underestimated the contribution that native forests can make to both mitigating and adapting to climate change.
The motion is a matter of urgency because every day that logging occurs in these two compartments— an area of over 400 hectares—it lays the basis for long-term damage to the local economy. This logging is occurring on the north-western edge of Bermagui and so the runoff drains into Bermagui River very close to the harbour. Experience of past logging in regional catchments demonstrates that the logging will quickly silt up the Bermagui River, damaging fishing and oyster leases and impacting on harbour access.
The motion must be debated today as it is time that NSW Forests stopped native forest logging in south-east New South Wales, conducted at a loss to the public, and concentrated on the plantation and plantation-based processing sectors that are the economic and jobs growth future for the timber industry in this region. The motion should be given added urgency because the south-east of New South Wales is on the eve of its peak tourist period and visitors will not be impressed to see degraded forests around Bermagui and silted waterways. It is the last thing the local tourist industry needs. Damage to the pristine environment will impact on tourist numbers, which will lead to local job losses that the region can little afford.
An end to native logging in the south-east will not reduce forestry jobs, as research undertaken by Dr Judith Ajani of the Australian National University has found that supplies of plantation timber are now at a sufficient level to allow a huge scaling back of native forest logging while still producing enough hardwood and softwood for domestic use and export. The assertion that the closure of the woodchip mill will lead to a loss of forestry jobs is misinformation.
A critical issue that highlights the level of urgency of this motion is that native forest logging generates almost 10 per cent of Australia's greenhouse gas emission. Professor Brendan Mackey's report "Green Carbon— The role of natural forests in carbon storage" shows that over 18 million tonnes of carbon dioxide is generated every year by logging for woodchips in south-east New South Wales and East Gippsland. As we know, there is a financial cost to the climate change implications associated with logging. Almost $1 million a day is the carbon cost of native forest logging to supply the Eden chip mill. At $20 a tonne of carbon dioxide, as estimated by Professor Ross Garnaut, the carbon cost is $362,293,600 per year.
An additional matter associated with south-east forestry operations that adds to the urgency of this motion is that South-East Fibre Exports Pty Ltd, the company that runs the Eden woodchip mill, has plans to establish a biomass energy plant based on native forest wood to power the chip mill and feed surplus electricity into the grid. This proposal would clearly expand the life of the woodchip mill, and the House should debate this matter. It is urgent because excessive police resources— [Time expired.]
The Hon. AMANDA FAZIO [11.33 a.m.]: I maintain that the matter is not urgent and ask members to reflect on the comments made by Ms Lee Rhiannon in which she purports to explain why the matter is urgent. Most of the arguments used by Ms Rhiannon in support of urgency in fact show that the matter is not an urgent matter. Today is the day for Government members' business. Tomorrow is private members' business day. If 12 November 2008 LEGISLATIVE COUNCIL 11149
Ms Rhiannon wanted to bring this motion on without interrupting the Government program for business she could do so tomorrow. Nothing she has said today about this matter proves the matter is so urgent that it needs to be debated today rather than being put to the House as an urgent matter tomorrow.
In fact, the arguments put by Ms Rhiannon demonstrate that the matter is not urgent. Arguments about what tourists might find when they go to Bermagui do not favour urgency. The matter may be deemed to be of importance to Ms Rhiannon and some members of the community but it is not an urgent matter that should interrupt the business paper for the House today. It is a typical stunt by the Greens, trying to put forward a matter as being urgent when it clearly is not. For all I know Ms Rhiannon may have a group of protesters at Bermagui waiting to say, "This matter has been raised in the Legislative Council of New South Wales. They debated this urgent matter. We have to do something about it. The Greens are taking the lead on this." Quite frankly, they are not. The Greens know that even if this matter were granted urgency and was debated it would have no impact on the logging arrangements in the south-east forests. It is nothing more than a cheap political stunt and is not an urgent matter. Passing a motion to say that this matter is urgent and debating it will have absolutely no impact apart from firing up a few people who want to interfere with legal logging operations in the south-east forests. I ask members to reject urgency and stick with the Government business paper today.
If Ms Rhiannon wants the matter debated urgently she could canvass people today to try to bring it on tomorrow. Members would then have to look at private members' business on the business paper and decide whether this matter is more urgent than others that have been on the business paper for longer, upon which debate has commenced, and which members who moved the items would like concluded. I urge members to reject the call for urgency and not fall into that trap of yet another Greens political stunt.
Dr JOHN KAYE [11.36 a.m.]: This matter is clearly urgent. Anybody who has been to the south-east of New South Wales in the last year or so would acknowledge the urgency of the matter. There are four key reasons why the motion is urgent. The first relates to the volume of woodchips being taken out of the south-east of New South Wales and the ongoing devastation of the forests. Every day that we delay creating a new economic future for the south-east more damage is done to native forests in that area. The second point relates to the biodiversity loss and the ongoing devastation of the population of native forests in the south-east. The third matter of urgency relates to the inevitable move towards a four-megawatt woodchip-powered power station at the Eden chip mill.
The Hon. Charlie Lynn: Are they going to build it tomorrow?
Dr JOHN KAYE: I am going to get to all that, Charlie, if you are patient. The fourth matter relates to the greenhouse gas emissions from ongoing forestry. I will briefly address each of those matters. As we know, the south-east has two possible futures. One is the future on which we are in embarking—
The Hon. Penny Sharpe: Point of order: We are discussing whether a matter is urgent. A history of logging in the south-east forests and the possible choices that we may or may not make are not relevant to urgency. I ask that you direct the member to speak to the motion of urgency.
Dr JOHN KAYE: To the point of order: The choices being faced by south-east New South Wales are of extreme urgency. It is urgent for the House to consider the dichotomy between going down the path of devastating those forests or creating a high employment future.
The PRESIDENT: Order! Again I remind members of the following ruling of President Johnson of 26 February 1987:
In debating a procedural motion, members should restrict their comments to the terms of the motion and not the substance of the matter.
The motion, which was moved according to contingent notice, seeks to suspend standing and sessional orders to allow another motion to be moved forthwith. That is the motion to which members must confine their remarks, not the motion that suspension of standing and sessional orders would allow to be debated. The member with the call may proceed.
Dr JOHN KAYE: This motion is urgent because a four-megawatt power station, powered largely by the products of the forests of south-east New South Wales, is currently on the drawing board. The motion is urgent because if this Parliament does not make a statement in respect of that power station, if it does not move to stop its being built, the current rate of devastation in the south-east forests will only accelerate. Now is the 11150 LEGISLATIVE COUNCIL 12 November 2008 time to put our foot down. If the power station is built, and if we do not make a statement about it, we will see yet another drawdown on the native forests of south-east New South Wales and yet another problem confronting the biodiversity of the region.
The motion is also urgent because of the research done by Brendan Mackey of the Australian National University, which has totally changed the scientific view of the amount of greenhouse gas emissions coming from forestry. I will not go into that matter now. However, that change in the scientific view of the quantity of greenhouse gas emissions from each hectare of forest logged completely changes our understanding of the greenhouse implications of continued logging.
Right now compartments at Murrah, Tanja and Bombala forests are in the eyes of State Forests for logging, and the Bermagui compartment is currently being logged. The motion is urgent because each of those State forests contains significant biodiversity, has locked up within it a substantial amount of carbon, and has massive potential for generating wealth if it is left as native forest. I urge members to vote for this motion as it is urgent.
The Hon. TONY KELLY (Minister for Police, Minister for Lands, and Minister for Emergency Services) [11.41 a.m.]: The Government does not support urgency with regard to this motion. I remind members that what we are talking about here is urgency.
The Hon. Melinda Pavey: Not the substantive motion.
The Hon. TONY KELLY: We are not talking about the substantive motion, which both Ms Lee Rhiannon and Dr John Kaye addressed. I will come to that in a moment. As the Hon. Amanda Fazio pointed out, we are talking about whether we should debate this motion today or tomorrow, and before Government business.
The Hon. Melinda Pavey: It's another stunt.
The Hon. TONY KELLY: It is another stunt. I should point out also that the Hon. Ian Macdonald is not well today and therefore he is not in the Chamber. Indeed, I think probably one of the reasons the Greens have sought to bring the motion on is to take advantage of that situation. Motions listed on the Notice Paper for tomorrow—which may be more urgent than this motion—include those relating to the smoke-free environment bill, from Reverend the Hon. Fred Nile; a peak oil response plan, from Ms Lee Rhiannon; the Food Amendment Bill; early intervention services for children with autism; environmental planning and assessment; and so on. Indeed, I think Ms Lee Rhiannon would also be hard pressed to have her motion debated tomorrow.
I would not normally debate the issue but I want to comment on two matters that have been raised by the Greens because they conflict. Ms Lee Rhiannon said that forest logging would not affect employment in the forests. I could go on and talk about what had happened in the Pilliga, at Coolah, and other forests, but I will not, because that would be debating the motion. I simply highlight that Ms Lee Rhiannon said that forest logging would not affect the employment in the forests but then Dr John Kaye said, "this is why the motion is urgent. We have a choice between devastating the forests and creating a high employment future." Obviously, he thinks that if we cut down the forests we will not create a high employment future. So the two speeches conflict with each other. We object to urgency being granted for the motion to be debated now.
The Hon. ROBERT BROWN [11.43 a.m.]: I apologise to the Opposition Whip: I cannot sit here and listen to this and say nothing. This motion is clearly not urgent. The arguments put by the Hon. Amanda Fazio—
Ms Lee Rhiannon: We should have more shooters in the forest, shouldn't we?
The Hon. ROBERT BROWN: Yes, you should. To suggest that this motion is urgent is hypocrisy! One of the arguments used to establish urgency is that we are just about to go into the peak tourism season. Yet the Greens would be happy to see "No fishing" signs up and down the coast. What a lot of garbage! This motion is not urgent. The proper place for Ms Lee Rhiannon to bring on a motion like this to see if she can get support is in private members' business, not government business. The motion is a waste of time, it is anti-workers, and it is disgusting.
Question—That the motion be agreed to—put.
The House divided. 12 November 2008 LEGISLATIVE COUNCIL 11151
Ayes, 4
Ms Hale Tellers, Dr Kaye Mr Cohen Ms Rhiannon
Noes, 30
Mr Ajaka Ms Griffin Mr Smith Mr Brown Mr Kelly Mr Tsang Mr Catanzariti Mr Lynn Mr Veitch Mr Clarke Mr Mason-Cox Ms Voltz Mr Colless Reverend Nile Mr West Ms Cusack Ms Parker Ms Westwood Mr Della Bosca Mrs Pavey Ms Fazio Mr Pearce Ms Ficarra Mr Robertson Tellers, Miss Gardiner Ms Robertson Mr Donnelly Mr Gay Ms Sharpe Mr Harwin
Question resolved in the negative.
Motion negatived.
BUSINESS OF THE HOUSE
Postponement of Business
Government Business Orders of the Day Nos 1 to 3 postponed on motion by the Hon. Tony Kelly.
HOME BUILDING AMENDMENT BILL 2008
Second Reading
Debate resumed from 29 October 2008.
The Hon. MARIE FICARRA [11.52 p.m.]: The Home Building Amendment Bill 2008 is meant to make life easier for consumers to access home building insurance. It is a poor attempt at doing that. The bill deals with minor amendments that have resulted from the 2007 Legislative Council inquiry but does not tackle the fundamental problems of the home warranty scheme. The Government has learnt nothing from the Beechwood debacle and has not responded adequately. How many families have had to suffer? How many adverse media articles have there been? How many consumer protection housing and insurance spokespersons have to offer sound advice to this Government before it wakes up and does what it was elected to do: to represent the interests of our constituents?
The bill provides for the automatic suspension of a home building contractor's licence if the builder fails to comply with an order from the Consumer, Trader and Tenancy Tribunal, or fails to comply with a court order to pay an amount in respect of a building claim. In future consumers will be able to make an insurance claim following those circumstances. This catch-up regulation has been a long time coming. In addition, disciplinary action can be taken against a licence holder if he or she fails to comply with the court order regarding a building claim. They are all very good and logical changes that should have been in place previously.
The bill tinkers around the edges and reduces some red tape here and there but falls short of sorting out the fundamental problems of our home warranty scheme—often termed "junk" insurance by reputable building industry sources and informed media commentators. Does the bill address the fact that insurers refuse more than two-thirds of all claims? No. Does the bill address the plight of consumers being bullied by insurers into bankruptcy with regular court battles in an attempt to access their insurance rights?
The Hon. Matthew Mason-Cox: No. 11152 LEGISLATIVE COUNCIL 12 November 2008
The Hon. MARIE FICARRA: Precisely. Does the bill regulate the insurance companies to stop them reaping super benefits at the expense of consumers? No. Does the bill stop the unethical and harassing manner in which insurers forced tired and frustrated consumers to access inadequate settlements and sign away their rights to make future claims against these insurers? No. Does the bill address the regular and numerous mistakes made by the members of the Consumer, Trader and Tenancy Tribunal that can only be sorted out by consumers appealing to the Supreme Court?
The Hon. Matthew Mason-Cox: No.
The Hon. MARIE FICARRA: Precisely. The Hon. Matthew Mason-Cox is spot-on there. Does the bill address the failure of the Department of Fair Trading to better oversee insurance premiums, claims and performance data to safeguard the interests of the public and not the insurance companies? No. Does the bill address the concerns of good builders who have been refused cover as they cannot afford to underwrite their own policies?
The Hon. Matthew Mason-Cox: No.
The PRESIDENT: Order! The member with the call will ignore interjections.
The Hon. MARIE FICARRA: Does the bill address the fundamental failure of our "junk" insurance scheme that forces inexperienced consumers to try to understand, handle and fund their never-ending legal nightmare, negotiating their way through an expensive, complex and unfriendly legal system without the assistance they should be getting from the Department of Fair Trading and their insurers? No, no, no is the answer but does the Government care? Equally the answer is no. So what does the bill do?
The bill makes it easier for builders who refuse to comply with court orders to have their licences cancelled and it enables the consumer to then lodge an insurance claim. However—and this is the important part—the insurer still does not have to accept liability. These builders who have had their licences cancelled will undoubtedly have other stranded consumers and all of them will now have no recourse to insurers and will have to start their own legal proceedings against the builders. Meanwhile the Government has failed to provide a satisfactory resolution for the hundreds of poor consumers who have been stranded in courts for many years— some of them up to six years—having spent their life savings trying to get their insurer to pay their claims. What is the Government's position? It is one of sadness blamed on poor past legislation. The truth is not much has changed, and for that we are all very sad, because these consumers need action; not forced sympathy. What needs to change is the Government.
Repeating what the Hon. Catherine Cusack said, what is needed is a special commissioner to individually review cases and recommend compensation that will free these poor families from their current home warranty horror stories—situations that have led, and will continue to cause, financial, emotional, marital and family breakdowns. As legislators we need to respond with solid solutions and not more cover-ups or tinkering around the edges. The real problem has dogged the State ever since the privatisation of the home warranty scheme. It must be stopped. This should have been the time for real reform, not just a mickey mouse response to the history of complaints. In last year's Legislative Council's review, in which I participated, I was shocked by the reality of the situation for so many families in New South Wales.
Let us look at the history of the Home Warranty Scheme in New South Wales. We have heard of the successful operation of the Home Warranty Scheme in Queensland and Tasmania. Why do we not learn from the successes of our interstate colleagues, even though the Housing Industry Association [HIA] in its press release of 24 September 2008 warned us that the system in Queensland is far from perfect? It promotes the more accurate analysis of the two consumer protection systems. Improving consumer confidence in new home building and renovating should be the objective, according to Graham Wolfe, Executive Director of the HIA. Mr Wolfe quite rightly points out:
With uncertainty in global investment and financial markets, investment in new residential construction by owner-occupiers and investors remains at a record low in New South Wales. New housing activity continued to undersupply our State's growing population by more than 17,000 residences per year. Rent prices will continue to skyrocket for at least the next 18 months, placing greater pressure on public housing waiting lists. We cannot continue to squeeze an extra 75,000 people into a declining number of new house starts each year.
Pursuant to sessional orders business interrupted and set down as an order of the day for a later hour. 12 November 2008 LEGISLATIVE COUNCIL 11153
QUESTIONS WITHOUT NOTICE ______
WANGI WANGI POLICE STATION
The Hon. MICHAEL GALLACHER: My question without notice is directed to the Minister for Police. Is the Minister aware that the Minister for the Hunter has revealed in today's Newcastle Herald plans to sell off Wangi Wangi police station to assist in the building of the Raymond Terrace police station? What does the Government estimate the Wangi Wangi police station to be worth? What other police stations does he intend to sell to pay for Raymond Terrace police station? Given that no development application has been lodged for Raymond Terrace police station, despite comments by the member for Maitland, Frank Terenzini, that it would be lodged by August this year, what is his revised timetable for the completion of this project?
The Hon. Duncan Gay: Why did you lie to us yesterday?
The Hon. John Della Bosca: Nonsense, Duncan.
The Hon. Duncan Gay: He did. He said he was not going to sell any off.
The Hon. TONY KELLY: I ask the Deputy Leader of the Opposition to withdraw the comment.
The PRESIDENT: Order! It is very difficult to hear. I have asked members repeatedly to show decorum to enable the Chair to hear the proceedings.
The Hon. TONY KELLY: The Deputy Leader of the Opposition called me a liar. I ask him to withdraw it.
The Hon. Duncan Gay: He said he was not going to sell off police stations.
The PRESIDENT: Order! Interjections are disorderly at all time. Many former Presidents and Chairs of Committees have ruled that it is unparliamentary for a member to call another member "a liar". I ask the Deputy Leader of the Opposition to consider withdrawing the accusation.
The Hon. Duncan Gay: If it is put that way, I will consider withdrawing it. I will withdraw it.
The Hon. TONY KELLY: Thank you, Mr President.
The Hon. Duncan Gay: But you misled the House yesterday when you said you were not going to sell them. That is as close to a lie as I know.
The PRESIDENT: Order! Having heard the interjection of the Deputy Leader of the Opposition, I call him to order for the first time.
The Hon. TONY KELLY: I am aware that there has been considerable debate about the future of the Port Stephens police station and, for some time, discussion about using the Port Stephens council offices for a police station. I am aware also that the new mayor has said he is not prepared to vacate those premises, and NSW Police have indicated to me that they do not prefer that site anyway. They prefer their original site, which has a minor complication of an environmental and historical nature. They are working through that issue and will lodge a development application.
FRONT-LINE HEALTH SERVICES
The Hon. KAYEE GRIFFIN: My question without notice is addressed to the Minister for Health. Can the Minister inform the House what the Rees Government is doing to maintain and support the delivery of front-line health services in New South Wales?
The Hon. JOHN DELLA BOSCA: The mini-budget has again confirmed that health care for New South Wales families remains a top priority of this Government. Health spending in New South Wales now comprises 27 per cent of the entire New South Wales budget. We have doubled our funding in the past decade. There are increased demands on our health system. This year our emergency department admissions are up by 11154 LEGISLATIVE COUNCIL 12 November 2008 nearly 6 per cent and the number of operations performed in our hospitals is up by 6.5 percent. We are seeing and treating more patients. The New South Wales public health system must seek further efficiencies so that it can meet that increasing demand. In this year's budget, Health was allocated a record $13.2 billion. The mini-budget has not changed the allocation to the health services. When the member for North Shore talks on the radio about health cuts, either she is deliberately being misleading or she cannot read a budget paper.
The Department of Health has the same budget but treats more patients. That is why the Government is identifying $125.9 million in revenue opportunities, internal efficiencies and productivity improvements in the mini-budget. Health will retain these savings to meet rising demand and rising costs. Throughout the mini-budget process, the Government has endeavoured to make savings in back office areas and in ways that minimise the effect on patients. These measures will continue to be implemented across a five-year timeframe. The measures will include increasing efficiency in procurement of medical equipment, pharmacy supplies and goods and services. It will include reducing reliance on overtime and the higher costs of the non-permanent workforce. Further, it will include updating fees charged to private specialists who utilise our public health infrastructure to better reflect the cost of State-provided equipment and support services; improving and standardising the use of best practice for billing of private patients receiving care in public hospitals; streamlining administration and sharing asset maintenance, corporate services and clinical support networks; and ending subsidies from NSW Health to private hospitals for the cost of providing blood and blood products.
The PRESIDENT: Order! The Hon. Matthew Mason-Cox will cease interjecting.
The Hon. JOHN DELLA BOSCA: Subject to negotiations with the Commonwealth about national infrastructure funds, some capital projects may be deferred and others may be brought forward. This will ensure the planned program is realistic and deliverable within existing resources.
The Hon. Michael Gallacher: He has not blamed the global credit crisis yet.
The Hon. Duncan Gay: Is it John Howard's fault?
The Hon. JOHN DELLA BOSCA: I will get to that. New South Wales retains a $2.7 billion health capital program over four years. We are still building and investing in major health infrastructure. The Government has reconfirmed its commitment to major projects already in progress, including Liverpool Hospital, the new Royal North Shore Hospital, Orange Hospital and the Mater Hospital in Newcastle. The decision to continue these major projects unchanged in tough economic times is evidence of the Rees Government's continuing commitment to invest in vital health infrastructure. Recent important health initiatives are continuing to improve health services. We have provided an additional 72 beds to expand medical assessment units in our busiest hospitals across the State, $46 million over four years for extended maternity services, an additional 52 acute hospital beds, and extra nursing and allied health staff to treat patients in local hospitals closer to home. The Rees Government is continuing to invest in health services and to support our doctors and nurses to deliver great health care in our great public health system.
SYDNEY CONGESTION TAX
The Hon. DUNCAN GAY: My question without notice is directed to the Treasurer. Given that in June this year when the Treasurer was questioned about a congestion tax for Sydney he said:
What we need are commonsense solutions, not the armchair advice from academics in ivory towers. We have no interest in introducing a congestion tax; it's not suitable for Sydney.
Today on radio he said:
Once we go fully electronic I think it's very much what we should look at in terms of managing the demand for the finite amount of road space we have.
Why has the Treasurer now gone back on the original commitment and slugged New South Wales' working families with this extra tax, and can we now expect these new tolls to be rolled out across the whole of Sydney?
The Hon. ERIC ROOZENDAAL: I would have thought that with the honourable member's vast experience as the shadow Minister for Roads he would understand the difference between a congestion tax and differential tolling, but clearly, he does not. Let us be very clear: the initiative shown on the Harbour Bridge and 12 November 2008 LEGISLATIVE COUNCIL 11155
the Sydney Harbour Tunnel is differential tolling—rewarding people by making it cheaper to come into the city outside of peak hours on either of those crossings. It sends a cost signal to people to think about when they want to travel on either of those two crossings.
Certainly it has always been the view of the Government that ultimately we would like to make the whole system fully electronic. It is not unreasonable that an international city has the latest technology operating on its motorways. We do not want people to use cash to enter the tollways; it slows down traffic and it causes issues, as the honourable member should well know since we have discussed this many times in the House. Of course, the honourable member fails to mention that any additional funds generated from the variation on the toll—and I point out that this is the first increase in tolls for the Harbour Bridge and the Sydney Harbour Tunnel in six years—goes straight back into funding new buses as part of our initiative for public transport.
The bus lane on the Sydney Harbour Bridge carries more people during peak hours than all other lanes of the bridge combined. That is why we are committed to funding public transport—
The Hon. Duncan Gay: If it is so good why have you budgeted for more revenue?
The Hon. ERIC ROOZENDAAL: It is to fund buses. The Deputy Leader of the Opposition does not listen. It is to fund public transport. This initiative will be tried for the first time in Australia. It is the way to move forward in managing finite road space and dealing with the challenge of traffic congestion.
The PRESIDENT: Order! The Deputy Leader of the Opposition will cease interjecting.
KEELONG JUVENILE JUSTICE CENTRE CLOSURE
Ms SYLVIA HALE: I address my question to the Minister for Justice. I refer to the announced closure of Keelong Juvenile Detention Centre. Given that even as late as October this year Keelong was in the process of expanding from 23 to 30 beds to cope with increased inmate numbers, how many of the current inmates at Keelong will be relocated into an adult correctional centre now that Keelong, rather than being expanded is to be closed?
The Hon. JOHN HATZISTERGOS: I am the Minister for Justice not the Minister for Juvenile Justice. The Minister for Juvenile Justice makes requests for transfer of inmates into Corrective Services from time to time in accordance with relevant legislation.
CROWN LAND PAPER ROADS
The Hon. TONY CATANZARITI: I direct my question to the Minister for Lands. Will the Minister provide details of how the mini-budget will assist rural landholders wishing to close and buy Crown land paper roads?
The Hon. TONY KELLY: This is a very good initiative. Yesterday's mini-budget provides some more good news and a further incentive for rural and regional landholders wishing to convert old paper roads to freehold land. The mini-budget includes additional resources, at no net cost to the budget, to employ more regional staff to fast track the closing and selling of unnecessary Crown roads. This is a commonsense, practical approach that I know will be well received in the bush. The reforms for enclosed roads have been well received, so much so that the Department of Lands could not keep up with the demand for landholders wishing to close and buy old enclosed roads.
Paper roads generally comprise small strips of Crown land that were created in the original subdivision of the State stretching back to the colonial days. To assist the inland settlement of New South Wales, every minor portion in the State had a paper road going to it. There are around 33,000 of these enclosed roads crisscrossing the State, and many of them will never be roads. They might go through a dam, up a cliff or right through the middle of a field. Even where actual road construction took place often they did not follow the actual route of the paper road. Many rural members in the House will know that many of those country roads out in the rural areas did not follow the road: a Crown road was marked on a plan but the actual road was put in the most appropriate place, which was often very different to the plan. It was difficult and a huge cost for councils to close the road, have it transferred and buy the freehold that was under the actual road. I certainly encountered that difficulty when I was general manager of my council. 11156 LEGISLATIVE COUNCIL 12 November 2008
In the twenty-first century most of these roads have clearly reached their use-by date. Most of these paper roads are enclosed under a permit system and used for grazing. The roads have been effectively enclosed by farm fencing and are not required to provide access for other parties. The land within these paper roads has been excluded from the title of the adjoining freehold land and remains public land. The cost of administering such parcels of land is uneconomic and continued ownership of these paper roads by the Government is no longer required or justified.
Through the mini-budget process the Department of Lands has secured additional resources over the next two years to fast track the program to convert as many of these roads as possible to freehold. This is a win-win situation for everyone involved. The accelerated program will generate more revenue for our schools, hospitals and front-line services. It will free up the Department of Lands to focus on genuine public land management issues, such as showgrounds, parks and community halls, and it will finally sort out the tangled-up, outdated paper road network and provide landholders with greater certainty of ownership of their farming lands.
To encourage landholders to take up the offer we have halved the upfront costs of closing and buying these roads. About 5,000 landholders have taken up the offer and the department is working hard to get through the backlog of applications. With these additional resources there is no better time for landholders who have been thinking about finally sorting out that old paper road running through their back paddock to put in an application. I again call on landholders to consider putting in an application to close and buy those roads. I also reiterate that we will not be selling roads—
The Hon. Rick Colless: Do they have to pay the transfer fee?
The Hon. TONY KELLY: Of course you have to pay the transfer fee. With any transfer of land in the State you have to pay the transfer fee. Roads that provide the only access to neighbours obviously will not be sold.
BIOMASS FUNDING
Reverend the Hon. Dr GORDON MOYES: My question is addressed to the Hon. John Della Bosca on behalf of the Minister for Primary Industries. Is the Minister aware that the development of biomass, or second-generation biofuels, produces more environmental and economic benefits than ethanol? If climate change experts are predicting a hotter, drier New South Wales with even greater variability of harvests, why is the Government on one hand building a desalination plant in response to climatic prediction while on the other hand proposing a grain ethanol industry whose operations under the same climatic predictions will be even more unworkable? Given that the prices of basic commodities have skyrocketed in recent years and the conversion of food to fuel has contributed to starvation and civil unrest for millions of the world's poor, can the Minister indicate what strategic research and development policies will be established to ensure that biomass is part of the answer to our energy problem?
The Hon. JOHN DELLA BOSCA: I thank the member for his question. What a great shame it is that our colleague the Hon. Ian Macdonald is not here today to answer it. I have heard him wax lyrical on this very subject on a number of occasions. He certainly does give you an education in four minutes or less in response to the kind of question that Reverend the Hon. Dr Gordon Moyes has asked. Unfortunately, I am unable to wax so lyrical. I will take the question on notice and draw it to the Minister's attention. I am sure he will provide an answer to the member at his earliest convenience.
MINI-BUDGET
The Hon. GREG PEARCE: I direct my question to the Treasurer. On 29 October 2008 the Treasurer told this House:
…the Government will continue to look for other opportunities in the mini-budget to stimulate parts of the local economy. In these tough economic times, the message the Government has for New South Wales businesses is that it understands the situation they face and will work with them to deal with the crisis and come out the other side.
What opportunities did the Treasurer locate and include in the mini-budget that will stimulate parts of the local economy or demonstrate his ability to work with business?
The Hon. ERIC ROOZENDAAL: The honourable member raises a couple of very interesting issues. He talked about the message. I will begin by responding to that because I am flummoxed. This morning I was 12 November 2008 LEGISLATIVE COUNCIL 11157
listening keenly to 2UE and I heard the Leader of the Opposition, Mr O'Farrell, tell Mike Carlton that he would "go out and borrow a few extra billion dollars". That is the policy announced this morning by the Leader of the Opposition. I immediately referred to my file of press releases from the shadow Treasurer, who is an honourable and learned man who understands public finances.
The Hon. John Della Bosca: You have the wrong bloke.
The Hon. ERIC ROOZENDAAL: No, I am talking about the Hon. Greg Pearce. Members can imagine my shock when I discovered that he has attacked the Government for its "$42 billion debt splurge". On the one hand we have the shadow Treasurer saying we have too much debt and on the other hand we have the Leader of the Opposition, Mr Barry O'Farrell, saying that he would borrow more. The question is: Who is telling the porky pie? Is it Barry O'Farrell—Mr I'll Go and Borrow More—or is it the shadow Treasurer?
My personal view, for what it is worth, is that the shadow Treasurer probably understands a bit more about public finance than the Leader of the Opposition. He understands the importance of borrowing only what the State can afford; he understands the importance of maintaining the triple-A credit rating; and he understands the importance of fiscal responsibility. Clearly, the Leader of the Opposition does not. He thinks he can go down to the local ATM and borrow a few more billion dollars on the New South Wales taxpayers' account, bump up our debt and blow the triple-A credit rating. Perhaps the Leader of the Opposition agrees with the Leader of The Nationals that the triple-A rating does not matter. We know it does matter.
In relation to business, the cuts to payroll tax have been maintained and confirmed in the mini-budget. That is a $1.9-billion injection into the economy to support business. That is what this Government is doing to support business. Of course, let us not forget our major capital expenditure. Over the next four years we will spend $56 billion on infrastructure. That is the largest spend on infrastructure in the next four years in the nation. The Opposition seems to have a fundamental misunderstanding about the Government spending more than $13 billion on infrastructure this year to provide the building blocks of a stronger economy. This Government is also supporting business with payroll tax reductions, and by maintaining the triple-A credit rating, and by ensuring that New South Wales stays the appropriate place to invest.
FIRST HOME OWNERS GRANT
The Hon. HENRY TSANG: I direct my question to the Treasurer. Will the Treasurer outline the increases in the first home owners grant announced in the mini-budget and the benefits for the people of New South Wales?
The Hon. ERIC ROOZENDAAL: I welcome the opportunity to inform the House about this initiative, which will give first home buyers and the construction industry a leg-up in these difficult times. Yesterday I announced that an extra $3,000 would be available for first home buyers who build a new home or buy a newly constructed home over the next 12 months. This additional grant supplements the existing First Home Owner Grant scheme, which is totally funded by the New South Wales Government, and the boost announced last month by the Rudd Government. It means that grants of up to $24,000 are now available to first home buyers in New South Wales. From yesterday first home buyers who build a new home or a newly constructed home will now receive $7,000 under the existing first home owner grant, $14,000 from the Rudd Government's boost and now the $3,000 top-up announced in the mini-budget. This includes off-the-plan and substantial renovations such as factory conversions, which are very popular with young purchasers.
I am sure that members will agree that this is great news not only for new homebuyers but also for the building industry in New South Wales. Indeed, the Housing Industry Association has warmly greeted this initiative. The increased grant and boost, together with generous exemptions and concessions, sends a strong message that New South Wales is working to help first home buyers in difficult economic times.
In just one example, when the increased grant is added to existing assistance that is available, such as stamp duty concessions, a new homebuyer could benefit to the tune of $41,990 in buying a new home. This makes the New South Wales First Home Benefits scheme one of the most generous packages for first home buyers in the country. Since the First Home Owner Grant scheme started in 2000, the New South Wales Government will have provided $2.7 billion in grants and $2.1 billion in stamp duty concessions, bringing the total to $4.8 billion. It also means that we have helped more than 361,000 homebuyers, families and young couples to enter the property market. 11158 LEGISLATIVE COUNCIL 12 November 2008
This initiative does not merely benefit the young. There are cases where older residents of New South Wales have been able finally to enjoy the security of owning their own home for the first time through assistance offered by the First Home Benefits. The extra grant and boost will offer greater opportunity for these people as well. This increased grant will give additional help to people building new homes in the suburban heartlands of New South Wales, in Liverpool, Campbelltown, Blacktown, Gosford and Wagga Wagga.
The overwhelming majority of first home owner grants go to people paying less than $500,000 for their new home. It is not intended as a bonus for wealthy people building mansions in Mosman who do not need the State's assistance. To ensure this initiative targets those who most need it, from 1 July next year the New South Wales Government will cap the First Home Owner Grant to properties valued at under $750,000. It is a positive step for first home buyers, a positive step for the construction industry, and a positive step for the New South Wales economy.
NON-GOVERNMENT ORGANISATIONS HEALTH GRANTS PROGRAM
Ms LEE RHIANNON: I direct my question to the Minister for Health. Two weeks ago in this House the Minister praised the work of non-profit health non-government organisations that receive assistance under New South Wales Health's non-government organisation grants program for providing "an effective and complementary range of health services to the community at a local level". What will be the impact of yesterday's mini-budget cut of $11 million over three years from the non-government organisation grants program? What is the rationale for decreasing funding by $11 million over three years, given the increasing demands on New South Wales hospitals and increasing health inequities in New South Wales? Why is the Government cutting funding provided to these non-government organisations given their efficiency in reaching out to disadvantaged people, including people who are homeless, living with HIV, mentally ill, or living with drug and alcohol problems?
The Hon. JOHN DELLA BOSCA: I thank the member for that very good question. First, I confirm that everything she suggested I said was obviously correct, and I stand by those remarks. The points she made about non-government organisations [NGO] and the activities of the overwhelming majority of them in the health, disability and community welfare sectors is a matter of public record. I have always supported collaborative models involving non-government organisations and the public sector—and in appropriate circumstances even the private sector. That remains the case. I have a long history in public office from my time as disability services Minister and in other portfolios of developing collaborative models to work with non-government organisations to implement efficiently all sorts of social initiatives involving drug and alcohol services and in some community welfare areas. Of course, I expect that to continue in the health sector.
The budget for non-government organisations in the health sector is substantial. Our mini-budget strategies are focused on correct revenue measures to ensure that the private sector makes a fair return to our public hospitals and any other activities. As we bed down the initiatives in the budget I have made it clear that we need to make savings and efficiencies in NGO expenditure. Administrative efficiencies will be required of the public sector. I have already commenced discussions with the director general and senior officers of the Department of Health. I have been observing clinicians and management in area health services and hospitals to find ways we can improve on efficiencies, and I have listened to their ideas about how to do that.
I anticipate doing exactly the same thing in relation to non-government organisations. The Department of Health, my office and I will be working through these issues with the non-government organisations to achieve administrative-type efficiencies. Obviously that will be our top priority in any funds allocated to non-government organisations. I think the member will concede there are all sorts of ways that non-government organisations can produce efficiencies without reducing their levels of service. That is not always easy, and I accept there will be problems in doing that, but the approach I take in these matters is consultative. I will be working with the non-government organisation sector, and I expect the Department of Health and area health services will be doing the same.
Yes, we are looking at ways to tighten our belts around non-front-line issues. We will be applying to non-government organisations rules similar to those applied to the government sector. I do not need to recite to the member the points the Treasurer has already made about straitened circumstances. We are in the midst of a much tighter fiscal situation than we were six months ago—and, really, only six weeks ago. As I said, I will be looking at administrative efficiencies and reviewing the grants program to make sure it is streamlined and that we and the non-government organisations are focused and managing well. We will be working with the non-government organisations to review the small savings that will be possible. 12 November 2008 LEGISLATIVE COUNCIL 11159
GOVERNMENT WAGES POLICY
The Hon. CATHERINE CUSACK: My question is directed to the Treasurer. Will he confirm that where Ministers are signing off on wages in excess of 2.5 per cent their departments are still required to make savings to fund the gap? In addition, will he confirm that agencies are still required to deliver 1.5 per cent efficiency dividends to Treasury? Are these essential savings measures valued at around $1 billion, and are they in addition to the cuts announced in yesterday's mini-budget? If so, when will the Treasurer reveal these additional cuts?
The Hon. ERIC ROOZENDAAL: I would be confident that the shadow Treasurer did not write that question for the member, who should understand, as I restated yesterday, that we have a wages policy of 2.5 per cent and anything above the 2.5 per cent needs to be found through appropriate cost saving measures in departments.
The Hon. Catherine Cusack: In addition to the mini-budget?
The Hon. ERIC ROOZENDAAL: Despite the member's experience in this House her eye for detail is not good.
The Hon. Duncan Gay: Tell us where it is wrong.
The Hon. ERIC ROOZENDAAL: I am glad the member asked. I will tell him where the Hon. Catherine Cusack is wrong. While doing some night-time reading of Hansard recently, I read that the honourable member, who I believe is the shadow Minister for Fair Trading, was railing on the issue of changes to green slips. It was interesting because she said—
The Hon. Don Harwin: Point of order: What the Minister is saying has nothing to do with the question asked. The Minister should be brought back to the substance of the question. The Fair Trading portfolio has nothing to do with this issue.
The PRESIDENT: Order! The question, which related to departments and additional cuts to services, was very broad. Accordingly, the Minister may continue to make his answer generally relevant to the question.
The Hon. ERIC ROOZENDAAL: As I was saying, I thought the shadow Minister for Fair Trading was talking about the initiatives to cover at-fault drivers with the expansion in green slips. This experienced member said on that occasion:
This, of course, is a slug that Labor directs at low income families—rich families driving new cars do not need green slips.
I repeat, she said:
… rich families driving new cars do not need green slips.
The Hon. Duncan Gay: Point of order: The question asked by the Hon. Catherine Cusack is most specific and the Treasurer is not getting even close to answering it.
The PRESIDENT: Order! There is no point of order.
The Hon. ERIC ROOZENDAAL: For the information of the Hon. Catherine Cusack let me make this matter very clear: It is obvious she has never had to register a car, or perhaps she has had somebody register a car for her. She may know something about rich families, I do not know, but I remind her that green slips are compulsory and they have always been compulsory. The initiatives we have taken with green slips will help to cover at-fault drivers. The honourable member should know that our wages policy remains— [Time expired.]
STANDING COMMITTEE OF ATTORNEYS-GENERAL
The Hon. JOHN ROBERTSON: Will the Attorney General please update the House on the work being done by the Standing Committee of Attorneys-General?
The Hon. JOHN HATZISTERGOS: This is a great question, and I congratulate the honourable member on his fabulous inaugural speech, which he made last evening. I am pleased to inform the House that 11160 LEGISLATIVE COUNCIL 12 November 2008 the Standing Committee of Attorneys-General met in Queensland last week and achieved progress in relation to a raft of important legal reform initiatives. These initiatives are designed to reduce the burden of regulation for business and people living throughout Australia, irrespective of the State or Territory in which they reside. This climate of goodwill and cooperation stands in stark contrast to that which existed under former Federal Attorney-General Philip Ruddock. It was pleasing to note his continued absence from these meetings.
At the meeting New South Wales continued its lead role in efforts to standardise laws and procedures in a number of key areas. Of particular interest to New South Wales is the continuation of efforts to standardise professional indemnity insurance requirements for legal practitioners across Australia. A number of people in this Chamber used to practise in big firms. The Hon. David Clarke was one of them, and he would know the importance of being able to practise in different jurisdictions without having to navigate through various legal requirements. We have been pleased to be able to advance our efforts to ensure that that continues to be the case. Uniform requirements in this area are designed to facilitate more interstate legal practice and competition.
Ministers also considered issues relating to the admission of overseas qualified lawyers to practise in Australia, and agreed to consultation with key stakeholders about creating a uniform scheme of admission. This issue is of particular importance to New South Wales, given Sydney's reputation as a centre for excellence in commercial law. Any moves in this regard will only serve to improve New South Wales's competitiveness in the international legal services market.
Ministers also agreed to release a number of important discussion papers for consultation on important harmonisation issues. These include a discussion paper on proposed legislation to create a model spent convictions regime, a discussion paper on proposed amendments to State and Territory electronic transactions Acts, and the Model Criminal Law Officers Committee discussion paper on model non-consensual genetic testing provisions. All these papers will be made available online shortly.
One other reform of current importance to New South Wales is the prohibition on the publication of the names of children involved in criminal proceedings. In light of the recent review of the prohibition by the Legislative Council Standing Committee on Law and Justice, I have pursued the committee's recommendations to seek the cooperation of other jurisdictions in relation to achieving consistency on this issue. In response to this, all Ministers agreed to the preparation of a paper to further explore the issue of the national prohibition.
I note that censorship Ministers also met in Queensland and discussed a number of issues relating to the operation of the National Classification Scheme. As members would be aware, recent events have highlighted the need to consider the applicability of the National Classification Scheme to artworks. As such, I recently wrote to censorship Ministers in other jurisdictions to suggest that consideration be given to options to improve the national scheme as it applies to artworks.
I am pleased to inform the House that at our meeting the censorship Ministers supported my position and agreed to a review of the National Classification Scheme. This review will include the application for guidelines for the classification of publications to artworks, the appropriateness of the current requirements for display of classification markings in relation to markings that have been classified, and the consistency and clarity of calling-in provisions around Australia whereby the Classification Board's requests about a previously unclassified publication or artwork is supplied to it for classification.
Ministers also requested that the Commonwealth review the classification fees charged in relation to artworks to ensure the fees are not an obstacle to the classification of artworks. The issue is another example of what should be achieved through constructive cooperation between the Commonwealth, the States and the Territories. I look forward to providing the House with further updates on the future progress achieved by the Standing Committee of Attorneys-General.
DRINK DRIVING
Reverend the Hon. FRED NILE: I ask the Attorney General a question without notice. Is he aware that a high percentage of deaths on New South Wales roads are the result of speeding drivers being intoxicated with alcohol? Is the Attorney General aware that a recent poll by the Daily Telegraph found that 65 per cent of respondents supported a zero tolerance approach to drink driving? Will the Government implement a zero tolerance approach to drink driving in New South Wales, with a new road safety slogan so as to save lives, "You must not drink and drive"? 12 November 2008 LEGISLATIVE COUNCIL 11161
The Hon. JOHN HATZISTERGOS: Issues in relation to alcohol and driving are more appropriately directed to the Minister for Roads, who, coincidentally, I represent in this House. To that extent, I will pass on the question to the relevant Minister. However, I will clarify one point that was implicit in the member's question with regard to a report recently in the Daily Telegraph of an increase over the last two years of some 10 per cent in the number of persons who were found to have come in contact with the police for driving with an excess of the prescribed concentration of alcohol in their blood.
The figures that the Daily Telegraph used were for the last two years. The commentary from the Bureau of Crime Statistics and Research for the figures over the last five years is that the outcome is stable; there has been no increase. For example, in the year prior to the two years referred to, the number of persons found to have come in contact with the police for driving with an excess of the prescribed concentration of alcohol in their blood was around 27,500, a similar number to that for the last year referred to in the article. Therefore, there has been relative stability, not an increase.
In relation to the broader policy issue, I recall that when I first started practising law the legal limit for the prescribed concentration of alcohol in a driver's blood was 0.08 per cent. About 25 years ago that limit was reduced to 0.05 per cent. Further qualifications have been made to drink-driving provisions subsequently, particularly with respect to taxi drivers and P-plate drivers.
Over a period of time community attitudes have changed. And the courts have reflected that attitude by imposing more severe penalties on an increasing number of people, particularly as a result of the guideline judgement handed down by the Court of Criminal Appeal several years ago. These issues are under continual scrutiny and observation. To the extent that there may be further information on the matter, I will refer the question to the Minister for Roads for an update.
GREATER SOUTHERN AREA HEALTH SERVICE
The Hon. JENNIFER GARDINER: My question is directed to the Minister for Health and is further to the Minister's comments about the unacceptability of health service creditors having to wait for longer than 45 days to be paid. Is the Minister aware that a Goulburn fruit and vegetable supplier to the Greater Southern Area Health Service is owed $12,447, with invoices dating back a year in addition to invoices for July, August and September 2008? Is he aware that this business has repeatedly had to stop supplying the health service with fruit and vegetables because of the chronic non-payment of its bills? Is the Minister also aware that when these stoppages are imposed, area health service staff make a token payment, either with cash or credit cards, to get the deliveries going again, but that they rarely clear the whole debt? When can this small business expect to be paid in a timely and complete fashion in accordance with the Minister's policy?
The Hon. JOHN DELLA BOSCA: I am happy to get back to the member with specifics at an appropriate time. I have said on a number of occasions—and the member is aware of it—that I expect area health services to manage their budgets and pay their bills in a timely and businesslike way. There are reasons why the benchmarks of 30 and 45 days exist. I expect those benchmarks to be reached. Each and every day health services receive bills and pay them—and those bills amount to about $10 million. Paying bills on time is critical to having the supplies that our public health facilities need. The current regrettable situation, which includes the one referred to, where creditors have to wait far too long for their payments, is being addressed. This is a temporary situation. The reality is there are always bills and always payments. That is not going to change.
The Hon. Duncan Gay: It will be worse after this mini-budget.
The Hon. JOHN DELLA BOSCA: The Deputy Leader of the Opposition has made a comment that is completely out of the blue and completely wrong. I would always encourage any creditor who may have an outstanding invoice to contact the dedicated telephone number for the relevant area health service to pursue and ensure that the payment is made.
STATE EMERGENCY SERVICE VOLUNTEERS
The Hon. IAN WEST: My question is addressed to the Minister for Emergency Services. Can the Minister outline what initiatives have been undertaken to support State Emergency Service volunteers?
The Hon. TONY KELLY: I thank the honourable member for his interest in emergency services. I am sure members are aware that this is National SES Week. 11162 LEGISLATIVE COUNCIL 12 November 2008
The PRESIDENT: Order! The Leader of the Opposition will allow the Minister to answer the question.
The Hon. TONY KELLY: This is an important matter. We have 10,000 volunteers, who all give their time to look after our communities, yet Opposition members cannot remain quiet long enough to hear my answer. It is fitting this week that we pay tribute to those more than 10,000 volunteers across the State who stand ready to assist their communities during natural disasters and other emergencies. This year to June was one of the busiest on record for our State Emergency Service, with a succession of floods and storms affecting many across the State.
This year's summer storm season has already seen significant damage in Broken Hill, Hay and near Byron Bay. The Rees Government acknowledges the hard work and dedication of our emergency services volunteers; no other government has been more committed to ensuring that they have the equipment, the training and the resources they need to carry out their work efficiently and safely. This year's record funding of $57.6 million for the State Emergency Service recognises the enormous contribution of our volunteers to the safety and wellbeing of our communities. The record budget includes $5.8 million specifically allocated to provide a helping and supportive hand to our hardworking front-line volunteers. The volunteer support package boosts spending in areas that directly impact on the volunteers and their activities.
This year $2 million has been allocated to assist councils around the State to upgrade their local State Emergency Service unit emergency response vehicles. This is a $1.2 million increase over last year, and it is being supplemented with another $190,000 to install GPS units in State Emergency Services vehicles and flood boats. A further $1.5 million will help local councils to provide their State Emergency Services units with upgraded headquarters, and funding has already been allocated to units in places like Bankstown, Strathfield and Canowindra.
One of the greatest advances for State Emergency Services volunteers in recent years has been improved communications and information technology. The Rees Government is ensuring that this will continue, with more than $500,000 to be spent this year ensuring all State Emergency Services units have broadband access. We are also investing $500,000 to expand training and development programs for State Emergency Services volunteer controllers, with specialist programs for improving alpine search and rescue capability, and establishing a specialised aviation management capability. This ongoing investment ensures our emergency services volunteers have the resources they need to do their job.
We are also working with the State Emergency Services to meet the challenge of recruiting and retaining volunteers from a community that is ageing and in which people have more competing demands for their time. The State Emergency Service has this year piloted a cadet program, with students from three high schools as part of a program to recruit the next generation of emergency services volunteers. I am pleased to note that 54 students have already completed the 10-week program, which will be rolled out to 30 schools in 2009.
Our State Emergency Services volunteers are one of this State's great assets. They fully deserve our praise, admiration support, and grateful thanks. In National State Emergency Services Week our volunteers can remain assured of the Rees Government's staunch and steadfast support. The transition to a uniform funding model announced as part of yesterday's mini-budget will continue to provide the State Emergency Services with a flexible and sustainable funding base well into the future. I am sure all members of the House will join me in congratulating the volunteers during State Emergency Services Week.
POWER GENERATOR TRADING FUNCTIONS
Dr JOHN KAYE: My question is directed to the Treasurer. I refer to plans announced in yesterday's mini-budget to transfer the trading functions of the state-owned generators to the private sector. I ask the Treasurer: How will the proposed scheme allocate financial risk to traders of high-loss events, such as the forced outage of generator units at times of high spot prices? Will this financial risk be borne entirely by the traders, or will it be in part shared by the publicly owned generators?
The Hon. ERIC ROOZENDAAL: I thank Dr John Kaye for his question. Obviously all the details of the operational model will be worked out through the appropriate committee that is looking at these issues. We want to make sure we get this totally right before we take it to the market. 12 November 2008 LEGISLATIVE COUNCIL 11163
PORT MACQUARIE BASE HOSPITAL
The Hon. MELINDA PAVEY: My question is directed to the Minister for Health. Given that two days ago a seven-month-old baby and his mother were forced to wait several hours at the emergency department of Port Macquarie Base Hospital, combined with the fact that under the mini-budget the Minister plans to apply "local savings strategies in area health services, including reprioritisation of various initiatives", does this mean that the "fourth pod" is no longer on the agenda and that more people's lives will be put at risk?
The Hon. John Hatzistergos: What about how you sold it off twice and then gave it away? Tell us about that.
The Hon. JOHN DELLA BOSCA: I acknowledge the Attorney General's interjection. It is a valid point that Port Macquarie Base Hospital, which is an outstanding facility, is now, fortunately, an outstanding public facility. I was there a short time ago. I took the opportunity while I was attending the Country Labor Conference to spend some time at Port Macquarie Base Hospital—not as a patient but as an observer of what is going on there. I spoke to a range of people, including clinicians, nurses and patients, about the future of Port Macquarie Base Hospital, including its physical future. I was there with the Premier when he announced a significant $1.3 million upgrade of the Port Macquarie Base Hospital emergency department, in order to accommodate the growth that is occurring in Port Macquarie, as is occurring across many of our major regional centres. Unlike the Opposition—whose response to meeting the challenges of delivering health care to a growing population is to privatise hospitals, as it did in the case of Port Macquarie Base Hospital—we are continuing our investment in public health services, including those on the North Coast. The upgrade will ensure the creation of new triage and treatment areas—
The Hon. Melinda Pavey: What about the fourth pod?
The Hon. JOHN DELLA BOSCA: I will get to it; I have four minutes in which to answer. As I said, the upgrade will ensure the creation of new triage and treatment areas, including two spaces dedicated for children, a new public area, and a new entrance for the public and ambulance vehicles. The new facility will meet increased demand for services at Port Macquarie Base Hospital and provide better care to the people who use the hospital's emergency department. It will allow staff to treat more people faster, provide an improved working environment for our doctors and nurses, and increase the efficiency of throughput at the hospital. Once refurbished, the facility will have 11 treatment bays, two resuscitation bays, a procedure room, an isolation room, and a four-place transit lounge. It is interesting that I utter the words "transit lounge" while I am looking at the Hon. Charlie Lynn.
The upgrade will complement the initiatives we have put in place to better manage demand in the emergency department. For example, the Express Community Care Centre sees about 20 emergency department patients a day, fast-tracking patients with chronic treatment needs into an appropriate service and freeing up emergency beds. The aged care services team in the emergency department provides expert clinical care and management of older people presenting to the emergency department, 10 hours a day, seven days a week. As a matter of interest, when I visited the hospital I met a second cousin of mine who was being treated as a patient. He was very satisfied—
The Hon. Melinda Pavey: You really met a relative?
The Hon. JOHN DELLA BOSCA: Yes, I met a relative there. It seems I meet a relative, or someone I went to school with, at every hospital I visit. The person I met on this occasion was a patient.
The Hon. Duncan Gay: Did he know who you were?
The Hon. JOHN DELLA BOSCA: He did. He called me over. I did not recognise him at first. As I said, he is a second cousin; he is my father's cousin. The need for any further expansion of Port Macquarie Base Hospital is being monitored by the department. A master plan for Port Macquarie Base Hospital has proposed the construction of a fourth wing, or fourth pod, and other supportive infrastructure works at the hospital. The master plan will be assessed against other priorities to determine its inclusion on the New South Wales Health capital works forward plan.
The Government will continue to respond to growing demands on our health system, including in Port Macquarie. As I said, I spent some time talking with clinicians about the future of Port Macquarie Base 11164 LEGISLATIVE COUNCIL 12 November 2008
Hospital, and that included discussions about the fourth pod. Of course, one of the most important things is to make sure we get this master planning and future development right. However, I think it is indicative of our approach that we have responded immediately to an initial concern about greater efficiency and better services through the emergency department. We have a vision for the hospital—and the clinicians have expressed their vision—of an immediate and long-term future for Port Macquarie Base Hospital. Of course, that vision is attractive and appropriate, and the master plan process is the way to achieve the best outcome. Continued public investment, rather than private investment, is the way to do that. [Time expired.]
HEALTH ADVICE INITIATIVES
The Hon. LYNDA VOLTZ: My question without notice is addressed to the Minister for Health. Can the Minister inform the House about initiatives to provide health advice to New South Wales families?
The Hon. Duncan Gay: And what's happening in Parkes and Forbes hospitals.
The Hon. JOHN DELLA BOSCA: The Deputy Leader of the Opposition had his chance to ask me that question and he did not take it. I cannot answer every question at once.
The Hon. Duncan Gay: I have asked you again.
The Hon. JOHN DELLA BOSCA: The member can ask me another time. I thank the Hon. Lynda Voltz for her question. Members would be well aware that there is a growing demand for health services, with rising hospital presentations, more surgery, and a growing and ageing population. These factors, combined with rising costs in health, present challenges for health services worldwide. We are responding to this challenge by delivering services in the most efficient manner: by using technology, and doing things differently from the way they may have been done in the past—in other words, by way of innovation. In the State's south, we have commenced a new 24-hour hotline to give families greater access to health advice. Residents served by the Greater Southern Area Health Service now have access to the national health call centre network healthdirect Australia.
The Greater Southern Area Health Service has become the first New South Wales area health service to join the network, and the rest of the State will progressively come online over the next six months. This is a great additional medical service providing high-quality advice and peace of mind to New South Wales residents. Advice is delivered by highly skilled registered nurses who are supported by health triage software, a website, and an up-to-date service directory of local facilities. Healthdirect is not an emergency service. Anyone with a health emergency should still contact 000.
The New South Wales Government is investing more than $25 million over four years and has worked in partnership with the Australian, Australian Capital Territory, Northern Territory, South Australian and Western Australian governments to establish healthdirect Australia. By June next year, people living anywhere in New South Wales will be able to contact the hotline. It is anticipated that more than 650,000 calls from New South Wales residents will be managed by healthdirect Australia each year. In many locations, when it is not a matter for an accident and emergency department it can be difficult to find medical advice, particularly after hours. Residents across the greater southern region who have a health concern and are unsure what to do next can now contact healthdirect.
Improving the availability of health advice and helping people make good choices as to where to seek treatment and when is what healthdirect is all about. It is another important measure to provide an improved service to patients, an improved solution, an innovation, and to reduce the pressure on our hospitals when hospital attendance is not necessary. Calls to healthdirect on landlines will be free but mobile charges may apply. The healthdirect Australian number is 1800 022 222.
SCHOOL BUS SUBSIDIES
Mr IAN COHEN: I direct my question to the Treasurer. Is the Treasurer aware of the conditions faced by private bus operators, for example, in my home area on the far North Coast, where private bus operators will potentially restrict services, or even shut them down, without school bus subsidies? Students will have no trains or any alternative public transport as a result of the policies of the Government. How will the Government guarantee adequate school transport services in country areas such as my home area?
The Hon. ERIC ROOZENDAAL: The State Government rightly subsidises the cost of public transport but it also has to be realistic about what it can afford. The total cost to the Government of the school 12 November 2008 LEGISLATIVE COUNCIL 11165
student transport scheme is about $470 million. That is $470 million the taxpayers of New South Wales are paying each year, and that works out to around $700 per student. Changes have been made to the school student transport scheme to introduce co-payments of $45 for primary school students and $90 for high school students, with a family cap of a maximum of $180 per annum. Even with the changes the Government is still subsidising the scheme by well in excess of $430 million per annum.
The Government believes that this is the appropriate way to deal with the scheme. The Government believes also that we need to help to curb the expanding cost of the scheme. The New South Wales scheme is five times more expensive than the Victorian scheme and four times more expensive than the Queensland scheme. The Government is aware of the issues that have been raised by the private bus operators and is looking at them. But let us be very clear: the Government is subsidising the student transport scheme in New South Wales far more than any other State government is subsidising similar schemes in other States.
The Hon. JOHN DELLA BOSCA: I suggest that if members have further questions, they place them on notice.
Questions without notice concluded.
GREEN SLIP FEE
Personal Explanation
The Hon. CATHERINE CUSACK, by leave: I wish to make a personal explanation. Yesterday during the adjournment debate I referred to the $10 increase to be imposed by the Government on green slips in the 2008 mini-budget, and I indicated that the $10 charge would not apply equally to all motorists. That was a mistake. I am familiar with both green slips and pink slips—I have to obtain both to register my car each year. The major issue in my speech distracted me and I obviously confused the two. As the Treasurer has so cleverly pointed out, the $10 fee will hurt all drivers; not just some drivers—
The Hon. Amanda Fazio: Leave is withdrawn.
The PRESIDENT: Order! The member will resume her seat. Leave granted to her to make a personal explanation has been withdrawn.
[The President left the chair at 1.03 p.m. The House resumed at 2.30 p.m.]
THOROUGHBRED RACING FURTHER AMENDMENT BILL 2008
RACING ADMINISTRATION AMENDMENT BILL 2008
GAMING MACHINES AMENDMENT BILL 2008
Bills received from the Legislative Assembly.
Leave granted for procedural matters to be dealt with on one motion without formality.
Motion by the Hon. Tony Kelly agreed to:
That the bills be read a first time and printed, standing orders be suspended on contingent notice for remaining stages and the second readings of the bills be set down as orders of the day for a later hour of the sitting.
Bills read a first time and ordered to be printed.
Second readings set down as orders of the day for a later hour.
PORTS AND MARITIME ADMINISTRATION AMENDMENT (PORT COMPETITION AND CO-ORDINATION) BILL 2008
LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) AMENDMENT (DETAINED PERSON'S PROPERTY) BILL 2008
Messages received from the Legislative Assembly agreeing to the Legislative Council's amendments. 11166 LEGISLATIVE COUNCIL 12 November 2008
SELECT COMMITTEE ON ELECTORAL AND POLITICAL PARTY FUNDING
Report: Electoral and Political Party Funding in New South Wales
Debate called on, and adjourned on motion by the Hon. Greg Donnelly and set down as an order of the day for a future day.
COMMITTEE ON THE HEALTH CARE COMPLAINTS COMMISSION
Report: Review of the 2006-2007 Annual Report of the Health Care Complaints Commission
Debate resumed from 29 October 2008.
Reverend the Hon. FRED NILE [2.34 p.m.]: In commencing my remarks on the Committee on Health Care Complaints Commission report No. 2/54, "Review of the 2006-07 Annual Report of the Health Care Complaints Commission", including its transcripts of proceedings, written responses to questions and minutes I outlined to the House that the work of the commission had improved. There had been a need for improvement in its activities and responses to complaints. I noted that during 2006-07 the Health Care Complaints Commission received 2,722 written complaints, of which 2,710 were finalised assessments. The commission has implemented a redesigned assessment process and has finalised its staffing establishment for assessments. A positive indication is the fact that 83.7 per cent of complaints were addressed in the statutory time frame of 60 days. Further, the average time for assessment had fallen from 61 days to 39 days, which was a significant improvement. The report noted an increase in the number of complaints assessed as suitable for alternative dispute resolution.
Assessments are a very important part of the commission's work, but the most important is investigations. Out of those assessments 307 complaints were referred for investigation and 381 investigations were completed. The average time for investigations fell from 353 days to 318 days. I believe that the average time is still far too long and more efforts must be made to reduce the time of investigations. Obviously, resolution cannot take place until the investigation is completed. I note that nearly 70 per cent of investigations were completed in 12 months. That was another positive result by the commission.
The commission also is involved in legal issues. There were 112 complaints against individual health practitioners that were referred for investigation to the Director of Proceedings and 97 matters were finalised by the legal division. This is another area where prompt responses to complaints about health practitioners are required. In recent times there seems to have been delays and sometimes multiple complaints are received with no action being taken. We do not want to see that happen again in New South Wales. I am pleased to support this report of the Committee on the Health Care Complaints Commission and look forward to further improvements in the commission's activities.
The Hon. HELEN WESTWOOD [2.38 p.m.], in reply: I thank Reverend the Hon. Fred Nile for his contribution to this debate. I concur with some of his comments. The committee has seen improvement in the performance of the Health Care Complaints Commission, but we agree that there is room for continued improvement. The committee will continue to play the important role of overseeing the commission's work. It has been very productive to have a committee that has been so bipartisan in its approach to this very significant issue that has attracted lately a considerable amount of media attention. All members of the committee from both this House and the other place have the welfare of consumers of healthcare services in New South Wales at the forefront of their work and their involvement with the committee.
Question—That the House take note of the report—put and resolved in the affirmative.
Motion agreed to.
LEGISLATION REVIEW COMMITTEE
Report: Annual Review: July 2006-June 2007
Debate called on, and adjourned on motion by the Hon. Don Harwin and set down as an order of the day for a future day. 12 November 2008 LEGISLATIVE COUNCIL 11167
COMMITTEE ON THE OFFICE OF THE OMBUDSMAN AND POLICE INTEGRITY COMMISSION
Report: Report on the Fourteenth General Meeting with the NSW Ombudsman
Report: Report on the Tenth General Meeting with the Police Integrity Commission
Report: Statutory Review of the Community Services (Complaints, Reviews and Monitoring) Act 1993
Debate called on, and adjourned on motion by the Hon. Greg Donnelly and set down as an order of the day for a future day.
COMMITTEE ON THE HEALTH CARE COMPLAINTS COMMISSION
Report: Report on the Investigations by the Health Care Complaints Commission into the Complaints made against Mr Graeme Reeves
Debate resumed from 26 June 2008.
The Hon. HELEN WESTWOOD [2.44 p.m.]: I speak on the report of the Committee on the Health Care Complaints Commission on the conduct of the investigations by the commission into complaints made against the deregistered medical practitioner Graeme Reeves, tabled by me on 26 June 2008. Members will be aware of the allegations of misconduct against Mr Reeves in the conduct of his practice of obstetrics in the Bega district, allegations that have led to serious criminal charges being laid against him in the wake of an investigation by New South Wales Police Force Strike Force Tarella subsequent to the tabling of the committee's report.
Members will appreciate also that the Committee on the Health Care Complaints Commission was not established to second-guess every decision of the commission; indeed, it is expressly forbidden from doing so. Under the provisions of the Health Care Complaints Act 1993 the committee's responsibility is to take a systems-wide view of the operations of the commission to ensure that it is protecting the health and safety of the public. Relevant information comes to the committee's attention by way of annual reports and quarterly performance reports of the commission, and from specific matters raised directly with the committee by members of the public.
Accordingly, when these extremely serious allegations came to the committee's attention earlier this year committee members felt that it was important to report to Parliament under section 65 (1) (b) of the Health Care Complaints Act on the role that the commission had to play in these unfortunate events. Thus, the committee resolved to examine the investigations by the Health Care Complaints Commission into the complaints made against Mr Reeves and report to Parliament on any matters connected with the committee's statutory functions. The aim of the report was to establish whether in the light of contemporary legal and health policy practice the commission fulfilled its statutory responsibilities in respect of the complaints made against Mr Reeves; whether there existed systemic failures in the investigation of health care complaints during the period in question; and, if so, to what extent these failures have been addressed by subsequent statutory and policy changes.
The committee also felt that it was important that its report be made to the Parliament as soon as possible, and it was gratifying that the committee was able to table it with bipartisan commitment during the first parliamentary session of 2008. Once again I take this opportunity to thank my colleagues in this House, the Hon. David Clarke and Reverend the Hon. Fred Nile, together with our committee colleagues in the other place, for their hard work in ensuring that this report was tabled in that first parliamentary session. The report concluded that mistakes were made but, as in any field of human endeavour, this will always be the case. The committee's aim is to assist healthcare users and the hardworking healthcare professionals of New South Wales in ensuring that these mistakes are few and far between.
In its report the committee made no apologies for the failings of the commission to deal with the complaints against Reeves in a timely and effective manner. As the key body in New South Wales responsible for investigating health care complaints since 1994, the commission ought to have been at the forefront of moves to query Reeves' fitness to practice and not relied on the bravery of patients and nurses in particular to bring these matters to light. However, in fairness to the commission, the committee has acknowledged that the commission did properly exercise its prosecutorial role before a professional standards committee of the New 11168 LEGISLATIVE COUNCIL 12 November 2008
South Wales Medical Board, which heard complaints against Mr Reeves in 1997, at which time the commission argued that Mr Reeves should be banned from all obstetrics and gynaecological practice—a de facto deregistration.
At that hearing in 1997 the professional standards committee concluded that Mr Reeves was afflicted by serious and long-standing personality traits of hostility, resentment, rigidity, extreme sensitivity and defensiveness, associated with symptoms of anxiety and depressive mood. Moreover, the professional standards committee had little faith that such disabling and enduring features of personality could be altered with psychotherapy or the use of an antidepressant pill, given that Mr Reeves had demonstrated an utter incapacity to transmit empathy or concern to his patients in their situations of great need. It was this evidence that formed the basis of the committee's conclusion that at that time the professional standards committee erred in not accepting the submission of the Health Care Complaints Commission that Mr Reeves should completely cease conducting obstetrics, gynaecological surgery or any invasive procedures.
Whilst the committee has acknowledged that this conclusion is made with the benefit of hindsight, it is nonetheless based on two important factors in the professional standards committee decision itself. The first of these is that Mr Reeves' behaviour had been the subject of complaints that had occurred over a period of some six years, and that this behaviour was known amongst various doctors, nursing staff and administrators at a number of hospitals. This pattern of erratic and dangerous behaviour was intimately linked to the second important factor, which is that the professional standards committee did not accept that Mr Reeves' problems were the result of a depressive illness and were not amenable to psychological treatment.
Most damningly, the professional standards committee report found such reprehensible conduct on the part of a medical practitioner could not be excused on the basis that it was the result of an underlying depressive illness. Even if such behaviour were the result of illness, there were risks that this illness would ultimately imperil the safe and competent care of patients should it recur. Mr Reeves' serious and long-standing personality deficiencies were further evidenced in his deliberate deception of the Southern Area Health Service in failing to disclose those restrictions on his right to practise imposed by the professional standards committee and in actively representing that the only restrictions to which he was subject were health-related.
Once Mr Reeves was found to be working in Bega in breach of his condition to practise obstetrics he was deregistered in July 2004 by the medical tribunal. The tribunal concluded that had Reeves been frank with the Southern Area Health Service, honest with his fellow practitioners and made his patients aware of his true position, he would not have been able to practise obstetrics in the Bega district. The tribunal held that Mr Reeves was a danger to the public and ordered that he be removed from the register of practitioners in New South Wales and not be permitted to apply for reinstatement for three years. He has not practised in New South Wales since that time.
I now turn to some of the specific recommendations made in the committee's report. As members are aware, the Health Care Complaints Commission is an independent body with responsibility for dealing with complaints under the Health Care Complaints Act, with particular emphasis on the investigation and prosecution of serious complaints in consultation with relevant registration authorities. The commission deals with health care complaints in a co-regulatory manner with other agencies in New South Wales, especially the State's various registration authorities, and most particularly with the New South Wales Medical Board—the body that ultimately deregistered Mr Reeves in 2004.
The committee's report notes that there is currently no consistency in the way in which these authorities—ten in all—deal with complaints made against practitioners within their area of practice. This, in turn, hampers the effectiveness of the commission in dealing with the more serious complaints on which it is meant to focus. Accordingly, the committee has recommended that all legislation establishing registration authorities in New South Wales be amended to provide, as much as is reasonably possible, standardised internal complaint-handling procedures in line with those of the New South Wales Medical Board.
In order to provide for transparency in the manner in which these registration authorities deal with complaints, the committee further recommended that all registration authorities in New South Wales should publish on their websites or provide links to publications of decisions relating to practitioners within their area of practice. Members will recall that the most serious and shocking allegations against Mr Reeves related to his practice in the Bega district, where women patients would not have had the practitioner of choice available to patients in a large metropolitan centre. Accordingly, the committee has recommended that the New South Wales 12 November 2008 LEGISLATIVE COUNCIL 11169
Department of Health conduct a statewide audit of practitioners who have had conditions imposed on their practice with the aim of ensuring that rural or remote areas of the State have a sufficient number of appropriately functioning practitioners.
In the same vein, the committee has recommended that as part of its current public awareness raising campaign the Health Care Complaints Commission should focus on the needs of healthcare service users in rural and remote New South Wales. In response the commission has advised the committee that the Department of Health has finalised an audit designed to ensure that all medical practitioners who have had conditions imposed on their practice are complying with those conditions and that the commission intends to target medical practitioners in rural and remote areas in the course of its ongoing public education and promotion activities.
I noted at the outset that the committee had regard to the extent to which any systems failures have been addressed by statutory or policy changes made after Mr Reeves' deregistration. One of the principal ways in which the New South Wales Medical Board has protected members of the public is by suspending a practitioner or placing restrictions on that practitioner's practice pursuant to section 66 of the Medical Practice Act. The committee considers that the amendments that have been recently made to the Act should avoid a repetition of the unacceptable situation surrounding the Reeves complaints. They ensure that both the commission and the New South Wales Medical Board are now able to take into account patterns of behaviour when considering complaints against a practitioner. In addition, actions taken by the board under section 66 need only be in the wider community interest. Information sharing is improved by the board's ability to give notice of a section 66 action to anyone considered appropriate by the board and the breach of certain designated orders of a professional standards committee or tribunal will lead to automatic suspension and deregistration. Mandatory reporting of flagrant departures from accepted standards of professional practice or competence removes any doubts as to the extent and content of practitioner responsibility to the public.
As a result of reviewing the Health Care Complaints Commission's most recent annual report, the committee considers that in 2006-07 the commission underwent a process of considerable improvement of the manner in which it exercised its functions under the Act, and particularly in how it engaged with health care complainants and those involved in the provision of health care in New South Wales. The committee does not suggest that there is no room for improvement, but it acknowledges the efforts the commission has made to address operational areas that the committee has previously noted as deficient.
As members may be aware, in September 2006 Ms Deidre O'Connor was engaged to conduct a review of the powers of the New South Wales Medical Board under section 66 of the Medical Practice Act. In February 2008 Ms O'Connor was requested to revisit the bill in light of concern about the manner in which the system dealt with complaints about the practice of Mr Graeme Reeves from the 1990s until his deregistration in 2004. Among the recommendations eventually made by Ms O'Connor was that the Health Care Complaints Act be amended to widen the investigative and coercive powers of the commission, specifically those in section 34A relating to the commission's power to obtain information, records and evidence. The committee hopes that its report will play a role in ensuring the transparency of decision making in the wake of medical errors, thereby ultimately reducing their frequency and severity. I commend the report to the House. [Time expired.]
Reverend the Hon. FRED NILE [2.56 p.m.]: Report No. 3/54 of June 2008 of the Committee on the Health Care Complaints Commission deals with the investigation undertaken by the Health Care Complaints Commission into the allegations made about Mr Graeme Reeves—previously Dr Graeme Reeves. As has been stated by the chairman of the committee, like the community, the committee was deeply concerned about what appears to have been a breakdown in responding to a series of complaints against Dr Graeme Reeves and the time it took to bring the matter to some conclusion.
The report contains 11 very positive recommendations. It also contains a valuable chart at appendix one entitled "The Health Care Complaints Commission Review of past handling of complaints against Dr Graeme Reeves". Despite this chronicle of complaints, there was certainly a breakdown in providing an appropriate response to Dr Reeves' actions—in other words, stopping him practising because of the complaints lodged by so many individuals, particularly women seriously affected by his treatment.
Between 1990 and 2007 the Health Care Complaints Commission received 24 complaints about Dr Reeves, and complaints may have been made to other bodies. Those complaints concerned his treatment of 25 patients. As I said, that treatment started in 1990. Dramatic improvement was certainly required in dealing with complaints against a doctor. That would be true if there were even one complaint, but the situation would be very serious if there were 24 complaints involving 25 patients. 11170 LEGISLATIVE COUNCIL 12 November 2008
A number of bodies apart from the Health Care Complaints Commission are also involved in dealing with complaints about medical treatment. Those bodies include the Professional Standards Committee of the New South Wales Medical Board. The commission quite rightly depends on those other bodies being involved in the process and providing advice about medical issues that might lead to a doctor's suspension from practice. That seems to have been one of the problems in dealing with Dr Reeves; that is, it was never clear who was responsible for taking action against him. For example, from 1990 to 1996 Dr Reeves' treatment of 14 patients was the subject of complaint, and nine of those complaints formed the basis of the commission's prosecution of Dr Reeves before the Professional Standards Committee of the New South Wales Medical Board.
The case brought before the professional standards committee concerned Dr Reeves' conduct dating from 1960 and his obstetrics and childbirth procedures. The committee decided on 21 July 1997 to impose various conditions on him restricting what he could do. One could argue that at that point, given the number of complaints lodged about his treatment, he should have been suspended. Despite the conditions imposed on Dr Reeves the complaints continued to flow in. In 1997 the commission received another three complaints about his treatment and investigated all of them. In that case the commission obtained expert advice about his conduct and in two cases the experts found no grounds for criticism of Dr Reeves' treatment of the patient.
In the third case in 1995-96, which related to the birth of a child, the expert was mildly to moderately critical of the care provided by Dr Reeves. We could question those expert opinions, and with hindsight the commission would obviously say that they were wrong. I assume the experts were qualified in the medical field. I do not know whether there is a temptation to underestimate the inappropriate actions of a doctor who has been criticised. There might be a determination to ensure justice and in the process the experts might lean towards defending the doctor rather than taking the patients' complaints seriously. On this occasion, even though women had complained, the experts found no grounds for criticism of Dr Reeves' treatment of patients. This seems to be the constant pattern through 2000, 2001, 2002, 2003, 2004 and 2007. We can only hope and pray that, as a result of this case, there will be no further serious system breakdowns involving other doctors in New South Wales.
The parliamentary committee sent very specific questions to the Health Care Complaints Commission that it responded to in detail. The correspondence from the Hon. Helen Westwood as chair of the committee contained a number of questions for the commission, and they are printed in the committee's report. The first question was:
On its website, the Commission notes that, between 1990 and 1997, the treatment of 14 patients by Mr Reeves was the subject of complaint, nine of which eventually formed the basis for the Commission’s prosecution before the PSC of the NSW Medical Board. Do you consider that the length of time taken to prosecute Mr Reeves is appropriate?
The commission replied in detail to that question but I refer to an extract from its response, which states:
I do not consider the length of time taken by the Commission to investigate and prosecute the complaints against Dr Reeves generally was appropriate.
That is a fairly mild statement admitting that there was a failure. As I said, we do not want to see a repeat of the Reeves case. We hope that this report into Dr Reeves will serve as a model for the Department of Health and the Government. They must make sure that procedures are in place to prevent such events occurring again.
The Hon. HELEN WESTWOOD [3.02 p.m.], in reply: I thank Reverend the Hon. Fred Nile for his contribution to the take-note debate. Certainly I concur with his comments about the committee's concerns regarding systemic failures and our important role in not only overseeing the Health Care Complaints Commission but also making recommendations to ensure that once we have identified those systemic failures we take action and make policy and legislative changes that will ensure those failures do not recur. To that end, the committee has also recommended in its report that the Health Care Complaints Act be the subject of a thorough review, carried out with reference to the recent legislative changes made to the Medical Practice Act, which I mentioned earlier. The aim of this review would be to identify and remove any unnecessary complexities from the health care complaints system in New South Wales. Subsequently, the committee has resolved to undertake such a review, pursuant to its responsibilities under section 65 of the Act. We recently called for submissions and will later present our report to Parliament.
As I noted in the foreword to the committee's report, although health care in New South Wales is amongst the best in the world, as with any human endeavour, procedures will occasionally go wrong and mistakes will be made. Communication failures will occur and people will suffer as a result. At that juncture the public has the right to know that such errors will be investigated appropriately, both to remedy as much as possible the individual situation and to ensure that the factors that led to that situation do not recur. People have 12 November 2008 LEGISLATIVE COUNCIL 11171
a right to expect that the Health Care Complaints Commission will promptly and properly investigate their complaints against healthcare providers, bearing in mind always the commission's overriding statutory responsibility to protect the public's health and safety. I place on the Hansard record the comments of Dr Christine Tippett, President of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists, who noted in a letter of 23 July 2008:
The Committee has clearly very thoroughly evaluated circumstances surrounding all areas pertaining to the practice and investigation of Dr Reeves. I think we can be optimistic that the Report will have a long term significant impact in regard to the manner in which complaints against medical practitioners will be managed and investigated in New South Wales.
Again, I thank honourable members for their contributions.
Question—That the House take note of the report—put and resolved in the affirmative.
Motion agreed to.
STANDING COMMITTEE ON SOCIAL ISSUES
Report: Overcoming Indigenous Disadvantage in New South Wales—Interim Report
Debate resumed from 28 August 2008.
The Hon. IAN WEST [3.05 p.m.]: The extensive and ambitious terms of reference of this inquiry were given to the Standing Committee on Social Issues by the Minister for Aboriginal Affairs, the Hon. Paul Lynch, in September 2007, and we are now in the process of compiling our final report for presentation to the House in the next few weeks. The committee members were: me as chair, the Hon. Trevor Khan as deputy chair, the Hon. Greg Donnelly, the Hon. Marie Ficarra, Dr John Kaye and the Hon. Michael Veitch. During the first half of the inquiry we received 74 submissions. We heard from 111 witnesses and conducted eight days of hearings, including a public forum at Bidwell and hearings at Kempsey, Dubbo, Nowra and Redfern. I not only thank the inquiry participants for their valuable contribution but also place on record my thanks for the quality, sincerity and integrity of the submissions from indigenous elders, from service providers and from organisations who had the interests of this inquiry at heart.
The issues examined related to the fundamental nature of service provision, the need to measure outcomes accurately, sufficient program funding, and the employment of, and support for, indigenous people. The committee highlights many good policies and programs, and the genuine commitment by those many organisations I have mentioned. On behalf of the committee, I thank Rachel Simpson, Victoria Pymm, Glenda Baker, Elizabeth Galton and Teresa Robinson for their hard work and the forensic way they went about ensuring that the evidence, and the quality of the evidence, was presented in a very lengthy and expansive interim report that goes to some 318 pages. As I have indicated, we focused on the broad themes of measuring outcomes, coordinating service delivery, partnerships in service delivery, funding, employment monitoring and training Aborigines.
The witnesses before the inquiry made it very clear that in many ways they continue to dance with strangers. Over many decades numerous inquiries have been held and they have talked to many people, yet no-one seems to be connecting with them, listening to them or hearing their concerns. Although Aboriginal people are optimistic, they still feel they may not be heard despite people having the best of intentions. We have now reached the stage of consulting with the Department of Aboriginal Affairs and other government departments because it is apparent that funding is inadequate and more work is needed. Also, regionalisation must be considered in detail because Aboriginal communities raised concerns about decisions being made at higher, bureaucratic levels without involving those at local and regional levels. They expressed concern about what appeared to be a one-size-fits-all attitude.
It is encouraging that people appear to have the best of intentions: they want to do the right thing by closing as soon as possible the lifetime expectancy gap of 17 years between Aboriginal people and non-Aboriginal people. However, committee members have lingering concerns that their aims will not be achieved. We hope that in our final report we will come to grips with how government departments and Aboriginal communities at regional and local levels can come together as genuine equal partners. At present, it appears that Aboriginal communities feel they are not being taken seriously. They believe there is tokenism, paternalism and that, despite the good intentions, their concerns are not being taken genuinely. 11172 LEGISLATIVE COUNCIL 12 November 2008
Federal funding is an issue. Aboriginal communities exist across the length and breadth of New South Wales, in urban, regional and remote areas. However, the majority of Aboriginal people live in urban areas. Only a minority live in rural and remote areas. I was extremely encouraged by the quality of the people who gave expert advice. I was impressed also by the intensity of interest among committee members and their wish to bring the inquiry to a successful conclusion. At the end of this month we will present the final report, and hopefully we can assist in a meaningful way the Government and the indigenous community in closing the insidious lifetime expectancy gap of 17 years between Aboriginal people and non-Aboriginal people. I commend the report to the House.
The Hon. MARIE FICARRA [3.16 p.m.]: I am proud to be the Liberal Party representative on the Standing Committee on Social Issues inquiry into overcoming indigenous disadvantage, which aims to close the lifetime expectancy gap between Aboriginal people and non-Aboriginal people that is currently estimated at 17 years. The committee examined the impact on the current lifetime expectancy gap of the following factors: environmental health, such as water, sewage and waste; health and wellbeing; education; employment; housing; incarceration and the criminal justice system; and other infrastructure.
The committee assessed a number of significant initiatives such as the Federal Government intervention in the Northern Territory; opportunities for strengthening cultural resilience within Aboriginal communities in New South Wales, with a focus on language, cultural identity, economic development and self-determination; and the experiences of the outcome of the Council of Australian Governments Murdi Paaki trial and other COAG trials across Australia. The committee received 74 submissions, heard from 119 witnesses and conducted eight days of hearings, including a public forum at Bidwill and site visits to Kempsey, Dubbo, Nowra, and Redfern. I wish to acknowledge the goodwill and expertise offered to our committee by indigenous elders, representatives, service providers and organisations.
Unless an effective relationship is built with the indigenous community, current programs and services will continue to fail to address a substantial level of disadvantage experienced by Aboriginal people. Providing services in partnership with Aboriginal people, design to implementation, has been a key concern for participants to this inquiry. The amount of Federal funding allocated to New South Wales needs to be addressed, as current levels do not correlate with the fact that the majority of indigenous people reside in our State. Further analysis is required of the effectiveness and assessment of funding programs that are temporary and intermittent in nature. Mechanisms for improving reporting and accountability processes for indigenous community organisations need to be developed further.
I turn to some of the committee's recommendations, addressing as a matter of urgency the improved levels of funding for services to reduce the incidence of child sexual abuse, including the long overdue implementation of the interagency plan in response to the "Breaking the Silence" report. The methodology used to record the incidence of child sexual abuse in Aboriginal communities must be improved. It is acknowledged that the ability to address family violence and child sexual abuse issues is impeded by the high level of underreporting of these incidents in Aboriginal communities. This problem needs to be overcome in consultation with these communities.
Consideration will also be given to the level of government support for Aboriginal police officers, Aboriginal community liaison offices, and early intervention programs targeted at male offenders. The committee will further consider the effective provision of essential services, including water, sewerage and waste collection in Aboriginal communities that are not serviced by local government. The committee acknowledged the importance of communication, and found that the provision of accessible Internet services to Aboriginal communities needs to be addressed.
A key determinant of life expectancy is the health status of indigenous persons and their communities. The committee will examine the need for more comprehensive measurement of health outcomes for indigenous people. The adequacy of training and scholarships for indigenous health workers needs prioritising. With regard to transportation, the committee will consider the need for a coordinated approach to identify communities' transport requirements and to tailor additional services to meet those needs. The lack of driver training programs aimed at assisting members of the Aboriginal community to obtain drivers licences is recognised as a significant limitation with regard to indigenous employment outcomes.
To help support and strengthen families in Aboriginal communities, opportunities to bolster existing men's and women's groups, and appropriate programs to assist parents, particularly young parents, need to be addressed and supported. The committee noted that there has been some improvement in the literacy and 12 November 2008 LEGISLATIVE COUNCIL 11173
numeracy levels of Aboriginal students in New South Wales. However, we remain concerned that these levels require significant improvement if indigenous students are to meet the national benchmarks. We felt it important for indigenous people to establish links with family and community, and with culturally appropriate mentoring programs, as an effective way to encourage students in their education. The importance of employing indigenous staff as teachers and role models is apparent. However, there is a need to address the attainment levels of current and future students so that this can occur.
It is evident from employment statistics that current policies and/or initiatives have not been enough to make substantial inroads into indigenous unemployment. The committee will examine the reasons for this, including limited time frames, education levels and early disengagement of indigenous students in the education process. The important role played by indigenous elders and their communities in providing support for indigenous employment and youth programs was clear to committee members. The building of trust and respect between indigenous communities, government and prospective employers is critical to the provision of indigenous employment opportunities in the long term.
Changes to the Community Development Employment Projects Scheme, the Structured Training and Employment Program, and the job compacts initiative are all relatively new. The committee will revisit these schemes when the job compacts are finalised and data is available on their initial impact and employment outcomes. A vital issue in addressing indigenous disadvantage is the availability of affordable housing and the equitable distribution of funds, and the coordination of programs for social housing in New South Wales between urban, regional and rural areas. There is a need to address better the unmet housing needs of indigenous people, most of whom live along our coastline and in urbanised centres. Overcrowding is a fundamental problem within the indigenous community. There continues to be a pressing need for various providers and funding programs to work together strategically to provide affordable, appropriate housing for indigenous people, particularly where there has been local community participation in the housing design and delivery process. Funding for, and the provision of, community training for property maintenance needs to be addressed.
Of concern to the committee was the evidence of juvenile justice diversions being less likely to be granted to Aboriginal young offenders than to non-Aboriginal young offenders. The wellbeing of Aboriginal offenders with a mental health disorder who are incarcerated due to a lack of adequate mental health services needs to be addressed urgently. Clearly, there are many significant issues of concern in overcoming indigenous disadvantage. Many well-intentioned committees have preceded this committee, so indigenous communities have a right to be cynical. In light of committee members' bipartisan and sincere approach to our task, we trust that the Government will respect the manner in which we have gone about our inquiry and will adopt and implement as soon as possible our final recommendations, which are due at the end of November 2008.
I thank the Chair of the Standing Committee on Social Issues, the Hon. Ian West, for his patience, enthusiasm and dedication to the task. I also thank my fellow committee members—the Hon. Trevor Khan, the Hon. Greg Donnelly, the Hon. Michael Veitch and Dr John Kaye—for their good-natured and genuine multi-partisan approach to achieving workable outcomes, arrived at in consultation with indigenous elders and communities from across New South Wales. Importantly, I acknowledge the professionalism of our parliamentary clerks Rachel Simpson, Victoria Pymm, Glenda Baker, Elizabeth Galton and Teresa Robinson, as well as our Hansard reporters, including those who travelled with the committee to site visits and hearings. I thank them all sincerely for their hard work and commitment to the conduct of the inquiry and the production of the committee's report.
I wish to reiterate some of the committee chair's comments. We approached this inquiry knowing the frustrations of all Australians, of previous governments and of all the committees that have looked into indigenous disadvantage. It was quite moving to hear from the elders and from community groups that are sincere about achieving effective and long-lasting outcomes so that finally we can put behind us the disgraceful situation whereby indigenous people have a life expectancy that is 17 years shorter than that of the rest of the community. It is totally unacceptable that some indigenous communities do not have the basic infrastructure and access to water and sewerage that the rest of the population simply takes for granted. I thank my fellow committee members and all the parliamentary staff who assisted us. I hope we can come back with some solid recommendations that will be adopted by the Government.
The Hon. MICHAEL VEITCH [3.26 p.m.]: It was fascinating to work on this inquiry with other members of the Standing Committee on Social Issues. All our work was done in very good faith, and on more than one occasion whilst the inquiry was hearing evidence you could look around the room and see tears in the eyes of a few members. Some of the evidence we heard was quite moving—in fact, there was no way you could 11174 LEGISLATIVE COUNCIL 12 November 2008 not be moved by it. Some of the site visits were also quite moving, as we heard about the circumstances of individuals and their lifestyles. By far the biggest highlight for me on the committee's site visits was that the people we spoke to were in favour of circle sentencing. It is obviously a well-received process that the community has a great deal of faith in. While hearing the evidence it was difficult to find positives—although most departmental witnesses said that everything their organisations did was fantastic—but it was clear that circle sentencing is a positive, and something that needs to be replicated and enhanced wherever possible.
The committee is capably chaired by the Hon. Ian West, who has a great deal of passion and compassion for this issue and for the circumstances of indigenous people in New South Wales. I assure members who may not have had a chance to read the report as tabled that it is outstanding. The secretariat has done an outstanding job putting the words together. At our deliberative meeting when we adopted the report there was unanimous support for the secretariat's endeavours in putting the words on paper. It was an absolutely outstanding effort. I also congratulate the Hansard staff. The committee held some public forums. How the Hansard staff were able to hear the words spoken at one particular forum is beyond me. I could not hear the words—and I was sitting beside the people speaking! For Hansard to hear and record the words that are spoken is just amazing. Again, I congratulate the Hansard staff.
I draw members' attention to chapter 10 of the interim report, which deals with the summary of issues for consideration in the substantive report. One of the issues highlighted throughout the evidence was the way in which outcomes are measured. When moneys are granted by a government to non-government organisations and indigenous communities there is often a disparity between the outcomes that the Government requires to measure the success of the funding and the outcomes that the community expects. At the committee's subsequent hearings we will try to establish whether there is common ground there, so that we can find the middle of the road. It is quite obvious that the outcomes that governments expect are far removed from the outcomes that indigenous communities expect.
Further, we have heard on countless occasions that communities are sick and tired of short-term pilot funding programs whereby funding is allocated for six or twelve months and then the organisation or the community has to go through the whole process of reapplying for the funds for a similar project. The evidence suggested that with tenure of funding for a period of three years, for instance, there would be far greater social and economic outcomes than are realised from short-term pilot funding programs. I do think that the committee heard too many witnesses say that they supported short-term pilot funding programs—I cannot remember any. Short-term pilot funding programs, as opposed to long-term funding, will be one of the issues that the committee will deal with in its final report, and it could well be that we find a silver bullet to fix the problem. I am sure that the chair would welcome that; he keeps talking about the magic bullet.
The committee has decided to take on board also coordinated service delivery. Many earlier reports discussed coordinated service delivery in Aboriginal communities yet there has been no resolution. The committee heard the concern of different communities about the objectives of one government department conflicting with those of other departments. In a few places we heard about the conflict between the Department of Community Services and the Department of Education and Training. There was a positive relating to coordinated service delivery, however, and that was with Murdi Paaki. At Dubbo the committee heard suggestions from a number of people about how coordinated service delivery could be fixed constructively. Housing and housing affordability is highlighted in the report. The committee heard of issues relating to housing stock and overcrowding, and how overcrowding impacts on a number of government departments—whether it be the Department of Education and Training, the Department of Community Services or the New South Wales Police Force.
Coordinated service delivery from the focus point of housing is a classic example of fragmentation whereby outcomes are not being achieved and we tend to fund a single issue that impacts on a range of other areas. Earlier I referred to Murdi Paaki. When we inquired further the issue of partnerships in service delivery was identified; that is, how governments, non-government organisations, and the indigenous community can work better to deliver efficient outcomes for the communities they serve. We heard that some people prefer to be referred to as Aboriginal rather than indigenous, while others prefer to be called indigenous rather than Aboriginal. Obviously the issue of terminology must also be addressed. When it visited a number of Aboriginal medical services the committee heard evidence about lifetime expectancy in regard to health and health services.
Pursuant to standing orders business interrupted and set down as an order of the day for a future day. 12 November 2008 LEGISLATIVE COUNCIL 11175
BUDGET ESTIMATES AND RELATED PAPERS
Financial Year 2008-2009
Debate resumed from 29 October 2008.
The Hon. DON HARWIN [3.33 p.m.]: In May of this year Newspoll conducted a survey into the attitudes of Australians to reform of the Federation. The research was funded by the Australian Research Council and was commissioned jointly by Griffith, Charles Sturt, New England and Melbourne universities. The survey found that almost 40 per cent of people in New South Wales favoured the abolition of the States, if given the choice. The level of support for such a move was stronger here than in any other State or Territory and significantly higher than the nationwide figure, which stood at 31 per cent. Further, an overwhelming majority—nearly 69 per cent—believed that Australia's system of Federation should be reformed to improve collaboration with Canberra. The figure was comparable with the level of support evident nationally, as well as in Victoria.
It is often said that State Government is the backbone of governance in Australia since it is responsible for basic service delivery at a day-to-day level of schools, hospitals and public transport. That well over one-third of voters in New South Wales favour dissolving this middle tier of our tri-level system of government is striking. That more than two-thirds want Federalism restructured is equally revealing. Nothing highlights the need for reform of Federalism more than the budget papers. Only 40 per cent of our State's total revenue is obtained through New South Wales Government taxes, whereas 42 per cent of our State's revenue comes from Commonwealth grants. As this Labor State Government has often remarked, while around $15 billion in GST revenue is raised in New South Wales, only around $13 billion is returned to the State from Canberra. There was a time when the New South Wales Government stridently attacked the Commonwealth for this financial imbalance, running television commercials on the subject. Over the past 12 months surprise, surprise, the criticism has become more muted.
The impact of the current Commonwealth-State arrangements upon our State budget is most apparent in the Health portfolio where expenditure as a proportion of the overall budget has doubled over the past three decades. This is the result of a combination of factors. Firstly, there have been genuine increases in the cost of health care connected with both advancing technology and an ageing population. Secondly, in real terms, the Commonwealth's contribution to the operation of public hospitals has dropped from 50 per cent to 40 per cent since the original health funding agreement was struck. Thirdly—and this State Government never acknowledges this—the health sector is the area in which the Labor Government has done the least to overcome union intransigence to realise productivity savings and curb costs. While Commonwealth-State funding arrangements are certainly a factor, this State Government's track record of sinking increasing levels of State revenue into higher public sector wages without securing productivity gains, or front-line service improvements, is equally to blame. Higher wages are fine as long as they are accompanied by productivity gains.
Considering the increasing reliance of the States on Commonwealth grants, the time is ripe to review the nature of taxation in this country to promote the continuing effectiveness of Australia's Federation. One wonders what attempts this Government made to extract guarantees from Prime Minister Rudd prior to the Federal election 12 months ago? Regrettably the answer would be none and we cannot expect any changes to the division of GST revenue. There is clearly a feeling that Australia's federalism should be re-negotiated. Prime Minister Rudd tapped into this mood for change during his campaign and placed the issue on the agenda for his 2020 Forum. The inadequacy of his approach is reflected in the Newspoll survey that revealed that while almost all voters desire collaboration between Commonwealth and State governments in order to better solve problems, fewer than half believe collaboration is actually delivering results.
Professor Henry Ergas of the University of Melbourne has identified a collusive rather than co-operative approach to federalism as a core problem in our current arrangements. He makes the case for clear divisions of responsibility in which the lines of accountability are distinct. When the Federal Government bails out or compensates for poor quality State Governments, not only are areas of responsibility blurred in the minds of electors, but also the service delivery sector suffers from duplication and therefore becomes exposed to increasing inefficiency. Benchmark targets and performance indicators become corrupted. Budget papers such as these become evasive and skewed. Once tangled, overlapping jurisdictional involvement can be difficult to wind back. While the involvement of both the Commonwealth and State governments in the funding of public hospitals is a long-standing area of concern, the problem is becoming increasingly evident with regard to transport infrastructure—both in terms of roads and public transport. For years, this Government has justified its 11176 LEGISLATIVE COUNCIL 12 November 2008 neglect of the Princes Highway—a road corridor for which the State is solely responsible—by blaming a lack of financial assistance from Canberra. More recently, plans for the construction of both heavy rail and metro-style rail links to the inner west, western suburbs and north-western suburbs of Sydney have been subject to the caveat of Commonwealth Government co-funding.
In June an Independent Pricing and Regulatory Tribunal [IPART] draft report recommended wide-ranging changes to the New South Wales tax system through an overhaul of Commonwealth-State arrangements. The draft report emphasised that there were limits to the reforms that the State could achieve in isolation and that the greatest gains would be achieved through a new national approach to reform. The Independent Pricing and Regulatory Tribunal Chief Executive Officer, Jim Cox, commented at the time, "The States have some very sound taxes but on balance the Commonwealth taxes are more efficient and equitable." He advocated greater use of Commonwealth taxes as a means to reduce or abolish some of the more inefficient State taxes. He also noted that the nature of the Commonwealth's existing approach to revenue sharing actually serves to discourage States from reforming and distorts the expenditure priorities of State Governments.
The Howard Government tax reforms passed in July 2000 heralded a move by the State and Federal governments toward a more modern Federation with a more efficient tax system. The States recognised a need to collaborate with the Federal Government and each other in order to improve productivity and the efficiency with which States invest in infrastructure and provide services. But as Mark Nathan, now a member of the Western Australian Parliament, noted in the July 2006 edition of the Institute of Public Affairs Review, the reforms widened the gap between the revenue raising and spending responsibilities of the States and reduced their accountability to their own electorates as to the use of their money. This is an absolutely crucial issue upon which we need far more debate.
The New South Wales Labor Government has unashamedly exploited that reduced level of accountability. It has deliberately blurred the lines of responsibility and attempted to shift blame to Canberra for its own squandering of the efficiency gains and phenomenal revenue windfalls that the Howard Government's new arrangements brought. This State Labor Government has spent and spent and spent, with no noticeable improvement in health, education or infrastructure. In recent years our State has had an appalling growth rate relative to other Australian States, at some points falling as low as 0.9 per cent per annum. Since 2003 New South Wales has consistently had the lowest gross State product annual growth rate. Furthermore, unemployment rates have risen to 5.2 per cent in New South Wales, compared to a national average of 4.3 per cent, prompting ANZ chief economist Saul Eslake to brand New South Wales as "the wooden spoon State."
The reality is that incompetent financial management by the New South Wales Government has prompted the Federal Government to step in to try to turn our $320 billion economy around—exactly the kind of collusive rather than cooperative approach to federalism that Professor Ergas has warned against. Frustratingly, this Government has blindly and recklessly led our State down the very path taken by the disastrous Cain and Kirner governments in Victoria, despite loud and clear warnings. Victoria's economy was destroyed by reckless spending in the boom times with no productivity gains or infrastructure investment to carry the State through the recession that Prime Minister Paul Keating gave the nation in the years that followed. The same now has happened here with years of unchecked and mismanaged spending, with no public sector efficiency gains and inadequate infrastructure investment. The potential for change in Australia is strong. There is a clear level of support from voters, regardless of political persuasion, for a reopening of the federalism debate. Independent reviews from a wide range of sources suggest that a united national policy in key portfolio areas will better equip Australians, and the people of New South Wales, to face the challenges of the future. The need for reform is urgent and it must be a priority. After 12 months of a Federal government elected on the promise of ending the blame game we are waiting for results, and we need results very soon.
The Hon. CHARLIE LYNN [3.43 p.m.]: Yesterday morning I drove to Parliament from my home in Camden. I have a meter on my car that tells me how long a trip takes. Yesterday I averaged a speed of 39 kilometres an hour for the 70-kilometres trip. The roadway between Camden and the city is the world's longest school zone. Yesterday traffic was bumper to bumper. The M5 freeway and M5 tunnel, or funnel as it is known—which were both constructed by this Government—would have to be, without doubt, the greatest transport planning disasters in this State. This transport route has potential repercussions for the future. A couple of weeks ago when I was riding my motorbike home I got stuck in the tunnel for about 12 or 13 minutes. The fumes were so bad that a couple of days later I went to see my doctor about some breathing complications I was experiencing for the first time in my life. We are still not sure what the problem is. 12 November 2008 LEGISLATIVE COUNCIL 11177
Recent research indicates that the toxicity levels within the M5 tunnel are great cause for alarm. The Government is aware of this problem. When former Premier Morris Iemma was health Minister, in recognition of the toxicity problem, he recommended that signs be placed at the entrances to the tunnel warning motorists of the health risks associated with using the tunnel. Later when he became the Premier the best advice he could give to people using the tunnel to avoid health complications was for them to wind up their windows. I try to do that on my motorbike but it just does not work!
Reverend the Hon. Fred Nile: You should wind up your goggles.
The Hon. CHARLIE LYNN: I tried it once with an oxygen mask, but I am not sure that worked either. I do not know who designed the tunnel, but it was a bad design. I doubt that anyone would want to take credit for it. A bit of leeway should have been allowed for motorcyclists and scooter riders in the design of the tunnel; the tunnel is so tight and narrow that motorbikes cannot pass between the cars and, consequently, motorcyclists are stuck in the tunnel breathing in fumes that they know are not doing them any good. Without tunnel filtration, motorists are breathing raw fumes into their lungs. Just as asbestos became a millstone around the neck of the James Hardie group, this tunnel will be a millstone around the neck of future governments. With motorists being exposed to toxic fumes, the possibility of claims for compensation in the future is real. The traffic is so bad that people in south-western Sydney, particularly in the Camden area, are on the road for four hours a day getting to and from their work. Every day of their working lives they spend four frustrating hours travelling because of the poor design and planning of the M5 and the tunnel.
Unfortunately, there is nothing in the budget to address the problem. The Government could have at least budgeted for the installation of a couple of signs at the entrances to the tunnel warning people not to enter. Adding insult to injury, motorcyclists have to pay the full toll; they are slugged with the full toll because the Government is unable to provide them with an electronic tag. Some motorcyclists are avoiding the tunnel and taking the risky rat-run option to get to and from the city each day. It is an indictment of the Government. The Government has announced that is has shelved the south-west rail link.
The only other option to driving to work for the people of Camden and Campbelltown is to travel by rail. But people cannot be expected to stand up for more than an hour to travel to and from work each day with no guarantee of arriving at work or back home on time. And what is the Government's answer to that? It shelves the south-west rail link. It has plans for a growth centre and new city of about 250,000 people in that region and its answer is an extra 300 buses—40 of which will go to south-western Sydney, which means two or three in Camden. The nearest railway station for people who live in Camden is 15 kilometres away. More than 250,000 people will be plonked out there with no access to public transport.
The Government should do the honourable thing and fall on its sword because there is just no hope for transport in that area. It took as long to upgrade Narellan Road as it took to build the entire M7. The architect of that motorway must have worked only part-time—and probably only on a Friday night after a bottle of red— because it is the only roadway that changes from two lanes to three lanes, then back to two lanes and three lanes again before becoming an expressway. And then they threw a school zone in the middle of it! On reflection, that would have little impact; the speed limit in a school zone is 40 kilometres an hour and at times on that road it is very difficult for vehicles to travel at speeds in excess of 40 kilometres an hour. Having said that, however, I can advise members that in the 17-odd years that I have used that road I have not seen one school child cross the carriageway. But that is another issue. There are no plans in the budget for Narellan Road so what we have is all we are going to get.
The only alternative route is Camden Valley Way. Cattle found their way down that track just after settlement when settlers established pasture. It evolved from a cattle track to a goat track, and under this Government it has not improved. It is a narrow, two-lane, winding road that services the growth area of Macarthur, and there is absolutely nothing in the budget to improve the situation. As I said earlier, the nearest railway station for people in Campbelltown is 15 kilometres away. Obviously the area has been written off. The transport plan for 2010 stopped at Liverpool and a south-west rail link was planned to service the growth area. Well, the Government is going ahead with the growth area but it has taken away the rail link. There is no plan for Macarthur. The Government will pay heavily for this neglect at the next election, and I think it knows that. The local Labor members are too embarrassed to say anything. I think if I offered them positions they would come across to this side of the House.
The Hon. Henry Tsang: What would you do? 11178 LEGISLATIVE COUNCIL 12 November 2008
The Hon. CHARLIE LYNN: What would we do? It is going to take a long time to fix the problems.
The Hon. Henry Tsang: What would you do?
The Hon. CHARLIE LYNN: The Opposition leader has already committed to the south-west rail link; we will honour that commitment. We will provide the economic management that will deliver a south-west rail link. It is the only hope that people out there have. We will put warning signs on the tunnels warning motorists that if they enter—
The Hon. Henry Tsang: How many hospitals would you close?
The Hon. CHARLIE LYNN: We do not have to close any hospitals; the Government has already closed the damn thing! I remind the member about Camden Hospital, in relation to which there was a pre-election announcement to open a maternity award. Well, it was opened, but when the Government was re-elected what did it do? It closed the maternity award. I will tell you what we will do: We will probably re-open it, because there is a need for it. There is a city there already with 30,000 people—
The Hon. Henry Tsang: Where is the money?
The Hon. CHARLIE LYNN: I will tell you where it isn't, Henry: it's not in the bottom of the garden where you blokes are looking for it! [Time expired.]
Debate adjourned on motion by the Hon. Michael Veitch and set down as an order of the day for a future day.
HOME BUILDING AMENDMENT BILL 2008
Second Reading
Debate resumed from an earlier hour.
The Hon. MARIE FICARRA [3.54 p.m.]: As I said earlier, Mr Wolfe from the Housing Industry Association implies that the current operations of the Department of Fair Trading and the recourse of consumers to the Consumer, Trader and Tenancy Tribunal are satisfactory and that the current mandatory home warranty insurance system provides a safety net. He warns against comparisons between Queensland and New South Wales schemes because warranty premiums for builders in New South Wales are significantly lower, on average, than they are in Queensland, regardless of their capacity and performance. Mr Wolfe states:
While warranty premiums have been falling in NSW in response to competition among insurance underwriters, premiums in Queensland have increased by 46% over the past 4 years – in Queensland all contractors provide a personal guarantee that allows the government monopoly, the QBSA, to pursue the personal assets of the company directors.
That says it all. Yes, it works in Queensland because Queensland has realistic, comprehensive and deliverable consumer protection. What is the use of having cheap premiums when the system does not work? The overriding purpose of having a home warranty scheme is consumer protection, to safeguard the interest of the little Aussie battler. I am sure when company directors stand to lose assets, botched jobs may be rectified sooner without all the court delays, the procrastination of insurers and the lack of cooperation of builders. So, many thanks for the advice, but the fact remains that the New South Wales scheme is junk insurance, and if this Government cannot address this fundamental flaw, the Coalition will tackle the problem post 26 March 2011.
Resuming our travels through history: Back in 1993, according to the research undertaken by Kelly Burke at the Sydney Morning Herald, there was $75 million in New South Wales home warranty insurance premiums sitting in the kitty of the Building Services Commission. In 1994 the Fahey Coalition Government transferred $53 million to the housing rescue fund and the remainder was quarantined to pay for future claims under the old scheme, thereby providing New South Wales consumers with real protection. Three years later the New South Wales Labor Government privatised the compulsory insurance scheme and the money disappeared into the consolidated coffers.
Whereas the Coalition Government had previously commissioned a Price Waterhouse evaluation report that strongly warned against privatisation, the Carr Labor Government forged ahead in 1997 with the ill-fated HIH and Royal and Sun Alliance—later named Vero—getting a duopoly where consumers would have no 12 November 2008 LEGISLATIVE COUNCIL 11179
choice. Ten years of this private home building insurance has delivered millions of dollars to Labor's coffers. How has that happened one may ask? Labor Holdings, the Australian Labor Party's investment business in Queensland, holds 1.8 million shares in Suncorp Metway, the parent company of the largest provider of home warranty insurance in Australia, Vero. The shares are now valued at almost $28 million and have paid dividends ranging from $548,000 to $1.85 million since 1999. Not bad.
Are we to believe that there may be a conflict of interest for the Government to not want to change the current system? Plenty of New South Wales consumers and informed media believe the conflict of interest is huge. Back in 1997 this Government dumped the best performing self-funding home warranty insurance system this State has ever had. It abandoned that system and, along with it, the home-building consumers of New South Wales—mostly mums and dads fulfilling their lifetime dream of building their own homes. The Sydney Morning Herald is to be commended for highlighting the inadequacies of the current home warranty scheme with the shocking stories of the McFadden and Siebert families on their sad journeys of home building in New South Wales. Our New South Wales home warranty scheme is a basket case: it is a licence for insurers to print money and it is paying too little too late to the victims of substandard builders. How can this Government tolerate such a poor premium to claims ratio of less than 10 per cent when the insurance industry norm is between 65 per cent and 80 per cent? It is an absolute disgrace. The latter is the ratio within which actual competition exists. We continue to patch up poorly performing systems. Why not measure performance based on consumer protection?
We continue to hold parliamentary inquiries, select committees and statutory reviews examining the woes of this scheme. Guess what? Very little changes. This bill does nothing to address the continuing situation of private insurers reaping millions of dollars from policies that the New South Wales and Victorian governments force consumers to buy for all building works valued at over $12,000 while payouts are pathetic. As our most recent Legislative Council inquiry revealed, more than one in three claims are rejected in this State while in Queensland 98 per cent of claims are accepted and paid. Here in New South Wales many homeowners are caught in expensive, long-term, exhaustive litigation and some builders have seen their businesses collapse. The inquiry acknowledged that our privatised insurance scheme more often than not escalates disputes rather than solves them, while the associated costs are outrageous. Payouts, when they do occur, are totally inadequate and insurers have also been involved in litigation for harassment and under-assessing claims to encourage consumers go to court.
This Government has defended its scheme, telling us that since 2002 $16 million has been paid in claims. Yet if we examine the scheme closely we find that approximately $200 million has been collected in premiums over the same period. That is a payout rate of 8 per cent. I remind members of the insurance industry average premiums to payout ratio of 65 per cent to 80 per cent. There remains little more to say. The Coalition does not oppose this bill—it does contain some worthwhile measures—but on the whole it is a major disappointment for the public of New South Wales, which was looking for real leadership and vision from this Labor Government.
Reverend the Hon. FRED NILE [4.05 p.m.]: The Christian Democratic Party supports the Home Building Amendment Bill 2008. The bill makes improvements to the home warranty scheme established under the Home Building Act 1969. As other speakers have said, improvements certainly need to be made given the complaints that are continually made by consumers in New South Wales about the failure of the home warranty insurance scheme to provide fairness and justice. Some members have criticised the bill because it does not solve those problems. It does solve some, but it is clear that more needs to be done to alleviate the suffering of many consumers in New South Wales.
As members know, it is a requirement under the Home Building Act that builders contracted to undertake residential building work worth more than $12,000 take out home warranty insurance. That insurance indemnifies the homeowner against loss and damage arising from the insolvency, disappearance or death of a contractor. Insurance cover is provided for non-completion of work and for breach of statutory warranty. A homeowner who has a problem with their home can currently access a comprehensive dispute-resolution process involving inspections and mediation by the Department of Fair Trading and, if mediation fails, they can lodge a claim with the Consumer, Trader and Tenancy Tribunal. Claims can also be lodged directly with a court. However, in a number of instances builders have ignored a monetary order made by the tribunal.
On 18 June 2008 Minister Linda Burney responded to a number of complaints from various individuals that I forwarded to her. In one case the Administrative Decisions Tribunal overruled the Department of Fair Trading decisions, which I believe were correct. One case involved Ms Luisa Berg, whose builder originally 11180 LEGISLATIVE COUNCIL 12 November 2008 made an application against her in the Consumer, Trader and Tenancy Tribunal because she failed to make a progress payment. She complained to me about the builder but he made a counterclaim that she was not making payments. Ms Berg made a counterclaim and the matter was moved to the District Court. Ms Berg also made an insurance claim and joined the Building Insurers Guarantee Corporation to the proceedings. She agreed to settle the court case and her insurance claim was declined.
The Building Insurers' Guarantee Corporation was of the opinion that it was stopped from processing the claim because the matter was settled in the District Court. It concerned me that the builder in this case, Accent Constructions Pty Ltd, and the company's supervisor, Mr Alfred Ng, were fined by the Department of Fair Trading—the department actually did its job—but according to the Minister the Administrative Decisions Tribunal set aside the department's determination on appeal and ordered that a formal reprimand be recorded for each trader. Instead of having to pay a fine according to the Department of Fair Trading ruling the traders were simply reprimanded. That would not trouble too many builders; it is like a slap on the wrist. This case raises questions that the Government should address. I know that the Government is not supposed to direct the Administrative Decisions Tribunal about how it should make decisions but it appears that one body is at odds with another body. These bodies were both set up by the Government and they are contradicting each other, which results in injustice for consumers. I hope the Government will investigate that matter and take whatever action it can to ensure justice for consumers.
This legislation includes a number of improvements. It will give builders an additional incentive to comply with orders and it is proposed that the Department of Fair Trading will be able to suspend a home building licence or certificate 28 days after the holder fails to comply with the money order made by the tribunal or by a court. The department will also have the capacity to defer operation of automatic suspension if necessary; for example, if agreed arrangements are in place for payment. The legislation also reduces the time involved in determining a home warranty insurance claim and it will ensure access to home warranty insurance as soon as a contractor has a licence suspended for non-compliance with a money order. The insurer will be responsible for recovering money from the contractor and, if necessary, have the contractor declared insolvent. They are practical improvements, but more needs to be done. I referred earlier to a letter from the fair trading Minister, the Hon. Linda Burney. I seek leave to have the letter, which is dated 18 June 2008 and which outlines some of the responses to complaints, incorporated in Hansard.
Leave granted. ______
Dear Reverend Nile
I refer to your request to investigate the complaints about the Government's Home Building Service and the particular building complaints of Luisa Berg, Jana Magan, Kyri Frantzis and Garry Wells.
The Office of Fair Trading's Home Building Service was fully investigated by both the General Purpose Standing Committee No. 4 and General Purpose Standing Committee No. 2, which reported in December 2007. The Committee's findings illustrate that Fair Trading's Home Building Service has made many improvements in dispute resolution and compliance, and in administering a more robust licensing system.
Many of the licence cases cited by Building Action Review Group Inc. in its submissions relate to licences that were granted by the previous Building Services Corporation who, I note, did not exercise the current extensive probity checks for licensees. The cases do not relate to the work of the current Home Building Service.
Licensees are now required to meet a specific qualification requirement and are required to lodge their application in person and provide proof of identity. Further, licensees are assessed according to their 'fitness' to hold a licence. In assessing this, Fair Trading takes into account a number of factors, including previous bankruptcies and involvement in previous companies, criminal records, previous disciplinary or prosecution action taken against the applicant and any previous insurance claims paid out against the prospective licensee.
In relation to the statement by Building Action Review Group that Fair Trading's building inspectors deliberately misuse their responsibilities "in order to minimise homeowners' claims", this is incorrect and without foundation. Fair Trading is committed to assisting the parties to resolve the dispute, wherever possible and to this end, Fair Trading's Home Building Service provides professional dispute resolution services when requested to do so by consumers. In fact, Fair Trading produces a customer services guide for builders and tradespeople which stresses the importance of providing accurate information to clients, and includes tips on providing good service to customers and managing customer complaints. Fair Trading's dispute resolution services are provided on a free and impartial basis and Fair Trading receives no sponsorship or benefits from the building industry or any other parties.
Just as Fair Trading has a strong commitment to customer service, Fair Trading has been proactive in enforcing compliance with the law. In addition to investigating building complaints, Fair Trading regularly undertakes "blitzes" around the State, targeting different geographical areas and potential offences. In the last financial year, the Home Building Service undertook five of these 12 November 2008 LEGISLATIVE COUNCIL 11181
concentrated enforcement activities which resulted in over three thousand site visits and almost one thousand penalty notices being issued. In addition, Home Building also undertook well over 600 investigations and successfully prosecuted 166 offences in the Courts.
Fair Trading has investigated the cases cited by Building Action Review Group Inc. extensively and provided a high level of support for those consumers. Of the individuals referred to in your correspondence, I can advise the following:
Ms Luisa Berg
In relation to Ms Berg's complaint, I am advised that Ms Berg's builder originally made an application against Ms Berg in the Consumer, Trader and Tenancy Tribunal as Ms Berg had failed to make a progress payment. Ms Berg made a counter claim and the matter was moved to the District Court. Ms Berg also made an insurance claim and joined the Building Insurers Guarantee Corporation to the proceedings. Ms Berg agreed to settle the court case and her insurance claim was declined. Building Insurers Guarantee Corporation is of the opinion that it is estopped from processing the claim due to the matter being settled in the District Court.
The builder in Ms Berg's case Accent Constructions Pty Ltd and the company's supervisor, Mr Alfred Ng, were fined by Fair Trading. However, I am advised that the Administrative Decisions Tribunal set aside Fair Trading's determination on appeal and ordered that a formal reprimand be placed against each trader.
Ms Jana Magan on behalf of Mrs Kalivati Magan
In relation to Mrs Magan's complaint, I am advised that her complaint is reliant upon a report by engineer, Mr Alfred Frasca, who asserts that there are insufficient foundations for the house in question. I am advised that two Fair Trading building inspectors, including a senior officer, inspected Mrs Magan's house and were satisfied that the foundations were adequate. I understand that a number of minor issues were identified by the inspectors and the builder rectified these by the due date.
Fair Trading made an offer to Mrs Magan to engage the Government Architect's Office to make a full inspection of the property and to assess Mr Frasca's report. I understand that Mrs Magan was given many months to respond and after ten months had elapsed without any response from Mrs Magan, Fair Trading closed the file. As Fair Trading's inspectors found nothing substantially wrong with the premises, disciplinary action against the builder was not considered.
Ms Kyri Frantzis
The Frantzis family's case relates to three claims: the first two were lodged under the former Comprehensive Insurance Scheme against the original builder and first rectifying builder. The Frantzis family also lodged a claim with Vero under the private insurance scheme against the second rectifying builder. An external consultant finalised a total review of the work of the three builders involved and the two previous insurance claims were reopened to complete the necessary building work. The external consultant devised a rectification method that would have seen the Frantzis' home demolished and rebuilt for the residual indemnity money from the two insurance claims. I am advised that the homeowners were initially agreeable to this outcome but later changed their minds.
The Frantzis insurance claim was made under the now closed statutory insurance scheme administered by the Fair Trading Administration Corporation. I am advised that an offer of $167,334.30 has been made to the Frantzis family in final settlement of their claims. This offer was made on 23 July 2007 but has not been accepted.
Mr Garry Wells
In relation to Mr Wells' complaint, I am advised that Mr Wells' tenanted property suffered fire damage in April 2007. At the time, the insurance company engaged an emergency builder, Quick Response Complete Maintenance Pty Ltd. After initial emergency repairs were made, the insurer then put out to tender for the remaining repair works. Quick Response and another builder both tendered for the job, and Quick Response won the tender.
During the repair work, it was discovered that the roof contained friable (loose or broken) asbestos. It was originally known that asbestos was there, but not the friable asbestos. This discovery led to the work ceasing and the builder advising that the tenants should vacate the premises before the work was continued. I understand that this led to a dispute between Mr Wells and the builder regarding compensation to his tenants for having to move out while the work was done. The asbestos work has since been done and Fair Trading has been advised that WorkCover New South Wales is happy with the manner in which this was finalised.
I understand that matters were complicated when the property was further damaged by a storm. Quick Response also quoted for that repair work. In this regard, Fair Trading views these different matters as separate contracts and not any attempt by the builder to avoid home warranty insurance requirements. Due to Mr Wells' insistence that home warranty insurance was required, the builder obtained insurance from Vero Insurance Ltd. Vero provided cover for all work done at the property, including the initial emergency repair work. Fair Trading has received, on two separate occasions, confirmation that Vero is 'on risk' for all work done by Quick Response. The latter advice was received from Vero's Business Development Manager.
Mr Wells also raises the issue of electrical repair work done at the property. I am advised that this work was supervised by a licensed electrical contractor and that an initial defect notice placed on the work by Energy Australia was later rescinded when it became clear that it was repair work and not new work. Fair Trading has not identified evidence to support any disciplinary action being taken against the builder or electrical contractor.
I trust that this information is of assistance.
Yours sincerely Linda Burney Minister ______11182 LEGISLATIVE COUNCIL 12 November 2008
The Hon. PENNY SHARPE (Parliamentary Secretary) [409 p.m.], in reply: I thank honourable members for their contributions to debate on this bill. As members appreciate, this is a reasonably straightforward bill that will assist homeowners to obtain access to home warranty insurance more quickly. I welcome the bipartisan support it is receiving. I thank the Hon. Catherine Cusack for reminding the House that in addition to providing an additional trigger for consumers to access home warranty insurers the bill also clarifies the legislation so that it is clear that a homeowner is able to pursue proceedings for a breach of a statutory warranty on more than one deficiency. This is regardless of whether the first breach of a statutory warranty was resolved through legal proceedings or by an out-of-court settlement. This is another example of how this bill is strengthening the legislation to benefit consumers.
Before I commend the bill to the House I would like to comment on some other remarks made by participants in the debate. Many of the issues raised by the Hon. Catherine Cusack were also raised in the other place and were dealt with by the Minister. However, I take this opportunity to again clarify that home warranty insurance companies are not refusing two-thirds of claims. This is misinformation spread by detractors of the scheme. The number of claims fully declined or refused is less than one in five—my advice is 19 per cent. This includes owner-builder claims. If limited to claims involving builders only, 16 per cent of claims have been fully declined. It is also important to note that the majority of those matters that were declined were as a result of the builder being located and made to return to rectify the work or pay for the work to be fixed.
I will also respond to the Opposition's concern about the process homeowners go through when in a dispute with their builder. The Rees Government is aware that residential building disputes can cause consumers a great deal of emotional and financial stress, as well as being costly in time. In some cases consumers are not equipped or do not have the financial capacity to prepare or present their case in a Consumer, Trader and Tenancy Tribunal hearing. The Rees Government is committed to relieving the distress and anxiety experienced by families facing a home building dispute. Ensuring that home building consumers have access to advice and advocacy services to resolve disputes is a priority. I am pleased to advise members that the Rees Government recently announced $645,000 funding over three years to Macquarie Legal Centre to operate a home building advocacy service for consumers. Funded through the Home Building Grants Program, the home building advocacy service provides another level of support for New South Wales consumers involved in home building. It complements the excellent free dispute resolution service already offered by the Office of Fair Trading with practical and common sense advice to hardworking people experiencing contractual and legal issues associated with building disputes.
Another issue I wish to respond to is the Hon. Catherine Cusack's query as to whether other clients of the builder whose licence is suspended under this proposal will have the right to claim under insurance and whether each will have to lodge its own proceedings against the builder. The bill enables a homeowner to submit an insurance claim at an earlier time than is currently possible—that is, after the homeowner has obtained a money order and after the builder has failed to comply with that money order. Extending insurance to all other clients of the builder would mean that the insurance scheme replaces the dispute resolution provisions in the Home Building Act. Where possible, it is better that the homeowner and the builder resolve any dispute. This is a much better and quicker option than relying on an insurance claim.
In the case of a builder's licence being suspended under new section 42A, the builder may have to make arrangements for another builder to do any necessary remedial work or to complete any unfinished jobs. If this is not a possible option section 47A of the Home Building Act gives the director general the power to appoint a person to coordinate or supervise the work. If the problem cannot be resolved the homeowner can still lodge a building claim with the Consumer, Trader and Tenancy Tribunal or a court. In doing this the homeowner can request that a money order be made rather than a work order. If the builder fails to comply with any money order made the homeowner will have early access to the home warranty insurance scheme.
In response to the Hon. Catherine Cusack's request for clarification of how the Government can make sure that suspending one licence does not mean the builder can take refuge in all his other licences, I can advise that as soon as a licence is suspended under section 42A the building contractor is disqualified from holding a licence by operation of clause 28 of the Home Building Regulation. Any partners of the contractor are also disqualified and if the contractor is a corporation all officers of the corporation are disqualified from holding a licence. Disciplinary action can be taken by Fair Trading under part 4 of the Home Building Act against all of these parties. Fair Trading can serve notice on any or all of these parties to show cause within 14 days why their licence should not be suspended or cancelled. In an emergency situation Fair Trading can immediately suspend a licence for 60 days while the disciplinary process takes place. 12 November 2008 LEGISLATIVE COUNCIL 11183
Finally, the Hon. Catherine Cusack and Ms Sylvia Hale made reference to some of the sad cases that have occurred in this area. It is worth pointing out that all of the cases mentioned occurred under older versions of the scheme, including the previous government-owned scheme. In relation to the issues raised by Ms Sylvia Hale regarding the fundamental nature of the home warranty insurance scheme I state that the reason the Government has not opted for a government-owned scheme is that the Government believes it could create a conflict of interest for the Office of Fair Trading in its role as an insurer on one hand and its obligations as a building regulator and consumer protection agency on the other. It also places a burden of risk, inherent in the home warranty insurance market, squarely on the shoulders of taxpayers. It is the Government's view that such a scheme also may divert much-needed taxpayer funds from other services such as schools, hospitals and transport.
The Rees Government acknowledges there is a widespread desire to make further changes to the scheme. As the Minister for Fair Trading has stated, the Home Warranty Insurance Scheme Board established by the Government is examining a number of further possible enhancements to the scheme particularly arising from the recent Beechwood collapse. Since 2003 the Government has made numerous changes to the scheme and it stands ready to make more changes. Once again, I thank members for their participation in the debate. The Government will move an amendment in Committee, and I will also respond to the Greens amendments. I commend the bill to the House.
Question—That the bill being now read a second time—put and resolved in the affirmative.
Motion agreed to.
Bill read a second time.
In Committee
Clauses 1 to 4 agreed to.
Ms SYLVIA HALE [4.17 p.m.]: I move Greens amendment No. 1:
No. 1 Page 4, schedule 1 [2], lines 25 to 28. Omit all words on those lines.
This amendment seeks to delete the words:
A decision by the Director-General to defer, or not to defer, the operation of the suspension of a licence under this section cannot be reviewed by the Administrative Decisions Tribunal in an application for review made under this Act.
This issue was raised by the Legislation Review Committee in its consideration of the bill. The issue confronts the Chamber in much of the Government's legislation: the exercise of discretion by a public servant being reviewed or examined by a non-government body. The Legislation Review Committee stated:
The Committee notes the importance of merits review for protecting individual rights against oppressive administrative action and in upholding the rule of law. The Committee will always be concerned if a Bill purports to oust the jurisdiction of the courts or Tribunal.
The Committee is of the view that the proposed section 42A (6) is very broad. It has the potential to deny a person natural justice by removing the opportunity for review of any decision by the Director General to defer or not to defer the operation of the suspension of a licence.
The Committee notes that in some instances policy considerations may determine that an appeal or review is not necessary. However, the Committee will be concerned when legislation seeks to exclude review of a decision, unless there is a strong public interest in doing so. The Committee refers this to Parliament.
I note that the Minister replied to the concerns of the Legislation Review Committee by way of ministerial correspondence to the committee published in the Legislation Review Digest No. 13 of 2008. The Minister's letter states:
The Bill excludes the Administrative Decisions Tribunal from reviewing a decision by the Director-General to refuse to defer the commencement of the automatic suspension. If a review was available, it could be expected that many contractors who have their licence automatically suspended would seek a deferral and would then appeal any refusal to the Administrative Decisions Tribunal. The automatic suspension would be deferred beyond the period of 28 days specified in the Act in many instances, defeating the purpose of the Bill.
11184 LEGISLATIVE COUNCIL 12 November 2008
The Minister argues that the fact that the suspension of the licence might be put off indefinitely is the strong public interest in excluding review. The problem with the Minister's argument is that she has not been entirely forthcoming about the effect of the bill. The bill inserts a new section 42A (6) into the Act, which states:
(6) A decision by the Director-General to defer, or not to defer, the operation of the suspension of a licence under this section cannot be reviewed by the Administrative Decisions Tribunal in an application for review made under this Act.
Quite clearly, this section not only rules out review of the decision not to defer a suspension as identified by the Minister but also rules out any review of a decision to defer a suspension, a fact that the Minister conveniently overlooks in her correspondence to the committee. The Minister puts forward an argument that it is in the public interest that builders not be able to seek a review of a decision not to defer a suspension. The Minister puts forward no public interest argument as to why a claimant should not be allowed to have a decision that removes a claimant's right to make an insurance claim reviewed, because that is what the upshot would be. If the Minister decides not to suspend a licence the person whose right to make a claim under the insurance is dependent upon that suspension of the licence loses that right. One must look at the impact of that clause in its entirety—the impact of deciding to defer to suspend or deciding not to defer to suspend.
The bill does not distinguish between the two circumstances. It extinguishes the review rights of both builders and claimants. The Minister's argument for extinguishing these review rights is that builders will seek a deferral of a decision to suspend their licence and then appeal when a deferral is not granted, thus delaying the implementation of the suspension of the licence. It is not clear from the Minister's correspondence that this will be the case. The review is not of the decision to suspend; it is of the director general's decision not to delay the suspension.
The director general can suspend the licence while the appeal is in progress. The appeal by itself will not affect the ability of the director general to implement the suspension. There is no good reason why a review of that decision not to defer the suspension of a licence should lead to the automatic imposition of a deferral pending the review. In fact, if a builder were to appeal the decision not to defer the suspension of the licence the builder would have to seek an injunction before the court and argue that there was a strong public interest case to prevent the Minister acting. In opposing that, the builder who sought to defer it would have the weight of the evidence produced before the Consumer, Trader and Tenancy Tribunal and the Minister's argument that the suspension should continue and there should be no deferral. It would be both an expensive and a potentially unproductive exercise for the builder to pursue that course knowing the full weight of evidence against him. The full weight of evidence would be the failure to make the money order or, should the Greens' second amendment be adopted, the failure to fulfil a works order.
A decision to defer a suspension will have the effect of delaying the ability of a claimant to make an insurance claim. Claimants will suddenly think they have grounds to make a claim on their insurance; that they are no longer dependent on the builder being bankrupt, dead or having disappeared. The failure of the builder to comply with a money order will provide them with an additional ground but suddenly they will find that the director general has decided not to proceed with the suspension of the builder's licence, leaving them with no review rights.
The potential negative consequences for the claimant are serious. This is a discretionary exercise of administrative power that has the potential for serious negative consequences for those affected by the decision. In the view of the Greens it is not appropriate that there be no review rights in such circumstances. Although there may be good reasons for the director general to defer the suspension of a licence, I cannot see any strong public interest in removing the right for such an administrative decision to be reviewed. Removing the review rights while at the same time increasing the discretionary powers of an administrator is poor public policy that can lead to oppressive administrative action.
There is no good reason for the review rights to be removed in this instance. This amendment will ensure that a decision to defer can be subject to review by the Administrative Decisions Tribunal if an application for review is made under the Act. I refer briefly to remarks made by Reverend the Hon. Fred Nile, who mentioned the very sad case of Luisa Berg in which the Administrative Decisions Tribunal decided to replace the fine with a reprimand, which was an unsatisfactory outcome. We all know that tribunals and courts make decisions that sometimes leave us aghast, for a variety of reasons. However, essential to the whole system of justice is the notion that there should be procedural fairness; that no public service should be able to make a decision that can have such an extraordinary impact upon people's lives without there being a right to review it.
That also applies to our court system. We all know that there is an appeals process through which people are able to appeal against the decision of a court. It is fundamental to procedural fairness and natural 12 November 2008 LEGISLATIVE COUNCIL 11185
justice that proper procedure be followed. We may not like the outcome. We may find out subsequently that evidence proves that the decision was misguided or wrong. If the case makes its way from, say, the magistrate's court to the High Court in an extreme circumstance, the decision may be overturned at the highest level. But that is the nature of the judicial system: decisions should be subject to appeal, and we should not be subjected to arbitrary decisions against which there is no right of appeal. I strongly urge Government and Opposition members to support Greens amendment No. 1, which institutes a proper process. It also protects vulnerable claimants who may have sufficient grounds to establish additional rights to appeal an insurance settlement but who find that those grounds are suddenly whipped away because of a decision by the director general against which they have no appeal rights.
The Hon. PENNY SHARPE (Parliamentary Secretary) [4.31 p.m.]: The Government will not support Greens amendment No. 1. Ms Sylvia Hale placed on record some of the Government's concerns about the amendment. I place on record that the Government believes that some of the arguments made by the Greens overstretch those matters. The proposed amendment would cause an unnecessary delay to homeowners seeking access to home warranty insurance. It would defeat one of the main objectives of the Home Building Amendment Bill 2008, which is to provide easier access to home warranty insurance.
The bill automatically suspends a home building licence if the holder fails to comply with a court order or an order by the Consumer, Trader and Tenancy Tribunal to pay money in respect of a building claim. This suspension takes place 28 days after the builder fails to comply with the order. If the builder lodges an appeal against the money order, a court can stay the operation of the order until the appeal is determined. In that case, the builder is not suspended unless the money order is confirmed and the builder still refuses to comply with the order. There is no appeal to the Administrative Decisions Tribunal against this automatic suspension because the licence holder is in non-compliance with a court or tribunal order.
The Government recognises, however, that potentially there can be some exceptional circumstances when the start of the automatic suspension should be deferred. For example, the homeowner may have voluntarily made an agreement with the builder to extend the date of payment. Another example might be where a very small builder may have to lay off employees to pay the order on time. To handle these exceptional circumstances, the bill gives the director general the discretion to defer the start of the automatic suspension. The bill makes it clear that the Administrative Decisions Tribunal cannot review a decision by the director general to refuse to defer the automatic suspension.
The Greens amendment would enable the Administrative Decisions Tribunal to review every automatic suspension. All a builder would need to do is apply to have the automatic suspension deferred. If this application is refused, the builder could then apply to the Administrative Decisions Tribunal for a review. The homeowner would then be refused access to their home warranty claim until the Administrative Decisions Tribunal had completed that review process and any follow-on review of the tribunal's decision was determined. During this entire time the homeowner would be suffering: the builder is refusing to pay them the money that the tribunal or a court has ordered the builder to pay, and they do not have access to home warranty insurance. And while the homeowner is suffering, the builder keeps his licence and stays in business. For these reasons the Government will not support the amendment. In response to Ms Sylvia Hale, I add that in circumstances where the director general has been asked to defer a suspension the consumer will have the right to make representations to the director general before a decision is made. Guidelines underpinning the deferral provision will be made available publicly upon commencement of this amendment.
The Hon. CATHERINE CUSACK [4.34 p.m.]: I certainly respect the good intentions of the Greens on this issue, but I feel that Ms Sylvia Hale's argument runs counter to the thrust of what we are trying to achieve, which is a more simplified process. I do not accept the Greens' anxiety that there will be no opportunity for review. I remind the Greens that essentially we are trying to organise for a defect in a building, for example, to be repaired, and the process of getting it repaired is reviewed on countless occasions.
For the benefit of Ms Sylvia Hale I will outline briefly the process by way of a possible scenario. The builder and the consumer are in dispute, there is an attempt at mediation, the mediation fails, and the case then goes to the Consumer, Trader and Tenancy Tribunal [CTTT], which arguably constitutes a review of their inability to resolve the dispute. The builder is ordered to rectify the problem, but he refuses. The matter then returns to the Consumer, Trader and Tenancy Tribunal and is again reviewed. The builder is then ordered to pay money, but he fails to do so. At that point—the matter has been reviewed several times—if the builder refuses to pay within 28 days, his licence is suspended. At any stage during that process the builder can appeal the matter 11186 LEGISLATIVE COUNCIL 12 November 2008 to the District Court. In addition, the builder at all times has the option of making payment to comply with the order of the Consumer, Trader and Tenancy Tribunal. Action occurs only if the builder refuses to make the payment, and it allows the consumer to then make a claim under home warranty insurance.
Inserting yet another step—bringing the matter before yet another body, the Administrative Decisions Tribunal—would cause extensive delays and hardship to the consumer, who is the person I understand Ms Sylvia Hale is trying to help. In the majority of cases when the builder refuses to make the payment he is suspended automatically. If builders are given the option of appealing to the Administrative Decisions Tribunal they will appeal to that body in all cases. Ms Sylvia Hale might argue that the builder's licence can still be suspended during that process. But again I remind her that this is about getting to the point of having an insurer accept a home warranty insurance claim. The insurance company will not deal with that claim until the Administrative Decisions Tribunal has disposed of the appeal, regardless of whether the builder's licence is suspended.
The Administrative Decisions Tribunal is a body that I do not have a great deal of regard for. In the past I have spoken about problems concerning the tribunal. I recall a matter involving public transport that took something like four years to resolve. It ended when the tribunal made a bizarre ruling that had more references to precedents than most murder cases and reached a ridiculous decision that caused new legislation to be brought before Parliament to rectify it. Frankly, I believe the Administrative Decisions Tribunal is at times not on the same planet as the rest of us, and I would hate to see these matters being referred to it.
I note, as Ms Sylvia Hale did, the comments of Reverend the Hon. Fred Nile. I thank him for raising the case of Luisa Berg. I felt that by referring to that case Ms Sylvia Hale was arguing against her amendment. Many of the issues she raised simply added to the weight of evidence that we should not involve the Administrative Decisions Tribunal in this process. I respect the position that Ms Sylvia Hale is coming from, but I feel that she is making the process far more burdensome for consumers than it needs to be. We need a much simpler and more distilled process. I simply could not, in all conscience, involve yet another body in the disputes process.
Ms SYLVIA HALE [4.38 p.m.]: It is all well and good for the Government to say, "We are going to ensure that consumers will have rights to make representations, and guidelines will be issued." But, as is the case with much of the Government's legislation, a lot of the material is not made available to members prior to our considering the legislation. We are left in the dark. All we have are the Government's statements that it is going to do the right thing. Frankly, I find that unacceptable. When people are faced with matters as serious as home building insurance issues and the obvious catastrophes that can result from them, why should we assume that the guidelines that the Government says it would issue will be effective and will work in the interests of consumers?
In terms of the additional step, I agree with the Hon. Catherine Cusack that the suspension of a licence will be automatic. The question is the right of appeal and whether the suspension should be deferred. I concede that often there is right on both sides—builders can be extraordinarily shonky, as can consumers. I know of cases where claims without any substance have been pursued against small builders. It is incredibly important in this area that we follow appropriate procedure and allow for an appeal against the decision of the director general. I think it establishes a totally incorrect precedent to allow decisions to be made by a public servant against whom there is no appeal process.
Question—That Greens amendment No. 1 be agreed to—put.
The Committee divided.
Ayes, 4
Mr Cohen Ms Rhiannon
Tellers, Ms Hale Dr Kaye 12 November 2008 LEGISLATIVE COUNCIL 11187
Noes, 27
Mr Ajaka Mr Khan Mr Tsang Mr Brown Mr Lynn Mr Veitch Mr Catanzariti Mr Mason-Cox Ms Voltz Mr Clarke Reverend Nile Mr West Mr Colless Mrs Pavey Ms Westwood Ms Cusack Mr Primrose Ms Ficarra Mr Robertson Miss Gardiner Ms Robertson Tellers, Mr Gay Ms Sharpe Mr Donnelly Ms Griffin Mr Smith Mr Harwin
Question resolved in the negative.
Greens amendment No. 1 negatived.
Ms SYLVIA HALE [4.49 p.m.], by leave: I move Greens amendments Nos 2 to 10 in globo:
No. 2 Page 5, schedule 1 [2]. Insert after line 5:
(9) A reference in this section:
(a) to an order to pay an amount of money in respect of a building claim includes a reference to an order by the Tribunal or a court for the completion of any work specified in the order in respect of a building claim, and
(b) to the due date for payment of an amount of money includes, in the case of any such order for the completion of work in respect of a building claim, a reference to the date on which the work is ordered to be completed (or if no such date is specified by the Tribunal or court concerned, the end of the period determined by the Director-General).
No. 3 Page 5, schedule 1 [3], line 12. After "money", insert ", or to complete any specified work,".
No. 4 Page 5, schedule 1 [3], line 16. After "paid", insert "or a description of the work ordered to be completed".
No. 5 Page 5, schedule 1 [3], line 17. After "paid", insert "(or the work is due to be completed)".
No. 6 Page 5, schedule 1 [3], line 19. After "paid", insert "or for whom the work is to be completed".
No. 7 Page 5, schedule 1 [3], line 25. After "money", insert ", or for the completion of specified work,".
No. 8 Page 6, schedule 1 [5], line 15. After "money", insert ", or to complete specified work,".
No. 9 Page 6, schedule 1 [5], lines 24 and 25. Omit "or completes the residential building work".
No. 10 Page 6, schedule 1 [5], line 31. After "insurance)", insert "or, if the order was for the completion of any specified work, the whole amount paid by the insurer under the claim".
In my speech during the second reading debate I noted that the measures in this bill are grossly inadequate in addressing the fundamental flaws in the current Home Warranty Insurance Scheme. I also noted, however, that the bill contains some minor, positive measures that would give an increased incentive to builders to comply with orders, and for that reason the Greens would support the bill. I foreshadowed that I would move a number of amendments in Committee in an attempt to strengthen the inadequate reforms in the bill. Greens amendments Nos 2 to 10 will apply the same status to orders for the carrying out of specific work as applies to orders to pay money. The effect is to remove an unnecessary step from the process, of which I hope the Opposition will thoroughly approve.
Under the bill, the first step is an applicant has to get an order for work. Then when the work is not done, the second step is to get an order for money. Then when the money is not paid, the third step is the builder's licence is suspended. Then the fourth step is to make an insurance claim. The effect of these amendments is to allow a licence to be suspended when either a money order or a work order is not complied with. The tribunal can determine whether a work order has been complied with in the same way that the tribunal can determine whether a work order should be converted to a money order. The Greens amendments will provide a faster and fairer process for long-suffering claimants so that they can access insurance and have defective work rectified more quickly. 11188 LEGISLATIVE COUNCIL 12 November 2008
It has been claimed that sometimes it is impossible to get a work order complied with because relations between the builder and the homeowner have deteriorated to such an extent that the homeowner will not allow the builder access to the site. In that case, it is within the powers of the tribunal to decide that the work order will not come into effect until steps have been taken—that is, the builder is given access to the site or other necessary conditions. If those conditions are not met and the tribunal determines that a work order has not been complied with, then it will be unnecessary to go through the additional step of converting the work order to a money order. That will expedite the process and we will arrive at the same outcome as anticipated in the bill. The amendments eliminate an unnecessary step and provide sufficient flexibility to allow the tribunal to set conditions to ensure a reasonable expectation that a work order will be complied with. Failure to comply will immediately trigger the suspension of the builder's licence and allow the claimant to lodge an insurance claim. The amendments have the virtue of speeding up the process, eliminating an unnecessary step in the process and allowing the claimants—the homeowner or whoever—faster, more expeditious access to the insurance regime.
The Hon. PENNY SHARPE (Parliamentary Secretary) [4.54 p.m.]: Although the Government understands the intention of Greens amendments Nos 2 to 10, we believe they are basically unworkable. The proposed amendments extend the automatic suspension of a builder's licence to any builder who does not comply with an order to undertake specified work. The Government is concerned that these proposed amendments would create a level of complexity. Who will determine that a builder has not complied with a work order—the builder, the homeowner or someone else? What happens if they cannot agree? As Ms Sylvia Hale identified, there is already a process in place to sort out these types of questions. A homeowner who believes that a builder has not adequately complied with a work order can go back to the Consumer, Trader and Tenancy Tribunal and ask to have the order converted to a money order. The tribunal will make a determination in a dispute about whether the builder has complied with a work order. If the builder has not complied, the tribunal can issue a money order. The Government believes that the proposed amendments would make the automatic suspension process unnecessarily complex and result in numerous legal challenges as to whether a work order has been complied with and whether a builder has been automatically suspended.
The Hon. CATHERINE CUSACK [4.55 p.m.]: Again, I understand the Greens' good intentions, but I believe that Ms Sylvia Hale is not giving enough credence to the fact that the suspension of a licence is automatic. A number of times during the discussion she has referred to "some bureaucrat" making the decision. In fact, there is no bureaucrat; it will occur automatically. The bill inserts new section 42A, Automatic suspensions of licence for failure to comply with order to pay money in relation to the building claim. If the suspension were to apply in an earlier step in the process, the failure of the builder to comply with an order to rectify work would automatically result in his licence being suspended. The amendment we considered previously sought to increase the number of steps and appeals. These amendments do the opposite: they truncate the process too much. The two sets of amendments are at odds with each other. I am sure Ms Sylvia Hale will have more to say about that.
As we have discussed, the automatic suspension of a builder's licence for failure to complete work would be grossly unfair to those builders who are denied access to a site. Sometimes there are good reasons why those orders are not complied with. That is why the matter comes back before the tribunal to review the circumstances in which the order was not complied with. If there is no good excuse or no way forward because the builder and the consumer cannot bear the sight of each other anymore, an amount of money must be determined. It is not possible in a poisonous relationship, where a work rectification order cannot be completed, for the builder and the consumer to agree on an amount. Obviously the determination of a fair amount to be paid by the builder must be made by the tribunal. That course may be the wish of both the consumer and the builder so that they do not have to deal with each other anymore. We must go through the step of reviewing why the work order was not complied with and then make a decision for a money order. That is the point at which the final decision is made, and if it is not complied with the licence is suspended automatically.
Ms SYLVIA HALE [4.58 p.m.]: Ms Cusack has outlined precisely why the amendments are necessary. There should be provision for a review of the decision of the automatic suspension of a licence. Of course, now, that is water under the bridge. Clearly, there are circumstances when it would be appropriate and necessary to have an appeal process in place. Presumably when a work order is issued both parties to the case have set out clearly what needs to be rectified. The builder would have had plenty of opportunity to tell the Consumer, Trader and Tenancy Tribunal [CTTT] that the homeowner is not allowing access to the site or it is impossible to access the site because of a range of reasons. When the Consumer, Trader and Tenancy Tribunal makes a works order, it can be made conditional upon the fulfilment of a number of conditions. Provided the Consumer, Trader and Tenancy Tribunal puts those conditions in place, a failure to comply with the work order should be enough to trigger the process whereby the licence is suspended and the claimant can make a claim 12 November 2008 LEGISLATIVE COUNCIL 11189
with the insurance agency. The Consumer, Trader and Tenancy Tribunal in any case has to make a decision that the works order has not been complied with before it can move to make a money order. I cannot for the life of me see the sense of adding a step that would be virtually compulsory when the tribunal can make the decision without the claimant having to spend the time and money, not to mention the associated worry and anxiety, seeking a money order. It seems to me that that additional step would, in effect, prolong the agony of the claimants.
The Hon. CATHERINE CUSACK [5.00 p.m.]: We are not trying to add a step; the step is already in place. If an order is not complied with the tribunal can then order money restitution by the builder. What Ms Sylvia Hale is suggesting would remove a step that currently exists. Given that Ms Sylvia Hale is talking about the automatic suspension of a licence for any work order not complied with, she would virtually eliminate the whole money step, which in many cases at the moment is working quite effectively.
Ms SYLVIA HALE [5.00 p.m.]: What people want is for their homes to be built in a satisfactory manner. They do not want money necessarily; they want rectification. If they are given a money order, then they have to start the whole merry-go-round again with another builder, after having gone through an experience with a builder who was so unsatisfactory that the Consumer, Trader and Tenancy Tribunal agreed that the works order had not been complied with. Fundamental to getting a money order is a finding that the works order has not been complied with. If you have reached a position where the builder has failed to do the work as required, it seems to me that you are also at the point where you are saying that the builder does not deserve to have a licence. Why add the step of requiring the homeowner to have a money order merely to repeat the whole process? If the builder says there is a works order but the relationship with the homeowner is bad, then the onus is on that builder to subcontract another party to do the work. But I do not think it is necessary to add a step. People can go for a money order if they like, but why not stop at the failure to comply with the works order?
The Hon. PENNY SHARPE (Parliamentary Secretary) [5.02 p.m.]: I make the point that we are not adding an extra step; the process already exists. The Greens amendment, which the Government believes is unworkable, seeks to remove a step, and that will make the process more complex and open to legal challenge. That is why we do not support the amendment. We are not adding an extra step; we are simply following the procedure that is already in place.
The Hon. CATHERINE CUSACK [5.02 p.m.]: The tribunal decides whether an order has been complied with. The proposal of the Greens is that somehow the builder's licence is automatically suspended— which in itself is a momentous event. The tribunal needs to look at the matter and determine whether the order was complied with and, if not, whether there was good reason for non-compliance. That is the process Ms Sylvia Hale wants to dispense with, and that is completely at odds with the amendment she moved five minutes ago.
Ms SYLVIA HALE [5.03 p.m.]: The tribunal makes the decision as to whether the order has been complied with. It would make the decision, it would set out the conditions and it would set out very explicitly the work that has to be done. The matter will come back to the tribunal, and on the basis of the evidence the tribunal will decide whether the work order has been complied with. If it has not been complied with, then I think that is the basis on which a licence should be suspended.
You could say the Greens are removing a step, but so what given that a situation is so unsatisfactory that it has been referred to the tribunal and at that stage there has not been a satisfactory resolution? The Government claims that the amendments will make things more complicated, but it has not produced one jot or tittle of evidence to say what those additional complications will be. I would like to hear what they are because the whole point of the money order is that it flows on from the failure to comply with a rectification order. Why not just stop the process short at the stage of failure to comply with the rectification?
Question—That Greens amendments Nos 2 to 10 be agreed to—put.
The Committee divided.
Ayes, 4
Ms Hale Ms Rhiannon Tellers, Mr Cohen Dr Kaye 11190 LEGISLATIVE COUNCIL 12 November 2008
Noes, 27
Mr Ajaka Mr Khan Mr Tsang Mr Brown Mr Lynn Mr Veitch Mr Catanzariti Mr Mason-Cox Ms Voltz Mr Clarke Reverend Nile Mr West Mr Colless Mrs Pavey Ms Westwood Ms Cusack Mr Primrose Ms Ficarra Mr Robertson Miss Gardiner Ms Robertson Tellers, Mr Gay Ms Sharpe Mr Donnelly Ms Griffin Mr Smith Mr Harwin
Question resolved in the negative.
Greens amendments Nos 2 to 10 negatived.
The Hon. PENNY SHARPE (Parliamentary Secretary) [5.12 p.m.]: I move:
Page 6, schedule 1 [5]. Insert after line 35:
(5) For the purposes of subsection (3), a contractor's licence that would have been suspended under section 42A were it not for the fact that the licence expired, or was surrendered or cancelled, before the suspension took effect is taken to have been suspended under that section.
The Government has identified a possible loophole it wants to close to ensure that all consumers benefit from the additional trigger for the lodging of an insurance claim. The bill allows for the lodgement of a home warranty insurance claim in circumstances where a licence has been suspended by the director general— I understand this to mean the Commissioner for Fair Trading—as a result of a builder's failure to comply with an order handed down by the Consumer, Trader and Tenancy Tribunal or a court. However, what if the consumer secures such an order and the builder no longer has a licence that can be suspended? The Government is aware of cases in which builders have surrendered their licences to the Department of Fair Trading or have allowed their licences to expire to avoid the enforcement of orders made by the Consumer, Trader and Tenancy Tribunal. Similarly, there may be instances in which a licence holder has been the subject of disciplinary action and the licence has been cancelled. The trigger may not apply in such situations.
In its preset form the bill provides that a licence can be suspended only pursuant to proposed section 42A where a contract or licence is in existence. In cases in which a builder surrenders his or her licence or allows it to expire either shortly before or after a court or tribunal issues an order, or the licence has been cancelled, consumers may not be able to benefit from the new provision allowing them to lodge an insurance claim. While that may or may not be the case, the Government thinks it is in the best interests of consumers, builders and insurers that the legislation be amended to give clarity to this issue.
The Government believes that a consumer who has gone to the extent of obtaining an order from a court or tribunal against a builder should be able to rely upon this new law irrespective of whether their builder has allowed his or her licence to expire, has surrendered it or has already been the subject of disciplinary action. It is clear from the debate that members agree that the Home Warranty Insurance Scheme requires reform. I urge honourable members to support this amendment so that the legislation provides certainty to consumers who are unfortunately faced with protracted disputes with builders.
The Hon. CATHERINE CUSACK [5.16 p.m.]: The fact that the Government needs to amend its own bill shows how farcical the Home Building Act has become. It is too complex and legalistic, and it is too incomprehensible for consumers to be effective. The Government should bring forward its fundamental review of the Home Building Act and abandon this privatised scheme. The Government's continual introduction of amendments designed to close loopholes demonstrates how difficult it is to deal with the enemy. Of course, the enemy is the shonky builders who are expert at setting up phoenix companies, and evading accountability and responsibility. The fact that the Government has identified this potential loophole in its own legislation highlights the fact that it is up against a very cunning opponent who uses lawyers to dud consumers. This legislation is riddled with opportunities for that to occur.
Given that disinterested insurers do not take responsibility and rely on the fact that they can evade liability through the courts and by bullying proves that this legislation provides no protection for consumers. 12 November 2008 LEGISLATIVE COUNCIL 11191
Although the Opposition will not oppose this amendment, it is not the solution to the problem. It is a fig leaf, and we are not confident that it will resolve even a small percentage of the problems. It certainly does not deal with the complex problem of a licence being automatically suspended and the positive and negative impacts on the builder's other clients.
The Government argues that the builder cannot take refuge in his other licences because he, his family members and his partners can be suspended. However, it places the builder's other customers in a pretty ordinary position because they too will be affected by the builder losing his licence. The Government has argued that they can individually mediate their disputes with the builder. I do not see how those disputes can be mediated when the builder does not have a licence. How can consumers mediate the completion of a house with a person who does not have a licence? There does not appear to be anything to discuss. In addition, home warranty providers will not intervene at that point for the builder's other clients; they tell them they have to go to court and must pursue their own case.
I will not reiterate the fundamental problems with the bill and the clause that the Government is seeking to amend. The Opposition will not obstruct the Government, but we have made it clear that the legislation is flawed. We hope that these amendments improve the situation, but we are not confident that they will make a significant difference.
Question—That the amendment be agreed to—put and resolved in the affirmative.
Amendment agreed to.
Schedule 1 as amended agreed to.
Title agreed to.
Bill reported from Committee with an amendment.
Adoption of Report
Motion by the Hon. Penny Sharpe agreed to:
That the report be adopted.
Report adopted.
Third Reading
Motion by the Hon. Penny Sharpe agreed to:
That this bill be now read a third time.
Bill read a third time and returned to the Legislative Assembly with a message requesting its concurrence in the amendment.
JOINT STANDING COMMITTEE ON ROAD SAFETY
Report: Young Driver Safety and Education Programs
The Hon. Ian West, on behalf of the Chair, tabled report No. 1/54, entitled "Report on Young Driver Safety and Education Programs", dated November 2008.
Ordered to be printed on motion by the Hon. Ian West.
The Hon. IAN WEST [5.20 p.m.]: I move:
That the House take note of the report.
Debate adjourned on motion by the Hon. Ian West and set down as an order of the day for a future day. 11192 LEGISLATIVE COUNCIL 12 November 2008
FISHERIES MANAGEMENT AND PLANNING LEGISLATION AMENDMENT (SHARK MESHING) BILL 2008
Second Reading
The Hon. PENNY SHARPE (Parliamentary Secretary) [5.21 p.m.], on behalf of the Hon. John Hatzistergos: I move:
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.
Leave granted.
The Fisheries Management and Planning Legislation Amendment (Shark Meshing) Bill 2008 makes practical and effective changes to the New South Wales Shark Meshing (Bather Protection) Program.
The bill achieves this by improving and streamlining the environmental management and assessment requirements of the Shark Meshing Program.
The Program operates at 51 busy surf beaches between Wollongong and Newcastle.
It's aim is to deter dangerous sharks from establishing territories in waters where the Program operates.
The Program does this through the use of specially designed nets.
These nets reduce the threat of dangerous shark attacks whilst at the same time aiming to have minimal impact on other marine species.
Since shark meshing was introduced in 1937, there has been just one human fatality on a meshed beach in the thirty years prior to this there was approximately one death per year from shark attacks.
The bill ensures that this effective Program will continue.
Currently, the Shark Meshing Program is subject to environmental assessments that are overly complex and costly.
These assessments arise from requirements under the Environmental Planning and Assessment Act 1979 and the Fisheries Management Act 1994.
In practical terms this means a Fishery Management Strategy, an Environmental Impact Statement and a Species Impact Statement for the Program must be completed by 31 December 2008.
The Department of Primary Industries has estimated that these would take up to two years to complete and cost in excess of $1 million.
Under existing requirements and without these assessments, the Shark Meshing Program would not be able to continue.
The proposed reforms will be achieved through a combination of minor amendments to the Fisheries Management Act 1994, the Environmental Planning and Assessment Act 1979 and the Environmental Planning and Assessment Regulation 2000. The agencies with responsibilities under the relevant New South Wales legislation have all worked together to develop a new environmental and impact assessment process.
The agencies include the Department of Primary Industries, the Department of Planning, and the Department of Environment and Climate Change.
Instead of the current costly assessment requirements, Joint Management Agreements have been developed under existing provisions of the Fisheries Management Act 1994 and Threatened Species Conservation Act 1995.
The Joint Management Agreements have been developed between the Department of Primary Industries and Department of Environment and Climate Change.
These Agreements have been developed in conjunction with an environmental assessment of the impacts of the program and this assessment will cost around $150 thousand dollars to undertake.
This represents a significant saving, when compared to the estimated one million dollars plus the cost of three separate assessments which is currently required.
The proposed Joint Management Agreements have a particular objective this is to ensure that the Shark Meshing Program is managed in a manner that does not jeopardise the survival of threatened species, populations and ecological communities.
The draft environmental assessment will play an important role in achieving this objective.
12 November 2008 LEGISLATIVE COUNCIL 11193
To ensure the process is transparent, the Joint Management Agreements, the associated management plans and the draft environmental assessment will be placed on public exhibition before being finalised.
In addition, the Joint Management Agreements will be reviewed annually by the independent Threatened Species Scientific Committee and the Fisheries Scientific Committee.
These two independent committees will provide the responsible Minister and the Director General of the Department of Environment and Climate Change with an annual review.
The independent committees will advise of any deficiencies in the implementation of the Joint Management Agreements.
The advice from the committees will be incorporated into each Department's annual report to Parliament.
The New South Wales Government is committed to the ongoing public safety on our beaches and has clearly shown this through maintaining the Program for over 70 years.
However, concerns exist in the community about the impact of shark meshing on marine species such as whales, grey nurse sharks, turtles and dolphins.
The New South Wales Government is doing many things to minimise the impacts of shark meshing on marine life.
For example, the Program is suspended during the main whale migration season, between May and August each year.
In the last 58 years, a total of three whales have been caught with one being released.
These figures clearly indicate that removing the nets during the peak whale migration season is effective in reducing the impact of the Program on these mammals.
Further mitigation measures to help reduce the impact of the Program on these and other sea creatures such as dolphins and turtles, which all go to the surface to breathe, is to bottom set the nets on the ocean floor in about 10 metres of water.
Additionally, pingers and whale alarms are attached to the nets. These devices emit a sound wave which deters the mammals from the area.
The New South Wales Government continues to contribute to the long-term conservation of sharks.
This Government was the first in the world to protect the grey nurse shark when it was listed as a protected species in 1984. As a result, it is illegal to catch or possess a grey nurse shark without a permit.
We are pursuing people who kill grey nurse sharks in the courts. In August this year, one perpetrator was fined $2000 for killing one of these sharks.
The New South Wales Government has also provided high level protection for the grey nurse shark at 10 declared critical habitat areas along the New South Wales coast that are subject to special fishing and diving rules.
The Government is also undertaking and supporting a number of research initiatives looking at a variety of shark species. I shall list just a few.
In relation to grey nurse sharks, research is being undertaken into their biology, numbers and movements.
Research is also seeking ways to reduce grey nurse shark interactions with recreational fishing equipment.
Another study is looking at the role of aquatic reserves in conserving wobbegong sharks.
Further, juvenile dusky whalers and bull sharks are being tagged and tracked to better understand their movements and responses to changes in environmental conditions.
Lastly, sandbar sharks, a mainstay of the New South Wales commercial shark fishery, will be tracked to better understand their numbers and distribution.
I want to finish by addressing a mistaken perception on the impact of the Shark Meshing Program on grey nurse sharks.
Indeed, a recent study by four eminent shark specialists suggests that the Shark Meshing Program poses a relatively low risk to grey nurse sharks.
The study was conducted on behalf of the Commonwealth Department of Environment, Water, Heritage and the Arts.
It found that changing the format of the Program will have little impact on the long term survival of these creatures.
Whilst the capture of non-target species is unfortunate I am confident the mitigation measures I have already listed above along with a constant review of the Program under these proposed new arrangements will contribute to reducing the impact on these species.
This bill will streamline the environmental assessment of the Shark Meshing Program it will address the overly complex assessment process that currently exists and it will reduce red tape and cut costs.
11194 LEGISLATIVE COUNCIL 12 November 2008
Most importantly, the bill will continue an important public safety measure, and does so in a way that lessens environmental risks to marine life.
I commend the bill to the House.
The Hon. RICK COLLESS [5.21 p.m.]: Shark meshing has successfully protected beach goers on our State's major metropolitan beaches for more than 70 years. During this time it has been spectacularly successful in protecting swimmers, surfers and other users of 51 of the most frequented beaches along the Newcastle, Sydney and Wollongong coastlines from shark attack. The installation of shark netting has dramatically reduced the number of shark attack fatalities from one a year along our metropolitan coastline to just one in total for the entire 70-plus years following its introduction. Judged on this result alone, it can only be described as a resounding success.
However, current requirements under the Environmental Planning and Assessment Act and the Fisheries Management Act for an environmental impact statement and a species impact statement to be prepared for beaches along with the installation of shark netting is both costly and impractical. While the estimated cost of preparing these statements would likely be in excess of $1 million, the most negative impact of adhering to the current legislative requirements would be the excessive time it would take to prepare the assessments. It has been estimated that it may take as long as two years to complete the necessary environmental and species impact statements, a lag that would leave visitors to some of our State's most frequented beaches at an unacceptable risk of shark attack.
The bill quite rightly seeks to negate the legislative hurdles involved in rolling out shark netting along our beaches by developing a joint management process between the Department of Primary Industries and the Department of Environment and Climate Change that will streamline the process of getting shark netting installed where it has been deemed necessary. Under these changes, management plans and draft environmental assessments will be placed on public exhibition before they are implemented. Shark netting proposals will be scrutinised by the independent Threatened Species Scientific Committee and the Fisheries Scientific Committee on an annual basis before they report back to the Minister for Primary Industries and the Director General of the Department of Environment and Climate Change. Should they find any shortcomings in the management processes in the rollout of shark netting, this information will be publicised through each department's annual report to Parliament—an important step in ensuring there is sufficient public and expert scrutiny in the process.
There is an unfortunate side effect of the installation of shark meshing. Not only does shark meshing pose a threat to dangerous shark species, it is also a threat to a range of other aquatic species, a number of which are either protected or endangered and which pose no threat to swimmers. Sea life such as dolphins, whales, turtles and manta rays also occasionally become the unintended victims of shark meshing. However, this considered, shark meshing still provides an invaluable level of protection for New South Wales beach goers that simply cannot be offered in any other way. Changes to the way in which shark meshing is installed—that is, measures to install shark meshing along the ocean floor rather than suspended between buoys on the surface— will help to reduce the incidence of non-target species falling victim to shark netting while still offering protection to beach goers. These legislative amendments will not only serve to enhance the safety of visitors to our State's most popular beaches, but with improvements in the way shark netting is installed we can also expect to see improvements to the safety of other marine life. The Coalition does not oppose the bill. Indeed, we commend its passage through the House.
Mr IAN COHEN [5.25 p.m.]: Shark netting is a topic about which I have clashed with the major political parties for many years. I am continually gobsmacked by the acceptance by this House of the concept in most simplistic fashion. It is the fault of the media mostly that this denizen of the deep, this so-called enemy, is feared and hated and is therefore killed in order to control an environment in which people wish to immerse themselves with some degree of perceived safety. In reality, sharks are not the threat that politicians and others are keen to espouse. Very few shark species are a threat to human beings.
Shark netting of New South Wales beaches is an issue that I have taken great interest in over many years. Like many New South Wales residents I have a great love and affinity for our beaches. The ocean is a spectacular playground for so many people of New South Wales from all walks of life. I, like all members of this House, want our beaches to be safe and pollution free. Our beaches and our marine ecosystems, in my opinion, are among New South Wales's greatest assets. Managing our oceans and coasts in a balanced and informed manner is crucial to protecting marine ecosystems.
I have been surfing for some 40 years, mostly at un-netted beaches. I also swim in the ocean, virtually always at un-netted beaches. I have had the experience of seeing sharks near me while I have been swimming— 12 November 2008 LEGISLATIVE COUNCIL 11195
quite a marvellous experience once I got over the fright of seeing them in the first place. I speak with some degree of experience about shark numbers, whether they are a real danger to humans and the massive impact that various activities, including shark meshing, is having on these apex predators of the ocean. The last thing I would want is fear of the ocean preventing New South Wales residents from using our beaches. The ocean is to be loved and respected, not feared.
For the past 70 years New South Wales has maintained a shark meshing program as a public safety initiative. The program has placed users of netted beaches at ease about the risk of a fatal shark attack, but 93 per cent of the State's 721 beaches are not netted all and people continue to recreate on those beaches. Over my 40 years or more of surfing I have had moments to think about the prospect of a shark attack. I do not think I go into the ocean at any time, whether to swim or to surf, without thinking about sharks. It is a thought that is in the back of my mind at all times. I experience a deeply imbued fear when I am in the open ocean. I remember years ago as a child looking at photographs in the Daily Telegraph or the Daily Mirror—whatever the newspaper was called at the time—depicting shark packs travelling up the coast. Such photographs put fear into people over the summer months. It was only when I was much older and became interested in politics that I realised the newspapers published such photographs because they did not have anything else to talk about. The politicians had gone home, business had slowed down over Christmas, and they wanted to sell papers, and shark packs became conveniently newsworthy.
The Hon. Jennifer Gardiner: What about the helicopter photographs of them?
Mr IAN COHEN: Of course there were sharks in the ocean.
The Hon. Duncan Gay: What about the people who die?
Mr IAN COHEN: Well, one a year.
The Hon. Duncan Gay: I'm sure they weren't too happy about it.
Mr IAN COHEN: This is the sort of trivialisation of the issue that disappoints me. How many people die of drowning? Do we stop people from going into the ocean because they might drown? How many people die from getting caught in rips?
The Hon. Rick Colless: Have you ever been approached by a shark?
Mr IAN COHEN: Yes, I have been.
The Hon. Rick Colless: How close?
Mr IAN COHEN: Probably within metres, a significant number of times.
The PRESIDENT: Order! The member should continue his speech.
Mr IAN COHEN: The interjection was raised about whether I had been approached by sharks and it had my head spinning, whether the member meant both on land and in the sea.
The PRESIDENT: Order! I know where the honourable member is going. He should continue.
Mr IAN COHEN: Yes, I have sighted sharks in the water.
The Hon. Rick Colless: How close were they to you?
Mr IAN COHEN: Probably within metres, and a significant number of times. Propaganda is promoted by major parties, the media and such like, about the relative danger of sharks but from my very long experience in that environment I know that 95 per cent of the ones I have seen have been harmless to humans. I have seen the shark nets firsthand. Late last year I swam over and alongside the nets at Freshwater Beach to view them. I saw bycatch, harmless banjo sharks and other species in the nets. The nets were completely inappropriate to catch pelagic sharks. They caught bottom-dwelling sharks because the nets that I saw sagged on the bottom of 11196 LEGISLATIVE COUNCIL 12 November 2008 the ocean. The Humane Society International [HSI] accurately described the shark netting system in its nomination of shark meshing programs in New South Wales and Queensland as a key threatening process under the Environment Protection and Biodiversity Conservation Act 1999. It stated:
NSW uses what is called a 'pulse fishing operation', whereby the nets are set for approximately 50% of the time between September to April—
And 50 per cent have and 50 per cent have no protection—
During the winter months of May to August, these nets are removed from the water completely.
I do not know whether other members are aware but during September and October right into November this year the water was so cold that very few people went into the water. It is the whale migration season, so whales will get caught in the nets, but there will be few swimmers unless they have wetsuits. It is inappropriate to set the nets at that time of the year; they will get only bycatch and maybe whales, as happened off the Gold Coast. I have asked the Minister to consider shortening the period of netting but unfortunately he has refused to do so. It is a completely unscientific, populist decision by the Minister for Primary Industries, who has very little experience with the marine environment, I would suggest. HIS further stated:
The nets are set parallel to the shore, have a length of 150 meters—
To use the example of Wanda Beach from Cronulla, half the beach is still without netting. There is no barrier that gives people absolute safety. The nets are set in sections—
Depth of 6 meters and a mesh size of 50-60 cm. The nets are set in approximately 10-15 meters of water with the bottom of the net resting on the ocean floor.
The nets merely catch bottom-dwelling, generally harmless species. The nets are set at a six-metre depth in 10 to 15 metres of water. They are always set below the surface and for a significant area the sharks can come and go over the top. I have seen this. HIS continued:
Beach meshing is carried out by private contractors who are required to mesh each beach a minimum of thirteen times per month. Each net must be left to fish for a minimum of 12 hours on weekdays and 48 hours on weekends. It is general practice to join two nets together thereby meshing a beach twice on the one day.
The first thing one notices upon inspecting the nets is that there is approximately a three-metre gap between the top of the net and the water's surface. The stated purpose of the gap is to reduce bycatch of marine species that swim closer to the surface. If one considers Hollywood shark movies that depict the fin at the surface, that statement does not mean much. The problem is that the effectiveness of the program is significantly undermined by the gap in the meshing between the top of the net and the surface. The Parliamentary Secretary should note when it is considered that 35 per cent of sharks killed in the nets were caught on the beach side of the nets in New South Wales—on the inside coming out—it is clear that sharks do traverse over this gap in the nets.
According to the Humane Society International, in New South Wales between 1995 and 2004 48 great white sharks and 24 tiger sharks were killed in nets. Over the same period 1,485 other marine animals were caught and killed in nets, including turtles, whales, dolphins, rays, dugongs and harmless species of sharks. The figures are in line with the 1996 bycatch mortality report of the Environment Protection Authority. The Scientific Committee of the Department of Primary Industries lists the New South Wales shark meshing program as a key threatening process for a range of threatened species, including the grey nurse shark, the loggerhead turtle and the dugong. The committee acknowledges that the shark meshing program results in bycatch of non-target threatened, vulnerable and non-threatened marine species.
The environment movement has been calling for an external and independent review of the shark net program. The recommendation for a review came from the shark summit of the Department of Primary Industries in 2006. As Mr Piper pointed out in the other place, we are in need of a proper risk assessment that weighs the increased bycatch mortality of marine species against the true effectiveness of shark meshing. This bill undeniably demonstrates that we, as an advanced modern economy captivated by the marvels of science, cannot face a proper risk assessment that will question our deep psychological fear of sharks. Any rigorous risk assessment would show that hazardous rips, treacherous surf and skin cancer are the most threatening elements of our affinity with our coastal beaches. Let us remember the 40 fatal events through drowning on New South Wales beaches between November 2006 and November 2007—nothing to do with sharks.
This bill removes the need for an environmental impact statement and a species impact statement for the New South Wales shark meshing program. In substitution for these assessments the Department of Primary 12 November 2008 LEGISLATIVE COUNCIL 11197
Industries and the Department of Environment and Climate Change will undertake a streamlined assessment process under a joint management process. The bill asks members not to make a decision or value judgement on the practice of shark netting but to hide and silence the evidence of adverse impacts on marine species of shark netting. This should be front and centre in our minds before we wade into the emotive and murky debate of shark netting.
Some unpackaging of the bill's opaque language and terminology is necessary. We should take note of the scope and scale of what this bill is asking members to consent to. The bill is a circumvention of the most central elements of our planning law—environmental impact statements and species impact statements. Without these processes we narrow the parameters for understanding the impact of human activities on the natural environment and human populations. On one level I can understand the Government's desire for this bill. Why spend around $1 million on an environmental impact statement and a species impact statement when the shark nets will be put up regardless of the ecological carnage they inflict? There is no point in weighing up the ecological cost if the popular mandate for netting is a foregone conclusion? I would be interested to hear the Minister or his representative indicate at what ecological price or ecological loss threshold they would consider alternative measures to shark netting.
The burning question we must dispassionately ask ourselves is whether we are justified in ignoring our environmental planning regime that underpins all other development in New South Wales. If we create an exemption for shark meshing do we not undermine our planning regime and open the floodgates to all nature of exemptions? I would have assumed that the development imperative threshold for circumventing our planning law was much higher than this bill indicates.
In the other House the Parliamentary Secretary stated that the bill "will establish processes to reduce unwanted impacts from shark meshing on protected and threatened marine life". No provision in this bill does such a thing; the bill is primarily about reducing the comprehensiveness and rigour of impact assessments for marine species. Once again, the Minister, who is a true political shark, is more preoccupied with perception than with substance.
If the Government is to be true to its word on this bill and wants to "reduce unwanted impacts on marine species" it should have no problem supporting my amendment to the bill, which ensures that the joint management agreement improves or maintains biodiversity values. The improvement or maintenance of biodiversity values—the foundational and guiding principle of so many New South Wales environmental regulations and planning laws—should equally apply to the shark meshing program.
The Department of Primary Industries and the Department of Environment and Climate Change should offset any anticipated species loss and bycatch fatalities with such actions as increased declaration of aquatic reserves under the Fisheries Management Act 1994 or fast-track the declaration of a marine park in the Hawkesbury Shelf Bioregion. Perhaps if the Government had not excluded the marine species from the biobanking scheme—which is in such dire need of business, with no current agreements in place after four months of operation—the scheme could have been used to provide a mechanism to offset marine species loss inherent to the shark netting program.
Without the Greens amendment we will not secure a process that, in the words of the Government, will "establish processes to reduce unwanted impacts from shark meshing on protected and threatened marine life". If there is no requirement to offset marine species bycatch and at least maintain biodiversity values then the joint management agreements will represent a net loss in marine species—a step contrary to the Government's biodiversity objectives contained in the State Plan. If there is no agreement to the Greens amendment we will oppose the bill, which reduces proper environmental assessment of the shark meshing program.
I have huge concerns about this process. I see it as being a superficial interpretation of what is a serious issue. Scientists have clearly indicated that the process of shark meshing is unwarranted. It is a process that looks good to the casual observer—it might bolster tourist opportunities—but it is something that has been practised in New South Wales since the 1930s. It is a process that has not changed: it has not moved with the times. I have been told that in past generations men sat on the Victorian beaches with their spear guns. When there was a call that a shark pack was coming through they would rush into the water, shoot the sharks, then come out of the water and continue to sun themselves on the beach. They were doing the great white hunter trick of protecting everybody from the sharks. But that is not the reality of the danger from these apex predators in the marine ecosystem. 11198 LEGISLATIVE COUNCIL 12 November 2008
People on surfboards and divers in dangerous areas have been trialling sonic devices that can be attached to marine equipment. I have put that to the Minister, who has investigated the matter and come back to me and said it is not financially viable to mesh off a beach electronically. However, electronically meshing off just the area between the flags could work. It would give people the option of going into those areas with electronic meshing, which in recent times has proven to be effective. There are other ways of protecting people from sharks. Observation is effective, particularly aerial observation. Another speaker referred to stories about sharks in newspapers way back in the 1950s. The pictures in those stories were taken from helicopters and fixed-wing aircraft. Yet fixed-wing aircraft coastal surveillance between Wollongong and the Hunter over summer has been stopped. These sorts of activities can effectively monitor these predators. Proper surf lifesaving observation and appropriately built observation towers on our beaches can also effectively monitor shark activity. These are the ways of dealing with the risk of shark attack.
Many of the statistics on shark presence are skewed. Indeed, we are seeing a lessening of the populations of these creatures, to the point where great white sharks and grey nurse sharks—which are known as the labradors of the sea—are getting caught in these threatening processes, and various fishing practices over generations, so that we have seen a massive loss of these apex predators. In my view that is a huge shame. If it were countered by real protection there might be some argument for it. But this is just spin and smokescreen on the part of the Government—a convenient, cheap way out. We have seen enough of that in recent times with the mini-budget. It is not a reality that we have a problem with sharks. I simply ask the House to one day address the imbalance in dealing with our marine ecosystem in this way. I think it is a real tragedy that the vast majority of members of the House support the bill's approach.
On the one hand, the Government pays lip-service to being conservation minded, but on the other hand it ignores absolutely basic conservation priorities and acting in a way that realistically addresses situations. After all, we have a magnificent ecosystem off the coast of New South Wales, and it is something well worth preserving. But this legislation is a serious, 1930s-style retrograde step undertaken for political convenience. It plays on the fears of the population, which is absolutely inappropriate and irresponsible.
The PRESIDENT: I take this opportunity to welcome to the visitors gallery members of the public who are participating in the Parliament's A Little Night Sitting program, which is organised by the Parliamentary Education Section.
Reverend the Hon. FRED NILE [5.47 p.m.]: The Christian Democratic Party supports the Fisheries Management and Planning Legislation Amendment (Shark Meshing) Bill 2008, which will ensure that the shark meshing bather protection program continues to operate, and our party fully supports that. I noted that during Mr Ian Cohen's contribution he made no reference to the number of surfboard riders who have been attacked by sharks in recent times. Some of them have lost their lives and some have lost their limbs.
Mr Ian Cohen: But those areas are not covered by shark meshing.
Reverend the Hon. FRED NILE: Obviously, the surfboard riders are swimming in the areas where there is no shark meshing. I simply point out that there are dangerous sharks out there. Mr Ian Cohen made a good point, however. Probably as a result of lobbying by the Greens, the shark meshes are not level with the ocean surface but are below it, to allow some protection for marine life. It has now been proved that sharks can swim over the meshing. Therefore I suggest that the shark meshing be lifted so that it is level with the ocean surface to prevent sharks coming in and also getting caught by the meshing on the way out. There should also be signs indicating where there are shark nets to protect bathers. Obviously, as Mr Ian Cohen said, not all beaches are protected. I know this is the case at Seven Mile Beach, near Gerroa, where I live. Obviously it is a huge beach—it is seven miles long—and sharks appear off the beach. A shark warning aircraft flies along the coast warning swimmers when there are sharks there: it can spot them from in the ocean.
In some ways I wish shark meshing were there to protect those who swim within the flags. I remember on one occasion that my son Mark was on his surfboard out in the deep water when a shark warning was sounded. From our home we could see that the shark was between the beach and my son. Because of the noise Mark had no knowledge of the shark or that everybody else had left the water. Eventually he realised something was going on and I can tell you that I have never seen him paddle so fast back to the beach as he did on that occasion. It is important to have protection for the swimmers of our State—men, women and children. No-one would want to see a child taken by a shark. We know that 51 beaches between Newcastle and Wollongong are meshed as part of the program. Since the program's inception in 1937 there has been only one fatal shark attack recorded at a netted beach, but before the program was in place there was an average of one shark attack every year. 12 November 2008 LEGISLATIVE COUNCIL 11199
The shark meshing bather protection program currently operates under the requirements of the Environmental Planning and Assessment Act 1979 and the Fisheries Management Act 1994. Approval and operation of the program is subject to the completion of a fishery management strategy, an environmental impact statement and a species impact statement by 31 December 2008. These processes are complex and costly. I understand the Department of Primary Industry has estimated that it will take two years to complete the program and it will cost $1 million. We are all conscious of the budget shortfall and the need to make every dollar count.
This bill will provide for the continuation of the shark meshing program beyond 31 December 2008. This will be achieved by streamlining the environmental assessment and approval process of the shark meshing program. A new assessment process will take place under joint management agreements between the Minister for Primary Industries, the Department of Primary Industries and the Department of Environment and Climate Change. The current exemption provided to the shark meshing program will continue to provide time for public exhibition of the joint management agreements and associated documents. The aim of the program is to save human life and reduce the unnecessary impact on other marine species. The Christian Democratic Party supports the bill.
The Hon. PENNY SHARPE (Parliamentary Secretary) [5.52 p.m.], in reply: I thank all honourable members for their contributions to the debate. The Fisheries Management and Planning Legislation Amendment (Shark Meshing) Bill 2008 will improve and streamline the environmental management and assessment requirements of the shark meshing program. The program operates at 51 of our busiest beaches between Newcastle and Wollongong. The aim of the program is to protect the public from shark attacks and to reduce unwanted impacts on other marine life.
The bill will enable the program to be assessed and managed through joint management agreements and associated management plans. This will replace the costly and complex environment assessment processes currently required under the Environmental Planning and Assessment Act and the Fisheries Management Act. The joint management agreements have been developed under existing provisions of the Fisheries Management Act and the Threatened Species Conservation Act, which has involved cooperation across government. These amendments are being developed in conjunction with an environmental assessment of the impacts of the program. The assessment will cost around $150,000 to undertake, which represents a significant saving when compared with the $1 million-plus cost of the three separate assessments currently required.
Mr Ian Cohen raised a number of issues during the debate and I will respond to some of them. I note that the Government has a very proud record when it comes to marine conservation, and the establishment of marine parks up and down our coast are testament to that. On behalf of the Government I thoroughly reject the suggestion by Mr Ian Cohen that the Government is not committed to these issues. The continuation of the shark meshing program on our most popular beaches is an important public safety measure. Since its introduction the program has been successful in decreasing the number of fatal shark attacks in New South Wales. Since 1937 there has been only one fatal shark attack off one of the beaches in the program—at Merewether beach, near Newcastle, in 1951. Mr Ian Cohen might suggest that this is 1930s technology but I would suggest it is 1930s technology that is still working and is still relevant.
The program reduces the likelihood of shark attack by deterring sharks from establishing territory near the swimming beaches. That is the critical difference from the arguments of Mr Ian Cohen: he seemed to suggest that the Government is trying to stop all sharks from going through, and that is not the case. It is simply a matter of trying to stop the sharks from establishing territory in the first place. No combination of measures can ever totally eliminate the risk of shark attack; however, the ocean is the territory of the sharks and without the program we place the public at increased risk.
Mr Ian Cohen raised the issue of whale migration and suggested that there was no scientific reason for the period that the nets are in place. I can provide the following advice. The risk of the program to whales is considered low. The nets are in place from 1 September to 30 April each year. The nets are removed from May to August during the peak whale migration season. The reason the netting begins on 1 September is that it is during September and October that the largest number of great white sharks are recorded. Over the past 18 years more than half of all great white shark recordings by the program have occurred during September and October. That is the scientific basis on which the Minister has indicated that he is not prepared to change the dates.
I can also advise the House that in the past 50 years some whales have been caught in the nets. A total of three baleen whales have been caught in the nets, including two humpbacks—one of which was released 11200 LEGISLATIVE COUNCIL 12 November 2008 alive—and one minke whale. During the same period three false killer whales and one killer whale were also caught. Members would be aware that these are not whales but dolphins and they are both protected but not threatened species. This is not a large number over 58 years. Removing the nets during September and October could potentially increase the likelihood of interaction between swimmers and great white sharks and it is not a risk that the Government is prepared to take.
The program is also beginning to utilise other measures to try to minimise the impact on whales. Pingers and whale alarms are used on the nets to reduce the impact on dolphins and whales. The alarms can be audible to the human ear but most of the sound is above the threshold of the human ear. It is also true that there are alternatives to meshing and the Government does use some of these—for instance, measures such as aerial observations from small planes, electronic deterrents, air bubbles and sonar tracking. I am not suggesting the Government uses all of them but it does use some. All these measures are not yet singularly successful in deterring sharks. The measures are cost prohibitive and require further technological development to be effective. The Government considers the program as it is to be the most effective measure and the most value for money in the prevention of shark attacks.
Mr Ian Cohen also raised the issue of risk analysis. The need for a quantity of risk analysis of shark attack has been identified in the past and was raised by the New South Wales Shark Summit held in 2006. The need for a project to collect data for a quantitative shark risk analysis has been recognised by the New South Wales Department of Primary Industries and will be addressed during the development of a joint management agreement and associated management plan.
Mr Ian Cohen also raised the issue of grey nurse sharks. I have been witness in this Chamber to a long and involved debate between the Minister and the member on this very issue but I will put on record the facts as I have them in regard to the impact on grey nurse sharks. Over the past 58 years a total of 377 grey nurse sharks have been caught in the nets, with almost 90 per cent being caught prior to 1975. Over the past 18 years 15 grey nurse sharks have been caught in the nets, with five of the sharks released from the nets. This is only a small proportion, or less than 1 per cent, of the total grey nurse sharks found along the east coast.
Mr Ian Cohen: You hope.
The Hon. PENNY SHARPE: I know there is also debate around the counting of them. A range of actions is being taken by the New South Wales Government that contribute to the long-term conservation of great white sharks and it is something that the Government is committed to. These actions are aimed at increasing the numbers and raising public awareness of the importance of not harming these beautiful creatures. Mr Ian Cohen suggested that the bill circumvents essential elements of our planning laws and that environmental impact statements and species impact statements are needed. The assessment processes under the Environmental Planning and Assessment Act are not suited to the scale of the shark meshing program. The proposed assessment process and management of the activity undertaken pursuant to the joint management agreements are more proportionate and customised to the unique features of shark meshing. In addition to a risk and environmental assessment, the joint management agreements will focus on the management of the activity to minimise impacts on threatened species. The Government will not support the Greens' amendment but I will deal with that in more detail in Committee. I commend the bill to the House.
Question—That this bill be now read a second time—put.
The House divided.
Ayes, 26
Mr Ajaka Mr Khan Mr Smith Mr Brown Mr Lynn Mr Tsang Mr Catanzariti Mr Mason-Cox Mr Veitch Mr Clarke Reverend Nile Ms Voltz Ms Fazio Mrs Pavey Mr West Ms Ficarra Mr Pearce Ms Westwood Miss Gardiner Mr Robertson Tellers, Mr Gay Ms Robertson Mr Donnelly Ms Griffin Ms Sharpe Mr Harwin 12 November 2008 LEGISLATIVE COUNCIL 11201
Noes, 4
Mr Cohen Ms Rhiannon Tellers, Ms Hale Dr Kaye
Question resolved in the affirmative.
Motion agreed to.
Bill read a second time.
In Committee
Clauses 1 to 5 agreed to.
Schedule 1 agreed to.
Mr IAN COHEN [6.09 p.m.]: I move:
Page 4, schedule 2.1 [3], proposed section 115RA. Insert after line 20:
(2) The joint management agreements referred to in subsection (1) are to specify measures to improve or maintain the biodiversity values of marine species and ecosystems that may be affected by the shark meshing to which those agreements apply, including measures to offset any loss in such biodiversity values (for example, proposals for the declaration of new aquatic reserves under the Fisheries Management Act 1994 or the extension of existing aquatic reserves).
This amendment will ensure that the New South Wales shark-meshing program does not result in a net reduction or loss in marine biodiversity in New South Wales. In simple terms, the amendment acknowledges that the meshing program will have an adverse impact on marine species and that we should take compensatory measures to offset such losses. In even simpler terms, marine animals die because of the net, so we compensate for those deaths by supporting other conservation measures. It is not rocket science and the ideology of offsetting is at the very heart of the Labor Government's mantra on the environment.
Priority E4 of the New South Wales State Plan states, "by 2015 there is no decline in the condition of marine waters and ecosystems". This is what the Labor Government has committed to. It has promised the residents of New South Wales—who hold so dear their beaches and marine ecosystems—that it will not allow a decline in the condition of marine waters and ecosystems. The amendment will ensure that the Labor Government does not stray from this commitment by requiring the joint management agreements to include measures that improve or maintain biodiversity values. The improve-or-maintain provision will be compatible with the legislatively dictated contents of a joint management agreement, as contained in paragraphs (c) and (d) of section 221W (1), which require the joint management agreement to state its objectives and the ways in which the objectives are to be achieved.
The Government will claim spuriously that this amendment is not within the purview of joint management agreements under part 7A, division 8, of the Fisheries Management Act. The amendment relates only to a joint management agreement between the Department of Environment and Climate Change and the Department of Primary Industries in relation to a shark-meshing program. The argument that joint management agreements under section 221W cannot support an improve-or-maintain test is a lie, and I urge members to look at the agreements themselves instead of accepting as fact any misleading statement on the incompatibility of the joint management agreements structure and the improve-or-maintain test. Without this requirement the shark-meshing program will result in a net biodiversity loss—contrary to the target outlined in State Plan priority E4.
The amendment also outlines one way in which biodiversity loss can be offset and compensated for. Declaration of new aquatic reserves under the Fisheries Management Act 1994, or an increase in the size of existing ones, is a practical way for the Department of Environment and Climate Change and the Department of 11202 LEGISLATIVE COUNCIL 12 November 2008
Primary Industries joint management agreements to maintain biodiversity values. The improve-or-maintain biodiversity criterion is relevant to numerous aspects of planning and development law in New South Wales. It is applied in numerous planning contexts, including biodiversity certification, biobanking and native vegetation.
This is a sensible amendment. It highlights a deficiency in the legislation and provides a practical way to resolve that deficiency. There are strong precedents in our existing legislation for extending the improve-or-maintain test to the shark-meshing program. I cannot recall how many times I have heard the phrase "maintain and improve biodiversity values" come out of the mouths of Government members on a range of issues. This amendment calls on the Government to be consistent in its approach to biodiversity management, and consistency is important. If the improvement and maintenance of biodiversity values is the cornerstone of terrestrial environmental management in areas such as Sydney growth centres, private native forestry and biobanking, it should be applied equally to marine and aquatic ecosystems. Government opposition to this amendment can be interpreted as nothing more than hypocrisy. It will demonstrate a fundamental move away from the Labor Government's commitment to curtail the deleterious impacts on biodiversity values posed by the netting program. I commend Greens amendment No. 1 to the Committee.
The Hon. PENNY SHARPE (Parliamentary Secretary) [6.13 p.m.]: As indicated previously, the Government does not support Greens amendment No. 1. The proposed amendment goes beyond the scope and purpose of the joint management agreements, which are intended to manage and control the shark-meshing program. The objective of the joint management agreements is to ensure that the program is managed in a manner that does not jeopardise the survival of threatened species populations and ecological communities. Conserving the biodiversity of marine species is provided for in New South Wales by a comprehensive legal framework, which includes the National Parks and Wildlife Act, the Threatened Species Conservation Act, the Fisheries Management Act and the Marine Parks Act.
It is simply wrong for the Greens to suggest that by not supporting this amendment somehow the Government is not committed to marine conservation. A range of measures are already undertaken to conserve biodiversity in New South Wales waters. These measures include the existing aquatic reserves and marine parks network across the State, current research activities and programs, the implementation of existing fisheries management strategies for commercial fisheries, and rules applying to recreational fishers. These are comprehensive measures aimed specifically at conserving our marine environment. The Government does not support this amendment and we urge all members to oppose it also.
Question—That the Greens amendment be agreed to—put.
The Committee divided.
Ayes, 4
Mr Cohen Ms Rhiannon
Tellers, Ms Hale Dr Kaye
Noes, 26
Mr Ajaka Mr Khan Mr Smith Mr Brown Mr Lynn Mr Tsang Mr Catanzariti Mr Mason-Cox Mr Veitch Mr Clarke Reverend Nile Ms Voltz Mr Colless Mrs Pavey Mr West Ms Ficarra Mr Primrose Ms Westwood Miss Gardiner Mr Robertson Tellers, Mr Gay Ms Robertson Mr Donnelly Ms Griffin Ms Sharpe Mr Harwin
Question resolved in the negative. 12 November 2008 LEGISLATIVE COUNCIL 11203
Greens amendment negatived.
Schedule 2 agreed to.
Title agreed to.
Bill reported from Committee without amendment.
Adoption of Report
Motion by the Hon. Penny Sharpe agreed to:
That the report be adopted.
Report adopted.
Third Reading
Motion by the Hon. Penny Sharpe agreed to:
That this bill be now read a third time.
Bill read a third time and returned to the Legislative Assembly without amendment.
HUMAN TISSUE AMENDMENT (CHILDREN IN CARE OF STATE) BILL 2008
Second Reading
The Hon. HENRY TSANG (Parliamentary Secretary) [6.23 p.m.], on behalf of the Hon. John Hatzistergos: I move:
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.
Leave granted.
I am pleased to bring before the House the Human Tissue Amendment (Children in Care of State) Bill 2008.
Honourable Members will be aware that the need for this legislation arose from a tragic incident in February 2007 when a young girl, who was in the care of the Minister for Community Services, died following a motor vehicle accident. This girl had during her life expressed a wish to be an organ donor and all of the significant adults in her life, her birth parents, step father and foster parents, agreed with that wish and that her organs should be donated to assist others. Unfortunately the Human Tissue Act currently includes a blanket prohibition on the donation of organs and tissues by children who are in the care of the State.
This legislation removes this restriction and will allow for the organs of children who are in the care of the State to be donated for transplantation into the body of another person in a manner similar to that applying to all other children.
Part 4 of the Human Tissue Act 1983 currently allows for a child's organs to be donated in circumstances where the child has not during his or her lifetime expressed an objection to donation and the child's senior available next of kin gives consent. The amendments that I am proposing to the Act will allow the organs of a child in the care of the State to be donated if the child has not during his or her lifetime expressed an objection to donation and the principal care officer for the child gives his or her consent. The principal care officer will be required to consult with relevant interested parties before giving his or her consent. The Principal Care Officer will also be precluded from giving consent if any of the relevant interested parties does not agree to the donation. In other words each and every person who is a relevant interested party will have the power to veto a donation.
As members will be aware the family situations of children who come to be in the care of the State can be extremely complex: a wide range of people can have played an important role in their lives and have strong concerns for their welfare. These people can include birth parents, grandparents, foster parents, brothers and sisters, and in the case of indigenous children it may also include community elders. I do not however wish to give the impression that the examples that I have given are in any way exhaustive and it is inevitable that there will be situations where people who are not covered by these examples are people that the child would have expected and wanted to be consulted.
Accordingly the legislation does not seek to define who is a relevant interested party. However I give an undertaking to the House that the Children's Guardian will be asked to develop guidelines to assist principal care officers in determining who is a 11204 LEGISLATIVE COUNCIL 12 November 2008
relevant interested party and in consulting with those parties. Of course, given that these will be guidelines and as such provide guidance and assistance, there is no need to give them a legislative backing and the bill therefore does not refer to them. I expect that the Children's Guardian will consult widely in developing those guidelines.
As well as requiring consent from the principal care officer, the bill will maintain the usual role of the designated officer in approving organ donations. As Members may be aware hospitals that are involved in organ donations appoint a designated officer who must authorise the removal of any organs or tissues from the body of a dead person. In effect the designated officer is an independent authority who ensures that all the legal and procedural requirements have been complied with. As a final matter members will be aware that any death of a child in the care of the State must be referred to the Coroner. Accordingly the Coroner's permission will also be required before any organs can be removed from the body of such a child.
I turn now to the individual amendments to the Act.
Amendment number one inserts in the definitions section a definition of child in care of the State and a definition of principal care officer. The definition of child in care of the State has simply been moved from section 34A of the Act which is to be repealed by amendment number eight. The definition of principal care officer provides that this person is the principal officer of the designated agency that has supervisory responsibility for the child under the Children and Young Persons Care and Protection Act. Designated Agencies include the Department of Community Services or a non-government organisation that is accredited to provide out-of-home care services for children and young people in the statutory care of the State. This definition has been developed in consultation with the Department of Community Services.
Amendments two and three establish a new structure for obtaining consent for the donation of tissue by a child in the care of the State where the child's body is at a hospital. The role of the hospital's designated officer has been retained and as far as possible the procedures to be followed by the hospital will be the same for collecting tissue from the body of a child who was in the care of the State as it is for other children.
Amendments four and five concern the obtaining consent for the donation of tissue by a child in the care of the State where the child's body is not at a hospital. The role of the principal care officer is essentially the same in this instance as where the child's body is at a hospital.
Honourable Members will note that proposed amendments three, five and seven make it clear that in all cases any tissue that is taken from the body of a child in the care of the State may only be used for the purpose of transplantation into the body of another living person. in other words tissues cannot be donated for medical or scientific research.
Amendment number 10 is a transitional provision that clarifies that the proposed amendments have no retrospective effect and will only apply in the case of deaths that occur after the amendments are commenced.
On the subject of commencement I wish to draw the House's attention to the fact that the proposed amendments are to commence by proclamation. This will allow the Children's Guardian to consult interested stakeholders and develop appropriate guidelines for the exercise of the functions of principal care officers.
I commend the bill to the House.
The Hon. JENNIFER GARDINER [6.24 p.m.]: In February 2007, a young girl in the care of the Minister for Community Services died following a motor vehicle accident. During her life this girl had expressed a wish to be an organ donor and her birth parents, stepfather and foster parents agreed with that wish and that her organs should be donated to assist others. The Human Tissue Act includes a blanket prohibition on the donation of organs and tissues by children who are in the care of the State. New South Wales is out of kilter with the other States and Territories, which have no such prohibition. The Human Tissue Amendment (Children in Care of State) Bill 2008 addresses the legal differences between children in the care of the State and those who are not. The purpose of the bill is to allow for the removal of tissue from the body of a deceased child in the care of the State for the purpose of transplantation of such tissue to the body of a living person if the principal care officer dealing with the child has consented. The bill sets out the procedures to be followed in determining whether such consent should be given, including consultation with interested parties.
The Opposition does not oppose the bill. It has been involved in various consultations with a number of groups that, in the main, support the bill. Some queries have been raised about the bill. For example, UnitingCare Children, Young People and Family Services supports the bill but has expressed concern about the proposed consultation process for gaining permission from what the bill refers to as "relevant persons". The service has suggested that the decision about organ donation should be discussed at case conferences with biological parents, foster parents, agencies, Department of Community Services representatives and significant others once the child is of an appropriate age. It has also requested clarification from the Government about whether organ donations will be part of every child's care and development plan, at what stage such a child-sensitive issue should be discussed and what would happen to children with intellectual disabilities in this context. The Opposition looks forward to receiving some assurances on these aspects of the bill from the Government. In short, the Opposition does not oppose the bill.
[The President left the chair at 6.28 p.m. The House resumed at 8.00 p.m.] 12 November 2008 LEGISLATIVE COUNCIL 11205
HUMAN TISSUE AMENDMENT (CHILDREN IN CARE OF STATE) BILL 2008
Second Reading
Debate resumed from an earlier hour.
The PRESIDENT: Order! I will allow Ms Lee Rhiannon to speak rather than Reverend the Hon. Fred Nile, who sought and was given the call. However, before Ms Lee Rhiannon commences her contribution I advise Reverend the Hon. Fred Nile that if a member who has been given the call to speak chooses instead to allow another member to speak, he or she may forfeit any opportunity to contribute further to debate on the question before the Chair.
Ms LEE RHIANNON [8.00 p.m.]: The Greens support the bill, which sprang out of a tragic incident involving the victim of a vehicle accident in Warialda last year. A young woman in State care had expressed a desire to donate her organs and, in the awful aftermath of the accident, both her birth parents and foster carers agreed that if any good could come of her death, they too would like to see her organs donated. However, because of the current law those wishes could not be fulfilled. As a result, the girl's mother campaigned for the proposed change in the law that is before the House today. She deserves to be congratulated.
A task force was formed to examine the issue and, in consultation with representatives from a wide variety of government, community, health and children's advocacy groups, it investigated the specific issue of young people in State care donating their organs. The resulting change will bring New South Wales into step with all other State and Territory laws on this issue. It is expected to apply to a very small number of cases. Our chief concerns, which are echoed by other members, relate to the difficulties inherent in identifying the relevant interested parties involved in the care of the child in foster care, especially at such a traumatic time. The Children's Guardian will consult widely and create guidelines to regulate this process. This will be a difficult task and we look forward to examining the resulting guidelines.
Sadly, Australia has one of the lowest organ donation rates in the world. Currently, 3,000 children and adults are on the official organ and tissue transplant waiting list nationally, needing a heart, kidney, lungs, liver, pancreas or corneal transplant. The average waiting time for a kidney is four years and, according to Transplant Australia, of those waiting for a heart, lung or liver transplant, one in five people will die before they receive an organ. Whereas the rate of organ donation has increased in other countries in recent years, Australia's rate of organ donation has declined by close to a third since 1989. There are only around 200 deceased donors across the whole of Australia each year, yet nearly six million Australians have registered to donate—one of the highest rates in the world. Clearly, we have a nation of committed people. The massive discrepancy is partly due to the fact—contrary to the belief of many people—that registering as a donor on the Australian Organ Donor Registry, or indicating on one's driver's licence a wish to donate, does not guarantee donation. One's legal next of kin must still give permission.
I want to go through some of the issues associated with donating organs because, while the bill before us is most important and has solved some of the contradictions, clearly many changes still need to be grappled with. Nearly half of the people waiting for an organ transplant in Australia live in New South Wales, so I think there is a responsibility on us to deal with this matter. The Government needs to invest in significant awareness and education campaigns surrounding organ donation. I congratulate the Government for bringing this bill forward.
Reverend the Hon. FRED NILE [8.04 p.m.]: The Christian Democratic Party supports the Human Tissue Amendment (Children in Care of State) Bill. As members know, the bill arose from a tragic incident in February 2007 when a young girl who was in the care of the Minister for Community Services died following a motor vehicle accident. During her life this girl had expressed the wish to be an organ donor, and all the significant adults in her life—the birth parents, stepfather and foster parents—agreed with that wish and that her organs should be donated to assist others. However, the Human Tissue Act, which this Parliament had previously passed, includes a blanket prohibition on the donation of organs and tissues by children who are in the care of the State. I assume that, as the organs are being taken from a child in the care of the State and not in a family unit with parents who could give permission for the organs to be transferred to a needy person, the purpose of the prohibition is to provide a safeguard to prevent abuse.
Despite the prohibition being based on good intentions, it presented a barrier to the donation of this girl's organs. The bill removes that barrier and allows for organs of children who are in the care of the State to 11206 LEGISLATIVE COUNCIL 12 November 2008 be donated for transplantation into the body of another person in a manner similar to that applying to all other children. It will require consent from the principal care officer, and appropriate safeguards are included in this legislation. The amending Act will allow the organs of a child in the care of the State to be donated if the child during his or her lifetime has not expressed an objection to donation, and the principal care officer of the child gives his or her consent. The principal care officer is required to consult with relevant interested parties before giving his or her consent. If there are objections from any of the relevant interested parties and they do not agree with the donation, it cannot proceed. Each and every person who is a relevant interested party will have the power to veto a donation.
The second so-called protection involves the role of the designated officer in approving organ donations. Hospitals involved in organ donations appoint a designated officer, who must authorise the removal of any organs or tissue from the body of a dead person. In effect, the designated officer is an independent authority who ensures that all legal and procedural requirements have been complied with. As a final matter, there is also a requirement that the Coroner's permission be obtained before any organs can be removed from the body of such a child. With those safeguards, the Christian Democratic Party is happy to support the bill.
Reverend the Hon. Dr GORDON MOYES [8.08 p.m.]: In speaking on the Human Tissue Amendment (Children in Care of State) Bill 2008 I will go a little further than my colleague Reverend the Hon. Fred Nile did to indicate that there are many harrowing stories associated with the illegal removal of organs for transplantation, and I commend the Government for what it has done to ensure such procedures are not practised in New South Wales.
The object of the bill is to allow for the removal of tissue from the body of a deceased child who was in the care of the State for the purpose of its transplantation into the body of a living person if the principal care officer in relation to the child has consented. The bill is quite straightforward. The Human Tissue Act 1983 currently contains an explicit prohibition on the removal of tissue, including organs, from the body of a deceased child who was in the care of the State immediately before his or her death. The principal Act also prohibits a person from authorising the post-mortem examination of a deceased child who was in the care of the State or the use of tissue removed during a post-mortem examination of such a child. These prohibitions are subject to an authorisation under the Coroners Act 1980 or another law. The prohibition is absolute and there can be no exceptions, even in circumstances where the child in question has expressed a desire to donate his or her organs after death and all the relevant interested adults, such as birth parents, foster parents and adult siblings, agree with that decision.
As members would be aware, the legislation arose from a tragic incident in February 2007 when Mandy Butler was one of three teenagers killed in a car accident. She was living in a foster home at the time of her death. During her life Mandy Butler had expressed a wish to be an organ donor. However, existing New South Wales legislation prevented her mother giving permission for her organ to be donated. In her agreement in principle speech in the other place the then Minister for Health advised that the bill removes the current blanket prohibition on the donation of organs and tissues by children who are in the care of the State to be donated for transplantation into the body of another person in a manner similar to that applying to all other children.
This legislation will bring New South Wales into line with all the other States and Territories, which do not prohibit the donation of organs and tissues by children in the care of the State. The bill will then place children in the care of the State in a position that is essentially the same as all other children. The proposed amendments to the Act will allow the organs of a child in the care of the State to be donated if the child during his or her lifetime has not expressed an objection to donation and the principal care officer for the child gives his or her consent. The principal care officer will be required to consult with relevant interested parties before giving consent. The principal care officer will also be precluded from giving consent if any of the relevant interested parties do not agree to the donation.
The notion of consent to medical procedures is based upon the ethical principle of respect for another person's autonomy, or allowing people to make decisions about what is done to them. In the absence of consent by the organ donor or relevant interested parties, the removal of tissue would constitute an assault. To be effective, consent must be freely made, given with respect to the precise procedure to be carried out, given by a person with legal capacity to give consent, given in writing, in words or implied from conduct, or authorised by a court order. In addition, consent must not be obtained by fraud or duress.
The Minister in her agreement in principle speech addressed the sensitive community issue of determining persons who qualify as relevant interested parties. These now include birth parents, grandparents, 12 November 2008 LEGISLATIVE COUNCIL 11207
foster parents, brothers and sisters and, in the case of indigenous children, may also include community elders. Consent is crucial from families, as the religious beliefs of sections of our multicultural community require or value the burial or disposal of the body as a whole. Imposing donation on bereaved relatives who hold such beliefs, even when the deceased member of the family did not share those beliefs and expressed a wish for donation may, in some circumstances, be extremely damaging.
The donation of tissue will be allowed only for the purpose of transplantation into the body of another person. Donation will not be permitted for research purposes. Members of the House would be aware of the inhumane practices that happen in some countries around the world. Some years ago while lecturing in a university in Beijing I became aware that in China people could buy organs for transplantation. Upon returning to Australia I made further inquiries about this and became associated very closely with the Falun Gong. Its members believe that many of their people who had been imprisoned were unwilling participants in procedures that resulted in organs being taken from their bodies.
In 1996, 4,367 executions were reported to have taken place in China—many it is claimed in order to facilitate the sale of human organs. In a sting operation undertaken in conjunction with the American Federal Bureau of Investigation, two Chinese government officials allegedly offered to sell a variety of organs from executed criminals in southern China. Organs from as many as 50 executed criminals were said to be available, for prices ranging from $29,000 for lungs from non-smokers, $37,000 for livers, $29,000 for kidneys, and $7,450 for corneas, which were taken from criminals executed by bullets to the body rather than to the head so as to avoid damage to eye tissue. It was alleged that some criminals were actually put to death by having essential organs removed. Some were reported to have been kept alive only long enough to preserve live tissue. The brokers were subsequently arrested in New York and were given penalties of up to five years imprisonment and fines up to $A595,000. This is just one harrowing example of the illegalities that can arise when donated organs are sold to other parties.
Despite Australia's advanced medical capabilities and the fact that we are leaders in the field of organ transplantation, our per capita transplant rate is less than half that of Austria, Belgium, Spain, the United States of America and France. According to Transplant Australia, currently 3,000 children and adults who need a heart, kidney, lung, liver, pancreas or corneal transplant are on the national official organ and tissue transplant waiting list. Of those waiting for a heart, lung or liver transplant, one in five will die before they receive an organ. The average waiting time for a kidney is four years, with as many as nine people benefiting from the organ and tissue donation of one person. I urge all members of this House to ensure that their licence indicates, in the event of accidental death, that they are willing to donate their organs.
One donation, especially by children, whether or not in the care of the State, is ethically complex. Children are often donors to a sister or a brother, particularly for bone marrow transplantation. In 2005, four children died whilst in the care of the State. Children under State care are very vulnerable and great care must be taken to protect their interests. It is a fundamental value of a free society that everyone, including children, has the right to decide what happens to his or her own body, both in life and in death. Furthermore, in our legal tradition, there is no property in a corpse. This means that relatives cannot claim to own the body of a deceased family member. In law, the only duty relatives have for a body relates to its burial or cremation. The essential import of the amendments in the bill is that children in the care of the State will no longer be treated in a manner that is different from that enjoyed by other children. In conclusion, I quote the great liberal thinker John Stuart Mill:
Over himself, over his own body and mind, the individual is sovereign.
I support this bill and I commend it to the House.
The Hon. HENRY TSANG (Parliamentary Secretary) [8.17 p.m.], in reply: I thank honourable members for their contributions to the debate. In debate on this bill, both here and in the other place, members have spoken about the need for ongoing consultation and proper guidelines to ensure that any views about organ and tissue donation expressed by a child are respected, and that any person he or she would have liked consulted are, in fact, consulted.
I restate what was said in the second reading speech: The Government gives an undertaking that the Children's Guardian will develop guidelines that will be used to assist decision makers to determine who is an interested party and who should be contacted. The Children's Guardian will consult widely in developing these 11208 LEGISLATIVE COUNCIL 12 November 2008 guidelines. I am advised that this consultation will include organisations representing the birth parents of children in State care, foster parents, agencies involved in caring for children in the care of the State and any other stakeholders that the Children's Guardian identifies.
I also remind members that these changes were developed through the work of the task force established by the then Minister for Community Services, Reba Meagher. The task force comprised representatives from a wide variety of groups and bodies with interests or expertise in this area, including the Office of the State Coroner, the New South Wales Children's Guardian, parents and foster parents, and medical and health experts.
I would like to thank members of the task force for reviewing and developing the proposals that are now before the House. I would also like to extend the Government's thanks to the groups and agencies consulted during the work of the task force. They included the Office of the New South Wales Ombudsman, clinicians, birth parents, religious groups, and out-of-home-care providers. In summary, the contribution of these groups— a contribution the Government hopes will continue with the development of the Children's Guardian guidelines—means that the changes now before the House provide for those who care for children and young people, or who are near to them, to be heard when these difficult decisions are made, whilst at the same time ensuring that the views or wishes of young people themselves are heard. I commend the bill to the House.
Question—That this bill be now read a second time—put and resolved in the affirmative.
Motion agreed to.
Bill read a second time.
Leave granted to proceed to the third reading of the bill forthwith.
Third Reading
Motion by the Hon. Henry Tsang agreed to:
That this bill be now read a third time.
Bill read a third time and returned to the Legislative Assembly without amendment.
TABLING OF PAPERS
The Hon. Penny Sharpe tabled the following papers:
(1) Annual Reports (Departments) Act 1985—Reports for the year ended 30 June 2008:
Department of Aboriginal Affairs Department of Ageing, Disability and Home Care
(2) Guardianship Act 1987—Report of the Guardianship Tribunal for the year ended 30 June 2008.
Ordered to be printed on motion by the Hon. Penny Sharpe.
BUSINESS OF THE HOUSE
Postponement of Business
Government Business Orders of the Day Nos 5 to 11 postponed on motion by the Hon. Penny Sharpe.
THOROUGHBRED RACING FURTHER AMENDMENT BILL 2008
Second Reading
The Hon. PENNY SHARPE (Parliamentary Secretary) [8.22 p.m.], on behalf of the Hon. Ian Macdonald: I move:
That this bill be now read a second time.
12 November 2008 LEGISLATIVE COUNCIL 11209
I seek leave to have the second reading speech incorporated in Hansard.
Leave granted.
The main purpose of the Bill before the House is to amend the Thoroughbred Racing Act 1996 to replace the former Appointments Panel provisions with an independent selection panel process for members of Racing NSW.
The other purposes of the Bill are to:
• provide for the procedure to be followed by the independent selection panel; and
• for the Minister to undertake a review of the appointment process for membership of Racing NSW within 3 years of the commencement of the proposed amendments.
Before going into the detail of the proposed amendments, it would be appropriate to clarify some matters that have been the subject of speculation.
The Government thanks the members of the Appointments Panel for agreeing to participate in an honorary capacity on the Panel.
It is acknowledged that they have the interests of the industry at heart, and that the task of selecting an independent Board is not a simple matter in an environment of competing interests.
Nevertheless, the Minister for Gaming and Racing found it necessary to intervene as the process had stalled and only Government was in a position of resolving the matter.
At this time it is unnecessary to engage in a deconstruction of the reasons for intervention other than to say that the probity adviser advised that he was not able to give probity assurance in relation to the process, which had been in train since August 2008.
It is emphasised that there was considerable industry consultation during the development of the legislation, and that there was bipartisan support for the provisions when they were debated on 19 June 2008.
The Government's goal, therefore, is that the process be put back on track, and that a new Board be appointed as soon as possible.
The Government is doing everything that is possible to ensure that the new Racing NSW Board—which will oversee the growth and sustainable economic development of the thoroughbred racing industry—is established in a way which will provide confidence in future leadership and governance.
The proposed amendments are aimed at achieving this goal.
The Appointments Panel provisions are to be repealed, including the setting aside of any of its nominations or purported decisions.
In its place, the proposed amendments will provide for an independent selection panel to be constituted by the Minister.
The independent selection panel is to recommend five persons for appointment as members of Racing NSW. The Panel may also recommend terms of up to 4 years.
The Minister has indicated that he will give effect to those recommendations.
The independent selection panel is to make recommendations for appointments based on merit in accordance with the skills based criteria prescribed by the Act.
A probity adviser will assist the independent selection panel.
The independent selection panel will be announced in due course. The Minister has written to the fifty seven candidates that expressed an interest in the advertisements for membership of Racing NSW. The Minister has done so as a matter of courtesy, and also to advise them of developments and to invite them to resubmit, if they wish, their applications for the revised process.
The Bill also provides that the independent selection panel process will be followed up by a review of the appointments process in the Act within three years of the commencement of the amendments.
The purpose of that review is for Government, in consultation with the industry, to identify the possible options for an appointment process for members of Racing NSW. The review recommendations, as appropriate, could then be reduced to legislative form.
These measures are intended as an interim measure designed to solve the current untenable position.
The Government acknowledges that the racing industry gives a very high value to its independence.
It is clear from recent circumstances, and the response provided by this Bill, that intervention was required in the manner proposed pending the identification of a longer term appointments process.
11210 LEGISLATIVE COUNCIL 12 November 2008
The statutory requirement is for the Minister to undertake a review of appointment processes with extensive industry consultation and within three years of the commencement of these amendments.
This arrangement addresses any concerns of Government interference in a substantive or ongoing way in the affairs of the racing industry.
The Government's only objective is that the NSW thoroughbred racing industry must have the best possible Racing NSW Board to provide future leadership and sustainable economic development.
The Bill also deals with savings and transitional matters, as appropriate to the circumstances.
I commend the Bill to the House.
The Hon. TREVOR KHAN [8.22 p.m.]: I lead for the Opposition in debate on the Thoroughbred Racing Further Amendment Bill 2008 and indicate that the Opposition will not oppose the bill. The objects of the bill are to amend the Thoroughbred Racing Act 1996 and the Thoroughbred Racing Amendment Act 2008 to require the five appointed members of Racing NSW to be persons recommended for appointment by a selection panel established by the Minister, instead of being appointed on the nomination of the appointments panel currently provided for by the earlier amending Act; to require the Minister to review the new appointments process within three years of the date of assent to the proposed Act; to require the selection panel to make its recommendations based on the merits of candidates for appointment and on the basis of skills-based criteria, as currently required for appointments by the appointments panel under the earlier amending Act; to continue the requirement under the earlier amending Act for the conduct of a probity check of candidates for appointment with the assistance of a probity adviser; to repeal the requirement of the earlier amending Act for a recruitment consultant in connection with the appointment of members of Racing NSW; and to dissolve the appointments panel established under the earlier amending Act and set aside any decisions or nominations made by it.
The shadow Minister for Gaming and Racing raised in the other place concerns in the industry over the appointments the Minister will make to the selection panel. The concerns are centred on the lack of a guarantee of independence of appointments, and I share my colleague's views that there is a possibility that political appointments will occur. The bill does not sufficiently specify how appointments are to be made to ensure that they are free from political interference, and this point has been made with considerable force by some media commentators. Additionally, these changes to the legislation will ensure a greater centralisation of power in the hands of the Minister responsible. This in itself is a cause of concern.
Whilst the Opposition makes the above observations, we are mindful of the fact that Racing NSW is still in caretaker mode and, as such, we regard it as a matter of paramount importance that the board be appointed as soon as possible. We believe that the bill provides a swift, albeit far from perfect, mechanism for the appointment of the board and that this outcome is, on the balance of probabilities, beneficial to all racing industry participants. For these reasons the Opposition will not oppose the bill.
The PRESIDENT: I take this opportunity to welcome to my gallery Mr Richard Amery, MP, and his family. I note that his son, Roy, is celebrating his twenty-ninth birthday. On behalf of the House I have to express commiserations to him, because I am sure he has probably had to celebrate most of his birthdays at Parliament House.
Dr JOHN KAYE [8.26 p.m.]: The Greens do not oppose the Thoroughbred Racing Further Amendment Bill 2008, which seeks to clean up a fiasco that has occurred regarding the appointment of the board of Racing NSW. It is clear from media reports—and the Minister for Gaming and Racing acknowledged this in his agreement in principle speech in the other place—that the selection process instituted in the June 2008 amendment to the legislation has descended into farce. The details are difficult to uncover—probably in large measure protected by, on the one hand, the media's fear of being sued and, on the other hand, the Parliament's fear of offending. It is a pity we cannot get the Hon. Trevor Khan's nodding recorded in Hansard. Certain identities within the racing industry have a political sensitivity to offending—
Reverend the Hon. Dr Gordon Moyes: Colourful identities.
Dr JOHN KAYE: Thank you, Reverend Moyes. Certain colourful identities and politically powerful and well-connected identities within the racing industry—
The Hon. Charlie Lynn: Why don't you name them?
Dr JOHN KAYE: We are worried about your breath, Charlie; you should save it. The report in the Sydney Morning Herald talks about infighting and deals with the appointment process that arose from the June 12 November 2008 LEGISLATIVE COUNCIL 11211
2008 legislation, but it was somewhat coy about naming exactly what that process involved. What was clear from the Minister's speech is that we could not even get the probity adviser to sign off on the appointments process. It is therefore open for us to conclude that the process lacked probity, at the very least. It is also clear that one member of the original board resigned almost immediately upon appointment, citing the lack of independence of the board. The reason for my going through this is not to in any way flagellate the Government. Indeed, I acknowledge that it is an extraordinarily difficult task to get a board for an institution like Racing NSW to work. But it is important that we acknowledge the difficulties and the consequences of getting this wrong.
What is now absolutely clear is that the earlier amending Act, the Thoroughbred Racing Amendment Act of June 2008, has failed to produce an outcome that has probity. Clearly, this was a hotly contested issue. Members who have looked carefully at the debate between Alan Jones, the 2GB breakfast announcer, and Ken Callander, the long-time racing commentator for the Daily Telegraph, that was fought quite enthusiastically on both Mr Jones's program and in the Daily Telegraph will have some appreciation of what was at stake here and of the intensity with which people hold views about how the racing industry ought to be operated and who ought to be on the board. It is quite difficult to sort out the debate between Mr Jones and Mr Callander because it runs largely by claim, counterclaim, counter-counterclaim, and so on. To the casual observer it is quite an amusing story, and both Mr Jones and Mr Callander are to be congratulated on their facility with the English language and their ability to produce such a colourful story, but there is an extremely serious side to the racing industry.
At its very best racing is a diversion and entertainment for punters. It provides employment and economic activity for those who work for horse breeders and at the racetrack. It provides a spectacle that is appreciated by many members of our society. Horseracing is an important part of our culture whether you like it or not and, as such, should be appropriately respected. However, there is another side to horseracing. Horseracing at its very worst can be extremely cruel, exploitative and profoundly corrupt. To that extent I draw the attention of the House to the comments of a Daily Telegraph reader commenting on the stoush between Mr Jones and Mr Callander when he said:
As someone who has been a participant and a fan for over 30 years, I have followed this story closely.
The story being the claim and counterclaim between Mr Jones and Mr Callander. The reader went on to describe a little bit more about that story and then he wrote:
Some breeders treating horses like sausages on a production line. Young horses being flogged to death. No decent older horses. No decent stayers. The toll that all of the above has taken on our classic races is becoming weaker each year.
That is a story of massive animal cruelty where young horses are being appallingly treated. Many of the horses are dying young and being broken on the racetrack in an unacceptable way. There are also issues around the diet of horses associated with racing. There are questions as to the presence of stomach ulcers in many horses and the starvation of horses to get them to peak racing condition. Gambling in our society has become a plague with a huge human cost. While many members of our society are capable of the occasional flutter without substantial detriment to themselves, there are too many others whose life, health and wellbeing, and that of their families, have been totally ruined by their gambling addiction—and that addiction is all too often fed by the horseracing industry. The third aspect of horseracing at its worst is the opportunity for corruption. The history of horseracing is of a small number of malfeasants seeking to exploit the industry to make untoward profits by race rigging and various other activities, none of which has any place in modern society.
It is important to get the regulation of the thoroughbred racing industry right. It is essential that it be regulated to the level where it has a positive contribution to our society and not a negative one. The bill is the second attempt at that regulation this year. It is the second attempt at setting up a Racing New South Wales Board. The first attempt failed spectacularly; let us hope that the second attempt works. We note the change in the way the board is to be set up. The Greens consider having a probity adviser involved in the process as a step in the right direction, provided that the probity adviser does not fall to what is called "regulatory capture"; that is, provided there is a separate probity assessor to overview the process after the first probity adviser has given advice. Once a probity adviser has been involved in the selection process that probity adviser is no longer in a position to give an opinion on the probity of the process. I ask the Parliamentary Secretary to comment in reply on the Government's intentions as to the appointment of a second probity assessor to overview the process. The Greens also note the intention of the Government to conduct a three-year review, which is a totally appropriate step forward.
The issues raised by the Opposition are also noted by the Greens, in particular the opportunities for political interference in the appointment of the independent selection panel. It is true that many colourful racing 11212 LEGISLATIVE COUNCIL 12 November 2008 identities have strong political connections. It is also true that over the years—without stating individual cases— racing identities have sought from time to time to influence the political process in respect of racing. It is therefore very important that the process is carried out above the table and transparently.
It is possible that somebody may come up with a better process than the one that has been advanced in the bill. In six months time we may well see this process also fails. However, from my reading and from listening to the Opposition I have found that no-one has come up with a better model. The Greens are not opposing the bill but along with the Opposition, and the racing fraternity, we will be closely watching to see the way in which the Government executes the processes of the bill once it becomes law, to ensure that we do not see a repeat of the same farce that occurred last time round and the same adverse behaviours that we have come to see in the horseracing industry over the years.
Reverend the Hon. FRED NILE [8.36 p.m.]: The Christian Democratic Party supports the Thoroughbred Racing Further Amendment Bill 2008. The bill amends the Thoroughbred Racing Act 1996, which contained an arrangement for the appointment of members of Racing New South Wales that, on the surface, appeared to be a workable system. The Act provided for an appointments panel to recommend five persons and the terms of those persons. The Minister was to give effect to those nominations. The appointments panel was to select board members based on merit in accordance with the skill-based criteria described in the Act. The Act required the engagement of an external recruitment consultant to provide assistance to the appointments panel—Korn/Ferry International was approved by the former Minister.
The existing system to be replaced by this bill was developed with an extensive advertising and recruitment search that ended on 28 July 2008 and in which 60 candidates expressed interest. Probity adviser Rory O'Conner, a partner with Deloitte, then investigated those candidates and reported that as the process had been compromised he could not provide probity. The Government was forced to close that failed approach. This bill repeals the appointments provision and sets aside the decisions of the appeal panel. The bill now provides for a committee of eminent persons. It appears that the Minister will nominate those eminent persons. During the briefings I raised questions as to how those eminent persons will be selected, how independent those persons will be, and how eminent they will be. Sometimes eminent persons are former premiers, prominent politicians or people in that category, but I do not think in this case such persons would be suitable candidates for the membership of this new committee.
There will also be a probity adviser to assist this committee of eminent persons. The Government is being frank in admitting that this new arrangement will also be reviewed within three years of the commencement of the provisions to identify a future and permanent appointment process. We will have to wait to see how the new system works. I hope the racing industry will be happy with the process and cooperate. If it does not it will fail, because support is needed from all the people involved in Racing NSW in the various categories such as trainers, jockeys and others. It is important that this new arrangement, the committee of eminent persons, be completely transparent. It will be up to the Government to make sure that the process is completely open and transparent. The new arrangement and any future arrangement should be free from any corruption and possibility of penetration by organised crime. We know criminals are very anxious to get their hands on the racing industry, for obvious reasons, so there must be strict observance of probity and the probity adviser's advice must be taken seriously to ensure there is no suspicion about this new system.
We all know the influence of gambling in this State and how it has become such a major player in our society. We know the extensive advertising that is going on on radio and television by these new betting companies, even to the extent of regularly giving odds on the main radio stations, which to me is an incentive to people to gamble. There is a dilemma for the Government in having a racing industry while at the same time doing all it can to restrict the influence of gambling, which I certainly would like to see happen. We support the bill.
The Hon. PENNY SHARPE (Parliamentary Secretary) [8.41 p.m.], in reply: I thank honourable members for their contributions to this debate. The proposed amendments to the Thoroughbred Racing Act 1996 replace the appointments panel process with an independent selection panel for the selection of members of Racing NSW. The independent selection panel is made up of three eminent persons to be appointed by the Minister. The responsibility of the independent selection panel is to make recommendations for appointment on merit against the skills-based criteria prescribed in the Act. A probity adviser, as discussed by previous speakers, is to assist the panel with its task.
The independent selection panel is to recommend five people, and the terms of those five people, for appointment as members of Racing NSW. The Minister is to give effect to those recommendations. The 12 November 2008 LEGISLATIVE COUNCIL 11213
principal purpose of the bill is to provide a process that best serves the governance of the racing industry by selecting the best possible people to serve on a best practice board. The desired goal is to attract the best business talent for an independent board model that will represent the overall interests of the racing industry and the public of New South Wales.
The bill also provides for a review to be commenced by the Minister within three years of the commencement of the bill of the appointment processes that might be appropriately considered for the future. The proposed review is a logical follow-up to the Government's reluctant but necessary intervention to establish an independent selection panel process. The proposed review will examine the options for the way forward for an appointment process that will reflect best practice and the desire of the industry for self-management. The review will be undertaken in full consultation with industry stakeholders. I commend the bill to the House.
Question—That this bill be now read a second time—put and resolved in the affirmative.
Motion agreed to.
Bill read a second time.
Leave granted to proceed to the third reading forthwith.
Third Reading
Motion by the Hon. Penny Sharpe agreed to:
That this bill be now read a third time.
Bill read a third time and returned to the Legislative Assembly without amendment.
PUBLIC HEALTH (TOBACCO) BILL 2008
Second Reading
The Hon. JOHN DELLA BOSCA (Minister for Health, Minister for the Central Coast, and Vice-President of the Executive Council) [8.44 p.m.]: I move:
That this bill be now read a second time.
As the speech is lengthy and it has been delivered in the other place I seek leave to have it incorporated in Hansard.
Leave granted.
I am pleased to introduce the Public Health (Tobacco) Bill 2008 to this House today.
The bill has been prepared to enact a range of new provisions relating to tobacco control.
The new provisions have been specifically designed to prevent children's exposure to environmental tobacco smoke and to prevent the uptake of smoking by young people.
The New South Wales Government is committed to reducing smoking in our community. Priority S3 of the State Plan prioritises improving health through reduced obesity, smoking, illicit drug use and risk drinking.
The Government target in terms of smoking is to reduce smoking rates by 1 percent per annum to 2010 and then by half a percent per annum to 2016.
It is important at the outset to explain why the Government has introduced this bill.
The facts about the impact of smoking on our community are clear.
• One in two lifetime smokers will die from their habit. A third of those deaths will occur in middle age.
• It is estimated that more than 6,500 people die of smoking-related illness in New South Wales each year.
• Tobacco is responsible for one in five cancer deaths in New South Wales.
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• New South Wales Health spends more than $250 million a year treating tobacco-related illness. That is equivalent to 3,000 full time nurses.
• The indirect cost to the New South Wales community is estimated at more than $6.6 billion every year.
We have all seen the social marketing campaigns which educate us about tobacco and its effects. We see the warnings on cigarette packs. Tobacco causes cancer, heart disease, gangrene and stroke.
Because the use of tobacco products leads to addiction, disease and premature death, the sale, advertising and display of these products needs to be carefully regulated.
It is also clear that we need to target our efforts in tobacco control to preventing the uptake of smoking by young people.
The overwhelming majority of smokers start smoking before the age of 20. By about age 20, eight out of ten smokers regret that they ever started smoking, having underestimated the addictive nature of nicotine.
Smoking by young people is of great concern because the earlier a person starts smoking, the earlier the risk of smoking-related diseases.
We also know that the age a person starts smoking is an indicator of their success in quitting smoking. The younger a person is when they start to smoke, the less likely is it that they will ever cease.
No parent wants to see their child take up smoking and live a shortened life with a high risk of serious and chronic illness.
And no child should need to seek medical care because of exposure to other people's smoke.
Children's exposure to other people's smoke is involuntary—and they are particularly susceptible to health damage caused by inhaling environmental tobacco smoke.
Children's bronchial tubes are smaller and their immune systems are less developed, which makes them more likely to suffer negative health consequences of environmental tobacco smoke than adults.
In fact, 90% of the costs to the health care system of hospitalisation of people for environmental tobacco smoke relate to children's exposure to other people's smoke.
The provisions of this bill provide a strong and sensible approach.
The bill represents a decisive shift in the way we allow tobacco to be presented in our community, and in particular, to children.
These new laws will make New South Wales the Australian leader in tobacco control measures in the retail setting.
It is a distinction which we will be proud to hold.
The bill provides for tough and responsible new measures.
These are:
• Prohibiting the display of tobacco products, non-tobacco products and smoking accessories in shops;
• Requiring tobacco products and non-tobacco smoking products to be sold from only one point of sale on premises;
• Limiting the number of tobacco vending machines permitted on premises to one vending machine and making vending machines subject to display bans;
• Making it an offence to smoke in a motor vehicle while a child under the age of 16 years is present. The changes will also make the driver liable if a passenger smokes in those circumstances;
• Prohibiting a person from engaging in tobacco retailing for specified periods where they have been guilty of repeat offences;
• Requiring retailers to notify the Director-General of Health before they commence selling tobacco products; and
• Substantially increased penalties for most existing tobacco offences.
The Public Health (Tobacco) Bill 2008 also incorporates and enhances the provisions of Part 6 of the Public Health Act 1991 which relate to the sale, advertising and packaging of tobacco products and non-smoking tobacco products. The changes mean key tobacco control provisions will now be contained in the one piece of legislation. It also means that legislation will provide for even tougher penalties for those people who do the wrong thing by our community.
There is strong community support for these proposals. A comprehensive community consultation process has led to the development of this bill.
In April 2008 the New South Wales Government released Protecting Children from Tobacco—The Next Steps to Reduce Tobacco-Related Harm.
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The paper presented a range of reform options, and the community was invited to comment on the proposals.
Almost 12,000 submissions were received from across the State, from retailers, manufacturers, public health experts and advocates, small businesses, parents and community members.
The submissions made by children and young people were particularly important, referring to the smoking related illnesses and even deaths of their parents, and how children feel when they are in a car where an adult is smoking.
The former Minister Assisting the Minister for Health (Cancer), Verity Firth MP, hosted a public forum at Parliament House and more than 60 people attended to give their views.
Special consultations were also held with young people.
After considering the almost 12,000 submissions made the New South Wales Government has now developed a legislative package which is strong, and sensible.
I will now turn to each of the important new proposals in the bill.
Part 2 Division 2 of the bill expands the range of existing offences relating to the display of tobacco products, non-tobacco smoking products and tobacco accessories.
There has for many years been strict regulation of cigarette and tobacco product advertising and promotion. As a result the visual presence of the cigarette product in shops has become the major focus of tobacco company marketing activities.
When children visit a retailer selling tobacco products, the tobacco product display is a highly visible feature of the store. The display is generally at the service area, and hundreds of tobacco product packets may be displayed.
The display of these products says to children that tobacco consumption is an ordinary part of our community life. Displays normalise tobacco products for children.
In order to counteract this marketing approach clause 9 of the bill makes it an offence for the occupier of premises on which tobacco products or non-tobacco smoking products are sold, to fail to ensure that members of the public cannot see any of those products, or smoking accessories, from inside or outside the premises.
The offence is punishable with a fine of up to $11,000 for individuals and up to $55,000 for corporations.
This kind of display ban has been effectively implemented in other jurisdictions including Thailand, Iceland and Canada.
The Government has talked with many retailers about this provision. It is an important one for advancing public health, and will make New South Wales a leader in tobacco control activities at the point of retail sale.
The Government is also conscious that retailers will need time to plan for these changes and has agreed to introduce a phased approach to implementation.
Large retailers—those with more than 50 employees—will have six months from the commencement of the provision to comply.
Smaller retailers—those with less than 50 employees will have 12 months from the commencement of the provision to comply.
Specialist tobacconists will have a further three years to comply but in that period will be subject to more stringent display restrictions. The Government has agreed to these concessions for specialist tobacconists as to not do so would be likely to drive many of them out of business. While the Government is prepared to offer this short-term concession to allow specialist tobacconists to modify their businesses I place them on notice that after twelve months they will be subject to tighter display controls. Those controls are that their product displays may include no more than one packet facing per product line with a total tobacco display area of not more than three square metres. The display of cigarette cartons will be prohibited.
After that three-year period, in other words four years after commencement of the relevant provisions in the bill, specialist tobacconists will need to comply with the total ban on tobacco product displays.
Only those persons approved by the Director-General of Health as specialist tobacconists will have this concession. In order to be so approved a retailer must be in existence on the day on which this bill was introduced to Parliament and generate at least 80 percent of their turnover from tobacco products, non-tobacco smoking products and smoking accessories.
New operators, whether they be specialist tobacconists or not, will need to comply immediately with the prohibition on display.
This type of display ban has substantial public support, and is roundly supported by public health experts.
Eighty-nine percent of people surveyed in the New South Wales Cancer Institute's 2007 Smoking and Health Survey supported regulation to ensure cigarettes in shops are stored out of sight of children.
Many thousands of submissions were received in support of this proposal in the recent community consultation process.
Another important aspect of the bill is clause 10 of the bill, which makes it an offence to sell tobacco products from more than one point of sale in each retail premises.
The maximum penalty for an offence against the single point of sale will be $11,000 for individuals or $55,000 in any other case.
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Restricting the number of points at which tobacco products can be purchased to one per premises will reduce scope for children to purchase those products in high turnover locations, such as supermarkets, by ensuring that highly trained and experienced staff can be placed on the cash register that is used for tobacco sales.
It will also reduce the exposure of recent quitters to inducements and opportunities to purchase tobacco products at a time when they will be particularly vulnerable.
Removing tobacco products to a single point of sale will further de-normalise the purchase and consumption of tobacco products and contribute to reduced use in the community.
Further restrictions on tobacco vending machines are dealt with in Part 2 Division 3 of the bill. Clause 12 of the bill provides that tobacco vending machines are only allowed in certain premises in New South Wales, that is a bar area of a hotel or club or casino, or a gaming machine area. Such a venue may only have a single tobacco vending machine.
The bill removes the provision that allows vending machines to be located in staff amenities areas, so that no staff amenity area can have tobacco products for sale to staff after six months from the commencement of the provision.
To provide further protection from the sale of tobacco products to minors through vending machines, the operation of tobacco vending machines must be controlled by staff. It will be a serious offence for a person to operate a vending machine for a child, or provide a child with the means to operate it. The maximum fine for such an offence will be $11,000 for an individual.
Tobacco vending machines are also subject to the display ban which is required of other sales channels, so that tobacco products sold in the machine must not be in view of members of the public.
To ensure maximum accountability for tobacco product vending machines, under the bill an occupier of a premises in which a vending machine is located may also be held accountable for any contraventions of the provisions taking place in his or her premises.
For some time, people have been able to accrue reward points in shopper loyalty programs for tobacco product purchases, and to claim tobacco products with their reward points.
Clause 18 of the bill prohibits shopper loyalty programs which allow people to accrue points on the basis of sales of tobacco products or non-tobacco smoking products, and to receive gifts of tobacco products or non-tobacco smoking products through that program.
Clause 30 of the bill provides that a person who smokes in a motor vehicle in which there is a person under the age of 16 years commits an offence, and the driver of the motor vehicle commits the same offence. The maximum penalty for this offence is $1,100.
Police officers will be empowered to enforce this provision and to deal with any offence by way of a penalty notice.
In the community consultation process, more than 80 per cent of respondents supported prohibiting smoking in a car where a child is present.
Part 5 of the bill creates a new regime that requires persons to notify the Department of Health before commencing the retailing of tobacco products. Clause 33 of the bill provides that a person who has committed two or more offences against the same section in a three-year period is automatically prohibited from selling tobacco products for three months. If a third offence is committed within the three-year period a further 12-month ban is imposed.
The Government recognises that some people may regard this as severe. I make no apologies for that. Let us remember that tobacco kills 50 per cent of its long term users, causes heart disease, cancer, gangrene, strokes and myriad other health problems. There is no such thing as a safe cigarette.
In order that the notification and prohibition systems are effective significant maximum penalties will apply for noncompliance. A maximum penalty of $11,000 will apply to any retailer who does not comply with notification requirements before selling tobacco, while those retailers who persist in selling tobacco despite being banned will face maximum penalties of up to $110,000 for individuals and $220,000 for corporations.
As I have already noted, the bill also establishes substantially higher penalties for offences. In particular advertising offences by corporations will now attract maximum penalties of $660,000 for a first offence and $1.1 million for subsequent offences. Maximum penalties for a range of other offences have also been substantially increased, particularly for corporations, with most offences now attracting maximum fines of $55,000. This is a measure of the significance that the Government places on protecting young people from tobacco.
In this respect I also draw members' attention to clause 21 of the bill which, amongst other things, deals with the sale of any confectionary or toy that resembles or is packaged to resemble a tobacco product. The maximum penalty for selling such a product has been substantially increased. The current provision in the Public Health Act sets a maximum penalty of $2,750 while clause 21 of the bill sets maximum penalties of up to $110,000 for individuals and $220,000 for corporations.
The sale of confectionary or toys that resemble tobacco products is a particularly despicable ploy by the tobacco industry to hook children and the Government will not stand by and allow it. I put those who deal in these products on notice that their activities will be the subject of additional scrutiny from this point on.
The New South Wales Government is leading the way in Australia and around the world with this package of tobacco control measures.
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The Government has been congratulated for announcing these reforms, including by the Cancer Council, Heart Foundation, Parents and Citizens Federation, and others.
We are doing this because smoking is the single greatest cause of premature death in New South Wales. It is also the leading cause of preventable disease.
Smoking increases the risk of many cancers and is a major cause of heart disease.
More than 55,000 hospital visits each year are attributable to tobacco smoking.
We need to work together with industry, retail and parents to help the next generation avoid a lifetime habit which causes illness and premature death.
While we have made significant progress over the last decade, with the percentage of people who smoke daily or occasionally dropping from 24 percent to 18.6 percent, there is no room for complacency when we consider the health of children and young people.
In closing I wish to acknowledge that a number of health advocacy groups including the Cancer Council and the Heart Foundation have expressed concern about clause 20(5) of the bill and the perception that this will allow tobacco corporations to sponsor racing events in New South Wales. I place on the record that the Government is opposed to any such sponsorship and that the bill does not allow for it. However, the Government does acknowledge the significant concern and confusion that has been caused and I will move to amend the bill by deleting clause 20(5) when the bill is considered in Committee.
I commend this bill, which represents a strong and workable addition to tobacco control measures in New South Wales, to the House.
The Hon. JENNIFER GARDINER [8.55 p.m.]: I have mentioned before in debates on tobacco bills in this place that in 2006 the New South Wales Government indicated it would consider measures such as banning smoking in cars to protect children from tobacco-related harm. Following several reannouncements in the following two years the Government in April 2008 released a discussion paper entitled "Protecting Children from Tobacco—The Next Steps to Reduce Tobacco-Related Harm". The paper presented a range of options to reduce young people's exposure to and harm from tobacco. There were almost 12,000 submissions from retailers, manufacturers, public health experts and advocates, small businesses, parents and community members, so obviously it is a subject that generates a great deal of discussion in the community. In May this year the Government also sponsored a public forum to discuss the measures that might flow from the debate.
We all know that smoking causes harm to people's health and the bill is designed to prevent the exposure of children to environmental tobacco smoke and to prevent the uptake of smoking by young people. Legislation that has that effect will improve the health of the community and reduce the cost of treating tobacco-related illness in New South Wales, which currently costs more than $250 million every year. Requiring tobacco retailers to notify the Department of Health before they commence selling tobacco products will allow the Government to more effectively monitor the sale of products and enforce legislation.
The bill seeks to introduce a number of provisions to prevent the exposure of children to environmental tobacco smoke and also to prevent the uptake of smoking by young people. It will prohibit the display of tobacco products, non-tobacco smoking products and smoking accessories in shops. It will also require tobacco products and non-tobacco smoking products to be sold from only one point of sale on premises. It limits the number of tobacco vending machines permitted on premises to one and removes the provision that currently allows vending machines to be situated in staff amenities areas. The bill will make it an offence to smoke in a motor vehicle while a child under the age of 16 years is present and will make the driver liable if a passenger smokes in those circumstances. It is quite a dramatic departure from existing law in that regard. It requires tobacco retailers to notify the Department of Health before they commence selling tobacco products and allows for the automatic prohibition from continuing to engage in tobacco retailing for specified periods for repeat offences against the proposed Act or the regulations. The bill will also increase penalties for most existing tobacco offences.
It is true that a variety of businesses involved in selling a product that is legal—tobacco—have expressed a number of concerns about the bill's provisions and their possible impact on them. Their concerns were outlined in the other place by my colleague the member for Ballina and shadow Minister for Small Business, Mr Don Page. Particular problems will be generated for businesses due to the bill requiring the occupier of premises on which tobacco products or non-tobacco smoking products and accessories are sold to ensure they are sold from only one point of sale.
Many tobacconists and, indeed, other retailers have more than one cash register, and they may be close to each other. The Opposition has received a number of representations from businesses large and small about 11218 LEGISLATIVE COUNCIL 12 November 2008 the implementation timetable of various parts of the bill and the display provisions in the bill. The sacked Minister for Small Business, and Minister Assisting the Minister for Health (Cancer), Mr Tony Stewart, said that the Government would do everything possible to enable a practical application of the bill. He said that in his reply to the agreement in principle speech after the representations from businesses large and small were brought to the attention of the House. In relation to those representations, the Opposition calls upon the new Minister for Small Business, and Minister Assisting the Minister for Health (Cancer), Jodi McKay, to ensure that the bill is implemented in that way. I note that this bill has not even passed through Parliament but in the time that it has been on the list of Government bills to be debated this session we have had three Ministers Assisting the Minister for Health (Cancer)—one bill and three Ministers.
The Hon. Marie Ficarra: A dangerous portfolio.
The Hon. JENNIFER GARDINER: It seems to be a poison chalice; a smoking gun. Minister Firth was in the portfolio very briefly—about as long as it takes to smoke a cigarette. Mr Stewart was there for 5½ minutes, and now we have Jodi McKay, who, unfortunately, today made reference to the Titanic. I understand that it must be very difficult to be on Mr Rees's ship of State—
The Hon. Don Harwin: Nearer, my God, to thee!
The Hon. JENNIFER GARDINER: Yes, singing a hymn as it goes down. I understand it must be very difficult, and Ms McKay must be wondering how long she will be in the portfolio. We are debating a very important piece of public policy. The thrust of the bill is to prevent the exposure of children to environmental tobacco smoke and to prevent the uptake of smoking by young people. They are two laudable objectives, which the Opposition supports. We support measures aimed at reducing the number of people in New South Wales who smoke and who are exposed to the health dangers of smoking. The Opposition does not oppose the bill and supports its objectives.
Reverend the Hon. FRED NILE [8.52 p.m.]: On behalf of the Christian Democratic Party I am pleased to support these tobacco-related amendments to the Public Health Act. The purpose of the Public Health (Tobacco) Bill 2008 is to reduce children's exposure and access to cigarettes and tobacco products. The bill will ban smoking in cars in which a child is present, ban tobacco products from being displayed in retail outlets, introduce a licensing scheme for tobacco retailers, limit retail outlets to only one point of sale for tobacco products, and remove tobacco products from shopper loyalty programs. As I said, I am very pleased to support this bill, as it relates to two of my private members' bills—the Smoke-free Environment Amendment (Motor Vehicle Prohibition) Bill 2008, which has been introduced, and the Public Health Amendment (Display of Tobacco Products) Bill 2007, of which I gave notice some years ago. The smoke-free environment bill prohibits smoking in cars with or without child passengers. I believe it would be very difficult for police to ascertain whether a child was a passenger in a car, particularly a baby strapped into a baby capsule on the back seat. In such cases a police officer would not have any idea that a baby or small child was a passenger. The law would be easier to enforce and it would assist police in carrying out their duties if there were a total ban on smoking in cars. Nevertheless, I am pleased that we have made progress and I am optimistic that in due course there will be a total ban on smoking in cars.
My other private member's bill stops the display of tobacco products. I am always angry when I see in supermarkets and retail outlets attractive displays of tobacco products right at the cashier counter. When customers pay for their goods, they face an attractive display of cigarette packets, which I understand is supplied by the tobacco industry. Retail outlets will now be required to remove those display cabinets. It must be difficult for people who are trying to give up smoking but who are addicted to nicotine. They go into a retail outlet, not thinking of cigarettes, but on seeing the cigarette packets say quickly, "I'll take that one", and they are hooked once again. I believe this provision will help those who are seeking to give up smoking. Members would know of the health reports on the impact of the harmful activity of smoking. More than 55,000 hospital visits each year are attributable to tobacco smoking. One in two lifetime smokers will die from the habit and one-third of those deaths will occur in middle age. Smoking is the greatest cause of premature death in New South Wales.
It is estimated that each year in New South Wales smoking causes more than 6,500 deaths. Research clearly shows that the overwhelming majority of smokers start smoking before the age of 20. That is why so much of the tobacco industry's advertising is targeted at people under the age of 20, or teenagers. Eight out of 10 smokers regret they ever started, having underestimated the addictive nature of nicotine. Eight out of 10 members of the public who have been surveyed believe that cigarettes should not be displayed on shop counters. So this measure has community support, and the Government should be confident of support for this 12 November 2008 LEGISLATIVE COUNCIL 11219
legislation. New South Wales has led the way with this type of legislation. The first bill I introduced to ban tobacco advertising in the 1990s was the first bill of its kind passed in Australia, and later my bill to prohibit smoking in public places was also adopted by the Government. New South Wales has shown leadership and has been at the forefront of tobacco control. It is maintaining that role with this legislation. I congratulate the Government on bringing this bill before the House. I am sure that it will prove successful in reducing even further the number of people who smoke in our society, and therefore reduce the impact on our hospitals. It will increase the availability of hospital beds and save lives.
I believe that smoking in cars is a factor in car accidents. During debate on my bill I referred to evidence from a number of university research programs that showed a direct link between motorcar accidents and drivers smoking. Smoking causes similar problems to the problems that are caused by people using a mobile phone while driving. Trying to light up a cigarette, smoking it, dealing with the ash and so on are some of the factors that lead to many car accidents. This measure will reduce car accidents and protect the health of those children who might be travelling in a car in which people are smoking. We all know the dangers of smoking to a child whose lungs are just developing. Smoke has a greater impact on the lungs of a child than it does on an adult, but it also badly impacts on the lungs of an adult. I commend the bill to the House and I give it my full support.
Reverend the Hon. Dr GORDON MOYES [8.59 p.m.]: As a Christian Democrat I commend the Government for introducing the Public Health (Tobacco) Bill 2008 and alert it to a number of issues of which it does not seem to be aware. The object of this bill is to comprehensively regulate the sale, supply, advertising and promotion of tobacco products within New South Wales. The bill will achieve this aim by the amendment of provisions in part 6 of the Public Health Act 1991 relating to the sale, advertising and packaging of tobacco-related products and non-tobacco smoking products. In particular, the bill makes provision for the following matters:
(a) prohibiting the display of tobacco products, non-tobacco smoking products and smoking accessories in shops,
(b) requiring tobacco products and non-tobacco smoking products to be sold from only one point of sale on the premises,
(c) limiting the number of tobacco vending machines permitted on premises to one vending machine and removing the provision that currently allows vending machines to be situated in staff amenities areas,
(d) making it an offence to smoke in a motor vehicle while a child under the age of 16 years is present and making the driver liable if a passenger smokes in those circumstances,
(e) establishing a scheme whereby a person who engages in tobacco retailing is automatically prohibited from continuing to engage in tobacco retailing for specific periods for repeat offences against the proposed Act or the regulations,
(f) requiring notification to be given to the Director-General of the Department of Health before a person commences to engage in tobacco retailing,
(g) increasing penalties for most existing tobacco offences.
I wish to refer briefly to the global burden of tobacco use. According to the World Health Organisation, there are more than one billion smokers in the world and the use of tobacco products is increasing except in high-income countries. Smoking rates have been dropping in the developed world and increasing dramatically elsewhere. More than 80 per cent of the world's smokers now live in low-income developing countries. World Health Organisation statistics reveal that tobacco use kills 5.4 million people a year—an average of one person every six seconds—and accounts for one in every 10 adult deaths worldwide.
Tobacco kills up to half of all users and is a risk factor for six of the eight leading causes of death in the world. In the twentieth century 100 million deaths were caused by tobacco, more than the 72 million deaths caused by World War II. The use of this still legal product, tobacco, is deadlier to the human race than the most deadly war on record. If tobacco use continues unchecked, tobacco-related deaths will increase to more than eight million a year by 2030. It is well known that most people smart smoking as children well before the age of 18. The World Health Organization predicts that if today's pattern continues, a lifetime of tobacco use will result in the eventual deaths of 250 million of today's children and young people. If the current trend continues there will be up to one billion deaths in the twenty-first century from tobacco.
I acknowledge that Dr Arthur Chesterfield-Evans, a former Legislative Council member who spent much time supporting Action on Smoking and Health [ASH], Billboards Utilising Graffiti Against Unhealthy Promotions [BUGA UP] and other campaigns, constantly raised this issue. He would be pleased that the Government is introducing these measures. The smoking of tobacco is our State's number one preventable 11220 LEGISLATIVE COUNCIL 12 November 2008 health problem. Every year smoking kills about 19,000 Australians of all ages, while disabling many more and costing the nation more than $31 billion. As leaders, we must summon the political will and moral fortitude to do something about this colossal social cost to our people.
Every cigarette contains more than 4,000 chemicals that pose a risk to smokers and to those who breathe in the second-hand smoke, including alkaline, ammonia, arsenic, carbon monoxide, hydrogen cyanide, formaldehyde and nicotine. There are also 200 known poisons, at least 69 known or suspected carcinogens in every cigarette, and over 50 diseases that can be caused by smoking such as coronary heart disease, atherosclerosis, emphysema and stroke. People can develop many cancers as a result of smoking, including lung, head and neck, laryngeal, pancreatic, bladder, stomach, kidney and cervical cancer.
Smoking can negatively affect every organ and tissue in the body. Smoking also contributes to the development of peptic ulcers, impaired vision from cataracts, gum disease, loss of bone mass, bronchitis and aneurysms. Smoke also contains several products that bind to the DNA and can cause genetic mutations. Inhalation of tobacco smoke causes several immediate responses within the heart and blood vessels. Within one minute the heart rate begins to rise sharply and the carbon monoxide exerts its deadly effect by reducing the blood's ability to carry oxygen throughout the circulatory system.
Smoking increases mortality rates by 40 per cent in those who smoke fewer than 10 cigarettes a day, by 70 per cent in those who smoke 10 to 19 cigarettes a day, by 90 per cent in those who smoke 20 to 39 cigarettes a day, and by 120 per cent in those who smoke two packs or more a day. Many members might not realise that the battle against smoking that has been outlined tonight has a long history. In fact, governments began to battle against smoking tobacco over 400 years ago. One of the first to be concerned about the negative effect of smoking was the same King James I who gave his name to the authorised Bible. In Great Britain he wrote a treatise roughly at about the same time as the King James version was published in 1604, entitled "A Counterblast to tobacco" in which he described smoking as:
A custom loathsome to the eye, hateful to the Nose, harmful to the brain, dangerous to the Lungs, and in black stinking fume thereof, nearest resembling the horrible Stygian smoke of the pit that is bottomless.
That is a good description. For those members who are not Anglican, in the early 1600s Pope Urban VIII threatened excommunication for anybody caught smoking in a holy place. Half a world away in 1612—and this is especially for the Hon. Henry Tsang—a Chinese emperor issued an edict forbidding the planting or use of tobacco, and it was later made a crime punishable by execution by the removal of the head, which certainly put an end to smoking! In 1617 the Mongolian emperor followed suit and decreed the death penalty for those using tobacco. In 1634 in Russia Tsar Alexis created a range of severe penalties for smoking. If someone was caught there was a whipping, a slit nose, transportation to Siberia and, for the second offence, execution. History recalls that the Persian Shah Sefi punished tobacco merchants by pouring hot molten lead down their throats.
The Hon. Lynda Voltz: I hope you are not trying to put that in the bill.
Reverend the Hon. Dr GORDON MOYES: That ended cancer of the throat from smoking. However, none of these draconian measures succeeded in suppressing the marketing and use of tobacco in the populations to which it was introduced. The uptake of smoking in our era has been influenced by decades of social modelling and the imagery created by tobacco company advertising and Hollywood movie product placement. Uptake is also associated with social disadvantage and alienation from family, school and community. Adequately funded government programs that focus on prevention of educational failure and family breakdown and that effectively promote mental health and social integration would help prevent children being vulnerable in the first place.
An interesting risk factor for the uptake of smoking has just been discovered in a recent study slated to be reported in the January 2009 Journal of Drug and Alcohol Dependence—we are a little ahead of ourselves but it is slated to be reported in that journal—which will identify this major risk factor for adolescent smoking and chance of addiction even before lighting up a cigarette; that is, the tendency to act impulsively that it is now thought they inherit from their mothers who smoke.
In contrast, the children of non-smoking mothers demonstrated much less impulsiveness than the children of smoking mothers. Impulsiveness means that short-term rewards are chosen without inhibition or careful thought. The practical application of this finding will be of use for a review of prevention programs that stress long-term negative effects because such admonitions and warnings are meaningless to young people who 12 November 2008 LEGISLATIVE COUNCIL 11221
tend to think not of the long term, but only of short-term and immediate rewards or gratification. It is important to note that it is not only children who are at high risk from tobacco. This issue has been a concern of mine for some time. A member of the group Physicians for a Smoke Free Canada writes in the journal Tobacco Control:
Mentally ill people are disproportionately affected by tobacco with an estimated 50% of them smoking, and 90% of schizophrenics smoking. The high cost of smoking often means for this group the foregoing of regular meals, meeting family needs, or obtaining suitable housing - all with a resulting increase in social marginalisation. The mentally ill smoke due to anxiety, feelings of vulnerability, and in the effort to self medicate for depression and to assuage the unpleasant side-effects of psychiatric medication.
In Australia the numbers are similar. A University of Melbourne School of Population Health study published in the Australian and New Zealand Journal of Public Health reported that smokers with mental illness consume 50 per cent more cigarettes a day than the general population, with some smoking up to 80 cigarettes per day. Combined with drug therapies that often make them overweight, they are at greater risk of diabetes, heart attacks and strokes when they also smoke. The study found that the biggest cause of death among people with a mental illness is not suicide but cardiovascular disease brought on by heavy smoking.
Just as an aside—and I hope the Minister for Health will listen to this—I know for a fact that on supposedly "smoke-free" hospital campuses throughout New South Wales the use of tobacco is still permitted in psychiatric wards because the patients are addicted to it and would rise up against the staff if it was denied them. There are no cessation programs designed for the very specialised needs of this severely ill and vulnerable psychiatric group. There is an obvious and critical need for specialist services to help people with a mental illness stop smoking. However, there are other groups vulnerable to high rates of smoking. According to the World Health Organization, one-third of the world's male population already smokes tobacco. Perhaps that is why the tobacco industry has its sights set on women.
In October this year—October being the month in which breast cancer awareness is traditionally highlighted—the Philip Morris tobacco company announced a new campaign to market slim pink cigarettes to girls and women. The chosen name of the cigarettes, Super Slims, implies a link between cigarettes and weight loss for girls and women, who are already known to be very concerned about body image. Pink has long been identified as the colour of breast cancer awareness—pink ribbons and merchandise are sold to promote research into its cause and cure. This marketing of pink cigarettes by the Philip Morris company here in Australia is the height of cynicism on the part of the tobacco industry and reflects the same attitude that was behind the "You've come a long way, baby" campaign of an earlier decade that suggested smoking implied social emancipation for women. The tobacco industry has a long, appalling history of successfully targeting women and girls, and the pink Super Slims are an absolute disgrace in our community.
Also at particular risk of high smoking rates are people in correctional facilities, public housing tenants, indigenous Australians, the unemployed and low-income people in small rural towns. A study conducted by Macquarie University several years ago found that the State's poorest families could save almost $60 a week if they quit smoking. The poorest one-fifth of New South Wales households spends 18 per cent of their income on cigarettes and relatively less on clothes, shoes, education, housing and health. Involuntary smoking occurs when a person inhales the exhaled and ambient smoke from another person's cigarette. Passive smoking involves inhaling the carcinogens as well as the other toxic components that are present in second-hand tobacco smoke.
Nearly half of all the world's babies and children are regular involuntary smokers of second-hand smoke. Second-hand smoke is known to harm children and infants through acute lower respiratory tract illness, asthma, middle ear infection, lower birth weights and sudden infant death syndrome [SIDS]. Infants who die from sudden infant death syndrome tend to have a higher concentration of nicotine and other biomarkers of smoke exposure in their lungs than babies who die from other causes. There is no risk-free level of second-hand smoke exposure, with even brief exposure adversely affecting the cardiovascular and respiratory systems, especially of babies and children and people who already have heart disease or suffer from a respiratory condition.
In February 2005 the World Health Organization Framework Convention on Tobacco Control took effect as the world's first public health treaty. Signatories, including Australia, are committed to enacting legislation to eliminate second-hand smoke in indoor workplaces, on public transport and in enclosed public places. The bill before us tonight contributes towards many of these same goals, and I congratulate the Government on introducing it. According to national and international surveys reported by the Centers for Disease Control and Prevention in the United States of America, community support from both smokers and non-smokers has been increasing in recent years. For instance, recent research carried out in California shows that 51 per cent of bar owners and staff now prefer working in smoke-free environments compared with only 11222 LEGISLATIVE COUNCIL 12 November 2008
17 per cent when the law first took effect. In New York the proportion of adults surveyed who supported the smoke-free legislation increased from only 64 per cent before the law took effect to over 80 per cent after it had been in effect for two years.
This same level of community support is evident in New South Wales, with recent community surveys confirming that the public not only accepts but expects the Government to take action to protect them from tobacco. I congratulate the Government on its recent legislation concerning pubs, clubs, hotels and the like. However, the proposed bill could have been better. It could have outlawed the growing, manufacturing, marketing and use of tobacco products completely. More realistically, this legislation could have been better by having stronger penalties for breaches, by banning vending machines completely and by honouring the promise from the previous Premier—remember him—that tobacconists would have to make all tobacco products invisible from outside their shops within 12 months.
The Cancer Council New South Wales believes that the most important aspect of the proposed legislation is the banning of point-of-sale displays and the introduction of retailer licensing. The area in the proposed legislation of most concern to me—and I would be pleased if the Minister for Health would comment on this—is clause 20 (5), in part 3, which prohibits a person from promoting or publicising tobacco products or related information under a sponsorship arrangement. The proposed legislation still includes an old exemption, which has been carried over from the previous, now obsolete, Public Health Act. This is an exemption from the prohibition on tobacco sponsorship for all forms of racing.
The problem seems to lie in the definition of "sporting activities", which excludes horseracing, harness racing, greyhound racing, motor car or motorcycle racing, or any other kind of racing. Perhaps the term needs to be expanded to "sporting and racing activities" in order to accommodate all forms of animal and vehicle racing. After all, the intention is to prevent the sponsorship and promotion of tobacco products at public events. When this error was pointed out the Government agreed that it would move its own amendment to remove the exemption, but it has not done so, and the legislation was passed unchanged in the other place. I call on the Government not to fail to make that amendment, as an exemption for all forms of racing is not acceptable. Very strict tobacco control would be one of the best investments that any government could make to enhance the health and wellbeing of all its citizens.
More than 40 organisations in New South Wales across the disciplines of health promotion, clinical medicine, child welfare, education, religion, social justice, community and research that are concerned with how best to help protect children agree on the tobacco issue. All enthusiastically support this bill, as do I. I thank my staff, particularly Leslie McCawley, who is an expert in cancer research and has a masters degree in that field, for her help on this particular topic. I commend this important bill to the House.
Ms LEE RHIANNON [9.20 p.m.]: The reforms in the Public Health (Tobacco) Bill 2008 have been a long time coming. They result from an ongoing campaign waged over many years by anti-tobacco advocates. I particularly congratulate Action on Smoking and Health [ASH], the Cancer Council and the Council of Social Service of New South Wales [NCOSS] for their tireless advocacy in pushing the Government to better regulate tobacco in New South Wales.
The Hon. Christine Robertson: No-one has mentioned ACE.
Ms LEE RHIANNON: Arthur Chesterfield-Evans has been mentioned, and I will certainly mention him later. The Greens are pleased to support the Public Health (Tobacco) Bill 2008. Though we regret that the bill does not go further, it certainly is a good move. We have raised very strong concerns about clause 20 (5), which exempts racing events from the ban on tobacco sponsorship. I foreshadow that the Greens will move an amendment in Committee to delete this clause. For too long, tobacco regulation has dragged behind community expectations. Tobacco consumption is one of the primary culprits of avoidable deaths in New South Wales. The latest statistics available from the Cancer Council show that one in 26 males and one in 41 females in New South Wales will develop lung cancer by the age of 75. Lung cancer is the most common cause of cancer death in males and ranks equally with breast cancer as the most common cause of cancer death in females. Few people in New South Wales have not been touched in some way, through a friend or family member, by this devastating disease. Professor Simon Chapman from the School of Public Health at the University of Sydney wrote in the journal Tobacco Control:
Tobacco remains the only commercial product or service intended to be taken into the body which is not commonly subject to safety regulations … The paradox with tobacco is that it is so dangerous, that no routine regulatory approach can make sense of it. If it was a food or drug, it would not get to first base in being allowed on to the market.
12 November 2008 LEGISLATIVE COUNCIL 11223
The Greens have long campaigned on this issue. My colleague Ian Cohen has been a vocal advocate and often has drawn attention to the efforts of BUGA UP—Billboards Utilising Graffiti Against Unhealthy Promotions. This group broke new ground in how to promote protests around this country. BUGA UP has played an important historical role in the campaign, reclaiming public space and alerting the public and the authorities to the dangers of tobacco advertising. I pay credit also to Arthur Chesterfield-Evans, a former member of this House. I must admit that when we have these debates I think of him standing here speaking with great authority on this important issue.
The Greens have consistently supported every legislative step to tighten tobacco regulation, but the path has been long, the steps have been incremental, and huge gaps and contradictions remain. Tobacco advertising is supposedly banned, yet the current Government has allowed cigarettes to be displayed in stores at eye level. This clearly is a form of advertising. Indoor smoking is supposedly banned, yet the definition of "indoor" is ambiguous, to say the least. Children have continued to be exposed to passive smoke in cars. Tobacco sales are supposedly restricted to people over 18 years, yet no restriction has been placed on tobacco vending machines. The bill closes some of these regulation gaps.
The object of the bill is to reduce the incidence of smoking in New South Wales, particularly by young people. The large majority of new smokers are children and young people. Clearly, this is the group to target. Data from the New South Wales School Student Health Behavioural Survey in 2005 shows that about 33 per cent of secondary school students reported having smoked, and 21 per cent reported smoking in the 12 months prior to the survey. The Greens support measures in this bill to close off avenues to promote tobacco to people under 18 years. In particular, the Greens support moves to introduce licensing of retailers. However, we believe this licensing could have been more comprehensive. The Protecting Children from Tobacco Coalition has argued that licensing could have been comprehensive rather than negative, and that penalties could have been stronger for underage sale breaches.
The Greens strongly support moves in this bill to ban point-of-sale display of tobacco products and smoking accessories. Tobacco companies have used sophisticated manoeuvres to get around advertising bans. Stacking tobacco products in shops essentially is advertising cigarettes. It is in-store merchandising, which is a recognised marketing method for promoting grocery products. This method of merchandising normalises and promotes smoking. The Cancer Council argues that banning point-of-sale displays hopefully will reduce impulse and relapse purchases of tobacco, as well as send an important message that tobacco products are harmful. I am sure members appreciate that removing tobacco displays will be a significant way to reduce what effectively is the promotion of a dangerous product. We note that clause 12 will limit tobacco vending machines to bar areas and gaming machine areas of hotels, clubs and casinos. The Greens are disappointed that this bill did not ban tobacco vending machines. That is what we should be debating tonight. Having vending machines at bars, clubs and casinos promotes easy, impulse purchases, tempts ex-smokers to relapse after having a few drinks, encourages the purchase of cigarettes by minors—
The Hon. John Della Bosca: Minors?
Ms LEE RHIANNON: Yes, because the problem is that there are no limits on vending machines. Essentially it is a cheap advertising opportunity for tobacco companies. The failure of this bill to ban cigarette vending machines is a missed opportunity. Clause 22 of the bill makes it clear that tobacco sales to people under 18 years is prohibited. The bill also makes it an offence for a person to purchase a tobacco product on behalf of a person under 18 years. Obviously the Greens support these measures. We note that the Protecting Children from Tobacco Coalition has also raised concerns that tobacconists have been given 12 months to make all tobacco products invisible from outside their shops, as promised by former Premier Iemma on 30 July. I ask the Minister why this period has been extended contrary to the former Premier's public announcement, prolonging the period that tobacco products can remain on public display. Clause 30 of the bill prohibits smoking in cars if a person under the age of 16 years is an occupant in the car. As we know, smoking is a toxic person—
The Hon. John Della Bosca: Toxic person?
Ms LEE RHIANNON: It is late and I have not been out drinking, as you know. I meant to say that it is a toxic poison for young people.
The Hon. John Della Bosca: I didn't accuse you of anything.
Ms LEE RHIANNON: I know you did not, and I know you would not. But I know what this place is like. Smoking is especially harmful to very small children and babies, who have higher breathing rates than 11224 LEGISLATIVE COUNCIL 12 November 2008 adults. Second-hand smoke contains poisonous chemicals such as arsenic, hydrogen, cyanide, ammonia and carbon monoxide. No safe level of exposure to tobacco smoke has been identified. It is a shame that this bill does not extend its focus beyond young people to decreasing high rates of smoking amongst low-income and disadvantaged groups. Despite being a designated priority in the State Plan, the Government has neglected interventions tailored to the particular needs and circumstances of these people.
The Council of Social Service of New South Wales [NCOSS] has undertaken some important work in this area. I have been informed by the Council of Social Service of New South Wales that 82.1 per cent of Aboriginal people and 77.2 per cent of non-Aboriginal people in custody are current smokers, 51 per cent of Aboriginal women reported smoking during pregnancy, and between 60 per cent and 80 per cent of people with a mental illness smoke. I understand that community organisations report that clients cite the cost of cessation interventions such as nicotine replacement therapy [NRT] as a key barrier to quitting smoking. The Council of Social Service of New South Wales recommends in a report:
Given that a combination of Nicotine Replacement Therapy and counselling has been shown to be an effective intervention within these groups, and that NRT almost doubles the chances of a quit attempt being successful, NCOSS believes that increasing access to NRT for low income and disadvantaged groups will contribute to a decrease in smoking rates amongst these groups.
Specifically, the Council of Social Service of New South Wales calls for the funding of an additional smoking cessation trainer to work with non-government agencies to promote and implement smoking cessation support and activities with low-income and disadvantaged people. The Council of Social Service of New South Wales also recommends that a fund be established and administered by area health services to provide free nicotine replacement therapy to clients of non-government agencies who wish to quit smoking. The Council of Social Service of New South Wales estimates that the cost of these two programs would be $2 million per annum. That is a small price to pay for the sake of public health. I ask the Minister to tell the House in his reply whether the Government will pursue these recommendations. I hope the Minister is in a position to comment on the Council of Social Service of New South Wales recommendations.
I draw the attention of the House to clause 20 (5) of the bill, which is the controversial clause that exempts racing events from the total ban on tobacco sponsorship at sporting events in New South Wales, including horse, harness, greyhound, motor car and motorcycle racing. No other jurisdiction in Australia allows tobacco sponsorship at sporting events and if this exemption is retained it will drag New South Wales back to the Dark Ages and undo many of the good measures in this bill. Its inclusion in the bill is curious. It would be a major embarrassment for the Labor Government if the bill were passed as it is. Someone contacted my office and suggested that perhaps the Government was trying to line up a deal to offer tobacco sponsorship of the proposed V8 Supercars event to be staged at Olympic Park.
The Hon. Amanda Fazio: Rubbish!
Ms LEE RHIANNON: It is certainly not rubbish. A number of people have linked this clause with the V8 Supercars race. They have also speculated about whether it is an attempt to lure the Formula 1 circuit to Sydney. I have no idea about that. The Government is now saying it was all a mistake, but it took a long time to commit to removing the clause. Given the interjections from the government benches, it is worth running through what happened in our attempts to remove this clause.
I understand that the Government has foreshadowed an amendment to the clause, which is good news. The Greens have also foreshadowed that we will move an amendment in Committee, but we welcome the Government's move in this regard. The Government also said that the inclusion of the clause was a drafting error. It was not a drafting error. The clause covers a sizeable part of the page on which it appears. Its inclusion is not simply an oversight, as we were told. It is a serious political blunder that the clause remained in the bill and was passed by both major parties in the Legislative Assembly. It is clear what the clause means.
I will put on record the chronology of events surrounding the racing sponsorship clause. During the early drafting stages of the bill, representatives of Action on Smoking and Health raised with the Government the fact that the bill contained a provision exempting the ban on tobacco advertising from various kinds of racing. They identified the problem with this clause, talked to the Government about it and said that it needed to be removed. The Government agreed to remove it before the bill was introduced in the Legislative Assembly. However, on 25 September former Minister Assisting the Minister for Health (Cancer), Tony Stewart, introduced the bill in the Legislative Assembly complete with a clause exempting all racing codes from the ban on tobacco sponsorship at sporting events in New South Wales. 12 November 2008 LEGISLATIVE COUNCIL 11225
The bill was passed by the Legislative Assembly on 22 October with the support of the Coalition. We do not know whether no-one noticed that the clause was in the bill, but I find it hard to believe that members in the other place did not notice a clause exempting a ban on tobacco sponsorship of racing events. The day after the legislation was passed, representatives of Action on Smoking and Health approached my office with concerns that the exemption for racing sponsorship had not been removed from the bill as promised. My office then contacted the office of Opposition health spokesperson Jillian Skinner to inform her that the Greens intended to move an amendment in the upper House to remove the exemption. I was again surprised by the response. The best we got from the staffer was that it was a bit late in the day, and that was the end of the matter.
At that point my office and representatives of Action on Smoking and Health discussed the matter further and I and a representative of Action on Smoking and Health held a media conference to call on the Government to remove the exemption clause. It now becomes interesting. We were contacted by the Minister's office and then Minister Tony Stewart briefed journalists and claimed that the Greens had misread the bill and that it was a misunderstanding. The Minister pushed the line that it was all just a misunderstanding. If members were to read the clause they would see that there is nothing unclear about that aspect of the legislation.
The Cancer Council New South Wales advised my office that the Greens' interpretation of the bill was not misleading; it was correct, and the racing sponsorship clause could be used to the advantage of tobacco companies. Once the story broke in the media, former Minister Stewart finally conceded that the clause could be a drafting error and that the Government would look into it. That was a shift in the Government's position. Finally, on 24 October Mr Stewart issued a statement that tobacco advertising would be banned at all racing events. I understand that the Government intends to amend the bill. As I said, that is good news. However, I will be watching closely, as will Action on Smoking and Health, the Cancer Council and other tobacco lobbyists. The Greens will pursue our amendment because it is vital that we ensure this "loophole"—which is about the politest spin that can be put on it—is not retained.
The glaring omission in this round of reforms is that the Government has done nothing to end political donations from tobacco companies. The passage of this legislation is a missed opportunity in that regard. British American Tobacco and Philip Morris regularly donate to both the Labor Party and the Liberal Party, and millions of dollars in political donations flow from tobacco companies—
The Hon. Amanda Fazio: We do not take money from tobacco companies.
Ms LEE RHIANNON: That is certainly the perception in the community.
The Hon. Penny Sharpe: We do not.
The Hon. Amanda Fazio: We are not taking donations from tobacco companies.
Ms LEE RHIANNON: Government members deny that they are taking donations. I acknowledge the efforts of the former leader of the Federal Labor Party, Mark Latham, to have these donations banned. However, the records indicate that the Labor Party has taken donations from tobacco companies. Government members might like to hear just how much tobacco companies have donated to their party. In the past nine years, Philip Morris has donated $222,200 to the Federal and New South Wales divisions of the Labor Party, and $372,340 to the New South Wales and Federal Coalition parties. It is all on the record.
The Hon. Amanda Fazio: You wouldn't know what you get because you have private donors who give you $40,000 or $50,000. You don't know what their shareholdings are; you don't know where they get their dividends from.
Ms LEE RHIANNON: We work hard taking small donations from our many members and supporters. We do not take corporate donations and we do not take money from tobacco companies. Government members squealed when I made that connection. That is a pretty poor comeback. British American Tobacco has donated $745,065 to the Coalition parties and $181,500 to the New South Wales and Federal divisions of the Labor Party. That is more than $1.5 million in donations from just two giant tobacco companies. All the major parties have to do is say no and stop banking the cheques from these companies. They could easily deal with that.
The Hon. Penny Sharpe: You are distorting what is going on.
Ms LEE RHIANNON: I am not distorting what is going on. 11226 LEGISLATIVE COUNCIL 12 November 2008
The Hon. Amanda Fazio: Of course you are.
Ms LEE RHIANNON: The major parties have taken the money. Community health is too important to be held captive to vested interests. Members' annoyance that they have been outed is evident from their interjections.
The Hon. Amanda Fazio: It is annoyance about being verballed.
Ms LEE RHIANNON: I am happy to have that interjection on the record, too. The claim is that the Government is being verballed when all I have done is read out the donations accepted by the Labor Party. That is a strange interpretation of the English language. The Labor Government has shown itself to be open to lobbying when it comes to smoking. The former Minister for Planning, Frank Sartor, backed down on smoking in pubs and clubs, and that is a case in point. The New South Wales Labor Party and the Coalition must put public health first by refusing to take vertical donations from tobacco and retail industries. I challenge the Labor Party, the Liberal Party and The Nationals to go back to their party organisations and say, "We have to stop taking this money."
The Greens are pleased to support the bill, although we regret that it does not go far enough. Tobacco companies make huge profits, but their profits are dwarfed by the emotional and financial costs of illness and loss of life as a result of tobacco smoking. It is estimated that the NSW Department of Health spends more than $250 million a year on treating tobacco-related illnesses. We cannot continue under a system that allows tobacco companies to privatise profits while the public bears the costs. Despite the shortcomings of the bill, the Government deserves to be congratulated. The bill makes an important contribution to public health.
The Hon. MARIE FICARRA [9.40 p.m.]: This bill is a major change in the manner in which we permit tobacco to be presented in our community, and has a special significance for the health of young Australians. This legislation is supported by the New South Wales Cancer Council, the Heart Foundation, the Parents and Citizens Federation, public health physicians, the Australian Medical Association and, most importantly, the majority of our community. This bill includes tougher and more responsible controls to prohibit the display of tobacco and tobacco-related products in retail premises.
The bill will ensure that these products are sold from one point only, and aims to have retailers improve the training of their staff to better prohibit access to tobacco products by minors. It limits the number and location of tobacco vending machines in hotels, clubs, pubs, casinos, and restaurants so that they will not be visible to the public, and any such machines are to be removed from staff amenity areas within six months. I share the hope and desire that one day we will eliminate vending machines from all public venues because of the temptation they present to very young persons through unregulated and unsupervised access.
Importantly this bill makes it an offence for either a driver or passengers within a motor vehicle to smoke if a child under 16 years of age is in that vehicle. The driver is the responsible party who will be fined for any contravention. Police will be empowered to enforce this provision on the spot and deal with any such offence with a maximum penalty notice of $1,100. The bill will require the Director General of the NSW Department of Health to be notified prior to the commencement of any new tobacco retailing. Penalties will be increased for existing tobacco retail offences, and repeat offenders will be unable to continue their tobacco retailing for specified periods. The message is: If you have to sell this product, do so responsibly, or not at all. Under this bill, all tobacco control provisions now will be streamlined into one piece of legislation.
Much has been said about the drafting error in the bill. I do not believe the error was deliberate. I believe that the error slipped through unnoticed in the other place. I also believe that amendments moved during the Committee stage will deal with the provisions in the legislation that lift the ban on tobacco sponsorship at horse, greyhound and motor racing events. I do not believe the error was intentional: the outcry over the reversal of policy would be enormous. As we have heard, tobacco is the leading preventable cause of morbidity and premature mortality in Australia as well as most developed nations. Its use leads to nicotine dependency, disease and premature death from cancer, heart disease, vascular disease, stroke, and complications of diabetes, such as gangrene and so on—hence the need for the display, sale and advertising of tobacco to be strictly regulated.
As community representatives and legislators we need to do more to prevent the exposure of children and teenagers to harmful tobacco smoke to decrease the uptake of this dangerous habit by young Australians. The younger a person commences to smoke, the more likely it is that the person will be a heavy smoker in later 12 November 2008 LEGISLATIVE COUNCIL 11227
years and that he or she will have difficultly in quitting the habit. The proportion of regular smokers in the indigenous community is double that of the non-indigenous community. This has implications for the status of indigenous health and indeed for all Australians, particularly in relation to cardiovascular disease, chronic respiratory disease, diabetes, reduced fertility, low birth weight, premature babies, sudden infant death syndrome, middle ear infections, the onset and worsening of asthma, and irritation of the eyes and nose, in relation to which smoking increases the risk.
The Hon. John Della Bosca: Is the Hon. Don Harwin giving us a demonstration?
The Hon. MARIE FICARRA: Thankfully, the Hon. Don Harwin is not a smoker.
The Hon. Don Harwin: It is your perfume, as usual.
The Hon. MARIE FICARRA: I think I am the cause of his allergic reaction this evening. Smoking kills half of its long-term users: one out of every two lifetime smokers will die from the habit. Smoking was responsible for more than 6,500 deaths in New South Wales in 2000. A third of those deaths occurred in middle age. Most tobacco deaths are caused by cancer, especially lung cancer, with ischaemic heart disease and chronic obstructive pulmonary disease also counted as major causes. Smoking was a direct cause of 10,807 new cases of cancer in Australia in 2000. Tobacco is responsible for one in every five cancer deaths in New South Wales. These are very sobering statistics.
Smokers use inpatient hospital services more than people who do not smoke. They heal at a slower rate and are more likely to use emergency services and outpatient facilities more often than people who do not smoke. They also have a higher admittance rate to intensive care post surgery than do non-smokers. According to the Commonwealth Department of Health and Ageing, the social cost of tobacco use in 1998-99 was more than $21 billion. That figure includes the social costs of loss of life, health and productivity in the workplace and at home, as well as fires caused by smoking and money outlaid for hospitals, medical expenses, nursing homes and pharmaceuticals.
We have seen legislative restrictions on where people can smoke, with the Smoke-free Environment Act 2000 making the following places smoke free: shopping centres, malls and plazas; restaurants, cafes, cafeterias, dining areas and other eating places; schools, colleges and universities; professional, trade, commercial and other business premises; theatres, cinemas, libraries and galleries; public transport facilities such as aeroplanes, taxis and hire cars; common areas in hostels, common areas in motels and hotels; childcare facilities; fitness centres, bowling alleys and other sporting and recreational facilities; and of course hospitals.
The World Health Organization [WHO] recognises that scientific evidence has unequivocally established that exposure to tobacco smoke causes death, disease and disability. Through its "Framework Convention on Tobacco Control" it defines tobacco control as a range of supply, demand and harm-reduction strategies that aim to improve the health of a population by eliminating or reducing the consumption of tobacco products and exposure to tobacco smoke. Such controls include educational initiatives, the restricting of access to tobacco and exposure to tobacco smoke such as in ways provided in the bill, the banning of tobacco, the imposition of taxes to increase the cost of cigarettes, and the printing of health warnings on tobacco packages. The National Occupation Health and Safety Commission issued a statement in December 2002 on environmental tobacco smoke. It recommended that exposure to environmental tobacco smoke be eliminated in all workplaces as soon as possible as there is no evidence of a safe level of exposure. The statement reads:
Environmental smoke is carcinogenic, increases the risk of fatal and non fatal cardiovascular disease in non smokers and carries substantial mortality and morbidity from other serious health effects as a result of acute and chronic disorder.
According to the Cancer Council of New South Wales, at least 22 cases of compensation have been awarded as a result of exposure to environmental tobacco smoke. The community consultation that led to this legislation has been widespread and has resulted in the receipt of 12,000 submissions to the paper released in April 2008 entitled, "Protecting Children from Tobacco: A NSW Government Discussion Paper on the Next Steps to Reduce Tobacco-Related Harm, 2008". These submissions were received from public health professionals, mums and dads, retailers both large and small, manufacturers and community groups. Public forums were held and consultations with young persons were conducted. The feedback was loud and clear: more prevention is required for the sake of the health of future generations.
I stress that an overriding message to governments was the need for continuing education on the adverse effects of tobacco. We must remain vigilant. Young persons rightfully want the facts presented to them 11228 LEGISLATIVE COUNCIL 12 November 2008 and they will confidently make the correct evaluation over time as they mature. The power of advertising is great, as we all know, and continuing to restrict and oversee this industry medium will remain a major issue in long-term positive generational behavioural changes in our society. Indeed, breaches of advertising by corporations will now incur penalties of up to $660,000 for the first offence and $1.1 million for subsequent offences. This will send a strong message—do not try to get round the system!
This bill will remove the line-up of very visible tobacco displays when entering such retail outlets as Woolworths and Coles. Because they are mainly situated for maximum impact—where adults and children can clearly see them—they become a normal part of our lifestyle when, clearly, this is not the message we want to convey. Retailers have chosen highly visible and tempting locations in stores so that people trying to give up the habit are continually reminded of it as they enter and leave stores. The convenience of not having to queue for long if you forget your cigarettes is tempting—just a convenient and fast sale at the front counter, usually associated with a flower selling point. This aspect of retailing will go under clause 9 of the bill. Tobacco products will not be able to be seen from both outside and inside such stores. Other nations, like Canada, have implemented strict display restrictions, which have resulted in a positive downward effect on the levels of new uptake of smoking especially amongst young persons. Major retailers will have six months to comply with these new regulations and smaller outlets employing fewer than 50 persons will be given 12 months.
Specialist tobacconists, because of their unique situation and often total dependence on tobacco sales, will be given a further three years to comply. In the meantime they will be required to observe stricter display requirements after the first 12 months, such as not more than one packet per product range and strictly no cartons of cigarettes in a display area no greater than three square metres. Eventually, after the full four-year period, they will be expected to comply with a full ban on displaying tobacco products. This period will allow them to diversify into other retail goods, if they wish. Specialist tobacconists will need to be approved by the Director General of Health. They will need to have an existing and registered tobacco retail business on the day this legislation is enacted and be able to demonstrate that 80 per cent of their business is derived from the sale of tobacco-related products. Any new specialist tobacconists commencing a business post this legislation will need to comply immediately with a total display ban.
Shopper loyalty programs and reward point schemes that include tobacco-related products will be prohibited under clause 18 of the bill. Clause 21 of the bill will apply maximum penalties of up to $110,000 for individuals and $220,000 for corporations found selling confectionary or toys that in themselves or in their packaging resemble tobacco or tobacco-related products. These strong and dangerous commercial messages given to children are abhorrent, as is the marketing to women of cigarettes in pink purse packs. It is an absolute disgrace.
An important section of this bill is the prohibition of smoking in vehicles in the presence of children— 80 per cent of respondents to the Government review were supportive of this initiative. I stress that we have Reverend the Hon. Fred Nile to thank for this momentum by the Government. It was Reverend the Hon. Fred Nile's bill that got this Government moving on today's debate concerning tobacco-related disease prevention. That is what it is all about today—preventing future generations of Australians as much as we can, and the current middle-aged and older generations, from prematurely killing themselves and adversely affecting the health of those around them, chiefly family, friends and the general public in their vicinity. Some may say these are onerous lifestyle restrictions when they are purely good, solid, public health principles that, with the associated educational and informative messages, need to be applied to all age groups.
The element of choice for children to endure passive smoking is limited, thus children require our increased protection. Scientists have produced strong evidence that passive smoking has a lasting impact on the respiratory systems of children. A team from the United States National Centre for Environmental Health in Atlanta studied data from 5,400 children aged from four to 16 years. Researchers found that passive smoking had the strongest impact on the youngest children. It was linked to a permanently increased risk of asthma and wheezing. However, older children exposed to tobacco smoke were more likely to have poor lung function, and to take time off school. The authors concluded that exposure to environmental smoke is an important and preventable cause of illness among children.
Most parents do not smoke in front of their babies, but some may not realise the dangers that smoking presents to older children. Their lungs are still developing, and at that stage they are much more susceptible to infection. This research is published in the journal Archives of Paediatrics & Adolescent Medicine. Smoking in family vehicles can cause similar damage over time, and vascular disease later in life might be triggered early in childhood by exposure to second-hand smoke. Ironically, it may be that the clampdown on smoking in so many 12 November 2008 LEGISLATIVE COUNCIL 11229
public places means that smoking in family cars and the home is increasing, as smokers feel they are places in which they can smoke without interference. Unfortunately, in some households and in some ethnic communities this trend has increased. That is why more education is required.
Concern about the exposure of children to environmental smoke led the NSW Department of Health to implement campaigns such as Car and Home: Smoke Free Zone, which raised awareness of the risks of passive smoking and provided those who care for kids with options to minimise the exposure of children to environmental smoke. This reduction will decrease absenteeism in schools, lift school performance and reduce the future uptake of smoking. We must do all we can to protect the health of all Australians, especially our youth. I urge all governments to continue to seek strategies that will encourage the minimisation, prevention and cessation of tobacco use. The Coalition supports the bill.
The Hon. CHARLIE LYNN [9.56 p.m.]: I speak in support of the Public Health (Tobacco) Bill 2008 and acknowledge the contribution that Mr Ian Cohen has made in a previous life when campaigning strongly against smoking, as did our former colleague the Hon. Dr Arthur Chesterfield-Evans. When we were growing up, smoking was the in thing. We were not made aware of the downside of smoking. Every time we looked at a television set the Marlborough man was promoting the solid outback, sporting champions were smoking Rothmans, ladies were smoking Capstan, I think it was—
The Hon. Duncan Gay: Virginia Slims.
The Hon. CHARLIE LYNN: It was Virginia Slims, and the sophisticated were smoking Peter Stuyvesant. I remember the advertisements and the magazine articles. Smoking was constantly in front of us, role models were everywhere and it was only natural to emulate them—and we did. In that era the emphasis was on natural fitness. We did not live sedentary lifestyles. In times of stress and in remote areas people smoke. When I served in Vietnam we were given free cigarettes as a way of calming our nerves and whiling away the boredom. We smoked for many reasons. As research evolved and exposed the dangers of smoking, particularly its links with lung cancer and lots of other ailments that Reverend the Hon. Dr Gordon Moyes mentioned in his contribution to the debate, people took alternative action. I took up smoking when I was about 14 and at about age 21 I decided to give it up; it was a pretty hard thing to do.
After I gave up smoking I would occasionally have a cigar and a glass of port. Then I went to America for a couple of years as an exchange officer, and upon my return I realised when I was having a cigar each morning after breakfast that I was hooked again. So I had to go through the process of giving up again. It was a pretty painful process, but giving up smoking was the best decision I ever made.
The cigarette companies have become more sophisticated in terms of marketing these products. At the end of the day they are merchants of death because death is the outcome of using their products. Not long after I entered Parliament I remember receiving—I am sure other members here received the same thing; it was very clever—a small packet of Benson and Hedges that was cut out at the top. There was a bit of tobacco in the bottom of the packet along with a cigarette and a magnifying glass. It was an invitation to visit the tobacco company's factory to see what was being put in cigarettes in those days. I wrote back to the company—I still have a copy of the letter in my office—saying, "I'd love to come to your factory to see what you put in cigarettes these days, provided you come down to Orbost to see what cigarettes have done to my father." At that stage my father was dying of emphysema. I said, "I have enclosed the cigarette you sent me to stick up your arse." As it turned out, I was taken off their mailing list and never received any more invitations.
These programs continue. It is unconscionable that anyone would market pink slims to capture vulnerable young women, knowing the impact smoking has. I simply put on the record my support for the bill, which provides for a transition period. Some people, as they get older, will simply not give up smoking or will refuse to give up for a number of reasons. I instance disadvantaged people, people in remote areas and others who have been referred to by other members in this debate. We must use commonsense in the transition period because this is about early intervention and education. It is about awareness. We must ensure that people are not attracted by the bad habits of so-called role models. We need to apply some commonsense, particularly in relation to pubs and clubs.
We simply cannot tell pubs and clubs that they must be smoke free. We must encourage them to provide an outdoor area so that people can still have a cigarette with their beer, but we must also provide incentives for people to give up smoking. We must acknowledge the fact that some people simply cannot give up smoking. I fully support the provisions relating to advertising and the provision that makes it an offence for 11230 LEGISLATIVE COUNCIL 12 November 2008 anyone to smoke in a motor vehicle conveying children under the age of 16 years. The bill has failed to address the issue of role models. These days many role models light up cigarettes in movies and on television. I hardly ever watch movies, and most of us would not watch such movies but they do exist. We should address that problem because that form of entertainment provides role models—some poor role models—who have a major impact on vulnerable people.
The Hon. John Della Bosca: I thought you would be a James Bond man.
The Hon. CHARLIE LYNN: James Bond was a pretty good role model. As I said, for a number of years I enjoyed a puff, but the best decision I ever made was to give up smoking. Some people cannot give up and others need to be encouraged to give up by other means. Tobacco companies need to be made aware of their social responsibilities and encouraged not to advertise such products as pink slims and so on that are aimed at people at a vulnerable stage of their life. I support the bill.
Mr IAN COHEN [10.04 p.m.]: I support my colleague Lee Rhiannon and other speakers who have spoken on the Public Health (Tobacco) Bill 2008 with a degree of unanimity seldom seen in the House. I was pleased to witness that unanimity; it shows that on such an important issue and after years of campaigning by many different sectors of society the message is getting across. Often as I listen to speeches in the House I think that perhaps the values in this place are lagging behind those in society. However, we are certainly catching up with respect to the evils of tobacco addiction. Tobacco addiction is serious. I have friends who smoke—I am sure other members have friends who have smoked or who still smoke—and who are aware of the impacts of their addiction. Many people working in high-stress situations smoke. I can think of a number of people close to me who work in positions of responsibility in the green movement, who are stressed and who cannot break the habit. It is very difficult for them.
Indeed, people have told me that a tobacco habit is more difficult to break than a heroin habit. That is how insidious the drug is. Tobacco is a hard drug. There has been much debate in the House about various drugs and their impact on people, but I have no doubt that tobacco is one of the most insidious of all the hard drugs in society. The fact that tobacco is legal makes it more insidious. There was a time when tobacco advertising was rampant, and I will give reasons for that shortly. Tobacco advertisements were displayed at ground level for reasons I will explain also in a moment. They were then placed at an out-of-reach level—but they were never quite out of reach. At this point I give credit to an organisation in which I was an active participant, BUGA-UP—Billboard-Utilising Graffitists Against Unhealthy Products—which was a typical Australian reaction to a scourge that we were confronting. BUGA-UP took matters into its own hands to curb the scourge of tobacco advertising.
The Hon. Duncan Gay: There were members?
Mr IAN COHEN: No, there were not. It was an organisation in name only. People worked individually and in small groups, freelancing, doing things their own way. They took matters into their own hands to curb the scourge of tobacco advertising. We sought to rewire or in many cases reface billboards in an effort to arrest the proliferation of these unconscionable tobacco messages. I am pleased that the Public Health (Tobacco) Bill 2008 represents a renewed commitment to rid our society of the toxic and immoral dissemination of the tobacco industry's message. I give credit to Action on Smoking and Health [ASH]. I also take this opportunity to give credit to Arthur Chesterfield-Evans, who was a tireless campaigner in the Parliament to curb the excesses of the tobacco industry. I also give credit to the New South Wales Cancer Council and the Heart Foundation. Many people in this movement are unsung heroes—they took risks to reface billboards. At night I used to travel on a pushbike with a spray can and water containers.
The Hon. Amanda Fazio: It would be illegal now.
Mr IAN COHEN: It would certainly be illegal now. I used to travel around with a group of doctors and medical students. Although they may have been outside the power of society, they went around refacing billboards. It was a typically Australian and creative reaction that had a massive impact. The first reaction of tobacco companies was to elevate billboards, to raise them off the ground. Then the BUGA-UP autumn catalogue described how to fill eggs with paint and throw them at the higher-displayed billboards. Then there was the customised BUGA-UP extension billboard spray device that was used effectively to spray elevated billboards.
This all started with a person by the name of Bill Snow, who was travelling in a car down near Broadway. He had an Aboriginal friend in the back of the car, a man who was dying of emphysema and was a 12 November 2008 LEGISLATIVE COUNCIL 11231
smoker. They pulled up at the lights and the Aboriginal man said to Bill, "Gee, I wish we could do something about this bloody advertising." Bill used to drive an old van and they heard a spray can rattling around. They picked up the can, alighted from the van and refaced the billboard. To my knowledge, that was the first tobacco billboard that has ever been refaced. It launched a campaign and a movement that has had a significant impact ever since. There have been many unsung heroes. There is a fellow whose name escapes me at this point.
The Hon. Duncan Gay: Just as well.
Mr IAN COHEN: He might have passed on by now, but he was an Englishman and quite a character. In later years he was confined to a wheelchair but he was an enthusiastic graffiti artist. He and Bill used to go out and work the billboards together. Indeed, the last I heard, he was raising money and the money raised was used to hire a cherry picker. He would go from his wheelchair into the cherry picker and reface the billboards that way. Where there is a will, there is a way. These people had an incredible impact.
This bill includes prohibition on displaying tobacco products, non-tobacco smoking products and smoking accessories in shops; limitation on the number of tobacco vending machines—which I fully support— permitted on premises and makes it an offence to smoke in a motor vehicle if a child under the age of 16 is a passenger. It amazes me how long we allowed the tobacco industry to flog their wares to members of society. The Hon. Charlie Lynn mentioned the advertisements. Do members remember Ben Cropp, the diver, coming out of the water and lighting up a cigarette? He had never smoked before but the tobacco industry taught him how to inhale. Another aspect often forgotten is the amount of litter that is generated by people who smoke cigarettes.
The Hon. John Della Bosca: They start bushfires too.
Mr IAN COHEN: I acknowledge the interjection by the Minister. It is the major cause of bushfires. I have experienced the result of that being done deliberately but the ignorant flicking of cigarettes out of car windows also starts bushfires. Most cigarettes on the market are filter cigarettes, which marginally assist the user but the filter is almost non-biodegradable. It takes a very long time to break down. That type of small butt litter gets washed into the gutters during storms and ends up in our oceans. It is a major cause of mortality to our various fish species. That particular type of litter is pernicious and ongoing. There is little effort by authorities to take action against people who litter with cigarette butts because it seems to be somehow acceptable. That lack of awareness still permeates society.
People up my way obtained film canisters and put a patch on them stating that they were "Binya Butts". They would then give them out at markets and other places to encourage people who smoked to put their butts in the bin. It was a small thing but collectively had a result. Bill Snow travelled around Australia at one stage collecting cigarette butts from national parks. He came back with huge barrels of them. They are dangerous for the environment and native species and are a terrible eyesore. People seemed to be oblivious to the cumulative impact of cigarette butts on our environment.
Some 20 years ago my BUGA UP compatriots were considered rogue graffiti artists and vandals, illegally encroaching on the legitimate business interests of the tobacco industry. They were essentially refacing and reinventing tobacco messages, injecting some truth and humour into advertising, with what some would call graffiti, but to many people in those days it was political. Slogans such as "Show us your face drug pusher" were scrawled across Dunhill advertisements on which the face of the "cool smoker" image displayed on the billboard was hidden from view. On the same billboard the Dunhill statement "For those that appreciate the finer things" had an addendum "For those that enjoy living" that was added by BUGA UP.
I have proudly displayed in my office a BUGA UP calendar labelled "The right of reply". An interesting one is the billboard at Ashfield station that had the catchy advertisement, "… anyhow, have a Winfield", something that Paul Hogan will probably never live down. I remember back in those days many young people were smoking Winfield cigarettes. Rather than them being cheap cigarettes, it was the ocker image of Paul Hogan that really caught on. That slogan was changed to "… anyhow, he's Ashfield". This sort of cleverness was the forte of the billboard graffitists.
The art was to make minimal change to change the message. Instead of "Catch Cambridge 30s", it became "Catch the stink of Cancer 30s". The advertisement "… anyhow, have a Winfield" became "… anyhow, it's a minefield" and Peter Jackson's "Australia's No. 1 selling 30s" became "Australia's No. 1 smelling 30s". These people would probably have done very well in the advertising industry and many other areas. It was a 11232 LEGISLATIVE COUNCIL 12 November 2008 clever way of changing the billboards. It was the typical Australian reaction to a serious health problem, but it was a world first. As far as I am concerned, these people could easily have formed an Australian ethics board; their work had a massive impact.
Everyone remembers the Marlboro man, who died of lung-related diseases. He was a heavy smoker. The Marlboro man simply became, in the BUGA UP lexicon, the marble row man. It was a simple change, which worked very effectively. Those who depended on the liberty, freedom and business interests of the tobacco industry somehow suspended reality and ignored the ethics of caring for the health of all people. The drug policy of the major parties had at its centre policy ambivalence towards the increasing distribution of tobacco to minors and the uptake of smoking by them. They denied the link between lung cancer and smoking. As Reverend the Hon. Dr Gordon Moyes stated earlier, it is criminal that even now a tobacco company, during breast cancer month, which included Pink Ribbon Day, introduced slim pink cigarettes.
It is criminal that those organisations get away with it and carry no responsibility for massive health impacts. I am sure members of this House are well aware of the tensions of losing weight, particularly for women. They know that the oral fixation of smoking cigarettes somehow assists in taking away appetite. With gobsmacking cynicism in this day and age, a company advertises cigarettes to deliberately target women.
There was much ado about the Young Liberals' hand on the heart pleas last year for emancipation of tobacco companies from the tobacco advertising ban. The Young Liberals, with their boundless integrity and intelligence, feel that the ban on tobacco advertising is an illegitimate pacification of the tobacco industry's inherent liberties. Now in 2008 there is bi-partisan political agreement that society should forge ahead with a drug policy that seeks to eradicate smoking from society. There is a bill before the House that seeks to take sensible steps to reduce the prevalence of smoking in our society.
The next front in the war against tobacco—a war that we must fight in order to stop the bloodletting of $31 billion a year from our national economy and cease the 15,000 smoking-related deaths a year—is to reduce prevalence of smoking use in disadvantaged communities. With hospital systems and health resources stretched to breaking point, governments continue to have to spend $600 million on hospital costs for smoking-related illnesses each year. My understanding is that tobacco has been, and I think still is, the cause of most avoidable deaths in Australia. That is a terrible record. So often in this House we see a lack of connect between different aspects of society. Why are tobacco companies not held responsible for the health problems and costs in our society? Why do they get away with it? Why does the general population have to pick up on these—?
The Hon. John Della Bosca: They are not getting away with it. We are catching up with them.
Mr IAN COHEN: I would like to think so, but still so many people have massive dire health problems directly as a result of tobacco smoke yet the tobacco industry does not pay its way.
The Hon. John Della Bosca: What about the liquor case? They have gone broke with litigation.
Mr IAN COHEN: Good, but that is litigation. Why does the tobacco industry not have to pay for the health costs it incurs? The Council of Social Services of New South Wales has made an interesting point about the lack of specific provisions for populations with high levels of smoking, for instance, indigenous communities, prisoners and people with mental illness. I am aware that the State Plan Priority S3 has targets to drive this objective such as training front-line non-government service agencies with smoking cessation support programs and area health services support programs to deliver free nicotine replacement therapy to clients of non-government services. This bill has many elements and as I do not want to repeat what other members have said I have focussed on other aspects of the legislation.
I wonder about the rights of people to smoke, and about smoking in outside areas. In the past few days the Government has made cuts, and people have written to the papers and said that politicians do not take public transport. When I am in Sydney I am on public transport almost daily. I catch the bus from where I stay in Sydney. I am disturbed, first, by smokers regularly dumping cigarette butts as they board buses and, second, by passive tobacco smoke when I am under a bus shelter or under an awning of a building. In those relatively open areas there is still an impact of tobacco smoke. Is it not reasonable to declare public bus stops and the like smoke-free zones so that other commuters do not suffer from the habits of one particular person?
The Greens have been strong advocates against the tobacco industry and have always advocated a ban on tobacco advertising. The Greens policy also specifically outlines the banning of advertising promotion for 12 November 2008 LEGISLATIVE COUNCIL 11233
tobacco products as well as the banning of donations by the drug, tobacco and alcohol industries to political parties. We are pleased this bill is before the House as it is a significant step by the Government, with the support of most members of this Chamber, to remedy some of the past ills and evils of this insidious industry. Any step that curtails the power, profit and ruthlessness of the tobacco industry is something to be well applauded. I commend this bill to the House.
The Hon. JOHN DELLA BOSCA (Minister for Health, Minister for the Central Coast, and Vice-President of the Executive Council) [10.27 p.m.], in reply: I thank all members for their contributions. As Mr Ian Cohen and other speakers have said, it is pleasing that this bill represents a fairly conclusive consensus around point of sale activities, advertising and promotions of tobacco. The point of the policy is to reduce smoking and the impact of smoking in the community, but I will not labour the point. A number of members made the important point that tobacco is an addiction, which is a health issue in its own right apart from other health issues that that addiction creates. The bill contains a number of new tobacco control provisions for which there is strong community support. Fundamentally, the bill prevents children's exposure to tobacco in confined spaces such as cars.
I acknowledge that Reverend the Hon. Fred Nile has brought this matter to Parliament in a number of forms over several years. With this bill the policy positions taken by Reverend the Hon. Fred Nile in this House will become law. The bill will protect young people from the worst impacts of smoking in a confined space, for example, a motor vehicle. The Hon. Charlie Lynn and other members also raised concerns about the operation of the legislation and sought clarification about the requirement that tobacco products be sold at a single point of sale. I make absolutely no apologies for this provision and the Government stands by it. That matter, together with the ban on product displays, goes to the absolute heart of the bill. A single point of sale, even in larger premises, will ensure that retailers will be able to more effectively supervise the sale of tobacco products near premises and ensure that sales staff are properly trained not to sell to children.
The bill makes it an offence to display tobacco products, and members have dealt with that at some length in their speeches, so I will not cover that territory again. The Government is very comfortable with the transitional proposals built in for both small and large retailers. Specialist tobacconists have been given a special provision of a further three years to meet the more stringent display restrictions. It is important also to clarify one of the concerns raised by Ms Lee Rhiannon in relation to tobacco vending machines. I confirm that the bill prohibits both the use of tobacco vending machines to promote tobacco products and the display of tobacco products in a vending machine.
It is also important to note that the bill requires sale through vending machines to be the subject of staff intervention mechanisms. The most obvious mechanism and the one that is frequently explained and referred to in public debate is a token system. A child or a young person will not be able to use a vending machine without first being given a token for cash by a staff member. A child who uses a vending machine without a token will have committed a serious criminal offence, punishable by a fine of up to $11,000 for a first offence or $55,000 for a second or subsequent offence. The vending machines will not, as has been asserted by Ms Lee Rhiannon, make it easier for children to access tobacco products.
Again I thank all members for their contributions to the debate. It has been an interesting and important debate and an interesting and important process. In conclusion, I cannot resist acknowledging someone who probably spent no time necessarily engaged in the activities of BUGA UP but who was always interested in the latest BUGA UP displays and advertising. I was fascinated by Mr Ian Cohen's trip down memory lane and his discussion of the BUGA UP activities. With those comments I commend the bill to the House.
Question—That this bill be now read a second time—put and resolved in the affirmative.
Motion agreed to.
Bill read a second time.
In Committee
The CHAIR (The Hon. Amanda Fazio): I propose that the Committee deal with the bill by parts and schedules. There being no objection, I shall proceed.
Parts 1 and 2 agreed to. 11234 LEGISLATIVE COUNCIL 12 November 2008
The CHAIR (The Hon. Amanda Fazio): There are two amendments to clause 20, the Government amendment, which appears on sheet C2008-099, and the Greens amendment, which appears on sheet C2008-102. The amendments are identical, so I propose to put the Government amendment first as it was lodged first.
The Hon. JOHN DELLA BOSCA (Minister for Health, Minister for the Central Coast, and Vice-President of the Executive Council) [10.33 p.m.]: I move the Government amendment:
Page 16, clause 20 (5), lines 1–3. Omit all words on those lines.
The amendment seeks to deal with matters that were canvassed during the second reading debate in respect of apparent anomalies in the bill's drafting that led to concerns about provisions in relation to allowing tobacco to be promoted in the course of promoting racing events. The amendment makes it very clear that that is not the case, and it deletes the relevant clause from the bill.
Ms LEE RHIANNON [10.34 p.m.]: I acknowledge that the Greens have an amendment that is identical to the Government amendment and that our amendment therefore lapses. It is most important that the relevant clause be removed from the bill. Tobacco company sponsorship of racing events is something that certainly must be left in the past. Quite an extensive section of the bill will be removed. The bill as originally drafted allowed for tobacco company sponsorship of a whole range of racing events, including car racing, horseracing, harness racing, greyhound racing, motor car racing and motorcycle racing. So it is a good move to clean up the bill in this way.
The Hon. JENNIFER GARDINER [10.34 p.m.]: The Opposition is happy to help the Government fix its drafting error. It is another example of why we need a House of review.
Reverend the Hon. FRED NILE [10.34 p.m.]: The Christian Democratic Party supports the Government amendment. We are all opposed to any attempt to allow tobacco companies to use events to promote their products, and the removal of this clause makes it perfectly clear that there is no power to do that with respect to any event—whether it be a V8 Supercars race or any other event in the future. We are pleased that the Government has moved this amendment.
Question—That the Government amendment be agreed to—put and resolved in the affirmative.
Government amendment agreed to.
Part 3 as amended agreed to.
Parts 4 to 8 agreed to.
Schedules 1 and 2 agreed to.
Title agreed to.
Bill reported from Committee with an amendment.
Adoption of Report
Motion by the Hon. John Della Bosca agreed to:
That the report be adopted.
Report adopted.
Third Reading
Motion by the Hon. John Della Bosca agreed to:
That this bill be now read a third time.
Bill read a third time and returned to the Legislative Assembly with a message requesting its concurrence in the amendment. 12 November 2008 LEGISLATIVE COUNCIL 11235
ADJOURNMENT
The Hon. TONY KELLY (Minister for Police, Minister for Lands, and Minister for Emergency Services) [10.39 p.m.]: I move:
That this House do now adjourn.
MOTORCYCLE SAFETY
The Hon. DUNCAN GAY (Deputy Leader of the Opposition) [10.39 p.m.]: Tonight I talk about the importance of motorcycles in our community, on our roads, and in our roads policy. Motorcycle and scooter riders are the fastest-growing group of road users in New South Wales. Since 1995 there has been a 63 per cent increase in motorcycle numbers. In the past five years alone the motorcycle fleet has grown by one-third—the largest increase in any mode of transport. The economy, congestion and environmental imperatives have driven this shift in transport mode. As well as being more environmentally friendly than cars, for many people motorcycles are a convenient and cheaper solution to traffic congestion and parking problems.
Despite their rising popularity, motorcycles have long been excluded from public transport policy. Motorcycles are rarely considered when road maintenance occurs, which exposes riders to unsafe road conditions. They have been left out of planning when it comes to tolls. The private-public partnership saw motorcycles paying the same toll as cars, whereas before they had paid only a quarter of the car toll rate. The introduction of e-tags has created further paperwork and logistics nightmares for riders. The current system treats motorcycles as small cars, ignoring their specific needs and safety requirements. While all other road users receive a share of road safety funding, motorcycles do not.
Since November 2003 the total funds spent on motorcycle road safety remain at just $3 million. On the other hand, bicycle safety programs receive around $12 million to $15 million per annum, as do pedestrian safety programs. Motorcycles represent just 3 per cent of registered vehicles in our State but, sadly, they represent 12 per cent of road user fatalities. With no integration of motorcycles into overall transport, roads or safety policies, they have been treated only as a road safety problem and the motorcycle community has largely been regarded as an outsider. In the past that has meant handing motorcycle safety to the police as a social problem to be controlled.
In 2001 the Motorcycle Council of New South Wales, the peak motorcycle body run by volunteers, prepared the first motorcycle road safety strategic plan in Australia, entitled "Positioned for Safety". When the council was preparing that important book it researched back 10 years and examined all road safety programs, looking for any that included motorcycles. None could be identified. In 1986 the parliamentary Staysafe Committee conducted an inquiry into motorcycle safety. Similarly, it researched back 10 years and also found nothing. In fact, the then Department of Main Roads, in its submission to that inquiry, claimed, "the only way to improve motorcycle safety is to ban them". "Positioned for Safety", the first motorcycle safety strategic plan, was published by the Motorcycle Council in June 2002. Motorcycle safety has improved significantly in New South Wales since then.
In the past five years there has been a range of programs aimed at helping riders understand and improve their own safety. These have included a high profile motorcycle advertising campaign and a number of community-based projects by local councils. The Motorcycle Council of New South Wales has also developed a website, partly funded by the NRMA, to deliver safety information to riders on a range of topics. The results of a Motorcycle Council survey of riders in 2006 indicate that these efforts have been successful. Other programs aimed at improving the road environment for motorcyclists are also appearing. Innovative solutions, including the asymmetric repair of rural roads, line marking, widening and reshaping of problem curves, have proved highly beneficial in reducing motorcycle crashes.
The essential basis of these programs has been the interaction between road safety professionals and motorcyclists with the shared goal of improving motorcycle safety. It has been a major objective of the Motorcycle Council to establish more productive relationships with local, State and Federal government agencies to ensure that motorcycles are treated in an equitable manner. As we struggle with rising congestion and try to lessen our carbon footprint motorcycles will play an increasingly important role in transport in New South Wales. [Time expired.]
ETHANOL BIOFUELS
Reverend the Hon. FRED NILE [10.44 p.m.]: I refer to the importance of ethanol biofuels, which are cheaper, cleaner, greener and produced locally. I congratulate the Manildra Group on its success as the main 11236 LEGISLATIVE COUNCIL 12 November 2008 producer of ethanol in Australia. The Manildra Group has a large plant in Nowra, not very far from where I live in the Shoalhaven. The plant provides many jobs. The Manildra Group has 716 employees. This year the total wages to be paid to employees is $54 million, and total taxes to paid by employees is $14 million. The company benefits not only the local Shoalhaven-Nowra community but New South Wales, and that is very important in the current economic crisis. Recently the Government and the Coalition have spoken strongly in favour of the use of ethanol. In a media release on 14 February 2007 the former Premier, Morris Iemma, said:
The time for talk on ethanol is over, it is now time for action on achievable targets …
If re-elected, I will mandate from September this year a minimum of two per cent ethanol be blended into the total volume of petrol sold in NSW as a first step towards 10 percent ethanol content by 2011.
This decision is a win for farmers, a win for job, a win for the environment, and a win for the hip pocket when it comes to fuel costs for families.
Country Labor, of course, supported that objective. In a media release on 10 June 2006 the then Minister for Rural Affairs, Tony Kelly, said:
… biofuels such as ethanol were increasingly important to the economic future of NSW.
NSW should lead Australia.
As we move away from reliance on fossil fuels, we need to establish a more diverse and secure energy supply which will see the creation of hundreds of new country jobs.
The mandating of biofuels will be a huge boost for rural and regional NSW.
Thousands of direct and indirect jobs would be created, and grain farmers will benefit from greater demand and a more stable price for their product.
The Coalition also supported the plan to mandate that 2 per cent of the total volume of petrol sold must be ethanol. On 29 September 2006 in a media release the then shadow Treasurer, Peter Debnam, stated:
The NSW Liberal/Nationals ethanol action plan includes:
• Expansion of ethanol usage according to the following timetable:
2007 – 2% 2008 – 4% 2009 – 6% 2010 – 8% 2011 – 10%
• Upgrading of production and distribution infrastructure; • The sale of E10 at up to 500 service stations across NSW
I am pleased that the Coalition had such positive objectives. One matter that concerns me is whether, in spite of the Biofuel (Ethanol Content) Act 2007 No 23, all the requirements of that Act are carried through in a genuine and wholehearted manner. Part 2, section 6 of the Act states:
(1) A primary wholesaler must ensure that the volume of ethanol sold by the wholesaler (in petrol-ethanol blend) during a relevant period is not less than 2% of the total volume of all petrol (including petrol-ethanol blend) sold by the wholesaler during the relevant period.
The majority of petrol stations are cooperating. It has been reported that the Woolworths chain is not cooperating. It has corporate influence over 300 petrol stations. The future of ethanol production in New South Wales will be affected if those stations do not become involved in the mandated 2 per cent sale of ethanol. I urge the Government to give wholehearted support to the promotion of ethanol in New South Wales, and to maintain the timetable moving through to achieve the 10 per cent figure. [Time expired.]
COMMUNITY YOUTH SUPPORT SCHEME HIGH COURT DECISION ANNIVERSARY
AUSTRALIAN SERVICES UNION WORKFORCE ACHIEVEMENTS
The Hon. PENNY SHARPE (Parliamentary Secretary) [10.49 p.m.]: In recent weeks there has been a lot of discussion about the collapse of the financial system and the impact this is having across our economy. Our governments, both State and Federal, have taken significant steps to try to lessen the impact that greed 12 November 2008 LEGISLATIVE COUNCIL 11237
within fundamentalist capitalist market systems has caused, but, of course, we all live in a society not just an economy. Even with all the remedial action, many will fall through the cracks of our still wealthy society. Many men, women and children, through no fault of their own, will find themselves jobless, and perhaps homeless and desperately in need of support. Those vulnerable people will rely on the professional and dedicated work of the many thousands of workers across New South Wales who work in our community sector.
Last Friday I attended a dinner hosted by the Australian Services Union [ASU] that celebrated the achievements of that workforce. In particular, the dinner marked the twenty-fifth anniversary of the High Court's Community Youth Support Scheme decision—better known as the CYSS decision. It was that decision that opened the way for workers in non-government services to have the right to organise themselves into a union and to have the specialised and professional skills of their work recognised as a proper industry for the first time.
This landmark decision redefined the way the expression "industrial dispute" was to be interpreted under the Constitution. For the first time since 1908 the High Court took the popular meaning of "industrial dispute" as a dispute between employer and employees, overturning the narrow literal interpretation used for decades. This decision not only allowed non-government organisation workers to be recognised for the first time in industrial law, it opened up the range of workers who could be covered by the Federal arbitration system to include employees such as State schoolteachers, firefighters and university academics. These occupations had previously been regarded as outside the definition of "industry" and could not achieve award coverage.
The story of how this case was won is worth sharing. Armed with little funding, one paid staff member, an intern and the determination to take it all away to the High Court, this dedicated group of unionists delivered. The case was brought by the Australian Social Welfare Union [ASWU]—a union of about 1,000 members—on behalf of project officers for Australia's Community Youth Support Scheme [CYSS]. Like non-government organisations community workers, Community Youth Support Scheme project officers had been excluded from the Federal arbitration system. The Australian Social Welfare Union wanted to establish an interim award for Community Youth Support Scheme employees as a precursor for a Federal award to cover workers in the non-government services and community sector.
The Community Youth Support Scheme was created in 1976, essentially to help young people find work. Local committees, often comprising volunteers who employed project officers to work with the young people to get them work, managed the scheme. The project officers were in dispute with the committees about the pay and conditions under which they were employed and in 1979 the Australian Social Welfare Union served the Community Youth Support Scheme committees with a log of claims for an award. According to the Australian Social Welfare Union, the Federal Department of Employment and Youth Affairs, which funded Community Youth Support Scheme, was totally opposed to the making of an award for Community Youth Support Scheme workers. However, to avoid being identified as an opponent of the award it organised and funded legal representation against an award by a group of Community Youth Support Scheme committees. Among other things, it argued that Community Youth Support Scheme was not an industry and therefore no jurisdiction for an award existed.
The first major hurdle of the Australian Social Welfare Union was to prove that an industrial dispute did exist. This they did in 1979 when the Australian Conciliation and Arbitration Commission found that an industrial dispute between the project workers and committees existed, essentially because it was clear from the evidence and inspection that Community Youth Support Scheme is primarily not a welfare or educational activity but one concerned with increasing the supply of employable labour. But the Full Bench of the Commission granted an appeal on the grounds that the activities of the Community Youth Support Scheme committees were not incidental to industry. The question of whether the work of Community Youth Support Scheme project officers was an industry was to wind its way through various legal proceeding to the High Court. On 9 June 1983 the High Court of Australia found that Community Youth Support Scheme was an industry within the meaning of the Conciliation and Arbitration Act 1994. At the time the Australian Financial Review called it an industrial relations revolution—and it was. The decision meant that thousands of workers and professions previously excluded from the Federal commission could now seek award coverage.
In New South Wales the non-government community services sector comprises about 7,000 organisations and delivers an extraordinary range of essential services to the people of New South Wales. The sector works with some of the most marginalised and disadvantaged people in our community. The case brought by the Australian Social Welfare Union was integral to the struggle for bringing employees in the non-government community sectors into the award system. Their exclusion from award coverage had meant that 11238 LEGISLATIVE COUNCIL 12 November 2008 they had some of the poorest working conditions of Australian workers. In 1992 the Australian Social Welfare Union amalgamated with the Australian Services Union [ASU], and members of the Australian Social Welfare Union now form part of the social and community services industry division of the Australian Services Union. The Australian Services Union continues to fight for the rights of workers in the non-government community services sector. The community services sector still faces a range of new challenges—an increased demand for services and a workforce characterised by ageing workers, significant competition between public sector and community sector jobs, coupled with wage disparity between the two sectors. I am proud to be a member of a union forged by the hard work of those women and men of the Australian Social Welfare Union who had the audacity to say, "Yes, we can."
STATE BUDGET CRISIS
The Hon. MATTHEW MASON-COX [10.54 p.m.]: As this Chamber has heard on many occasions, this Labor Government is built on spin rather than substance, on promises rather than action, and always with an eye on the headline rather than on fixing the problems confronting the citizens of this great State. We have all heard the hackneyed clichés from this Government that "we are moving in the right direction, but with more to be done" or, more recently, that "tough times require tough decisions" or, my personal favourite from the Premier, that he is "having a red-hot go". All examples of the media wheels spinning furiously but New South Wales continuing to go absolutely nowhere! This week the Treasurer got into the act when he described the international financial crises as the "perfect storm" in terms of its impact on the budget position in New South Wales—a very convenient scapegoat indeed.
The reality is that the seeds of the New South Wales budget were primarily sown by the Labor Government's failure to exercise fiscal discipline over the past 13 years. This so-called fiscal crisis is all of its own making and Labor should do the honourable thing and accept responsibility rather than being loose with the truth and trying to blame everything on the international liquidity crisis—it is fooling no-one with this line. One of the most fundamental areas in which this Government has failed is its control of its own expenses. Expenses have been growing about 1 per cent faster than revenue for at least the last six years, yet the Government has failed to take any action to address this fundamental structural fiscal weakness. Vertigan and Stokes identified this obvious budget weakness in their audit of the expenditure and assets of New South Wales released in February 2006.
The report also proposed a range of measures to remedy this problem, but the Government chose to largely ignore these proposals. Indeed, the mini-budget continues this unsustainable trend with another $7 billion of expense blowouts in the next four years. This is alarming to say the least. Labor's undisciplined fiscal approach over time is again illustrated by a number of expenditure cuts in the mini-budget: $17 million has been cut from RailCorp by "managing all non-operational property on a commercial basis". That begs the question: What was happening before this? Presumably this property was being managed on a non-commercial basis. Why has it taken so long to identify these savings? Similarly, $300 million of savings was identified from the Health portfolio by—wait for it—"standardising patient billing and referral practices across public hospitals". An extraordinary proposition indeed!
Why has it taken 13 years to identify such an obvious and fundamental cost saving in a key portfolio area? Distinct signs of a lazy and incompetent Labor Government flush with funds and not willing to make the tough decisions, or indeed any decision, which might adversely impact upon its hallowed constituency. The Minister for Health referred to the obvious and long overdue savings in question time today like it was a badge of honour—13 years too late and millions of dollars wasted in the interim. In the end we all pay through this mini-budget for Labor's blinding incompetence. Why did we have to wait so long? The reality is that there is more! There is another $80 million in Department of Housing from "operational efficiencies". Why did we have to wait for operational efficiencies to be identified after 13 long years? There is another $120 million from reducing the State Executive Service officers by 20 per cent. Why did we have to wait until the Government rationalised the State Executive Service levels in the public service?
There is $93 million from reduced Government advertising. Well it will be interesting to see whether the Government can keep that up in an election year. Why has this Government failed to act on these and so many other cost savings in the last 13 years? Labor's expense growth has been unbridled during this time and this Government has consistently refused to act. Instead, Labor took the easy route and cruised along on the back of the rivers of gold from the economic good times—the property boom—rather than taking the tough decisions, the fiscally prudent decisions, like investing these huge surpluses in critical infrastructure and front-line services. Suddenly, as the economic cycle turned, New South Wales found itself with a budget deficit and no means to cushion the impact of the downturn on its budget revenues. 12 November 2008 LEGISLATIVE COUNCIL 11239
Instead of apologising for creating this fiscal mess, the Government has chosen to puff out its chest and thunder that its time for it to take the tough decisions in these tough economic times. The "red-hot go" Premier calls this leadership. The rest of us think he and his Government are delusional. The extremely negative reaction to the mini-budget from the New South Wales community confirms this. They just wish the "red-hot go" Premier would drop the red-hot and just go, go, go. The sad reality is that we are all the victims of this red-hot mess and we all must bear the brunt of this Government's poor economic management and lack of fiscal discipline through the increased costs introduced by the mini-budget. There are increased costs in getting our children to school, increased cost of green slips, increased parking costs, increased fares on public transport, increased taxes—the list goes on and on—at just the time when New South Wales families can least afford it. New South Wales is paying a very high price for this incompetent Labor administration. We will continue to do so until March 2011 when the victims of this mini-budget can finally give their verdict on this appalling Labor State Government.
BILLY GRAHAM
Reverend the Hon. Dr GORDON MOYES [10.59 p.m.]: Billy Graham celebrated his ninetieth birthday this week. Graham has preached in person to more than 215 million people in more than 185 countries during his more than 70 years of ministry. Billy Graham is believed to have spoken face-to-face with more people in more places than any other person in history. Hundreds of millions more have been reached through television, video, film and webcast. Billy Graham has led hundreds of thousands of individuals to make personal decisions to live for Christ, which is the main thrust of his ministry. In 1950 Billy Graham founded the Billy Graham Evangelistic Association. Through that ministry Graham has broadcast the gospel around the world, printed a magazine that is regularly distributed to more than 600,000 subscribers, and produced and distributed more than 125 evangelistic productions and films.
This year also marks 50 years since Billy Graham first came to Australia in 1959. He had a tremendous impact upon Christian people in the community in general. His crusades were well attended everywhere he went. Many significant present church leaders, such as the Anglican Archbishop of Sydney, Dr Peter Jensen, made commitments to Jesus Christ in those crusades as young people. The crowds in Sydney filled both the Sydney Cricket Ground and the Sydney Showground. In Melbourne the largest crowd ever in that city gathered in the Melbourne Cricket Ground with 120,000 people present. I was there.
While Billy Graham was in Melbourne he had a special school for evangelists. It was my ambition to preach the gospel to many people in public buildings, open air rallies, on radio and maybe even on the new medium of television. I wanted to take advantage of what Billy Graham would have to teach us. I was overjoyed when I received a letter from America indicating that I could attend even though I would be the youngest person by far in that crowd. Twenty years later Billy Graham again came to Australia, and this time when he came to Sydney I was the newly appointed superintendent of Wesley Mission. The opening Sunday afternoon rally that Billy spoke at, the first crusade, was in the stands at Randwick Racecourse. They were packed. I was privileged to say the opening prayer that was heard not only by the 50,000 people present but by the audience of a worldwide radio broadcast and a television audience of tens of millions of people worldwide.
After that service I received a message that Dr Graham would like to see me during the following week. That one meeting turned into three private meetings. Billy Graham asked if I would like to join their team as a special lecturer in the School of Evangelism. I wrote and thanked Dr Graham for his invitation and indicated that I would be honoured to go once a year to a major centre of the world where he was conducting a crusade to give the lectures, but I could not go four times a year as he had requested. I travelled first to San Jose in California. This is in the heart of Silicon Valley and I was to preach in a number of preliminary crusade meetings before Reverend Graham arrived. Spartan Stadium was the place that we had the meetings. My first appointment as an associate evangelist was to speak in San Quentin prison. Hundreds of prisoners sat there listening to the musicians that were with the team before I spoke. I also gave a lecture, the first of three, to some 2,000 ministers that came from around the United States to the School of Evangelism.
On the Sunday morning of the San Jose crusade I was invited to speak at Crystal Cathedral with Dr Robert Schuller. I had previously spoken on the same platform with him at some Church Growth and Evangelism workshops. Dr Schuller very generously invited me to preach on that morning and on his television program The Hour of Power. I was to meet with Billy Graham on many other occasions in many other crusades. It was also a privilege on his behalf to attend a number of Schools of Evangelism, Church Growth and Nurture and to lecture graduate students at Wheaton College and, on behalf of the Billy Graham Evangelistic Association, to speak in great churches in Memphis, Fort Worth and Norfolk, Virginia. 11240 LEGISLATIVE COUNCIL 12 November 2008
Billy Graham followed those lectures with an invitation to me to lecture in 1984 in Amsterdam to 10,000 evangelists who gathered there for the first International Conference on Evangelism. This was followed by a second such conference in 1986 when I spoke to more than 10,000 evangelists from around the world. It was a privilege to meet with leading evangelists from around the world and to build a network of friendships between these men and women who give their lives to proclaiming the gospel in every corner of the earth. It has been one of the greatest thrills of my life to be so involved. My personal knowledge of over 40 years is that in Billy Graham we have seen one of Australia's and one of God's great preachers, one who has honestly and fearlessly proclaimed the gospel and fulfilled in the most honourable way the work of an evangelist. Now Billy Graham is 90 years and in frail health but we still honour him—not only a great evangelist, but also a remarkably good man.
DOMESTIC VIOLENCE: PUTTING THE PIECES BACK TOGETHER BOOKLET
The Hon. HELEN WESTWOOD [11.04 p.m.]: Tonight I rise to inform the House of an invaluable resource for women experiencing domestic violence. Putting the Pieces Back Together is a small booklet that contains practical, relevant and valuable advice. It is an innovative resource that has the potential to assist hundreds of women in crisis or at risk of domestic violence. Putting the Pieces Back Together is unique as it is written by women who have survived domestic violence and who have been through the system. This gives it a powerful relevance. It speaks to women from first-hand experience and knowledge of how to get help, where to get help and how to rebuild their lives after the trauma of domestic violence.
Of course, there are other information booklets and directories available for women experiencing domestic violence; however, these are usually written and produced by professionals counsellors, academics or community workers. While these are also useful resources for women experiencing domestic violence and those who are supporting them, I believe Putting the Pieces Back Together will be of even greater value to women experiencing domestic violence who are seeking information and advice on how to protect themselves and their children. It talks to women about healthy relationships and helps women to identify the difference between respectful and disrespectful relationships. It gives women the indicators of domestic and family violence and describes the behaviours of physical abuse, sexual abuse, psychological abuse, emotional abuse, financial abuse, spiritual abuse and social abuse that make up domestic and family violence.
The booklet advises on safety planning. This is such good advice for women who are experiencing domestic violence. The writers of Putting the Pieces Back Together encourage women to consider what they can do if a violent incident occurs to make them and their children safer, such as planning an escape route, having a safe place to escape to and talking to their children about how they can stay safe if there is an incident of domestic violence. The booklet also makes women aware of the need for online safety. It points out that if a woman is sharing a computer with the offender her emails both sent and received can be accessed along with a history of the websites she has visited. It discusses the effects of domestic violence on children and outlines the support services and resources available to women who are leaving a violent relationship.
I attended the launch of Putting the Pieces Back Together last Friday and had the opportunity to meet members of the Louisa Lawson Action Network, who wrote and produced the booklet. The network is made up of survivors of domestic violence who wanted to do something for other women experiencing domestic violence. They used their own experiences to identify the areas of the system that let them down and they have documented the information they would like to have known throughout their own experience. As one of the survivors who tells her story in the booklet said, "If I'd had access to this kind of information when I needed it most, I would have better understood what I was experiencing and tried to seek help sooner, rather than suffering in silence for years." She went on to say, "Talking helps. That is why I went to counselling in the first place. … The Benevolent Society has been fantastic."
She and other survivors came together through the work of the Benevolent Society's Centre for Women's Health at Campbelltown. Establishing the Louisa Lawson Action Network has been a vital part of these women's recovery journey. The Benevolent Society is to be commended for its commitment to helping women suffering from violence and emotional and psychological abuse by offering practical strategies and support to help them rebuild their lives. The New South Wales Department of Corrective Services funded the publication of the booklet by way of a $13,000 grant that was provided from funds raised by inmate work in New South Wales prisons. This is an appropriate use of these funds as a significant number of inmates in New South Wales jails are incarcerated because they committed crimes against women and children. Some 10,000 copies of the booklet will be distributed, along with 1,000 copies of a poster to promote awareness of domestic violence throughout New South Wales. 12 November 2008 LEGISLATIVE COUNCIL 11241
Violence against women is one of the most serious issues confronting us as a State and as a nation. Until we completely eradicate it, there can never be real gender equity. As we all know, domestic violence is prevalent across all communities. It does not discriminate. It can impact on women from all walks of life. It affects the old, the young, those with a disability, Aboriginal women and women from culturally and linguistically diverse backgrounds. It occurs across all income groups and cultural groups. It can devastate families and communities. Some real and positive achievements have been made in recent times to tackle domestic violence but I believe that one woman assaulted is one woman too many. That is why the contribution of this group of domestic violence survivors is so important. As well as being informative, Putting the Pieces Back Together is testament to the courage, resilience, determination and great dignity of its authors. I congratulate them and the Louisa Lawson Action Network on this important publication.
Question—That this House do now adjourn—put and resolved in the affirmative.
Motion agreed to.
The House adjourned at 11.09 p.m. until Thursday 13 November 2008 at 11.00 a.m.
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