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LEGISLATIVE COUNCIL

Wednesday 2 December 2009

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The President (The Hon. Amanda Ruth Fazio) took the chair at 11.00 a.m.

The President read the Prayers.

BUSINESS OF THE HOUSE

Precedence of Business

Motion, by leave, by the Hon. Tony Kelly agreed to:

That on Wednesday 2 December 2009:

(a) Government Business take precedence of debate on Committee Reports and debate on Budget Estimates, and

(b) Questions commence at 4.00 p.m.

PRESIDENT OF THE LEGISLATIVE COUNCIL

Presentation to the Governor

The PRESIDENT: The House will now proceed to Government House to present its President to Her Excellency the Governor. I will now leave the chair and cause the bells to be rung at 2.00 p.m.

The House proceeded at 11.03 a.m. to Government House, there to present the President to Her Excellency the Governor.

The House returned at 2.00 p.m.

The PRESIDENT: I have to report that the Legislative Council went to Government House today where I informed the Governor that, following a vacancy in the office of President, the Legislative Council, in the exercise of its lawful right, had proceeded to the election of its President and that the choice had fallen upon me as the independent and impartial representative. I presented myself to Her Excellency as your President and Her Excellency was pleased to offer me her congratulations.

I further report that, in the name and on behalf of the House, I laid claim to all of its undoubted rights and privileges, particularly to freedom of speech in debate, to free access to Her Excellency when occasion should require, and asked that the most favourable construction should, on all occasions, be put upon their language and proceedings; to all of which the Governor readily assented.

ELECTION FUNDING AND DISCLOSURES AMENDMENT (PROPERTY DEVELOPERS PROHIBITION) BILL 2009

Bill received from the Legislative Assembly, and read a first time and ordered to be printed on motion by the Hon. John Hatzistergos.

Bill declared to be an urgent bill by the Hon. John Hatzistergos.

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

JAMES HARDIE FORMER SUBSIDIARIES (WINDING UP AND ADMINISTRATION) AMENDMENT BILL 2009

Bill received from the Legislative Assembly, and read a first time and ordered to be printed on motion by the Hon. John Hatzistergos.

Bill declared to be an urgent bill by the Hon. John Hatzistergos.

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

2 December 2009 LEGISLATIVE COUNCIL 20343

PARLIAMENTARY ELECTORATES AND ELECTIONS AMENDMENT (AUTOMATIC ENROLMENT) BILL 2009

STATUTE LAW (MISCELLANEOUS PROVISIONS) BILL (NO. 2) 2009

ROAD TRANSPORT LEGISLATION AMENDMENT (MISCELLANEOUS PROVISIONS) BILL 2009

RURAL LANDS PROTECTION AMENDMENT BILL 2009

CRIMES AMENDMENT (FRAUD, IDENTITY AND FORGERY OFFENCES) BILL 2009

Messages received from the Legislative Assembly returning the bills without amendment.

AUDITOR GENERAL'S REPORT

The President tabled, pursuant to the Public Finance and Audit Act 1983, a financial audits report of the Auditor-General entitled "Volume Eight 2009: Focusing on Emergency Services and Law and Order", dated November 2009.

Ordered to be printed on motion by the Hon. John Hatzistergos.

BUSINESS OF THE HOUSE

Formal Business Notices of Motions

Private Members' Business item Nos 227, 237 and 240 outside the Order of Precedence objected to as being taken as formal business.

SYDNEY STAR OBSERVER

Motion by the Hon. Don Harwin agreed to:

1. That this House notes that:

(a) on Wednesday 9 December 2009, the 1000th issue of the local community newspaper, Sydney Star Observer, will be published,

(b) for 30 years the Sydney Star Observer has served the Australian gay and lesbian community as the pre-eminent provider of news and information,

(c) the Sydney Star Observer is distributed in regional New South Wales, capital cities and tourist gateways such as Cairns in North Queensland,

(d) the Sydney Star Observer has the highest audited circulation of any gay and lesbian weekly newspaper in the country, and

(e) the Sydney Star Observer website is one of the most popular on-line sources for Australian gay and lesbian news and views with an active interstate and overseas readership.

2. That this House congratulates the staff, contributors and volunteers, past and present, that have made the Sydney Star Observer such a successful publication and such an important part of the gay and lesbian community.

GENERAL PURPOSE STANDING COMMITTEES

Portfolio Responsibilities

Motion by the Hon. Don Harwin agreed to:

That the resolution appointing five general purpose standing committees reflecting Government ministers' portfolio responsibilities adopted by this House on 10 May 2007, and as amended, be further amended to reflect the changes to Government Ministers’ portfolio responsibilities as follows:

(a) General Purpose Standing Committee No. 1 Premier Arts Central Coast The Legislature Treasury State Development 20344 LEGISLATIVE COUNCIL 2 December 2009

Ports and Waterways Tourism Science and Medical Research Hunter Commerce

(b) General Purpose Standing Committee No. 2 Community Services Women Aboriginal Affairs Ageing Disability Services Education and Training Health

(c) General Purpose Standing Committee No. 3 Attorney General Industrial Relations Police Finance Gaming and Racing Sport and Recreation Local Government Mental Health and Cancer Juvenile Justice Volunteering Youth Veterans' Affairs

(d) General Purpose Standing Committee No. 4 Infrastructure Planning Redfern Waterloo Fair Trading Citizenship Emergency Services Rural Affairs Small Business Transport Illawarra Housing Western Sydney

(e) General Purpose Standing Committee No. 5 Corrective Services Climate Change & the Environment Public Sector Reform Special Minister of State Energy Mineral Resources Regulatory Reform Primary Industries Lands Water Regional Development.

GENERAL PURPOSE STANDING COMMITTEES

Budget Estimates 2009-2010: Portfolios and Hearing Dates

Motion by the Hon. Don Harwin agreed to:

That the resolution referring the Budget Estimates and related papers to the General Purpose Standing Committees, adopted by this House on 24 November 2009, be amended by omitting paragraph 3 and inserting instead:

3. That the initial hearings be scheduled as follows:

Day One: 13 September 2010 GPSC1 Commerce, Tourism, Hunter, Science and Medical Research 9.15 am –1.00 pm GPSC2 Health 9.15 am – 1.00 pm GPSC1 Ports and Waterways 2.00 pm – 4.30 pm GPSC2 Ageing, Disability Services 2.00 pm – 4.30 pm GPSC1 The Legislature 4.45 pm – 6.00 pm GPSC2 Aboriginal Affairs 4.45 pm – 6.00 pm

2 December 2009 LEGISLATIVE COUNCIL 20345

Day Two: Tuesday 14 September 2010 GPSC1 Treasury, State Development 9.15 am – 1.00 pm GPSC3 Local Government 9.15 am – 11.00 am GPSC3 Mental Health and Cancer 11.15 am – 1.00 pm GPSC1 Premier, Arts, Central Coast 2.00 pm – 6.00 pm GPSC3 Attorney General, Industrial Relations 2.00 pm – 4.00 pm GPSC3 Juvenile Justice, Volunteering, Youth, Veterans' Affairs 4.15 pm – 6.00 pm

Day Three: Wednesday 15 September 2010 GPSC2 Community Services, Women 9.15 am – 1.00 pm GPSC4 Fair Trading, Citizenship 9.15 am – 11.00 am GPSC4 Housing, Western Sydney 11.15 am – 1.00 pm GPSC2 Education and Training 2.00 pm – 6.00 pm GPSC4 Planning, Infrastructure, Redfern Waterloo 2.00 pm – 6.00 pm

Day Four: Thursday 16 September 2010 GPSC4 Transport, Illawarra 9.15 am – 1.00 pm GPSC5 Water, Regional Development 9.15 pm – 1.00 pm GPSC4 Transport, Illawarra 2.00 pm – 3.00 pm GPSC4 Emergency Services, Small Business, Rural Affairs 3.15 pm – 6.00 pm GPSC5 Corrective Services, Public Sector Reform, Special Minister of State, Energy 2.00 pm – 6.00 pm

Day Five: Friday 17 September 2010 GPSC3 Police 9.15 am – 1.00 pm GPSC5 Climate Change and the Environment 9.15 am – 1.00 pm GPSC3 Finance 2.00 pm – 3.30 pm GPSC5 Primary Industries, Lands 2.00 pm – 4.00 pm GPSC3 Gaming and Racing, Sport and Recreation 3.45 pm – 6.00 pm GPSC5 Mineral Resources, Regulatory Reform 4.15 pm – 6.00 pm

BUSINESS OF THE HOUSE

Formal Business Notices of Motions

Private Members' Business items Nos 251 and 254 outside the Order of Precedence objected to as being taken as formal business.

UNPROCLAIMED LEGISLATION

The Hon. John Robertson tabled a list detailing all legislation unproclaimed 90 calendar days after assent as at 2 December 2009.

TABLING OF PAPERS

The Hon. John Robertson tabled, pursuant to the Annual Reports Statutory Bodies Act 1984, a report of the Mine Subsidence Board for the year ended 30 June 2009.

Ordered to be printed on motion by the Hon. John Robertson.

PETITIONS

Program of Appliances for Disabled People

Petition requesting that current and future budgets are based on the need for the timely provision of equipment, aids, appliances and personal care services to improve the wellbeing and quality of life for people with a disability, received from Mr Ian Cohen.

BUSINESS OF THE HOUSE

Postponement of Business

Government Business Notices of Motions Nos 1 to 3 postponed on motion by the Hon. John Hatzistergos.

Government Business Orders of the Day Nos 1 and 2 postponed on motion by the Hon. John Hatzistergos. 20346 LEGISLATIVE COUNCIL 2 December 2009

BUSINESS OF THE HOUSE

Precedence of Business

Motion by the Hon. John Hatzistergos agreed to:

That on Thursday 3 December 2009 Government Business take precedence of General Business.

JAMES HARDIE FORMER SUBSIDIARIES (WINDING UP AND ADMINISTRATION) AMENDMENT BILL 2009

Second Reading

The Hon. JOHN HATZISTERGOS (Attorney General, Minister for Industrial Relations, and Vice President of the Executive Council) [2.10 p.m.]: I move:

That this bill be now read a second time.

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

Leave granted.

The New South Wales Government is deeply concerned for asbestos victims and our first priority has and always will be to seek justice for them.

In April this year the Asbestos Injuries Compensation Fund notified James Hardie and the New South Wales Government that it had determined that:

it was reasonably foreseeable that within two years ...

… the available assets of the Fund were likely to be insufficient to fund the payment of all reasonably foreseeable liabilities.

The gravity of the announcement cannot be underestimated.

We are living in difficult times with unprecedented challenges. The financial crisis that started in the US has deeply affected James Hardie's bottom line. That financial crisis has now spread across the world causing a global recession. And while this has meant that James Hardie's payments to the Fund are affected … they are bound by an Agreement … underpinned by law that they cannot resile from. The fact is this: they must pay their debt to their victims.

This Parliament enshrined in legislation the Final Funding Agreement, which is worth some $1.78 billion in today's terms over the next 40 years. The agreement provides that there is no overall cap on James Hardie's liabilities or any cap on payments to individuals. Nothing about these challenging times means that compensation cannot or will not be paid. And that is because the NSW and Commonwealth Governments are providing a loan to the Fund.

On 7 November 2009, the Premier and Prime Minister announced that the New South Wales and Commonwealth Governments will provide a loan of up to $320 million to ensure that victims of James Hardie's asbestos continue to receive full compensation payments. This bill enables that loan to proceed.

I am proud of this Government and the Federal Government for their action. We will stand up for workers and their families. We had the determination in the past to stand up for victims and their families—and deliver the justice that they deserve. We had the determination then. We have got the determination now.

There are two other matters I wish to raise before I turn to the detail of the bill. Asbestos disease is a national issue in Australia. Tragically, asbestos diseases cases arise in all Australian jurisdictions. When the New South Wales Government set up the Jackson Special Commission of Inquiry into the funding of the Medical Research Compensation Foundation in 2004, we did so because the then Commonwealth Government was unwilling to take action.

Again, in 2005 and 2006, the New South Wales Government joined the unions and victims' groups in negotiating the Final Funding Agreement with James Hardie because the then Commonwealth Government was unwilling to address the issue. So it is with great pleasure that I acknowledge the significant contribution of the current Commonwealth Government in addressing the prospective funding shortfall for the Fund.

The New South Wales Government had no intention of walking away from asbestos victims after all these years. We welcome, however, the Commonwealth Government's recognition that this is not an issue we should have to deal with alone. Asbestos victims throughout Australia will gain greater security and certainty as a result of the loan funds to be provided by the Commonwealth and New South Wales Governments.

The other matter I wish to address is how the loan will affect James Hardie's obligation to make payments under the Final Funding Agreement. In short, the loan has no impact on James Hardie's obligation to pay under the Final Funding Agreement. 2 December 2009 LEGISLATIVE COUNCIL 20347

The funding mechanism requires James Hardie to keep making payments until all claims are paid in full. Although the agreement limits the amount James Hardie has to pay in any year to a maximum 35 percent of its free cash flow, there is no limit on its overall payments under the Agreement. This means that the cash flow cap affects the timing of James Hardie's payment obligations, but not James Hardie's obligation to pay in full under the Agreement.

The agreements to implement the loan will require the loan to be repaid as quickly as possible, as James Hardie's payments to the Fund improve. Since early 2007, James Hardie has made payments to the Fund totalling $302 million. It has also announced that it expects to be able to make a payment to the Fund from the current year's cash flow. This amount will be payable in the middle of 2010, although it may not be enough to cover claims payments for the 2010/2011 financial year. James Hardie's payments under the Final Funding Agreement will, over time, catch up with the needs of the Fund. While we are waiting for this to happen, for the next few years the loan from the New South Wales and Commonwealth Governments will provide security and certainty for victims. The loan will not in any way reduce James Hardie's obligation to pay.

I now turn to the details of the legislation. The main provision of the bill is Item [10] of schedule 1, which inserts a new Division in Part 4 of the Act. Proposed section 30A will authorise the Asbestos Injuries Compensation Fund, as the SPF trustee, and the liable entities to enter into relevant loan facility agreements. The bill requires that the State be a party to any relevant loan facility agreement. Of course, for the particular loan we are currently negotiating, the State will be the lender of up to $320 million. The provision in the bill is drafted more broadly so that it may be able to be used in the future for other loan arrangements that may become necessary. Requiring the presence of the State will ensure that the relevant loan facility agreements are in the interests of claimants.

Proposed section 30A also authorises the Fund to give security for a loan facility, and it authorises the liable entities to guarantee the obligations of the Fund and to provide security for their guarantees. For the particular loan we are currently negotiating, it is intended that the State will take security over a number of assets, including the proceeds of the insurance policies held by the liable entities. These proceeds are currently valued at about $320 million. Proposed section 30A also ensures that the Fund and the liable entities are authorised to comply with all of their obligations under an authorised loan facility agreement. This will ensure, among other things, that the Fund is able to repay the loan and to pay any costs or charges associated with the loan.

The amendment in Item [4] of schedule 1 makes it clear that an authorised loan facility does not change the status of the Fund as a charitable trust and that repaying the loan is a valid application of the trust fund. The amendment in Item [5] of schedule 1 ensures that the liable entities may comply with their obligations under any relevant loan facility agreement during the winding up period under the Act, and the amendment in Item [7] of schedule 1 allows the Fund to issue directions to the liable entities in relation to any loan facility agreement and any authorised loan facility.

The amendment in Item [19] of schedule 1 ensures that the protection currently in the Act for the exercise of certain functions during the winding up period will not prevent any party from enforcing or taking action under a relevant loan facility agreement. Item [20] of schedule 1 proposes to extend the current exemption from State taxes to any relevant loan facility agreement, including any guarantee or security under a relevant loan facility agreement.

As I have indicated, the Government is currently negotiating the documents for this particular loan of up to $320 million. The relevant loan facility agreements are not yet finalised. Item [21] of schedule 1 proposes to insert a new section 64A into the Act under which the Minister will table a copy of the relevant loan facility agreements as soon as is reasonably practicable after the agreement has been signed. This is the same approach the Government followed in relation to the Final Funding Agreement, and it will ensure that there is complete transparency in relation to the loan.

This bill also proposes to make some amendments to the approved payment scheme provisions in the Act. Although the Government hopes that payment by instalments will never be required, the Fund has identified some possible improvements to these provisions in the course of all the work that it has done in considering an instalment scheme. Rather than waste this work, the Government is prepared to introduce the amendments requested by the Fund. If the very unfortunate circumstances arise where payments need to be made by instalments, these amendments should ensure that the approved payment scheme is as fair as possible and operates in the interests of claimants as a group.

There are four elements to the approved payment scheme amendments proposed in the bill. First, the bill makes it clear that an approved payment scheme can commence before the Fund completely runs out of money. Item [13] of schedule 1 clarifies that the scheme period may commence before the time at which there will be insufficient funds if the Court is satisfied that this will result in claimants being treated more equally.

Second, the bill allows the Court to approve an interest rate to apply to deferred payments which compensates for inflation but which need not be a commercial interest rate. If the Fund were required to pay interest on instalments at court interest rates, which are currently some nine percent, this would have the effect of extending the duration of the approved payment scheme by a number of years. Striking a balance between compensating for the delay in payment and minimising the need for instalment payments will better protect the interests of claimants as a group.

Third, the bill proposes that the Fund be able to pay small claims in full, rather than by instalment. Item [3] of schedule 1 introduces a definition of small claim. In short, it is any claim of $25,000 or less, with the limit of $25,000 to be adjusted for inflation. Very few if any claims are for $25,000 or less, but the liable entities sometimes pay such amounts when they are contributing to a damages award with a number of other defendants. The Fund has advised that some 11 percent of claims currently cost the liable entities less than $25,000 but represent less than one percent of the total claims payments. Finalising these small claims without paying by instalments will simplify the administration of an approved payment scheme for the Fund. It will not have any material impact on the Fund's ability to meet instalment payments for larger claims.

Finally, the bill proposes to allow the Court to approve a scheme that provides for different payment options to be offered to claimants so that they can make a choice. If there are two or more ways in which to divide payments, which are equally affordable to the Fund, then it makes sense to allow claimants to make a choice. For some claimants, being paid in full in the 20348 LEGISLATIVE COUNCIL 2 December 2009

fewest possible number of years might be most important, while other claimants might choose to be paid over more years provided that the amount of their first payment is maximised. If a scheme allows claimants a choice, the bill will also require that it specify a default payment option so that claimants are not forced to make a choice if they are unable to do so.

Yesterday it was 4 years ago to the day—on 1 December 2005 that the then Premier and Attorney General announced and introduced into this house legislation that was and still is a great victory for asbestos victims. It was an agreement—years in the making, and worth many hundreds of millions of dollars—led by the late great warrior Bernie Banton, of which we were and are still very proud. I honour the memory of Bernie—and the many other victims—who do not survive to see this day. It was truly an historic agreement, to stand the test of time.

This legislation will assist at a time which represents the worst downturn since the great depression. We are in exceptional circumstances. And we have acted. I would like to take this opportunity to thank Karen Banton, CEO, Bernie Banton Foundation, Paul Bastian of the AMWU, Barry Robson President of ADFA, Mark Lennon of Unions NSW, Jeff Lawrence from the ACTU and others who have worked absolutely tirelessly on this campaign for an extended period. I also acknowledge and thank them for their support of this bill. I am pleased to commend the bill to the House.

The Hon. GREG PEARCE [2.11 p.m.]: The New South Wales Liberals and The Nationals are pleased to cooperate in Parliament's passing the James Hardie Former Subsidiaries (Winding up and Administration) Amendment Bill 2009, which has been introduced urgently today to preserve compensation payments that are due to the very unfortunate victims of asbestos diseases. The purpose of the legislation is to enable the compensation fund to borrow funds from the State and Federal governments to make up for the shortfall potentially arising because of the impact of the global financial crisis on James Hardie's earnings.

The funding arrangements provide that James Hardie does not have to make a contribution if it does not have a free cash flow. No contribution will be made for the 2009-10 financial year, which could have the effect of the fund not having money to pay its liabilities. We all know the tortuous course that victims of asbestos diseases had to endure to reach a settlement and compensation. It would be a travesty if those arrangements were frustrated now by economic circumstances beyond the control of anyone. Arrangements were announced approximately two weeks ago when James Hardie's final financial results were made public. I understand that the loan is approximately $320 million and that James Hardie expects to be able to return to profit and make contributions during the next financial year.

I am pleased that the bill provides that any loan arrangements will be tabled in Parliament, when appropriate, so that the arrangements will be open and transparent. The community and the House will be able to examine the arrangements that have been made. The deal also gives the Supreme Court power to approve arrangements for interest to be paid on instalments, if it is the necessary for the fund to delay payments. Hopefully, that will not be the case; but it is possible, if the fund is running out of money. The bill also has provisions for small claims to be paid. Small claims are defined as being worth $25,000 or less. Those amounts are indexed. The bill has other amendments that provide for other payment options.

The final funding agreement is worth approximately $1.78 billion over the next 40 years. The agreement provides that there is no overall cap on James Hardie's liabilities, or any cap on payments to individuals. Because of current economic circumstances, there is some potential risk posed to the compensation fund. The Liberals and The Nationals are pleased to cooperate with the New South Wales and Federal governments providing a loan to the fund. According to the second reading speech that was made in the lower House, since 2007 James Hardie has made payments to the fund totalling $302 million. Under the final funding agreement, notwithstanding the loan for which the bill provides, James Hardie will make payments to catch up with meeting the total needs of the fund. It is important to recognise that the funding mechanism requires James Hardie to continue to make payments until all claims on the fund are paid in full.

The New South Wales Liberals and The Nationals are concerned to ensure that victims of asbestos diseases remain our first priority. We are pleased to play our part in achieving justice for them. I understand that Mrs Karen Banton, who is the chief executive officer of the Bernie Banton Foundation and widow of the late Bernie Banton, was present when the bill was introduced in the other place. I join other members in commending her for her courage and tireless activity in pursuing compensation for victims.

Ms LEE RHIANNON [2.16 p.m.]: The Greens support the James Hardie Former Subsidiaries (Winding up and Administration) Amendment Bill 2009. Today the New South Wales Government clearly is doing the right thing by victims of asbestos diseases and their families, the right thing by future victims of asbestos diseases and their families, and the right thing by Bernie Banton, Karen Banton and all who have worked tirelessly to achieve justice for victims of asbestosis. We now know that the financial crisis impacted deeply on James Hardie and its profits. Last month the Federal and State governments came forward with a plan to ensure continuation of payments that had been arranged after a long campaign, which included action taken 2 December 2009 LEGISLATIVE COUNCIL 20349

by State and Federal governments. Those governments deserve to be congratulated on providing a loan of $320 million to ensure that victims of asbestos diseases continue to receive their full compensation payments. I understand from material I have received and from Government briefings that the loan does not reduce in any way the obligation of the company to pay under the final funding agreement, and that is very important.

However, on behalf of the Greens, I state for the record our abiding concern about the ongoing ability and willingness of James Hardie to do the right thing by victims of asbestosis, especially considering that the recent financial crisis is not likely never to recur—companies do have their tricky ways. We must remember that when economic crises occur, they may result in enormous uncertainty and insecurity for victims of asbestos diseases and their families who for years have waited for an outcome, thought they had security and certainty, but now find themselves under enormous pressure. That is why, on behalf of the Greens, I sincerely congratulate the Government on its quick action.

Whenever the asbestosis compensation issue is discussed in this place, we must remember not only the enormous number of people who suffer already from asbestos diseases but also those who will be struck down. The statistics are quite extraordinary. The Australian Council of Trade Unions [ACTU] estimates that every third domestic dwelling that was built before 1982 contains asbestos. Many people undertake renovations, and many are not aware of the time bomb that is ticking in their houses if asbestos material is moved in a manner that is unsafe.

We also need to put on the record that at every point in this long saga the James Hardie company knew about the serious health risks, and at every turn the company tried to avoid its responsibilities. This legislation, and the reason that James Hardie has been obliged to make payments to the victims of asbestos, is the result of a huge campaign by workers, unions and a range of community organisations that have worked on this issue for so long. Members need to keep that in sight. Often, progressive legislation that makes a real difference to people's lives has come forward because of the heroic, courageous and tireless work of so many people.

In that context I acknowledge not only the work; I acknowledge that the Government, in bringing forward this legislation, consulted with the Chief Executive Officer of the Bernie Banton Foundation, Karen Banton; Paul Bastion of the Australian Metal Workers Union; the President of the Asbestos Diseases Foundation, Barry Robson; and Mark Lennon of Unions NSW. I understand that there were extensive discussions about the provisions of this bill. The Greens are pleased to support the bill. Again, I congratulate the Government on moving quickly.

The Hon. JOHN DELLA BOSCA [2.21 p.m.]: I am proud to support this legislation. All of us in this House will remember the passing of a true and noble Australian and a great warrior, the remarkable Bernie Banton. I understand that his wife, Karen Banton, has been in the Parliament today. I take this opportunity to acknowledge her and her continuing work and tireless campaigning to secure justice for the sufferers of asbestos diseases, and in particular the victims of James Hardie. Over many years the New South Wales Government has acted to ensure that we secure appropriate compensation for asbestos victims. The James Hardie Former Subsidiaries (Winding up and Administration) Amendment Bill 2009 continues this tradition.

In 2004 the New South Wales Government established a judicial inquiry into the Medical Research Fund and Compensation Foundation, and we have continually supported and ensured that James Hardie provides adequate funds to compensate those asbestos sufferers. All of us will remember—indeed, I remember and could write a book on the subject—the circumstances of the Jackson inquiry and other turns and twists in the struggle to get justice for asbestos victims. We heard about them at the time in this Chamber, we debated legislation, and we provided a landmark funding agreement to pay victims $1.78 billion over 40 years. This was not easy; it involved a long struggle and a great deal of insistence.

Today we have been called on again for assistance, this time because the James Hardie company is unable, due to the global financial crisis, to meet those statutory commitments. The Labor Government—indeed, any decent government—cannot let asbestos victims down. In order to ensure the continuity and availability of payments to asbestos victims, the New South Wales and Federal governments have agreed to contribute loan funds of $160 million each to the Asbestos Injuries Compensation Fund. I understand that the loan will support payments over three years at current claim rates, providing greater security and certainty for James Hardie victims.

The bill ensures that the fund has the power to enter into the loan facility agreement and to repay the loan. At this point I reiterate that it must and will continue to be the responsibility of James Hardie to meet its 20350 LEGISLATIVE COUNCIL 2 December 2009

commitments towards the fund and towards asbestos victims. This is a critical element of restorative justice, both now and in the future. The global financial crisis, and in particular the downturn in the American property market and the consequential downturn in residential development, has had a negative effect on contributions to the Asbestos Diseases Compensation Fund from James Hardie.

This bill, and more particularly the loan agreement, facilitates and ensures that funds continue flowing to asbestos victims until economic circumstances put James Hardie back on track and back in a position to meet its obligations. The New South Wales and Federal governments have not stood idly by in the face of the global financial crisis. In many ways we have acted quickly to ensure that the economy is stimulated to preserve jobs. In this case we are acting quickly and decisively to protect vulnerable groups in our society. We have made it clear to the victims of James Hardie: We will stand by you until James Hardie is able to resume its obligations.

It is a useful time to reflect on the challenge that the James Hardie saga presents to policymakers and those concerned with the preservation of decent human values in economic and social life. Serious social and economic theorists through to pop commentators on all sides of the ideological divide have reflected on the evolution of the corporation and its consequences for human affairs in our society. Clearly, the legal and organisational institution of the corporation is essential to the functioning of a modern society. But it remains a challenging role for governments, lawmakers and, indeed, everyone in the community to ensure that the community, consumers, workers and particularly the more vulnerable in our society are not disadvantaged, exploited or left to bear the unfair consequences of profit-seeking or other risk-reduction behaviour by corporations.

Corporations, those who staff them, and those responsible for their operations need to recognise their social responsibilities. Indeed, I believe we need an across-the-board debate, not only in this country and in our jurisdiction but throughout the world, about the ways in which corporations respond to moral and other dilemmas and how they can be encouraged, cajoled or on occasions obliged to act ethically. Many corporations do not act ethically, and in the case of James Hardie we have a company that literally had to be dragged kicking and screaming to provide justice. When corporations do not act ethically parliaments throughout the world must act. We must ensure that there is justice for people who cannot look after themselves, and their families. The massive damage done to the health of a generation of asbestos sufferers needs to be rectified. We need to ensure that those people are assisted and receive justice. We also need to honour them by continuing the policy debate about how to secure fairer, more appropriate and more ethical behaviour by institutions in our society.

I am proud to be associated with this legislation and the Government's campaign in relation to James Hardie. It is important to note, from a number of perspectives, the great campaign by the unions. It is important to see unions in their political context as struggling on behalf of workers. Organised labour does not always get a fair go and a fair hearing in society. However, whether on this side of the Chamber, on the other side of the Chamber or on the crossbench, we must acknowledge that the great work of organised workers, through their labour unions, to achieve justice for James Hardie victims is an important hallmark of this campaign. I have a long association with the personalities who have been mentioned, and they have done a great job.

I do not want to single out individuals but I acknowledge collectively the role of organised labour unions, Unions NSW and the Australian Council of Trade Unions, in getting not only justice for their members but abstract justice for everybody associated with this tragedy. Secondly, I am proud that I belong to a Government that, when first making decisions around the Jackson inquiry, showed more guts than most other parliaments around the world to bring James Hardie to justice and to book. It was a bit of a gamble. At the time Bob Carr backed that gamble, and it is a great tribute to him as the leader at the time that we were able not only to secure justice for James Hardie victims but to set a precedent that will secure justice for more people throughout the world. I am proud to be associated with this Government. I am happy and pleased that the Government has moved to ensure that the difficulties created by the economic circumstances do not prevent justice being secured for the James Hardie victims. I am pleased that this is a cross-party matter, and the Opposition and the crossbench appear to be absolutely supportive of the legislation.

Reverend the Hon. FRED NILE [2.28 p.m.]: The Christian Democratic Party supports the James Hardie Former Subsidiaries (Winding up and Administration) Amendment Bill 2009. As members know, the Christian Democratic Party has always supported the issue of compensation for the victims affected by products manufactured and sold by the James Hardie company. Those questions are on the record. I tried to track the company when it moved to Holland to ascertain whether it was trying to evade its responsibilities. It now proposes to move to Ireland. Last Friday night my wife, Elaine, and I were guests at a dinner of the Bernie Banton Foundation. It was organised by Bernie's wife, Karen Banton, who is the foundation's chief executive 2 December 2009 LEGISLATIVE COUNCIL 20351

officer. The dinner was held to raise funds to assist victims of asbestos-related diseases in this State. It was a wonderful event and I commend Karen for her efficiency, enthusiasm and personal charisma, which make that foundation such a success.

As a friend of Bernie and Karen Banton, I was privileged to be asked to lead the only prayers at Bernie's funeral, which was held at the State Sport Centres. The service was attended by approximately 1,000 people, including a number of members of this Parliament, the Prime Minister Kevin Rudd, senior government members and union leaders. It has been proved that the James Hardie company knew in the early years that its products would cause asbestos-related diseases and concealed that fact. The company is guilty not only of producing products that affected the health of people and caused them to die but also of concealing that knowledge.

It has been reported that more than 50 per cent of claims made to the New South Wales Dust Disease Tribunal in 2002 were brought against companies in the James Hardie group because of the range of mining and manufacturing interests James Hardie was involved in throughout its long operating history. The Australian Council of Trade Unions estimates that from 2006 onwards 4,600 claims for asbestos-related illnesses will be made against James Hardie, with claims expected to peak in 2010 or 2011 with 250 claims per year. The total number of past and future claims to be made against James Hardie for asbestos-related diseases is estimated to be more than 12,500 of which 8,103 will be claimed after 2006—a significant public health disaster, which asbestos has become in Australia.

Australia has one of the highest rates of asbestos-related disease in the world. It is estimated that between 30,000 and 40,000 people will have contracted an asbestos-related cancer by 2020. For that reason it is vital that the compensation fund be maintained and not be allowed to collapse through the financial activities of the James Hardie company. I commend the State and Federal governments for agreeing on this response. The New South Wales and Commonwealth governments, through the Premier and Prime Minister, will provide a loan of up to $320 million to ensure that victims of James Hardie asbestos continue to receive full compensation payments. This bill will enable that loan to proceed. The importance of the loan is that it will avoid the need for the fund to apply to the Minister, and then to the Supreme Court, for approval to start rationing claims payments. The loan will cover some three years of claims payments. This will not only ensure that claimants during these years get paid in full, but it will also carry the fund until the housing market in the United States of America has recovered and payments into the fund by James Hardie are more certain.

Given its previous track record, I do not completely trust the James Hardie company. I know the Government will closely monitor its activities to avoid it claiming, perhaps falsely, that it is not making sufficient profits to provide funds for compensation to victims. It may be necessary to audit the company's financial records and operations externally to ensure that there is no cover-up. As we all know, earlier this year serious charges were made against some of the executives of the company.

The bill will provide that the loan facility agreement will be exempt from State taxes—another plus. The loan will have no impact on James Hardie's obligations to pay under the final funding agreement. The funding mechanism requires James Hardie to keep making payments until all claims are paid in full, and that needs to be carefully and closely monitored by both the Federal and State governments. The main responsibility will fall to the New South Wales Government. The Christian Democratic Party is pleased that this bill has the support of Karen Banton, the chief executive officer of the Bernie Banton Foundation, Paul Bastion of the Australian Manufacturing Workers Union, Barry Robson, President of the Asbestos Diseases Foundation of Australia, Mark Lennon of Unions NSW, and others. I thank Premier Nathan Rees particularly for bringing this matter to such a rapid conclusion. I support the bill.

The PRESIDENT: Order! I acknowledge the presence in the gallery of Mrs Karen Banton.

Mr IAN COHEN [2.36 p.m.]: I support the comments made by Ms Lee Rhiannon for the Greens and other speakers who have spoken with a degree of unanimity to the James Hardie Former Subsidiaries (Winding-up and Administration) Amendment Bill 2009. Given the tragedy that has been the asbestos issue it is a shame that it takes something like this to draw all members together on the one path. We have all witnessed this terrible history in various ways. It is regrettable that the State has had to step in and bail out James Hardie at this time, a company that has gone out of its way in the past to avoid paying compensation to people who are suffering, have suffered or will suffer as a result of its dangerous products.

ABC journalist Matt Peacock in his recent book Killer Company recalls that as early as 1977 James Hardie was trying to spin the public image of its asbestos products. Thirty years later we now see an agreement 20352 LEGISLATIVE COUNCIL 2 December 2009

to a fund. It has been a long, hard road and it is certainly pleasing that governments, both State and Federal, have stepped in and played a very active role at this point of time when the need has arisen. Many people have been involved, and some whom I have come across include Barry Robson from the Asbestos Diseases Foundation of Australia, who has been particularly consistent; Paul Bastion of the Australian Manufacturing Workers Union; Mark Lennon of Unions NSW; and Karen Banton, who has carried on Bernie Banton's exceptional work.

In my limited experience with Bernie Banton here in Parliament House and during press conferences, it was obvious to all that Bernie was extremely brave. He was a fighter right to the very end, and it is great that he has received that acknowledgement from all the members who have contributed to this debate today. Bernie Banton was an inspiration to many people, including me. He educated me, people in my office and those who came into contact with him about the terrible vicissitudes of dealing with such a shocking disease caused by the James Hardie product. Despite all the recognition and the many controls placed on the handling of asbestos we still hear about people dealing with it inappropriately.

It is thought that in the future more people will suffer from asbestos-related diseases, including those in Aboriginal communities and those who have unwittingly undertaken to clear asbestos products from their house, including during a home renovation. Asbestos is a pernicious and pervasive product that has been used in buildings throughout Australia, and one can only hope that with the recognition of its terrible dangers the education of the community will be sufficient to save many lives in future.

The civil case was filed by the Australian Securities and Investments Commission. The case seeks maximum fines of $200,000 against the 10 former James Hardie officials and their disqualification from managing a company. That is certainly well deserved. James Hardie, which was Australia's largest asbestos maker for almost the whole of the last century, has paid compensation on asbestos-related claims since the early 1980s and stopped making asbestos products in 1987. Following a shortfall in its first compensation fund, in 2006 James Hardie agreed to pay $4 billion to an amended fund over the next 40 years in anticipation of continuing claims from workers and family members whose health was affected by working with asbestos. Inhaled asbestos mineral fibres can cause mesothelioma, asbestosis and lung cancer.

In April the company announced that it could not afford to contribute to the fund this year because of a cash crunch following the meltdown of the United States of America housing market, which provides 75 per cent of the company's sales. The company stated:

Future funding continues to be linked to the long-term financial success of James Hardie.

The Federal Government and New South Wales Government have reached an agreement to make a loan to the James Hardie asbestos fund, and that is to be commended. The Commonwealth will lend the money to New South Wales, and New South Wales will make a loan to the fund to ensure that there is enough money in the fund in the short term to deal with claims from asbestos victims. It is not appropriate that asbestos victims need to wait on some sort of instalment plan. The shortfall means that asbestos victims would be forced to receive instalment payments instead of lump sums owed to them by the company. James Hardie is permitted to suspend payments to its compensation fund when its cash flows fall and pay victims in instalments rather than lump sums.

That happened during the world financial crisis, particularly because of James Hardie's interest in the United States housing sector. After heartfelt pleas from asbestos victims the Federal Government and the New South Wales Government will now lend James Hardie more than $300 million so it can honour its commitments. The company will not need to repay any of the taxpayer money until 2020. Both Governments have acted responsibly and morally in that regard. James Hardie, as a company, has been quite amoral in the past. One hopes that this bill will be a significant step towards providing justice, peace and comfort for victims of the asbestos plague.

The Hon. HELEN WESTWOOD [2.42 p.m.]: I am pleased to speak in support of this very important bill, the James Hardie Former Subsidiaries (Winding up and Administration) Amendment Bill 2009, which supports the loan agreement announced by the Prime Minister and the New South Wales Premier to help ensure sufferers of asbestos-related diseases continue to receive compensation from the Asbestos Injuries Compensation Fund. The agreement will help meet the shortfall in the fund and will ensure that sufferers of asbestos-related diseases continue to receive compensation, including payments for their high up-front medical and carers' costs. The Australian Government and the New South Wales Government maintain that James Hardie has a moral and legal obligation to meet its commitments to asbestos victims. 2 December 2009 LEGISLATIVE COUNCIL 20353

The loan agreement will see the Australian Government provide a loan of up to $160 million to the New South Wales Government that will go towards a loan facility of up to $320 million to be made available by the New South Wales Government to the fund for the purpose of meeting a short-term funding shortfall. This decision will give peace of mind to asbestos victims and their families. The Australian Government and New South Wales Government expect that James Hardie will resume making substantial and regular contributions to the fund in coming years, in accordance with the terms of the funding agreement. The $320 million loan announced today means that payments to victims will not be paid in instalments. This is another landmark legislation that I am pleased to support, and it builds on our previous work.

In 2003 the New South Wales Government established the Jackson Commission into James Hardie asbestos funding. A number of other members have referred to that commission and its findings. In 2004 and 2005 the New South Wales Government, with the great Bernie Banton and the Australian Council of Trade Unions [ACTU], negotiated an agreement to establish the asbestos fund to ensure payments to victims for the next 40 years.

I take this opportunity to acknowledge other recent action that the New South Wales Government has undertaken. The Premier has written to the Chairman of the Australian Securities and Investments Commission [ASIC] regarding the planned de-merger of former asbestos manufacturer, CSR. The Premier is concerned that the de-merger could reduce the company's assets, potentially leaving asbestos victims in limbo. The Premier has asked the Australian Securities and Investments Commission to scrutinise the de-merger closely. I congratulate the Premier on his action. I understand that CSR currently pays a considerable amount of compensation for asbestos-related diseases. It is anticipated that the company will face many more claims in the years to come. The New South Wales Government does not want any more shortfalls in funding for asbestos compensation.

The Australian Securities and Investments Commission has been asked to ensure that CSR's application to court for the de-merger to be considered by shareholders fully discloses actuarial advice in relation to CSR's future asbestos liabilities. This action once again shows that the New South Wales Government is determined to do everything it can to make sure that there is adequate funding and that sufferers of asbestos-related diseases and their families get the compensation to which they are entitled. Like other members who have spoken today, I have had an opportunity to be involved in the campaign for justice for asbestos victims. One level of government that had a significant role to play in this campaign, along with the Federal and State governments, was local government.

In conjunction with the trade union movement, Andrew Ferguson from the Construction, Forestry, Mining and Energy Union [CFMEU], along with Barry Robson and Paul Bastian, ensured that many levels of government and many levels of the community got behind the campaign. Local government is particularly concerned because asbestos is obviously present in homes and buildings, particularly those in western Sydney. Coming from western Sydney I am concerned that there are still fibro buildings in many streets and neighbourhoods. The Construction, Forestry, Mining and Energy Union certainly worked with local government to assist the Government in developing protocols to ensure that in the very early days of the campaign community members were aware of the dangers of removing asbestos without appropriate preventative action.

Local councils got together and urged other councils to ban the purchase of Hardie's products. That was done through the New South Wales local government executive and also at the Federal level. Interestingly, I recall that when the New South Wales executive took a motion to the National General Assembly of Local Government urging all councils in Australia to not purchase Hardie's products, it was threatened with action by the Australian Competition and Consumer Commission [ACCC], because it contravened sections 45D and 45E of the Trade Practices Act. Most, if not all, in attendance were astounded that we could find ourselves threatened with action being taken against us, because we were part of a community campaign against James Hardie. That campaign was about bringing justice to victims of asbestos-related diseases.

At that stage, James Hardie seemed to be exempt from any action being taken against it. Of course, fortunately, some justice has occurred as a result of that very important community campaign. We are all very grateful to Bernie and Karen Banton for their outstanding commitment to achieving justice for all victims of asbestos-related diseases. I certainly am happy to support the bill.

The Hon. CHRISTINE ROBERTSON [2.49 p.m.]: The James Hardie Former Subsidiaries (Winding up and Administration) Amendment Bill 2009 is a significant piece of legislation that I am very proud to support. It will ensure that asbestos victims will continue to be paid the compensation payments they deserve. Both New South Wales and the Commonwealth are providing a loan of $160 million each. The fund would 20354 LEGISLATIVE COUNCIL 2 December 2009

likely have applied to the New South Wales Supreme Court to ration payments to victims if we had not acted. The loan will not displace or delay James Hardie's obligation to make payments to the fund. I am advised that the loan will cover about three years worth of payments at current claim rates. The bill provides the legislative support for the loan. This important legislation deserves the support of every member in this place.

A very large asbestos mine operated for some time in the area in which I live. When I was a nurse I recall people from that area coming to the hospital suffering from lung cancer. This was at a time when suggestions were being made about a connection between asbestos and lung cancer. We were told that the fibres at the mine in our area were not the fibres that caused the problem. We were also told that almost all the people who came to us with lung cancer had smoked cigarettes. It was before any definitive work on the nature and cause of mesothelioma had been carried out. The conversations that were had about illnesses suffered by people involved with the mining and production of this material were similar to the conversations that were had in the 1950s and 1960s about nicotine, and exactly the same sort of powerful campaign had to be conducted by many brave people before this issue could be addressed. I commend everyone—those who are with us and those who are not—who found a way through the mire of misinformation that was spread about when concerns first arose.

The Labor Government has done a great deal to help victims of asbestos-related diseases. In 2002 the Asbestos Diseases Research Institute was inaugurated with start-up funds of $2.5 million, comprising donations from the New South Wales Government, the New South Wales Workers Compensation Dust Diseases Board—a very important component of this process—and James Hardie. The New South Wales Government established the Jackson commission of inquiry into James Hardie asbestos funding in February 2004. In late 2004 and throughout 2005 the New South Wales Government, with Bernie Banton and the Australian Council of Trade Unions, negotiated the agreement to establish the asbestos fund to ensure payments to victims for the next 40 years.

In 2006 the Dust Diseases Board contributed a $6.9 million capital grant to construct laboratory facilities for the Asbestos Diseases Research Institute. In November 2007 the State Government launched construction of the new $12 million Asbestos Diseases Research Institute and announced the facility would be named in honour of veteran campaigner Bernie Banton. I want to make special mention today of Bernie Banton. Bernie will never be forgotten in this place. It is obvious from what other members have said today that the work he did touched many people. I congratulate Mrs Karen Banton for carrying on this work, and I commend the bill to the House.

The Hon. JOHN HATZISTERGOS (Attorney General, Minister for Industrial Relations, and Vice President of the Executive Council) [2.53 p.m.], in reply: I thank honourable members for their contributions to this debate. The bill authorises and approves the loan facility agreement and associated guarantees and securities and ensures that the fund has the authority to repay the loan. The bill ensures that the fund can direct James Hardie's former asbestos subsidiaries to guarantee the fund's obligations under the loan facility agreement and to provide security for loan and guarantees.

The amendments make it clear that the loan is indeed a loan, and that James Hardie remains responsible for ensuring that all asbestos claimants are paid in full and in a timely manner. I acknowledge that there has been a significant contribution of the current Commonwealth Government in addressing the prospective funding shortfall for the fund. This was important in securing agreement for the total of $320 million that will be loaned to the fund.

I again want to extend my very sincere thanks and congratulations, firstly to Karen Banton. I acknowledge her presence in the gallery. I also want to acknowledge other people who have been working with me in my office over the past few months in relation to this issue, particularly Paul Bastian of the Australian Manufacturing Workers Union, Barry Robson, the President of the Asbestos Diseases Foundation of Australia, and Mark Lennon of Unions NSW and many others who have worked tirelessly to deliver justice for asbestos sufferers, leading to the fund being established and culminating in this legislation. Without their efforts I am sure we would not be at this point.

I reiterate that the Government regards James Hardie as both legally and morally obliged to continue to support those victims who have been stricken by illness as a consequence of its products and we will certainly continue to hold them to account. I commend the bill to the House.

Question—That this bill be now read a second time—put and resolved in the affirmative. 2 December 2009 LEGISLATIVE COUNCIL 20355

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. John Hatzistergos agreed to:

That this bill be now read a third time.

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

BUSINESS OF THE HOUSE

Suspension of Standing and Sessional Orders: Order of Business

The Hon. DUNCAN GAY (Deputy Leader of the Opposition) [2.56 p.m.]: I move:

That standing and sessional orders be suspended to allow a motion to be moved forthwith that Private Members' Business item No. 237 outside the Order of Precedence, relating to an order for papers regarding marine parks, be called on forthwith.

Question put.

The House divided.

Ayes, 22

Mr Ajaka Mr Gay Mrs Pavey Mr Brown Ms Hale Mr Pearce Mr Clarke Dr Kaye Ms Rhiannon Mr Cohen Mr Khan Mr Smith Ms Cusack Mr Lynn Ms Ficarra Mr Mason-Cox Tellers, Mr Gallacher Reverend Dr Moyes Mr Colless Miss Gardiner Reverend Nile Mr Harwin

Noes, 17

Mr Catanzariti Mr Obeid Mr Tsang Mr Della Bosca Mr Primrose Mr West Ms Griffin Mr Robertson Ms Westwood Mr Hatzistergos Ms Robertson Tellers, Mr Kelly Mr Roozendaal Mr Donnelly Mr Macdonald Ms Sharpe Mr Veitch

Pair

Ms Parker Ms Voltz

Question resolved in the affirmative.

Motion agreed to.

Order of Business

Motion by the Hon. Duncan Gay agreed to:

That Private Members' Business item No. 237 outside the Order of Precedence be called on forthwith.

20356 LEGISLATIVE COUNCIL 2 December 2009

MARINE PARK AUTHORITY ZONING PLAN REVIEW

The Hon DUNCAN GAY (Deputy Leader of the Opposition) [3.04 p.m.]: I move:

That, under Standing Order 52, there be laid upon the table of the House within 14 days of the date of the passing of this resolution the following documents in the possession, custody or control of the Minister for Climate Change and the Environment, the Department of Environment, Climate Change and Water, the Marine Parks Authority, the Solitary Islands Marine Park Advisory Committee, the Jervis Bay Marine Parks Advisory Committee, the Minister for Primary Industries, the Department of Industry and Investment, or the office of the former Minister for Environment and Climate Change, the Honourable Carmel Tebbutt MP, relating to the Marine Parks Authority's review into the zoning plans for the Solitary Islands and Jervis Bay Marine Parks including:

(a) all correspondence created since June 2008 between Government departments or agencies and individuals in the commercial or recreational fishing industries,

(b) the final version of the Marine Parks Authority's review of the Solitary Islands and Jervis Bay Marine Parks,

(c) any external or independent review of, or comments on the final version of the review,

(d) any briefings or advice created since June 2008 provided to the former Minister for Environment and Climate Change, the Honourable Carmel Tebbutt MP, the Minister for Climate Change and the Environment, the Minister for Primary Industries, the former Premier, the Honourable Morris Iemma, or the Premier relating to the Marine Parks Authority's review into the zoning plans for the Solitary Islands and Jervis Bay Marine Parks,

(e) all minutes of the meetings of the Solitary Islands Marine Park Advisory Committee and the Jervis Bay Marine Parks Advisory Committee since January 2004, and

(f) any document which records or refers to the production of documents as a result of this order of the House.

Mr IAN COHEN [3.04 p.m.]: I wish to make a short observation about the call for papers. The Greens originally opposed the motion because we wanted sufficient time to examine the order. Having now reviewed the call for papers I indicate that the Greens will not oppose that call for papers. However, allegations are often levelled at the marine parks regime by The Nationals that the processes and procedures are manipulated and abused to the detriment of recreational fishers. The Nationals claim that the views of fishers and scientists are ignored. They equate the creation of no-take zones over more than 1 per cent of a marine protected area to locking up marine environments and throwing away the key. In 2008, during debate on amendments to the Marine Parks Act, The Nationals talked a lot about process and sticking to the letter of the law relating to process. I find it curious that the Deputy Leader of the Opposition is trying to circumvent the process that is in place in legislation.

Under section 17D (6) of the Marine Parks Act the Minister has three months to consider the review of the Marine Parks Authority before requesting that a draft zoning plan be drawn up. I thought it would have been more appropriate and respectful of the process to allow the Minister to request the drafting of new zoning plans before seeking access to the zoning review document—a document to which I support the public having access. The only reason I am not opposing this element of the call for papers is that under the legislation there is no requirement of publication or tabling of the review after the three months have elapsed. While I agree that the review should be publicly available, I think its release prior to the Minister following the process set out in legislation is regrettable and raises this question: What do The Nationals think is fair process under the Marine Parks Act?

The Hon DUNCAN GAY (Deputy Leader of the Opposition) [3.06 p.m.], in reply: I thank members for their support for the motion.

Question—That the motion be agreed to—put and resolved in the affirmative.

Motion agreed to.

GENERAL PURPOSE STANDING COMMITTEE NO. 3

Membership

The President informed the House that the Clerk had received the nomination of the Hon. Penny Sharpe as a member of General Purpose Standing Committee No. 3 in place of the Hon. Amanda Fazio. 2 December 2009 LEGISLATIVE COUNCIL 20357

STANDING COMMITTEE ON LAW AND JUSTICE

Membership

The President informed the House that the Clerk had received the nomination of the Hon. Lynda Voltz as a member of the Standing Committee on Law and Justice in place of the Hon. Amanda Fazio.

STANDING COMMITTEE ON SOCIAL ISSUES

Membership

The President informed the House that the Clerk had received the nomination of the Hon. Helen Westwood as a member of the Standing Committee on Social Issues in place of the Hon. Michael Veitch.

PRIVILEGES COMMITTEE

Membership

The President informed the House that the Clerk had received the nomination of the Hon. Michael Veitch as a member of the Privileges Committee in place of the Hon. Amanda Fazio.

BUSINESS OF THE HOUSE

Suspension of Standing and Sessional Orders: Order of Business

Dr JOHN KAYE [3.07 p.m.]: I move:

That standing and sessional orders be suspended to allow a motion to be moved forthwith that Private Members' Business item No. 251 outside the Order of Precedence, relating to a further order for papers regarding Tillegra Dam, be called on forthwith.

Question put.

The House divided.

Ayes, 22

Mr Ajaka Mr Gay Mrs Pavey Mr Brown Ms Hale Mr Pearce Mr Clarke Dr Kaye Ms Rhiannon Mr Cohen Mr Khan Mr Smith Ms Cusack Mr Lynn Ms Ficarra Mr Mason-Cox Tellers, Mr Gallacher Reverend Dr Moyes Mr Colless Miss Gardiner Reverend Nile Mr Harwin

Noes, 17

Mr Catanzariti Mr Obeid Mr Tsang Mr Della Bosca Mr Primrose Mr West Ms Griffin Mr Robertson Ms Westwood Mr Hatzistergos Ms Robertson Tellers, Mr Kelly Mr Roozendaal Mr Donnelly Mr Macdonald Ms Sharpe Mr Veitch

Pair

Ms Parker Ms Voltz

Question resolved in the affirmative.

Motion agreed to. 20358 LEGISLATIVE COUNCIL 2 December 2009

Order of Business

Motion by Dr John Kaye agreed to:

That Private Member's Business item No. 251 outside the Order of Precedence be called on forthwith.

TILLEGRA DAM

Motion by Dr John Kaye agreed to:

That, under Standing Order 52, there be laid upon the table of the House within 14 days of the date of the passing of this motion the following documents created between 1 March 2008 and 30 November 2009, excluding any maps, plans or engineering details and any documents previously provided to the House under order of the House, in the possession, custody or control of the Minister for Water, the Department of Environment, Climate Change and Water, the Department of Industry and Investment, or the Hunter Central Rivers Catchment Management Authority:

(a) any documents relating or referring to the need for the planning of or the construction of the proposed Tillegra Dam,

(b) any document relating or referring to the document entitled "Hunter Water’s H250 plan—Securing Our Water Future",

(c) any document relating or referring to the Environmental Assessment Report for Tillegra Dam, and

(d) any document which records or refers to the production of documents as a result of this order of the House.

FISHERIES MANAGEMENT AMENDMENT BILL 2009

Second Reading

The Hon. TONY KELLY (Minister for Primary Industries, and Minister for Lands) [3.15 p.m.]: I move:

That this bill be now read a second time.

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

Leave granted.

The Fisheries Management Amendment Bill 2009 introduces a number of important reforms to the Fisheries Management Act 1994. These amendments will ensure that the Act is brought into line with other State and national fisheries legislation by recognising Aboriginal cultural fishing and strengthening enforcement provisions against illegal fishing in this State. The bill also improves various threatened species, aquaculture and habitat protection provisions. Finally, it makes a number of minor amendments to streamline administration of the Act. The Fisheries Management Amendment Bill 2009 stems largely from two major reviews of fisheries legislation and practices in New South Wales, both conducted in 2004. The first review was the Report on Illegal Fishing for Commercial Gain or Profit in New South Wales by Mr Mick Palmer. This document is commonly referred to as the Palmer report. The second was the Review of the New South Wales Indigenous Fisheries Strategy for NSW Fisheries by Tyagarah Consultants.

The Fisheries Management Act is designed to maintain and preserve fish stocks in New South Wales by regulating both commercial and recreational fishing with a system of offence provisions and penalties to enforce those regulations. While the existing legislation defines commercial and recreational fishing, there is currently no recognition of Aboriginal cultural fishing practices. Since the early 1990s permits have been available to Aboriginal people for cultural fishing activities that fall outside the general recreational fishing rules. However, Aboriginal people have to apply for a permit that groups cultural fishing with aquaculture and research projects. Many Aboriginal people do not consider it necessary or fair that they should have to apply for a special permit to fish outside the current rules—an activity they consider a right.

It is important, however, that government and Aboriginal communities continue to work together to recognise and protect cultural fishing rights and that they are integrated into current and future management frameworks. The bill, therefore, includes a new objective that recognises the spiritual, social and customary significance to Aboriginal people of fisheries resources and protects and promotes the continuation of Aboriginal cultural fishing. Aboriginal cultural fishing is defined in the bill as "fishing activities and practices carried out by Aboriginal persons for the purpose of satisfying their personal, domestic or communal needs, or for educational or ceremonial purposes or other traditional purposes, and which do not have a commercial purpose".

The changes proposed in this bill mean that for the first time Aboriginal people's customary association with the fisheries resource is formally recognised in the Fisheries Management Act. In keeping with this new objective, the bill also amends the Act to allow permits to be issued specifically to enable Aboriginal people to fish or take marine vegetation for Aboriginal cultural fishing purposes. The bill will also allow permits for Aboriginal cultural fishing to be issued to a group, as well as to an individual. This will make it easier for communities to fish culturally—especially for large ceremonies such as birthdays and weddings—because more than one person will be able to fish under the one permit.

2 December 2009 LEGISLATIVE COUNCIL 20359

The next area of reform is illegal fishing for commercial gain. The Palmer report found that illegal harvesting and black market selling of fish in New South Wales is widespread, deeply entrenched and poses significant economic and environmental threats to the sustainability of the New South Wales fishery. Furthermore, as fisheries resources become more sought after and valuable we can expect an increase in illegal fishing and black markets. The Palmer report highlighted the need to clamp down on illegal seafood harvesting and sale by increasing the powers the courts have to rule against those who are convicted of fisheries offences, increasing the powers of Fisheries officers to act on suspected illegal fishing activity, imposing tougher penalties for a range of offences, and giving the courts and the Minister the power to order an offender to restore fish habitat if they are found to have damaged this habitat.

The Australian Institute of Criminology paper, "A National Study of Crime in the Australian Fishing Industry", endorsed Palmer's findings. One of the key recommendations of this study is a nationally consistent approach to fighting illegal fishing. The bill contains three sets of amendments that support the recommendations of both the Palmer report and the study. The first set of amendments aims to reduce the black marketing of fish. The second seeks to provide more appropriate penalties for serious fisheries offences. The third aims to increase the accountability of those suspected of being involved in illegal fishing activity. The Act currently requires a person who has a certain quantity of fish in their possession to produce a written record of that fish if requested to do so by a Fisheries officer.

However, if they can prove that the fish were for personal use and not intended for sale, transportation or storage, they are not in breach of the law. This defence is open to abuse and can act as a significant barrier to successful prosecution. The bill, therefore, amends powers by deeming that all fish held at commercial premises are being held for sale. The bill also requires the owner or occupier of the commercial premises to have a record for all fish in their possession or held at their commercial premises. These changes will help prevent illegally caught fish from being stored on commercial premises and make it more difficult to black market illegal product.

Turning now to more appropriate penalties, the bill will introduce much-needed tougher penalties to deter people from committing serious fisheries offences. In its 2007-08 assessment the Abalone Total Allowable Catch Committee noted that, while abalone thieves are enjoying the windfall gains of bank robbers, they are paying penalties of minor traffic offenders. The committee's assessment also highlighted that the penalties imposed for illegal abalone fishing in New South Wales are much lower than those in Victoria and Tasmania. This bill addresses these anomalies and brings New South Wales legislation into line with other States, which is one of the key objectives of the Australian Fisheries National Compliance Strategy 2004-2009.

To create more powerful deterrents to illegal fishing and to provide greater consistency between Australian jurisdictions the bill introduces incremental penalties for first and subsequent offences. This means that the courts will now have the power to impose higher maximum penalties for second and subsequent offences. The bill also provides higher penalties for certain offences if the offence concerned was committed in circumstances of aggravation, such as, significantly exceeding bag limits for priority species of fish. Additionally, the bill includes a higher maximum penalty for certain first offences. For example, we are doubling the penalty for taking our special protected fish species, such as estuary cod and eastern blue devil fish. The bill also gives the courts the power to impose an additional penalty linked to the value of the catch. This means that illegal fishers can, for the first time, be made to pay additional fines of up to 10 times the value of the illegal catch for high-value species such as abalone and lobster.

The bill also introduces the new offence of trafficking in indictable species. Serious fisheries crime in trafficking certain species, such as abalone and eastern rock lobster, will now be an indictable offence, with substantial jail terms applying. A person convicted of trafficking in abalone or lobster could therefore face a maximum penalty up to 10 times the market value of the fish and 10 years in jail. The new trafficking offences will be brought also under the Confiscation of the Proceeds of Crime Act 1997, which gives courts the power to seize assets and money gained through illegal fishing. The community quite rightly has an expectation that criminals should not benefit from the proceeds of their crime. Allowing the proceeds and assets acquired through serious fisheries crimes to be confiscated will provide a major deterrent to black market activity.

I turn now to the issue of prohibition orders. Currently, when a repeat offender is convicted of a fisheries offence, the court can prohibit him or her from engaging in particular commercial fishing activities, or from being on any boat or in any premises associated with those commercial fishing activities. However, a prohibition order cannot prevent an offender from fishing recreationally or from working in the fishing industry. If a prohibition order is made against an individual it is because he or she has been continually and blatantly fishing illegally. Preventing him or her only from taking part in commercial fishing activities may not be a strong enough deterrent. The bill therefore includes an amendment to allow the court to decide from what kinds of fishing or associated activities the offender should be banned. This will bring New South Wales into line with Victorian, Tasmanian and South Australian legislation—a recommendation of the Palmer report.

The final amendment to the Act, based on the Palmer report, increases accountability and seeks to address the situation where children, accompanied by adults, claim that fish illegally caught or found on a boat are theirs alone. Because of the principles applied to young offenders, it is almost impossible to prosecute the real offenders for illegal fishing in these circumstances. The bill will make the master of a boat jointly liable for any fisheries offences committed on board that boat, subject to various defences. This will bring New South Wales into line with Western Australia.

To complement the recommendations of the Palmer report, the bill also includes a suite of changes to improve the operation and enforcement of the Act generally. The first group of amendments will improve and streamline fisheries compliance activities. One amendment will give fisheries officers the power to seize boats and motor vehicles if a person has any unlawful fishing gear provided that gear is reasonably capable of catching commercial quantities of fish. Another amendment will allow the Minister or a court to impose a remediation order for serious fish theft offences. This power could result in a convicted offender having to restore a denuded abalone reef or perform community service.

The bill also introduces two amendments that relate to threatened species. The first of these amendments will remove a defence that currently allows anglers to deliberately target and repeatedly catch threatened species under the guise of other fishing activities, as occurred at Stockton Beach in 2005 when anglers repeatedly captured great white sharks from the beach. The second amendment will allow a fish retailer to possess and sell protected fish that have been legally taken in another jurisdiction, except for fish that have been declared by regulation to be protected absolutely. A further amendment will clarify the requirements for possession of a recreational fishing fee receipt.

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The bill will make important changes to the jurisdiction of local courts for fishing offence prosecutions. Currently the maximum penalty that the Local Court can impose is $10,000. This means that more serious matters must be heard in the Supreme Court or the Land and Environment Court, which is costly for both the Government and offenders. The bill increases the maximum penalty that the Local Court can impose to 200 penalty units, which currently equates to $22,000. This will allow local courts to impose higher penalties where appropriate. The bill also enables the Local Court to deal with the forfeiture of boats and motor vehicles worth up to $60,000, which is the jurisdictional limit of the Local Court's General Division. Currently if a seized boat or motor vehicle is worth more than $10,000 the offence must be heard in the Supreme Court.

The bill makes some relatively minor amendments to improve the efficiency and operation of the aquaculture and aquatic habitat provisions of the Act. Amendments relating to aquaculture include some aquatic biosecurity provisions relating to quarantine actions. Amendments relating to aquatic habitat include a presumption in certain circumstances that a person knows that an area is a place where salmon or trout spawn or are likely to spawn, and the ability to issue a stop-work order to prevent unauthorised works that are damaging fish habitats or blocking the free passage of fish. The bill makes some amendments to protect threatened species from harmful interaction with humans.

For example, the bill will include a new offence prohibiting a person from interfering with threatened species of fish listed under the Act. This will prevent recreational boaters from berleying up or teasing up threatened species—for example, great white sharks—which has happened in the past. The bill also includes amendments to reflect a uniform national scheme for cooperative arrangements in the management of fisheries resulting from changes to Commonwealth legislation. Finally, the bill includes various miscellaneous measures to improve the administration and operation of the Act. These include allowing for a bag limit of zero for the taking and possession of fish, and allowing the Minister to cancel forfeited shares as opposed to selling them by public tender.

There has been extensive consultation between agencies with respect to the proposals put forward in the bill. Consultation has occurred with the Minister for Police, the Attorney General's Department, the Department of Aboriginal Affairs, the Office of the Director of Public Prosecutions and the Department of Water and Energy. Consultation has also occurred with the Minister for Regulatory Reform, the Treasurer, the Minister for Climate Change, Environment and Water, and the Minister Assisting the Minister for Climate Change, Environment and Water. The policy proposals underlying the bill have been developed over several years, taking into consideration the views of community and industry stakeholders. Improved management of Aboriginal cultural fishing has been under consideration for some time. Key Aboriginal stakeholders, including members of the former Indigenous Fisheries Strategy Working Group, the former Aboriginal and Torres Strait Islander Commission, and Aboriginal and Torres Strait Islander services have been consulted. Other groups that have been consulted include Aboriginal commercial fishers, the former NSW Native Title Services—now NTSCORP—and the NSW Department of Primary Industries Aboriginal Reference Group.

In relation to illegal fishing, the Palmer report review was undertaken with the help of an advisory team consisting of commercial and recreational fishing representatives along with seafood industry and government agency representatives. Public and industry submissions were received on the Palmer report, which was released for public comment in 2004. These submissions have contributed to the development of amendments stemming from the Palmer report recommendations. The bill introduces important reforms to the Fisheries Management Act. These amendments will ensure that the Act is brought into line with other State and national fisheries legislation by recognising Aboriginal cultural fishing and by strengthening enforcement provisions against illegal fishing in this State. The bill will make a significant and positive contribution to the future of fisheries in New South Wales. I commend the bill to the House.

The Hon. DUNCAN GAY (Deputy Leader of the Opposition) [3.15 p.m.]: The Opposition will not oppose the Fisheries Management Amendment Bill 2009. Despite the Minister indicating widespread consultation on this bill had been undertaken, the major stakeholders almost universally sent a note thanking the Opposition for sending a copy of the bill about which they were totally unaware.

Mr Ian Cohen: You are so unused to getting thanks.

The Hon. DUNCAN GAY: I appreciate it when I can get it. The head of one of the former Minister's committees recently indicated at a meeting the committee's appreciation that the Opposition had contacted it about the bill because it was the first contact it had received. We expect that sort of consultation and management from the Rees Government. This bill is long overdue having taken five years since the review to be introduced. The former Minister quite properly put in place a review of the fisheries legislation and practices by former Federal police chief Mick Palmer. The Opposition certainly will not object to the bill as it reflects many of the findings in the Palmer report. The Opposition has urged the Government to adopt this good report for some time.

However, industry groups on whom this bill impacts have expressed their concerns to the Opposition. The abalone industry considers that the five years taken to introduce this legislation means, frankly, it is too late for abalone fishing in New South Wales. The total allowable commercial [TAC] catch has steadily declined from 330 tonnes per year in 1999 to 75 tonnes for the 2009-2010 year. The abalone industry is most susceptible to illegal fishing and the black market. The bill seems to have no correlation between bag limits and commercial quantity. The commercial quantity sometimes is double the bag limit. This means that someone caught with one over the bag limit or one under the commercial quantity faces having the same penalty imposed. This could be viewed as an incentive to keep your catch to just below the commercial quantity. 2 December 2009 LEGISLATIVE COUNCIL 20361

Another concern is that fishermen may be considered to possess a commercial quantity when a number of anglers share an esky or a keeper bag. That often happens when there is shortage of space, such as when people are in a small boat. Some species of fish categorised as endangered by legislation have a high commercial quantity. For example, blue fin tuna has a commercial quantity of 10 whereas the stakeholders tell us that five would be more than enough and perhaps should be considered to be high.

There are issues surrounding whether it is necessary for the Minister to waive or refund fees. There seems to be no rules. There also seems to be no reasons why the power is necessary. Some stakeholders are concerned that the message that will send to people who do not pay their fines is that, if they hang on long enough, the Minister will waive the fee. What impact will that have on those who pay their fees, as required? It seems that there are no rules. It seems that the decision is being abandoned to the whim of the Minister.

Another key industry representative is concerned about making the master of a vessel responsible for the actions of each member of the crew. The New South Wales Council of Freshwater Anglers is concerned that current penalties are not being applied by courts, and so sees little point in increasing penalties if the full power of current penalties has not been exhausted. The New South Wales Council of Freshwater Anglers also believes that fisheries offenders should be named and shamed when they are convicted. The former Minister for Primary Industries was very good at that. We all remember the baker from the Blue Mountains who was named and shamed by the Minister on the very same day that Sydney lost electricity. But no-one could find the Minister that day.

The New South Wales Council of Freshwater Anglers believes that naming and shaming is one of the strongest deterrents to recreational fishing offences, but currently that is not being used in New South Wales. The council has also said that its past appeals to the New South Wales Government in relation to this issue have been ignored. The New South Wales Council of Freshwater Anglers agree with the amendment that will make further provision for the protection of areas where salmon and trout spawn, but are concerned that similar amendments have not been included to protect areas where native fish spawn. The council has been in discussions over several years with the New South Wales Farmers Association in relation to this issue. The council's advice in 2008 was that the legislation to protect areas where native fish spawn was being drafted. The New South Wales Council of Freshwater Anglers is dismayed that apparently this has not occurred, and it is not part of the bill.

The Liberal Party and The Nationals agree that changes that will be effected by this bill to the Fisheries Management Act 1994 are necessary to bring New South Wales into line with other State and national fisheries legislation by recognising Aboriginal cultural fishing and strengthening enforcement provisions against illegal fishing. The bill will result in permits being issued specifically to enable Aboriginal people to fish or to take marine vegetation for Aboriginal cultural fishing purposes. With the aim of reducing the black market in fish, the bill provides more appropriate penalties for serious fishing offences and increases accountability of those suspected of being involved in illegal fishing activity. For example, the bill deems that all fish held at commercial premises are being held for sale. The bill also requires owners and occupiers of commercial premises to keep a record of all fish held in their possession or on their premises.

In relation to incremental penalties for first and subsequent offences, the bill will confer power on courts to impose higher maximum penalties, and the Opposition supports those provisions. Serious fisheries crimes in trafficking certain species will become an indictable offence and substantial jail terms will apply. That means a person who is convicted of trafficking abalone or lobster could face a maximum penalty of 10 times the market value of the fish and 10 years in jail. The abalone industry says that this is good legislation and is important to the industry for reasons surrounding penalties for the theft of abalone. However, as I stated earlier, the legislation is five years too late. During the five years it has taken for formulation of this legislation following the Palmer report, the abalone industry has been virtually decimated. Abalone industry representatives say that making the theft of abalone an indictable offence will be particularly important because it will encourage New South Wales Police and the New South Wales Water Police to become involved in detecting and apprehending abalone thieves.

Although the Opposition has a number of concerns about this legislation, as I indicated earlier this is a good bill because it reflects important recommendations made by the Palmer report. It would have been better if the legislation had been presented five years earlier, but the Opposition nevertheless will support the bill. I understand that the Minister will make comments regarding Aboriginal fishing matters and Greens amendments. The Opposition has been briefed on the Minister's intentions in relation to those matters—I thank the Minister's officers for that briefing—and the Opposition regards the Minister's proposals as entirely supportable. 20362 LEGISLATIVE COUNCIL 2 December 2009

The Hon. IAN WEST [3.25 p.m.]: I support the Fisheries Management Amendment Bill 2009, which will formally recognise the cultural importance of fishing to Aboriginal people in New South Wales. Fishing is an integral part of the cultural life of coastal and inland Aboriginal communities. Fishing has been an important source of food, a basis for trade, and an important part of spiritual and ceremonial life. Traditionally, Aboriginal fishers have responsibility for providing not just for themselves but also for family and community. Aboriginal people continue to have spiritual ties with salt or fresh water in the country of their ancestors.

While the role of fishing practices in Aboriginal culture is much better understood by governments now than it was in the past, there is still debate about how best to provide Aboriginal people with appropriate access to fisheries resources. As members are no doubt aware, the fisheries resource in New South Wales is a finite one and is subject to many pressures, including sharing the resource among many different users. It is the Government's role to ensure that everyone's access is managed sustainably and fairly. Recreational and commercial fishers historically have competed with each other for access to the resource, with one group catching fish for their personal use or as a leisure activity, and the other catching fish for commercial purposes. Aboriginal cultural fishing does not fit well into either category.

Aboriginal people often catch fish, or gather other marine life such as abalone, mussels, or oysters, for family or extended family, or for community events, such as birthdays, weddings or funerals. There is cultural significance in catching, gathering and eating fish. As such, it is traditional practice that certain members of the family will catch or gather the requirements for the whole family or other community members. This activity becomes an offence under the Fisheries Management Act when the quantity of fish harvested and kept exceeds the individual fisher's bag limit.

Currently, to accommodate the needs of Aboriginal people and to prevent this situation from resulting in an offence, Aboriginal people can apply for general permits to conduct cultural fishing that falls outside the recreational fishing rules. However, this current permit does not specifically acknowledge Aboriginal cultural fishing. It means that Aboriginal people have to apply for a permit that groups together cultural fishing with aquaculture and research projects.

The bill before the House provides a number of ways in which Aboriginal cultural fishing can be better recognised within the Fisheries Management Act. The first is a change to the objects of the Act. A new object will be included to recognise, protect and promote the Aboriginal people's cultural, spiritual, social and customary association with the State's fisheries resources. This change means that, for the first time, the Aboriginal people's customary association with the fisheries resource is acknowledged in the Fisheries Management Act.

Formally recognising Aboriginal people's association to the resource within the objects of the Act is a major step forward. It is an important acknowledgement of the cultural significance of fish and other marine life to Aboriginal people. This recognition brings New South Wales legislation into accord with other jurisdictions. The new object is also consistent with the National Principles for Indigenous Fishing. These principles seek to integrate and protect customary fishing within fisheries management frameworks. The national indigenous fishing principles were endorsed by the Commonwealth Government, most State and Territory governments, the Australian Seafood Industry Council, Recfish Australia and peak indigenous representative bodies from around Australia.

The second change is to section 37 of the Act, which deals with the issue of permits for purposes such as research and aquaculture. The amendment will expressly provide that permits may be issued for the sole purpose of Aboriginal cultural fishing. These permits will be issued following consideration of cultural needs and sustainability issues. The bill also allows permits for Aboriginal cultural fishing to be issued to a group as well as to an individual. This will make it easier for communities to fish culturally, especially for large ceremonies such as birthdays and weddings, because more than one person will be able to fish under the one permit. The other important amendment to the Act is the inclusion of a definition of "cultural fishing". Defining cultural fishing is an important measure for the Aboriginal community. It will allow Aboriginal people to be confident that their cultural activities will not be interpreted as a form of illegal recreational or commercial fishing.

It was originally intended that once the bill had passed through both houses of Parliament, amendments to the regulations and to administrative processes would be made to enhance access arrangements for Aboriginal cultural fishing. However, since the bill's introduction in the Legislative Council, Aboriginal stakeholders have raised concerns that, while the proposed amendments recognise Aboriginal cultural fishing, they do not go far 2 December 2009 LEGISLATIVE COUNCIL 20363

enough to improve access to the resource for cultural fishers. In response to those concerns, the former Minister for Primary Industries met with stakeholders, including members from the Native Title Services Corporation and the New South Wales Aboriginal Land Council, in October 2009. The following proposed amendments have been developed in response to this most recent consultation.

First, the Government proposes to establish an advisory group to consider Aboriginal fishing issues. The two broad functions of the proposed Aboriginal Advisory Council will be to advise the Minister on any matter that is referred to it by the Minister, and to advise the Minister on any other matter it considers relevant to Aboriginal fishing. It is important to note that the council will advise on all Aboriginal fishing matters, not just Aboriginal cultural fishing matters, so it is appropriate that the amendment refers to the Aboriginal sector generally. Secondly, it is proposed to introduce a special provision for Aboriginal cultural fishing. People fishing pursuant to this provision would not need to apply for a permit, provided they are fishing within the limits for cultural fishing that will be developed in consultation with Aboriginal and other stakeholders. Where a person exceeds those prescribed limits they will still be able to apply for a permit issued for cultural fishing under section 37 of the Act.

Thirdly, it is proposed that Aboriginal people will not have to pay a fee to fish recreationally or culturally. The proposals in the bill, and the further amendments now proposed by the Government, represent important fundamental changes to the legislation to provide greater access to the resource for Aboriginal cultural fishing purposes. These changes will ensure that Aboriginal people's cultural fishing practices are recognised and protected. The provisions in the bill and the proposed amendments go to the core of Australia's history and identity. They do not amount to special treatment; rather, they recognise Aboriginal people's customary association with the fisheries resource—an association that predates the arrival of Europeans in this country and the concept of profiting from natural resources. The Government and this House are committed to the Aboriginal people of this Sate. The proposals before the House represent an important and significant step in acknowledging Aboriginal cultural fishing. These changes are long overdue. I commend the bill to the House.

Reverend the Hon. Dr GORDON MOYES [3.35 p.m.]: I speak as a Family First member on the Fisheries Management Amendment Bill 2009, which amends the Fisheries Management Act 1994 to make further provision for the management of fishery resources. The bill also amends other Acts, including the Criminal Procedure Act 1986, the Land and Environment Court Act 1979, the Local Court Act 2007, the Local Courts Act 1982 and the Marine Parks Act 1997. The Fisheries Management Act seeks to maintain and preserve fish stocks in New South Wales by regulating both commercial and recreational fishing with a system of offence provisions and penalties. The bill has been informed by two reviews of fisheries legislation and practice in New South Wales—namely, the "Report on Illegal Fishing for Commercial Gain or Profit in NSW", or the Palmer report, and the review of the New South Wales indigenous fisheries for New South Wales Fisheries by Tyagarah Consultants.

The Palmer report found that illegal harvesting and black market selling of fish in New South Wales is widespread, deeply entrenched and poses significant economic and environmental threats to the sustainability of the New South Wales fishery. The Palmer report made a number of recommendations to address this issue, including increasing the powers of the courts in relation to those convicted of fisheries offences, increasing the powers of fisheries officers to act on suspected illegal fishing activity, imposing higher penalties for a range of offences and giving the courts and the Minister the power to order an offender to restore fish habitat if they are found to have damaged it.

As stated in the agreement in principle speech, the customary association of Aboriginal people with fisheries resources is recognised for the first time through the proposed amendments. I congratulate the Government on introducing these amendments. I will spend most of my remaining time looking at the amendments rather than the bigger issues of fisheries offences, the powers of fisheries officers to act on illegal fishing activities, the higher penalties and so on. I think they are fairly straightforward and I support what the Government is doing in this regard. The bill amends the Fisheries Management Act to formally recognise Aboriginal cultural fishing and amends the objects of the Act:

… to recognise the spiritual, social and customary significance to Aboriginal persons of fisheries resources and to protect and promote Aboriginal cultural fishing.

Aboriginal cultural fishing is defined in the bill as:

… fishing activities and practices carried out by Aboriginal persons for the purpose of satisfying their personal, domestic or communal needs, or for educational, ceremonial or other traditional purposes, and which do not have a commercial purpose.

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The bill also allows permits for Aboriginal cultural fishing to be issued to a group, as well as to an individual, making it easier for Aboriginal communities to fish for large ceremonies, such as weddings or birthdays, as more than one person will be able to fish under one permit. Aboriginal people in New South Wales who have discussed this issue with me have continually asserted their customary rights and responsibilities with respect to all land and waters, including access to marine resources such as fisheries. These customary rights are recognised and protected in international law and in policy at the national level through Close the Gap. The New South Wales Government also acknowledges these rights through the State Plan, Two Ways Together, and the requirement to operate in accordance with ecologically sustainable development. Furthermore, the Government is a party to the indigenous fishing principles, which establish a consistent policy framework for the recognition of Aboriginal customary rights with respect to fisheries and the need to improve access to commercial opportunities in fisheries.

The principles on indigenous fishing state, first, that indigenous people were the first custodians of Australia's marine and freshwater environments. Australia's fisheries and aquatic environment management strategies should respect and accommodate this. Secondly, customary fishing is to be defined and incorporated by governments into fisheries management regimes so as to afford it protection. Thirdly, customary fishing is in accordance with relevant indigenous laws and customs for the purpose of satisfying personal, domestic or non-commercial communal needs. Fourthly, recognition of customary fishing will translate, wherever possible, into a share in the overall allocation of sustainable managed fisheries. Fifthly, in the allocation of marine and freshwater resources, the customary sector should be recognised as a sector in its own right, alongside recreational and commercial sectors, ideally within the context of future integrated fisheries management strategies. Sixthly, governments and other stakeholders will work together to, at a minimum, implement assistance strategies to increase indigenous participation in fisheries-related businesses, including the recreational and charter sectors. Finally, increased indigenous participation in fisheries-related businesses and fisheries management, together with related vocational development, must be expedited.

The recognition of Aboriginal rights and interests in New South Wales waters and fisheries for commercial and non-commercial—subsistence, cultural and spiritual—purposes is a necessary component of the recognition of Aboriginal traditional practices. I will not go into that in further detail except to say that I remember the continuing arguments put forward and the legislation passed by the New Zealand Parliament regarding the relationship of Maori people and indigenous fishing. It is a significant social justice issue that has implications for the social, cultural and economic development of Aboriginal communities in New South Wales. Aboriginal people should not have to apply for a permit to conduct customary fishing. Aboriginal people have the right to practise their traditional laws and customs without regulation by any legislative regime. To introduce a permit scheme is to unnecessarily criminalise Aboriginal customary law and practice. Any introduction of a regulatory scheme to manage environmental or fishery impacts should occur through properly resourced negotiation, and should provide some compensatory measures to Aboriginal persons whose rights are affected. Until such a time as the policy and regulatory framework is agreed, Aboriginal people fishing in accordance with law and custom for non-commercial purposes should not be required to hold a permit.

The policy of the Department of Primary Industries is directly opposite to the Federal and State governments' commitments to increase health and socioeconomic benefits to Aboriginal people. Fisheries are the source of healthy, low-cost protein to Aboriginal communities across New South Wales. That has been the case from time immemorial. To scare Aboriginal people with an unnecessary regulatory barrier on a policy basis as an interim measure is heavy handed, incorrect at law, and immoral when the socioeconomic impacts of that policy are considered. Both peak Aboriginal representative bodies, the New South Wales Aboriginal Land Council and NTS Corporation, submitted their primary position was that cultural fishing activities should be defined in the legislation and exempt from the requirement for a permit, licence or other form of approval. Several current and relevant international agreements are related directly to those issues. First, article 1 of the International Covenant on Civil and Political Rights [ICCPR] states:

… the State party should take the necessary steps in order to secure for the indigenous inhabitants a stronger role in decision making over their traditional lands and natural resources.

Article 27 of the ICCPR makes reference to the rights to enjoy and practice culture and religion. Secondly, article 5 of the International Convention on the Elimination of Racial Discrimination makes reference to the following:

Serious concern remains at the extent of the continuing discrimination faced by indigenous Australians in the enjoyment of their economic, social and cultural rights.

2 December 2009 LEGISLATIVE COUNCIL 20365

The United Nations Declaration on the Rights of Indigenous People is particularly relevant to fisheries, as stated in the following:

States have an obligation to protect the lands, territories and natural resources of indigenous people from infringement by any institution, company or individual. There must be penalties for those who carry out harmful activities on indigenous people's lands and territories. Indigenous peoples shall be entitled to compensation for such activities.

The principles communiqué relating to customary fishing clearly identifies the need to define and incorporate customary fishing into fisheries management regimes and, where possible, to translate customary fishing into a share in the overall allocation of sustainable managed fisheries. Further, the principles call for the recognition of the customary sector as a sector in its own right, which implies resourcing of the customary sector similar to that of the recreational and commercial sectors. Most importantly, there is recognition of the need to increase indigenous business and vocational outcomes, which are known as principles 6 and 7. Native titleholders in New South Wales are exempt from the requirement to obtain a fishing licence or permit when undertaking customary fishing in accordance with their traditional law and custom—section 211 (2) of the Native Title Act 1993.

The "Cultural Fishing in New South Wales" discussion paper makes no mention of this very important provision. In particular, the Githabul people of New South Wales are not required to obtain a permit pursuant to section 37 of the Fisheries Management Act 1994 when exercising their customary rights as determined by the Federal Court, with the consent of New South Wales. I support Greens amendments Nos 1 to 3 to collectively remove the requirement for permits to be issued under sections 37 and 37A of the Fisheries Management Act 1994 for the exercise of Aboriginal cultural fishing rights. There are practical difficulties with the current permit system as proposed in the bill by this Government. People exercising Aboriginal cultural fishing rights have no real security in utilising these fishing rights issued under permits.

I will probably support amendments Nos 4 and 5 for Aboriginal people to have a 2 per cent share in existing share management fisheries and a 10 per cent share in new share management fisheries. The allocation of shares in share management fisheries is much less compared with other common law jurisdictions such as New Zealand, with a 20 per cent share base, and Canada, with 27 per cent of commercial fisheries licences held by First Nations people. I believe that there is a broader need to establish measures that support economic development for Aboriginal people. These amendments are critical in supporting the wellbeing and livelihood of the State's indigenous communities by ensuring an equitable distribution of fishery rights. I support the bill and commend it to the House.

The Hon. ROBERT BROWN [3.48 p.m.]: The Shooters Party supports the Fisheries Management Amendment Bill 2009. I claim that not one other representative group in this House has a closer understanding of the cultural practices of hunting and fishing than the Shooters Party.

The Hon. Rick Colless: That's a big statement!

The Hon. ROBERT BROWN: It is a big statement, but it is correct. The High Court also agrees with that statement. The Field and Game Association in the Yorta Yorta land claim were given status as an interested party simply because of the traditional and cultural connections with duck hunting along the Murray River. It is right and proper that indigenous people be allowed to practise their cultural and traditional activities—and probably long overdue.

[Interruption]

In response to the interjection, the only reason I made that outrageous claim is because I believe it is true. In my office I have some cave paintings on the wall—and, no, members are not allowed to paint pictures on the walls of their offices.

The Hon. Duncan Gay: You did it yourself.

The Hon. ROBERT BROWN: That is right. My cave paintings are taxidermy—a fish and a deer head—and a few paintings of quail and things such as that. The Shooters Party supports the bill. We support indigenous rights, and we also support all cultural rights regarding hunting and fishing, indigenous and non-indigenous.

Mr IAN COHEN [3.50 p.m.]: I pay my respects to the traditional custodians, past and present, of the land on which we meet, the Gadigal people of the Eora nation. I acknowledge also all Aboriginal nations for 20366 LEGISLATIVE COUNCIL 2 December 2009

their stewardship of the oceans and rivers. On behalf of the Greens I contribute to debate on the Fisheries Management Amendment Bill 2009. This is an important bill and I am happy that it will be in place for this summer. The Fisheries Management Amendment Bill 2009 acknowledges Aboriginal cultural fishing rights and enhances compliance and enforcement provisions to protect our aquatic resources. I am a bit disappointed that these two issues have been lumped together in one bill, but it is nevertheless an important reform to fisheries management in New South Wales. I will start with the aspect of the bill that relates to Aboriginal cultural fishing rights. In considering this bill members would be well advised to reflect upon the recent words of Patrick Dodson in his address "Dialogue and Nation Building in Contemporary Australia". He said:

Until, as a Nation, we reach a different plateau of maturity in our quest for full nationhood we will continue to be diminished as a society and will inevitably repeat the disasters of … increased public sector domination over Aboriginal Lives.

The House should also reflect upon the recent judgement of the now retired Justice Kirby in Northern Territory of Australia v Arnhem Land Aboriginal Land Trust, better known as the Blue Mud Bay case. Justice Kirby stated:

The National Apology acknowledges once again, as the preamble to the Native Title Act 1993 already did, the wrongs done in earlier times to the indigenous peoples of Australia, including by the law of this country. Those wrongs included the non-consensual denial and deprivation of basic legal rights, which Australian law would otherwise protect and uphold for other persons in the Commonwealth. In the case of traditional Aboriginals, these rights included rights to the peaceful enjoyment of their traditional lands and to navigate and to fish as their ancestors had done for aeons before British sovereignty and settlement.

Further, in that context, Justice Kirby stated:

Honeyed words, empty of any practical consequences, reflect neither the language, the purpose nor the spirit of the National Apology.

I drew upon the words of former High Court Judge Kirby and Patrick Dodson because they remind us of our history and the path we need to take to activate a new Australian nationhood, a nationhood built upon reconciliation and mutual respect. They remind us also of the commitments spoken and written but not always honoured with action. On 3 April 2009 the Australian Government signed the United Nations Declaration on the Rights of Indigenous Peoples. Aboriginal and Torres Strait Islander Social Justice Commissioner Tom Calma described the formal support for the declaration by the Australian Government as "a watershed moment in Australia's relationship with Aboriginal and Torres Strait Islander peoples". Relevant to our discussion about Aboriginal fishing rights, the declaration states:

• Article 11

Indigenous peoples have the right to practise and revitalize their cultural traditions and customs.

• Article 20

1. Indigenous peoples have the right to maintain and develop their political, economic and social systems or institutions, to be secure in the enjoyment of their own means of subsistence and development, and to engage freely in all their traditional and other economic activities.

• Article 25

Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.

• Article 26

1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.

2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.

• Article 28

Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.

I emphasise that our nation has agreed to those articles. Australia believes, and chose to be bound by, those principles that outline a number of rights to aquatic and marine natural resources. Prior to Australia signing the 2 December 2009 LEGISLATIVE COUNCIL 20367

United Nations Declaration on the Rights of Indigenous People, Federal and State governments signed the National Principles for Indigenous Fishing in 2004. The then New South Wales Minister for Fisheries—I think it was the Hon. Ian Macdonald or perhaps the Hon. Eddie Obeid—agreed on behalf of New South Wales to these foundational principles that provided a practical way to keep Australian fisheries out of lengthy and expensive native title proceedings. The principles state:

1. Indigenous people were the first custodians of Australia's marine and freshwater environments: Australia's fisheries and aquatic environment management strategies should respect and accommodate this.

2. Customary fishing is to be defined and incorporated by Governments into fisheries management regimes, so as to afford it protection.

3. Customary fishing is fishing in accordance with relevant Indigenous laws and customs for the purpose of satisfying personal, domestic or noncommercial communal needs. Specific frameworks for customary fishing may vary throughout Australia by reference, for example, to marine zones, fish species, Indigenous community locations and traditions or their access to land and water.

I want members to make specific note of those provisions; they should be the bedrock of cultural and subsistence fishing rights in New South Wales. It must be remembered that Aboriginal fishing rights are protected by section 211 of the Native Title Act 1994 of the Commonwealth, which commenced prior to the New South Wales Fisheries Management Act 1994, and as such provides a defence to a prosecution for fishing in accordance with their custom, as was amply demonstrated by Murandoo Yanner. In the 1999 High Court case of Yanner v Eaton, Murandoo Yanner, a member of the Gunnamulla clan of the Gangalidda, was charged with breaching section 54 (1) (a) of the Queensland Fauna Conservation Act 1974 after killing two estuarine crocodiles using a traditional form of harpoon.

Yanner was charged with that offence because he did not obtain a permit or licence to hunt crocodiles. In that case the majority rejected the respondent's argument that the Fauna Conservation Act created a legal regime that was inconsistent with the exercise of native title rights to hunting and fishing. Specifically, the argument was put that Crown ownership or creation of property rights over fauna extinguished native title rights. In upholding Yanner's appeal the majority of the court stated:

Regulating particular aspects of the usufructuary relationship with traditional land does not sever the connection of the Aboriginal Peoples concerned with the land (whether or not prohibiting the exercise of that relationship altogether might, or might to some extent). That is, saying to a group of Aboriginal people, "You may not hunt or fish without a permit" does not sever their connection with the land concerned and does not deny the continued exercise of the rights and interests that Aboriginal law and custom recognise them as possessing.

Translating that principle to the New South Wales Fisheries Management Act, the regulatory management of New South Wales marine and aquatic resources in no way extinguishes native title rights as exercisable under the Native Title Act. This is an important point to remember. Aboriginal fishing rights have also received significant consideration by the Canadian Supreme Court. In the landmark case of Sparrow v The Queen 1990, a member of the Musqueam Indian Band was charged with violating Canada's fisheries.

Pursuant to resolution business interrupted at 4.00 p.m. for questions.

QUESTIONS WITHOUT NOTICE ______

LEADERSHIP OF THE GOVERNMENT

The Hon. MICHAEL GALLACHER: I direct my question without notice to the Treasurer. To ensure the ongoing confidence of the business community in the administration of this State, will the Treasurer rule out supporting any future challenge against the Premier of New South Wales by elements within his own party?

The Hon. ERIC ROOZENDAAL: That is a very interesting question because I like to talk about business confidence. I spend a lot of time talking to the business community. It is an important role as Treasurer to speak to the business community at all levels and go to a number of boardroom meetings around the place to assess what they are feeling. What has struck me in my discussions with the business community in the last 24 hours is their sheer horror at what has happened with the Federal Liberal Party. They cannot believe that at a time when the nation needs to come together and grapple with the issue of climate change, the Liberal Party has just jumped into the time machine and gone back to the 1950s.

I understand the Liberal Party dreams of the Menzies era. I understand that the Hon. David Clarke would like to tootle around Sydney in his 1950 Vauxhall. It would be a great time. That is where the Liberals 20368 LEGISLATIVE COUNCIL 2 December 2009

want to take us. You have to wonder about the Liberals when one of the giants of the American political scene, Arnold Schwarzenegger, accepts that "The debate over climate change is over". If Arnold Schwarzenegger, the star of Terminator and an actor I have always respected, can get it right—as a politician he was a terrific actor— if he can get the message, what is going on with the other side of this House? Members opposite want to talk about the business community, but the business community is dumbfounded at the moment at what is going on with the Federal Liberal Party.

Let us talk about what the business community thinks about New South Wales. They tell us they are proud that New South Wales' triple-A credit rating was restored. They are proud of our $62.9 billion investment in infrastructure, which supports 160,000 jobs a year. They know that this Government is fiscally responsible and delivering for the people of New South Wales. We see it every day. We see it with consumer confidence going up; we see it with business confidence going up; we see it with businesses voting with their investment dollars and investing in New South Wales. Whether it is Bunnings with 12 new stores, $420 million of expenditure, 1,000 jobs and 2,500 construction jobs, whether it is JB Hi-Fi with new stores—I can go on and on. The business community knows that this Government is doing what it can to improve economic growth and prosperity in this State. What is the contribution from members opposite? It is to go back to the 1950s, back to black and white television, and back to a time when Chris Spence, their new One Nation candidate, could proudly stand on his views.

The Hon. Greg Pearce: Point of order: I simply ask the Treasurer if he would respond to the question and rule it out.

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

The Hon. ERIC ROOZENDAAL: That is from a party where one of their Federal colleagues cannot even put 1, 2, 3 in the boxes. We will continue to do what we can for the people of New South Wales and economic prosperity. [Time expired.]

NATIONAL INDUSTRIAL RELATIONS SYSTEM

The Hon. MICHAEL VEITCH: My question is addressed to the Minister for Industrial Relations. Will the Minister update the House on the development of the national industrial relations system?

The Hon. JOHN HATZISTERGOS: I thank the honourable member for this very important question because last night, as members would be aware, the Parliament passed the Industrial Relations (Commonwealth Powers) Bill with cross-party support. I do appreciate and put on record the support this legislation had, not only from the Government but also from the Opposition and all members of the crossbenches. I am also pleased to inform the House that this afternoon the Fair Work (State Referrals and Other Measures) Bill passed the Commonwealth Parliament, which will lock in with our legislation. That means we will be able to establish for the first time a national industrial relations system for the private sector. I acknowledge the support at the Federal level of the Greens and Senator Xenophon to facilitate that legislation.

With the passage of this legislation, New South Wales, the State with the longest and most successful record of industrial relations policy, is set to become a participant in the new national industrial relations system. It is a very historic moment in Australian political history. Never before has there been this level of agreement across governments over industrial relations. But this moment almost eluded our nation due to the intransigence of the Federal Coalition. Whilst the State Opposition supported the referral legislation, the Federal Opposition opposed the Fair Work (State Referrals and Other Measures) Bill. They opposed it because it gives the States a genuine stake in the national system through the capacity of the States to be able to withdraw referrals and through the related intergovernmental agreement. It is very clear that with the elevation of Tony Abbott to the position of Federal leader the Liberals remain committed to the WorkChoices regimes being reintroduced. It is interesting that Michael Keenan, the Federal shadow Workplace Relations Minister, said in his contribution:

Why would you want to give States, with a track record such as that of NSW for example, the power to control what happens to workers…?

It is interesting given that the shadow Special Minister of State in New South Wales said this in the Parliament on 6 May about the industrial relations system:

We have an industrial relations system in New South Wales that works and continues to work well.

2 December 2009 LEGISLATIVE COUNCIL 20369

Whilst the State Coalition embraces the New South Wales industrial relations system, scorn is thrown on it by a fellow who comes from Western Australia whose government will not embrace this particular national industrial relations scheme because they are committed to a version of WorkChoices in that State. The Federal Liberal Party also opposed this bill because it clearly wants to reintroduce WorkChoices. A number of quotations in Tony Abbott's political manifesto, Battlelines, give us a clear insight to the direction that a new Coalition Government would take, if it ever came to office. This is what he said. Members opposite should just listen to their Federal leader. He said:

WorkChoices wasn't all bad.

He also said:

I think to impose unfair dismissal laws on small business is gonna hurt…

Members opposite should listen to what Tony Abbott said. They elected him yesterday and this is what he said:

If someone does not fit in, it's best that he or she goes.

It does not matter if they lose their job for raising health or safety issues or for objecting to sexual harassment. If they do not fit in, just get rid of them! Perhaps the most telling line about what the Federal Opposition would do if there was a change of government federally is this line from Tony Abbott, speaking about WorkChoices:

I think people will be readier for reform from us than they were at the last election.

In other words, let us recycle that policy— [Time expired.]

FISHING SANCTUARY ZONES

The Hon. DUNCAN GAY: I direct my question without notice to the Minister for Primary Industries. Is the Minister aware of the many complaints from fishermen across the New South Wales coast who have been hit with huge fines of up to $1,200 for unknowingly drifting into sanctuary zones? Is he aware that one of these fishermen, a retired South Coast policeman who fished for 20 years and never had a fine in his life, was given a criminal record for attempting to harm an animal? Given that many of these sanctuary zones are unmarked and fishermen have virtually no way of knowing where one zone starts and another zone ends, how can the Minister justify these huge fines? Will the Minister commit to reviewing the current system of inspection by Fisheries compliance, and improving anglers awareness with proper marking buoys and signage so that fines are not handed out ad hoc to unsuspecting innocent people drifting into restricted areas?

The Hon. TONY KELLY: I will undertake to check the facts contained in the member's question. In recent days this House passed a very good motion put forward by the Shooters Party to review fishing in New South Wales. I am sure that the newly established committee will also be looking at this issue.

STATE ECONOMY

The Hon. CHRISTINE ROBERTSON: My question is addressed to the Treasurer. Will the Treasurer update the House on recent economic developments that affect the New South Wales economy?

The Hon. ERIC ROOZENDAAL: Yesterday the Reserve Bank of Australia increased interest rates by 25 basis points. The central bank's decision reflects its view that Australia's growth will return to close to trend levels in 2010. The bank is now also on record with its belief that the risk of a serious economic contraction in Australia has passed. We will have to see. Late yesterday Westpac made a remarkable decision to increase interest rates by almost double the Reserve Bank's level; Westpac took the decision to increase rates by 45 basis points. Yesterday Federal Treasurer Wayne Swan stated that he saw no justification for Westpac's action. Treasurer Swan said that he could not see "any justification for banks to pass through more than the official cash rate".

As the Treasurer of New South Wales I believe that other banks should show restraint. Families in New South Wales have every reason to be concerned. It is a fact that the average mortgage in New South Wales is higher than mortgages in the rest of the country and families in New South Wales are more exposed to interest rate movements than families in any other State. We feel the effects of interest rate movements first and hardest. The average mortgage size in New South Wales is around $400,000, in Queensland it is just over $330,000 and 20370 LEGISLATIVE COUNCIL 2 December 2009

in Victoria it is almost $317,000. An increase in interest rates of 25 basis points means an extra $62 a month in repayments for families in New South Wales. That compares to increases of $50 for Victorian households and an increase of $52 for Queenslanders.

For that reason I call on the other banks to think carefully when making decisions on interest rates, especially in the lead-up to Christmas when even the best-planned family budget can be stressed. No-one disputes that our banking sector is one of the strongest in the world, but our banks also have a broader responsibility to the community. They need to be good corporate citizens. We are starting to see the green shoots of recovery in the New South Wales economy. Our retail sector is the strongest in the country, with sustained growth leading all the other States. Yesterday's interest rate increase will impact on this sector at the busiest time of the year. I note the comments of Margy Osmond, Chief Executive Officer of the Australian National Retailers Association, who said that the latest interest rate rise "risks choking off higher retail spending during the most important trading period in the year".

Let us hope that it will still be a good Christmas for our important retail sector, which is worth around $72 billion a year to the New South Wales economy, and which employs around 400,000 people. There is no doubt that the Australian economy is performing amongst the best in the world, but as we move further into recovery I ask the banks to show restraint and caution over the coming weeks and months.

CLIMATE CHANGE

Reverend the Hon. FRED NILE: I ask the Minister for Climate Change and the Environment a question without notice. Is it a fact that the National Oceanic and Atmospheric Administration in the United States shows no global temperature rise since 1980 to 2009? Is it a fact that there has been no global temperature rise since 1850, except for a forecasted 0.8 centigrade? Will there be no future global warming forecast except perhaps for 0.5 centigrade by the year 2100? Will the Minister ensure the release of the Commonwealth Scientific and Industrial Research Organisation scientific paper by Dr Clive Spash? Is there any truth in the rumour that the name of the Minister's department will be changed to the Department of Climate Change Religion?

The Hon. JOHN ROBERTSON: Excited members on the Opposition benches cannot wait to hear today's episode in the saga of climate change in the Coalition in Canberra. I can report a lot of good news about climate change. The Leader of the Opposition in this House can stop pretending that he cares about climate change. The Deputy Leader of the Opposition—the Barnaby Joyce of this House—can now come out of his cave and spruik about the fact that climate change is not being caused by human activity. Contrary to the unfortunate circumstances in which we now find ourselves—the sceptics seem to be getting a bit of airplay—the science is in on climate change. A small rump in Canberra—42 of them—still believe that climate change is not being caused by human activity.

Let me give this debate some perspective. Last month we recorded the hottest November since records have been kept in this country. All sorts of people are running around and talking about the fact that the globe is cooling and all the rest of it. Climate change science does not deal only with the fact that the globe is heating up; it deals also with things such as extreme weather events becoming more prevalent and occurring more often. Even the insurance industry recognises that climate change is real. The insurance industry pulled its head out of the sand and recognised the need to do something about climate change as it was having an impact on its industry and on the people who use insurance products. As a result of climate change we are facing one of the greatest economic crises in the history of this planet.

The Hon. Catherine Cusack: Where is your climate change action plan?

The Hon. JOHN ROBERTSON: As I have said previously—

The PRESIDENT: Order! Members will cease interjecting. The Minister may proceed.

The Hon. JOHN ROBERTSON: I have already told excited members opposite that they can stop pretending they believe in climate change. They cannot convince anybody when members of the Liberal Party in Canberra say that climate change is not real. Climate change is real and it is something that we have to confront. I say to those who want to stick their heads in the sand: The lion is coming and it will bite them on the backside.

WATERFRONT TENANCY CHARGES

The Hon. GREG PEARCE: My question is directed to the Minister for Primary Industries, and Minister for Lands. What progress has been made in complying with the Auditor-General's recommendations 2 December 2009 LEGISLATIVE COUNCIL 20371

and advice from the Independent Pricing and Regulatory Tribunal [IPART] that the review of the net rate of return used for calculating rental charges for waterfront tenancies should be concluded by December 2009? What progress has occurred in relation to the other recommendations of the Auditor-General to ensure transparency and fairness in relation to waterfront tenancy charges?

The Hon. TONY KELLY: The department currently is reviewing those recommendations. I will get back to the Hon. Greg Pearce when I receive an answer.

LIVERPOOL PLAINS COAL MINING

Ms LEE RHIANNON: I direct my question to the Minister for Primary Industries. Is the Minister aware of the report of the Senate Select Committee's inquiry into Australian food production and one of its findings that states: "mining of any form or type should not take place on the floodplains"? Is the Minister aware that the report of the inquiry initiated by Senator Bill Heffernan was agreed to by all senators, including the Labor senators who were part of the inquiry? Is the Minister aware that local farmers and members of the Caroona Coal Action Group put in extensive work to have this inquiry established and now are concerned that the current coal exploration by BHP Billiton and China Shenua could already be damaging the water sources of the Liverpool Plains? As the Minister for Primary Industries will he recommend that mining on prime farmland in New South Wales cease in order to safeguard precious water resources and food production?

The Hon. TONY KELLY: The New South Wales Government has fully cooperated with the Senate Select Committee on Agriculture and Related Industries inquiry into food production in Australia. I note that its second interim report will consider if any action is required. The New South Wales Government is committed to environmental protection of the State's assets through a strong regulatory framework that takes into consideration competing land uses and community concerns. The New South Wales Government is committed to ensuring the long-term viability of our two most important industries in rural New South Wales: agriculture and mining. These two industries are valued at around $32 billion per annum, of which primary industries is about $8.9 billion. Together these industries employ over 90,000 people. The New South Wales Government is aware of current community concerns regarding coal exploration and possible future mining in the highly fertile productive areas such as the Liverpool Plains. The Minister for Mineral Resources will pay a visit to the area shortly and intends to report back to me on what he sees.

The Hon. Catherine Cusack: He reports back to you, does he?

The Hon. TONY KELLY: He is going to report back to me from the agricultural point of view.

The Hon. Catherine Cusack: Oh!

The Hon. TONY KELLY: In fact, he and I discussed this matter only a couple of hours ago. So he was first to raise the subject, not the member opposite. New South Wales has a strong regulatory framework to ensure that the impacts of mining activities on the environment, including agricultural land and water sources, are considered and minimised. The New South Wales Government is facilitating an expert independent study to address the potential impacts of coalmining and gas production on water resources in the area. This is exactly what we discussed: The study is led by Mal Peters, former President of the New South Wales Farmers Association, someone well known to those opposite, and someone who is involved in primary industries. The State's regulatory framework also enables an appropriate balance to be achieved between competing land uses. This framework comprises legislation, regulations, environmental planning instruments, policies, guidelines and supporting information. I fully intend to keep the communication channels open with the various stakeholders to ensure their concerns are addressed. The New South Wales Government's development assessment process is extensive, transparent and rigorous, and provides for full community input.

NEWCASTLE DEVELOPMENT AND RECREATIONAL OPPORTUNITIES

The Hon. HELEN WESTWOOD: My question is addressed to the Minister for Lands. Can the Minister tell the House how Crown land is being used to encourage development and recreational opportunities in the Newcastle region?

The Hon. TONY KELLY: They are not interested at all in the Hunter, yet they claim to be supporters of the Hunter.

The PRESIDENT: Order! Opposition members will cease interjecting. The Minister will continue his answer. 20372 LEGISLATIVE COUNCIL 2 December 2009

The Hon. TONY KELLY: I could not even hear the Leader of the Opposition interjecting with all the clamour on the other side. The Government is committed to fostering growth, jobs and investment in regional areas, and most recently in the Hunter. On 20 November I travelled to Newcastle to announce an agreement between Stronach Property and the Land and Property Management Authority [LPMA], the former Department of Lands, to redevelop that beautiful area, the former Newcastle City Bowling Club site at King Edward Headland Reserve. The existing derelict building will be demolished and replaced by a function and conference centre to be used for a range of activities, including weddings and conferences. Restaurant and café facilities also will be provided, enabling locals and visitors to enjoy a meal or coffee while taking in the beautiful panoramic views of the ocean over the King Edward Headland Reserve. People who attend weddings and utilise the park below will be able to enjoy a cup of coffee and perhaps some water.

Importantly, the remainder of the King Edward Headband Reserve will be upgraded for recreational use to include landscaping, viewing platforms, pathways, seating and lighting. The Leader of the Opposition is familiar with the area. The building will be moved west of its present position so that people will be able to go around the back to use it as a viewing platform. Stronach Property was selected for the project after a public expression of interest process. Its proposal conforms to the plan of management of the site, which was adopted following community consultation. Of course, the redevelopment proposal must go back to the Newcastle City Council for development approval. Two development applications will be required, which will be advertised publicly: one for the demolition of the building and another for the construction of a new building.

On 23 November I called for expressions of interest for the development of an over-55s retirement living complex at Redhead. Redhead is a popular beach suburb of Newcastle and is located within the Lake Macquarie local government area. The expression of interest is the New South Wales Government's response to the need for high-class residential living opportunities for those in the local community looking for alternative living arrangements to the family home. We seek to attract proponents who have the experience, track record and financial capacity to work in partnership with the Land and Property Management Authority, from planning and design through to delivering a world-class environmentally sustainable retirement complex.

On Monday I announced the commencement of the public participation process for the Newcastle Coastal Revitalisation Master Plan. This project is in partnership with the Land and Property Management Authority, Newcastle City Council and Hunter Surf Life Saving, and will set the foundation for the future management and revitalisation of Newcastle's iconic beaches from Stockton in the north to Merewether in the south. The Newcastle coastal revitalisation project complements the overall planning framework for the city and will enable improvement and development of public infrastructure along the coastline. [Time expired.]

RIVER RED GUM LOGGING

Mr IAN COHEN: My question is directed to the Minister for Primary Industries. Has the Minister noted that yesterday a Deniliquin Local Court magistrate found that logging of the River Red Gum forests by Forests New South Wales in the Riverina region is illegal? Will the Minister acknowledge that activists and concerned citizens of New South Wales can occupy logging areas in the River Red Gum forests with immunity as Forests New South Wales has not obtained approval under part 3A of the Environmental Planning and Assessment Act?

The Hon. Michael Gallacher: I have never seen anyone take their glasses off to read.

The Hon. TONY KELLY: I was reading the small print first! In September 2007 protesters led by the New South Wales National Parks Association [NPA] commenced a protest action in Moira State Forest. No action was taken against the protesters at that time. The National Parks Association then proceeded to seek a court judgement to confirm its belief that harvesting operations in the Riverina Red Gum forests were illegal. The action by the National Parks Association resulted in consent orders being issued by the New South Wales Land and Environment Court imposing agreed conditions on the association and Forests New South Wales regarding the continuation of the red gum forestry operations.

Court orders allowed harvesting to continue, subject to a number of special conditions. One was that Forests New South Wales would place an environmental impact statement covering its red gum operations on public display by 1 June 2009. Forests New South Wales met that 1 June 2009 deadline. I should make it clear that it was the National Parks Association that specifically wanted a part 5 environmental impact statement rather than a part 3 assessment. However, also on 1 June 2009 a small group of protesters chained themselves to logging equipment in Millewa State Forest. At that time, I think I was the Minister for Police. 2 December 2009 LEGISLATIVE COUNCIL 20373

The Hon. Greg Pearce: Hard to know, isn't it.

The Hon. TONY KELLY: I took a particular interest in the matter at the time. I am informed that several of the protesters are members or are associated with the National Parks Association. Forests New South Wales had declared the area to be a restricted area under the forestry legislation for the purposes of harvesting. The protesters were informed that they were in a restricted area and were given a deadline by which to vacate the area. Three protesters chose to remain in the restricted area after the deadline had been reached, and the New South Wales Police Rescue Squad assisted them to leave the area.

The Hon. Michael Gallacher: Assisted them, did they?

The Hon. TONY KELLY: They were helping the police with their inquiries. I am advised that the three arrested protesters first appeared before the Deniliquin Local Court approximately six weeks ago. The case was heard in part and then held over for hearing on Monday and Tuesday of this week. I am advised that the magistrate has handed down the finding that the three defendants were found not guilty because the court is of the opinion that Forests New South Wales should have approval under part 3A of the Environmental Planning and Assessment Act.

While I note the findings of the court, I believe that management of red gum forests has moved on. Following the completion of the environmental impact statement, Forests New South Wales committed to, and has commenced work on, a part 3A assessment under the Environmental Planning and Assessment Act. Subsequently, the Government announced a red gum regional assessment that would be undertaken by the Natural Resources Commission. That meant that the Forests New South Wales part 3A assessment process was halted to allow the National Resource Commission to complete its regional assessment. We now await the determination of that forest assessment under the Forestry and National Park Estate Act 1998.

An integrated forestry operations approval may flow from that. If that is in place, the Environmental Planning and Assessment Act will no longer apply. The commission is well qualified to advise the Government on this complex and important matter. The Government will make a decision on the future of red gum forests based on the recommendations in the commission's report. In the meantime, Forests NSW continues to comply with the consent order agreed with the National Parks Association in 2007, and is accessing compartments only, as negotiated with the National Parks Association.

It should be noted that the compartment in which the National Parks Association protesters were arrested in June 2009 already had the concurrence of the National Parks Association to allow harvesting to proceed. Therefore, the protest appears to have been motivated more by politics than by any real environmental concern. [Time expired.]

MACQUARIE GENERATION LOSSES

The Hon. MATTHEW MASON-COX: My question is directed to the Treasurer, and Minister for State Development. Can he explain how Macquarie Generation lost hundreds of millions of dollars in 2008-09 due to adverse movements in the price of aluminium? What protection measures has his Government taken to ensure that that does not happen again?

The Hon. ERIC ROOZENDAAL: The Hon. Matthew Mason-Cox has asked an interesting question. Indeed Macquarie Generation was party to an agreement in relation to aluminium prices, and some losses occurred. That underlines the volatility that can exist in some markets. Speaking of volatility in markets, as I was flicking through the Sydney Morning Herald earlier today I found some letters to the Editor, which I am compelled to mention to the House in connection with the issue of volatility. I will begin with a letter from Judith Sutton, who stated:

Malcolm Turnbull has never suffered fools gladly. Now the Liberal Party has demonstrated—

The Hon. Matthew Mason-Cox: Point of order: My point of order relates, quite obviously, to relevance. The question is about Macquarie Generation and the measures that this Government is taking to ensure that hundreds of millions of dollars are not lost again in this financial year.

The PRESIDENT: Order! The Minister's answer should be generally relevant to the question asked.

The Hon. ERIC ROOZENDAAL: I will just finish reading the letter, which states:

Malcolm Turnbull has never suffered fools gladly. Now the Liberal Party has demonstrated it is a ship in which the majority are fools.

20374 LEGISLATIVE COUNCIL 2 December 2009

In line with that volatility, the Auditor-General has reported that Macquarie Generation has a $427 million unrealised writedown in financial instruments valuation.

The Hon. Michael Gallacher: You are Gilligan.

The Hon. ERIC ROOZENDAAL: And the Federal Liberal Party is the Titanic, comrade. The Auditor-General's report on electricity covers the financial performance of Macquarie Generation. Reference is made to an adverse movement of $427 million in financial instruments valuation. The Opposition may struggle to understand modern financial accounting concepts, but they can put their concerned little hearts at ease because this is not a real loss. It is called a paper loss that offsets an earlier paper gain. Some of Macquarie Generation 's forward thinking electricity supply contracts have a clause that means that when there is a bull market in particular commodities, the people of New South Wales will share some of the gain.

Under the latest accounting standards—in particular, International Accounting Standard AASB139, with which I am sure the Hon. Matthew Mason-Cox is well acquainted—this results in what is referred to as an embedded option being recognised in the contract. When the trigger point for a commodity is exceeded an embedded derivative asset is created in the accounts. These embedded derivative assets then generate real income for the people of New South Wales under the terms of the contract. When the bull market in the commodity finishes, as happened during this last year, the embedded derivative asset is written off, but the profits it generated over the previous accounting period remain.

That may be beyond the scope of the Opposition to comprehend, but the net result is that the people of New South Wales have made a significant profit from these confidential contracts during the good times of the resources boom. There is no real loss on the write-off of the synthetic accounting assets, just as there was no real gain when it was created. Macquarie Generation in fact recorded its third best year ever, which is an outstanding result for the people of New South Wales.

MINE SAFETY

The Hon. HENRY TSANG: I address my last question in the Legislative Council to the Minister for Mineral Resources. Will he please update the House on the State Government's initiatives to improve mine safety in New South Wales?

The Hon. Melinda Pavey: Thank you, Henry. That was beautifully said.

The Hon. PETER PRIMROSE: I too thank the Hon. Henry Tsang for his question, and I am sure I speak on behalf of the House in wishing him well. The 2004 mine safety review, which was conducted by former Premier Neville Wran, identified as priority issues work hours and fatigue among mine workers and the impact on their health and safety. It found in particular that mine managers need to accurately record and monitor hours worked at mine sites by all workers. As part of this strategy, today I am happy to launch a new guide which will help the State's mining industry better manage health and safety risks posed by fatigue.

Fatigue is a longstanding issue within the mining industry. The fatigue management plan will assist to reduce the likelihood of fatalities and serious injury as well as realise the goal of world-leading health and safety for our mineworkers. The guide has been developed by a partnership of mining companies, unions and the Government. I applaud all these stakeholders for their commitment to address this very real and serious issue. The New South Wales Mine Safety Advisory Council—which is the body that represents mining industry employers, workers and Government and which advises the Minister on mine safety issues—has also endorsed the guide. I commend Norman Jennings for the excellent job he is doing as Chair of the Mine Safety Advisory Council.

The guide, which can be used on a site-by-site basis with a practical risk management process, can be applied to employees as well as contractors. Importantly, it does not seek to arbitrarily limit working time; rather, it establishes trigger points for increasingly stringent risk control measures to manage fatigue. The New South Wales Government is fully engaged in working towards our goal of a zero fatality, zero harm industry through a number of measures. The mine safety levy funds the regulation of health and safety, ensuring the health and safety function of the regulator is carried out effectively. It has been set at $23.7 million for 2009-10.

The New South Wales Government is also an active participant of the National Mine Safety Framework, which aims to achieve greater consistency in mine safety regulation and legislation throughout 2 December 2009 LEGISLATIVE COUNCIL 20375

Australia. The framework also is looking at health and safety competence, research, data collection and compliance within the mining industry. The Coal Competence Board is undertaking work to ensure that people are competent to work safely in the mining industry. Regular workshops and meetings are hosted by Industry and Investment New South Wales, bringing together representatives of employers, employees, designers and manufacturers, contractors and the regulator to discuss important health and safety issues.

The New South Wales mining industry is a significant employer in this State, with about 29,500 direct jobs. While the industry has shown constant improvement in safety performance during the past five years, continuing incidents are a stark reminder that we must work together to achieve our common goal of a zero harm industry. There have been seven fatalities in the New South Wales mining industry over the past five years, along with more than 200 serious injuries over the same period. So clearly this is not the time to sit back; some more work needs to be done. It is now a reality to expect the industry to be fatality free. In many respects we have an enviable record when it comes to mine safety, but the Government expects the industry to maintain its efforts to strive for further improvement in this area. We can and must do better. As Minister I have no higher priority than the protection of the health and safety of workers in the mineral resources industry in New South Wales. I commend the efforts of all in the industry to work cooperatively to improve health and safety. Today's release of the Fatigue Management Plan builds on those efforts, and I congratulate all those involved in producing it.

PRISON STATISTICS

Ms SYLVIA HALE: I direct my question to the Minister for Corrective Services. The Auditor-General's report on Corrective Services was released today. How does the Minister intend to respond to the appalling statistics contained in that report, namely, in 1997-98 per 100,000 of population New South Wales imprisoned 2 per cent more people than any other State; 10 years later New South Wales is now imprisoning 10 per cent more people than any other State; the repeat offending rate in New South Wales is 43 per cent, whereas in other States it is 38 per cent; prisoners in New South Wales have the lowest amount of time out of their cells of any prisoners in any other State in Australia, at 11.9 hours per day compared with an average of 13.6 hours out of cells in other States; and at the same time assaults by prisoners on prison officers have increased?

The Hon. JOHN ROBERTSON: I thank the member for the opportunity to detail the great work that is being done in Corrective Services NSW. The New South Wales Government makes no apologies for being tough on crime. The tightening up of sentencing legislation, the continued use of intelligent policing strategies and more officers on the beat targeting repeat offenders means that if you do the crime, you will do the time. The New South Wales Judicial Commission stated that for offenders sentenced in Australia in 2006-07 New South Wales has the highest imprisonment rate for offences of sexual assault, robbery, more serious robbery offences, break and enter and burglary offences. However, the education and rehabilitation of offenders are also key objectives of Corrective Services NSW. In fact, we have the third highest percentage of inmates enrolled in secondary school courses compared with other jurisdictions, a range of therapeutic programs to target the causes of criminal behaviour, and work programs that employ more than 5,500 inmates every day. This approach is having results.

Crime rates in all but one major offence category are either falling or stable. We have also taken serious steps to stop reoffending by implementing a number of innovative new court-based programs to make repeat offenders turn away from a life of crime. These include the Drug Court, with proven results in reducing rates of reoffending; reforms to the fines system, including flexible payment options and new work development orders, to stop vulnerable people getting caught up in a cycle of secondary offending; forum sentencing, where offenders are made to face up to their crimes by being forced to confront their victims; and the Magistrates Early Referral Into Treatment [MERIT] Program, which allows magistrates to refer offenders with drug problems into treatment prior to sentencing.

Corrective Services NSW has implemented a broad range of programs specifically aimed at inmates deemed to be at a medium or high risk of reoffending. These include the Two Ways Together Program, which assists Aboriginal offenders to reintegrate into their local community; the Sober Driver Program, which has successfully reduced reoffending by repeat adult drink-drive offenders at rates of nearly 50 per cent; and the Pathways to Employment, Education and Training Program, which helps medium- and high-risk offenders to successfully complete vocational education courses at New South Wales TAFE. These programs highlight the Government's commitment to giving offenders the opportunity to contribute positively to the community after they have completed their sentence. We also have brand new initiatives coming on line this year, including 20376 LEGISLATIVE COUNCIL 2 December 2009

youth conduct orders, which will require young people and their families to confront the causes of their offending behaviour; and a new court supervision program called Court Referral of Eligible Defendants into Treatment, or CREDIT. These initiatives, backed up by a tough criminal justice system with deterrence at its core, will help us to keep driving down crime rates.

RUTHERFORD TECHNOLOGY HIGH SCHOOL ELECTRICITY SUPPLY

The Hon. ROBYN PARKER: My question without noticed is addressed to the Minister for Climate Change and the Environment, Minister for Energy, Minister for Corrective Services, Minister for Public Sector Reform, and Special Minister of State. Will the Minister explain why electricity infrastructure has not kept up with demand in Rutherford? In particular, why is Rutherford Technology High School unable to use its air-conditioning system full time, despite temperatures reaching 42 degrees in the Hunter last week? Is the Minister aware that Rutherford Technology High School has been allotted $300,000 from the Department of Education and Training to fix its air-conditioning system, but Energy Australia said it cannot do the job until the middle of next year? What does the Minister intend to do about that?

The Hon. JOHN ROBERTSON: I thank the member for acknowledging that last month was the hottest November on record since records have been kept in this country. New South Wales has one of the most reliable electricity networks in Australia and has invested record amounts for several years to upgrade, expand and maintain our electricity supply network. We also have enough electricity generation to meet demand until at least 2015-16. Our electricity distributors consistently average above 99.97 per cent availability for New South Wales. At the end of September 2009 they achieved 99.9742 per cent. Mandatory reliability licence conditions, introduced in New South Wales in 2005, are driving the increased investment in electricity networks designed to ensure that they can better handle the kind of extreme conditions that occurred recently in Victoria and South Australia.

The Hon. Duncan Gay: Because you didn't put any money into them over 15 years.

The Hon. JOHN ROBERTSON: Barnaby, the sceptic, should settle down! The three New South Wales electricity distributors reported that they met the reliability standards in 2007-08. The number of distribution workers has increased by almost 50 per cent over the past five years in order to improve and better maintain the networks and to provide for the growth of New South Wales. The electricity distributors have more than doubled capital spending in just four years, to new records of more than $1.9 billion in the last financial year and more than $2.3 billion in 2008-09. Over the next five years a record $16.7 billion will be invested in maintaining and upgrading the State's electricity network infrastructure.

The New South Wales Government recognises the importance of adequate, reliable electricity supplies to the New South Wales economy and to the living standards of New South Wales citizens, and is taking decisive action to ensure that New South Wales electricity infrastructure meets this need. I keep hearing members talk about the hot weather in Rutherford. Members opposite do not believe in climate change, so they do not believe that it is getting hot. Although they come in here and pretend to care, the reality is that the sceptics are now out of the box and in control.

The Hon. Duncan Gay: Point of order: My point of order is relevance. It was a serious and discrete question about children at Rutherford. The Minister is talking about a Federal area and is playing silly games. I request you to bring the member back to the question.

The PRESIDENT: Order! The Minister should continue to be generally relevant.

The Hon. JOHN ROBERTSON: We are talking about hot weather, which is attributable to climate change. The question of the Hon. Robyn Parker related specifically to hot weather last month in Rutherford. As much as the Deputy Leader of the Opposition does not like the fact that all members of the Opposition are vulnerable on climate change, we are doing what we need to do with networks and what is required to address climate change, unlike those on the other side. I will undertake to investigate the matter in relation to Rutherford and provide an answer to the Hon. Robyn Parker.

SUPPORT FOR VICTIMS OF CRIME

The Hon. KAYEE GRIFFIN: My question is addressed to the Minister for Corrective Services. Will the Minister please update the House on how Corrective Services NSW is supporting victims of crime? 2 December 2009 LEGISLATIVE COUNCIL 20377

The Hon. JOHN ROBERTSON: Corrective Services NSW has recently celebrated 10 years of providing restorative justice interventions for victims of serious crime. Restorative justice focuses upon repairing the harm caused by crime. As we celebrate the anniversary of this outstanding initiative, I am pleased that Corrective Services NSW is now, more than ever, in a position to address the needs of victims. The Restorative Justice Unit was established by Corrective Services NSW in 1999 to provide two key services for victims of crime: victim offender conferences and indirect mediations. The meetings are voluntary and occur at the post-sentence stage of the criminal justice process. This is important because it means the offender is not rewarded for his or her participation.

Since the unit began, more than 500 people have come together to participate in the restorative justice process and learn from their experiences. This includes not only victims of crime and offenders, but also family and community members. In fact, more than 200 participants have spoken about issues relating to either murder or manslaughter convictions, more than 70 participants addressed matters involving dangerous driving causing death and about 120 participants were involved in armed robbery offences. It is significant to note that in matters where a loved one has been lost, conferences are increasingly being organised at the request of the family of the deceased. It is not easy for victims to participate in conferences with offenders, and I commend their courage.

Victim offender conferences and indirect mediations seek to empower victims of crime by enabling them to have a voice. They can ask questions of the offender and express how the crime has affected them. This helps them by the fact that they can hold the offender personally accountable and, in the process, address how the offender might repair some of the harm caused. It is also important to note that this process can be a positive step towards rehabilitation for offenders. The programs encourage offenders to accept full responsibility for their actions, and, it is hoped, to encourage them to turn away from a life of crime. Restorative justice highlights the commitment of the Government to giving offenders the opportunity to contribute positively to the community.

International research into the impact of victim-offender conferencing has shown measurable effects on the wellbeing of the victims of crime who participate. Feedback from participants is that the process is transformative and fundamental to their healing from the impacts of crime. These are positive results. Restorative justice puts the people most affected by crime, the victimised people, at the centre of the process. Furthermore it helps to provide offenders with the tools that are vital to reintegration into the community. In 10 years Corrective Services NSW has succeeded in turning the ideals of restorative justice into practical program realities. This is due in no small part to the support provided by groups such as the Homicide Victims Support Group, the Victims of Crime Assistance League and Enough is Enough. I am sure all members will join with me in thanking these organisations for their continuing dedication and hard work.

TAFE COURSE COMMERCIALISATION

Dr JOHN KAYE: My question is directed to the Minister representing the Minister for Education and Training. Is it true that a large number of TAFE Certificate IV courses will become commercial in 2010 so that the annual fees will rise from approximately $1,200 to $9,500? Which courses are being changed in that fashion? Why are working people being subjected to this attack on their ability to improve their qualifications and career prospects? I expect the Minister, who does not know much about education, to take the question on notice.

The Hon. JOHN HATZISTERGOS: I know a lot about education—for three months I was acting Minister so I know a fair bit about it. I do not profess to know the detailed answer to the question asked by Dr John Kaye and, in the circumstances, I will refer it to the Minister for an appropriate response.

SENTENCING OF CHILDREN CONVICTED OF MURDER

The Hon. GREG DONNELLY: My question is addressed to the Attorney General. What is the latest information regarding the sentencing of children who have been found guilty of murder?

The Hon. JOHN HATZISTERGOS: Sentencing criminal offenders often requires courts to balance competing demands. On the one hand, courts must impose punishments that reflect the seriousness of the crime, provide justice for victims, and send a message of general deterrence to others. On the other hand, the community also expects that those who commit crimes do not re-offend. Accordingly, sentencing courts must also have regard to an offender's future dangerousness and prospects for rehabilitation, and examine factors that 20378 LEGISLATIVE COUNCIL 2 December 2009

might have caused or contributed to the offender's criminal behaviour. While reconciling these competing demands is a difficult undertaking at the best of times, sentencing children who are found guilty of murder presents unique challenges.

In particular, it is very difficult to make accurate diagnostic and prognostic assessments regarding the development of the child at the time of sentence. This can frustrate the court's ability to make a clear determination as to the offender's capacity for rehabilitation or future dangerousness. Former New South Wales Supreme Court Chief Justice James Wood encountered such problems in sentencing a juvenile offender known as SLD, who was 13 years of age when he committed murder in circumstances that could not be explained. Due to his age and immaturity, it was difficult at the time of sentencing for psychologists to accurately diagnose the definitive presence of any personality disorder in SLD. Nevertheless, His Honour sentenced SLD to 20 years imprisonment, noting that, and I quote from paragraph 138 of the judgment:

I must impose a sentence in the light of what is presently known, notwithstanding the circumstance that none of the psychiatrists or psychologists who have examined SLD and who have given evidence, can be certain what the future holds, or what truly motivated him.

In light of those issues, the New South Wales Sentencing Council recently commissioned a report entitled "Provisional Sentencing for Children". The report, which was publicly released on Monday, recommends the introduction of a new provisional sentencing option for courts sentencing children aged 10 to 14 years who are guilty of murder. Provisional sentencing would allow for courts to impose a notional sentence at an initial procedure, with an ability to later vary or adjust that sentence as it is served. A provisional sentence could only be imposed if the offender's young age did not permit a proper psychological assessment to be carried out at the time of sentencing. The court could then review the sentence after two years, at the mid-point of the non-parole period, or when otherwise necessary.

Such reviews would be done according to assessments as to the offender's capacity to rehabilitate and future dangerousness, and would take into account any mental health conditions that may have emerged or become apparent as the child matures. The child could also apply for a final determination of the sentence at any time. Provisional sentencing would represent a radical departure from existing sentencing principles, in particular the principle of finality. It is important to remember that finality not only provides certainty to those who are being sentenced, but also provides closure to victims and their families. It is perhaps for those reasons that various stakeholders have already put forward quite divergent views about the proposal.

For example, the report notes that while organisations like the Bar Association, the Public Defender's Office and the Council for Civil Liberties were supportive of provisional sentencing, others like the Legal Aid Commission and the Law Society had reservations. How to deal with child murderers is a difficult and sensitive issue and one about which most people would have an opinion. Therefore, I have little doubt that these divergent views would extend to the wider community. Accordingly, the Government has invited public comment on the proposal, and will undertake further targeted consultation with key stakeholders, including victims of crime, prior to making a determination about whether to accept the report's recommendation. I invite all interested persons to obtain a copy of the report and make a comment by visiting the Department of Justice and Attorney General's website at www.lawlink.nsw.gov.au/clrd. Submissions close on 31 January 2010.

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

COOMA HEALTH CUTS

The Hon. JOHN HATZISTERGOS: On 28 October 2009, the Hon. Melinda Pavey asked me a question without notice relating to Cooma health cuts. In response to the question, which I took on notice, I inform the House that I am advised that total nursing numbers in the Greater Southern Area Health Service and across the State are higher in total in 2009 than they were in 2008. There are no plans to reduce the patient services currently available at Cooma Hospital.

Questions without notice concluded.

VALUATION OF LAND AMENDMENT BILL 2009

Personal Explanation

The Hon. TONY KELLY, by leave: I wish to make a personal explanation. During the Government's second reading speech of 12 November 2009 on the Valuation of Land Amendment Bill 2009, an error 2 December 2009 LEGISLATIVE COUNCIL 20379

occurred. A reference to section 49G of the Valuation of Land Act was made, when in fact the relevant section of referral is section 14G, not 49G. Section 14G concerns the assumptions on which a heritage valuation should be based. Section 49G does not exist in the Valuation of Land Act.

JOINT STANDING COMMITTEE ON ROAD SAFETY

Report

The Hon. Ian West, on behalf of the Chair, tabled report No. 3/54, entitled "Report on Pedestrian Safety (Ministerial Reference)", dated December 2009, together with the transcript of evidence and minutes of proceedings.

Report ordered to be printed on motion by the Hon. Ian West.

The Hon. IAN WEST [5.01 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.

FISHERIES MANAGEMENT AMENDMENT BILL 2009

Second Reading

Debate resumed from an earlier hour.

Mr IAN COHEN [5.03 p.m.]: I continue the point I was making earlier. Aboriginal fishing rights have also been given significant consideration by the Canadian Supreme Court. In the landmark case of Sparrow v The Queen (1990), a member of the Musqueam Indian Band was charged with violating Canada's Fisheries Act for fishing with a longer drift net than was permitted under licences and regulations. Sparrow was the first Canadian Supreme Court case that considered constitutional recognition and affirmation of existing Aboriginal and treaty rights of the Aboriginal peoples of Canada and the ability of the Government to alter, diminish or vary such rights through government regulation. Sparrow retains a place in the Canadian psyche similar to the place of Mabo in Australia's political consciousness because it acknowledged the need for a prioritisation of Aboriginal fishing rights after essential conservation measures and objectives.

Commentary on Aboriginal fishing rights, especially in Canadian and New Zealand jurisdictions, makes an important delineation between subsistence and cultural fishing. In jurisdictions where the acknowledgement of indigenous fishing rights is dependent on restrictive legal formalism, fishing rights are conceived purely in the context of indigenous cultures. However, it is also important to acknowledge customary or traditional fishing rights that form the basis of basic community subsistence needs. Nutritional health and wellbeing of Aboriginal communities is inextricably entwined with fishing practices and fishing rights.

The rights of Aboriginal people, those traditional owners of our State, to customarily fish their waters as they have from time immemorial is not a right to be circumscribed by permit or licence—it is a birthright, and it comes with responsibilities. State acknowledgement of Aboriginal cultural fishing rights is an important development in New South Wales law and one that the Greens strongly support. Fifteen years after the New South Wales Supreme Court of Appeal decision of President Kirby in Mason v Tritton, the State is now recognising the ongoing existence of Aboriginal cultural fishing rights. In the other place, Parliamentary Secretary Lylea McMahon described the inclusion of Aboriginal cultural fishing in the Fisheries Management Act as "formally" recognising the customary rights of Aboriginal peoples in New South Wales fisheries management.

I take the word "formally" as indicating, in the opinion of the member for Shellharbour, that New South Wales Fisheries officers and the New South Wales Department of Primary Industries have facilitated the exercise of Aboriginal cultural fishing rights. When members in that other place commented about "formalisation" of Aboriginal cultural fishing in New South Wales, they incorrectly presented an idea that this legislation is simply a token of recognition. It is much more than a token of recognition—it is about accepting Aboriginal governance over certain fishing resources in New South Wales. The former Minister for Primary Industries, the Hon. Ian Macdonald, indicated in response to my questions during the budget estimates hearings 20380 LEGISLATIVE COUNCIL 2 December 2009

that since 2007 the Department of Primary Industries has issued 10 permits for Aboriginal cultural fishing. I am unsure of the duration of those permits but the volume demonstrates that Ms Lylea McMahon is not particularly accurate in describing this legislation as "formalising" Aboriginal cultural fishing rights.

On the contrary, a recent example of how the department deals with Aboriginal cultural fishing rights tells a very different story. Recently, Kevin Manton and Richard Farley, two experienced fishermen and Worimi knowledge holders, requested a special permit from New South Wales Fisheries to educate their young people on fishing in the upper estuary near Karuah as part of the National Aboriginal and Islander Day of Observance Committee [NAIDOC] Week activities. The fishermen had their request in for weeks, but the permit was not issued. After extensive lobbying on the issue, they received their permit, limited to the hours between 8.00 a.m. and 4.00 p.m.—useless in terms of attempting to educate their young people, as the fish and crabs are early risers.

New South Wales Fisheries knew the permit was related to NAIDOC Week activities, yet provided an unnecessarily restrictive permit. That is not the way this State should recognise Aboriginal cultural fishing rights. The exercise of Aboriginal cultural fishing rights intersects with a number of New South Wales Government and Federal Government policy platforms. The New South Wales Government's State Plan, the Two Ways Together Plan and the National Integrated Strategy for Closing the Gap in Indigenous Disadvantage, all have synergistic overlap with Aboriginal cultural fishing rights in terms of health and cultural development outcomes. At the centrepiece of the New South Wales Government's policy objectives is the New South Wales State Plan Priority F1 that commits to improving health, education and social outcomes for Aboriginal people. That broad platform is elaborated in the Two Ways Together Plan in relation to health and culture targets. The Two Ways Together Plan recognises that past policies did not achieve sufficient socioeconomic outcomes for Aboriginal people.

Non-recognition of Aboriginal cultural fishing rights has been part of a web of policies that has adversely impacted upon Aboriginal peoples. Non-recognition of important rights such as fishing rights is offensive, culturally insensitive and inappropriate for a State standing by commitments to close the gap on Aboriginal disadvantage. These policy platforms underscore the essential need to recognise cultural and traditional fishing rights. Recognising Aboriginal cultural and subsistence fishing rights is central to animating principles inherent in Articles 5, 11, 12, 25 and 26 of the United Nations Declaration of Rights of Indigenous People. Article 27 of the International Covenant on Civil and Political Rights, imploring nation States to secure minority communities' rights to enjoy their respective culture, religion and language, has repeatedly provided a legal basis for the exercise of Aboriginal fishing rights in other common law jurisdictions, including New Zealand. The Hon. Tony Kelly would be aware that the New South Wales Government is a signatory to the Closing the Gap policy of the Council of Australian Governments [COAG]. He would be aware also that the State Plan states:

Aboriginal People do not live as long - only 7 per cent are over the age of 55 compared to 22.6 per cent in the non-Aboriginal community and, on average, they die 20 years earlier

Health, social and other outcomes for Aboriginal People are significantly worse than for the rest of the State. It is essential that we work towards overcoming these disadvantages.

The Minister knows that Aboriginal people need access to fresh, high-quality protein to live longer, healthier lives. Minister Kelly would be acutely aware of the important interface between Aboriginal fishing rights and community health outcomes. The 2008 report entitled "The Health and Welfare of Australia's Aboriginal and Torres Strait Islander Peoples" highlighted dietary and nutrition issues as a factor in poor Aboriginal health outcomes, which are compounded by geographical factors reducing access to nutritious foods. Access to marine and inland river resources is an important aspect to improving Aboriginal peoples' health outcomes. It provides an opportunity for access to a low-cost protein source.

Turning to the cultural dimensions of Aboriginal fishing, the right is fundamental to communal fishing activities and the process of sharing the catch with the community, from children up to elders. Community members who have limited mobility or are incapacitated by various medical ailments can continue to experience a strong connection to culture through communal cultural fishing activities. As Vivienne Mason, Chair of the Wagonga Aboriginal Land Council at Narooma on the State's South Coast, who has been lobbying on the issue for over a decade, said on ABC radio:

"It is vital the importance of the custom is recognised. Fishing it goes a lot deeper than just cultural. It's part of us, part of our lives, it's part of our dreaming, it's part of our souls and we've been denied our practices."

2 December 2009 LEGISLATIVE COUNCIL 20381

In 2004, the Aboriginal Justice Advocacy Council published a report titled "Caught, Hook Line and Sinker: Incorporating Aboriginal Fishing Rights into the Fisheries Management Act", on the need for the New South Wales Fisheries Management Act to adopt an Aboriginal cultural fishing right. The report's author, Mr Scott Hawkins, made a number of observations about the failure of the New South Wales Government to adopt an Aboriginal cultural fishing right in contrast to a number of other State jurisdictions that have acknowledged the continual existence of such a traditional right. Victoria, Northern Territory, Western Australia, Tasmania and Queensland have all acknowledged Aboriginal rights in various forms in their fisheries management legislation.

Without recognition of Aboriginal fishing rights by the State of New South Wales, Aboriginal peoples exercising their traditional rights, which existed well before 1788, has resulted in a potential criminalisation of cultural belief, traditional rights and the generational dissemination of knowledge. Aboriginal peoples who have sought to exercise traditional Aboriginal fishing rights, unrecognised by the New South Wales State, have been subject to criminal sanctions for exceeding recreational bag limits. I do accept that in some instances the department and fishing officers have facilitated respect for Aboriginal cultural fishing rights. However, there have been repeated reports over the years that the exercise of Aboriginal fishing rights has been subject to criminal penalties under the Act. So, I do not think this amendment is a mere formalisation of the progressive benevolence of the department. It is a foundational acknowledgment of a long existing right.

The Hon. Tony Kelly: Forty thousand years.

Mr IAN COHEN: Yes. However, in its current form the bill allows the Department of Primary Industries to retain the power to dictate the terms upon which this right is to be exercised. The bill in its current form is a denial of Aboriginal governance. The Greens are not satisfied with the way in which the bill implements Aboriginal cultural fishing rights. I will explain why. Acknowledgement of the Aboriginal cultural fishing right is implemented as a defence to offences under the Act through the issuance of special permits. In other words, the right emanates from the Fisheries Management Act framework, and authority to exercise an Aboriginal cultural fishing right is dependent upon the issuance of a permit from the Fisheries Department. As a legal fiction, it is shattered by our native title case law. Aboriginal cultural fishing rights existed eons before the Fisheries Management Act existed, yet it is the source of authority upon which an Aboriginal fishing right is said to be derived.

[Interruption]

The PRESIDENT: Order! For the second time today a mobile phone has rung in the Chamber. I ask all members once again to place their phones on silent setting before entering the House.

Mr IAN COHEN: In a strict sense, if we accept this legal fiction, we deny Mabo. Our position should be based in reality, not political expediency. Aboriginal cultural fishing rights coexist alongside the Fisheries Management Act. They are not born or derived from the Act. Fortunately the Minister and his office have worked hard to remove this legal fiction that simply does not belong in twenty-first century Australia. This is about more than legal fiction though. There are many practical implications of imposing a permit system on Aboriginal cultural fishing rights.

Beyond State acknowledgement of Aboriginal cultural fishing rights there must also be a commitment to engage with Aboriginal communities on all aspects of fisheries management in New South Wales. Participation in all aspects of fisheries management is essential to make sure this right is given a real voice. Recognition of this customary right is but the first step towards finding an equitable balance between recreational, commercial and Aboriginal rights. Put in the language of obligations, there is a continuing challenge to place all fishing rights within the rubric of sustainable management. Earlier this year the Department of Primary Industries circulated a cultural fishing discussion paper. Calls for submissions were placed on the Department of Primary Industries website. The "Cultural Fishing in NSW Discussion Paper" issued by the department failed in a number of respects.

It failed to mention existing statutory exemptions, such as section 34C (2) (f) of the Fisheries Management Act 1994 of New South Wales, which applies only to registered claimants; Aboriginal customary rights are also recognised by section 341 (3) (c) of the Act and clause 122 of the Fisheries Management Regulation 2002 (NSW), which applies to Land Council members in tidal waters issued with a certificate; and section 220ZFA (2) (g), which provides a defence to harming threatened endangered species and habitats to Aboriginal People undertaking "traditional Aboriginal cultural activities, except commercial activities". To the extent that the discussion paper failed to mention existing exemptions relevant to applications under section 37 of the Act, it was materially misleading to Aboriginal people in New South Wales who want to catch a feed of fish. 20382 LEGISLATIVE COUNCIL 2 December 2009

It confused and angered Aboriginal people who can see that the only way to get the New South Wales Government to move beyond honeyed words designed to deliver no real additional benefit to Aboriginal people will be to go to the Federal Court and assert their native title rights—the longest and most expensive way round. After a poor start to this bill, the then Minister tried to make amends and engaged with Aboriginal groups. I think deep down he understands this issue well, as he was right behind the introduction of the Aboriginal Land Rights Act 1983. I do acknowledge the efforts former Minister Macdonald has made to get Aboriginal cultural fishing correct, and in some respects he has tried to deliver a good outcome for Aboriginal peoples after a shaky start. I also acknowledge that Minister Kelly has continued these negotiations in good faith, and I thank him for engaging with the New South Wales Aboriginal Land Council and NTS Corporation.

I now want to deal with the compliance and enforcement amendments. Last year the Australian Institute of Criminology report "A National Study of Crime in the Australian Fishing Industry" found that 50 per cent of fisheries compliance officers stated that their jurisdiction is ineffective in dealing with organised crime in the fishing industry. The fisheries officers also stated, with the support of empirical evidence, that existing penalty regimes were inadequate and the courts were too lenient. When I asked a question about this report in June last year, the Minister said the reforms we are debating today would be implemented in spring. Although a year late, it is better late than never.

At one end of the illegal fishing spectrum we have general illegal fishing offences such as exceeding daily bag limits, fishing in waters protected from recreational fishing and possessing illegal fishing gear. At the other end we have commercial scale black market offences. For general offences under the Act, escalating fines for subsequent offences and additional monetary penalties in the case of "priority species" more accurately reflect the gravity of offences. The black market industry for certain species of fish, including abalone and rock lobster, is a major problem in New South Wales. The lucrative markets for these fish have drawn the attention of organised crime, and have resulted in significant organised crime involvement in the theft and trafficking of abalone and rock lobster. Clause 27 in schedule 1 makes provision for fines of up to 10 times the market value of the indictable species of fish trafficked and 10 years jail.

Taking into account that poaching and trafficking certain species is on par with robbing a bank vault in terms of economic value, these fines are appropriate as deterrence. Importantly, the trafficking offences are brought under the Confiscation of the Proceeds of Crime Act so that illegal proceeds can be seized. These increases in penalties are implemented in tandem with changes to record keeping, new duties imposed on boat masters to prevent contraventions of the Act, and provisions to expand Local Courts' ability to hear matters relating to contraventions of the Act. New provisions relating to offences involving threatened species are also an important improvement on the Act.

In summary, the bill represents some progress on a number of fronts. It also represents one of those rare opportunities for this House to demonstrate its maturity and sensitivity, and its ability to live up to the powerful convictions for a deep and true reconciliation between Aboriginal and non-Aboriginal peoples in this country. I take this opportunity to thank the Minister's chief of staff and the department's liaison officer for taking the time to discuss this bill with my office. I also acknowledge the efforts of the Minister to undertake proper consultation after a shaky start. It is much appreciated when Ministers acknowledge deficiencies in consultation and try to make amends. The Minister has done that in this situation and the House should note this.

I urge all members in this House to consider the points I have raised in relation to this bill. I want members to realise that this bill is an opportunity to live up to the sentiments often expressed by all members in this House in relation to addressing Aboriginal disadvantage. Let us not miss this chance to reconcile a great injustice, and to behave with the generosity of spirit shown by many generations of Aboriginal people daily as they share this land and sea, and everything that swims or walks upon it, with us. With appropriate amendment the Greens will support this bill. I look forward to the Committee stage to take up these matters further. I commend the bill to the House.

Reverend the Hon. FRED NILE [5.19 p.m.]: On behalf of the Christian Democratic Party I support the Fisheries Management Amendment Bill 2009. The bill draws on recommendations from the two major reviews of fisheries legislation and practice in New South Wales, which examined illegal fishing and indigenous fishing respectively. The bill will also strengthen and clarify existing compliance, aquaculture and habitat protection provisions. The bill includes provisions that recognise Aboriginal people's cultural and customary association with fisheries resources by amending the objects of the Act and including a definition of cultural fishing. It also allows for permits to provide specifically for cultural fishing and to be issued to groups as well as individuals. 2 December 2009 LEGISLATIVE COUNCIL 20383

There is only one matter in the bill with which I take issue. The Aboriginal leadership made a submission to the bill and gave me a copy of the brief that was sent to Minister Macdonald. In that brief it was critical of the fact that permits still had to be issued to indigenous persons who wished to fish. I quote from the brief to Minister Macdonald on cultural fishing in New South Wales, which states:

Many Aboriginal people do not agree that they should have to apply (primarily on the basis of asserted Native Title rights), or are unable to apply (because of literacy issues). Those Aboriginal people who do apply are often not granted the permit in a timely manner, or it is refused.

This has led to great tension between the Aboriginal community and Fisheries officers, and increased criminal prosecution of Aboriginal people undertaking cultural fishing.

The brief refers to the timetable for the preparation of the bill and states:

In May 2009, DPI issued a "Cultural Fishing in NSW" Discussion Paper which called for submissions by 30 June 2009.

It appears that submissions had not even closed before amendments were introduced to the Parliament—let alone were considered. Many organisations sought an extension, and were given an extension because of the tight timeframe for submissions, again not considered prior to introduction of the amendments to the NSW Parliament.

There has been a breakdown in communications, cooperation and consultation with the Aboriginal community, which was hoping that the bill would be amended. The brief states:

On 2 September 2009 Minister Macdonald first read the bill in the Upper House. There were no amendments to the original form of the Bill.

Suggested amendments are included in the brief as follows:

7AA Aboriginal cultural fishing activities

(1) Nothing in this Act affects Aboriginal cultural fishing activities.

(2) A licence, permit or other authority under this Act is not required in respect of Aboriginal cultural fishing activities.

(3) An Aboriginal person does not commit an offence against this Act in respect of anything done or omitted for the purpose of Aboriginal cultural fishing.

The wording of those proposed amendments has been included in the Greens amendments. In response to criticism from the Aboriginal community the Government formulated amendments that it believes will meet the requests made by the Aboriginal community. However, I believe that there are some limitations. The Government formulated these amendments to provide for the establishment of the Aboriginal Advisory Council. The amendments also include special provisions for Aboriginal cultural fishing that will enable Aborigines to fish within prescribed management arrangements and limits. The regulations will be developed collaboratively with Aboriginal stakeholders and the Aboriginal Advisory Council, when it is established, without needing to apply for a permit or pay a fee. Aboriginal people will also be exempt from paying the recreational fishing fee.

The Government's promise to abolish the permits will not occur automatically as a result of these amendments; it will occur only after further consultation with Aboriginal stakeholders and the Aboriginal Advisory Council. Aboriginal people will still have to apply for permits for cultural fishing activities. I commend the Government for supporting amendments that will exempt Aboriginal people from having to pay a recreational fishing fee, and I also support those amendments. I have been provided with a one-page document entitled "The Principles Communiqué on Indigenous Fishing". Rather than read that document onto the record, I seek leave to incorporate it in Hansard.

Leave granted. ______

THE PRINCIPLES COMMUNIQUÉ ON INDIGENOUS FISHING

PREAMBLE

This communiqué has been endorsed by representatives of:

 Indigenous bodies, including Native Title Representative Bodies and Aboriginal and Torres Strait Islander Commission (ATSIC) Commissioners;

20384 LEGISLATIVE COUNCIL 2 December 2009

 State and Northern Territory Governments and the Australian Government;

 National commercial fisheries interests; and

 National recreational fisheries interests.

This group of stakeholders evolved from the National Indigenous Fishing Technical Working Group (NIFTWG) which formed in October 2003 following a national Indigenous fisheries conference convened by the National Native Title Tribunal (NNTT).

In March 2004, the NIFTWG identified three possible pathways for progressing Indigenous aspirations linked to marine and fisheries management. The preferred pathway—Pathway 2—involves the development of policies based on:

(i) Defined customary fishing rights that exclude commercial activity

(ii) Mechanisms that facilitate Indigenous involvement in marine and fisheries related businesses.

The scope for Indigenous commercial participation includes new and established sectors of the fishing industry, including aquaculture, as well as the charter industry and other emerging opportunities in fisheries related tourism and recreation.

This group proposes a set of general principles to guide the future development of Indigenous fishing strategies within the sustainability limits that currently apply to all other stakeholders. The Principles are an articulation of Pathway 2, a policy-driven response which is favoured over litigation.

Indigenous representatives' support for these Principles does not affect the legal rights of Indigenous people or limit their scope to pursue other options. However, it is considered that strategies that provide Indigenous people with (a) lasting recognition of customary fishing practices; and (b) increased opportunities for economic engagement in fisheries-related enterprises, have a greater capacity than litigation to deliver practical outcomes within the foreseeable future.

This group acknowledges:

 that the Principles are mutually dependent and informed by the Preamble; and

 that future communication between stakeholders will be central to long-term change.

PRINCIPLES 1. Indigenous people were the first custodians of Australia's marine and freshwater environments: Australia's fisheries and aquatic environment management strategies should respect and accommodate this.

2. Customary fishing is to be defined and incorporated by Governments into fisheries management regimes, so as to afford it protection.

3. Customary fishing is fishing in accordance with relevant Indigenous laws and customs for the purpose of satisfying personal, domestic or non-commercial communal needs. Specific frameworks for customary fishing may vary throughout Australia by reference, for example, to marine zones, fish species, Indigenous community locations and traditions or their access to land and water.

4. Recognition of customary fishing will translate, wherever possible, into a share in the overall allocation of sustainable managed fisheries.

5. In the allocation of marine and freshwater resources, the customary sector should be recognised as a sector in its own right, alongside recreational and commercial sectors, ideally within the context of future integrated fisheries management strategies.

6. Governments and other stakeholders will work together to, at minimum, implement assistance strategies to increase Indigenous participation in fisheries-related businesses, including the recreational and charter sectors.

7. Increased Indigenous participation in fisheries related businesses and fisheries management, together with related vocational development, must be expedited. ______

Reverend the Hon. FRED NILE: State governments, the Northern Territory Government and the Federal Government endorsed that document. I assume that New South Wales is included among the State governments that endorsed it. New South Wales agreed to the principles in this communiqué but there is some question about whether the Government will go all the way and provide this exemption. If the Government agrees to provide such an exemption, or it gives an assurance through the Aboriginal Advisory Council that such a procedure will be put in place, that would remove some of the tension. I am sure that the Aboriginal Advisory Council will move rapidly—perhaps not over the Christmas period but rather in February or March—to make a final decision to abolishing cultural fishing permits for Aboriginal people. That will be a satisfactory result.

The Hon. TONY KELLY (Minister for Primary Industries, and Minister for Lands) [5.27 p.m.], in reply: I thank all members for their contributions to debate on the Fisheries Management Amendment Bill 2009. 2 December 2009 LEGISLATIVE COUNCIL 20385

The bill introduces a number of important reforms to the Fisheries Management Act 1994. These amendments will ensure that the Act is brought into line with other State and national fisheries legislation by recognising Aboriginal cultural fishing and strengthening enforcement provisions against illegal fishing. The bill will also improve various threatened species, aquaculture and habitat protection provisions. Finally, it will make a number of important amendments to streamline the administration of the Act.

These amendments, which are the result of an extensive period of consultation and development, will make an important and positive contribution to the future of fisheries in New South Wales. The policy proposals underlying the bill have been developed over several years taking into consideration the views of community and industry stakeholders. I thank Mr Ian Cohen for acknowledging the work done by members of staff. Members of staff do an enormous amount of work on these bills and rarely are they acknowledged. I take this opportunity to thank staff members. I also thank Mick Palmer, the former Commissioner of the Australian Federal Police, for his role in leading the Government's review into black market fishing in 2004. The review was tasked with assessing the extent and nature of the illegal harvesting and black marketing of fish. It was also asked to recommend areas for potential improvement in legislation, regulation, education and enforcement.

The Hon. Duncan Gay: All those are historic.

The Hon. TONY KELLY: I acknowledge the interjection of the Deputy Leader of the Opposition. This included identifying the resources and priorities necessary to achieve optimal compliance and effective deterrence. The review benefited enormously from Mr Palmer's wealth of experience in law enforcement, which was recognised by his receipt of an Order of Australia in 1998 for his work in fighting corruption. As members said earlier, this much-needed and timely legislation will make a significant and positive contribution to the future of fisheries in New South Wales. 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

Clauses 1 and 2 agreed to.

Mr IAN COHEN [5.32 p.m.], by leave: I move Greens amendments Nos 1 to 3 in globo:

No. 1 Page 3, schedule 1. Insert after line 35:

[6] Section 7 AA

Insert after section 7:

7AA Aboriginal cultural fishing

(1) Nothing in this Act affects Aboriginal cultural fishing.

(2) A licence, permit or other authority under this Act is not required in respect of Aboriginal cultural fishing.

(3) An Aboriginal person does not commit an offence against this Act in respect of anything done or omitted for the purpose of Aboriginal cultural fishing.

No. 2 Page 17, schedule 1 [37], lines 6-9. Omit all words on those lines.

No. 3 Pages 17-18, schedule 1 [42], line 27 on page 17 to line 2 on page 18. Omit all words on those lines.

The Minister's office and the department have taken a significant change in direction with this bill. The Greens generally are satisfied and support the Government's amendments as they achieve a similar framework to that proposed in the Greens amendments. Although the Government has stolen our thunder, I am happy to withdraw Greens amendments Nos 1, 2 and 3. I indicate that at a later stage the Greens will seek to make a slight amendment to a further amendment to be moved by the Government. I seek leave of the Committee to withdraw Greens amendments Nos 1, 2 and 3. 20386 LEGISLATIVE COUNCIL 2 December 2009

Greens amendments Nos 1 to 3, by leave, withdrawn.

The Hon. TONY KELLY (Minister for Primary Industries, and Minister for Lands) [5.33 p.m.], by leave: I move Government amendments Nos 1 to 3 in globo:

No. 1 Page 13, schedule 1. Insert after line 6:

[27] Section 21AA

Insert after section 21:

21AA Special provision for Aboriginal cultural fishing

(1) An Aboriginal person is authorised to take or possess fish, despite section 17 or 18, if the fish are taken or possessed for the purpose of Aboriginal cultural fishing.

(2) The authority conferred by this section is subject to any regulations made under this section.

(3) The regulations may make provision for the management of Aboriginal cultural fishing as authorised by this section.

(4) Without limiting the above, the regulations may:

(a) prescribe the circumstances in which the taking or possession of fish by Aboriginal persons for the purpose of Aboriginal cultural fishing is authorised by this section, and

(b) specify restrictions as to the quantity of fish of a specified species or of a specified class that may be taken by or be in the possession of Aboriginal persons for the purposes of Aboriginal cultural fishing as authorised by this section.

(5) A person does not commit an offence against section 17 or 18 in respect of the taking or possession of fish if the taking or possession of the fish is authorised under this section.

(6) This section does not prevent the issue of a permit under section 37 for Aboriginal cultural fishing purposes.

(7) This section does not authorise an Aboriginal person to do anything that is inconsistent with native title rights and interests under an approved determination of native title (within the meaning of the Native Title Act 1993 of the Commonwealth) or with the terms of an indigenous land use agreement (within the meaning of that Act).

No. 2 Page 16, schedule 1. Insert after line 7:

[32] Section 34C Recreational fishers required to pay fishing fee

Omit section 34C (2) (f). Insert instead:

(f) if the fisher is an Aboriginal person, or

No. 3 Page 39, schedule 1. Insert after line 32:

[117] Section 229 Ministerial advisory bodies

Insert ", Aboriginal" after "research" in section 229 (1).

These amendments establish a special provision for Aboriginal cultural fishing. The first amendment provides that Aboriginal people will no longer need a permit or to pay any kind of fee to fish culturally, subject to prescribed conditions. The second amendment provides that an Aboriginal person will no longer be required to pay the fee for recreational fishing or fishing under the special provisions of cultural fishing. The third amendment provides for the establishment of a statutory Aboriginal Advisory Council. The two broad functions of the advisory council will be to advise the Minister on any matter referred to it by the Minister and to advise the Minister on any other matters it considers relevant to Aboriginal fishing.

It is important to note that the proposed Aboriginal Advisory Council will advise on all Aboriginal fishing matters, not just Aboriginal cultural fishing matters. Therefore, it is appropriate that the amendment refers to the Aboriginal sector generally. The intention of these amendments is to address the issues raised by the Aboriginal stakeholders since the introduction of the bill and to provide improved access for Aboriginal cultural fishing. The Government listened to their concerns and in direct response saw fit to incorporate these changes into the body of the legislation. The amendments are important fundamental changes to the legislation 2 December 2009 LEGISLATIVE COUNCIL 20387

and give Aboriginal people greater access to the fisheries resource for cultural fishing. The changes ensure that the Aboriginal people's right to continue cultural fishing practices is acknowledged appropriately and is protected.

The Hon. DUNCAN GAY (Deputy Leader of the Opposition) [5.35 p.m.]: The Opposition supports Government amendments Nos 1, 2 and 3. Tribute must be paid to the Hon. Ian Cohen, who praised the Minister's office. Credit should go also to Ian and his office as they first developed a series of amendments that, although not the same, were similar to the amendments moved by the Minister. The current and former Ministers' staff identified the concerns of the Greens and changed the amendments slightly. In most regards the Government's amendments encompass a reasonably comprehensive approach, addressing all but a few of the Greens' remaining concerns. The Government will support the further amendment to be moved by the Greens, as will the Opposition. I support the Government amendments.

Mr IAN COHEN [5.36 p.m.]: As has been acknowledged, the bill initially approached Aboriginal cultural fishing rights in a less than satisfactory manner. I thank the new Minister for going back to the drawing board and consulting with the New South Wales Aboriginal Land Council and NTS Corp.

The Hon. Duncan Gay: The former Minister had started it.

Mr IAN COHEN: I acknowledge the interjection, but the current Minister succeeded in building a framework for Aboriginal cultural fishing rights with Aboriginal governance at its core. I thank the Minister for doing that. The Greens amendments that I have withdrawn sought to remove the requirements of permits for Aboriginal cultural fishing as currently proposed in clauses 37 and 42 of schedule 1 to the bill. Our amendments placed Aboriginal cultural fishing rights outside governance under the Act. I acknowledge that placing Aboriginal cultural fishing rights outside the Fisheries Management Act would concern some members. I remind those members that Aboriginal cultural fishing rights are non-commercial communal fishing rights exercised within the sustainable limits of a fishing resource. Certainly it would be appropriate to implement a governance and advisory framework for Aboriginal communities and stakeholders to work together in partnership with the Department of Primary Industries and the New South Wales Government to manage the overall State fishery resource.

Both parties must come to the table to manage fisheries as equal partners. We need the concurrent operation of two legal systems to manage one natural resource. The Greens are generally satisfied with how the Government has now addressed this need. According to information from former Minister Macdonald during budget estimates hearings, 10 limited duration permits have been issued for Aboriginal cultural fishing rights since 2007. Aside from arguments based on common law legal doctrines, there are practical difficulties with the current permit system proposed in the bill. People exercising Aboriginal cultural fishing rights have no real security in utilising these fishing rights issued under permits. In the bill's current form, Department of Primary Industries officers have inappropriate discretion to determine the nature and conditions attached to permits. A recent example of inflexibility and inequity in permit allocation occurred in relation to NAIDOC Week activities.

In the absence of a system of adequate certainty and resource security for Aboriginal cultural fishing rights, the Greens foreshadow moving an amendment to Aboriginal cultural fishing rights outside a permit system, similar to other State and Territory jurisdictions. A permit system is contrary to definitions used in State and Territory jurisdictions such as the Northern Territory, Western Australia and Queensland. For example, section 6 of the Western Australian Fisheries Management Act 1994 states:

An Aboriginal person is not required to hold a recreational fishing licence to the extent that person takes fish from any waters in accordance with continuing Aboriginal tradition if the fish are taken for the purposes of the person or his or her family and not for a commercial purpose.

The Northern Territory Fisheries Act states:

Unless and to the extent to which it is expressed to do so but without derogating from any other law in force in the Territory, nothing in a provision of this Act or an instrument of a judicial or administrative character made under it shall limit the right of Aboriginals who have traditionally used the resources of an area of land or water in a traditional manner from continuing to use those resources in that area in that manner.

The permit system that is currently proposed in the bill represents the worst type of red tape—the type that will have a significant impact on cultural expression and the health of Aboriginal communities. Why should a nation of people have to request a government bureaucrat's permission to exercise a right that has existed for thousands of years? I have already spoken at length on why the Greens feel the current arrangements in the bill are not 20388 LEGISLATIVE COUNCIL 2 December 2009

satisfactory. I pointed out one very poignant example of why using a permit system will leave the exercise of cultural fishing rights to the discretion of the department: on a practical level, it is simply unworkable. If an Aboriginal person needs a permit to exercise their customary right, they will need to apply two weeks or more in advance. How will they know two weeks in advance what the weather conditions will be, and whether those conditions will be appropriate to carry out cultural fishing activities?

Briefly, proposed section 21AA, which is part of Government amendment No. 1, will place Aboriginal cultural fishing outside bag limits and offences defined in sections 17 and 18 of the Act. Proposed section 21AA provides the Minister with regulation-making powers to outline restrictions on quantity. I make it crystal clear that the Greens expect the Aboriginal Advisory Council, which will be established under section 229 of the Act, to have the equivalence of direct authorship over any regulation that is made under proposed section 21AA. The highest level of engagement and negotiation must be afforded to the council. It is not the place of the Minister to decide the content of Aboriginal cultural fishing rights. This is again about supporting Aboriginal governance over a natural resource.

To assist in that respect, the Greens will move an amendment to Government amendment No. 1 to ensure that the Aboriginal Advisory Council must be consulted, before any regulation is made, to outline circumstances and restrictions on Aboriginal cultural fishing rights. In terms of proposed section 21AA (6) of Government amendment No. 1, scope remains for issuing permits under an amendment to section 37, which is in schedule 1, item [37] of the bill. I understand that the Government's intention is that the use of permits will be restricted to situations that go beyond what will be allowed in the regulation, such as special events including NAIDOC Week. I again urge the Government to commit to seeking the full involvement of the Aboriginal Advisory Council in determining the nature of permits. I commend the amendments to the Committee. I move an amendment to Government amendment No. 1 in the following terms:

In Government Amendment No. 1 insert after proposed section 21AA (4) the following:

(5) The Minister must not recommend the making of a regulation under this section unless an advisory council for the Aboriginal sector of the fishing industry has been established under section 229 and the Minister certifies that the advisory council has been consulted on the proposed regulation.

Reverend the Hon. FRED NILE [5.42 p.m.]: The Christian Democratic Party supports Government amendment No. 1 and the Greens amendment to that amendment. Both amendments are based on amendments that have been produced by the New South Wales Aboriginal Land Council. The Christian Democratic Party agrees to those amendments.

The Hon. TONY KELLY (Minister for Primary Industries, and Minister for Lands) [5.43 p.m.]: The Government supports the Greens amendment.

Question—That amendment of Mr Cohen of Government amendment No. 1 be agreed to—put and resolved in the affirmative.

Amendment of Mr Cohen of Government amendment No. 1 agreed to.

Question—That Government amendment No. 1 as amended be agreed to—put and resolved in the affirmative.

Government amendment No. 1 as amended agreed to.

Question—That Government amendments Nos 2 and 3 be agreed to—put and resolved in the affirmative.

Government amendments Nos 2 and 3 agreed to.

Mr IAN COHEN [5.44 p.m.], by leave: I move Greens amendment Nos 4 and 5 in globo:

No. 4 Page 18, schedule 1. Insert after line 6:

[44] Section 51 A

Insert after section 51:

51A Issue of shares in new share management fisheries to Aboriginal persons

(1) Not less than 10 percent of the shares to be issued in any new share management fishery are to be reserved for allocation to Aboriginal persons.

2 December 2009 LEGISLATIVE COUNCIL 20389

(2) The determination of the Aboriginal persons eligible to apply for the reserved shares and their entitlement to the reserved shares is to be made in accordance with the regulations.

(3) Section SO (2)-(4) does not apply to the allocation of the reserved shares to Aboriginal persons.

(4) In this section:

new share management fishery means a share management fishery the description of which is inserted in schedule 1 after the commencement of this section.

No. 5 Page 18, schedule 1. Insert after line 6:

[44] Part 3, Division 4A

Insert after Division 4:

Division 4A Reallocation of certain shares to Aboriginal persons

55A Definitions

In this Division:

existing share management fishery means a share management fishery that is specified in schedule 1 at the commencement of this Division.

reallocations arrangements-see section SSE.

55B Reallocation of shares in existing share management fisheries to Aboriginal persons

(1) The Minister must make arrangements for the purchase from shareholders, and the reallocation to Aboriginal persons, of a proportion of the shares in each existing share management fishery (reallocation arrangements).

(2) The reallocation arrangements are to ensure that not less than 2 percent of the shares issued in each existing share management fishery are purchased from shareholders in each year and reallocated to Aboriginal persons, until a total of not less than 10 percent of the shares in each fishery have been reallocated to Aboriginal persons.

(3) The regulations may make further provision for or with respect to the reallocation arrangements.

(4) In particular, the regulations may make further provision for the determination of the Aboriginal persons eligible to apply for shares, and their entitlement to be issued with shares, under the reallocation arrangements.

(5) Section 50 (2)-{ 4) does not apply to the allocation of shares to Aboriginal persons under the reallocation arrangements.

55C Purchase of shares under reallocation arrangements

(1) For the purpose of the reallocation arrangements, the Minister may, by notice in writing to a shareholder in an existing share management fishery, require the shareholder to transfer their shares in the fishery, or a proportion of their shares in the fishery, to the Minister.

(2) A shareholder who is required to transfer shares to the Minister under the reallocation arrangements is entitled to compensation from the State for the market value, before the transfer, of the shares.

(3) The amount of compensation payable is to be determined by agreement between the Minister and the shareholder or, if an amount is not agreed, is to be determined by the Valuer-General.

(4) A person who is dissatisfied with the amount of compensation offered to the person under this section or with any delay in the payment of compensation may appeal to the Land and Environment Court.

(5) If a shareholder fails to comply with a requirement under this section to transfer shares, the Minister is authorised to execute the necessary documents, and to do anything else that is necessary, to effect the transfer of the shares on behalf of the shareholder.

(6) The regulations may make further provision for or with respect to payment of compensation under this section.

55D Community contribution not payable

An Aboriginal person who is issued with shares in an existing share management fishery under the reallocation arrangements is not required to pay a community contribution under section 77 in respect of the shares for the first 2 financial years after the shares are issued to the person.

20390 LEGISLATIVE COUNCIL 2 December 2009

Greens amendments Nos 4 and 5 will directly provide economic development opportunities for Aboriginal communities in New South Wales. The Greens are moving amendments to provide for Aboriginal peoples to have a 2 per cent share in existing share management fisheries and a 10 per cent share in new share management fisheries. While the Government's effort to acknowledge Aboriginal cultural fishing rights certainly is noteworthy, there is a broader necessity to establish measures that support economic development and make economic reparations for the loss of rights in relation to ocean and river resources. Making provision for shares in commercial share management fisheries for Aboriginal communities will assist in the achievement of multiple policy objections under the Close the Gap policy of the Council of Australian Governments [COAG], including health and economic development.

The allocation of shares in share management fisheries that is proposed in these amendments is much less than that which applies in other common law jurisdictions. The reason is that the Greens are interested in establishing a framework for Aboriginal participation in commercial fisheries upon which we can build in the future. In New Zealand, two Waitangi Tribunal settlements, which are based on the Report of the Waitangi Tribunal of the Muriwhenua Fishing Claim Report and the Ngai Tahu Sea Fisheries Report 1992, provided the Maori with a 20 per cent share of total new species included under the Quota Management System and a 50 per cent share in New Zealand's largest fishing company, Sealord, which holds 22 per cent of all shares under the Quota Management System. In Canada, following the Supreme Court of Canada's Marshall decision, Fisheries and Oceans Canada reached agreements with 32 of the 34 eligible First Nations, which resulted in a potential economic return for Mi'kmaq and Maliseet First Nations that exceeds $45 million annually. Overall, First Nations hold 27 per cent of commercial fishery licences in Canada. Importantly, involvement in commercial fisheries has increased indigenous people's participation in fisheries management and resource governance and has been supported with capacity-building projects.

In terms of the practical operation of amendment No. 5, the Greens acknowledge that the vesting or assigning of shares in share management fisheries will require considerable consultation and partnerships with Aboriginal groups. This is why the amendment provides, in proposed section 55B (2) and proposed section 55C (5), regulations to define who is eligible to apply for shares, and entitlement to shares. Through engagement and consultation with Aboriginal communities, traditional elders and land councils, we will be able to develop regulations that ensure equivalent distribution of share fisheries rights. It should be remembered that this amendment is not pinning down every minutia. It simply puts into legislation a commitment to support economic development of Aboriginal communities through assignment of rights in share management fisheries as reparation for the loss of rights over ocean and river resources that occurred in 1788. Reducing commercial licence fees is simply not enough.

I urge the Committee to become a partner in closing the gap in indigenous disadvantage and support the amendments. I want us to stand not as individual political parties but as the House of review that wants to make a contribution to closing the gap and providing real economic development opportunities to Aboriginal nations across New South Wales. I commend Greens amendments Nos 4 and 5 to the Committee.

The Hon. TONY KELLY (Minister for Primary Industries, and Minister for Lands) [5.48 p.m.]: Greens amendment No. 4 seeks to resume not less than 10 per cent of shares in a new share management fishery for Aboriginal people. The amendment presumes that new share management fisheries will be developed. The commercial fishing industry is currently in the process of reforming management arrangements. The formation of any new share management fisheries is highly unlikely. The Government will continue to work with Aboriginal people to develop proposals that facilitate Aboriginal involvement in the commercial fishing industry. In this regard the Government is committed to reviewing and possibly amending section 75 of the Fisheries Management Act, which relates to the forfeiture of shares for certain contraventions of the Act. As it stands, this section requires the Crown to dispose of forfeited shares by public tender.

The bill also includes provisions for forfeited shares to be cancelled by the Minister. The Act may be further amended to give the Crown greater flexibility to dispose of shares, and that may include the option of reservation and reallocation of shares for indigenous commercial fishers. However, much more work needs to be done with all stakeholders before any such arrangements could be included in legislation. If Greens amendment No. 5 is passed, it will result in the compulsory acquisition by the Minister over time of 10 per cent of all shares in commercial fisheries to reallocate them to Aboriginal persons. The blunt force of this approach is inefficient and would be hugely disruptive to existing rights holders. The Government will continue to work with Aboriginal people to develop proposals that facilitate Aboriginal involvement in the commercial fishing industry. In this regard the Government is committed to reviewing and, as I said, possibly amending section 75 of the Fisheries Management Act, which relates to the forfeiture of shares for certain contraventions of the Act. 2 December 2009 LEGISLATIVE COUNCIL 20391

The Hon. DUNCAN GAY (Deputy Leader of the Opposition) [5.49 p.m.]: The Opposition also opposes the Greens amendments. Proposed section 51A (1) in amendment No. 4 provides that 10 per cent of the shares in any new share management fishery are to be reserved for allocation to Aboriginal persons. Proposed section 55B (2) in amendment No. 5 refers to 2 per cent of shares in an existing share management fishery. Proposed section 55B in amendment No. 5 states:

55B Reallocation of shares in existing share management fisheries to Aboriginal persons

(1) The Minister must make arrangements for the purchase from shareholders …

There is no mention of who will pay for this, what the costs will be, and how it will be worked out. But there we have it in black-letter law—

The Hon. Tony Kelly: What about an unwilling seller?

The Hon. DUNCAN GAY: Under this amendment, there is no such thing as an unwilling seller. Proposed section 55B in amendment No. 5 states:

(1) The Minister must make arrangements for the purchase from shareholders, and the reallocation to Aboriginal persons, of a proportion of the shares in each existing share management fishery …

(2) The reallocation arrangements are to ensure that not less than 2 percent of the shares issued in each existing share management fishery are purchased from shareholders in each year and reallocated to Aboriginal persons, until a total of not less than 10 percent of the shares in each fishery have been reallocated …

So it is not just 2 per cent; it is 2 per cent every year until it is 10 per cent. Amendment No. 5 further states:

55C Purchase of shares under reallocation arrangements

(1) For the purpose of the reallocation arrangements, the Minister may, by notice in writing to a shareholder in an existing share management fishery, require the shareholder to transfer their shares in the fishery …

It is not only 2 per cent per year until it is 10 per cent; it is compulsory and unfunded. This is in a dwindling share management fishery. We are in the time of marine parks. Mr Ian Cohen is one of the greatest fans of marine parks and shutting areas, leaving fewer areas to the commercial industry. Now he wants to take 10 per cent compulsorily from the existing commercial industry, without an indication of whether it is at commercial rates or who will pay for it. While the member's motives are laudable, he is using a blunt instrument. The Greens amendments cannot be supported.

Question—That Greens amendments Nos 4 and 5 be agreed to—put and resolved in the negative.

Greens amendments Nos 4 and 5 negatived.

Schedule 1 as amended agreed to.

Schedule 2 agreed to.

Title agreed to.

Bill reported from Committee with amendments.

Adoption of Report

Motion by the Hon. Tony Kelly agreed to:

That the report be adopted.

Report adopted.

Third Reading

Motion by the Hon. Tony Kelly agreed to:

That this bill be now read a third time.

Bill read a third time and returned to the Legislative Assembly with a message requesting its concurrence in the amendments. 20392 LEGISLATIVE COUNCIL 2 December 2009

PERSONAL PROPERTY SECURITIES (COMMONWEALTH POWERS) AMENDMENT BILL 2009

TRUSTEE COMPANIES AMENDMENT BILL 2009

Messages received from the Legislative Assembly returning the bills without amendment.

BUSINESS OF THE HOUSE

Postponement of Business

Government Business Order of the Day No. 4 postponed on motion by the Hon. Tony Kelly.

SURVEYING AMENDMENT BILL 2009

Second Reading

The Hon. TONY KELLY (Minister for Primary Industries, and Minister for Lands) [5.56 p.m.]: I move:

That this bill be now read a second time.

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

Leave granted.

The Surveying Amendment Bill 2009 introduces a series of legislative amendments, which have import for the discipline of surveying and the area of spatial information in New South Wales.

These amendments reflect several recommendations for reform that were raised during the review of this Act, in accordance with section 40 of the principal Act. The review, which was required to be undertaken five years after the introduction of the principal Act, was to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.

The report on the Review of the Surveying Act 2002, which was tabled before Parliament in October 2008, indicated that while there were some areas for reform, the policy objectives of the Act did remain valid and the terms of the Act were, in the main, appropriate to secure those policy objectives. This bill reflects the report recommendations, the outcomes of further consultation with key professional groups and Government agencies, as well as collateral amendments, which clarify aspects of the principal Act.

In 2002 the Board of Surveying and Spatial Information was formed. Amendments were made to the Surveying Act in 2002 and again in 2005 when the term "spatial information" was incorporated into the legislation.

As the former Minister for Lands noted when introducing the amendments in 2002, the board would continue its former functions. This included the registration of land surveyors, the investigation of complaints, disciplinary actions, and matters relating to reciprocal recognition of registration and licensing schemes. As a result of that amendment, the board also undertook the registration of mining surveyors, complementing its existing role. In relation to the registration of mining surveyors, the board membership was expanded to incorporate the nominee of the Minister to administer the Coal Mine Health and Safety Act 2002. The 2005 amendments introduced a definition of "spatial information" in section 3A of the Act.

To some people it may have seemed a bold step to introduce into legislation a definition that sought to articulate an emerging but rapidly growing area of innovation, particularly as the intent was not to regulate spatial information professionals but to empower the board to provide "advice on the collection, collation and dissemination of spatial information other than surveys". The logic supporting this amendment was, of course, that surveyors typically are involved with the measurement and delineation of interests in relation to land—not just the dimensions of length and breadth, but also in relation to height and depth below the Earth's surface, whether that surface is terrestrial or aquatic. The surveying profession are the forefathers of the modern spatial information industry.

The 2009 bill adds to the title of the principal Act to become the Surveying and Spatial Information Act 2002 and reflects the significant changes that have occurred and the importance of this particular area of information.

Members of the general public have become more familiar with spatial information products. Data may be collected through a variety of technologies incorporating traditional surveys, from remote sensing to photogrammetry and Light Detection and Ranging, or LiDAR. The derived products are used for a wide variety of applications. These include urban and regional planning, land and resource management, emergency response and disaster recovery, analysis of climate change impacts, as well as planning trips and locating local restaurants.

The growth of services in this area over the last seven years since the terminology was introduced into New South Wales legislation has been impressive. This is evidenced in the leadership role taken in this ministerial portfolio in the spatial information arena. For example, the statewide network of Continuous Operating Reference Stations, or CaRS, is an on-ground 2 December 2009 LEGISLATIVE COUNCIL 20393

integrated system that continuously records, distributes and archives satellite data to support global navigation and positioning systems. The Land and Property Management Authority, formerly the Department of Lands, has overseen the implementation of the CaRS network in New South Wales. The authority continues to investigate and implement technology solutions to provide more efficient information delivery outcomes.

To support improved data collection, the implementation of E-Plan enables surveyors to submit land surveys in electronic form directly from their office locations, wherever they may be across the State, to the Land and Property Management Authority office for processing. This is complemented by the Spatial Information Exchange, which is also known as SiX. SiX is a web-based portal that allows integrated access to a range of location-based information sources, thereby providing a seamless service delivery channel for use by Government agencies and the general public.

The 2008 report entitled "The Value of Spatial Information" stated that spatial information had a direct impact upon the gross domestic product of Australia of between $6.43 billion and $12.57 billion. It also noted that spatial information was likely to become "a mainstream enterprise resource in Government and business organisations as it penetrates mainstream consumer markets [increasing] the direct impacts in some sectors up to 50 per cent over the medium term". The growth of location-based information services into the future will, I am sure, be more astounding as Government and industry embrace new ways of communicating and delivering spatial information services to the community. There is a great deal more potential and value to be realised in this area.

The bill also sets out the key objects of the Act. These items outline fundamental elements providing some guidance to the public as to the overall purpose of the Act. These objects provide for, first, the registration of surveyors to ensure that only appropriately qualified surveyors carry out land or mining surveys; secondly, registered surveyors to provide services to the public in a professional and competent manner; thirdly, the maintenance of the State cadastre and ensuring its integrity; fourthly, the coordination of surveys by public authorities and establishing the State control survey; and, fifthly, the investigation of and giving of advice to Government relating to the collection, collation and dissemination of spatial information other than surveys.

In addition, the bill introduces a definition of "State cadastre" for the first time in our legislation. While those involved in property and spatial information areas often use the term "cadastre", the word has an ancient history and meaning generally referencing a register of land ownership and value. In the twenty-first century the term has come to mean more than "ownership". It is, as more particularly described in the bill, the description and delineation of rights, interests, restrictions and responsibilities, above and below the earth's surface.

Increasingly the rights, interests, restrictions and responsibilities of the New South Wales Government and its citizens are becoming more complex. Traditionally, the rights of others may have impacted land ownership. For example, a landowner may hold a title in fee simple, subject to an easement or a right of way to a neighbour.

However, today we record not only the rights and obligations as between private landowners but public values and interests, such as the protection of vegetation, the acknowledgement of carbon sequestration interests or the protection of marine ecosystems. These rights, interests, restrictions and responsibilities are defined by reference to their spatial location and extent, with the potential that different entities or individuals may have co-located interests.

The existing definition of land survey is amended to incorporate references to the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986. This amendment removes any doubt that a registered land surveyor must undertake such surveys. New section 22A provides that a firm, defined in the bill as "a corporation, partnership or other incorporated association of persons", may offer land surveying or mining surveying services for fee and reward. It is a requirement that the survey be carried out by a registered land or mining surveyor, as is appropriate, or a person acting under the general or immediate supervision of a registered land or mining surveyor. The intention is to allow firms involved in land and mining surveys to conduct their business as other professional firms may.

Through the registration of land surveyors and mining surveyors, the Board of Surveying and Spatial Information can ensure that only appropriately qualified persons carry out the surveys as defined by the Act and ensure that services are provided in a professional and competent manner. The constitution of the board is amended at section 27 (2) (e) by clarifying that nominations to the board relating to the spatial information industry representatives may be made by professional associations comprised of persons or bodies of persons. This amendment removes any potential misinterpretation of who can nominate a board member.

Collateral to the inclusion of the definition of State cadastre, the functions of the board are expanded to include subsection 28 (1) (f1) to provide advice to the Minister in relation to the maintenance of the integrity of the State cadastre. New section 29 outlines the role of the board in providing information to the public in respect of the discipline of surveying, particularly land and mining surveying, but also in relation to allied disciplines. This proposal arose from the consultation process. Members of the surveying profession indicated a need for further information about their services to be made available to the public.

Access to information will assist members of the public in understanding and locating the services they require.

An example of a related survey discipline is hydrographic surveying. Hydrographic surveys focus on the measurement of physical characteristics of waters and surrounding marginal land in order to portray the detail of coastal or estuarine areas. Historically, this information has related to navigation. This area is becoming increasingly important as we map the potential impact of sea level rise over periods of time. This information will assist Government and the public in understanding possible impacts of sea level rise, climate change and coastal erosion. Hydrographic surveyors may also undertake work in relation to other bodies of water too; for instance, collating information in relation to dams and port infrastructure. It is not the intention that the board be involved in the registration of these disciplines. It is intended that information on these specialities be made available so that the public can make informed decisions about the services they require.

Finally, it is noted that the board has the power to make a determination about what, in its opinion, constitutes general or immediate supervision for the purposes of section 21 (3) of the principal Act, as outlined at clause 75 (2) of the Surveying Regulations 2006. The bill amends section 36 of the principal Act to allow regulations to be made prescribing what constitutes 20394 LEGISLATIVE COUNCIL 2 December 2009

supervision. This amendment confirms the board's power to make a determination on what, in its opinion, constitutes general or immediate supervision and clarifies the foundation of the existing regulation. In recent times, the issue of what constitutes an appropriate level of supervision required for different survey activities has become an item of discussion within the profession itself. This issue can be resolved after further consultation through a determination of the board.

These amendments will bring certainty to some areas of minor contention within the survey profession, which have been brought about, in part, by changes in technology and work practices, as well as the ever-expanding role of spatial information. Overall, the purpose of these changes is to ensure the public are provided with competent and professional services that meet their needs and expectations.

I commend the bill to the House.

The Hon. GREG PEARCE [5.56 p.m.]: The object of the Surveying Amendment Bill 2009 is to amend the Surveying Act 2002 to change the name of the Act to the Surveying and Spatial Information Act, to set out the objects of that Act, to clarify the matters to be covered by the definition of "land survey" in that Act, to provide a specific exclusion from the provisions of that Act that require land surveys and mining surveys to be carried out by registered land surveyors and mining surveyors for firms that engage such surveyors to do work on their behalf, and to enable the Board of Surveying and Spatial Information to provide information to the public on a range of matters in connection with the discipline of surveying and related disciplines. The Surveying Act 2002 included a provision requiring a review to be undertaken five years after the introduction of the Act to determine whether the policy objectives remained valid and whether the terms of the Act were appropriate for securing those objectives.

The report of that review was tabled in Parliament in October 2008 and indicated that, while there were some areas for reform, in the main the Act remained appropriate. The bill reflects the report recommendations and the outcome of further consultation with key professional groups and government agencies, together with some collateral amendments to clarify aspects of the principal Act. The bill does not address a number of issues raised by the Institution of Surveyors. However, the institution does not oppose the bill; indeed, it informed me that many of the changes it wanted involved changes to other Acts, such as the Crimes Act, for example, which would not be appropriate when considering this bill.

Amendments to the Act in 2005 introduced a definition of "spatial information". This reflects the rapid expansion of the methods of measurements and delineation in relation to land, including height, depth and whether the surface is terrestrial or aquatic. The bill adds to the title of the principal Act a reference to spatial information, reflecting its importance and the changes taking place. The objects of the Act are also amended to reflect this new focus. The bill introduces a definition of "State cadastre"—that is, the description and delineation of rights, restrictions and responsibilities above and below the earth's surface—and amends the role of the Board of Surveying and Spatial Information to include advising the Minister in relation to this.

There are also provisions that extend the regulatory powers in relation to registered surveyors. The bill contains amendments relating to offences and some other housekeeping and consequential amendments. The amendments flow from a review and a substantial consultation process. They recognise the importance of additional information being developed as a result of new technology and the considerable value that is being realised by access to that information, and assist in maintaining the integrity of the information and its use. The Opposition does not oppose the bill.

Ms SYLVIA HALE [6.00 p.m.]: I support the Surveying Amendment Bill 2009, the purpose of which is to amend the Surveying Act 2002, to change the name of the Act, to set out the objects of the Act, to clarify the matters to be covered by the definition of "land survey" in the Act, to provide a specific exclusion from the provisions of the Act that require land surveys and mining surveys to be carried out by registered land surveyors and mining surveyors for firms that engage such surveyors to do work on their behalf, and to enable the Board of Surveying and Spatial Information to provide information to the public on a range of matters in connection with surveying and related disciplines.

The change in the name of the Act to include "spatial information" is very apt when we consider the many and varied activities that this part of the legislation will cover. Although the preamble to the bill emphasises the provisions that ensure proper surveying practices and requirements are met, the really far-reaching aspects of the bill are those that refer to the possibilities of spatial information and its collection. The bill formalises a brave new world of spatial technology and information from satellite data to global positioning systems and light detection and ranging [LiDAR] equipment, all of which will provide more precise spatial information than was provided in the past when surveying was mainly a matter of physical ground measurement. The bill introduces "State cadastre", which will be defined as:

… an inventory that records boundaries, dimensions and measurements on, above or below the earth's surface for the purposes of defining rights, interests, restrictions and responsibilities within the jurisdiction of NSW.

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The cadastre will give interested parties access to all the geographic, boundary and title information about our State. Hydrographic surveying will allow the Government to define coastal and estuarine areas that may be affected by rising sea levels or coastal erosion. This will be an important tool in assessing coastal development proposals and the creation of new marine parks. The bill also provides for the registration of land and mining surveyors to ensure that they are appropriately qualified. My office contacted the Institution of Surveyors, which, despite earlier reservations, is now happy with all aspects of the bill. Once the bill comes into effect, it will be of great interest to the Greens to see how the technology and information garnered will be used. Like all technology, it can be used for a variety of purposes, for example, to facilitate offshore oil exploration, or to more accurately predict sea level rise.

It is essential that the technology is used to protect marine environments, and not simply to exploit them. The same technology can also be used to pursue potential geothermal power sites, or carbon sequestering in farming practices. We must ensure that the technology places as much emphasis on this aspect of land use as it does on identifying potential mining sites. We currently see this dilemma unfolding on the Liverpool Plains and in heritage areas of the Blue Mountains, where surveyors have identified potential mining sites below the plains and mountains. Again, it is essential that the State cadastre contain relevant information about agricultural and environmental land uses. The Greens also want such special information to be readily available to the general public in an easily accessible format and not to be solely the preserve of the Government and professional community. The information gathered must be used to protect our environment and ensure that we have sustainable land and marine uses into the future.

Reverend the Hon. FRED NILE [6.04 p.m.]: The Christian Democratic Party supports the Surveying Amendment Bill 2009, which arises from a statutory review undertaken in accordance with section 40 of the principal Act. The report on the review of the Surveying Act 2002 identified some areas for legislative reform, none of which are controversial. The name of the Surveying Act 2002 will be changed to the Surveying and Spatial Information Act 2002. The common sense objects of the bill provide for the registration of land surveyors and mining surveyors to ensure that only appropriately qualified persons carry out land surveys and mining surveys, and other matters. The bill includes recognition of land and mining survey firms and the provision of information by the Board of Surveying and Spatial Information. The bill also makes minor changes to definitions, none of which are controversial. The Christian Democratic Party supports the bill.

The Hon. TONY KELLY (Minister for Primary Industries, and Minister for Lands) [6.05 p.m.], in reply: I thank all members for supporting this bill. I confirm that the President of the Institution of Surveyors of NSW Inc. has affirmed full support for the bill in its current form, and I commend it 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. Tony Kelly agreed to:

That this bill be now read a third time.

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

JUDICIAL OFFICERS AMENDMENT BILL 2009

Second Reading

The Hon. TONY KELLY (Minister for Primary Industries, and Minister for Lands) [6.06 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. 20396 LEGISLATIVE COUNCIL 2 December 2009

Leave granted.

The main purpose of the Judicial Officers Amendment Bill 2009 is to amend the Judicial Officers Act 1986 to provide for the temporary exchange of judicial officers between the State and Territory courts and administrative decisions tribunals.

The NSW Government has been the driving force behind the development of this judicial exchange program through the Standing Committee of Attorneys-General. It represents a further step toward building a national judiciary, which will in turn bring benefits to the NSW justice system.

The Attorney General gained the support of his SCAG colleagues for streamlining and formalising the exchange of judicial officers between jurisdictions following a proposal put forward by the Chief Judge of the NSW District Court.

The bill is based upon the model provisions approved by the Standing Committee of Attorneys-General. It is underpinned by agreed Principles for Exchange, which will be the subject of a formal agreement between participating jurisdictions.

Other Australian jurisdictions have expressed their support for judicial exchange as facilitated by this bill. NSW is the first jurisdiction to introduce this model legislation. The Government anticipates that the other participating jurisdictions will soon follow.

The proposed judicial exchange reforms are generally supported by the judiciary, including the Chief Justice, and will:

 Streamline the process for arranging exchanges, which are currently undertaken on an ad hoc basis

 Allow the beneficial exchange of information and ideas between judicial officers in Australian jurisdictions

 Contribute to the development of a national jurisprudence, while at the same time generally enhancing judicial development

The bill also amends the Judicial Officers Act 1986 to clarify the operation of the doctrine of incompatibility of office, including its application to judicial exchanges.

The proposed judicial exchange provisions allow the Attorney Generals of the Commonwealth, States and Territories to enter into arrangements for the temporary exchange of judicial officers between New South Wales courts and corresponding interstate courts.

Such "exchanges" may involve an actual exchange of judicial officers between two jurisdictions, but also cover situations where a State or Territory judicial officer sits in another jurisdiction without reciprocation from the other jurisdiction. An example of such a situation would be where local judicial officers are precluded from hearing a matter because of a conflict of interest and an interstate judicial officer is asked to hear the matter. While these situations do not arise very often it is important that there be clear mechanisms to cover such circumstances.

Such one-way arrangements may also take place in the case of federal court judicial officers. For constitutional reasons, State and Territory judicial officers cannot sit on a Federal court. Nevertheless, the Commonwealth Government has expressed a willingness to allow one-way "exchanges" so that Federal court judicial officers can sit on State or Territory courts.

The legislation has also been drafted to allow New Zealand judicial officers to participate should such an arrangement be entered into at a future date.

The bill provides that the term of an appointment made under the exchange arrangements is limited to six months initially, but may be renewed. An appointment may be terminated at any time in accordance with the arrangement.

A list of New South Wales courts and corresponding courts in other jurisdictions that have been approved to participate in the exchange program is set out in the schedule to the bill.

The Principles for Exchange underpinning the legislation include a requirement that the relevant Minister in each jurisdiction must approve the exchange, or any extension made under an agreement entered into in accordance with the legislation.

The principles also provide that heads of jurisdiction may not participate in the exchange program—it would be inappropriate to have the person responsible for the overall management of the court absent on an exchange for an extended period.

Judicial officers will generally continue to be remunerated, and to accrue pension entitlements, as if they are undertaking their substantive role in their home jurisdiction.

Subject to any agreement between the relevant heads of jurisdiction, where a State or Territory judicial officer sits in another jurisdiction other than by way of a two-way exchange arrangement, the host jurisdiction will reimburse the home jurisdiction for the salary of the judicial officer. Other matters, such as expenses associated with the exchange, are also covered by the agreed principles.

The proposed exchange program will contribute to the growth of jurisprudence, and benefit both participating judicial officers and jurisdictions through exposure to new ideas, improved court procedures, and perspectives on the court system.

The doctrine of incompatibility of office essentially provides that certain office holders cannot simultaneously hold incompatible offices.

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The Judicial Officers Act 1986 currently provides that the doctrine of incompatibility of office does not operate to prevent a judicial officer from being appointed to act in another judicial office, or to require the surrender or vacation of the original office as a result of the new appointment.

The bill will remove any uncertainty that the doctrine of incompatibility of office does not operate to prevent a judicial officer from being appointed to any other court or tribunal, whether the judicial officer's appointment is in an acting, temporary or permanent capacity.

This principle will also extend to appointments in jurisdictions outside New South Wales and the bill clarifies that it applies to all tribunals having judicial or quasi-judicial functions. For example, it will make it clear that the doctrine does not prevent a judicial officer from sitting on a tribunal such as the Medical Board or the Workers Compensation Tribunal, while still holding office as a Supreme Court of District Court judge.

The proposed judicial exchange program facilitated by this bill will expose judicial officers to a diversity of work and systems in other courts. Jurisdictions involved in the exchange will benefit from new ideas and improvements to their courts. Judges will gain greater experience and perspective on their role in the court system. With this bill, the NSW Government is leading the way in establishing this program.

I commend the bill to the House.

The Hon. DAVID CLARKE [6.06 p.m.]: The Opposition does not oppose the Judicial Officers Amendment Bill 2009, the purpose of which is to amend the Judicial Officers Act 1986 so as to enact in New South Wales model national provisions approved by the Standing Committee of Attorneys-General relating to the temporary exchange of judicial officers between various courts and tribunals in Australia and other countries. It extends to all judicial or quasi-judicial offices the existing provisions of the Judicial Officers Act 1986 to make clear that judicial officers may be appointed to act in other judicial offices without having to surrender or vacate their original judicial office.

The bill is based on proposals originally conceived by the Chief Judge of the District Court of New South Wales and will facilitate judicial exchanges between jurisdictions which are presently undertaken on an ad hoc basis. Apart from Queensland, the other States as well as the Commonwealth and Territories have agreed to the model provisions. Specifically, the bill amends the Judicial Officers Act 1986 to incorporate the model national provisions approved by the Standing Committee of Attorneys-General relating to the temporary exchange of judicial officers between various courts and tribunals in Australia and other countries. In relation to temporary exchanges, participating jurisdictions comprise the Commonwealth, another State or Territory or another country if under the law of that other jurisdiction a judicial exchange arrangement may be entered into with the New South Wales Attorney General.

The provisions will enable the New South Wales Attorney General to enter into arrangements with the Attorney General of a participating jurisdiction for the temporary transfer of judicial officers between the New South Wales courts and corresponding courts, although for constitutional reasons such an arrangement cannot provide for the transfer of a judicial officer to a Federal court of the Commonwealth. The bill will enable the senior judicial officers of a New South Wales court, in accordance with the exchange arrangements, to appoint a judicial officer from a corresponding court as a judicial officer of a New South Wales court, with such appointment not being longer than six months at any one time nor extending beyond the retirement age for a New South Wales court judicial officer.

The scheme will operate in a way that requires the relevant Minister in each jurisdiction to approve the exchange, although judicial heads of jurisdiction are excluded from participation because it would not be in the interests of the proper operation of our courts for them to be absent for extended periods. It is provided that a judicial officer from a corresponding court appointed to act as a judicial officer of a New South Wales court is taken for all purposes to be a judicial officer of that court with all applicable powers and privileges. It is provided that for the purpose of remuneration and superannuation laws the service of a New South Wales judicial officer in a corresponding court is taken to be service as a judicial officer of the New South Wales court.

The bill confirms that the doctrine of incompatibility of office does not prevent a judicial officer appointed to a court or tribunal from being appointed to any other court or tribunal, and that such an appointment does not result in the surrender or vacation of the first judicial office. The bill will have a positive impact by streamlining the process for the exchange of judicial officers between jurisdictions. It will allow those involved in such exchanges to obtain greater experience and exposure to a diversity of jurisdictions and courts. For all those reasons, the Opposition does not oppose the bill.

Ms SYLVIA HALE [6.10 p.m.]: The Greens support the Judicial Officers Amendment Bill 2009. I understand that the Attorney General has been instrumental in streamlining and formalising the exchange of 20398 LEGISLATIVE COUNCIL 2 December 2009

judicial officers between jurisdictions and has secured an agreement with his interstate counterparts via the Standing Committee of Attorneys-General following a proposal advanced by the Chief Judge of the New South Wales District Court. Other jurisdictions will introduce this model legislation in order to facilitate the exchange of judicial officers between jurisdictions.

The bill inserts a new part 7A into the Act, which will allow the temporary exchange of judicial officers between various courts and tribunals in Australia and elsewhere. Schedule 4A to the bill provides a table of New South Wales and corresponding courts in order to clarify which are the corresponding interstate courts for the purpose of exchange. The bill will enhance the development of judicial officers and allow them to move between States and courts and assist them in their professional development. The Greens support the bill.

Reverend the Hon. FRED NILE [6.11 p.m.]: The Christian Democratic Party supports the Judicial Officers Amendment Bill 2009, which formalises and clarifies the basis upon which the exchanges between jurisdictions of judicial officers can take place. The bill is based on model legislation approved by the Standing Committee of Attorneys-General. It will apply to situations in which there is an actual exchange between two judicial officers in different jurisdictions as well as when a judicial officer sits in another jurisdiction, because local judicial officers are conflicted out of hearing a matter. A list of New South Wales courts and corresponding courts in other jurisdictions that have been approved to participate in the exchange program is set out in the schedule to the bill.

The Hon. KAYEE GRIFFIN [6.12 p.m.]: I speak in support of the Judicial Officers Amendment Bill 2009. As members have already heard, one of the main purposes of the judicial exchange scheme implemented by this bill is to facilitate the consistent and systematic sharing of judicial skills and expertise between Australian jurisdictions as we work towards the development of a national judiciary. Widespread support for fostering a national judiciary has been vital in the development of model provisions through the Standing Committee of Attorneys-General. Yet the program will make an equally important contribution to judicial education and development within New South Wales itself. Judicial education in the modern justice system does not simply mean keeping up-to-date with the latest developments in the law. Judicial education extends to developing analytical, writing, advocacy, interpersonal and communication skills, as well as understanding new technology.

It also encompasses ensuring that judicial officers are aware of the social, cultural and other issues that underlie legal problems and may impact on the way people participate in the legal process. The New South Wales Government has supported continuing judicial education and development for a number of years. The New South Wales Judicial Commission was established in 1986 largely in response to calls for a formal mechanism to review sentences and sentencing practice, and to give effect to judicial accountability. Although these facets of the commission's role remain important, it can now be said that judicial education is the commission's primary focus. And this is rightly so, given the crucial role education plays in eliminating conduct that might undermine the standing of the judiciary and the justice system.

The Judicial Commission's education program aims to promote excellence in judicial performance by providing judicial officers with information on law and justice and assisting in the development of appropriate judicial skills and values. It does this by offering an extensive conference and seminar program ranging from induction courses for new appointees to specialist conferences. The conference and seminar topics cover specific aspects of the law and legal procedure to judicial skills and socio-legal matters. In the 2008-09 financial year this included a three-day judgment writing master class; an exchanging ideas conference, bringing together judicial officers from all levels of the courts and Aboriginal community members from across New South Wales to discuss a diverse range of matters relating to Aboriginal cultural, social and legal issues; and the introduction of a seminar series designed to meet the specific needs of the Land and Environment Court.

The Judicial Commission also provided computer-training courses to facilitate effective use of computers in the context of the court system, and to enable access to on-line legal databases. Given the increasing use of information technology in the courtroom, the importance of this training should not be underestimated. Altogether, New South Wales judicial officers attended more than 1,396 days of face-to-face judicial education conducted by the Judicial Commission. According to the Productivity Commission's "Report on Government Services 2009", the New South Wales court system is the busiest of any court system in Australia. Our judicial officers are subject to demanding schedules and considerable workloads.

Rather than simply locking judicial officers into unremitting court schedules, the New South Wales Government is determined to ensure judicial officers can participate in professional development opportunities 2 December 2009 LEGISLATIVE COUNCIL 20399

and judicial education programs, whether provided by bodies such as the Judicial Commission or through a program such as the judicial exchange scheme. Judicial officers who participate in an exchange under the new scheme will have the opportunity to extend themselves, expand their legal knowledge and build new skills. It will give them another perspective on how judicial officers and courts operate and perhaps reveal where they excel and where there is room for improvement. The Productivity Commission's report shows that, in addition to being the busiest, New South Wales has one of the best-performing court systems in the country.

I believe the commitment of our judicial officers to their professional development and the support of this Government plays a big part in that result. The leading role taken by the New South Wales Government and judiciary in bringing a formal judicial exchange scheme to fruition is another example of this commitment. I commend the bill to the House.

The Hon. PENNY SHARPE (Parliamentary Secretary) [6.16 p.m.], in reply: I thank all honourable members for their contribution to debate on the Judicial Officers Amendment Bill 2009, and commend the bill to the House.

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

Motion agreed to.

Bill read a second time.

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

Third Reading

Motion by the Hon. Penny Sharpe agreed to:

That this bill be now read a third time.

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

ADJOURNMENT

The Hon. PENNY SHARPE (Parliamentary Secretary) [6.18 p.m.]: I move:

That this House do now adjourn.

DEATH OF ANTHONY GEORGE GAY

The Hon. DUNCAN GAY (Deputy Leader of the Opposition) [6.18 p.m.]: I wish to inform the House that Anthony George Gay, or Tony, known to his mates as Percy, who was born on 5 August 1954, died on 19 November 2009. Tony took his own life. He was a 55-year-old farmer who was suffering from depression— one of the killers of our best and finest. His death is a huge tragedy for his family and community. The great irony was that when my wife, Kate, and I drove into Cowra last Friday to attend the funeral service it was obvious that a storm had struck the town and trees were down everywhere. Families had gathered for the funeral, including Tony's family and his children, Maddie and Will, who spoke at the funeral. They talked about their dad with great love and spoke with humour that he was a fashionista—which is something for a Gay boy from my side of the family!

Those at the funeral included Tony's former wife, Pattie Anne—or PA as she is known—a great mother; Tony's current partner, Liz, who was an important part of his life; Aunty Joan, who is well into her 90s, walked around reassuring everyone who was there; and Tony's great sisters, Joanne and Bev, whom I remember looking after me as a young man on the train as I travelled to boarding school. They are pretty special.

My cousin Barry, or Baz, Tony's brother, spoke at the funeral service with such love. On occasion, Baz has a stutter, but at the service he got through what would have been the hardest job of his life with dignity and without a stutter. He talked about a friend who phoned up and said Tony wished there were two Bazzas because one just was not enough. He said, "On a day like this I wish there were two Tonys." My cousin Mal or Fat Albert as he is known—all the Gays have nicknames; I am known as Henry—told it how it was. He spoke about 20400 LEGISLATIVE COUNCIL 2 December 2009

how Tony was. He made a terrific contribution that really summed up Tony's life. He talked about the Boorowa Rugby Union front row of Phil Gay, Tony Gay and Mal Gay, how they beat Cowra and how the local paper talked about Cowra going down to the Gay front row.

His mates, who are wondering about what happened and should not blame themselves—Mick, Al, Steve, Speed, Phil, Gus and many, many more—had been there with Tony and knew the problems that he had faced and that they had helped him through. Like so many people, they thought he was in a purple patch. No-one is to blame for not anticipating what was going to happen.

Interestingly, the funeral service was conducted in the Catholic Church. My family come from a long line of right-footed Proddies. It is the second time I have been to a funeral in the Catholic Church for a member of the Gay family—we seem to have tragedy—because the Catholics have the biggest church in town! They were generous enough to lend it to our family on this occasion and on the occasion of the Monarch Airlines crash, in which my cousin Jane Gay and Olanda Clark lost their lives.

Depression is an awful thing. It particularly affects people during this time of drought. We read statistics on its incidence, but it is only when we see it in our own family that we fully appreciate it. In the time that remains to me to speak tonight, I hope we can recognise the people who are suffering from depression— people who are facing the vagaries of drought and markets—by observing a moment's silence for an absolutely cracking bloke, his children, his family, and the mates he left behind. We do not blame him, but we will always miss him.

SWISS MINARET CONTRUCTION BAN

Reverend the Hon. FRED NILE [6.22 p.m.]: I wish to speak briefly on an unusual event—the Swiss vote to ban new minarets, which is an interesting decision arising from a referendum that was held in a country that is widely regarded as one of the most peaceful and tolerant nations in Europe. Following a successful call for a petition—a petition has to be signed by many thousands of Swiss citizens to make it legal to hold a referendum—the referendum was held and a majority of voters approved a move to ban the construction of minarets. The ban had been promoted by one of the major political parties, the nationalist Swiss People's Party.

The results showed that the majority of cantons, which are regions of Switzerland, voted for the ban. The People's Party described minarets, which are distinctive spires used in most countries for calls to prayer, as symbols of rising Muslim political and religious power that will eventually turn Switzerland into an Islamic nation. Presently Muslims make up about 6 per cent of Switzerland's 7.5 million people. Many Swiss Muslims are refugees from the wars in the former Yugoslavia in the 1990s. The move by the People's Party, the country's largest party in terms of popular support and membership in Parliament, is part of a broader European backlash against a growing Muslim population. It has stirred fears of violent reactions in Muslim countries and an economically disastrous boycott by wealthy Muslims who bank, shop and have their holidays in Switzerland.

The seven-member Cabinet that heads the Swiss Government has spoken out strongly against the initiative and local officials and rights defenders objected to campaign posters showing minarets rising like missiles from the Swiss flag next to a fully veiled woman in a burqa. One of the issues that helped stir up the Swiss population were the statements made by Muslim leaders, particularly the Muslim Turkish Prime Minister, Recep Tayyip Erdogan, who said prior to the referendum, "Mosques are our barracks, domes our helmets, minarets our bayonets." Such statements should be totally rejected. They obviously caused a backlash amongst a people who are usually very placid and moderate.

I understand Switzerland has also introduced a ban on calls to prayer through loudspeakers from the existing minarets. I understand that there were four legal minarets attached to mosques in the country and as they had already been built they will not be affected by the referendum decision. There has been dramatic growth in the influence of Islam in Switzerland. Twenty years ago there were only three mosques in Switzerland—two in Geneva and one in Zurich. Now there are almost 90, generally referred to as Islamic cultural centres, and sometimes open for the five daily prayers and certainly open for Friday prayers. Muslims in Switzerland belong to a number of different national groups, including Bosnians, Albanians, Turks and so on. As I said earlier, they have come from different Muslim countries to Switzerland mainly as refugees. It is obviously disappointing for Muslims that the referendum was carried.

It has been stated that many Swiss women supported the ban because of their understanding of the oppression of women in Islamic societies. Another interesting aspect of what took place in Switzerland is that 2 December 2009 LEGISLATIVE COUNCIL 20401

many more women than men voted in the referendum. We have to see what lessons we can learn from this situation to ensure that we have harmony and peace in Australia. I also mention that tomorrow I have to go to Brisbane to attend a family funeral and I will not be in the House. I mention that lest someone thinks I am boycotting tomorrow's joint sitting.

SEXUALISATION OF CHILDREN

The Hon. GREG DONNELLY [6.27 p.m.]: Honourable members will be aware that I, along with others in this House and the other place, have spoken about the sexualisation of children by the media and popular culture. Many people are expressing great concern about this matter as the evidence mounts about its negative impact on the development of young people. It is almost three years since the American Psychological Association released its seminal report titled "Report of the APA Task Force on the Sexualisation of Girls". The report said unambiguously:

Ample evidence exists that sexualisation has negative effects in a variety of domains including cognitive functioning, physical and mental health, sexuality and beliefs.

It does not get much clearer than that. Australia can be proud that we have some of the world's most outstanding advocates and activists on this most important public policy matter. Time does not permit me to go through all that has been done over the past few years; however, what has been achieved should not be underestimated.

For those looking to get a handle on what has been done and what is left to be done, I strongly recommend they get a copy of Melinda Tankard Reist's book Getting Real: Challenging the Sexualisation of Girls, which contains contributions from Noni Hazlehurst, Emma Rush, Maggie Hamilton, Lauren Rosewarne, Louise Newman, Clive Hamilton, Selena Ewing, Abigail Bray, Melissa Farley, Renate Klein, Betty McLellan, Steve Biddulph, Tania Andrusiak, Julie Gale and Melinda Tankard Reist herself. The book was for me a status report in that it outlined where we were up to on the issue. However, it demonstrated also that there is a long way to go. If any member wants a copy of the book, I would be pleased to provide it.

Despite this concern, some companies are prepared to put their profits before the interests of children. In August this year Julie Gale from Kids Free 2B Kids outed retailer Cotton On for its raunchy baby t-shirts emblazoned with slogans such as "I'm a tits man" and "I'm living proof my mum is easy". Under mounting pressure and anger from the public the company admitted that the slogans in question had crossed the line. They apologised and promised to withdraw the offensive merchandise. Three months later nothing has changed. On 19 November, when the Melbourne Sun-Herald asked Julie Gale about Cotton On still selling the T-shirts, she said:

It's ratbag behaviour and an excellent example of ignorance and irresponsible corporate behaviour.

I, and no doubt many members in this House, would agree completely. On 23 November I visited the Cotton On store at Westfield, Hornsby. There, still on full display for all to see, were the offensive T-shirts. I thought it would be instructive to purchase some of the T-shirts and to show members how low some companies are prepared to go to turn a dollar. Slogans including, "Lock Up Your Sons", "Lock Up Your Daughters", "Mmm, boobies" and "I'm a tits man" are printed on the T-shirts that I have available for all members to see. What will it take to get Cotton On to honour the original promise that it made in August? Perhaps this might do the trick. From today I call on all Australians preparing to do their Christmas shopping to strike Cotton On stores off their Christmas list.

The Cotton On group retail stores include Cotton On, Cotton On Kids, Cotton On Body, Ruby and Typo. Australians should not spend one cent in a Cotton On store in the lead-up to Christmas. Perhaps this might get the company's attention and encourage it to do what it promised to do. I also encourage shopping centre proprietors such as Westfield, Lend Lease and Stockland to sit representatives from Cotton On down and to tell them this merchandise is out of bounds. Families and many children who visit shopping centres should not have to put up with this crass merchandise being shoved in their faces. I call on Westfield, Lend Lease, Stockland and other shopping centre proprietors to do the right thing and call any ratbag retailer to account. When Cotton On comes to its senses I suggest that it contacts my office and I will provide it with Julie Gale's mobile phone number.

ETHNIC BUSINESS AWARDS

The Hon. MARIE FICARRA [6.31 p.m.]: Twenty-one years ago Mr Joseph Assaf, one of our greatest ethnic community leaders, had a dream. That dream was to recognise and reward the contributions of 20402 LEGISLATIVE COUNCIL 2 December 2009

migrants to the Australian economy, create understanding and resonate national harmony by highlighting the positive aspects and impacts of multicultural Australia. Joseph spent his years promoting Australia as a key destination to create and sustain business across all sectors of industry, despite race, colour, religion and cultural background, highlighting the collective migrant spirit in Australia and celebrating the diversity of our nation. Joseph Assaf achieved his dream and with the support of his wonderful wife, Angela, to whom he affectionately refers as his angel, he established the Ethnic Business Awards. I pay tribute to the Assafs for their extraordinary work for our community.

Last Monday night at the Four Seasons Hotel, in the presence of Her Excellency the Governor-General, Quentin Bryce, AC, we celebrated the twenty-first anniversary of the awards. There were 1,500 nominations. The finalists in the Small Business Category included Roland Jabbour, formerly of Lebanon, and founder of Jabbour Holdings; Lindy Chen, formerly of China, who established China Direct Sourcing Services Pty Ltd; Giuseppe Guigni, formerly of Italy, and founder of Fyshwick Fresh Food Markets Pty Ltd; Josette Robert, formerly of Mauritius, and founder of JR Global Logistics Pty Ltd; and Elizabeth Green, formerly of Ireland, who established Mixology Management Pty Ltd. The winner of the Small Business Category was Giuseppe Guigni.

My adviser, Councillor Vincent De Luca, OAM, had the privilege of sitting with Giuseppe at the awards dinner and described him as "a humble and wonderful man". From small beginnings the Australian Capital Territory Fresh Food Markets now feature 33 different stallholders of 15 different nationalities. Currently it is undergoing a $16 million redevelopment. Originally from Colda in the province of Sondrio, Italy, Giuseppe Guigni left school early and cites his tertiary education as life experience, self-taught. He worked in a Sydney fruit market and then in several other trades before managing to open his own stores. Giuseppe has contributed significantly to charity and has raised thousands of dollars for a range of good community causes.

In the Medium to Large Business Category the finalists were: Paul Bitdorf, formerly from Poland, who established the Australian Property Alliance; Marko Franovic, formerly of Croatia, who established the Boka Group; Ali and Manel Hammoud, formerly of Lebanon, who founded Ella Rouge Beauty; Antonio Romeo, formerly of Italy, who formed Romeo's Retail Group; and Khaled El-Sheikh, formerly of Egypt, who established the Tri-Star Medical Group. Marko Franovic of the Boka Group won the Medium to Large Business Award. Despite being housed in a detention camp on arrival in Australia after escaping the Communist regime in former Yugoslavia, he has gone on to thrive in Australia. He escaped the Tito regime, fleeing from Italy and ending up in the Bonegilla detention camp near Albury.

Marko, joined by his two brothers, established the family's Boka Group, which is an industry leader in property management and window installation, turning over several million dollars a year. Ali and Manel Hammoud, who left Lebanon in 1987 as war refugees, won the initiative award. Both went on to establish Ella Rouge Beauty, which has quickly become an industry leader in laser hair removal. These awards could not have been possible without the generosity of the sponsors: NAB, Etihad Airways, Telstra, Austrade, the Department of Immigration and Citizenship, Four Seasons Hotels, Doric, MBF, Fair Word, Astra Limousines Australia, SBS, Australia Network, Aurora Community Channel, TVBA, Sing Tao Daily, Design Awards, El-Telegraph, Chinese Newspaper Group, Indian Link, Chieu Duong, the Sydney Korean Herald and Neos Kosmos. Thanks go also to the judging panel: Don Argus, Even Crestani, Allan Gyngell, Ziggy Switkowski and Carla Zampatti. Congratulations all round to the wonderful contributions made by these successful Australians showcasing the value of diversity in our great State and nation.

VOYAGER POINT LAND ACCESS

AFFORDABLE HOUSING

Ms SYLVIA HALE [6.35 p.m.]: I received a letter from Dr Ted Trainer of lot 668, Voyager Point, which is located in the Liverpool Council area. Dr Trainer is concerned about the actions of the council, in particular, the reversal of its position vis-a-vis access to his block. I will read briefly from his letter that outlines the predicament facing him and his family:

For over sixty years my family has resided on Lot 68 Voyager Point. We have previously been able to access the block via the existing paths initially from the west, but for several decades from the south. The latter path runs across two private but unoccupied blocks. However recently the owner of Lot 72 to the South has refused to allow us to continue using that path.

When my family purchased Lot 68 in 1942 we knew we were acquiring a lot with a formal/legal access to our north western corner, which now runs off Sirius Rd, Voyager Point. The road is marked on Lands Department and other maps. As we had no need to have the road opened it has remained unformed. We would not wish it to be formed now given the environmental value of the wetland it runs through, and the relevant authorities would not approve its formation.

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We therefore approached the Liverpool Council in November 2005 and its officers made arrangements for us to access using a long established path from the west, across the Council's land Lot 6. The former Administrator of the Council, Ms Gabriel Kibble, was very helpful in this process.

Since then a new General Manager has come into office and he is strongly opposed to Council giving us approval to cross Lot 6. At first difficulties were raised re gaining approval from the Rural Fire Service and the Department of Environment and Climate Change. We believe we dealt with these adequately, for instance by getting an independent assessment from a fire consultant. Recently the Council has claimed that it cannot give approval under the local Government Act, despite the fact that in 2005 its Own legal officers stated that this was possible.

Dr Trainer notes in his letter:

We receive relatively little benefit in the form of Council services ... We do not have garbage collection, water supply, electricity supply or postal services, or receive normal gas supply.

I call on the general manager of Liverpool council to negotiate with Dr Trainer and his family to resolve a clearly unsatisfactory situation.

I turn now to the affordable housing issue that has been developed under the Nation Building and Jobs Plan (State Infrastructure Delivery) Act 2009 by the Office of the Coordinator General of Infrastructure. The Greens favour affordable housing, as we believe there is a lack of affordable housing in this State, which impacts mostly on those who are least able to withstand the uncertainties of the absence of secure and affordable accommodation. However, the way in which the State Government is going about providing this affordable housing is an absolute recipe for antagonising communities, setting their faces against the provision of affordable housing, and stigmatising those who live in it. For example, in Wollongong tomorrow residents will rally in protest against the construction of 58 public housing units in two apartment buildings on Market Street Wollongong—developments labelled by Wollongong City Council's administrators as overdevelopment. The proposal has been criticised for breaking the local height limit of 24 metres, exceeding the floor space ratio, insufficient sparking, setback distances, lack of open space and lack of waste storage.

A similar tale applies to affordable housing developments in Boyd and Josephson streets, Swansea. Comments have been made that the proposed units are very small and that large clusters of social housing have not worked in the past. This particular development has no common space and nowhere for children to play or for people to meet and socialise. Boyd Street is quite a distance to walk for shops or other facilities. Lake Macquarie City Council has prepared two highly negative and extensive reports on both proposals, but is excluded, as is Wollongong council, from the approval process. No adequate notification of the development has been given to residents either. The proposed construction of these units is on a flood-prone site subject to coastal hazards. [Time expired.]

RENTAL ACCOMMODATION SECURITY

The Hon. PENNY SHARPE (Parliamentary Secretary) [6.40 p.m.]: Safe and secure housing is very important, especially for those in our community doing it tough. It is disappointing to hear that the Greens will not support additional social housing in some areas of New South Wales. Last week in conjunction with my colleagues the Hon. Trevor Khan, the Hon. Greg Pearce and Ms Sylvia Hale I hosted a forum about secure housing, organised by the Tenants Union. At that event we heard from Gregor Macfie from the Tenants Union and Jen Rignold, a social housing advocate from the public housing estates in Claymore, who read a story from her good friend Joanna Loko about the community of Claymore and what it has meant for her. We heard also from two advocates from Street Care, Kevin Simpson and Adrian Jansson.

Street Care is an advisory group made up of people who are, or have been, homeless. It is the first group of its kind in New South Wales. Street Care provides input on projects to ensure that the voices of homeless people are heard by government and other decision makers. Kevin and Adrian spoke about what it is like to not have stable and secure housing. The stories they told of life in boarding houses in Sydney were chilling: vermin, rodents and theft. Adrian said he would rather sleep rough than in some of the boarding houses he has sought shelter in. Kevin spoke about what it was like to come home to find his room broken into, the few possessions for which he had saved up stolen and the last few bits of food taken from his fridge. Kevin and Adrian also explained how they were vulnerable to unscrupulous landlords. Their stories drove home how important it is to have safe and secure housing.

The idea of a home is something most of us take for granted. Safe, secure and stable accommodation is something that most people rarely think about. Stable, affordable and good quality housing provides a 20404 LEGISLATIVE COUNCIL 2 December 2009

foundation for people's economic and social participation. It promotes strong families and communities. But on the flipside, a lack of stable and secure housing can contribute to poor health, poor education and poor employment outcomes, and also can increase poverty and social exclusion. The Tenants Union organised this forum as part of a broader initiative for social inclusion week. It is running a community event to stress the importance of stable, affordable housing while calling for better laws to improve security of tenure in private rental housing.

It asks renters, public housing residents and homeless people to speak to members of Parliament about their experiences. I should like to share with the House the experience of Bonnie, who has kindly shared her story with me. Veronica, known to her friends and family as Bonnie, is an aged pensioner who has lived in her public housing flat at Telopea for 32 years. She is a member of and volunteer with the Western Sydney Regional Public Tenants Council. Bonnie is very positive about her experience of public housing. Her children want her to move to the country to be closer to them, but she does not want to leave. In Telopea she is part of the community. She is close to the services she needs and uses such as Westmead hospital, shops, buses and trains. Bonnie has friends who have been evicted from private housing for no reason. For Bonnie public housing is security. She said:

I know my rent will never be more than 25% of my income. It feels safe here. Having been here so long we look after each other. I call a couple of women in the units if I don't see them for a few days. Another neighbour used to take my dog for a walk.

Bonnie has been able to put down roots in Telopea and give back to the community. She knows the local councillors by name and encourages them to talk to residents and vice versa. She is confident that this has built trust and community spirit. Together the community has been able to work out solutions to local issues. This has included gaining disabled access on footpaths and new bus stops. Bonnie is involved in local organisations including the local tenants group. She is well known and cannot visit the shopping centre without being stopped by a number of locals for a chat. She supports new residents and involves them in community activities. Bonnie said:

My son was raised in this flat. I would watch him walk to school from the balcony. Now he has a good education, a good job and is paying off his own home. Public housing gave him that start.

Like Bonnie, Kevin from Street Care is now also established in public housing. Having been on the streets for most of the past 20 years he is now moving to his second property, transferring to an area he wanted to live in. For 18 months now he has had safe, secure and stable housing; a place where, in his words, he can lock the door and know he is safe and secure. I place on record my thanks to the Tenants Union for organising the forum and giving me the opportunity to share the stories of Bonnie, Kevin, Adrian and Joanna with the Parliament.

Question—That this House do now adjourn—put and resolved in the affirmative.

Motion agreed to.

The House adjourned at 6.46 p.m. until Thursday 3 December 2009 at 11.00 a.m.

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